Filed 1/19/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL HUYNH,

Defendant and Appellant.

 H042184

 (Santa Clara County

 Super. Ct. No. C1360508)

Defendant Michael Huynh was sentenced to prison after a jury found him guilty of 

assault with a deadly weapon and other offenses, with gang enhancements. On appeal, he

asserts prejudicial discovery violations, error concerning the prosecution’s gang expert 

testimony, and insufficient evidence to support the conviction and gang enhancement for 

unlawful possession of a billy. For the reasons explained here, defendant has failed to 

establish prejudicial discovery or evidentiary error, and the conviction for possession of a 

billy and related gang enhancement are supported by substantial evidence. We will 

affirm the judgment. 

I. BACKGROUND

In March 2012, defendant, then a student at Andrew Hill High School in San Jose, 

was involved in a fight with another student. Fourteen months later, defendant retaliated 

against Julian, the student whom he perceived had “jumped” him. On May 8, 2013, 

defendant, along with four or five other males, chased Julian and two schoolmates, Isaiah
2

and Alvaro, as they were returning to the school campus after lunch, and accosted Julian

on Senter Road in front of the school.1

San Jose Police Officer Paul Guerra interviewed Julian, Isaiah, and Alvaro after 

the incident. Julian told Officer Guerra that one of the males had hit the back of his head 

with a blunt object, and another male had raised a hammer as if to hit him, but Julian ran. 

Julian did not have any visible injuries or identify his assailant. Alvaro told Officer 

Guerra someone said “ ‘What’s up, cuz,’ ”and “ ‘There he is. Get him,’ ” and that he saw 

an Asian male strike Julian in the back of the head with a hammer. Isaiah said that Julian

was the target of the attack and was struck in the back of the head with a “short handled 

sledgehammer.” Isaiah also reported that other members of the group had weapons, 

including a meat hanger and a short metal baseball-type bat. Isaiah looked through 

photographs of former students with the school’s liaison probation officer, Colleen 

Thomas, and he identified defendant as the male who, pointing to Julian, said to a male

with a hammer, “ ‘That’s him, Get him.’ ” 

Officers executed a search warrant at defendant’s residence about two months 

later. In addition to seizing defendant’s cellphone and gang paraphernalia, they seized a 

pair of metal knuckles, a loaded firearm, and ammunition from a bedroom defendant

shared with his brother. They also seized a small sledgehammer and collapsible baton 

from a Toyota Corolla parked in the driveway.

Defendant was arrested and interviewed by Detective Jill Ferrante. He said the 

brass knuckles, the drawer where the gun was found, and the Toyota were his, but he 

knew nothing about the baton, the hammer, or the gun. He said he had been jumped at 

school in March 2012 and that he “went after [Julian] in retaliation” in May. He admitted 

chasing Julian across the street and swinging a crowbar at him, but denied striking him.

 

1 We use given names to protect the identities of the witnesses who were minors in 

2013.
3

II. TRIAL COURT PROCEEDINGS

Defendant was charged with assault with a deadly weapon (Pen. Code, § 245, 

subd. (a)(1); count 1 [undesignated statutory references are to the Penal Code]), unlawful 

possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2), unlawful possession of 

ammunition by a felon (§ 30305, subd. (a)(1); count 3), possession of metal knuckles 

(§ 21810; count 4), and two counts of possession of “a weapon of the kind commonly 

known as a billy” (§ 22210; count 5 [the collapsible baton] and count 6 [the mini 

sledgehammer]). The information alleged that counts 1, 5, and 6 were committed to 

promote, further, or assist a criminal street gang (§ 186.22, subd. (b)(1)), and that 

defendant had sustained a prior conviction for residential burglary subjecting him to 

additional punishment under the Three Strikes law (§§ 667, subds. (b)–(i) and 1170.12)

and section 667.5, subdivision (a). 

At trial, Julian, Isaiah, and Alvaro were called as witnesses for the prosecution. 

Julian’s testimony was more detailed than the statement he had given Officer Guerra. He 

testified that a group of five or six Asian males, including defendant, approached him and 

his schoolmates as they were walking across Senter Road. One of the males said “What’s 

up, Cuz?” and Julian realized “they were coming at me, at us,” and then “[e]verything 

happened.” Within seconds Julian was hit on the back of his head with what felt like a 

blunt object. He turned around and saw “[a]ll the guys that were trying to get me.” 

Defendant, whom Julian recognized as a former student, was very close, about a foot 

away, with “like a crowbar,” a “metal blunt object” in his hands, positioned at an angle as 

if following through with a swing. Before he could react, someone else struck his cheek 

area with “[l]ike a construction hammer” with a “metal end.” The males all had 

weapons, including knives, and one of them yelled “Asian Boyz” as Julian ran back to 

school. Julian was not injured, but he applied ice for the pain, and he told Officer Guerra 

that the Asian Boyz did this. Julian had seen defendant in a fight on the school campus in 
4

2012. It was a one-on-one fight in the bathroom, but Julian left before it ended and did 

not know who won.

On cross-examination, Julian acknowledged testifying at the preliminary hearing

to being struck on the back of his head, but not about a strike to his cheek, and he did not 

remember also testifying that he had been hit with bare hands. He did not have a clear 

recollection of his interview with Officer Guerra, and he could not remember whether he 

had told Officer Guerra that someone had shouted “Asian Boyz,” but he had told Officer 

Guerra he had been hit by a hammer.

Alvaro testified that he, Julian, and Isaiah were “rushed,” “really fast,” as they 

crossed the street by a group of about five people, one of whom said something like 

“ ‘What’s up’ ” or “ ‘What’s up, cuz.’ ” Alvaro ran “because there was more than one 

person attacking Julian.” He did not remember seeing Julian get struck, and if he had 

told Officer Guerra he had seen Julian get hit by a hammer in the back of the head, that 

was because he was repeating what Julian had told him after the attack. 

Isaiah testified that he, Alvaro, and Julian were crossing the street when he noticed 

a commotion in the median that he knew “wasn’t good” and “looked rough,” so he ran.

He saw fast, sudden, movement, his instinct told him it was dangerous, and he felt fear. 

He saw a group of people surround Julian, but he and Alvaro were not hit. He had no 

recollection of what happened, his memory was not refreshed by the statement he had 

given Officer Guerra, and he did not remember speaking with probation officer Thomas. 

The court made a finding under People v. Green (1971) 3 Cal.3d 981 that Isaiah was 

being deliberately evasive, and his prior statements were admitted for their truth under 

Evidence Code sections 1235 and 1237.

Officer Guerra related the statements made by Julian, Alvaro, and Isaiah after the 

attack. He also testified that none of the students had reported hearing someone yell 

“Asian Boyz;” Julian never told him he had been hit in the face or hit with a hammer;

Julian did not name his assailant that day; and there were no visible signs of injury. 
5

Probation officer Thomas testified that Isaiah had identified defendant among 

photographs of former students, and that while defendant was a student at Andrew Hill 

High School he would spend time in an area on the main quad where Asian Boys gang 

members congregated.

Chris Hardin, an expert in digital forensics employed by the Santa Clara County 

District Attorney’s Crime Lab, testified regarding data extracted from defendant’s cell 

phone, including two Facebook chat messages. In a May 16, 2013 chat between 

defendant (using the handle “Vietnamese Cuhz”) and a Sons of Samoa gang member who 

was upset with defendant for going after Isaiah, defendant wrote, “it’s called retaliation,” 

and “dnt be asking me about your lil homie, like I said I went after the fat nigguh, if you

boy got in the way than it woulda been bad, if your boy got a problem than he can handle 

it with the homie.” Defendant continued: “I told you many times, he didn’t get touch n 

we weren’t after him, get it straight. [H]e clearly seen us going after the nigguhs from 

trees.” Defendant also messaged, “I already told you, we aimming for julian,” and “I told 

you I was after julian. Your homie ran when I chased julian.” In a Facebook chat with a 

female in April 2013, the female wrote “Are you serious ... David told me it’s because of 

your car and the hammer.” Defendant responded, “Hammer is a weapon. Not supposed 

to have weapons on me.”

Officer John Vanderbroeck testified regarding the search of defendant’s residence, 

and several photographs of seized items were introduced through him. Detective 

Ferrante testified that after his arrest, defendant told her he had been jumped at school in 

March 2012, he believed his attacker was Julian, he had retaliated on May 8 for that 

attack, and he had chased Julian across the street and swung a crowbar at him but did not 

strike him.

Detective Ferrante also testified as an expert in gang culture, and in identifying 

gangs and gang members in San Jose. She was a 19-year veteran with the San Jose 

Police Department, and her first contact with the Asian Boyz gang occurred within the 
6

first eight years of her career. The Asian Boyz is an informally structured gang that 

associates with the African-American Crips gang. It identifies with the color blue, letters 

“ABZ,” and corresponding numbers “1-2-26.” Gang culture is based on respect, and 

respect is maintained by instilling fear through violence and retaliation. Consistent with 

that culture, Asian Boyz gang members promote themselves as dangerous and respected.

Detective Ferrante joined the gang investigations unit in May 2013 (about 18 

months before trial), and had been briefed by the police department’s veteran Asian gang 

expert at that time. That detective “solidified absolutely everything that I had already 

thought. . . . [H]e showed me pictures of what they are wearing, what they look like, and 

I’ve seen them before. Obviously, being on the street for 12 years, you get to run into 

them every now and then.”

Detective Ferrante reviewed weapons-related criminal convictions by Asian Boyz 

gang members, and law enforcement documents relating that defendant had bragged 

about his affiliation with that gang. She opined that in 2013 Asian Boyz was an ongoing 

criminal organization with at least three members; that the gang’s main criminal activities 

were assault with a deadly weapon, battery, possession of guns, and drug dealing; that 

defendant was a member of the Asian Boyz; and the assault against Julian was retaliation 

which benefitted the gang. She also opined that defendant possessed the mini 

sledgehammer and the collapsible baton for the benefit of the gang.

At the close of evidence, the court entered an acquittal on the gang enhancement 

for count 5 (the collapsible baton). The jury convicted defendant of all counts and found 

true the remaining gang enhancements. Defendant admitted his prior conviction, and was 

sentenced to ten years four months imprisonment.2 

 

2

The court struck the punishment for the gang enhancements; imposed a low term 

of 4 years on count 1; concurrent 32-month sentences on counts 2, 3, 4, and 5; a 

consecutive 16-month sentence on count 6 (one-third the midterm); and a consecutive 5-

year sentence for the serious felony enhancement.
7

III. DISCUSSION

A. DISCOVERY ISSUES

Defendant argues that the trial court abused its discretion by finding no statutory 

discovery violations related to the prosecution’s disclosure of a cellphone report 

containing data extracted from defendant’s cellphone, the name of the analyst who 

extracted the data, and Detective Ferrante’s gang summary. He argues admission of that 

evidence resulted in an unfair trial. We review a trial court’s ruling regarding discovery 

matters under an abuse of discretion standard. (People v. Ayala (2000) 23 Cal.4th 225, 

299.) An abuse of discretion occurs when the trial court misapplies the law. (Hernandez 

v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 680.)

1. Background

In August 2013, defendant was arraigned on an amended complaint and waived 

his right to a preliminary hearing within 60 days after arraignment. The preliminary 

hearing was held on August 1, 2014, and the case was placed on the September 22, 2014 

master trial calendar. The matter was reset for the following week, and trial commenced 

on Tuesday, October 7. 

a. Jail records

The prosecution issued a subpoena duces tecum for defendant’s jail records on 

September 5, 2014. Defendant’s motion to quash the subpoena was denied on September 

24, and the records were released to the prosecution for copying. Detective Ferrante 

obtained a search warrant for a forensic examination of defendant’s cellphone on 

September 23, and defendant received copies of the subpoenaed jail records and search 

warrant on September 30. 

On October 7, defendant moved to compel production of outstanding discovery

(including Detective Ferrante’s gang summary), to exclude hearsay statements contained 

in the subpoenaed jail records, and to exclude any evidence produced as a result of the 
8

September 23 search warrant because that evidence had not been received at least 30 days 

before trial. The court ruled that the hearsay statements contained in the subpoenaed jail 

records were admissible as a basis for Detective Ferrante’s opinion that defendant was a 

gang member. Defendant received Detective Ferrante’s gang summary that day, and his 

objection to two hearsay statements contained in that report was sustained.

b. Cellphone report

When the court adjourned on Thursday October 9, the court instructed the 

prosecutor to contact the crime lab and impress that the cellphone report needed to be 

finalized that day out of basic fairness to defendant, given the stage of the proceeding (the 

hardship portion of jury selection had concluded). The parties received the report the 

next day, which included call logs and extracted texts messages, Facebook chat 

messages, photographs, songs, and videos.

When the court reconvened the following Tuesday, October 14, defendant 

objected to the cellphone report because it had not been disclosed 30 days before trial and 

no good cause had been established for the late disclosure. The court found no discovery 

violation because the report had been disclosed upon receipt. The court ruled that 

Detective Ferrante could refer to relying on the report in forming her opinion, and asked 

the prosecutor to quickly identify which extracted files he intended to present to the jury. 

The next morning the prosecutor identified certain songs, texts, and Facebook 

messages he intended to present to the jury, and defendant moved to exclude those items 

based on a discovery violation and a violation of his due process right to a fair trial. The 

court maintained its view that no statutory discovery violation had occurred, but it 

expressed concern with potential prejudice resulting to defendant from the timing of the 

disclosure. It limited the prosecution to three songs and two redacted Facebook 

conversations. And given the volume of data extracted from the phone (including 96 

Facebook chats, over 16,000 text messages, and 464 audio files), the court precluded the 

prosecution, which was starting its case-in-chief the next day, from presenting any 
9

cellphone evidence until the following week. With that much material, the court 

understandably stressed that it wanted to be accommodating, it would be in recess that 

Friday, and defendant could have additional time Monday morning to prepare if a request 

was made before Thursday’s adjournment.

2. Analysis

The prosecution has a duty to disclose certain categories of evidence “if it is in the 

possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the 

possession of the investigating agencies,” including “[a]ll relevant real evidence seized or 

obtained as part of the investigation of the offenses charged,” and “[witness statements] 

or reports of the statements of witnesses whom the prosecutor intends to call at the 

trial, ... reports or statements of experts made in conjunction with the case, [and] the 

results of physical or mental examinations, scientific tests, experiments, or comparisons 

which the prosecutor intends to offer in evidence at the trial.” (§ 1054.1 & subds. (c), 

(f).)

Section 1054.7 requires that discovery disclosures be made at least 30 days before 

trial unless good cause is shown why a disclosure should be denied, restricted, or 

deferred. If a party knows of or comes into the possession of material or information 

within that 30-day period, disclosure shall be made immediately unless good cause is 

shown. (Ibid.) Under section 1054.5, subdivision (b), the court may remedy a disclosure 

violation by delaying or prohibiting the testimony of a witness or the presentation of real 

evidence, continuing the matter, or initiating contempt proceedings. 

a. Cellphone content

Defendant argues that disclosure of the cellphone report in the midst of jury 

selection violated section 1054.1 because the prosecution had been in possession and 

control of the phone, and by extension the extracted data, since the phone was seized in 

July 2013, and it failed to show good cause for disclosing the data within 30 days before 
10

trial. The cell phone, which falls under section 1054.1 subdivision (c) as real evidence 

seized as part of the investigation, came into the San Jose Police Department’s possession 

when it was seized in July 2013. Whether for purposes of section 1054.1 the data on the 

phone was in the possession of the prosecution or investigating agency before it was 

extracted is a legal question subject to our independent review on appeal. (People v. 

Groat (1993) 19 Cal.App.4th 1228, 1231.) 

Here, the investigating agency took possession of the cellphone in July 2013, the 

prosecution was aware that the phone contained potentially relevant information, it 

intended to extract that information, and the District Attorney’s crime lab had the ability 

to perform the extraction. Because that data was readily extractable (after obtaining a 

search warrant), in our view it was in the constructive possession of the prosecuting 

agency and it should have been disclosed at least 30 days before trial under 

section 1054.7. The purpose of the statute is to “promote the ascertainment of truth in 

trials by requiring timely pretrial discovery.” (§ 1054, subd. (a).) That intent would be 

thwarted if the prosecution could avoid the 30-day deadline by generating a late report.

But that does not end our inquiry because defendant has not demonstrated 

prejudice. Even if the trial court erred by concluding that disclosure of the cellphone 

report was not a statutory violation, defendant has failed to show that the court would 

have remedied the late disclosure any differently had it been viewed as a statutory 

violation. Section 1054.5 addresses remedies for a statutory disclosure violation. The 

trial court has discretion under section 1054.5, subdivision (b) to “make any order 

necessary to enforce the [statutory disclosure] provisions,” including immediate 

disclosure, delaying or prohibiting the testimony of a witness or the presentation of real 

evidence. The court may prohibit a witness from testifying only if all other sanctions 

have been exhausted. (Id., subd. (c).) “[E]xclusion of testimony is not an appropriate 

remedy absent a showing of significant prejudice and willful conduct motivated by a 

desire to obtain a tactical advantage at trial.” (People v. Jordan (2003) 
11

108 Cal.App.4th 349, 358.) To address prejudice, courts should craft a remedy to 

“resolve or significantly resolve the disadvantage,” including delaying the presentation of 

testimony to allow the surprised party the opportunity to prepare. (People v. Gonzales

(1994) 22 Cal.App.4th 1744, 1757.) Excluding testimony is called for only when 

prejudice is substantial and irremediable, and when it would not undermine the reliability 

of the truth-finding process. (Id. at pp. 1757–1758.) 

The trial court, mindful of the potential prejudice to defendant resulting from the 

late disclosure of the cellphone report, crafted a remedy equivalent to any remedy 

available under the statute. The court required the prosecution to identify the files it 

intended to use at trial, admitted only two Facebook chats in redacted form, and allowed 

Detective Ferrante to rely on (but not play) three songs. Excluding that evidence would 

not have been warranted as a statutory remedy because defendant never claimed the 

prosecution was acting willfully or in bad faith to obtain a tactical advantage. The court 

prohibited the prosecution from presenting any cellphone evidence until the following 

week to ensure defendant had a reasonable opportunity to review the materials, and it 

offered defendant additional preparation time if needed. 

Defendant has not shown that the court’s remedy resulted in fundamental 

unfairness. (People v. Partida (2005) 37 Cal.4th 428, 436 [state law error rendering trial 

fundamentally unfair constitutes due process violation].) We acknowledge the lost 

opportunity to voir dire potential jurors about their reaction to use of the word “nigguh” 

in one of the Facebook chats. But defendant has not identified “lines of independent 

investigation, defenses, or trial strategies [he] otherwise would have pursued” with 

additional preparation time. (In re Brown (1998) 17 Cal.4th 873, 887.) Indeed, the 

inculpatory evidence was extracted largely from defendant’s own Facebook files, and his 

access to that content was not prevented by law enforcement’s seizure of his cellphone. 

As for the potentially inflammatory Facebook chat, on direct examination Detective 

Ferrante explained that no racial derogatory meaning attaches to using the word “nigguh” 
12

in Crip-affiliated gang culture; she opined that its use would be akin to calling someone 

“ ‘brother’ in Hawaii.” The transcript of the Facebook chat, admitted in evidence, bore 

that out. The word was used casually to refer to Julian, Isaiah, and defendant. 

b. Remaining disclosure issues forfeited

Defendant has forfeited his arguments related to the late disclosure of the 

cellphone examiner as a witness, as he did not object to the prosecution adding Chris 

Hardin to its witness list on October 14. Nor has defendant preserved any error related to 

the disclosure of Detective Ferrrante’s gang summary. In his October 7 motion in limine 

addressing discovery matters, defendant asked that the gang summary be turned over 

immediately. He received the report that day, and he never asked that Detective 

Ferrante’s testimony be limited based on the timing of that disclosure. 

B. TESTIMONY FROM GANG EXPERT

1. Legal Backdrop and Standards of Review

Penal Code section 186.22 provides a sentencing enhancement for persons 

committing felonies “for the benefit of, at the direction of, or in association with any 

criminal street gang, with the specific intent to promote, further, or assist in any criminal 

conduct by gang members.” (§ 186.22, subd. (b)(1).) A criminal street gang is defined 

as any “ongoing organization, association, or group of three or more persons” that shares 

a common name or common identifying symbol; that has as one of its “primary 

activities” the commission of certain enumerated offenses; and “whose members 

individually or collectively engage in or have engaged in a pattern of criminal gang 

activity.” (§ 186.22, subd. (f).) A “ ‘pattern of criminal gang activity’ ” may be 

established by proving two or more criminal convictions by gang members for certain 

enumerated offenses (§ 186.22, subd. (e)), known as predicate offenses. 

In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), our Supreme Court held, 

“When any expert relates to the jury case-specific out-of-court statements, and treats the 
13

content of those statements as true and accurate to support the expert’s opinion, the 

statements are hearsay.” (Id. at p. 686.) The Sanchez court described case-specific facts 

as “those relating to the particular events and participants alleged to have been involved 

in the case being tried.” (Id. at p. 676.) The court stressed that its decision does not 

affect “the traditional latitude granted to experts to describe background information”

concerning the expert’s “knowledge and expertise and premises generally accepted” in 

the expert’s field (id. at p. 685), and that background information in a gang case may 

encompass “general gang behavior,” including a particular gang’s conduct and territory. 

(Id. at p. 698.) The court explained that an expert may still rely on hearsay in forming an 

opinion, and may tell the jury in general terms that she is doing so. (Id. at p. 685.) But 

“[w]hat an expert cannot do is relate as true case-specific facts asserted in hearsay 

statements, unless they are independently proven by competent evidence or are covered 

by a hearsay exception.” (Id. at p. 686.) The Sanchez court concluded that the gang 

expert’s testimony in that case, which recounted facts contained in various police reports 

and notices, was case-specific hearsay used to prove the intent element of the gang 

enhancement—that the defendant had committed the underlying crimes with intent to 

benefit the gang. (Id. at pp. 698–699; § 186.22, subd. (b)(1).) 

The Sanchez court further held that a confrontation clause violation results when 

the prosecution’s expert in a criminal case relates case-specific testimonial hearsay 

without establishing both the defendant’s prior opportunity for cross-examination (or 

forfeiture of that right) and the declarant’s unavailability. (Sanchez, supra, 63 Cal.4th at 

p. 686.) Guided by the holding in Crawford v. Washington (2004) 541 U.S. 36 

(Crawford) that the primary object of the confrontation clause is testimonial hearsay 

(id. at p. 53), and by United States Supreme Court cases applying that holding, the 

Sanchez court concluded that “statements about a completed crime, made to an 

investigating officer by a nontestifying witness ... are generally testimonial unless they 

are made in the context of an ongoing emergency ... or for some primary purpose other 
14

than preserving facts for use at trial.” (Sanchez, at p. 694.) Further, those statements do 

not lose their testimonial character when summarized in an officer’s report. (Ibid.) The 

Sanchez court concluded further that a field identification card, also memorializing police 

contact with gang-related individuals, would be testimonial if generated in the course of 

an ongoing criminal investigation. (Id. at p. 697.) In the wake of Sanchez, appellate 

courts have deemed admissions made during informal interactions between gang 

members and law enforcement to be non-testimonial hearsay. (People v. Valadez (2013) 

220 Cal.App.4th 16, 32; People v. Ochoa (2017) 7 Cal.App.5th 575, 585.) 

The defendant in Sanchez did not challenge the gang expert’s testimony as it 

related to the existence of a criminal street gang under section 186.22, subdivision (f) 

(established in part by proving predicate offenses), nor did the Sanchez court address 

whether facts related to predicate offenses are case-specific. In our view, testimony 

establishing a predicate offense, including a predicate offender’s gang affiliation at the 

time of the offense, is case-specific under Sanchez because the facts are beyond the scope 

of a gang expert’s general knowledge. This accords with the majority of courts that have 

addressed the issue. (People v. Lara (2017) 9 Cal.App.5th 296, 337 [predicate offense is 

an element of the gang enhancement]; People v. Ochoa, supra, 7 Cal.App.5th 575, 583, 

588–589 [analogizing predicate offender’s gang-membership admission to the Sanchez

court’s example of a diamond tattooed on the arm of an associate of the defendant as a 

case-specific fact]; but see People v. Meraz (2016) 6 Cal.App.5th 1162, 1174–1175

[expert testimony about a gang’s “pattern of criminal activities” was not case-specific 

because it was unrelated to the “ ‘particular events and participants alleged to have been 

involved in the case being tried’ ”], review granted on other issue March 22, 2017, 

S239442).)

Improperly admitted hearsay ordinarily constitutes statutory error under the 

Evidence Code. (Sanchez, supra, 63 Cal.4th at p. 685.) We analyze prejudice of such an 

error under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), which provides for 
15

reversal only when “it is reasonably probable that a result more favorable to the appealing 

party would have been reached in the absence of the error.” (Accord Evid. Code, § 353, 

subd. (b) [precluding relief from judgment unless the erroneous admission of evidence 

“resulted in a miscarriage of justice”].) But error amounting to a confrontation clause 

violation is reviewed under the heightened “harmless beyond a reasonable doubt” 

standard of Chapman v. California (1967) 386 U.S. 18, 24. (Sanchez, at p. 698.) 

2. Elements of a Criminal Street Gang Under Penal Code Section 

 186.22, subdivision (b)

Defendant argues in his opening brief (filed before the Supreme Court issued the 

Sanchez decision) that Detective Ferrante’s testimony regarding the Asian Boyz’s 

primary activities, number of members, and identifying symbols was inadmissible 

testimonial hearsay because it was based on arrest records, police reports, field 

information cards, and conversations with colleagues. 

The Sanchez decision affirmed the long-held view that “an expert’s testimony 

concerning his general knowledge, even if technically hearsay, has not been subject to 

exclusion on hearsay grounds.” (Sanchez, supra, 63 Cal.4th at p. 676.) The Sanchez

court distinguished case-specific facts from “background information regarding [a gang 

expert’s] knowledge and expertise and premises generally accepted in [the] field,” and 

described general gang behavior, and a particular gang’s conduct and territory as 

background testimony. (Id. at pp. 685, 698.) Thus, Detective Ferrante’s testimony 

regarding the Asian Boyz’s clothing, symbols, number of members, and primary 

activities is background information not subject to exclusion on hearsay grounds or 

deemed testimonial. Defendant tacitly concedes that point by failing to argue in his postSanchez reply brief that those facts are case-specific.

3. Defendant’s Gang Membership

Defendant argues that Detective Ferrante’s testimony that she had “come across 

information from law enforcement officials that [he had] bragged about his affiliation 
16

with the Asian Boyz gang” was testimonial hearsay. While not an element of the 

underlying offenses, defendant’s gang membership is a case-specific fact under Sanchez

because it is relevant to whether he acted “for the benefit of ... or in association with any 

criminal street gang,” and “with the specific intent to promote ... or assist in any criminal 

conduct by gang members.” (§ 186.22, subd. (b)(1); Sanchez, supra, 63 Cal.4th at 

p. 698.) 

The testimony complained of related two levels of hearsay—Detective Ferrante 

related law enforcement summaries of statements by defendant. But defendant has not 

established on this record that his statements to law enforcement were testimonial (we 

understand them to be from jail classification records), and they are otherwise admissible 

hearsay under Evidence Code section 1220. Even if the trial court erred by allowing 

Detective Ferrante to relate the first level of hearsay (statements made by other law 

enforcement officials), the error would be harmless under Watson because Detective 

Ferrante’s opinion that defendant was a member of the Asian Boyz was supported by 

non-hearsay evidence including the location of the attack in an area frequented by Asian 

Boyz gang members, the attackers acting in concert, Julian’s testimony that one of the 

attackers said “[w]hat up, cuz” (a phrase used by members of Crip-affiliated gangs), and 

someone yelling “Asian Boyz” after the attack. She based her opinion that defendant was 

a member of the Asian Boyz in part on the testimony of probation officer Thomas who, 

having continual contact with gang members and knowing their pattern behavior, testified 

that defendant would congregate with Asian Boyz gang members, which “you don’t do 

[ ] unless you are a gang member.” Detective Ferrante also testified about photos, music, 

and Facebook chats maintained by defendant; clothing found in his bedroom; and the 

tattoo on his shoulder.

4. Predicate Offenses

Defendant argues that Detective Ferrante’s testimony relating the predicate 

offenses was inadmissible hearsay under Sanchez. He argues that facts establishing 
17

predicate offenses are case specific because predicate offenses are necessary elements of 

the gang enhancement, that Detective Ferrante had no personal knowledge of the 

predicate offenses and obtained the facts from hearsay sources, and that the hearsay was 

testimonial because the information was ultimately gathered by officers acting in an 

investigatory capacity for purposes of prosecution. He acknowledges that certified court 

records were admitted to establish the convictions, but contends those documents were 

insufficient to establish the predicate crimes.

The prosecution presented evidence of predicate offenses committed by three 

persons: Romero Duc Huynh unlawfully carried a loaded firearm on March 5, 2012; 

Kevin Minh Huynh unlawfully carried a loaded firearm on July 8, 2012; and Patrick 

Freitas committed residential burglary and assault with a deadly weapon on September 

25, 2012. Each offense resulted in a conviction with a gang enhancement established by 

certified court documents. But the court documents do not establish the predicate 

offender’s gang affiliation, and the prosecution relied on Detective Ferrante’s testimony

to make that connection.

a. Gang affiliation of Romero Duc Huynh

Regarding the firearm offense committed by Romero Duc Huynh, Detective 

Ferrante determined that the offense was an Asian Boyz “pattern crime” by reviewing 

police reports and speaking with the arresting officer; she had no personal knowledge of 

the investigation of that offense. She related that Romero Duc Huynh was wearing gang 

clothing and admitted being an Asian Boyz gang member at the scene. Although Romero 

Duc Huynh’s admission may have been testimonial hearsay, we are unable to make that 

determination on this undeveloped record. (Ochoa, supra, 7 Cal.App.5th at p. 586.) 

“[A]s no such contemporaneous objections were lodged, we cannot simply assume the 

admissions to gang membership related by [the gang expert] were testimonial hearsay.” 

(Id. at p. 585.) Defendant’s generalized pre-trial objection to any testimonial evidence 

that Detective Ferrante “is going to state in open court as her basis of evidence,” 
18

including evidence establishing predicate facts, met with the same concern in the trial 

court. Indeed, the court explained that it was “a difficult thing to give specific rulings 

without specific items of evidence,” and it was unable to make a pretrial ruling on 

defendant’s objection as it related to the predicate offenses. 

Even if that testimony were inadmissible hearsay under Sanchez, we find no 

prejudicial error in light of Detective Ferrante’s other testimony establishing that Romero 

Duc Huynh was an Asian Boyz gang member: Detective Ferrante testified that she was 

familiar with Romero Duc Huynh, he was “actually a known gang member to my office 

and to a lot of other officers,” he had “a pretty extensive history” with the department,

and he had “Asian Boyz” tattooed on his chest. That testimony does not relate any 

hearsay statement, and it conveys that Detective Ferrante had personal knowledge of 

Romero Duc Huynh’s status as an Asian Boyz member. Given that testimony, it is not 

reasonably probable that a result more favorable to defendant would have been reached

had Detective Ferrante not testified about Romero Duc Huynh’s admission (or other 

details of the predicate offense). (Watson, supra, 46 Cal.2d at p. 836.)

b. Gang affiliation of Kevin Huynh

Detective Ferrante testified that she reviewed police reports regarding the firearm 

offense committed by Kevin Huynh, and when he was booked into jail for that offense, 

“through the conversations with them and through his tattoos, they were able to 

determine that he is a gang member.” Based on one of his tattoos, Detective Ferrante 

opined that Kevin Huynh was a member of the Viet Boyz, a gang closely affiliated with 

the Asian Boyz. Again, although Detective Ferrante may have related some testimonial 

hearsay regarding Kevin Huynh’s gang membership (it is unclear whether Detective 

Ferrante saw the identifying tattoo in a booking photo or whether she was relying on a 

hearsay description of the tattoo), we cannot make that determination on this 

undeveloped record. (Ochoa, supra, 7 Cal.App.5th at p. 586.) 
19

Further, we would find no prejudicial error under Sanchez because it was 

defendant who elicited on cross-examination that Kevin Huynh had been “a validated 

Asian Boyz gang member,” and that the term “validated” was used by law enforcement 

to signal a person’s gang history. Under the invited error doctrine (see People v. 

Harrison (2005) 35 Cal.4th 208, 237), defendant cannot now complain of that testimony, 

which establishes Kevin Huynh’s Asian Boyz membership. 

c. Gang affiliation of Patrick Freitas

Defendant has also failed to develop a record to support his challenge to Detective 

Ferrante’s testimony as it relates to the predicate offense committed by Patrick Freitas. 

Defendant failed to object to Detective Ferrante’s testimony that Freitas had admitted 

being an Asian Boyz gang member when he was arrested and had a fairly lengthy 

criminal history with gang affiliations. We therefore do not know the context of Freitas’s 

admission or the particulars of his criminal history. Here again, defendant cannot show 

prejudice on this record in light of his cross-examination, where he elicited in the first 

instance that Freitas “was also a known gang member,” and “had some gang tattoos,” 

including “an ‘A’ tattooed on his chest,” “an ‘AB’ on his left hand,” and “a ‘126’ on his 

left arm.” 

C. PERMISSIBLE SCOPE OF EXPERT OPINION 

Defendant argues that the trial court committed prejudicial error by allowing 

Detective Ferrante to provide an expert opinion as to whether he had committed the 

charged offenses for the benefit of the gang, under section 186.22, subdivision (b)(1). 

We understand his argument to be twofold: (1) expert opinion regarding whether the 

charged offenses were committed for the benefit of the Asian Boyz was improper in 

scope because the jury was capable of deciding that element of the gang enhancement 

without the assistance of an expert; and (2) in the course of offering her opinion, 

Detective Ferrante improperly testified to the ultimate issue that defendant had 

committed the underlying assault. 
20

1. Legal Background

An expert is someone with “special knowledge, skill, experience, training, or 

education” in a particular field (Evid. Code, § 720) who may testify in the form of an 

opinion when it will assist the jury “to understand the evidence or concepts beyond 

common experience.” (People v. Torres (1995) 33 Cal.App.4th 37, 45; Evid. Code, 

§ 801.) “Expert opinion is not admissible if it consists of inferences and conclusions 

which can be drawn as easily and intelligently by the trier of fact as by the witness.” 

(Torres, at p. 45.) “ ‘Expert opinion that particular criminal conduct benefited a gang’ is 

not only permissible but can be sufficient to support [a gang enhancement under] section 

186.22, subdivision (b)(1).” (People v. Vang (2011) 52 Cal.4th 1038, 1048 (Vang).)

Experts may be asked questions that coincide with the ultimate issue in a case 

(Evid. Code, § 805; People v. Prince (2007) 40 Cal.4th 1179, 1227), but they cannot 

offer an opinion on whether a defendant is guilty because “the trier of fact is as 

competent as the witness to weigh the evidence and draw a conclusion on the issue of 

guilt.” (Torres, supra, 33 Cal.App.4th at p. 47; People v. Coffman and Marlow (2004) 

34 Cal.4th 1, 77.) If an expert has knowledge of the actual facts of a case derived from 

his or her own observation, the expert may give an opinion based on those facts. (Witkin, 

3 Evid. § 212, p. 313.) Although the traditional method of eliciting opinion testimony 

from an expert witness is the hypothetical question based closely on the evidence of the 

case being tried (Vang, supra, 52 Cal.4th at p. 1046), an expert may also provide an 

opinion based on other witnesses’ testimony presenting no factual conflicts or 

contradictions. (Estate of Collin (1957) 150 Cal.App.2d 702, 712–715.) 

We review the trial court’s evidentiary rulings related to expert testimony for 

abuse of discretion. (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) 

2. Need for Expert Testimony

As part of his in limine motion to limit Detective Ferrante’s testimony, defendant 

objected to expert opinion testimony addressing whether the offenses had been 
21

committed to benefit a street gang, asserting that the issue was not sufficiently complex. 

But defendant did not seek a ruling on that objection when the motion was heard and the 

court explicitly asked what matters remained outstanding, nor did he object to the opinion 

during the testimony itself. Defendant has therefore forfeited his argument that expert 

testimony was not needed to establish the “for the benefit” element of the gang 

enhancement.

Even if not forfeited, the argument is meritless. It is within the trial court’s 

discretion to allow expert testimony on whether an offense was committed for the benefit 

of a gang. (Vang, supra, 52 Cal.4th at p. 1048.) The court in Vang was clear: “[N]o 

statute prohibits an expert from expressing an opinion regarding whether a crime was 

gang related. Indeed, it is settled that an expert may express such an opinion.” (Id. at 

p. 1052.) While the court in People v. Valdez, supra, 58 Cal.App.4th 494 observed that 

general expert testimony on gangs could preclude the need for an expert to opine on 

whether a crime was committed for the benefit of a gang in a hypothetical case devoid of 

factual complexity (id. at p. 508), that dicta does not foreclose the exercise of discretion 

here. Detective Ferrante’s opinion “[r]elated to a subject”—gang criminality—“that is 

sufficiently beyond common experience.” (Evid. Code, § 801, subd. (a).) No abuse of 

discretion occurred by permitting Detective Ferrante to opine that the attack was 

retaliatory, even if she had explained gang retaliation in her background testimony.

3. Form of Expert Testimony

After Detective Ferrante provided the basis for her opinion that defendant was an

Asian Boyz gang member, the prosecutor asked: “Based upon everything you learned 

throughout this case, do you think that the assault with a blunt object on Julian [ ] was 

done for the benefit of the gang?” Defendant objected to that question as an improper 

hypothetical and moved to strike Detective Ferrante’s affirmative response. The court 

overruled the objection, clarifying that the prosecutor was asking for an opinion even 

though he had used the word “think.” Detective Ferrante explained that her opinion was 
22

based on the concepts of respect and retribution—that it was incumbent on a gang 

member who loses a fight to retaliate for his own benefit as well as to restore the dignity 

of the gang. 

After asking Detective Ferrante whether she had heard the testimony that a mini 

sledgehammer was found in a car that defendant acknowledged was his (to which 

Detective Ferrante responded yes), the prosecutor asked her whether she had an opinion 

about whether that possession would benefit the gang. Detective Ferrante said yes, and 

explained that gang members carry weapons on a regular basis both to protect themselves 

and to try to assault people. Next the prosecutor asked Detective Ferrante whether 

Officer Guerra’s testimony relating that a mini sledgehammer had been used against 

Julian affected her opinion as to whether possession of a mini sledgehammer within a 

couple of months of that time would benefit the gang. Again answering yes, Detective 

Ferrante explained, “being in a position where he had already assaulted somebody he 

knows, [] the chances of payback at that point is really good.” The prosecutor concluded 

Detective Ferrante’s direct examination by asking a series of hypothetical questions 

tracking the prosecution’s presentation of evidence.

The prosecutor’s first question (“Based upon everything you learned throughout 

this case, do you think that the assault with a blunt object on Julian [ ]was done for the 

benefit of the gang?”) was improper in that it assumed that an assault had transpired, and 

the trial court’s response to defendant’s objection did not address the assumption. In the 

same way, Detective Ferrante’s statement that defendant was “in a position where he had 

already assaulted somebody” was improper. Those errors, however, did not result in 

prejudice. Defendant has not shown a reasonable probability that the verdict would have 

been more favorable to him in the absence of the errors (Watson, supra, 46 Cal.2d at 

p. 837), or that the errors rendered the trial fundamentally unfair. 

Detective Ferrante was offering an opinion on whether two of the charged 

offenses—assault and possession of a mini sledgehammer—were committed for the 
23

benefit of a street gang. The jury was not mislead by the prosecutor’s questions or 

Detective Ferrante’s testimony into thinking that guilt of the underlying offenses was a 

foregone conclusion obviating the need for deliberation, as defendant argues. Detective 

Ferrante was not a percipient witness to the May 8 attack, she did not testify to what had 

happened that day, she never suggested that she knew whether or how Julian had been 

struck, and the prosecutor did not solicit her opinion as to whether defendant had 

committed an assault. 

Further, the evidence pointed to several ways defendant could be found guilty of 

assault, which resulted in the prosecution devoting more than half of its closing argument

to three theories upon which the jury could render a guilty verdict—one based on Julian’s 

testimony that defendant had struck him with a blunt object; one based on Isaiah’s 

statement to Officer Guerra that Julian had been struck by one of the others at the 

direction of defendant; and the last being conspiracy to commit assault based on 

defendant’s statement to Detective Ferrante, the Facebook chat about “aiming for 

[Julian],” and the circumstances surrounding the retaliation. Given the prosecutor’s focus 

on the different ways the jury could find defendant guilty of the assault, Detective 

Ferrante’s reference to an assault in offering an opinion about the gang enhancement on 

count 6 did not improperly influence the jury. 

D. SUFFICIENCY OF THE EVIDENCE

“In assessing the sufficiency of the evidence, we review the entire record in the 

light most favorable to the judgment to determine whether it discloses evidence that is 

reasonable, credible, and of solid value such that a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.” (People v. Bolin (1998) 18 Cal.4th 297, 

331.) We presume the “existence of every fact that the trier of fact could reasonably 

deduce from the evidence” to support the judgment. (People v. Medina (2009) 

46 Cal.4th 913, 919.) To overturn a conviction on this ground, “it must clearly appear 
24

that upon no hypothesis whatever is there sufficient substantial evidence to support it.” 

(People v. Redmond (1969) 71 Cal.2d 745, 755.) 

1. Unlawful Possession of the Mini Sledgehammer

Count 6 alleged that on July 25, 2013, defendant “possess[ed] an instrument and

weapon of the kind commonly known as a billy,” “to wit a mini sledge hammer,” in

violation of Penal Code section 22210. Defendant makes a twofold argument that the 

conviction for count 6 is supported by insufficient evidence: (1) no evidence was 

presented establishing that the sledgehammer met the definition of a “billy,” and (2) the 

circumstances surrounding the offense did not transform the sledgehammer, an otherwise 

lawful object, into an unlawful billy. We are not persuaded by either argument.

Penal Code section 22210 prohibits possession of “any instrument or weapon of 

the kind commonly known as a billy, blackjack, sandbag, sandclub, sap, or slungshot.” 

In People v. Grubb (1965) 63 Cal.2d 614 (Grubb), our Supreme Court rejected a 

constitutional vagueness challenge to the term “billy” under former section 12020, 

subdivision (a)(1).

3

 The defendant in Grubb, convicted of possessing an altered baseball 

bat, argued that the term “billy” was unconstitutionally vague because it encompassed

objects such as baseball bats, table legs, or pieces of lumber, which are ordinarily used in 

acceptable ways but could be used as weapons of physical violence. (Grubb, at pp. 620–

621.) While the Grubb court acknowledged the Legislature’s intent to outlaw 

instruments ordinarily used for unlawful purposes, it also concluded that “the Legislature 

sought ... to outlaw possession of the sometimes-useful object when the attendant 

circumstances, including the time, place, destination of the possessor, the alteration of the 

object from standard form, and other relevant facts indicated that the possessor would use 

 

3

Former Penal Code section 12020, subdivision (a)(1) prohibited possession of 

“any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, 

sandclub, sap, or sandbag.” Section 22210 continued that prohibition without substantive 

change.
25

the object for a dangerous, not harmless, purpose.” (Id. at pp. 620–621, citing People v. 

Freeman (1927) 86 Cal.App. 374, 376 (Freeman); see also In re David V. (2010) 48 

Cal.4th 23, 28 [“long recogniz[ing] that [former] section 12020 was enacted ... ‘to 

outlaw sometimes-useful object,’ ” quoting Grubb, at pp. 620–621].)

4

 The Grubb court 

held that the statute “embraces instruments other than those specially created or 

manufactured for criminal purposes” by including “objects ‘of the kind commonly known 

as a billy,’ ” and it declared that the Legislature “decrees as criminal the possession of 

ordinarily harmless objects when the circumstances of possession demonstrate an 

immediate atmosphere of danger.” (Grubb, at p. 621.) 

A more recent case addresses the scienter element of unlawful possession of 

instruments or weapons under former section 12020, subdivision (a)(1). In People v. 

King (2006) 38 Cal.4th 617 (King), our Supreme Court rejected the Attorney General’s 

argument that instruments coming within that section never could be possessed lawfully. 

(Id. at p. 626.) Citing Grubb, the King court noted that a baseball bat or table leg, each of 

which has a utilitarian purpose, may qualify as a billy. (Id. at p. 624.) Thus, “where the 

object [which qualifies as an unlawful weapon under section 22210] may have a 

legitimate and lawful use,” Grubb requires “that there be evidence tending to show that, 

at the time and place of the alleged illegal possession, the possessor contemplated the 

unlawful and not the lawful use.” (People v. Deane (1968) 259 Cal.App.2d 82, 89.) 

 

4

The court in Freeman addressed whether a large unloaded revolver was a 

“dangerous or deadly weapon” under former section 211a, which defined first degree 

robbery as “ ‘perpetrated ... by a person being armed with a dangerous or deadly 

weapon.’ ” (Freeman, supra, 86 Cal.App. at p. 375.) While it is not clear to us how the 

meaning of a “dangerous or deadly weapon” under former section 211a reveals 

legislative intent in enacting a different statute prohibiting possession of sap-type 

instruments, under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 we are 

bound by the Supreme Court’s holding in Grubb. 
26

a. Definition of “billy”

While the Supreme Court has recognized that baseball bats and table legs may 

qualify as billies (King, supra, 38 Cal.4th at p. 624), we are unaware of any precedent 

addressing whether a mini sledgehammer, or any hammer for that matter, may qualify as 

an “instrument ... of the kind commonly known as billy” under section 22210. As “the 

prosecution must prove that the item had the necessary characteristic to fall within the 

statutory description” (King, at p. 627), and there is no statutory definition of billy (cf. 

In re David V., supra, 48 Cal.4th at p. 27 [statutory definition of metal knuckles 

controls]), we will look to dictionary definitions to determine whether the jury was 

properly instructed on the characteristics of a billy as a matter of law. (People v. 

Mayberry (2008) 160 Cal.App.4th 165, 169 [the criteria by which the characteristics that 

define an item subject to section [22210] are measured is a question of law].)

Webster’s Third New International Dictionary defines a billy as “a heavy usually 

wooden weapon for delivering blows.” A club is defined as “a heavy staff especially of 

wood usually tapering and sometimes having an attached head of stone or metal wielded 

with the hand as a striking weapon.” A bludgeon is defined as “a short stick used as a 

weapon usually having one thick, heavy, or loaded end.” A truncheon is defined as “a 

heavy club,” and “a policeman’s billy.” And a cudgel is defined as “a short heavy stick 

that is shorter than a quarterstaff and is used as an instrument of punishment or a 

weapon.” (Webster’s Third New Internat. Dict., Unabridged (2018) 

<http://unabridged.merriam-webster.com> [as of Jan. 18, 2018].) The Oxford English 

Dictionary provides similar definitions: A billy is “[a] highwayman’s club; a bludgeon,” 

and “a policeman’s truncheon.” A club is defined as “[a] heavy stick or staff for use as a 

weapon, thin enough at one end to be grasped with the hand, and increasing in thickness 

and weight towards the other end.” A bludgeon is defined as “a short stout stick or club, 

with one end loaded or thicker and heavier than the other, used as a weapon.” A

truncheon is defined as “a short thick staff; a club, a cudgel.” And a cudgel is defined as 
27

“a short thick stick used as a weapon; a club.” (Oxford English Dictionary Online,

Sept. 2017 <http://www.oed.com> [as of Jan. 18, 2018].) 

The jury was instructed: “A billy means a club or a stick, a truncheon, especially 

one carried by a police officer. [¶] A truncheon is a short thick cudgel or any staff or 

baton of authority or policeman’s stick or billy. [¶] A cudgel is a short stick with a metal 

end capable of being used as a weapon.” Those definitions comport with the dictionary 

definitions we have identified, and thus convince us that the trial court properly instructed 

the jury on the definition of a billy. 

The mini sledgehammer was admitted in evidence, and Officer Vanderbroeck, 

who found the item during the search of defendant’s residence, noted its wooden handle 

and “metal part.” The prosecutor described the item as having “a short stick and a metal 

end capable of being used as a weapon.” We have reviewed a photograph of the mini

sledgehammer substituted for the hammer itself as part of the trial court record. The 

photograph depicts an oblong metal head, approximately 5 inches long and 1.5 inches 

tall, affixed to a wooden handle approximately 15 inches long. Because the mini 

sledgehammer had “the necessary characteristic[s]” of a billy (King, supra, 38 Cal.4th at 

p. 627), a jury could find that it came within the meaning of an “instrument or weapon of 

the kind commonly known as a billy,” under section 22210.

b. Possession of the billy as a weapon

Substantial evidence supports the jury’s finding that the mini sledgehammer was 

possessed as a weapon. Defendant had acknowledged in a Facebook message that the 

hammer was a weapon; no evidence was presented that he possessed the hammer for a 

lawful purpose; Detective Ferrante explained that gang attacks are met with retaliation;

and defendant had admitted using another ordinarily harmless object (a crowbar) to 

retaliate against Julian. Further, defendant admitted ownership of the Toyota Corolla; the 
28

hammer, which was found under the front passenger seat with virtually the entire handle 

protruding onto the rear floorboard, was readily accessible to someone driving the car. 

Relying on language in Grubb that possessing an ordinarily harmless object is 

unlawful when the circumstances of possession “demonstrate an immediate atmosphere 

of danger,” defendant argues that the prosecution failed to establish circumstances 

pointing to unlawful possession because he was sleeping in the house when the mini 

sledgehammer was seized from his car. But Grubb does not help defendant because the 

Supreme Court made clear that imminent use of the object in a harmful manner does not 

have to be established to show unlawful possession. Indeed, the baseball bat in Grubb

was found in a car that had broken down on the side of the road with the driver nowhere 

in sight. (Grubb, supra, 63 Cal.2d at p. 616.) Even without the driver’s admission to 

carrying the bat in automobiles for self-defense, the Grubb court concluded that 

possession of the bat—“carried about in the car, obviously usable as a ‘billy,’ clearly not 

transported for the purpose of playing baseball”—violated the statute. (Id. at p. 621.) As 

in Grubb, the circumstances here are sufficient to show that defendant “contemplated the 

unlawful and not the lawful use” of the mini sledgehammer. (People v Deane, supra, 

259 Cal.App.2d at p. 89.) 

2. Gang Enhancement for Unlawful Billy Possession 

Defendant argues the evidence was insufficient to support the gang enhancement 

for count 6 because there was no evidence that the mini sledgehammer was used in the 

May 8 assault, and Detective Ferrante’s opinion by itself was insufficient to prove the 

enhancement. He argues the facts are similar to those in In re Frank S. (2006) 

141 Cal.App.4th 1192 (Frank S.), and People v. Ramon (2009) 175 Cal.App.4th 843

(Ramon), where gang enhancements were vacated for lack of substantial evidence. 

Defendant’s argument fails for two reasons. First, the California Supreme Court 

emphasized in Vang that “ ‘[e]xpert opinion that particular criminal conduct benefited a 
29

gang’ is not only permissible but can be sufficient to support [a gang enhancement under] 

section 186.22, subdivision (b)(1).” (Vang, supra, 52 Cal.4th at p. 1048.) Vang

undermines the earlier view expressed in Frank S. that the expert there had offered an 

improper opinion on whether possession of the weapon was committed for the benefit of 

a criminal street gang under section 186.22, subdivision (b)(1). (Frank S., supra, 

141 Cal.App.4th at p. 1199.)

Second, the instant case is distinguishable from Frank S. and Ramon. In Frank S., 

a minor carrying a concealed fixed blade knife while riding a bicycle said he had been 

attacked two days earlier and needed the knife for protection against “ ‘the 

Southerners,’ ” and he identified himself as a Norteño affiliate during intake at a juvenile 

detention facility. (Frank S., supra, 141 Cal.App.4th at p. 1195) Based on those facts, 

the expert opined that the minor was an active Norteño, that gang members used knives 

for protection from and to assault rival gang members, and that the minor’s possession of 

the knife benefited the Norteños because it provided them with protection should they be 

assaulted. (Id. at pp. 1195–1196.) The Frank S. court explained that the expert’s opinion 

relating the minor’s intent with respect to possession of the knife was based on 

insufficient evidence, noting that the prosecution presented no evidence that the minor 

was in gang territory, was with gang members, or had any reason to expect to use the 

knife in a gang-related offense. (Id. at p. 1199.) 

The defendant in Ramon was charged with receiving a stolen vehicle, being a 

felon in possession of a firearm, being an active gang member in possession of firearm,

and unlawfully carrying a loaded firearm in public, with gang enhancements. (Ramon, 

supra, 175 Cal.App.4th at p. 846.) He and his passenger were both gang members

stopped in their gang’s territory in a stolen vehicle with a gun under the driver’s seat. 

Based on those facts, the expert in Ramon opined that the defendant was acting on behalf 

of his gang because the stolen vehicle and gun “could be used to facilitate the 
30

commission of a crime.” (Id. at p. 849) The appellate court found those facts insufficient 

to support an opinion about the defendant’s specific intent in that case. (Id. at p. 852.) 

In contrast, here the evidence showed that defendant had recently been involved in 

a gang-related retaliatory attack against Julian. One of the weapons used in that attack 

was described as a “short handled sledgehammer” and a “construction hammer” with a 

“metal end,” descriptions consistent with the mini sledgehammer found in defendant’s 

car. Detective Ferrante’s opinion that the mini sledgehammer was possessed for the 

benefit of a criminal street gang was based on defendant having been involved in that 

orchestrated gang attack and needing a weapon to protect against anticipated retaliation. 

Detective Ferrante’s opinion, together with the evidence showing that a hammer similar 

if not identical to the hammer found in defendant’s car was used in the May 8 attack, is 

substantial evidence that defendant possessed the mini sledgehammer for the benefit of 

the Asian Boyz gang.

IV. DISPOSITION

The judgment is affirmed.
____________________________________

Grover, J.

WE CONCUR:

____________________________

Elia, Acting P. J. 

____________________________

Premo, J. 

H042184 - The People v. Huynh
Trial Court: Santa Clara County Superior Court, 

Case No.: C1360508

Trial Judge: Hon. Arthur Bocanegra 

Attorneys for Plaintiff/Respondent:

The People

Xavier Becerra 

 Attorney General of California 

Gerald A. Engler 

 Chief Assistant Attorney General 

Jeffrey M. Laurence 

 Senior Assistant Attorney General 

Eric D. Share

 Supervising Deputy Attorney General . 

Leif M. Dautch

 Deputy Attorney General 

Attorneys for Defendant/Appellant:

Michael Huynh

Julia K. Freis,

 Attorney at Law

 Under Appointment by the Court of 

Appeal