P. v. Atkins

Filed 8/21/17 P.v. Atkins CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
DESHON ATKINS,
Defendant and Appellant.
B278735
(Los Angeles County
Super. Ct. No. YA093316)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Hector M. Guzman, Judge. Affirmed as
modified.
Stephen M. Hinkle, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Timothy L. O’Hair, Deputy Attorney General,
for Plaintiff and Respondent.

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INTRODUCTION
Based primarily on evidence provided by law enforcement
witnesses, a jury convicted defendant and appellant Deshon
Atkins of the willful, deliberate, and premeditated attempted
murders of Mark Beasley (count 4) and Dashon Wright (count 5)
and found gang and gun enhancements to be true.1 On appeal,
defendant contends insufficient evidence supports his conviction
for the attempted murder of Beasley and the gang enhancements;
the prosecutor committed misconduct in closing argument, and
defense counsel failed to object; and the trial court erred in failing
to award him presentence conduct credit. The Attorney General
concedes the latter point, and we modify defendant’s abstract of
judgment to reflect 235 days of presentence conduct credit. In all
other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Other than one eyewitness who described the shootings,
but could not describe the shooters, virtually all the trial evidence
came from investigating officers and a gang expert. We recount
their testimony concerning the charges involving Beasley and
Wright.2
1 The jury acquitted defendant of three other counts of
attempted murder arising out of a separate incident that
occurred a week earlier.
2 As noted, defendant was acquitted of charges in the
unrelated crimes, and we omit a recitation of the facts concerning
those offenses.
We set forth only a summary of the offenses and the
investigation here. Facts specific to the defendant’s appellate
issues will be detailed post.

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The 107 Hoover Criminals and 10-Deuce Budlong Gangster
Crips are rival gangs. A member of the 107 Hoover Criminals
was murdered on April 2, 2012. Later that same evening,
Beasley and Wright, members of 10-Deuce Budlong Gangster
Crips, were standing on 102nd Street near Normandie when a
gray or white Acura pulled up and blocked a driveway. An
eyewitness stepping out of her car across the street heard
someone in the car shout “Hoover.” The eyewitness heard
popping noises and ran for cover.
Wright was shot in his left leg and ankle, right thigh, left
wrist, and back. Beasley was shot in his right middle finger.
Los Angeles County Sheriff’s Department Detective Levi
Belvillle responded to the scene of the shooting and was informed
a silver sedan was involved. A few hours later, Detective Belville
spotted a silver Acura traveling at a high rate of speed. He
attempted to pull over the car, but it did not stop. During the
pursuit, two firearms were thrown from the Acura. Eventually,
the Acura crashed.
Defendant, a member of the 107 Hoover Criminals, and
another gang member got out of the car and ran. A third firearm
was tossed during the foot chase. Defendant was apprehended.
His hands tested positive for gunshot residue.
Detective Belville retrieved the firearms thrown from the
Acura. Nineteen cartridge cases and one expended bullet
collected at the scene of the 102nd Street shooting were
determined to have been fired from the recovered firearms.
There were no fingerprints on the weapons. The third firearm
was not found.
Los Angeles County Sheriff’s Department Detective Derek
White was assigned as the lead investigator for the

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Beasley/Wright shootings. Detective White met with Wright on
three occasions after the shooting. The first time was the
following day, while Wright was in the ICU. The second time
was a month later as Wright was preparing for his fourth
surgery. On that occasion, May, 9, 2012, he showed Wright a six-
pack photographic lineup containing defendant’s photograph.
Wright did not identify defendant as one of the shooters. The
third interview was the next year, in 2013. Portions of the
interviews were recorded, and the recordings were played for the
jury.
Wright told an investigating officer he believed the 107
Hoover Criminals suspected the 10-Deuce Budlong Gangster
Crips were involved in the murder earlier in the day on April 2,
2012, 107 Hoover Criminals shot in retaliation. Wright said
Beasley was his best friend and was with him during the attack.
DISCUSSION
I. Sufficiency of the Evidence to Support Defendant’s
Conviction for Attempted Murder of Beasley
Defendant contends the only evidence of Beasley’s presence
at the scene of the shooting was hearsay testimony admitted not
for its truth, but solely to impeach Wright. Alternatively, he
argues evidence of Beasley’s presence, if properly admitted, was
unpersuasive. We disagree and find sufficient evidence supports
the conviction.3
3 Defendant also discusses at length the transferred intent
and “kill zone” doctrines, but does not expressly tie them to an
appellate issue. The argument appears to suggest that Wright,
with multiple gunshot wounds, and not Beasley, struck only in

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A. Standard of Review
In People v. Edwards (2013) 57 Cal.4th 658, the Supreme
Court set forth the standard of review when evaluating a
challenge to the sufficiency of the evidence: “‘[W]e 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.’” (Id. at p. 715.) In considering
whether substantial evidence supports a conviction, “we do not
reweigh the evidence, resolve conflicts in the evidence, draw
inferences contrary to the verdict, or reevaluate the credibility of
witnesses.” (People v. Little (2004) 115 Cal.App.4th 766, 771.)
B. Trial Evidence
Beasley was in state prison at the time of defendant’s trial.
No evidence was offered as to any out-of-court statements he
might have made to law enforcement investigating the shootings.
Wright did appear at trial on July 25, 2016, under the
compulsion of a subpoena. With a fair amount of prompting, he
described his gunshot wounds and surgeries and the general
layout of the neighborhood where the shooting occurred. He
admitted he went to high school with Beasley. Otherwise he
remembered very little, e.g., “I don’t remember nothing,” “I just
woke up in the hospital,” “I don’t remember talking to any police.”
When asked a series of questions about whether he told
investigating officers details of the shooting and the perpetrators,
his invariable responses were “No, ma’am” or “No.”
his finger, was the intended target. No substantial evidence
supports the application of either doctrine.

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The prosecutor asked Wright, “Did you tell the
detectives . . . that you were best friends with Mark Beasley who
was the other victim of the shooting?” After he responded, “No,
ma’am,” defense counsel moved to strike that portion of the
question asking whether Beasley “was the other victim of the
shooting” on the basis it lacked foundation. The trial court
overruled the objection. Counsel initially asked to approach for a
sidebar, but the trial court provided the jurors with a routine
admonition that advised in part, “an attorney may ask a question
that assumes the existence of a fact. Unless the witness or other
evidence in the case supports that, the attorney’s question itself
is not evidence. . . .” Defense counsel withdrew her request to
approach and advised, “I will clarify on cross, your Honor.” She
did not return to the subject on cross-examination, however.
Wright was not the first or last witness whose memory
failed. Several witnesses later, the trial court advised counsel
outside the jury’s presence: “[S]uffice it to say that with these
witnesses, I allowed the prosecutor to impeach them with these
prior consistent statements. If the record doesn’t bear this out, I
should indicate this court has found their answers were evasive
and false, qualifying for examination under Evidence Code
section 770.”
Later that same day (July 25, 2016), Detective White took
the stand and the following exchange occurred without objection:
“[Prosecutor]: Did Dashon [Wright] ever tell you about
Mark Beasley being shot the same day he was at the same
location?
“[Detective White]: In prior interviews we discussed that,
yes.
“Q What did he tell you then?

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“A That they were standing outside of 102nd, hanging
out, and that’s when the Acura drove up and Mark had been shot
as well as him during that incident.”
There was a break in the trial, and Detective Wright
resumed his testimony on August 3, 2016. The detective had
recorded portions of his interviews with Wright, and they were
played for the jury. There was no mention of Beasley in the
recorded interviews, and the prosecutor picked up that thread:
“[Prosecutor]: . . . [I]t’s not on the recording. Did you ever
ask [Wright] about who he was with or if he was with [Mr.]
Beasley which has come up during this trial?
“[Detective White]: We had spoken about that, yes.
“Q What did he say about Mark Beasley?
“[Defense Counsel]: Objection. Hearsay.”
With that objection, court and counsel adjourned to the
hallway for an on-the-record sidebar:
“[Defense Counsel]: . . . I think at this point we’re getting
to where this officer is not only trying to impeach Mr. Wright who
claimed at one point he was with Beasley and another point he
said he didn’t know Mr. Beasley─I think People are getting close
to offering it for the truth of the matter that Mr. Beasley, in fact,
was with Mr. Wright and got injured, and . . . that would be
absolute hearsay, admitted for the truth of the matter─I would
ask [the jury] be instructed that it should only be considered as to
whether or not Mr. Wright told the truth about his relationship
with Mr. Beasley.” (Italics added.)
The trial judge asked whether the prosecutor was “trying to
elicit from the detective statements made by Mr. Wright for
impeachment purposes.” The prosecutor responded, “Not for the
truth of the matter. I have an officer that will testify he went to

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the hospital, saw the injury to Mark Beasley on the same date and
time.” (Italics added.)
The trial judge asked defense counsel if she sought an
instruction that the jurors “ought not to consider it for the truth
of the matter asserted?” Defense counsel responded, “Only as it
impeaches or substantiates.” She added, “Just a cautionary
instruction. It’s been offered to impeach previous statements
made by Mr. Wright.”
Court and counsel wrapped up the discussion and when
they returned to the courtroom, the trial judge told the jurors the
prosecutor was about to ask a question “that sounds as if it may
be interpreted as being offered for the truth of the matter
asserted. That’s why [defense counsel] objected.” The court
added, “these particular statements that were allegedly made by
Mr. Wright to Detective White are not being offered for the truth
of the matter asserted but being offered for the purpose of
impeaching, impeaching or substantiating the testimony of Mr.
Wright.”
The following exchange then occurred:
“[Prosecutor]: . . . in regards to Mr. Dashon Wright in this
interview, did he tell you anything about Mark Beasley, or if he
was with Mark Beasley, anything of that nature?
“[Detective White]: He did say he was with Mark Beasley
at the time of the shooting. Yes.
“Q Did he tell you if he witnessed Mark Beasley get any
injuries?
“A He knew Mark had been shot too. Yes.
“[Defense Counsel]: Motion to strike. That answer is
nonresponsive. It required a yes or no. It went beyond the
court’s ruling.

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“The Court: Overruled. [¶] Again, I think it makes a little
bit more sense. These last two answers by the detective again are
not being offered for the truth of the matter asserted but to
impeach or substantiate statements previously made by Mr.
Wright on this particular topic. [¶] You may proceed.” (Italics
added.)
The prosecutor did so, moving on to a different topic.
Later that day, rather than call a witness to testify Beasley
had been shot in the finger, the parties stipulated to that fact.
At the close of the prosecution case, defendant moved for
acquittal on the Beasley attempted murder count: “I think there
is absolutely no evidence of an attempted murder of Mark
Beasley, period.” The prosecutor countered with, “It was the
impeachment of Dashon Wright. . . . [Beasley] was with Dashon
at the time at the scene . . . .” The trial judge asked whether that
was “problematic . . . [b]ecause didn’t we discuss the limited
nature of that testimony, that it’s not being offered for the truth
of the matter asserted? The prosecutor essentially replied it was
a question for the jury. There was no additional argument, and
the trial court denied the motion.
C. Analysis
A statement “made other than by a witness while testifying
at the hearing . . . that is offered to prove the truth of the matter
stated” is hearsay. (Evid. Code, § 1200, subd. (a).) “Except as
provided by law, hearsay evidence is inadmissible.” (Evid. Code,
§ 1200, subd. (b).)
As defendant asserts, Detective White’s testimony
concerning Wright’s statement placing Beasley at the scene of the
shootings was hearsay. That brief testimony was elicited twice:

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first on July 25, 2016, the same day Wright denied telling
Detective White that Beasley was there, and a second time on
August 3, 2016. On the first occasion, the testimony was received
without a hearsay objection or a court admonition to the jury.4 A
hearsay claim as to the July 25, 2016 testimony now has been
forfeited. (People v. Wheeler (1992) 4 Cal.4th 284, 300.)
The failure to object does not alter our analysis, however.
The trial court properly would have overruled a timely objection
based on its finding that witnesses, including Wright, were
intentionally evasive. Before Detective White offered this
testimony, the trial court advised counsel the provisions of
Evidence Code sections 770 and 1235 applied. Under oath,
Wright denied ever talking to Detective White, much less telling
him Beasley was present. The detective testified concerning
Wright’s inconsistent statements, and jurors were properly
instructed they could consider that testimony for its truth. (See,
e.g., People v. Homick (2012) 55 Cal.4th 816, 859 (Homick);
CALCRIM No. 318.5)
4 On July 25, 2016, defense counsel objected on the basis of
lack of foundation, but that objection was overruled.
5 The trial court instructed the jury with CALCRIM 318 as
follows:
“You have heard evidence of statements that a witness
made before the trial. If you decide that the witness made those
statements, you may use those statements in two ways:
“1. To evaluate whether the witness’s testimony in court
is believable;
“AND
“2. As evidence that the information in those earlier
statements is true.”

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On the second date, August 3, 2016, defense counsel did
lodge a hearsay objection before Detective White could testify as
to what Wright told him about Beasley. That led to the on-the-
record discussion reproduced above and the trial court’s
admonition to the jury. Our review of the transcript persuades
us the detective’s testimony concerning whether Beasley was shot
was not offered for the truth,6 and the jury was properly so
instructed.7
But the detective also reiterated his earlier testimony that
Wright told him Beasley was at the scene of the shooting. While
the sidebar focused on Beasley’s injuries, the trial court’s
admonition was not so limited. The admonition can be fairly read
as encompassing both aspects of Detective White’s testimony. To
the extent the trial court’s admonition applied to evidence
Beasley was standing with Wright when the shooting began, it
was inconsistent with the court’s earlier ruling under Evidence
Code sections 770 and 1235.
The inconsistency only could have inured to defendant’s
benefit, however. The jury was properly instructed with
CALCRIM Nos. 224 [if there are “two or more reasonable
conclusions . . . and one points to innocence and another to guilt,
6 That fact was established later the same day by stipulation.
7 CALCRIM No. 303 advised, “During the trial, certain
evidence was admitted for a limited purpose. You may consider
that evidence only for that purpose and for no other.”
Despite Wright’s recalcitrance, the record suggests he did
not see Beasley shot and anything he said to Detective White
would have been hearsay, making the detective’s testimony
double hearsay.

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you must accept the one that points to innocence”], 302 [how to
evaluate conflicting evidence], 303, and 318.
Moreover, the inconsistency did not appear to engender
confusion during trial as to the admissibility of the evidence. The
prosecutor referenced Beasley only briefly in her initial closing
argument and not at all in her rebuttal.8
Defense counsel’s closing argument stressed the paucity of
the evidence placing defendant at the scene of the shooting:
“There is very suspect testimony through tape recording that
[defendant] was present at the time of the shooting of Dashon
Wright that I would submit to you that that was based on police
suggestion and inference as opposed to Dashon Wright’s
recollection.” She had this to say about Beasley:
As far as Mark Beasley goes, we don’t know
who he is, where he is─well, we know where
he is now. But at the time of the offense, you
know, Dashon Wright initially said he wasn’t
even there, and all of a sudden he is there.
Nobody could identify him. I do think there is
some kind of karma in the fact that [Deputy]
Castaneda made such a big deal about the
middle finger with the gang sign showing
disrespect and supposedly the only injury Mr.
8 The prosecutor’s only comments concerning Beasley were:
“And Mark Beasley, you did not hear from Mark Beasley, yet a
fifth gangster, and he is serving time in prison and could not join
us, but what we know about Mark Beasley─and he is alleged as a
victim nonetheless. You didn’t get to hear from him. You didn’t
get to see him, but you heard evidence that he was standing on
the street with Dashon Wright, and you heard evidence that he
ended up in the hospital too with a gunshot wound to his finger.”

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Beasley received was a gunshot to his middle
finger. But I don’t know what he was doing
with [his middle finger] before that, and we
don’t really have any evidence of it, just an
officer said he saw an injury to his middle
finger. But perhaps that is the only karma
that resulted out of this case.”
Defense counsel characterized the case against defendant
as being based on “a lot of speculation, a lot of inconsistencies,
a lot of lies because . . . all the witnesses lied or committed
perjury . . . . We’ve got police work that was never really
completed, never undertaken seriously.” She added, “If evidence
is susceptible to two interpretations and both of those
interpretations are reasonable and one points to guilty and one
points to not guilty, you must adopt the one that points to not
guilty.”
The requirements of Evidence Code sections 770 and 1235
were met. At trial, Wright persistently denied making any
statements to Detective White, including those that were
preserved on audio recordings played for the jury. While
Wright’s statement concerning Beasley’s presence at the scene
was not recorded, his denials at trial justified the trial court’s
decision to permit the detective to repeat the Beasley statement
and the jury to consider it for the truth. (Homick, supra, 55
Cal.4th at p. 859 [“As long as there is a reasonable basis in the
record for concluding that the witness’s ‘I don’t remember’
statements are evasive and untruthful, admission of his or her
prior statements is proper”].) We recognize the jury was given an
inconsistent admonition during the evidentiary portion of the

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trial. Any error on that score was harmless, however, in light of
the jury instructions.9
Alternatively, defendant contends the evidence of Beasley’s
presence was insufficient because it was not corroborated by any
of the recorded Wright interviews. Corroboration was not
necessary and, as the jury was instructed, the testimony of one
witness was sufficient. (CALCRIM No. 301.)
Based on our conclusion concerning the admissibility of the
impeachment evidence for its truth, it is not necessary to
separately address defendant’s related claims of prosecutorial
misconduct and ineffective assistance of trial counsel. The jury
did hear “evidence that [Beasley] was standing on the street with
Dashon Wright, and . . . he ended up in the hospital too with a
gunshot wound to his finger.” There was no misconduct in the
prosecutor’s so arguing. Without prosecutorial misconduct,
defense counsel did not provide ineffective assistance by failing to
object.
II. Sufficiency of the Evidence to Support the Gang
and Firearm Enhancements
Defendant contends insufficient evidence supports the gang
enhancements because the trial court erred in permitting the
prosecution to adduce case-specific testimonial hearsay to
establish the predicate offenses for those enhancements in
violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
With insufficient evidence to support the gang enhancements,
defendant contends the Penal Code section 12022.53,
9 Defendant does not assert any instructional error.

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subdivisions (d) and (e)(1)(a)10 firearm enhancement must also be
reversed. We disagree with defendant’s arguments as to the gang
enhancements and do not reach the companion claim concerning
use of a firearm.
A. Standard of Review
We review a challenge to the sufficiency of the evidence to
support a gang enhancement under the same principles as those
related to a substantive offense. (People v. Villalobos (2006) 145
Cal.App.4th 310, 321-322.)
B. Gang Evidence
Los Angeles County Deputy Sheriff Ernesto Castaneda, an
11-year veteran of the department, testified as the prosecution’s
expert on the 107 Hoover Criminals gang.11 Between 2008 and
2013, Deputy Castaneda was assigned to patrol out of the
Lennox/South L.A. Station. That station served part of the
territory claimed by the 107 Hoover Criminals. The 10-Deuce
Budlong Gangster Crips also claimed territory in the geographic
area served by the Lennox/South L.A. Station. During his patrol
years, the deputy had personal contacts with members of both
gangs. Deputy Castaneda became a gang investigator in 2013.
By the time of this trial, he had testified as a gang expert on
10 All statutory references are to the Penal Code.
11 Deputy Castaneda testified one month after the Supreme
Court issued Sanchez, supra, 63 Cal.4th 665. From the
transcript, we infer this was the first trial for the trial judge and
counsel under Sanchez, and they engaged in several dialogues
concerning how to comply with the requisites of the decision.

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more than a dozen occasions, including as an expert on the
10-Deuce Budlong Gangster Crips.
Deputy Castaneda received law enforcement academy
training on gang and gang culture. During his years on patrol,
he arrested and assisted in arrests of “hundreds” of individuals,
most of whom were gang members. He testified concerning gang
culture in general and the 107 Hoover Criminals in particular.
He described the 107 Hoover Criminals territory and the signs,
symbols, and tattoos favored by members of that gang.
The gang expert identified the 10-Deuce Budlong Gangster
Crips as a 107 Hoover Criminals’ rival. Deputy Castaneda knew
both Wright and Beasley from personal contacts. On the witness
stand, he identified both of them from photographs.12
In terms of the predicate offenses to support the gang
enhancement (§ 186.22; People v. Ochoa (2017) 7 Cal.App.5th
575, 581), the prosecution offered the following testimony:
“Q What are the primary activities of the Hoover
Criminals?
“A Primary activities range from burglaries to
possession of firearms, robberies, strong arm and armed, to
vandalism, assaults with and without firearms, including
attempt murders.
“Q Are you familiar with a person by name of
Demageo . . . Hall?
“A Yes.
“Q Who is that?
“A He is a member of the 107 Hoover Criminals with the
moniker of Infant Snap.
12 All prosecution exhibits were received into evidence at the
conclusion of the People’s case in chief.

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“Q What’s the basis for our knowledge of him?
“A Mr. Hall was involved in an incident which was ─
which Detective White was a gang expert in. Also I’ve had
personal patrol contact with Mr. Hall during my time on patrol
between 2008 and 2013.”
At this point, the prosecutor introduced a certified court
docket of Mr. Hall’s 2011 conviction for murder and attempted
murder. She then resumed her questioning of Deputy
Castaneda:
“Q And, [Deputy], let me ask you, were you familiar with
this particular case that Mr. Hall has the conviction on?
“A Yes.
“Q How are you familiar?
“A I spoke with─I spoke with Detective White who is the
gang expert on that specific case.”13
The prosecutor then introduced a second certified court
docket pertaining to Darius DeAnthony Smith evincing two 2011
convictions for attempted murder. She returned to Deputy
Castaneda:
“Q Are you familiar, [Deputy], with Darius Smith?
“A Yes.
“Q How are you familiar with him?
“A Through patrol contact through my time working
patrol at Lennox Station[/]South L.A. station. Also, as I spoke to
Detective Navarette who was the investigating officer and gang
expert on that specific case.
“Q And was Mr. Smith a member of the 107 Hoover
Criminals?
13 There was no evidence this was the same detective who
investigated this shooting.

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“A Yes. With a moniker of Tiny Sinbad.
“Q Were both of those members of the 107 Hoover
Criminals, Mr. Smith and Mr. Hall, when these crimes occurred?
“A Yes.
Concerning defendant, Deputy Castenada had seen him in
the company of individuals he knew belonged to the 107 Hoover
Criminals on “multiple” occasions and spoken with him
“approximately three times” before this trial. The gang expert
was familiar with defendant’s tattoos. He explained their
significance and relationship to the 107 Hoover Criminals.
Deputy Castaneda returned to the stand later in the trial.
He described the gang significance of photographs retrieved from
defendant’s cell phone. He also answered a prosecution
hypothetical based on the facts of the Wright/Beasley shooting
and gave his opinion that the shooting was “in association with
and for the benefit of a gang.”
Defense counsel’s cross-examination was limited. She only
asked the gang expert whether, in his experience, drivers
pursued by the police who throw items out the window and fail to
stop are not always gang members.
C. Analysis
In Sanchez, supra, 63 Cal.4th 665, our Supreme Court
observed, “The hearsay rule has traditionally not barred an
expert’s testimony regarding his general knowledge in his field of
expertise. . . . [¶] By contrast, an expert has traditionally been
precluded from relating 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. . . . The expert is generally

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not permitted, however, to supply case-specific facts about which
he has no personal knowledge.” (Id. at p. 676.)
The Sanchez court summed up its holding as follows:
“When any expert relates to the jury case-specific out-of-court
statements, and treats the content of those statements as true
and accurate to support the expert’s opinion, the statements are
hearsay. It cannot logically be maintained that the statements
are not being admitted for their truth. If the case is one in which
a prosecution expert seeks to relate testimonial hearsay, there is
a confrontation clause violation unless (1) there is a showing of
unavailability and (2) the defendant had a prior opportunity for
cross-examination, or forfeited that right by wrongdoing.” (Id. at
p. 686, fn. omitted.) Along the way to this conclusion, the
Supreme Court also noted, “Any expert may still rely on hearsay
in forming an opinion, and may tell the jury in general terms that
he did so. Because the jury must independently evaluate the
probative value of an expert’s testimony, Evidence Code section
802 properly allows an expert to relate generally the kind and
source of the ‘matter’ upon which his opinion rests. . . . There is a
distinction to be made between allowing an expert to describe the
type or source of the matter relied upon as opposed to presenting,
as fact, case-specific hearsay that does not otherwise fall under a
statutory exception.” (Id. at pp. 685-686.)
Defendant does not challenge Deputy Castaneda’s gang
expertise or the bases for his background testimony. That
testimony “was relevant and admissible evidence as to the [107
Hoover Criminals’] history and general operations.” (Sanchez,
supra, 63 Cal.4th at p. 698.) Defendant acknowledges “the facts
of the [predicate] convictions are not in dispute, as the prosecutor
had certified court dockets of the convictions.” Defendant asserts,

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“What is in dispute, however, is whether Hall and Smith
belonged to the same gang as [defendant]. [Deputy] Castaneda
said he based his conclusion on talks with a Detective White and
a Detective Navarette,” but neither of those individuals testified.
This argument fails to acknowledge the gang expert’s testimony
that he knew Hall and Smith and knew they were members of
the 107 Hoover Criminals from his personal, patrol-duty contacts
with them.
While the gang expert also said he knew about these two
individuals from conversations with gang detectives, he offered
no details concerning those communications. On one hand,
Deputy Castaneda’s testimony may be viewed as not “case
specific” within the meaning of Sanchez because it did not
“relat[e] to the particular events and participants alleged to have
been involved” in defendant’s case. (Sanchez, supra, 63 Cal.4th
at p. 676.) On the other, it may be fairly characterized as the
traditional─and acceptable─hearsay an “expert may still rely
on . . . in forming an opinion . . . .” (Id. at p. 685.) Under either
view, the testimony did not run afoul of Sanchez or defendant’s
constitutional rights.
III. Presentence Conduct Credit
At sentencing, the trial court awarded defendant 1,568
days of actual presentence custody credit and, because defendant
was sentenced to a life term, zero days of presentence conduct
credit. In the trial court, the prosecutor and defense counsel
agreed defendant was not entitled to presentence conduct credit.
On appeal, both defense counsel and the Attorney General agree
defendant is entitled to 235 days of presentence conduct credit
under section 2933.1.

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Defendant was convicted of two counts of willful,
deliberate, and premeditated attempted murder. Under section
2933.1, a defendant convicted of attempted murder is entitled to
presentence conduct credit, but that credit is limited to 15
percent of the defendant’s actual days in presentence custody.
(§§ 2933.1, subd. (a) & 667.5, subds. (c)(7) & (12).) Fifteen
percent of 1,568 days is 235.2 days. We “round down” to 235
days. (People v. Ramos (1996) 50 Cal.App.4th 810, 815-816.)
Accordingly, we order defendant’s abstract of judgment modified
to reflect 235 days of presentence conduct credit.

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DISPOSITION
Defendant’s abstract of judgment is ordered modified to
reflect 235 days of presentence conduct credit. The judgment is
otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
DUNNING, J.
We concur:
KRIEGLER, Acting P. J.
BAKER, J.
 Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.

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