People v. Vega-Robles (9 Cal. App. 5th 382, 2017)

Opinion

DONDERO, J.

INTRODUCTION

A jury convicted Jose Vega-Robles of conspiracy to sell controlled substances, attempted robbery, and two first degree murders, and found true gang and firearm enhancements. He appealed, raising numerous issues, including a challenge to the gang experts’ testimony on hearsay and confrontation clause grounds. In an opinion certified for partial publication filed on May 5, 2015, we reversed the conviction for the murder of Darrell Grockett for instructional error per People v. Chiu (2014) 59 Cal.4th 155 [172 Cal.Rptr.3d 438, 325 P.3d 972] (Chiu). We ordered that on remand, the People had the option of accepting a reduction of defendant’s conviction to second degree murder or retrying the first degree murder charge under theories other than natural and probable consequences. (Id. at p. 168.) We rejected defendant’s other appellate challenges to the judgment.

On July 29, 2015, the Supreme Court granted defendant’s petition for review and deferred further action pending consideration of People v. Sanchez (Cal.App.). (People v. Vega-Robles (Cal.App.).) On September 21, 2016, the Supreme Court transferred the cause to this court for reconsideration in light of the decision in People v. Sanchez (2016) 63 Cal.4th 665 [204 Cal.Rptr.3d 102, 374 P.3d 320] (Sanchez). Thereafter, we requested and received supplemental briefing from the parties on the application of Sanchez to this case. Having considered the supplemental briefs, we conclude the testimony of gang experts Todd Tribble and Robert Brady, and the instructions on expert testimony, violated Sanchez in certain respects, but the errors were harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824].) We therefore reinstate our original judgment reversing in part and affirming in part, and remanding with instructions.

STATEMENT OF THE CASE

In 2008, the Contra Costa County District Attorney filed an indictment charging defendant and four others with conspiracy to sell narcotic and nonnarcotic controlled substances in violation of Health and Safety Code sections 11352 and 11378, from January 1, 2004, until November 30, 2005. (Pen. Code, § 182, subd. (a)(1); count l.) The indictment alleged 19 overt acts under count 1. Overt acts Nos. 1 and 2 alleged the sale of methamphetamine by defendants to Robert Lott and by Lott to Tara Sander in 2004. Overt acts Nos. 3, 4, 5, and 6 alleged a plan between defendants and Coby Phillips to kill Darrell Grockett on October 7, 2004. Overt act Nos. 7 through 15 alleged a plan between defendants and Ricardo Ruiz to kill Marcelino Guzman-Mercado on December 3, 2004. Overt act No. 16 alleged the burglary of Guzman-Mercado’s residence by defendant and two other co-defendants. Overt acts Nos. 17 through 19 involved defendant’s nonfatal shooting of Jose Hernandez on February 21, 2005, with the assistance of Thomas Covey.

The indictment also alleged the conspiracy described in count 1 was committed to benefit two criminal street gangs, Family Affiliated Irish Mafia (FAIM) and the Sureños. (§ 186.22, subd. (b)(1).)

In addition, the indictment alleged two counts of murder (§ 187, subd. (a); counts 2 [Grockett] & 3 [Guzman-Mercado]), attempted robbery (§§ 211, 212.5, 664; count 4), residential burglary (§ 459; count 5), grand theft (§ 487, subd. (a); count 6), and attempted first degree murder (§§ 187, subd. (a), 664; count 7 [Hernandez]). The indictment alleged counts 2 through 6 were committed to benefit the FAIM and Sureños criminal street gangs. (§ 186.22, subd. (b)(1).) And, in connection with counts 2, 3, and 7, it alleged a principal intentionally used and discharged a firearm, causing death or great bodily injury, for the benefit of the Sureños and FAIM street gangs. (§ 12022.53, subds. (b), (c), (d) & (e)(1).)

On March 26, 2012, the court granted defendant’s motion to sever count 7, the attempted murder charge. The overt acts related to that count were not severed.

On June 8, 2012, the jury convicted defendant of counts 1 through 4 (conspiracy, murders of Grockett and Guzman-Mercado, and attempted robbery of Guzman-Mercado), and found both murders to be of the first degree. The jury found true the allegations that defendant committed (1) the conspiracy for the benefit of the Sureños and FAIM gangs, (2) the Grockett murder for the benefit of the FAIM gang, and (3) the robbery and murder of Guzman-Mercado for the benefit of the Sureños gang.

With respect to the firearm allegations, the jury found true that a principal party intentionally discharged a firearm during the Grockett murder and that the offense was committed for the benefit of the FAIM gang. The jury found the cognate allegation not true with respect to the Guzman-Mercado murder and the Sureños gang, but did find true the allegation a principal party used a firearm and committed the offense for the benefit of an unspecified criminal street gang.

The jury acquitted defendant of counts 5 and 6, residential burglary and grand theft, respectively.

The court sentenced defendant to an indeterminate prison term of 85 years to life. Defendant filed a timely notice of appeal.

STATEMENT OF FACTS

I. Prosecution Evidence.

A. Defendant’s drug trafficking operations.

In 2004, Ricardo Ruiz lived in the Richmond/San Pablo area and knew Juan Delatorre, defendant’s cousin, Primo, his brother, Sergio, and the brothers Rudolfo and Alejandro Figueroa. Before and during 2004, Ruiz was affiliated with Richmond Sur Trece (RST), a Sureños gang. Delatorre was also involved in RST, and Rudolfo Figueroa was affiliated with it to the same extent Ruiz was. Ruiz believed Alejandro and Rudolfo Figueroa were also affiliated with the Sureños.

Ruiz met Sergio Robles before he became acquainted with defendant or Primo. Ruiz’s primary relationship was with Sergio. Sergio was involved in selling “crystal” and “coke,” which he obtained in Los Angeles. Defendant was involved in drug sales with Sergio. Defendant’s job was “selling dope.” Ruiz knew this because “they used to come to my house all of the time and did their business there and I seen it.” Also, defendant had all kinds of cars: “Mercedes, Jaguars, Beamers, . . . Escalades.”

Ruiz worked for both Sergio and defendant. He assisted them in their drug sales by picking up and delivering the drugs. He facilitated a drug sale from Sergio to Coby Phillips. However, he did not deal drugs with or buy drugs from Coby Phillips. Both Sergio and defendant asked Ruiz to transport drugs from Southern California to the north, but Ruiz declined to do so.

Ruiz also acquired methamphetamine from defendant, Sergio and others, which he resold in small quantities. Defendant and Sergio did not share their drug profits with Ruiz. Ruiz did not share his profits from these sales with anybody. Primo was also involved in the drug sales. RST members were involved in selling crystal methamphetamine and marijuana.

Defendant was not in RST. He worked with his brother and “was higher on the food chain than a street dealer.” In 2003 and 2004, defendant and his brother dealt in pound quantities. According to Ruiz, Delatorre was using and selling drugs at the same time. Initially, he got drugs from Ruiz, but eventually he got them directly from defendant and Sergio and became part of the distribution ring.

Ruiz knew who Coby Phillips was because Phillips’s father and grandparents lived on the same street in San Pablo as Ruiz. However, he did not associate with Phillips because Hispanic and White groups do not associate. Phillips had a leprechaun or a shamrock tattooed on his face near his eye. Ruiz was present when Sergio talked to Phillips about a drug transaction. Ruiz went with defendant and Sergio a couple times to Phillips’s house in Vallejo to drop off drugs. Ruiz also went with Primo to sell drugs at different places. On one occasion, Ruiz guarded a car containing drugs on Bush Street in San Pablo at the request of defendant and Sergio. Ruiz went with defendant a couple times to collect a debt Delatorre owed for a pound of methamphetamine.

Stacey Taylor married Coby Phillips in November 2003. She had known him since she was 13. She knew defendant as Phillips’s friend “Carlos,” who supplied him with methamphetamine, which Phillips resold to other drug dealers. Phillips was a member of the FAIM gang, as were Thomas Covey, Matt Donohue, Jason Donohue, and about 100 others. Phillips had shamrock tattoos on his face and a shaved head. The large shamrock on the back of his head had the letters FAIM in the middle of it, and he had a swastika tattooed on the top of his head. Taylor concluded drug dealing was the primary activity of the gang. Taylor knew Phillips obtained methamphetamine from defendant and Sergio (as well as a couple of others) in 2004 because she was with Phillips and a lot of the time it was at their house. Phillips bought varying amounts of product from defendant, sometimes as much as 10 pounds. She did not directly know where defendant got the methamphetamine, but she knew it came from Mexico. Phillips resold “sales quantities” (as opposed to “street level quantities”) of the drugs, typically to other FAIM members.

Taylor sometimes counted the drug money for Phillips. Between 2003 and 2005, the most cash Taylor had ever seen Phillips with in connection with drug sales was about $100,000. Taylor knew Phillips also received guns as payment for drugs because she was present when Phillips discussed drugs for guns with defendant and Sergio. Taylor knew that her brother, Clayton Cates, transported drugs because she was there when he left and when he returned. She also went with Phillips a few times to drop off or pick up a pound of drugs.

Taylor understood she was testifying under a grant of immunity stemming from a murder prosecution in Solano County. She had lied to the police when she provided Phillips with an alibi for the Grockett murder. She had previously committed perjury in one jury trial to exonerate Phillips from domestic violence charges and at another jury trial in Solano County. She lied at the Solano County trial because she was afraid of retaliation if she testified truthfully. She felt safe after relocation and did not need to worry about something happening because of her testimony in the current case. She received $1,500 a month for rent and other incidentals for herself, her four children, and Tim Covey, with whom she still lived, from the state’s witness relocation fund. Her brother, Clayton Cates, pleaded guilty to voluntary manslaughter and received a one-year jail sentence in the Solano County case. Cates also receives relocation money.

Taylor began a romantic relationship with Tim Covey a couple of months after Phillips went to jail on the current charges. Taylor and Phillips got back together after Phillips was released from jail for lack of evidence, but then separated for good in early 2007 after the domestic violence incident on New Year’s Eve in 2006. At that point, she and Tim Covey moved away and stopped associating with defendant and the rest of the group because everyone was upset about her relationship with Covey. However, she remained on friendly terms with Jamie Beckwith, defendant’s girlfriend.

Cates testified that from 2004 to 2007, Phillips made money by selling methamphetamine, and Cates was “involved in some way with it.” Cates participated in Phillips’s drug trafficking activities. According to Cates, Phillips obtained his methamphetamine from defendant and Sergio. Cates met defendant and his brother through Phillips. On three or four occasions, Cates transported drugs from Los Angeles to the Bay Area for Sergio. Sergio provided Cates with the car he drove to Los Angeles. Cates would leave the car at a predetermined spot in Los Angeles and pick up the car later that day. He then drove it to Sergio’s house in Benicia. Cates saw people take drugs from the panels inside the car. Cates was paid about $3,000 per trip. Cates knew Phillips got his drugs from Sergio because Cates heard Phillips talking about it. Cates got drugs from Phillips and delivered them to Stephen Buchanan, whom he knew through Phillips.

Cates knew Phillips and the Covey brothers were in the FAIM gang because of their tattoos. Phillips had shamrocks tattooed on his face and head. Thomas (Bubba) and Timothy Covey had FAIM tattooed on their arms. Buchanan was also a gang member and had gang-related tattoos. Cates denied he was ever a member of FAIM. He did not have any tattoos. In 2008, Cates was arrested on drug-related charges involving Cates’s delivery of drugs to Buchanan. He was also “in trouble” on a 2007 murder charged out of Vallejo that also involved his sister. Cates pleaded guilty to drug trafficking in the Buchanan matter, received a suspended sentence of 11 years, and was placed on probation. He was given immunity to testify in the Vallejo matter. He was also in witness relocation.

Timothy Covey was a member of the FAIM gang, which his brother Tom cofounded. Covey had several tattoos on his body, including one on his arm that said FAIM and one on his shoulder that said FAIMLY. The gang recruited members through the prison system. Belonging to the gang made “things a lot easier” for Covey when he was in Contra Costa County jail. In late 2004 to early 2005, Covey personally knew about 30 FAIM gang members.

The purpose of forming the gang was to use “muscle” to “help our drug trade.” Covey knew that Phillips purchased drugs from defendant when he was not in jail because he witnessed the transactions. Covey started purchasing methamphetamine directly from defendant after Phillips went to jail. Defendant would “front” Covey a pound or two of methamphetamine at a time which Covey would then resell to “[mjostly sellers,” and then pay defendant out of the sales proceeds. At the time, Covey considered defendant “family.” By the time of trial, Covey no longer considered him a friend. Covey still owed defendant money for drugs, but he had made no effort to pay him back. Covey testified that if defendant were released, “we’d have to deal with it[,j obviously.”

Covey had a falling out with some members of FAIM after he became romantically involved with Stacey Taylor, Phillips’s wife.

In the same Solano County case in which Stacey Taylor testified, Covey refused to testify against a FAIM member. He made no deal for immunity from prosecution in Contra Costa County. “I’m just telling the truth.” The United States government relocated him and his family to a different state after he began to receive threats. His rent and incidental expenses were paid by Solano County. He felt he needed to relocate before he could testify.

Jamie Beckwith was defendant’s girlfriend from 2003 to 2007, and she had two daughters with him. At that time, defendant did not have a job; he sold drugs which he told her, and she believed, he obtained from Mexico. He was known as Carlos or by the street name Calacas. She knew his brother, Sergio, was also involved in selling drugs from being around them all of the time and overhearing conversations. Carlos and Sergio worked together, but defendant was “more of the leader.” Sergio sold more cocaine, whereas defendant sold crystal methamphetamine by the pound. Their cousin, Primo or Josué, worked for defendant in the drug business, delivering and picking up “money and stuff like that.” The largest quantity of methamphetamine Beckwith heard defendant discuss was 30 pounds, and the greatest amount of money was around $400,000.

Beckwith also knew Coby Phillips, who bought drugs from defendant. Phillips did not hang out with people who were not White or Irish, except defendant. Timothy Covey associated with Phillips. After Phillips went to jail in late 2004 or early 2005, Phillips had Covey “take care of [Phillips’s] business and take care of his household duties,” and Covey started doing drug transactions with defendant. Beckwith knew Ricardo Ruiz “through [defendant’s] people that he knew and met up with.” Beckwith socialized with Phillips’s wife, Stacey. Both Tim Covey and Stacey were around when drugs were being discussed.

Beckwith saw defendant, Sergio, Primo, and Tim Covey carrying guns. In 2004 and 2005, defendant “always” carried a gun, which he kept in the center console of his vehicle.

Beckwith knew, by “talking to everybody,” that Cates picked up drugs somewhere in Los Angeles for both defendant and Sergio.

In 2005, defendant told Beckwith there was a warrant for his arrest, and he left for Mexico. Covey later drove Beckwith to Mexico to see him. Defendant was arrested in 2007 when he returned to the United States. Taylor and Covey took Beckwith to see him in jail in Petaluma.

B. Murder of Darrell Grockett—October 7, 2004.

On October 7, 2004, then Contra Costa County Sheriff’s Detective Shawn Pate noticed a Chevrolet pickup truck parked at a pullout along Crockett Boulevard. The truck was locked; the keys were inside the truck. Darrell Grockett’s body was lying face up on the ground behind it. Grockett had tattoos on his forehead and upper torso. He had $2,000 in his left front jacket pocket. He had gunshot wounds to the mouth, finger, and left torso. Eleven cartridge casings and six bullets were recovered from the scene. Some of the rounds had passed through the front of the body into the dirt beneath. Eleven cartridge cases, 10 bullets, and one bullet fragment were submitted to the crime lab for ballistics analysis. The analysis established three rounds were fired from a .38- or .357-caliber firearm and seven rounds were fired from a nine-by-19 millimeter gun. From the bloodstains at the scene, it appeared that Grockett first was shot while standing and then shot additional times while lying on the ground.

i. Events Leading Up to the Murder.

Stacey Taylor testified Darrell Grockett was a friend of Phillips who had attended their wedding. Grockett had shamrock tattoos and was gang affiliated with the Aryan Brotherhood. Taylor witnessed drug deals between Phillips and Grockett. Grockett would come to their house and hand Phillips money and receive drugs in return. In October 2004, both Grockett and Phillips were out of custody. Phillips told Taylor they had a disagreement over drugs because Grockett did not want to pay what Phillips was asking.

Around 7:00 or 8:00 p.m. on October 7, 2004, Taylor and Phillips went to a restaurant overlooking the Carquinez Bridge known as The Dead Fish. Before they left for the restaurant, Phillips told Taylor he was going to meet with Grockett. Phillips said that he and the other people he was meeting at the restaurant were going to go shoot Grockett. According to Taylor, when she and Phillips arrived, defendant was there with his girlfriend Jamie Beckwith, Sergio, and Primo. Phillips, defendant, Sergio, and Primo left the restaurant a short time later. According to Taylor, she and Beckwith remained at the restaurant.

ii. Events After the Murder.

About 45 minutes to an hour later, Phillips, defendant, and the others returned to the restaurant. Taylor and Phillips went to a house in Rodeo, where Phillips wrapped some things in rags and gave them to a woman named Amy Abeyta. Taylor knew the items were the guns used to shoot Grockett because Phillips told her he had to get rid of them. They did not stay at their home in Vallejo that night but, instead, went to a hotel in Vacaville. The next day they went to Taylor’s parents’ house in Shingletown in Northern California, where they had sent their children a few days earlier.

Phillips later asked Taylor to abend Grockett’s funeral to avoid suspicion. They subsequently moved to a house in Cordelia, which Phillips rented from Sergio, who supplied Phillips with drugs. Phillips put bulletproof glass over the sliding glass door and windows. Defendant and Sergio both visited the Cordelia house.

In 2004, Sally Sinclair and Darrell Grockett came up with a plan to sell methamphetamine together. Grockett had a connection with someone for getting methamphetamine, and Sinclair was going to buy five pounds of methamphetamine from him for $35,000. In late September or early October 2004, she gave him a $16,000 advance, but the deal was postponed.

A few days later, Grockett came to her house with his girlfriend, Tara. Sinclair gave him another $13,000. Around 8:00 p.m., Grockett’s cell phone rang and he stepped outside to take the call. Shortly thereafter, he came back inside and said he would be right back. He left without Tara, without the money, and without saying where he was going. Sinclair and Tara waited for him for hours at a local bar. Tara hied to call Grockett numerous times without success. At some point, Sinclair spoke to Grockett’s roommate, Matt Baker, on the telephone. Baker said Grockett was dead.

Sometime in October 2004, Ruiz had a conversation with Primo in front of Ruiz’s house on Bush Street in San Pablo about a shooting Primo witnessed the night before. Primo was scared and shaken up about what he saw. He said his cousin Calacas and Coby shot a man near Rodeo on Highway 4. Primo said the man they shot had tattoos on his face. At the time Primo was telling Ruiz about the shooting, defendant and Coby were standing across the street. After the conversation, Ruiz left and Primo rejoined defendant and Cody.

Timothy Covey testified he heard defendant and Primo joking in Spanish about Grockett’s death after it happened. They were talking “about the guy with tattoos all over his face and making gestures. Like, bang, bang, bang.” They made shooting gestures with their hands. Covey knew that Grockett had tattoos all over his face. According to Covey, the day after the Grockett shooting, defendant’s and Phillips’s families left town for Stacey Taylor’s grandmother’s house. When defendant and Phillips returned after the Grockett killing, “everybody was pretty much let known that we needed to start carrying guns and we were all hanging around Coby’s house in Vallejo.” By “we,” Covey meant a close-knit group of FAIM members who were Phillips’s associates. Shortly thereafter, Phillips moved to a house in Cordelia and put thick Plexiglas on all the sliding glass doors.

C. Murder of Marcelino Guzman-Mercado—December 3, 2004.

In response to a call at 9:40 p.m. on December 3, 2004, Contra Costa County Sheriff’s Deputy Xavier Shabazz was dispatched to 5955 North Arlington Boulevard in San Pablo, where he located Guzman-Mercado’s body. The victim’s shirt and jacket were pulled up, exposing his torso. He had a gunshot wound in his left side under his armpit. There were also abrasions on the victim’s back and he was missing a shoe. The deputy located a matching shoe in the middle of the street about a half mile south of the body.

Guzman-Mercado died of a single gunshot wound to the chest, which entered his chest and exited his back. He had bruises and abrasions on his torso, face, and chest consistent with impact on a rough, stony, or gravel surface. He had $680 and his house keys on his person, as well as a phone number with a 650 area code on his belt. The phone number led to a relative and the eventual discovery of Guzman-Mercado’s address.

Guzman-Mercado lived in an apartment complex at 2389 Aberdean Way, Richmond. Police used the house key found on Guzman-Mercado’s body to enter the apartment. The exterior doorframe appeared to have been recently repaired and freshly painted. A crowbar or tire iron was on a countertop inside.

i. Events Leading Up to the Murder.

Sometime in December 2004, defendant was at Taylor’s house in Fairfield when he said he needed to get some money for Christmas and that he was going to rob someone of drugs. Defendant’s girlfriend, Jamie Beckwith, and possibly Tim Covey, were present during the conversation. According to Taylor, defendant said “he knew somebody that had . . . either some money or some drugs that he could take [rob] from them.”

On December 3, 2004, Ruiz was at home drinking beer with Rodolfo Figueroa when Delatorre and Primo pulled up in a gold Lexus. The car was registered to Ruiz, although he did not own it. He drove it only for drug trafficking business when directed to by Primo. He did not use the car for his personal pleasure.

Ruiz and Figueroa “hopped” in the car to go for a drive, but Primo drove to a Union 76 gas station (76 Station) on the San Pablo Dam Road, where defendant and another person were waiting for them in a white Suburban SUV. Defendant was the passenger. Primo and Delatorre got out of the car and spoke to defendant. When they returned to the Lexus, Primo told Ruiz to drive. Primo and Delatorre got in the Lexus, and defendant remained in the Suburban. Primo asked Figueroa to wait at the 76 Station and Figueroa got out of the car. Primo told Ruiz to pick up some drugs, and he drove to a nearby car wash to wait for the arrival of Guzman-Mercado, whom he did not know. Defendant was never in the Lexus.

After Guzman-Mercado got into the backseat of the Lexus, Ruiz drove off. Primo, who was in the front seat, turned around to speak to Guzman-Mercado. They argued in Spanish, and Ruiz heard someone say, “Let me see it.” Suddenly he heard a gunshot from the backseat. Ruiz stopped the car in shock and looked back to see that Guzman-Mercado was shot, and Delatorre had a gun in his hand. Ruiz kept driving and when he next looked back the door was open and Primo and Delatorre were trying to eject Guzman-Mercado’s body from the car, but Guzman-Mercado’s foot was caught under the seat and his body was being dragged along the pavement. Ruiz stopped the car; Primo got out and extracted Guzman-Mercado’s body from the car. Primo patted down Guzman-Mercado’s body, looking for “house keys,” but did not find any. They drove off, and Primo made a call from his cell phone.

ii. Events After the Murder.

A short time later, they met defendant and others at the Wildcat Canyon Apartments, from which defendant sold drugs and where some of defendant’s relatives lived. The apartments were around the corner from the 76 Station and a couple blocks away from the location of the shooting. The others drove off, but Ruiz and Rodolfo Figueroa stayed until Alejandro Figueroa picked them up and dropped Ruiz at his home.

The next day, Ruiz was eating with a friend at the Portumex Restaurant on 23rd Street in Richmond when defendant, Sergio, and Primo came into the restaurant to talk to him. Sergio told Ruiz, “Don’t worry about it. Just don’t say nothing.” Defendant said, “Good job. Don’t worry. You’ll be fine.”

About a week later, Delatorre told Ruiz the incident “wasn’t supposed to happen like that. They were just going to tie him up.” Ruiz asked Delatorre what happened after Ruiz was dropped off at the Wildcat Canyon Apartments. Delatorre said “they” went to the victim’s apartment and “he”—Delatorre— kicked in the door. He told Ruiz “he went in and got what they went for,” which was “pounds of crystal meth.” Delatorre did not say who went to the apartment with him. He said defendant kept the drugs. Delatorre explained to Ruiz he “paid his debt” to defendant by participating in the transaction. Ruiz knew Delatorre owed defendant money for “crank” defendant had fronted to him because Ruiz went with defendant to collect the debt from Delatorre a couple of times.

After the Guzman-Mercado shooting, Ruiz maintained his association with defendant, Sergio, and Delatorre and continued to make drugs sales, but he tried to “keep [his] distance.”

Ruiz assumed Guzman-Mercado was a drug dealer because he was supposed to pick up a package from him. Picking up things or people or making deliveries and dropping things off was a “standard thing” that Ruiz would do with defendant, Sergio, and Primo “[o]nce in a while.” While driving, he assumed the incident with Guzman-Mercado was going to be just another drug transaction because drug transactions were something he would typically do with Primo, Delatorre, or defendant.

At some point in December after the murder had occurred, defendant told Stacey Taylor he got the money or drugs and that he had shot the guy in the car, or inside the car. Defendant described the car as a Lexus.

In December 2004, defendant told Covey about shooting someone in Primo’s Lexus. According to Covey, defendant and Primo “were laughing and joking about how he was hanging out of the car and they were shooting him as they were going down the road.”

They said they had to get rid of Primo’s car, which was a Lexus. They did not say who did the shooting. Covey recalled, “It was close to Christmas and it was hard times and everybody was trying to figure out a way to make money and I was under the impression that it was a robbery” because “[t]here was no dope around and nobody had no means of making money and he, Coby, had said that they had a plan to make money and that’s all we heard.”

Beckwith overheard a conversation between defendant and Primo and Ruiz about pushing someone out of a car. Defendant asked, “Did you finish it or did you do it?” Primo said they shot the person but he was not dead and they had to push him out of the car. She thought they used an older model Lexus for the job.

iii. Ruiz Is Arrested for the Guzman-Mercado Murder.

Ruiz was arrested on March 5, 2007, for the Guzman-Mercado murder. At the time, Ruiz had heard Sergio and defendant had been arrested, and he knew people were talking about the Guzman-Mercado murder. The police questioning led him to believe he was arrested because defendant had implicated him, Delatorre, and the Figueroa brothers, Rudolfo and Alejandro, in the Guzman-Mercado murder, although he later learned defendant meant a different Alejandro. After reading the police reports, he knew defendant and Sergio had ratted him out.

Ruiz was charged with the murder. Ruiz gave police a statement on March 5. On the advice of counsel, Ruiz admitted to the prosecutor and Detective Pate he was in the car when Guzman-Mercado was killed. Ruiz admitted he initially told law enforcement officers that Primo shot Guzman-Mercado, because Primo was in Mexico and he wanted to deflect suspicion from his friend Delatorre. However, Ruiz eventually identified Delatorre as the shooter.

On September 11, 2007, he gave police another statement in which he told police about Primo’s statements concerning the Darryl Grockett murder. In that statement, Ruiz told police Primo said Grockett was trying to get Coby Phillips killed or trying to kill him. According to Ruiz, Primo said two shooters—defendant and Coby—were shooting at Grockett and “they” all had guns. He also told law enforcement about the Hernandez shooting. According to Ruiz, Hernandez was affiliated with “northerners,” the rivals of the Sureños.

Ruiz agreed to testify for the prosecution. He entered a plea agreement in which he was to serve three years in a local facility. As part of that deal, Ruiz also testified at Delatorre’s trial and before the grand jury. He was supposed to tell the truth. Since he started testifying in 2008, Ruiz had received approximately $63,000 and relocated with his family.

Detective Pate recalled that he and Detective Goldberg interviewed Ruiz at the Martinez jail in early 2007. Goldberg suggested Delatorre was already talking and told Ruiz that if he was “honest” about what he and other people did, Ruiz would not be booked into jail. The officers did not give Ruiz police reports to read or say defendant had been talking about Ruiz. At that point, Ruiz admitted that he was driving the car when Guzman-Mercado was shot.

Ruiz mentioned a Chevrolet Tahoe truck was also involved, but maintained he did not know the occupants. Eventually, Ruiz identified a photograph of defendant, who went by the nickname Calacas, as one of the people in the truck. Ruiz said that earlier that evening, Primo had talked about “jacking” (i.e., robbing) Guzman-Mercado. Eventually, Ruiz said Delatorre shot Guzman-Mercado. At the end of the interview, Ruiz was still denying he had a relationship with defendant. Ruiz and Delatorre were the only ones charged with the Guzman-Mercado murder at that time.

Ruiz was reinterviewed in the fall of 2007. An attorney was present during part of the interview. During this interview the police learned for the first time about the Hernandez shooting and about Ruiz’s conversation with Primo about the shooting off Highway 4.

According to Beckwith, a few months after the shooting in the car, defendant left for Mexico because a warrant for his arrest had been issued. Later, Timothy Covey drove her to Mexico to meet him. At some point, defendant returned to the United States and was eventually arrested in Petaluma in 2007.

D. Attempted Murder of Jose Hernandez—February 21, 2005.

On February 21, 2005, Jose Hernandez lived with his daughters at 1815 Roosevelt Avenue, Richmond, in one unit of a four-unit apartment complex where his parents also lived. He was walking downstairs when he was shot three times. He identified defendant as the shooter.

Hernandez lived next door to Alejandro Figueroa, who was having a party that day. A wooden-slatted cyclone fence separates the two properties. Hernandez had to walk outside to take his daughter downstairs to his apartment and saw defendant urinating on the fence. Hernandez deposited his daughter at his apartment. On his way back to his mother’s apartment, he heard defendant say, “[H]ey, just stop and look to your left.” Hernandez turned to see defendant about six or seven feet away pointing a gun at him. Defendant smiled and shot Hernandez in the left hand, the hip, and the calf. Hernandez yelled for help and a number of family members came to assist him. Police and paramedics arrived shortly thereafter. A live .38-caliber bullet was found at the scene. Police officers observed four suspected bullet holes in the fence between the two residences. Hernandez subsequently identified defendant from a photographic lineup at the hospital the next day. He recognized defendant as someone he had seen once or twice before.

Hernandez knew Alejandro Figueroa’s brother, Rudolfo. He also knew Ricardo Ruiz, who used to go to Alejandro’s house ‘“lots” and went to Hernandez’s house “sometimes.” He was not sure if defendant was the person known as Calacas, but he was sure defendant shot him. Initially, Hernandez went back to living at his apartment on Roosevelt. However, a couple of years later, the police contacted him out of the blue. At first he did not want to talk to them or testify, but now felt safe to testify, because he got help to move out of the Roosevelt Avenue residence.

Hernandez testified that he had previously asked Alejandro to sell him cocaine, and Alejandro had arranged for him to buy the drugs from defendant; that was when Alejandro told Hernandez who defendant was. On that day, he also saw a gun defendant was carrying in the car. He had seen defendant at Alejandro’s house a couple times.

Alejandro Figueroa confirmed he hosted a family barbeque at his house on February 21, 2005, which was attended by Rudolfo and Ruiz. Alejandro knew defendant as “Calacas” and “Carlos” and identified him in court. Defendant showed up at the barbeque uninvited. He first passed by the residence in a Cadillac, in which he was a passenger. The car went around the block and, shortly thereafter, defendant walked up to Alejandro and asked if he could urinate on the side of the house. Alejandro said he did not mind, and defendant walked to the side of the house. Suddenly, Alejandro heard shots and saw defendant come out running. He was holding a gun. Defendant was the only one on the side of the house when the shots were fired. His friend and neighbor, Hernandez, had been shot. The police came, but Alejandro did not tell them what he saw because he was scared.

According to Ruiz, Alejandro invited him to the barbecue. Primo showed up later, as did defendant. Defendant was dropped off by one of Coby’s friends, Bubba, who was driving a Cadillac. He looked serious. He said hello to Alejandro and then went to the side of the house closest to a fourplex next door. Ruiz heard gunshots and saw defendant start running, then hop a fence. Ruiz knew Hernandez, who lived in the fourplex. A few weeks earlier, Ruiz heard Sergio say that the man who lived at the apartments (i.e., Hernandez) was “snitching.”

At that time, Alejandro owned a gold Lexus he had purchased from Ruiz. Before he bought it, he had seen Primo driving it with Ruiz. He later learned from a newspaper account that the Lexus had been used in the Mercado-Guzman shooting.

In March 2008, Alejandro was indicted for conspiracy, robbery, burglary, and two murders, one of which involved Guzman-Mercado. He was facing life in prison. He believed he was indicted for the Guzman-Mercado murder because defendant told the police someone named Alejandro was responsible for it. After he learned that, he spoke to police for the first time about the Hernandez shooting.

Alejandro pleaded no contest to a misdemeanor violation of section 32, accessory to a crime; the remaining charges were dismissed. He was sentenced to time served. He was not the Alejandro involved in the shooting of Guzman-Mercado and he was not a gang member. So far as he knew, in 2004 and 2005, Ruiz used to hang around with the RST gang, but he did not know if Ruiz was a gang member.

On February 21, 2005, Clayton Cates went from his sister’s house in Cordelia to Bush Street in Richmond with defendant in a silver Cadillac. Tim Covey was driving. They parked on the street in a residential neighborhood and defendant got out of the car. Cates and Covey stayed in the car. Defendant returned about 45 seconds later holding a gun. He appeared nervous and said emphatically, “Go” or “Let’s leave.” They left, returning to his sister’s house. A couple weeks later, defendant said he had shot “the guy that snitched on him.”

According to Stacey Taylor, in the late afternoon of February 21, 2005, defendant, Tim Covey, and Cates were at Taylor’s home. The three drove off. When they returned, Covey and Cates seemed nervous. Defendant was excited; he said he had “shot the rat.” Sometime before that day, defendant said that Sergio had “found out who was telling.”

Timothy Covey testified that on February 21, 2005, he met defendant at Stacey Taylor’s house in Cordelia, where Covey was living at the time. Defendant came with his girlfriend, Jamie. Phillips was in jail. Defendant asked Covey to give him a ride to collect some money and directed him where to go. Covey drove Sergio’s silver Cadillac to Richmond. Clayton Cates went with them. Defendant directed Covey to park on a street in a residential neighborhood, and defendant jumped out and went around the corner. About five minutes later, defendant returned with a gun in his hand. He told Covey to “[g]o,” and Covey “[wjent. Drove fast.” They returned to Cordelia. A few months earlier, Covey heard defendant say a “rat” was informing on him or his brother. A couple days later, defendant said, “I got the rat.” At some point, defendant told Covey that Sergio knew “who the rat was.”

A short time after the shooting occurred, Sergio told defendant in Covey’s presence that defendant was going to be indicted for murder. Defendant then fled to Mexico. About two weeks later, Covey drove Jamie Beckwith to Rosarito Beach, Mexico, where they met defendant. Covey saw defendant after he returned to the United States, but he was not aware when defendant returned because at the time he was not on “talking terms with anybody . . . directly in the gang” due to his romantic involvement with Stacey Taylor.

E. Gang Testimony.

Vallejo Detective Todd Tribble testified as an expert on street gangs, generally, and White street gangs and White prison gangs, specifically. In addition to receiving hundreds of hours in formal and informal training, Tribble had interviewed numerous gang members belonging to FAIM, a White supremacist gang. The symbol used by the gang is a shamrock, and they associate themselves with the color green. The Aryan Brotherhood, a prison gang, also uses the shamrock as a symbol.

FAIM boasts more than 60 members. Tribble opined that FAIM was a criminal sheet gang and that its primary activity was the sales of significant quantities of methamphetamine. FAIM members interact with other groups and persons in the Bay Area criminal subculture to obtain their methamphetamine. Members of FAIM are involved with firearms, often possessing them illegally. Gang members regularly carry firearms because of the violent nature of drug trafficking.

Coby Phillips, Matthew Donohue III (Mattie Boy), Jason Donohue (Matthew’s brother), and Thomas Covey founded FAIM in 1995 or 1996 in west Contra Costa County. Phillips and Matthew Donohue later expanded the gang in the state prison system.

Coby Phillips sported a small shamrock tattoo on his right cheek and a large shamrock tattoo with the letters FAIM tattooed inside the shamrock covering the back of his head. Phillips was validated as a member of FAIM by California’s Department of Corrections in 1998. He was also associated with the Aryan Brotherhood. Richard Ahlquist, Timothy Covey, Steve Buchanan, and Scott Schweiger (known as Shovelhead) were members of FAIM in 2004. All but Ahlquist were currently inactive members. Stacey Taylor, Clayton Cates, and Melissa Wright were associated with the gang.

Tribble was asked to assume the following hypothetical facts: Phillips was involved in selling methamphetamine to Grockett, which he obtained from defendant and his brother, Sergio; Phillips arranged to meet Grockett on Crocked Boulevard off the Cummings Skyway, and during that meeting, Phillips, defendant, and defendant’s cousin, Primo, killed Grockett. Tribble opined that the killing was committed in association with FAIM because Phillips was a leader of the FAIM gang and was involved in the sales of methamphetamine, which he obtained from the Vega-Robles brothers and cousin. In his opinion, “There was a noted association between those men, and the sales of the methamphetamine at the time was an activity that further promoted the gang FAIM.” Assuming Grockett posed a threat to a member of FAIM, killing him would benefit FAIM. Tribble testified, “You no longer have a threat that’s not only physically threatening a member or more than a member of the gang but that same physical threat would entail the threat of future sales of methamphetamine which is the primary activity of the gang. So it would benefit the gang twofold.”

San Pablo Police Detective Robert Brady testified as a gang expert on Hispanic gangs in Contra Costa County. The Sureños were active in west Contra Costa County from 2000 to 2006. The Sureños gang in west Contra Costa County is broken up into small groups, and RST is a subset of the Sureños gang in that part of the county. The primary activities of the Sureños include ‘“drug sales, violent acts, assaults, assault[s] with firearms, murders, and car theft.” The primary activities of the RST were the same as those of the Sureños in 2004 and 2005. Brady opined that Delatorre was a Sureños gang member in 2003 and 2004. He was asked to assume the following hypothetical facts: a drug dealer with ties to trafficking in Mexico, and who is running short of money, learns there is another dealer who has possession of a few pounds of methamphetamine. He makes plans with two RST members to rob that dealer, and the RST members ride in a car with the dealer to rob him. Brady opined that in those circumstances the robbery or attempted robbery could benefit the gang financially.

II. Defense Evidence.

The defense presented witnesses to impeach the testimony of Stacey Taylor and Timothy Covey. On January 13, 2010, Thomas Covey (Timothy’s brother) was charged with the murders of Guzman-Mercado and Grockett and the attempted murder of Hernandez. Timothy Covey denied having any knowledge of the attempted murder to a defense investigator. The investigator met with Covey and saw no physical resemblance between him and his brother.

The attorney who represented Phillips in a domestic violence case recalled Stacey Taylor testified the incident was an accident; two witnesses brought to the defense by her also testified it was an accident. The attorney believed her. Phillips was acquitted.

The defense called Ralph Nash, a former member of the Nazi Low Riders, a prison gang. Nash was in prison in protective custody at the time of trial, and was called to show Phillips killed Grockett for personal reasons not related to a drug conspiracy. Nash testified Grockett was an Aryan Brotherhood gang member. Grockett told Nash he was going to kill Phillips, and that he had put a gun to Phillips’s head. Nash was ordered by the Aryan Brotherhood to kill Phillips because Phillips wore a shamrock tattoo he was not authorized to have, and because Phillips failed to carry out an order to kill a snitch. Nash gave a statement to Detective Pate in October 2009 but it was not true, and he recanted to prison officials a few days later. Nash denied receiving a call from Phillips in which Phillips told Nash, “Dude, I killed him [Grockett], it’s over.”

Nash’s October 2009 tape-recorded interview was played to the jury. In it, Nash told Detective Pate and Officer David Berna, a gang investigator at California State Prison, Corcoran, that FAIM was a “street gang banging” “clique” started around 1994 to protect White gang members from Blacks in Richmond and “sell drugs and make money.” Older members wore shamrock tattoos. Nash knew Calacas, who was “real tight” with Phillips, “one of his boys.” He met Sergio twice. All of them carried guns. He knew Clayton Cates through Bubba “and all them. . . . They just all together selfin’. It’s, like, one big family.” He knew Sally Sinclair from dropping off drugs from Phillips at her house.

Nash was a close friend of Phillips and Grockett. Phillips and Grockett were cellmates at Pelican Bay State Prison. In 2004, Phillips asked Nash to “set up” Grockett so Phillips could kill him. He wanted Nash to lure Grockett to a house in Rodeo. Nash did not want to be “dragged in no murder,” so Nash twice warned Grockett that Phillips was “gunnin” for him. Nash did not mention he was supposed to set Grockett up. Grockett just “shook it off.” The day after Grockett’s death, Phillips called Nash and said, “It’s over, man. . . . I killed [Darrell]. It’s done. . . . That punk’s over. . . . It’s over. Come over. We need to talk.” Nash did not know of anybody else involved in Grockett’s killing. Nash owed Phillips $8,000 for methamphetamine. Phillips was his main source. Sometimes Phillips would send Bubba to him with the drugs.

Nash said he was supposed to kill Phillips because Phillips had failed to kill witnesses against an Aryan Brotherhood member, and wore the shamrock on his face without permission.

A day or two after the interview, Nash contacted Berna and said he did not want anything more to do with Detective Pate; he did not want to testify because he had family in Contra Costa County and that worried him. Nash did not say he lied during the interview.

The defense presented evidence to show that no physical evidence connected defendant to the robbery and murder of Guzman-Mercado. No fingerprints or DNA matching defendant or Delatorre were found at Guzman-Mercado’s apartment. No blood or bullet holes were found in a four-door Lexus processed by police. However, there was a dimple in the passenger side rear door. No blood or bullet holes were found in a two-door Lexus, also processed.

Gilberto Gutierrez admitted to Detective Goldberg he removed items from Guzman-Mercado’s apartment and repaired the front door of the apartment on December 4.

The defense also presented evidence that other people unconnected to defendant had motives to kill Grockett. Robert Lott was incarcerated at a federal prison at the time of trial on a federal drug indictment. He was indicted on February 6, 2008, for the murders of Grockett and Guzman-Mercado, and the attempted murder of Hernandez and eventually reached a deal in this case. He testified he had never met defendant. He had his own Mexican connections for drugs.

Grockett was Lott’s childhood best friend who nevertheless robbed him of money and drugs at gunpoint in 2003. He knew Grockett to be violent, and testified that Grockett committed assaults, robberies, and shootings. Grockett was also a drug seller and user who usually took his drugs forcibly from someone else. He was a member of the Aryan Brotherhood. A FAIM member called Shovelhead came to Lott’s house to collect money a friend of his owed FAIM member Mattie Boy.

On October 8, 2004, deputies located a burned-out van near the location where Grockett’s killing took place. The van had been stolen from one of Lott’s drug customers.

According to Detective Pate, Stacey Taylor told him Phillips told her that he and Grockett were supposed to do something for the Aryan Brotherhood gang they did not do, and Phillips was worried Grockett was going to try to kill him over it. Taylor also said Phillips told her either he or Josué (Primo) shot Grockett in the head, but she “got a feeling that all three of them [Coby, Josué and defendant]” were involved in the shooting.

On February 14, 2007, Detective Goldberg interviewed defendant in Sonoma County jail. Defendant was advised of his constitutional rights and said he understood them. Defendant admitted knowing Ricardo Ruiz and Juan Antonio Delatorre and identified photographs of them. Defendant said Guzman-Mercado was “set up” by his own cousin and a drug dealer named Alejandro. Alejandro asked defendant whether he wanted to be involved and defendant declined, although defendant’s cousin Primo agreed to participate.

According to defendant, Guzman-Mercado’s cousin told Guzman-Mercado to come to a certain car wash with crystal methamphetamine and get in the car with Primo, Ruiz, and Delatorre. Guzman-Mercado did as instructed. Defendant said Ruiz was driving, Primo was sitting in the front seat, and Delatorre was in the backseat. There was an argument in the car, a little bit of a struggle, and Delatorre shot Guzman-Mercado. Defendant said he was in a nearby Denny’s restaurant when the shooting occurred. There is a Denny’s at the corner of San Pablo Dam Road and Interstate 80. Defendant said he had been “working together” with Alejandro and that he did not know the name of Guzman-Mercado’s cousin who was involved.

Defendant adamantly denied being in the car when Guzman-Mercado was shot. Defendant said “he knew about this whole plot and the scam, the way it was supposed to happen and the details of it. He just said he wasn’t present in the actual vehicle itself.” He also said Delatorre went into the apartment and obtained methamphetamine from it.

Defendant was worried that his name would come out in Detective Goldberg’s report, and Goldberg told him to get past that; it was a given that his name would be in the report. Defendant said he wanted to make a deal.

Defendant admitted he knew Coby Phillips, who was his “home-boy.” He said he “served” Phillips, meaning he sold drugs to Phillips. Defendant also knew Bubba.

DISCUSSION

I. Sanchez Error Occurred, but the Errors Were Harmless Beyond Reasonable Doubt.

In his original briefs, defendant claimed the court improperly gave a “nontruth” expert hearsay instruction pursuant to CALCRIM No. 360 that was weak, confusing, inherently ineffective, and which denied him due process, a fair trial, and the right to confront testimonial hearsay. However, he acknowledged the instruction had been approved, and his objections to it were contrary to binding authority. (See People v. Gardeley (1996) 14 Cal.4th 605, 618-619 [59 Cal.Rptr.2d 356, 927 P.2d 713], overruled in part in Sanchez, supra, 63 Cal.4th at p. 686; People v. Hill (2011) 191 Cal.App.4th 1104, 1129-1130 [120 Cal.Rptr.3d 251].) Bound by existing precedent, we rejected defendant’s argument. However, we noted the California Supreme Court had granted review in Sanchez to decide whether a criminal defendant’s Sixth Amendment right to confrontation is violated by a gang expert’s reliance on testimonial hearsay under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354]. Following remand, we asked the parties for supplemental briefing on the effect of Sanchez. After careful reconsideration of the issue in light of Sanchez, we conclude some inadmissible hearsay was admitted, but none of it was testimonial; the instructions on expert testimony were erroneous, at least in part; and any errors were harmless beyond a reasonable doubt, given the extensive admissible testimony about gang issues from former gang members, including a defense witness, and the wives and/or girlfriends of defendant and Coby Phillips.

The Sanchez Decision

The defendant Sanchez was charged with the substantive crimes of possession of a firearm by a felon, possession of drugs while armed with a loaded firearm, active participation in the “Delhi” street gang, and a street gang enhancement allegation for committing a felony for the benefit of the Delhi gang. (Sanchez, supra, 63 Cal.4th at pp. 671, 698.) To prove he was a member of a gang, the prosecution called a Santa Ana police detective as a gang expert. (Id. at pp. 671-672.) The expert testified about his experience and training; the practice of issuing “STEP notices” to gather information from, and impart warnings to, the associates of known gang members; preparation of field identification (FI) cards recording police contacts with individuals; gang culture in general, and the Delhi gang (of which Sanchez allegedly was a member) in particular; the way gangs operate; and the Delhi gang’s territory, membership, modus operandi, and primary activities. (Id. at pp. 672-673.) A jury convicted the defendant as charged. (Id. at p. 673.) The Sanchez court reversed the jury findings on the street gang enhancements, holding that “the case-specific statements related by the prosecution expert concerning defendant’s gang membership constituted inadmissible hearsay under California law. They were recited by the expert, who presented them as true statements of fact, without the requisite independent proof. Some of those hearsay statements were also testimonial and therefore should have been excluded under Crawford. The error was not harmless beyond a reasonable doubt.” (Id. at pp. 670-671.)

With respect to the hearsay rule, the Supreme Court in Sanchez drew a distinction between “an expert’s testimony regarding his general knowledge in his field of expertise,” and “case-specific facts about which the expert has no independent knowledge.” (Sanchez, supra, 63 Cal.4th at p. 676, italics omitted.) The former is not barred by the hearsay rule, even if it is “technically hearsay,” while the latter is. (Ibid.) “Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried. Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts. An expert may then testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge.” (Ibid.) The court gave the following example to illustrate the difference: “That an associate of the defendant had a diamond tabooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang.” {Id. at p. 677.)

With respect to the confrontation clause, the Sanchez court reaffirmed that ‘“[i]f a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, . . . [ajdmission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term.” (Sanchez, supra, 63 Cal.4th at p. 680.) Synthesizing the high court’s numerous opinions following Crawford, the Sanchez court defined testimonial hearsay as ‘“statements about a completed crime, made to an investigating officer by a nontestifying witness . . . 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, at p. 694.)

The Sanchez court rejected prior courts’ attempts to avoid the hearsay and confrontation problems inherent in an expert’s basis testimony ‘“by giving a limiting instruction that such testimony should not be considered for its truth. 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. Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner.” (Sanchez, supra, 63 Cal.4th at p. 684, fn. omitted.)

Applying a ‘“two-step analysis” (Sanchez, supra, 63 Cal.4th at p. 680) to the facts before it, the Sanchez court first determined the expert’s ‘“case-specific” testimony about the defendant’s contacts with and admissions to other police officers about his gang involvement was inadmissible hearsay because the expert had never met Sanchez, and his knowledge of Sanchez’s contacts with the police was based on police records. (Id. at pp. 670-671, 673.) The expert’s background testimony about general gang behavior or the Delhi gang’s behavior or territory raised no hearsay or confrontation concerns; it was ‘“based on well-recognized sources” in the expert’s area of expertise and was ‘“relevant and admissible evidence as to the Delhi gang’s history and general operations.” (Id. at p. 698.)

Next, the court determined the expert’s testimony about the defendant’s five prior police contacts was testimonial hearsay because it was based on police reports by other officers compiled during police investigation of completed crimes. (Sanchez, supra, 63 Cal.4th at p. 694.) Likewise, the expert’s testimony about the defendant’s gang membership, gained during the issuance of a California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.; STEP) notice to him by another officer, was also testimonial because that officer gathered the information from the defendant for the primary purpose of establishing facts to be later used against him or his companions at trial, and recorded it on “an official police form containing the officer’s sworn attestation that he issued the notice on a given date and that it accurately reflected the attendant circumstances, including defendant’s statements.” (Sanchez, at pp. 696-697.) The court was unable to determine whether the information about the defendant recorded on an FI card was testimonial because the circumstances of its creation were not clarified by the parties at trial. Nevertheless, the court concluded the expert’s testimony based on the police reports and the STEP notices was prejudicial—that is, not harmless beyond a reasonable doubt under Chapman v. California, supra, 386 U.S. 18—because the expert’s “case-specific testimony as to defendant’s police contacts was relied on to prove defendant’s intent to benefit the Delhi gang whe