Filed 1/21/20 P. v. Porras CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

GLORIA PORRAS,

Defendant and Appellant.

B290165

(Los Angeles County

Super. Ct. No. BA455488)

APPEAL from a judgment of the Superior Court of Los Angeles County. Bernie C. LaForteza, Judge. Affirmed.

Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Gloria Porras (defendant) drove her new boyfriend to a confrontation with her ex-boyfriend, Ernesto Ramos (Ramos), and the new boyfriend shot and killed Ramos. She was charged with one count of murder. (Pen. Code, § 187, subd. (a).) The information contained gun enhancement allegations (§ 12022.53, subds. (b), (c), (d) and (e)(1)) and a gang enhancement allegation (§ 186.22, subd. (b)(1)(C)).)

A jury found defendant guilty of second degree murder, and it found the gun and gang allegations to be true.

The trial court exercised its discretion to strike the gun and gang enhancements and then sentenced defendant to 15 years to life in state prison.

She appeals from her second degree murder conviction and argues the following: (1) the trial court improperly instructed the jury on the natural and probable consequences doctrine of aiding and abetting an assault by means likely to produce great bodily injury because that theory of liability runs afoul of (a) the merger doctrine, which was modified by People v. Chun (2009) 45 Cal.4th 1172 (Chun), and (b) is barred by Senate Bill No. 1437 (SB 1437); (2) there was insufficient evidence that she intended to aid and abet the murder; (3) the trial court improperly admitted incriminating statements she made after detectives threatened to have her children taken into custody by the Department of Children and Family Services (DCFS) if she did not cooperate; (4) the trial court allowed an expert to testify as to hearsay statements contained in a law enforcement report about text message data; (5) there was insufficient evidence that defendant’s conduct was perpetrated for the benefit of or in association with a criminal street gang; (6) the trial court violated People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) by allowing a gang expert to use case specific hearsay to form the opinion that Metro 13 was a criminal street gang; and (7) the cumulative impact of these errors prejudiced defendant.

We affirm.

FACTS

Prosecution Evidence

Background

Defendant had two children with Ramos. After their relationship ended, Ramos moved in with his mother, Celia Hernandez (Hernandez).

In late August 2015, defendant began dating Robert Becerra (Becerra). She knew him to be a member of a gang called Metro 13. He had gang tattoos, and his moniker was Li’l Dopey.

Communications Between Defendant, Ramos and Becerra Prior to the Day of the Murder

In the afternoon of August 29, 2015, Ramos sent a text message to defendant and said to “[t]ell that bitch made fool [Becerra] to call me.” Later, defendant texted Ramos, “You’re a bitch ass f*g. Why can’t you let me be happy with this guy? F**k, I don’t want you. I don’t love you. You did too much to me. Let me be f**ing happy.” In response, Ramos wrote, “We the Gambinos family, and that’s so we gotta fix our ends before we start to think about moving on.” Defendant replied: “I moved on.”

At about 5:00 p.m. the same day, Ramos texted Becerra, “Where my female at?” Hours later, Ramos texted defendant, “Stupid bitch. Where the kids[?]” Ramos texted Becerra multiple times and stated, inter alia, “If you don’t want any problems, just stay away from my family”; “Remember it’s a personal thing cuz it’s my family”; “I’ll roll up on you”; “I’m not playing”; “Where you at?”; “Answer your phone”; “You ain’t got the balls to roll up to meet up in your hood so ya bitch can’t be around my kids.” Becerra finally texted, “Shut up already. . . . I’m enjoying your family.” Ramos sent other messages, such as, “You don’t want [to] see me.” “My bitch has you there like a punk.” “You better stay away from my family. This is a serious issue.” “Ain’t no one replacing me, especially . . . you.” “You need to learn how to go about things, punk.”

Ramos texted defendant, stating: “Trust, I’ll die for . . . my family. And you still my bitch. He don’t want none, f**k him.” “I wish he rolled up. I’ll catch him.” Ramos also texted: “You are not going to be with anyone. If you want to find out the hard way, so be it, but it’s on you. I am getting my kids back and my bitch.” “A real man fights for his, not hide like that bitch ass fool, so test me[.]”

On August 31, 2015, Ramos texted defendant: “Peek-a-boo, I see you.” That night, Becerra texted Ramos, “You and your goons are gonna get hurt.”

Hernandez’s Testimony; Ramos’s Death

On September 1, 2015, just after 8:45 p.m., Hernandez went to her porch and saw Ramos on the street backing up toward the house. Two young men were following him. As Ramos walked through the gate, one of the men yelled a Spanish phrase meaning “come on.” That man pulled a gun out of his sweater pocket and shot Ramos three times. When Hernandez turned her head toward Ramos, she saw a vehicle that was “very similar” to the one owned by defendant.

The two young men ran toward the vehicle. Ramos said, “[C]all [Defendant].” He lost consciousness by the time the police arrived.

Ramos died.

Initial Investigation

Los Angeles County Sheriff’s Department Detective Karen Shonka was assigned to investigate Ramos’s death. She retrieved Ramos’s cell phone from where it was being charged in Hernandez’s kitchen.

A surveillance camera from a teen center captured a green vehicle near Hernandez’s house. The right-rear passenger and the right-front passenger exited and walked out of the frame. When a third individual exited the vehicle to follow the others, the dome light in the vehicle revealed the driver to be a woman. A short while later, all the passengers reentered the vehicle and the driver pulled away from the curb. The vehicle entered the video frame at 8:46 p.m. and exited at 8:48 p.m.

Defendant’s First Two Interviews

Defendant was interviewed by Detective Shonka and Detective Wayne Holston of the Los Angeles County Sheriff’s Department and then arrested.

That same day, defendant was interviewed a second time and explained how she met and started dating “Dopey,” and how conflict escalated between Dopey and Ramos. She went on to explain that she drove Dopey and some others to a neighborhood to “beat up some guy” but they could not find the target. While she was still driving around that neighborhood, Ramos called her and was verbally abusive. Dopey said they should go to Ramos’s home, and she decided that Ramos “needs to f**king get beat up.”

Defendant told the detectives that “it wasn’t even for me, like, [Dopey and Ramos] weren’t fighting for me, []cause [Dopey] [said] . . . I’m not going to fight for no bitch.” She explained to the detectives that Dopey said, “[B]ut I will . . . check this fool for calling me a bitch and dissing my hood[.]” Subsequently, defendant drove Dopey to Ramos’s home. She watched as Dopey and the others approached Ramos and began talking to him. Then she heard a gunshot. Dopey and the others ran back to her Expedition and Dopey told her to drive. He said he shot Ramos.

Detective Holston asked defendant, “Why did the other two guys go?” She replied, “[Bec]ause it was supposed to be some hood s**t.” The idea was for them to fight Ramos and “f**k him up.”

Detective Shonka asked defendant if she had spoken to Dopey, and she said, “Mm, he just says . . . I did this because you wouldn’t have to deal with this s**t no more. But you don’t seem happy. I said, he’s the father of my kids, like, I wanted you to just beat his . . . ass[.]”

The detectives allowed defendant to go home.

Apprehension of Becerra

Days after her interviews, defendant returned to the station, spoke to Detective Shonka, and identified Becerra as the shooter. Detective Shonka learned he was in Mexico and had him extradited.

Recovery of the Murder Weapon

Four days after the incident, a police officer conducted a traffic stop on a vehicle driven by Raul Marin Trinidad (Trinidad). When a detective searched the vehicle, he found a .22 caliber Ruger 23. A forensic examination determined that the Ruger 23 was the same weapon that fired the bullets recovered from Ramos’s body during the autopsy.

Evidence From Trinidad’s Cell Phone

At 4:55 p.m. on September 1, 2015, the day of Ramos’s murder, Becerra texted Trinidad, “I need a burner,” i.e., a gun. At 2:53 a.m. on September 2, 2015, defendant texted Trinidad, saying, “b[a]by.” Several hours later, Trinidad texted back, “Who is this.” Defendant responded by identifying herself. Trinidad replied, “I’m not with [Becerra] right now.” At 9:43 p.m. that night, defendant texted Trinidad and stated, “I love you b[a]by, you straight.”

At approximately 2:55 p.m. on August 31, 2015, Trinidad sent a text message to someone and asked, “Still doing tats?” An unknown third party person responded, “Yes, sir, what you trying to get?” Trinidad replied, “Orale . . . either metro or ESMX3R.”

Gang Evidence

Detective Eduardo Mercado of the Los Angeles Police Department testified as a gang expert.

The Metro 13 gang claimed territory bounded by Valley Boulevard, Marianna Avenue, the 10 Freeway, and the 710 Freeway. Its members are required to defend this territory and stand their ground if they are challenged by a member of a different gang. Also, Metro 13 expects its members to commit crimes in this area to benefit the gang and intimidate the local citizens so they do not cooperate with the police. The more violent the crime, the more respect the gang member gains. Respect is a concept that is integral to both the gang’s status in the community and the individual gang member’s status within the gang. It is therefore important for individual gang members to be respected. A gang member would lose respect if he did not retaliate after being insulted or called names.

In 2015, Metro 13 had approximately 50 members. Many of its members lived outside its main territory and commuted there or to rival gang areas to commit crimes. They wore clothes, used symbols, and had hand signs that usually involved the letter “M” with a “13” next to it. The gang’s primary criminal activities included robberies, theft, vandalism, assault with a deadly weapon, shootings, and murder.

The prosecutor offered a certified minute order in case No. BA405056 to prove that Gustavo Rengel (Rengel) was convicted of assault with a deadly weapon (§ 245) and attempted murder (§§ 664, 187). In defendant’s trial, Detective Mercado opined that Rengel was a Metro 13 member at the time he committed the crimes for which he was convicted. Asked why he would say this, Detective Mercado said, “From private contacts and [Rengel] self-identifying as a member of Metro 13 gang, along with the activity that he was conducting and the people he associated himself with.” Later, Detective Mercado explained that he testified in Rengel’s case after being briefed by other officers as to the case and incident.

Next, the prosecutor presented a certified minute order in case No. BA432553 to show that Eric Chinchilla (Chinchilla) was convicted of two counts of assault with a deadly weapon (§ 245, subd. (a)(2)) and one count of attempted murder (§§ 664, 187). Detective Mercado was the gang expert in Chinchilla’s trial. When asked if Chinchilla was a Metro 13 gang member at the time of his trial, Detective Mercado stated: “He was a Metro 13 gang member, self-disclosed, activity, and the people he was associating with, and the crimes that he was committing[.]” Detective Mercado had previously arrested Chinchilla for gang-related vandalism.

In 2013, Detective Mercado came into contact with Becerra after he vandalized a wall with the graffiti “SK.” The letters signified Sereno Killer, which was a threat toward Metro 13’s rival gang. Becerra had a variety of Metro 13 tattoos. He informed Detective Mercado he was a Metro 13 gang member.

Based on a hypothetical derived from the facts of the shooting of Ramos and its aftermath, Detective Mercado opined that the shooting was for the benefit of and in association with the Metro 13 gang.

Defense Evidence

Becerra’s Testimony

Becerra was convicted of the murder of Ramos and various other crimes. When he testified, he was serving a sentence of 145 years to life. One of his crimes was an attempted murder in which he shot a man and announced he was from Metro 13. The man was paralyzed and is now in a wheelchair. In other crimes, Becerra shot at the same probation officer on two different occasions. As to Becerra’s various shooting crimes, gang allegations were alleged and found true. After Becerra was convicted of murdering Ramos, Becerra announced, “I’d do it again.” As he was being led out of the courtroom, he threw up his middle finger and said, “Metro.”

On one occasion, Becerra brought a gun to defendant’s house. When she found out, she made him promise not to have guns around her.

Ramos called and texted Becerra but he did not respond. Then Ramos tried to arrange a meeting between himself and Becerra at a CVS store, but Becerra did not show up because he did not want any problems. Ramos sent Becerra text messages calling him a “bitch” for failing to meet with him. They exchanged a series of hostile text messages back and forth.

On the day Ramos was killed, Becerra asked defendant to pick him up in her car. He had a gun, but defendant did not know it; he always carried a gun for protection. Becerra told defendant he needed to “handle something,” but did not tell her exactly what. She picked up Becerra and two of his friends and they drove to University Hills. While driving around, he was looking for rival gang members in his territory. He asked one person what gang he was from. Either Becerra or defendant received a text or call from Ramos. Becerra was “tired of [Ramos],” so he asked defendant to drive to Ramos’s home. When defendant asked why, Becerra said he just wanted to talk. He also said, “I’m going to check this fool,” which meant he was going to try to talk to Ramos. At no point did defendant say that Ramos needed to get beat up. Becerra called and texted Ramos and told him to be outside waiting.

Defendant did not tell Becerra that she wanted Ramos shot or killed.

When they arrived at Ramos’s house, Becerra got out with his friends. Ramos was already walking toward the Expedition. Becerra and Ramos argued about their text messages. At one point Ramos asked, “Who’s from Metro?” Becerra said, “We’re all from Metro,” or something similar. The confrontation ended with Becerra shooting Ramos.

Gang Evidence

Martin Flores (Flores) testified as a nonlaw enforcement gang expert.

He was presented with a hypothetical scenario in which a woman had a brief relationship with a Metro 13 member; they were in a car together when her ex-boyfriend contacted them; they went to the ex-boyfriend’s home, where he and the gang member had an argument; the gang member killed the ex-boyfriend while the woman remained in the car; and she drove the gang member away from the scene. In this scenario, Flores opined that the murder was a personal matter that was outside the scope of the gang, and it was not a gang act. He noted the absence of “gang tension” between the ex-boyfriend and the gang member.

Defendant’s Testimony

Defendant had an eighth-grade education and had been treated for bipolar disorder. She had convictions for second degree burglary, petty theft, and possession of methamphetamine. In 2015, she made money by stealing items from stores and selling them.

After their breakup, Ramos sent defendant weird messages and accused her of sending people to get him. Also, he harassed her through text messages and phone calls. She posted one of his text messages on Facebook and wrote: “This foo f**k my high up every f**king night. I’m trying to chill and laugh. This foo is on some paranoid B.S. LOL. I don’t want him dead. How stupid. He’s the dad of my kids. But he does need to be touched up real quick. LOL.” She testified that “touched up” meant “slapped up a couple times.” Someone wrote a comment on defendant’s Facebook page stating, “Wow, can’t you have someone teach him respect?” She replied that she could.

Defendant met Becerra in August 2015 and they began dating. They were dating for just five days when Ramos was killed. Becerra asked defendant why she allowed Ramos to call her derogatory names and said to tell him that Becerra and she were together. She said that Ramos was the father of her children.

Ramos informed defendant that he wanted to meet Becerra at a CVS store, but that Becerra had not shown up. She did not know until that moment that Ramos and Becerra had been in contact with each other.

On one occasion, Becerra told defendant that he had “paralyzed someone” from the neighborhood where defendant grew up. She thought he was “trying to be hard” and did not believe him.

Becerra once visited defendant’s house while armed with a gun, which shocked her. She allowed him to store it at her house for “about four minutes, five minutes” and then asked him to leave. They fought over it via text message, and he promised not to do it again.

On the day Ramos died, Becerra contacted defendant and asked her to help him “handle something in [his] neighborhood,” which she understood to mean that Becerra was going to fight one of his friends. She picked up Becerra and Trinidad in her Expedition as well as a third man she did not recognize. During the drive, Becerra “hit one person up,” meaning he asked “where they were from.” That frightened defendant “a little bit.”

Soon after, Ramos called defendant and demanded that she drive over to his house with Becerra. Defendant decided to do it to make Ramos leave her alone. On the way, Becerra said he was “going to check that fool,” and defendant thought he intended to fight Ramos. She said, “[T]his fool needs to get f**ked up.” By that she meant that she wanted some “male” to fight Ramos. She denied making this comment to Becerra; rather, she was simply making this statement out loud.

Defendant parked in front of the teen center instead of directly in front of Ramos’s house because Hernandez’s truck was parked there. Becerra called Ramos and told him, “[W]e’re here.” Defendant pointed out Ramos’s house to Becerra. Becerra and the others got out of the Expedition and walked toward the house. Defendant heard Becerra and Ramos talking to each other for about four minutes. Ramos began backing away while Becerra moved toward him. Defendant heard a gunshot, and Becerra and the others ran back to her car and got in. They told her, “go, go, go,” and defendant drove away. Becerra said something about “reload,” and that tipped defendant off that there was a gun in her Expedition. She did not ask them to get out because she was scared.

Becerra said to defendant, “I did this for you, but you don’t seem happy.” Later, she texted his friend “I love you, baby,” intending the message to get to Becerra. She wanted to placate him.

DISCUSSION

I. Standards of Review.

Legal issues such as the validity of the natural and probable consequences doctrine and the impact of SB 1437 are subject to de novo review. (See People v. Berryman (1993) 6 Cal.4th 1048, 1089.) This same de novo standard applies when a defendant contends that her statement to the police was involuntary and should have been excluded; however, as to that issue, we will accept the trial court’s resolution of disputed facts and inferences as well as matters of credibility if they are supported by substantial evidence. (People v. Rundle (2008) 43 Cal.4th 76, 115 (Rundle), overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421.)

When a criminal defendant challenges the sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the elements of the crime or enhancement beyond a reasonable doubt. (People v. Medina (2009) 46 Cal.4th 913, 919.) Substantial evidence is evidence that is reasonable, credible and solid. “We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence. [Citation.]” (Ibid.)

A trial court’s admission of expert testimony is reviewed for an abuse of discretion. (Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 154.) “‘When applying the deferential abuse of discretion standard, “the trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.”’ [Citation.]” (Ibid.)

If we conclude a trial court erred, we will not reverse unless the error caused the defendant prejudice. Under state law, error is deemed harmless unless it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of that error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) When error implicates the federal constitution, we must reverse unless we conclude that it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)

II. Defendant Was Not Convicted on an Invalid Theory of Murder; There Was no Instructional Error.

The jury was instructed that defendant was guilty of Becerra’s murder if: (a) she knew Becerra intended to commit the murder and defendant aided or promoted its commission; or (b) she aided and abetted an assault by means likely to produce great bodily injury, and a reasonable person would have known that commission of murder or voluntary manslaughter was the natural and probable consequence of the target crime. Defendant contends this latter theory of liability is invalid and the judgment must be reversed because the jury may have relied on it. (People v. Chiu (2014) 59 Cal.4th 155, 167 (Chiu) [“When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground”].) Also, she assigns error under People v. Guiton (1993) 4 Cal.4th 1116, 1131 (Guiton), which held, “Trial courts have the duty to screen out invalid theories of conviction, either by appropriate instruction or by not presenting them to the jury in the first place.” In other words, she contends the trial court committed instructional error. To establish that the natural and probable consequences theory was an invalid theory, she relies on the merger doctrine as it has been modified by Chun. Even if the theory was not invalid under Chun at the time of trial, defendant contends that we should nonetheless reverse the murder conviction based on the policy of Chun and the retroactive application of SB 1437.

These arguments are unavailing.

A. The Merger Doctrine Is Inapplicable in the Aider and Abettor Context.

The merger doctrine was announced in People v. Ireland (1969) 70 Cal.2d 522 (Ireland) when it held that “a second-degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which evidence produced by the prosecution shows to be an offense included in fact within the offense charged. [Citation.]” (Chun, supra, 45 Cal.4th at p. 1189.) Chun reviewed the appellate decisions that had applied the Ireland merger doctrine and concluded they were problematic because they created differing case-by-case tests for merger. To avoid the perceived problems, the court held that when “the underlying felony is assaultive in nature, such as violation of section 246 or 246.3, . . . the felony merges with the homicide and cannot be the basis of a [second degree] felony-murder instruction.” (Chun, supra, 45 Cal.4th at pp. 1178, 1200.)

Defendant suggests that Chun dictated application of the merger doctrine and the trial court erred by not screening out the prosecution’s natural and probable consequences theory. But this case does not involve the second-degree felony murder rule. Also, because defendant committed only one crime, her case did not involve two crimes that could merge.

Moreover, the merger doctrine was not implicated because “[t]he natural and probable consequences doctrine operates independently of the second-degree felony murder rule” and “allows an aider and abettor to be convicted of murder, without malice, even where the target offense is not an inherently dangerous felony. [Citations.]” (People v. Culuko (2000) 78 Cal.App.4th 307, 322. (Culuko).) In People v. Francisco (1994) 22 Cal.App.4th 1180 (Francisco), the court rejected a challenge to a natural and probable consequences instruction and noted that the logical and legal impediments to liability in Ireland “are not applicable and do not have persuasive value with respect to limiting” liability for an aider and abettor. (Francisco, supra, at p. 1190.) When the appellant objected that the instruction allowed him to be found guilty without a finding that he shared the perpetrator’s intent to kill, Francisco explained that “this is not the test for aider and abettor liability [under the natural and probable consequences doctrine]. Such liability is a question of legal causation which is independent of any intent that the result in question occurred. [Citation.] Thus, the ultimate factual question is whether the perpetrator’s criminal act, upon which the aider and abettor’s derivative criminal liability is based, was ‘“reasonably foreseeable”’ or the probable and natural consequence of a criminal act encouraged or facilitated by the aider and abettor. [Citation.]” (Ibid.) People v. Karapetyan (2006) 140 Cal.App.4th 1172 (Karapetyan) rejected an argument that a “finding of murder based on aiding and abetting an assault is really just felony murder, which is barred by [Ireland].” (Karapetyan, supra, at p. 1178.) The court noted that “[t]he natural and probable consequences doctrine does not merge all assaults into the felony-murder rule. . . . For aider and abettor liability, it is the intention to further the acts of another that creates criminal liability and not the felony-murder rule. [Citation.]” (Ibid.)

Francisco, Karapetyan and Culuko were not overruled by Chun. Further, Chun did not apply the merger doctrine to the natural and probable consequences doctrine, and Chun is not authority for a proposition it did not consider. (Lonely Maiden Productions, LLC v. Golden Tree Asset Managements, LP. (2011) 201 Cal.App.4th 368, 379.) The doctrine was valid at the time of trial, and there was no Guiton error.

To the degree defendant asks us to invalidate the application of the natural and probable consequences doctrine in her case, we decline. At bottom, she objects to liability for murder without malice. But our “Supreme Court has repeatedly rejected the contention that an instruction on the natural and probable consequences doctrine is erroneous because it permits an aider and abettor to be found guilty of murder without malice.” (Culuko, supra, 78 Cal.App.4th at p. 322.)

We observe that our Supreme Court upheld the natural and probable consequences doctrine in an assault context (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 300 [rejecting defendant’s contention that “simple assault cannot serve as the target offense for murder liability under the natural and probable consequences doctrine”]) several years after the decision in Chun was handed down. In addition, Chiu more recently held that punishment for second degree murder rather than first degree murder “is commensurate with a defendant’s culpability for aiding and abetting a target crime that would naturally, probably, and foreseeably result in a murder under the natural and probable consequences doctrine.” (Chiu, supra, 59 Cal.4th at p. 166.) Though Chiu limited the doctrine so that it will only result in a second-degree murder conviction, the court signaled that the doctrine was still the law.

B. SB 1437.

SB 1437 abrogated the natural and probable consequences doctrine effective January 1, 2019. (People v. Lopez (2019) 38 Cal.App.5th 1087, 1098 (Lopez).)

To benefit from SB 1437, defendant must petition the sentencing court under section 1170.95 to vacate the conviction and resentence her on any remaining counts if she could not have been convicted of first or second degree murder due to SB 1437’s changes to sections 188 and 189. (Lopez, supra, 38 Cal.App.5th at p. 1099.)

Defendant argues that SB 1437 is retroactive and can be asserted on appeal because her conviction is not final. (In re Estrada (1965) 63 Cal.2d 740, 742.) But when the Legislature enacts a statute like section 1170.95, subdivision (a) and permits a defendant to apply to the trial court to reduce criminal liability, that procedure must be followed. Relief will not be granted on direct appeal of a conviction if that conviction was valid under the prior law. (People v. DeHoyos (2018) 4 Cal.5th 594, 597, 603 [with respect to Proposition 47, a defendant is not entitled to automatic resentencing on appeal and must instead follow the statutory procedure]; People v. Conley (2016) 63 Cal.4th 646, 652 [same with respect to Proposition 36]; People v. Martinez (2019) 31 Cal.App.5th 719, 724–730 [SB 1437 must be asserted via a petition in the trial court rather than on appeal].) We decline to apply SB 1437 directly on appeal.

III. The Murder Conviction Must Be Affirmed.

Defendant argues that there is insufficient evidence that she knew of and shared Becerra’s intent to kill, and that her conviction based on aider and abettor liability must therefore be reversed. (§ 31; People v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman) [under section 31, “the prosecution must show that the defendant acted ‘with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing or of encouraging or facilitating commission of, the offense’”].) This challenge can lead to a reversal only if we have determined that liability based on the natural and probable consequences doctrine is impermissible. Given our conclusion that there is no basis to strike down the natural and probable consequences doctrine as it has been applied in pre-2019 cases, and given that defendant does not challenge the sufficiency of the evidence to support its application to her specific case, we have no cause to entertain defendant’s argument.

IV. The Incriminating Statements Were Properly Admitted.

The trial court admitted the incriminating statements made by defendant in the second of her two police interviews. She contends they were involuntary and should have been excluded because she made them after the detectives made it clear that her children would be taken into custody by the DCFS unless she gave them information about Ramos’s murder and quit denying her involvement.

We find no evidentiary error.

A. The Law.

If a defendant’s statement to a government official was involuntary, its admission during a criminal trial violates the due process guarantees in the Fifth and Fourteenth Amendments of the United States Constitution. (Rundle, supra, 43 Cal.4th at p. 114.)

When a defendant moves to exclude her statement because it was involuntary, the prosecution must rebut this contention by a preponderance of the evidence. A statement is involuntary if it is not the product of a rational intellect and a free will. (Rundle, supra, 43 Cal.4th at p. 114.) “Coercive police tactics by themselves do not render a defendant’s statements involuntary if the defendant’s free will was not in fact overborne by the coercion and [her] decision to speak instead was based upon some other consideration. [Citations.]” (Ibid.) When determining whether the authorities improperly coerced a defendant’s statements, the trial court must evaluate the totality of the circumstances, “including the nature of the interrogation and the circumstances relating to the particular defendant. [Citation.]” (Ibid.) The test is whether a statement was obtained through threats of violence, direct or implied promises, or, however slight, by the exertion of improper influence. (Hutto v. Ross (1976) 429 U.S. 28, 30.) Threats and promises related to a suspect’s children “carry special force.” (Brown v. Horell (9th Cir. 2011) 644 F.3d 969, 980.) “When interrogators ‘deliberately prey upon the maternal [or paternal] instinct and inculcate fear in a [parent] that [he or] she will not see [his or] her child in order to elicit “cooperation,” they exert the “improper influence” proscribed by’” the Supreme Court. (Ibid.)

“‘[M]ere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a . . . confession involuntary. . . . Thus, “when [a] benefit pointed out by the police . . . is merely that which flows naturally from a truthful and honest course of conduct,” the [suspect’s] subsequent statement will not be considered involuntarily made.’” (People v. Holloway (2004) 33 Cal.4th 96, 115.) “The line ‘can be a fine one’ . . . between urging a suspect to tell the truth by factually outlining the benefits that may flow from confessing, which is permissible, and impliedly promising lenient treatment in exchange for a confession, which is not.” (Id. at p. 117.)

If improper police conduct is attenuated, a subsequent statement is not involuntary. The degree of attenuation requires at least an intervening independent act by the defendant or a third party to break the causal chain in such a way that the subsequent statement was not obtained by exploitation of an illegality. (People v. McWhorter (2009) 47 Cal.4th 318, 360 (McWhorter).)

B. Relevant Evidence and Proceedings.

The trial court held a hearing on the voluntariness of defendant’s incriminating statements. It considered transcripts from her first and second interviews. In addition, it considered the testimony of the lead investigators, Detective Shonka and Detective Holston.

1. Evidence From the Admissibility Hearing.

Defendant telephoned Detective Holston on September 2, 2015, the day after the murder, and asked for information about the case. He said he would be happy to discuss it, but he preferred to do it in person. She said she would go to his office that day but did not. After calling a second time, and after waiting another day or two, defendant went to talk to Detective Holston. She left her nine-month-old child and two-year-old child in a vehicle in the parking lot under a friend’s supervision.

At some point, the two detectives were notified that defendant was at the front desk. They took her to an interview room which was 10-feet by 10-feet with a table and chairs. She was not handcuffed or told that she was under arrest. The detectives wore civilian clothes, and the interview room door was open.

Detective Shonka asked if defendant was dating anyone and she said she’d been seeing “Dopey” from “Metro” but did not know his real name. She said that Dopey had a confrontation with Ramos. Detective Shonka said Ramos got a text message that upset him, and that somebody was challenging him on the phone, saying, “How does it feel? I’m over here taking over your family.” Then Ramos walked outside his house and some guys approached him. Ramos was shot and managed to speak to his mother. He said, “‘Mom, call [defendant]’” and then he died.

Detective Holston asked who would want to shoot Ramos. Defendant said she did not know. Detective Shonka said they were under the impression that Dopey was the person who called Ramos that night. She asked why Dopey would say he was taking over Ramos’s family. Defendant said she did not know but speculated that maybe Dopey wanted to make Ramos mad because he had been calling defendant a bitch and a slut.

Defendant admitted to having a green Expedition. Detective Shonka said there was a video camera at a youth center near the scene of the shooting, it captured a vehicle, and defendant was the driver. Defendant denied it. Detective Shonka said, “It was your car.” The detectives played the video and narrated, noting that a woman was driving and that three men got out of the car. Later, they came running back and defendant drove away.

Detective Shonka said, “[M]aybe you took them over there with the intent to have him killed.” Detective Holston said, “To go kick his ass.”

Defendant again denied being the driver.

The detectives pressed defendant to be honest. After her repeated denials, Detective Shonka said, “You drove them there. You’re an accessory to murder. And we have text messages, and things like that. We haven’t been sitting on our ass since he was killed.” The detectives kept reiterating all the evidence they had against defendant, and Detective Shonka said a jury would believe the video. Detective Holston arrested defendant after she became agitated and said she wanted to leave.

The plan was for a deputy sheriff to transport defendant in a patrol vehicle to the East Los Angeles Sheriff’s station for booking. As she waited, defendant asked a security officer if she could speak to Detective Shonka. Detective Shonka and Detective Holston returned to the room and Detective Shonka said, “[Y]our chariot’s here.” Then Detective Holston revealed that two deputies were watching defendant’s house and saw two men go inside. She said nobody lived at her house and denied knowing what Detective Holston was talking about. Also, she asked what would happen to her children, who were in the parking lot being watched by a friend. Detective Shonka said, “[Y]ou tell me what to tell your girlfriend out there.” An unidentified person said, “Can you get [the DCFS] in here?” Another unidentified person said, “Okay.” Defendant said, “Don’t f**king do that s**t, don’t do that s**t.” After the DCFS was mentioned again, defendant said, “Shonka, Shonka don’t have them take my kids, please, Shonka.” Detective Shonka said, “We’re going to take them. That’s what happens when the mother’s arrested for murder.” Defendant pleaded with Detective Shonka not to let her children go to foster care.

Detective Shonka said, “All you had to do was tell us the truth, come on.” After defendant appealed to Detective Shonka yet again, the detective said, “I’ll see what I can do for you, okay?” Defendant said, “I have family that will take them. My other kids were in foster they got . . . raped . . . , please don’t take them to foster homes.”

When Detective Shonka asked where defendant wanted her children to go, she said, “To my sister.” Defendant gave her sister’s name and said her friend had the sister’s number. Later, an unidentified person came in and Detective Shonka said to book defendant for murder.

Detective Shonka reiterated that deputies saw people go into defendant’s house. She said to defendant, “Why should I do anything for you? Why? Why? Answer me right now. Tell me right now to my face. Look at my face and tell me why I should do anything for you. When you’re not doing anything for [Ramos]. Why? Why?” Defendant said something unintelligible that ended the sentence with “f**king kids” and Detective Shonka said, “It doesn’t matter to me. . . . [Ramos] matters to me . . . right now and you were there when he was murdered. You want me to take care of you and your kids? Not going to happen. Not going to happen.”

Sheriff’s personnel placed defendant in a patrol car near the building entrance. In the meantime, Detective Holston went to see the children and decided to notify the DCFS. Asked why, he said DCFS needed to take custody of them pending the execution of a search warrant for defendant’s residence. He explained that “the whole situation was very dynamic. And . . . I had been informed that two male Hispanics had been seen going into the location at which time I believed [to be] her residence.” He believed a possible murder suspect was inside and he did not want the children to go there. Also, he did not know the adult who was watching the children, and he believed that the adult was under the influence of a controlled substance.

Detective Holston brought defendant’s children into the building in view of defendant. He took them to the cafeteria and bought them food. At the time, they were “crying hysterically and were hungry.” Subsequently, he left them under the watch of a security officer and prepared a search warrant.

Detective Shonka later went to Detective Holston and said defendant wanted to speak to him.

The detectives conducted a second interview. At the beginning of the interview, Detective Shonka told defendant that Detective Holston was nice. There was some background noise, and Detective Shonka said, “[Y]our babies want you.” Detective Holston said he did not “play games,” and defendant said, “Right, but you guys are good at this, like . . . to put [Child Protective Services] in it, . . . like, I would have been cool if I wouldn’t have seen my kid.” At that point, Detective Holston read defendant her rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). After defendant indicated that she understood her rights, she detailed everything that transpired on the night that Becerra shot Ramos.

Later, defendant said, “Damn, my kids are hun–, you said you bought them a [C]up of [N]oodles?” Detective Holston said he bought them Cup of Noodles and gummy bears. Defendant laughed at that.

2. The Ruling.

The trial court concluded that defendant understood what was happening; she was mature and was not naïve to the arrest process because she had “been around the system” and had “been in prison.” To the degree the detectives used coercive tactics, the trial court considered whether there was sufficient attenuation. It observed that the first interview ended at 5:36 p.m. and the second started at 6:20 p.m., at which time defendant was given her Miranda warnings. It considered defendant’s statement indicating she thought the detectives were trying to manipulate her by bringing in the DCFS. The trial court stated, “. . . I listened to her demeanor, I listened [to] how she answered the questions. It appears that she understood and there was a knowing and voluntary waiver of her rights. [¶] Also based on all the factors that I’ve stated, the fact that the . . . children were not in fact taken to [DCFS]; there w[ere] no promises . . . that the [children] would [not] go to [DCFS] if she made a statement. [¶] And, if so, it’s not clear, because the detectives also stated that they could send her children to her friend. [¶] I don’t find, based on the totality of the circumstances, that her free will was overborne.”

C. Analysis.

When defendant asked Detective Shonka not to send the children to foster care, the detective said, “All you had to do was tell the truth,” implying that she would send the children to foster care if defendant did not tell the truth. But then Detective Shonka said, “I’ll see what I can do for you, okay?” That statement was not contingent on defendant telling the truth. As a follow-up Detective Shonka asked where defendant wanted her children to go. When defendant said her sister, Detective Shonka said, “I’ll see what we can do, okay?” But after more colloquy, Detective Shonka changed her message yet again, asking why she should do anything for defendant if she was not doing anything for Ramos. When defendant mentioned her kids, Detective Shonka said that only Ramos mattered to her and also said, “You want me to take care of you and your kids? Not going to happen. Not going to happen.” The implication was that if defendant cooperated, then Detective Shonka would take care of defendant’s children.

Defendant contends that her statements were involuntary under Lynumn v. Illinois (1963) 372 U.S. 528 (Lynumn) and United States v. Tingle (9th Cir. 1981) 658 F.2d 1332, 1336 (Tingle). These cases are inapposite.

In Lynumn, officers told a mother that state financial aid for her children would be cut off and her children taken from her if she did not cooperate. At the time, she was “encircled in her apartment by three police and a twice convicted felon who had purportedly ‘set her up.’ There was no friend or adviser to whom she might turn. She had no previous experience with the criminal law, and had no reason not to believe that the police had ample power to carry out their threats.” (Lynumn, supra, 372 U.S. at p. 534.) In addition, the officers promised leniency if she talked to them. (Ibid.) The Lynumn court concluded that her statements were coerced. (Ibid.)

In Tingle, an interrogator listed a litany of maximum penalties for the crimes he suspected the defendant of committing, and said she would not see her two-year-old child for a while. He referred to her child and warned that she had a lot at stake. He also said it would be in her interest to cooperate, and that he would communicate her cooperation to the prosecutor. If she failed to cooperate, he said he would tell the prosecutor that she was stubborn or hard-headed. Subsequently, the defendant confessed. The court stated, “We think it clear that the purpose and objective of the interrogation was to cause [defendant] to fear that, if she failed to cooperate, she would not see her young child for a long time. We think it equally clear that such would be the conclusion which [defendant] could reasonably be expected to draw from the agent’s use of this technique. The relationship between parent and child embodies a primordial and fundamental value of our society.” (Tingle, supra, 658 F.2d. at p. 1336.) The court determined the defendant’s confession was involuntary. (Ibid.)

Defendant’s case is distinguishable.

First, Detective Shonka did not make express threats or promises as was the case in Lynumn and Tingle. Insofar as she made implied promises, she did not offer leniency as to what defendant might be charged with or advocacy on defendant’s behalf with the prosecutor. Further, any implied promises were highly uncertain because Detective Shonka repeatedly gave defendant mixed messages.

Second, defendant was mature, she had been in the criminal justice system before, and she was not naïve to the arrest process. Therefore, she is not comparable to the defendant in the Lynumn case.

Third, the detectives gave defendant a Miranda advisement before she made incriminating statements.

Fourth, defendant possessed the savvy to comment on the detectives’ decision to involve the DCFS and implied they were using a tactic on her. This suggested she was operating based on reason, not emotion.

Fifth, at the end of her second interview, she laughed when Detective Holston said that he fed her children noodle soup and gummy bears. This snapshot of her demeanor indicates she was comfortable with giving a statement.

Sixth, the trial court reviewed the videotape of the second interview and assessed defendant’s demeanor. In the trial court’s view, her demeanor and the way she answered questions supported the inference that there was a knowing and voluntary waiver of her rights. The appellate record does not contain a copy of the video. This means that nothing in the appellate record contradicts the inference, and we cannot second guess the trial court. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown]”.)

Under the totality of the circumstances, the trial court properly concluded that defendant’s free will was not overborne by the detectives’ tactics.

V. Admission of the Text Messages From Trinidad’s Cell Phone Was Harmless.

At trial, Supall related the contents of the Cellebrite extraction report to the jury. It contained text messages from Trinidad and had been prepared by Collins, who did not testify. Defendant argues that Supall’s testimony should have been excluded as inadmissible hearsay. Even if the trial court erred, defendant was not prejudiced.

A. The Law.

If a trial court improperly admits hearsay, and if it is testimonial, then the defendant is deprived of his or her right to confrontation under the Sixth Amendment to the United States Constitution unless (1) the declarant is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the witness or forfeited the right by his own wrongdoing. (Crawford v. Washington (2004) 541 U.S. 36 (Crawford); Sanchez, supra, 63 Cal.4th at p. 680.) When the prosecution offers “statements about a completed crime, made to an investigating officer by a nontestifying witness, Crawford teaches those hearsay statements are generally testimonial unless they are made in the context of an ongoing emergency . . . , or for some primary purpose other than preserving facts for use at trial.” (Sanchez, supra, at p. 694.)

B. Relevant Proceedings.

The defense objected that Supall’s testimony about the contents of Collins’s report was hearsay under Sanchez. The objection was overruled.

In closing argument, the prosecutor said, “[W]e know that Becerra destroyed his phone as they were driving away. So what does the defendant do? She sends text messages . . . to [Trinidad]. . . . [¶] . . . And then a few hours later the next morning, she sends [Trinidad] a text saying ‘I love you, baby. You’re straight.’” The prosecutor argued this demonstrated defendant’s “approval, not disapproval of what they did.” The prosecutor also said: “She was texting [Trinidad] the night after the shooting. She was texting [him], ‘I love you, baby,’ the morning after the shooting. [¶] So is she hitting on [Trinidad], or did Becerra give her [Trinidad’s] number to contact him after he tossed his phone? Either way, . . . it shows she’s not afraid of Becerra. Either she’s two-timing him with [Trinidad] or she’s saying ‘I love you’ immediately after he [Becerra] murdered the father of her children.”

C. Analysis.

Assuming the Cellebrite extraction report contained testimonial hearsay, we analyze whether defendant was prejudiced under Chapman.

The question is whether defendant’s murder conviction should be reversed because the evidence prejudiced her as to aider and abettor liability under section 31 as well as liability under the natural and probable consequences doctrine. Defendant must show prejudice as to both theories. As to the second theory, we find no prejudice.

An aider and abettor is guilty not only of the crime he or she intends to aid and abet, “““but also of any other crime the perpetrator actually commits . . . that is a natural and probable consequence of the intended crime.””” (People v. Rangel (2016) 62 Cal.4th 1192, 1228–1229.) When deciding if a defendant is liable under the natural and probable consequences doctrine, a “jury must decide whether the defendant (1) with knowledge of [a] confederate’s unlawful purpose, and (2) with the intent of committing, encouraging, or facilitating the commission of any target crime(s), (3) aided, promoted, encouraged, or instigated the commission of the target crime(s); whether (4) the defendant’s confederate committed an offense other than the target crime(s); and whether (5) the offense committed by the confederate was a natural and probable consequence of the target crime(s) that the defendant encouraged or facilitated.” (Prettyman, supra, 14 Cal.4th at p. 267.) In addition, controlling law requires that “a reasonable person in the defendant’s position would have or should have known that the nontarget offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant.” (Chiu, supra, 59 Cal.4th at p. 166.) An aider and abettor need not foresee every element of the nontarget crime; rather, the question is whether the resulting harm or criminal act causing the harm was reasonably foreseeable. (Id. at p. 165.)

Defendant argues that the prosecutor used Trinidad’s cell phone contents to undermine her representations to Detective Holston, Detective Shonka and the jury that she was shocked at Becerra’s conduct, upset he had killed Ramos and in fear of what he might do to her if she did not “stay cool.” She cites People v. Iraheta (2017) 14 Cal.App.5th 1254 (Iraheta) and People v. Jandres (2014) 226 Cal.App.4th 340, 360 (Jandres). Neither of these cases dictate reversal.

Evidence of gang membership was pivotal to prove motive for murder in Iraheta. In part, that evidence came from inadmissible hearsay in the form of facts related by an expert and information in field identification cards. (Iraheta, supra, 14 Cal.App.5th at pp. 1233, 1247–1252.) Because there was conflicting evidence regarding the defendant’s gang membership, and because there were confrontation clause violations as well as state law violations, the court determined that the judgment had to be reversed. (Id. at pp. 1252–1255.) The takeaway from Iraheta is that evidentiary/constitutional errors are prejudicial when they relate to a pivotal issue on which there is substantial conflict in the evidence.

Jandres explained that when engaging in Watson review, a reviewing court must examine what the jury is likely to have done in the absence of inadmissible evidence. This entails considering the relative strength of the evidence supporting the judgment as compared to the evidence supporting a different outcome. (Jandres, supra, 226 Cal.App.4th at p. 360.) The court further explained that any substantial error tending to discredit the defense or to corroborate the prosecution must be considered as prejudicial. (Ibid.)

The evidence showed defendant knew Becerra was a gang member, that he had a violent past, that he had a gun, and that there was conflict between Becerra and Ramos. She also knew Becerra was going to fight Ramos. She aided and promoted the fight by driving Becerra to see Ramos and by saying that Ramos needed to get “f**ked up.” This evidence was sufficient to show that she intentionally aided and abetted an assault by means likely to produce great bodily injury. From those facts, a jury could conclude that murder was the natural and probable consequence of the target crime.

Beyond a reasonable doubt, defendant would not have received a different outcome had the jury believed that she was shocked by Becerra’s conduct, upset that he killed Ramos and in fear of Becerra after the shooting. Those emotions showed her reaction to the murder. They did not suggest she had an aversion to Becerra assaulting Ramos.

Next, defendant amorphously suggests she was prejudiced by the evidence because it permitted the prosecutor to suggest she may have been unfaithful to Becerra, and to focus on her sexuality and character. But the prosecutor never accused her of being unfaithful. Rather, he suggested that both explanations for the text messages she sent to Trinidad indicated that she was not afraid of Becerra. As we indicated, the jury crediting her with fear of Becerra after he committed the murder of Ramos would not have changed the outcome.

VI. Sufficient Evidence Supported the Gang Enhancement.

Defendant argues that the gang enhancement was not supported by sufficient evidence. We conclude otherwise.

A. The Law.

“[A]ny person who is convicted of a felony committed 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,” is subject to a sentence enhancement. (§ 186.22, subd. (b)(1).) A prosecutor must show that a defendant had the specific intent to commit a crime and to promote, further or assist any criminal conduct by a known gang member. (People v. Romero (2006) 140 Cal.App.4th 15, 19–20.)

“[S]pecific intent to benefit [a] gang is not required.” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)

B. Analysis.

The evidence favorable to the prosecution showed that defendant knew Becerra was in Metro 13 but had never heard of that neighborhood. He said he had “paralyzed someone” from her old neighborhood, and he had an “M” tattoo and other tattoos on his face. Prior to the day of the shooting he went to her house with a gun. The night of the shooting, she picked up Becerra and two men. She knew it was to “handle some hood s**t” and she thought Becerra was going to “beat up some guy[.]” She drove them to a neighborhood where Becerra and another man got out of the vehicle to “hit up” one person and ask “where they were from.” Though she did not hear the exchange, she assumed the person said he did not “gang-bang[.]”

That same night, Becerra and Ramos continued an ongoing feud by phone calls and text messages. Becerra believed Ramos was disrespecting Becerra’s hood, and defendant heard Becerra say so. She drove Becerra and his friends to Ramos’s house. Becerra and his friends got out of the Expedition to fight Ramos. In her own words, defendant described it as some “hood s**t.” During her second interview, defendant told the detectives that Becerra did not engage Ramos for her. Rather, Becerra did it solely to avenge Ramos’s disrespect of Becerra and his neighborhood. After the shooting, Becerra and his friends got back into the Expedition and defendant drove away.

The prosecution’s gang expert opined that although a crime might have a personal element, gang members cannot allow themselves to be disrespected. After being given a hypothetical based on the facts of this case, the gang expert testified that defendant’s crime benefited the gang and was in association with it.

The facts and inferences established that defendant knew Becerra claimed gang affiliation, she drove him to conduct gang business, she knew he believed he had been disrespected by Ramos, she drove Becerra and his friends to Ramos’s house with the understanding they were going to beat him up and it was some “hood s**t.” Then she acted as the getaway driver after the shooting. The jury could have concluded beyond a reasonable doubt that defendant intended to aid and abet an assault, she intended to promote, further, or assist the criminal conduct of Becerra, she knew he was a gang member, and she committed her crime in association with Metro 13 because Becerra (as well as Trinidad) were members of that gang. (People v. Villalobos (2006) 145 Cal.App.4th 310, 322 [“Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with specific intent to promote, further or assist gang members in the commission of the crime”].)

VII. Sanchez Does Not Dictate Reversal of the Gang Enhancement.

Defendant contends that the trial court violated Sanchez when it allowed Detective Mercado to testify that Rengel admitted he was a Metro 13 gang member, and when it allowed Detective Mercado to testify as to the details of the crime in a prior prosecution of Rengel. On the theory that Detective Mercado’s opinion about Metro 13 status as a criminal street gang was based on the Rengel evidence, defendant contends the opinion should have been excluded because it was based on hearsay excludable under Sanchez.

A. The Law.

A criminal street gang is any ongoing organization, association or group of three or more persons with primary activities that include one or more predicate crimes identified in section 186.22, subdivision (e). (§ 186.22, subd. (f).) To qualify, the gang must have a common name or common identifying sign or symbol, and its members must engage in a pattern of criminal gang activity. (§ 186.22, subd. (f).) A pattern of criminal gang activity in part means the commission of, attempted commission of, conspiracy to commit, solicitation of, or conviction of two or more of all but five of the 33 predicate offenses specified in section 186.22, subdivision (e).

Predicate offenses can be established with proof of convictions. (§ 186.22, subd. (e).)

A prosecutor may use a gang expert to prove a gang enhancement. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1384.) “If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception.” (Sanchez, supra, 63 Cal.4th at p. 684.) If the statements are nontestimonial, any state law error is harmless unless it is reasonably probable that the result would have been more favorable to the defendant absent the error. (Watson, supra, 46 Cal.2d at p. 836.) If the hearsay statements are testimonial and no exception for their admission applies, then they must be excluded under Crawford. (Sanchez, supra, 63 Cal.4th at p. 671.)

Case-specific facts are defined as those “‘relating to the particular events and participants alleged to have been involved in the case being tried.’” (Sanchez, supra, 63 Cal.4th at p. 676; People v. Blessett (2018) 22 Cal.App.5th 903, 944 (Blessett).) The Sanchez rule is inapplicable to facts that are not case specific, i.e., facts that pertain to general background information about a gang, its rivalry with another gang, its primary activities, and its pattern of criminal conduct. (Ibid.)

B. Relevant Proceedings.

Before Supall testified about the contents of the Cellebrite extraction report, the defense objected based on Sanchez. The objection was overruled.

Later, Detective Mercado testified that Rengel admitted he was a member of Metro 13. There was no objection. On redirect, the prosecutor asked Detective Mercado about what happened in Rengel’s crimes. Defense counsel objected based on relevance and Sanchez. The prosecutor said he would move on if the trial court allowed the gang expert to answer. The trial court allowed it. Detective Mercado explained that “a gang member went into a Food 4 Less in Boyle Heights within Hollenbeck Division and shot a female [who] was with a male Sereno gang member.”

C. Analysis: Testimony as to Facts.

1. Rengel’s Admission of Gang Membership.

Defendant forfeited her objection to the evidence of Rengel’s admission of gang membership by not making it in a timely manner. (People v. Polk (2010) 190 Cal.App.4th 1183, 1194 [“if a defendant fails to make a timely objection on the precise ground asserted on appeal, the error is not cognizable on appeal”].) Arguing otherwise, defendant contends it would have been futile to object and therefore no objection was required to preserve the issue for appeal. (People v. Valdez (2012) 55 Cal.4th 82, 138–139.) The premise is that the trial court signaled its unwillingness to grant Sanchez objections when it overruled them as to Supall’s testimony about the contents of the extraction report and Detective Mercado’s testimony about the details of the shooting in Rengel’s case. We disagree. Sanchez had no application to the Cellebrite evidence because Supall did not provide an expert opinion about it. He merely testified as to its contents, which raised a straightforward hearsay issue. Consequently, the ruling shed no light on how the trial court would rule as to whether Detective Mercado’s testimony was case specific under Sanchez. The ruling on the second Sanchez objection did not occur until redirect, and it pertained to evidence of the crime in Rengel’s case and therefore posed different inquiries as to whether the evidence was hearsay and whether it was case specific. Neither of these two Sanchez rulings established that it would have been futile for defendant to object.

The forfeiture aside, we note that defendant presumes that Detective Mercado’s testimony was based on what he was told by other officers. But he said he based it on Rengel’s admission, activities, and associations. Though Detective Mercado testified that he learned about Rengel’s case and crimes from other officers, he did not similarly testify that he learned of Rengel’s gang membership from other officers. If defendant had made a timely objection, presumably this portion of the record would have been adequately developed.

Even if the issue was not forfeited, and even if there was Sanchez error, the evidence as to Chinchilla established that he was a Metro 13 gang member and had been convicted of two predicate offenses under section 186.22, i.e., assault with a deadly weapon (§ 186.22, subd. (e)(1)) and attempted murder (§ 186.22, subd. (e)(2)). That was adequate alternative evidence that a Metro 13 gang member committed multiple predicate offenses. Thus, error arising from Detective Mercado’s testimony that Rengel was a member of Metro 13 would have been harmless under any standard.

2. Details of Rengel’s Offenses.

The prosecutor offered certified minute orders to establish that Rengel had been convicted of the same predicate offenses as Chinchilla, i.e., assault with a deadly weapon (§ 186.22, subd. (e)(1)) and attempted murder (§ 186.22, subd. (e)(2)). Even if there was Sanchez error regarding the admission of the details of Rengel’s crimes, it did not cause defendant any prejudice because the predicate offenses element was satisfied by evidence that he was convicted of two predicate offenses. Error would have been all the more harmless because evidence of Chinchilla’s three predicate offenses was unchallenged.

D. Analysis: The Opinion That Metro 13 is a Criminal Street Gang.

Because there was no objection to Detective Mercado’s opinion that Rengel was a member of Metro 13, and there was no objection to the certified minute order establishing that Rengel had been convicted of two predicate offenses, the Rengel evidence supported Detective Mercado’s opinion that Metro 13 was a criminal street gang. Assuming for the sake of argument that the Rengel evidence was inadmissible, Detective Mercado’s opinion would have been amply supported by the Chinchilla evidence alone. Thus, regardless of whether there was Sanchez error, defendant did not suffer prejudice.

VIII. Cumulative Error.

There is no error to cumulate.

If there was an error, it was only as to the admission of Supall’s testimony as to the contents of Trinidad’s cell phone. Any such error was harmless.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

_______________________, P. J.

LUI

_______________________, J.

CHAVEZ