P. v. Crockett

Filed 2/16/18 P. v. Crockett CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIE CROCKETT,
Defendant and Appellant.
B267614
(Los Angeles County
Super. Ct. No. SA071297)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Elden Fox, Judge. Affirmed and remanded with
directions.
Christopher Allan Nalls, 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 Mary Sanchez,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________

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Defendant and appellant Willie Crockett appeals his
conviction of, among other things, robbery, aggravated assault,
attempted murder, attempted robbery, and attempted
premeditated murder of a police officer, with gang and firearm-
use enhancements. He urges on appeal that (1) the gang
enhancement with respect to one incident was not supported by
substantial evidence; (2) each of the gang enhancements was
based on inadmissible testimonial hearsay, in violation of People
v. Sanchez (2016) 63 Cal.4th 665 (Sanchez); (3) the jury was
misinstructed on the natural and probable consequences doctrine;
and (4) the case must be remanded to allow the trial court to
exercise sentencing discretion. For the reasons discussed below,
the judgment of conviction is affirmed, and the matter is
remanded for resentencing as discussed more fully in sections
(4) and (5).
BACKGROUND
Viewed in accordance with the usual rules of appellate
review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the
evidence established the following.
1. Prosecution evidence.
a. Robbery of Wachovia Bank (counts 1–3).
On April 30, 2009, Crockett entered a Los Angeles branch
of Wachovia Bank. He approached Samir A., a bank teller, and
presented a note announcing that a robbery was in progress and
that he had a bomb. As Samir gathered money, Crockett
proceeded to Christina M., the teller next to Samir, and
demanded money from her. Crockett also handed the note to a
third teller, Anthony C. All three tellers gave Crockett cash
containing dye packs.

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Shortly after Crockett left the bank, a bank employee saw a
plume of red smoke consistent with a dye pack exploding.
Los Angeles Police Department (LAPD) officers later found some
items stained with red dye in an alley near the bank. Crockett’s
fingerprints and handwriting were found on the robbery note.
Samir and Anthony identified Crockett as the robber from six-
pack photographic lineups.
b. Shooting during attempted pawnshop robbery
(counts 4–9, 11).
On June 9, 2009, Jan S., Jose C., Jose R., and Robert H.
were working at the Long Beach Pawn Shop. Crockett entered
the store, approached Jan, and said he wanted to buy a ring for
his girlfriend. Jan referred Crockett to Robert, who was in
charge of selling jewelry. Robert was armed with a handgun
because there had been two prior attempted robberies at the
store.
When Robert offered to assist him, Crockett yelled out
“Now,” pulled a handgun from his waistband, and announced a
robbery. A second gunman ran into the store and jumped over
the counter. When Crockett aimed his gun at Jan, Robert shot at
him; Robert believed he had hit Crockett in the leg. The second
gunman jumped back over the counter and started crawling
toward the front door with Crockett. A third man at the front
door then started shooting into the store. Robert was wounded
by a gunshot to the face, but he was not sure which of the three
perpetrators had shot him.
Long Beach Police Detective Donald Collier testified that
blood recovered from the sidewalk outside the pawnshop was
matched to a man named Baleegh Brown. From the surveillance
videotape, Detective Collier identified Brown as the second

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robber to enter the pawnshop. Detective Collier was not able
immediately to identify Crockett, but ultimately found a
photograph on Myspace of a man wearing the same orange suit
Crockett had worn during the robbery. All four of the pawnshop
employees, as well as a customer, Tracy W., identified Crockett
from photo arrays as one of the perpetrators.
Detective Collier described the pawnshop incident as “what
we call a takeover robbery where you have multiple suspects
going into a commercial business with the use of violence or
threatened violence.” On the day of the attempted pawnshop
robbery, Detective Collier contacted local hospitals to see if any of
them had treated gunshot wounds; none had.
c. Shooting during Crockett’s arrest (counts 12, 15,
16, 19, 22, 23, 26, 27).
Crockett was a member of the Black P Stone (BPS) gang.
LAPD Detective Cedric Washington testified he had served as “a
gang expert for several gangs, including the Black P Stone gang,”
and had qualified as an expert in court regarding the BPS gang.
Because of his knowledge of the BPS gang, other police officers
approached him for help in locating Crockett in the aftermath of
the Wachovia and pawnshop crimes. Detective Washington
testified that he had never had personal contact with Crockett,
but he knew of him: “I had seen him in the area over the years
that he’s been a member of the Black P Stone gang.” Detective
Washington continued, “I had seen [Crockett] around. I was
familiar with him through confidential reliable informants. I was
familiar with him through other gang members and other
citizens and community members within the area that he resided
and committed crimes.” Ultimately, Detective Washington traced
Crockett to 4611 Martin Luther King Junior Boulevard,

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apartment 187 (apartment 187), and obtained a search warrant
of the apartment.
On July 1, 2009, police observed Crockett and others in
apartment 187. Detective Washington went to the location and
confirmed Crockett’s presence; several known BPS members,
including Christopher Singh, J.B. Jennings, and Richard Bennett
were also seen in the apartment. When a SWAT unit arrived at
the scene, Crockett ran outside onto a patio, noticed the police
presence, and ran back inside, where he was seen peering out
from the apartment windows. Members of the SWAT unit had
already started to enter the apartment building, but after
learning that the operation had been compromised, they stopped
in front of a fire door leading to the hallway where apartment 187
was located. Detective Washington testified: “[I]mmediately
after Crockett went inside, I heard several . . . gunshots going off
from a rifle. Very distinguishable sound of an AK47.” Two
minutes later, Crockett ran out of apartment 187 and into the
hallway where the police were waiting. Crockett was unarmed;
he was tackled and arrested.
An LAPD criminalist testified that the gunshots fired from
apartment 187 had gone through an adjoining wall to
apartment 189; two bullets were found embedded in a second
wall separating apartment 189 from the apartment building
hallway. Inside apartment 187, police found several loaded
weapons: an AK47, a shotgun, and a .38-caliber revolver. They
also found a bottle of lidocaine, a bandage in an open packet, two
bottles of Neosporin, scissors, gloves, gauze, iodine, bottles of
hydrogen peroxide, latex gloves, and a medical dressing.
Detective Collier, who was present at Crockett’s arrest,
characterized these as “a lot of medical items . . . that could be

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used to cleanse or care for a wound.” As noted, ante, Detective
Collier had checked with hospitals on the day of the pawnshop
robbery for reports of gunshot victims, but he had not learned of
any. X-rays taken in November 2011 disclosed two bullets lodged
in Crockett’s pelvis. Medical testimony indicated that such a
wound would not necessarily require hospital treatment.
d. Gang expert’s testimony.
LAPD Detective Phil Rodriguez testified as an expert about
BPS. He described BPS as one of the largest African-American
gangs in the country, with 950 to 1,000 members in Los Angeles,
and about 15,000 members nationwide. He explained that the
gang was roughly divided into two main cliques: the Jungles
clique and the Bities clique. Detective Rodriguez testified the
gang’s primary activities include robbery, assault with deadly
weapons, narcotics trafficking, murder, attempted murder,
carjacking, and rape.
Detective Rodriguez testified Crockett, a known BPS
member, was known as “Janky” or “Corn Nut.” Although
Detective Rodriguez did not know Crockett personally, he had
learned about Crockett’s gang monikers from Crockett’s
admissions to other police officers. Detective Rodriguez was
shown photographs of two of Crockett’s tattoos: the letters “BPS”
on the back of Crockett’s neck, and a large dollar sign on his
torso. Detective Rodriguez testified “BPS” was one of the “more
common tattoos” worn by BPS members, and that the dollar sign
tattoo signified that Crockett was “part of an inner [clique] within
the Jungles” clique known as “the Stevely Crew.” The Stevely
Crew was “known for getting money by any means necessary,
commonly bank robberies and street robberies.”

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Detective Rodriguez testified that he believed Crockett to
be an active BPS member because Crockett “was observed . . .
frequenting with other gang members. He was frequenting gang
locations with gang tattoos, self-admitted to gang officers, and
was arrested for gang crimes.” Asked if there were any
particular police officers on whom he relied for this opinion,
Detective Rodriguez named three officers, but he did not reveal
anything about the circumstances surrounding his conversations
with those officers. Detective Rodriguez was shown photographs
taken during the attempted pawnshop robbery, and he identified
the other two robbers as Baleegh Brown and Keshawn Tyrell.
Detective Rodriguez testified he had personal knowledge that
Brown was an active BPS member in June 2009.1 Shown the
photograph that Detective Collier had found on Myspace,
Detective Rodriguez said Crockett was standing next to
Christopher Singh, whom Detective Rodriguez knew to be a BPS
gang member.2 Detective Rodriguez further testified that the
building that housed apartment 187 was within BPS gang
territory. Finally, he testified that he personally knew
J.B. Jennings, who had run from apartment 187 shortly before
1 Detective Rodriguez testified Brown was “a self-admitted
and documented BPS gang member whom I’ve arrested on
numerous occasions. His moniker is G-Snap, but his updated
moniker is Tiny Mumu. Currently in custody.” Brown was part
of the Bities clique within BPS.
2 Detective Rodriguez testified Singh was “a documented and
self-admitted BPS gang member” who was also known as “Little
Chris.” Detective Rodriguez had personal contact with Singh
“numerous times” and had also “seen him at fellow gang court
cases.”

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the police raid, to be a member of the Jungles clique of the BPS
gang.
Presented with a set of hypothetical questions based on the
facts of this case, Detective Rodriguez testified that the
attempted pawnshop robbery and the shooting at apartment 187
would have inured to the benefit of both the BPS gang and the
individual participants: “The effect would be people in the gang
would know who are actively doing these takeover robberies. . . .
[¶] And part of the recognition you get is how you’re taken into
custody. How violent you were. Did you lead them on a pursuit?
Did you fight with officers? Did you shoot it out with officers?
That is all taken into account as far as gang members and your
status in the gang. That’s a big factor in being a gang member.”
The following colloquy then occurred:
“Q. . . . If a gang member, a BPS gang member who’s
wanted for some type of crime, while the police are serving a
search warrant, rather than surrender, he shoots it out with the
police or fires shots at or toward the police, does that affect his
reputation?
“A. Yes.
“Q. In what way?
“A. It shows that you didn’t go down easy. And younger
gang members and even older gang members, they take pride in
that. It glorifies—a lot of these pursuits and shootings are on the
news broadcast, so . . . you know what gang may be attached to
that specific location. [¶] A lot of the gang members who resist
when they’re taken into custody, they are glorified. When I say
glorified . . . for example, Mr. Crockett. I monitor social media.
They are constantly—on his birthday they are requesting for
Free Janky Stone, Real, True BPS. They’re glorified.”

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Detective Rodriguez testified that violent resistance to a
warrant also helps the gang: “Part of it is the recruitment.
Young gang members want to be part of . . . one of the bigger and
violent gangs. Part of it is money. The larger the territory you
own . . . for example, Crenshaw. You’ve got narcotics trafficking,
robberies, burglaries, and not many people are going to confront
BPS.”
2. Defense evidence.
The defense rested without putting on any evidence.
3. Trial outcome.
The jury convicted Crockett of three counts of robbery, with
gang enhancements, arising out of the Wachovia Bank robbery
(Pen. Code, §§ 211, 186.22, subd. (b))3; one count of aggravated
assault, one count of attempted murder, and four counts of
attempted robbery, with firearm use and gang enhancements,
arising out of the pawnshop attempted robbery (§§ 245, 664, 187,
664, 211, 12022.5, 12022.53, 186.22, subd. (b)); and three counts
of attempted premeditated murder of a peace officer, one count of
shooting at an inhabited dwelling, and three counts of aggravated
assault on a peace officer, with firearm use and gang
enhancements, arising out of the shooting incident during which
Crockett was arrested (§§ 664, 187, 246, 245, subd. (d)(2),
12022.5, 12022.53, 186.22, subd. (b)).4
3 All further statutory references are to the Penal Code
unless otherwise specified.
4 The trial court dismissed (at the prosecution’s request) two
additional convictions for possession of a firearm by felon
([former] §12021) and a prior serious felony conviction allegation
(§ 1170.12).

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The court sentenced Crockett to a total prison term of
238 years 8 months to life. That sentence did not include any
time relating to the jury’s true findings on the gang
enhancements.5
CONTENTIONS
Crockett contends: (1) there was insufficient evidence to
sustain the jury’s true findings on the gang enhancement arising
out of the shooting incident during which Crockett was arrested;
(2) all the gang enhancements must be reversed because the gang
testimony was based on inadmissible hearsay evidence in
violation of California law and the federal confrontation clause;
(3) the attempted murder conviction arising out of the pawnshop
attempted robbery must be reversed because there was
insufficient evidence of premeditation; and (4) the case must be
remanded for resentencing under the recent amendments to
section 12022.53.
5 As it appeared that the trial court did not impose sentence
on the gang enhancements, we asked the parties by letter dated
January 16, 2018, whether any error resulting from the true
findings on the enhancements was harmless. After reviewing the
parties’ supplemental letter briefs, we conclude that we should
address Crockett’s contention regarding the sufficiency of the
evidence to support the gang enhancement.

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DISCUSSION
1. There was sufficient evidence to support the gang
enhancements arising out of the shooting incident during which
Crockett was arrested.
Crockett contends the evidence was insufficient to support
the gang enhancement related to the July 1, 2009, shooting
incident during which he was arrested. We disagree.
a. Standard of review.
“The standard of appellate review for determining the
sufficiency of the evidence supporting an enhancement is the
same as that applied to a conviction. [Citations.] Like a
conviction unsupported by substantial evidence, a true finding on
a gang enhancement without sufficient support in the evidence
violates a defendant’s federal and state constitutional rights and
must be reversed. [Citations.]” (People v. Franklin (2016)
248 Cal.App.4th 938, 947 (Franklin).)
“In considering a challenge to the sufficiency of the
evidence to support an enhancement, we review the entire record
in the light most favorable to the judgment to determine whether
it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] We presume every fact in support of the
judgment the trier of fact could have reasonably deduced from
the evidence. [Citation.] If the circumstances reasonably justify
the trier of fact’s findings, reversal of the judgment is not
warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] ‘A
reviewing court neither reweighs evidence nor reevaluates a

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witness’s credibility.’ ” (People v. Albillar (2010) 51 Cal.4th 47,
59–60 (Albillar).)
b. Legal principles.
In 1988 the Legislature enacted section 186.20 et seq.,
known as the California Street Terrorism Enforcement and
Prevention (STEP) Act, to combat gang-related crimes and
violence. (People v. Prunty (2015) 62 Cal.4th 59, 66–67.) Section
186.22, subdivision (b)(1), imposes various sentencing
enhancements on defendants convicted of gang-related felonies
committed with the specific intent to promote, further, or assist
in any criminal conduct by gang members.
“There are two prongs to the gang enhancement under
section 186.22, subdivision (b)(1), both of which must be
established by the evidence. [Citation.] The first prong requires
proof that the underlying felony was ‘gang-related,’ that is, the
defendant committed the charged offense ‘for the benefit of, at
the direction of, or in association with any criminal street gang.’
[Citations.] The second prong ‘requires that a defendant commit
the gang-related felony “with the specific intent to promote,
further, or assist in any criminal conduct by gang members.” ’
[Citations.]” (Franklin, supra, 248 Cal.App.4th at p. 948.)
“As the Supreme Court has noted, ‘[t]he prosecution’s
evidence must permit the jury to infer that the “gang” that the
defendant sought to benefit, and the “gang” that the prosecution
proves to exist, are one and the same.’ [Citation.] ‘That gang is
defined in section 186.22[, subdivision] (f), which provides that
the gang must consist of “three or more persons” who have as one
of their “primary activities the commission of” certain
enumerated criminal acts; who share “a common name or
common identifying sign or symbol”; and “whose members

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individually or collectively engage in or have engaged in a
pattern of criminal gang activity.” ’ [Citations.]
“ ‘In order to prove the elements of the criminal street gang
enhancement, the prosecution may . . . present expert testimony
on criminal street gangs.’ [Citation.] ‘ “Expert opinion that
particular criminal conduct benefitted a gang” is not only
permissible but can be sufficient to support [a] gang
enhancement.’ [Citations.] While an expert may render an
opinion assuming the truth of facts set forth in a hypothetical
question, the ‘hypothetical question must be rooted in facts
shown by the evidence.’ [Citation.] Indeed, an ‘expert’s opinion
may not be based “on assumptions of fact without evidentiary
support [citation], or on speculative or conjectural factors.” ’
[Citations.]” (Franklin, supra, 248 Cal.App.4th at pp. 948–949.)
c. Discussion.
Crockett contends there was insufficient evidence to
support a gang enhancement relating to the shooting at
apartment 187. He argues: “No one saw appellant fire the gun;
no one heard what appellant said, if anything, when he fired the
gun; and the evidence showed that appellant was the only person
in the apartment when he fired the gun. [¶] Notably, the
People’s gang expert did not offer the opinion that appellant
committed the shooting for the benefit of, at the direction of, or in
association with the gang; nor did the expert offer the opinion
that appellant had the specific intent to benefit the gang when he
fired the gun.”
We are not persuaded. As to the first prong, Detective
Rodriguez offered his opinion that Crockett had committed the
shooting for the benefit of the BPS gang because the reputation of
the gang was enhanced whenever gang members fought the

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police to try to avoid being taken into custody. As for Crockett’s
speculation that fellow gang members and community members
might never learn that Crockett resisted arrest, the jury
reasonably could have concluded that the appearance of a SWAT
unit at apartment 187 would have telegraphed Crockett’s actions
to the neighborhood.
As to the second prong, the gang enhancement’s specific
intent element requires only a “specific intent to promote,
further, or assist in any criminal conduct by gang members.”
(§ 186.22, subd. (b)(1) (italics added); see People v. Morales (2003)
112 Cal.App.4th 1176, 1198 [“specific intent to benefit the gang is
not required”].) This element may be satisfied even though
arguably the only gang member’s criminal conduct that was
furthered was the criminal conduct of defendant himself: “There
is no requirement in section 186.22, subdivision (b), that the
defendant’s intent to enable or promote criminal endeavors by
gang members must relate to criminal activity apart from the
offense defendant commits. To the contrary, the specific intent
required by the statute is ‘to promote, further, or assist in any
criminal conduct by gang members.’ [Citation.] Therefore,
defendant’s own [underlying offense] qualified as the gang-
related criminal activity. No further evidence on this element
was necessary.” (People v. Hill (2006) 142 Cal.App.4th 770, 774
[gang enhancement properly imposed where defendant
threatened victim with gun, after minor traffic accident, because
he felt victim had disrespected his gang].) Hence, the jury
reasonably could have inferred that Crockett’s act of shooting was
intended to promote criminal conduct by a gang member: he
acted both to further his gang’s reputation and to enhance his
own standing within the gang.

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Accordingly, substantial evidence supported the jury’s true
finding as to the gang enhancements relating to the shooting
incident at apartment 187.
2. Crockett has not established that admission of gang
expert testimony violated his confrontation rights or was
prejudicially erroneous.
Crockett contends that, under the California Supreme
Court’s recent decision in Sanchez, the admission of the
prosecution gang expert’s testimony violated both California
hearsay law and Crockett’s Sixth Amendment right of
confrontation. Crockett specifically asserts that Detective
Rodriguez impermissibly relied on testimonial hearsay in offering
his opinion that Crockett belonged to BPS because the opinion
was based on case-specific, out-of-court statements by persons
who did not testify and were not subject to prior cross-
examination. Crockett further contends that the admissible gang
evidence was insufficient to prove either that he was a member of
BPS or that his involvement in the pawnshop and police shooting
incidents were committed to benefit his gang.6 Based on the legal
6 The Attorney General argues Crockett forfeited this issue
by failing to object to Detective Rodriguez’s testimony on hearsay
or confrontation clause grounds at trial. However, any objection
would likely have been futile because the trial court was bound to
follow pre-Sanchez case law, which generally held that evidence
that was the “basis” for expert testimony is not admitted for its
truth, and thus, does not implicate the hearsay doctrine or the
confrontation clause. (See Sanchez, supra, 63 Cal.4th at p. 686,
fn. 13 [disapproving “prior decisions concluding that an expert’s
basis testimony is not offered for its truth, or that a limiting
instruction . . . sufficiently addresses hearsay and confrontation
concerns”].) We therefore address the merits of Crockett’s claim.

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principles set forth in Sanchez, we conclude that there was no
confrontation clause violation, and although the admission of
some of Detective Rodriguez’s testimony may have violated
California hearsay law, admission of this evidence amounted to
only harmless error.
a. The Sanchez decision.
This court recently summarized the Sanchez decision in
People v. Iraheta (2017) 14 Cal.App.5th 1228 (Iraheta), as follows:
“The Sixth Amendment provides that an accused has the
right to be confronted with the witnesses against him. (U.S.
Const., 6th Amend.; Sanchez, supra, 63 Cal.4th at p. 679.) In the
seminal case of Crawford v. Washington (2004) 541 U.S. 36, the
high court overruled its prior precedent and held that the Sixth
Amendment generally bars admission at trial of a testimonial
out-of-court statement offered for its truth against a criminal
defendant, unless the maker of the statement is unavailable to
testify and the defendant had a prior opportunity for cross-
examination. (Id. at p. 68; Davis v. Washington (2006) 547 U.S.
813, 821; Sanchez, at p. 680.) Although Crawford set forth a new
standard for admissibility, the court declined to provide a
comprehensive definition of ‘testimonial.’ (Crawford, at p. 68;
People v. Hill (2011) 191 Cal.App.4th 1104, 1134.) [¶] . . . [¶]
“In Sanchez, the defendant was charged with drug and
firearm offenses and active participation in the Delhi street gang,
along with a section 186.22 gang enhancement. At trial, a gang
expert relied upon a ‘STEP notice,’[7] police documents, and an FI
7 A STEP notice provides to the recipient information
regarding potential penalties for gang-related criminal activity.
The issuing officer also records the date, time, statements made

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card[8] as the basis for his expert opinion. Those documents
indicated Sanchez associated with, and had been repeatedly
contacted by police while in the presence of, Delhi gang members.
(Sanchez, supra, 63 Cal.4th at pp. 671–673.) The expert had
never met Sanchez and had not been present when the STEP
notice was issued or during any of Sanchez’s other police
contacts. His knowledge was derived solely from the police
reports and FI card. Based on the information in the STEP
notice, the police documents, and the FI cards, and the
circumstances of the offense at issue, the expert opined that
Sanchez was a member of the Delhi gang and the charged crimes
benefitted the gang. (Id. at p. 673.)
“Sanchez held ‘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.’ (Sanchez, supra,
at the time of the interaction, and identifying information.
(Sanchez, supra, 63 Cal.4th at p. 672.)
8 Sanchez described FI cards thusly: “Officers also prepare
small report forms called field identification or ‘FI’ cards that
record an officer’s contact with an individual. The form contains
personal information, the date and time of contact, associates,
nicknames, etc.,” and may record statements made at the time of
the interaction. (Sanchez, supra, 63 Cal.4th at p. 672.)

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63 Cal.4th at pp. 670–671.) Accordingly, the court reversed the
true findings on the street gang enhancements. (Id. at p. 671.)
“Sanchez drew a distinction between an expert’s general
knowledge and ‘case-specific facts about which the expert has no
independent knowledge. Case-specific facts are 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.) At common law, the distinction between case-specific
and background facts had been honored by the use of
hypothetical questions, in which an examiner could ask an expert
to assume certain case-specific facts for which there was
independent competent evidence. (Id. at pp. 676–677.) However,
over time the distinction between background information and
case-specific hearsay had become blurred, leading to the rule that
an expert could explain the ‘matter’ upon which he or she relied,
even if that matter was hearsay. (Id. at pp. 678–679.) California
law allowed such hearsay ‘basis’ testimony if a limiting
instruction was given; in cases where an instruction was
inadequate, the evidence could be excluded under Evidence Code
section 352. (Sanchez, at p. 679.)
“Overruling prior precedent, Sanchez concluded ‘this
paradigm is no longer tenable because an expert’s testimony
regarding the basis for an opinion must be considered for its truth
by the jury.’ (Sanchez, supra, 63 Cal.4th at p. 679.) ‘Once we
recognize that the jury must consider expert basis testimony for
its truth in order to evaluate the expert’s opinion, hearsay and
confrontation problems cannot be avoided 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

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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.’
(Id. at p. 684, italics added, fn. omitted.)
“Sanchez made clear that its holding did not do away with
all gang expert testimony. ‘Any expert may still rely on hearsay
in forming an opinion, and may tell the jury in general terms that
he did so,’ that is, he or she may ‘relate generally’ the ‘kind and
source of the “matter” upon which his opinion rests.’ (Sanchez,
supra, 63 Cal.4th at pp. 685–686.) ‘Gang experts, like all others,
can rely on background information accepted in their field of
expertise under the traditional latitude given by the Evidence
Code. They can rely on information within their personal
knowledge, and they can give an opinion based on a hypothetical
including case-specific facts that are properly proven. They may
also rely on nontestimonial hearsay properly admitted under a
statutory hearsay exception.’ (Id. at p. 685.) ‘What an expert
cannot do is relate as true case-specific facts asserted in hearsay
statements, unless they are independently proven by competent
evidence or are covered by a hearsay exception.’ (Id. at p. 686.)
“Thus, in regard to case-specific hearsay, Sanchez
‘jettisoned’ the former ‘not-admitted-for-its-truth’ rationale
underlying the admission of expert basis testimony, and
occasioned a ‘paradigm shift’ in the law. [Citations.]
“Sanchez then turned to consideration of what constitutes
testimonial hearsay, a question not yet clearly defined by the
United States Supreme Court. (Sanchez, supra, 63 Cal.4th at

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p. 687.) Prior testimony and police interrogations are clearly
testimonial. (Ibid.) Sanchez explained that beyond these clear
categories, the high court had articulated several formulations
for determining the testimonial nature of out-of-court statements.
Under the ‘primary purpose’ test, ‘[t]estimonial statements are
those made primarily to memorialize facts relating to past
criminal activity, which could be used like trial testimony.
Nontestimonial statements are those whose primary purpose is to
deal with an ongoing emergency or some other purpose unrelated
to preserving facts for later use at trial.’ (Sanchez, at p. 689.)
Whether the statements were spontaneous or given in a formal or
informal setting is also relevant. (Id. at pp. 693–694; see Ohio v.
Clark (2015) 576 U.S. ___ [192 L.Ed.2d 306, 135 S.Ct. 2173].)
Sanchez concluded that statements about a completed crime,
made to an investigating officer by a nontestifying witness
(unless made in the context of an ongoing emergency or for some
primary purpose other than preserving facts for use at trial),
were generally testimonial. (Sanchez, at p. 694.) Accordingly,
the police reports in Sanchez were testimonial. (Ibid.) Likewise,
at least the portion of a STEP notice retained by police is
testimonial. That portion records the defendant’s biographical
information, whom he was with, and what statements he made;
the officer’s purpose is to establish facts to be later used against
the defendant or his companions at trial; and the notice is part of
an official police form containing the officer’s sworn attestation.
(Sanchez, at pp. 696–697.)
“The court concluded FI cards ‘may be testimonial.’
(Sanchez, supra, 63 Cal.4th at p. 697.) Sanchez explained that
‘[i]f the card was produced in the course of an ongoing criminal
investigation, it would be more akin to a police report, rendering

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it testimonial.’ (Sanchez, at p. 697.) However, because the
parties had not focused on the point below, and the origins of the
FI cards at issue there were confusing, Sanchez did not decide
whether the content was testimonial or not, given that the
expert’s testimony based on the police and STEP reports required
reversal in any event. (Id. at pp. 697–698.)” (Iraheta, supra,
14 Cal.App.5th at pp. 1243–1246.)
b. Crockett has not established that Detective
Rodriguez’s expert opinion was based on testimonial hearsay;
thus, he has not established a violation of the confrontation
clause.
Crockett argues Detective Rodriguez’s expert opinion was
based on testimonial hearsay—i.e., on the extra-judicial
statements of the three non-testifying police officers to whom
Detective Rodriguez had spoken. Crockett argues: “Although
there was other evidence linking appellant to the Black P
Stones—namely his tattoos—the jury surely relied in part on the
improperly admitted fact that other, non-testifying officers
thought appellant was a Black P Stones member.” There was,
Crockett argues, prejudicial error in admitting this evidence.
We disagree. Detective Rodriguez opined that Crockett
was an active BPS gang member because “[h]e was observed . . .
frequenting with other gang members. He was frequenting gang
locations with gang tattoos, self-admitted to gang officers, and
was arrested for gang crimes.” Detective Rodriguez further
testified he knew Crockett’s two gang monikers “[b]y his self-
admission to former gang officers, . . . resources that I’ve used,
prior partners that I’ve worked with who have come into contact
with the defendant.” Although Detective Rodriguez’s opinion
about Crockett’s BPS membership thus appears to have been

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based, at least in part, on hearsay, Rodriguez’s testimony was too
general to allow us to determine whether the hearsay was
testimonial in nature, and thus violated the confrontation clause.
(See People v. Vega-Robles (2017) 9 Cal.App.5th 382, 413 [expert’s
testimony about information received from informants did not
violate confrontation clause where he “did not testify to any
particular statement made by any one person to him about [co-
defendant’s] gang affiliation,” and there was “no indication [the
information] was gathered as part of the investigation of
completed crimes, and none of the information was sworn. As
Sanchez makes clear, to violate Crawford, the out-of-court
statement must be made under circumstances that entail some
formality or solemnity”]; but see People v. Pettie (2017)
16 Cal.App.5th 23, 63 [confrontation clause violation occurred
where gang expert testified to detailed descriptions of defendant’s
gang-relating clothing and associations with known gang
members that had been gleaned from police reports documenting
completed crimes and written by officers unavailable for cross-
examination].)
Crockett asserts that “to the extent that Officer Rodriguez
did not give enough information to determine whether the
statements were testimonial . . . they should be treated as
testimonial.” But the failure to develop the record in this regard
does not redound to Crockett’s benefit. As the court held in
People v. Ochoa (2017) 7 Cal.App.5th 575, 584–585, 586 (Ochoa),
fn. omitted, italics added: “Had defendant lodged
contemporaneous [confrontation clause] objections during trial,
the People, as the proponent of the evidence, would have had the
burden to show the challenged testimony did not relate
testimonial hearsay. [Citations.] [¶] However, as no such

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contemporaneous objections were lodged, we cannot simply
assume the admissions of gang membership . . . were testimonial
hearsay . . . . [¶] . . . [¶] To summarize, it is possible the
admissions of gang membership related to the jury by [the
testifying expert] came from police reports or other records and,
thus, may have been testimonial hearsay under Sanchez.
However, due to defendant’s failure to object, the record is not
clear enough for this court to conclude which portions of the
expert’s testimony involved testimonial hearsay. Accordingly,
defendant has not demonstrated a violation of the confrontation
clause.” (See also People v. Vega-Robles, supra, 9 Cal.App.5th at
p. 415 [“Under Sanchez, it appears that testimony about a
nonparty’s out-of-court admission that he or she is a gang
member, offered to prove he or she is a gang member, is hearsay.
[Citation.] However, no Crawford objection was interposed as to
the classification forms on which [the witness] made his
admissions, and the record does not contain sufficient
information from which we can determine whether the
classification documents in which [the witness’s] admissions were
recorded rendered his admissions testimonial or not.”].)
Accordingly, Crockett has not demonstrated a violation of the
confrontation clause.
c. Any violations of state hearsay law were
harmless error.
Crockett did not object at trial to admission of the
challenged testimony on hearsay grounds. Nonetheless, there is
an arguable claim that, under Sanchez, admission of some of the
expert’s testimony at issue violated California hearsay law.
Thus, we consider whether the jury’s gang enhancement findings
were prejudicially impacted by the improper admission of

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hearsay evidence under People v. Watson (1956) 46 Cal.2d 818.
(See People v. Fuiava (2012) 53 Cal.4th 622, 671 [harmless error
test for wrongful admission of evidence is Watson test of whether
it is reasonably probable more favorable result would have been
reached without the error].)
It seems clear that the hearsay at issue in the present
case—Crockett’s monikers and his self-admission of his gang
membership to other officers—is case-specific, rather than
general background. However, although Detective Rodriguez
arguably related inadmissible hearsay to the jury, it is not
reasonably probable Crockett was prejudiced by its admission
because there was other, significant, non-hearsay evidence
tending to prove Crockett’s gang membership. That evidence
included the following:
(1) Tattoo evidence: Detective Rodriguez testified that
Crockett had two body tattoos that signaled his membership in
the BPS gang. First, the letters “BPS” were tattooed across the
back of Crockett’s neck, and Detective Rodriguez testified this
was one of the “more common tattoos” worn by BPS members.
Second, Crockett’s torso bore a tattoo depicting a large, stylized
dollar-sign, which—according to Detective Rodriguez—signaled
that “Crockett is part of the inner cli[que] within the Jungles
[(itself a subset or clique of the BPS gang) which was named] the
Stevely Crew.”9
9 Hence, Crockett’s Stevely tattoo was not the kind of
generic, not-necessarily-a-gang-tattoo at issue in People v.
Iraheta, supra, 14 Cal.App.5th at p. 1254 [tattoo evidence was
“comparatively weak” where “defense gang expert testified that a
‘West L.A.’ tattoo did not necessarily indicate gang membership.
Tattoos are ubiquitous, and ‘West L.A.’ does not indubitably

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(2) Detective Rodriguez’s testimony regarding Crockett’s
association with other known BPS members: Detective Rodriguez
identified the person standing next to Crockett in the Myspace
photograph as Christopher Singh, whom Detective Rodriguez
personally knew to be a member of BPS.10 Two other police
officers, Officer Corso11 and Detective Washington, also testified
Singh was present in apartment 187 at the time of the police
raid. Detective Rodriguez also testified that he had examined
surveillance footage from the attempted pawnshop robbery and
had identified Baleegh Brown, whom he personally knew to be an
active BPS member, to be one of the three participants. Finally,
Detective Rodriguez testified that he personally knew
J.B. Jennings, whom Officer Corso testified had run from
apartment 187 shortly before the police raid, to be a member of
the Jungles clique of the BPS gang.
(3) Detective Washington’s testimony regarding his efforts
to locate Crockett: LAPD Detective Washington testified that
because of his expertise regarding the BPS gang, police
investigators came to him for help in locating Crockett following
signify gang allegiance in the way that a more specific tattoo,
such as ‘Inglewood 13,’ would.”].) Rather, testimony regarding
Crockett’s Stevely tattoo was precisely the kind of testimony held
admissible by our Supreme Court to establish gang membership.
(See Sanchez, supra, 63 Cal.4th at p. 677.)
10 Detective Rodriguez testified he had had numerous
contacts with Singh and knew him to be a BPS gang member.
11 LAPD Officer Alfred Corso, part of the SWAT team
involved in Crockett’s arrest, testified that he saw Singh run
from apartment 187 just before Crockett started shooting.

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the Wachovia Bank and pawnshop crimes. Although Detective
Washington had not had any direct personal contact with
Crockett, he testified he was familiar with Crockett: “. . . I had
seen him in [BPS territory] over the years that he’s been a
member of the Black P Stone gang.” Detective Washington
testified he knew that the BPS gang had taken control of
apartment 187 from its tenant, Richard Bowens, and that gang
members were using the apartment for drug trafficking.
Detective Washington testified that by talking to people (both
gang members and other citizens) in the area where Crockett
hung out, he located several residences frequented by Crockett,
one of which was apartment 187. Detective Washington was
insistent that he had not done any special research to prepare his
trial testimony because he “was familiar with [Crockett] through
other gang members and other citizens and community members
within the area that he resided and committed crimes.”
Taken together, the totality of this non-hearsay evidence
provided overwhelming proof that Crockett was a BPS member.
Accordingly, the admission of hearsay testimony to establish
Crockett’s gang membership was harmless.
3. The jury properly found Crockett guilty of premeditated
attempted murder.
Crockett contends that the jury’s finding that the
attempted murder of the pawnshop victim was premeditated was
based on a “natural and probable consequences” theory of
liability, and thus that it must be reversed. We disagree.
In People v. Favor (2012) 54 Cal.4th 868 (Favor), our
Supreme Court held: “[W]ith respect to the natural and probable
consequences doctrine as applied to the premeditation allegation
under section 664(a) [the statute defining premeditated

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attempted murder], attempted murder – not attempted
premeditated murder – qualifies as the nontarget offense to
which the jury must find foreseeability. Accordingly, once the
jury finds that an aider and abettor, in general or under the
natural and probable consequences doctrine, has committed an
attempted murder, it separately determines whether the
attempted murder was willful, deliberate, and premeditated. [¶]
Under the natural and probable consequences doctrine, there is
no requirement that an aider and abettor reasonably foresee an
attempted premeditated murder as the natural and probable
consequence of the target offense. It is sufficient that attempted
murder is a reasonably foreseeable consequence of the crime
aided and abetted, and the attempted murder itself was
committed willfully, deliberately and with premeditation.” (Id. at
pp. 879–880.) People v. Chiu (2014) 59 Cal.4th 155 [(Chiu)],
subsequently held that “an aider and abettor may not be
convicted of first degree premeditated murder under the natural
and probable consequences doctrine. Rather, his or her liability
for that crime must be based on direct aiding and abetting
principles. [Citation.]” (Id. at pp. 158–159, second italics added.)
Crockett argues the reasoning of Chiu “compels the
overruling of Favor.” Crockett also notes that Favor may be
overruled in the future because our Supreme Court has granted
review in People v. Mateo (rev. gtd. May 11, 2016, S232674.) to
decide the following issue: “In order to convict an aider and
abettor of attempted willful, deliberate and premeditated murder
under the natural and probable consequences doctrine, must a
premeditated attempt to murder have been a natural and
probable consequence of the target offense? In other words,
should People v. Favor[, supra,] 54 Cal.4th 868 be reconsidered in

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light of Alleyne v. United States (2013) [570 U.S. 99] [133 S.Ct.
2151] and People v. Chiu (2014) 59 Cal.4th 155?”
In his reply brief, Crockett acknowledges the Attorney
General’s point that so long as Favor remains good law it must be
followed by this court. (See Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.) The Attorney General is
correct. Until our high court overrules Favor, it remains good
law and precludes Crockett’s argument that he must have
personally foreseen the premeditated nature of the attempted
murder and cannot be sentenced to life imprisonment without a
jury finding of that fact.
4. Sentencing claim based on new statutory authority.
Crockett contends he is entitled to the benefit of Senate Bill
620, which went into effect on January 1, 2018. We agree.
In post-argument briefing, Crockett contends that, as a
result of Senate Bill 620, signed by Governor Brown on October
11, 2017, this matter must be remanded for the trial court to
exercise discretion as to whether to strike the section 12022.53
enhancement. As relevant here, Senate Bill 620 provides that
effective January 1, 2018, section 12022.53 is amended to permit
the trial court to strike a sentencing enhancement under that
section. The new provision states as follows: “The court may, in
the interest of justice pursuant to Section 1385 and at the time of
sentencing, strike or dismiss an enhancement otherwise required
to be imposed by this section. The authority provided by this
subdivision applies to any resentencing that may occur pursuant
to any other law.” (Stats. 2017, ch. 682, § 2.)
Senate Bill 620 went into effect January 1, 2018. Because
appellant’s conviction is not yet final, appellant is eligible to have
the matter remanded for resentencing because the amended

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statute granting discretion to the trial court has the potential to
lead to a reduced sentence. (See In re Estrada (1965) 63 Cal.2d
740, 748 [for a non-final conviction, “where the amendatory
statute mitigates punishment and there is no saving clause, the
rule is that the amendment will operate retroactively so that the
lighter punishment is imposed”]; People v. Francis (1969)
71 Cal.2d 66, 75–78 [where statute enacted during pending
appeal gave trial court discretion to impose a lesser penalty,
remand was required for resentencing].)
5. The gang enhancements and articulation of sentence.
When the trial court sentenced Crockett, it noted that the
jury had made true findings as to the charged gang
enhancements. Nonetheless, the court neither imposed nor
struck the additional punishment associated with those findings,
stating that such additional punishment was not applicable
under People v. Lopez (2005) 34 Cal.4th 1002, 1006 [holding that
a gang-related first-degree murder could not be enhanced by
10 years as a violent felony under section 186.22, subdivision
(b)(1)(C), but “[fell] within that subdivision’s excepting clause and
is governed instead by the 15-year minimum parole eligibility
term” of section 186.22, subdivision (b)(5)]. The court explained
as follows: “As pointed out by the district attorney and
referenced in People [v.] Lopez, the court is apprised of the fact
that the 10-year enhancement [(§ 186.22, subd. (b)(1)(C))] is not
applicable to the life sentences in this matter and that its impact
is only the minimum eligibility parole date which is 15 years
[(§ 186.22, subd. (b)(5))]. In light of the sentences, in essence,
[section 186.22, subd. (b)(5)] does not have any application
because the sentences are in excess of the 15-year parole
eligibility minimum in this matter.”

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In a letter dated January 16, 2018, we asked the parties to
address in supplemental briefs whether the trial court’s failure to
either strike or impose sentence in connection with true findings
on the gang enhancements resulted in an unauthorized sentence.
The parties did so on January 19 and 26, 2018.
Having considered the parties’ responses, we conclude that
as to counts 6, 7, 8, and 9, the trial court was required to either
impose or strike the additional punishment associated with the
gang enhancements. In People v. Montes (2003) 31 Cal.4th 350,
352 (Montes), our Supreme Court held that the Lopez rule applies
“only if the defendant commits a felony that, by its own terms,
provides for a life sentence.” (Italics added.) The felonies of
which defendant was convicted in counts 6, 7, 8, and 9 did not “by
[their] own terms” provide for a life sentence; instead, those
felonies carried determinate base terms, to which were added 25-
year-to-life enhancements pursuant to section 12022.53,
subdivision (d). Accordingly, the trial court was required to
impose or strike “an additional term of 10 years” for counts 6, 7,
8, and 9, pursuant to section 186.22, subdivision (b)(1)(C).
The trial court also was required to impose or strike the
additional punishment associated with the gang enhancement as
to count 4. As to count 4, the court imposed a life sentence on the
base term (making defendant eligible for parole in seven years)
(§ 3000.1, subd. (a)(2)), to which was added a 25-year-to-life
enhancement pursuant to section 12022.53, subdivision (d).
Accordingly, under Montes, the court was required to either
impose or strike a 15-year minimum parole eligibility on the base
term pursuant to section 186.22, subdivision (b)(5).
Finally, as to count 22, the court imposed a five-year base
term, with no additional sentence for the gang enhancement.

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Under section 186.22, subdivision (b)(4)(B), however, the court
was required to sentence defendant to an indeterminate term of
15 years to life.
On remand, therefore, we direct the court to either strike or
impose sentence pursuant to section 186.22 as to counts 4, 6, 7, 8,
and 9; and to apply the alternative sentencing scheme of section
186.22, subdivision (b)(4)(B), as to count 22. We further direct
the trial court on remand to separately articulate the
determinate and indeterminate portions of the defendant’s
sentence, as required by section 669, subdivision (a).
DISPOSITION
The judgment of conviction is affirmed. The matter is
remanded for resentencing in a manner consistent with this
opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J. DHANIDINA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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