P. v. Yang

Filed 7/31/18 P. v. Yang CA5
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
SMITH YANG et al.,
Defendants and Appellants.
F071067
(Super. Ct. Nos. VCF266590C;
VCF266590D)
OPINION
APPEAL from judgments of the Superior Court of Tulare County. Valeriano
Saucedo, Judge.
John J. Hardesty, under appointment by the Court of Appeal, for Defendant and
Appellant Smith Yang.
Linda Zachritz, under appointment by the Court of Appeal, for Defendant and
Appellant Blong Yang.
Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A.
Martinez, Robert K. Gezi and Catherine Tennant Nieto, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
A jury convicted Smith Yang and Blong Yang of committing assault with a deadly
weapon and active participation in a criminal street gang. The verdicts included gang-
related enhancement findings. Smith Yang now challenges the admissibility of certain

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trial evidence in light of the holdings in People v. Elizalde (2015) 61 Cal.4th 523
(Elizalde) and People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which were decided
while this appeal was pending. These claims have merit, but we conclude the errors were
harmless.
Blong Yang joins in Smith’s claims (appellants are hereafter referred to by their
first names) and additionally contends there was insufficient evidence of his active
participation in a criminal street gang. Blong’s arguments speak to the weight of the
evidence, rather than its legal sufficiency, and are unpersuasive. We therefore affirm the
judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants were among six defendants charged in connection with an attack on a
grocery store clerk in Visalia. The defendants were of Asian descent and most of them
were related to each other. At least four of the defendants resided in the same home,
including brothers Smith and Blong.
Three defendants pleaded out of the case: Koomeej Joshua Xiong (Joshua Xiong),
Jonathan Yang, and Meng Yang. Smith and Blong were jointly tried with codefendant
Sou Saeteurn (not a party to this appeal) on two counts of assault with a deadly weapon
(Pen. Code,1 § 245, subd. (a)(1); counts 1 & 2) and one count of active participation in a
criminal street gang (§ 186.22, subd. (a); count 3). Counts 1 and 2 included enhancement
allegations of gang-related conduct (§ 186.22, subd. (b)(1)) and personal infliction of
great bodily injury (§ 12022.7, subd. (a)). It was further alleged that Blong had suffered a
prior strike and serious felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-
(d)) and had served a prior prison term (§ 667.5, subd. (b)).
Prosecution Case
The victim, a young man apparently of Hispanic ethnicity, testified to having been
attacked at work by a group of Asian males. The perpetrators confronted him as he was
1 Unless otherwise specified, all statutory references are to the Penal Code.

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assisting a patron in the parking lot of a grocery store. He recalled hearing someone use
the term “Buster,” which allegedly meant nothing to him. Next, he was struck from
behind with a wooden cane and the group converged on him, throwing punches. The
victim did not know his attackers, and he denied having said or done anything to provoke
the assault. Count 1 was based on this initial series of events.
The attack in the parking lot ended when the victim broke free and ran into the
store. Several of the assailants followed him inside and surrounded him. The victim was
punched a few more times before he fell to the ground, at which point the Asian men
kicked and stomped his head and upper body. He was also struck with some type of stick
or club (presumably a piece of the now-broken cane). The perpetrators fled before the
police arrived, leaving the victim with injuries that included a fractured nose and bruises
on his head, arms, and back. Count 2 was based on the events inside of the store. The
entire incident was captured on video by surveillance cameras, and the footage was
shown to the jury at trial.
Detective Daniel Ford of the Visalia Police Department was asked to assist in the
investigation because of his expertise with regard to “Asian gangs within the City of
Visalia and in the area [extending] as far as Merced.” Upon reviewing the surveillance
videos, he recognized Smith, Blong, and codefendant Saeteurn as being among those who
had attacked the victim. Detective Ford identified each of them again at trial, explaining
to the jury their respective roles in the assault, and testified he was “one hundred percent
sure” of his identifications.
During custodial interviews, Smith and Saeteurn admitted being present during the
incident and alleged the victim had provoked the attack by calling one of their friends a
“gook.” Saeteurn further admitted to kicking the victim, but denied being a gang
member. Smith admitted to participating in the assault inside of the store and
acknowledged his membership in a criminal street gang called the “Asian Bloods,” but he
recanted the latter admission.

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Detective Ford identified Blong as the person who could be seen in the
surveillance videos wearing a white tank top undershirt, long khaki shorts, calf-high
white socks, and a pair of slippers. At the time of his arrest, two days after the incident,
Blong was found lying on a couch next to a pair of slippers that Detective Ford believed
were the ones he had worn during the assault. A search of the home also yielded a pair of
khaki shorts, which allegedly matched the length and color of those seen in the videos.
Blong had previously admitted to Detective Ford that he was a gang member. The
two of them were well-acquainted. Blong testified he had been in contact with the
detective “several times, [approximately] seven, eight, nine times …,” adding, “He comes
to my house a lot.” During a custodial interview in this case, Blong denied personal
involvement in the crimes but insinuated the victim had been targeted because of an
actual or perceived connection to a Hispanic gang known as the Nortenos.2
Testifying as an expert witness, Detective Ford alleged the existence of a criminal
street gang called the Asian Bloods. He claimed there were approximately 50 members
of the Asian Bloods in Visalia during the relevant time period, and that the gang’s
primary activities included “[a]ssaults with a deadly weapon, attempted murder,
shootings, … vehicle burglaries, [and] a lot of theft-related activity.” To establish the
“pattern of criminal gang activity” required for the gang participation charge and related
enhancements (§ 186.22, subd. (f); see further discussion, post), Detective Ford related
information about two prior offenses committed by individuals not involved in the
current case.
According to the expert, members of the Asian Bloods identify with the color red
and use hand gestures to signify their gang affiliation. Although they had once been
aligned with the Nortenos, or at least on good terms with them, Asian Bloods in the
Visalia area viewed Nortenos as their enemies during the relevant time period. Detective
2 The victim denied being a gang member or having any friends or relatives who
are gang members.

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Ford explained that in gang culture, “Buster” is a derogatory term used by rivals of the
Nortenos to convey disrespect. Similarly, and particularly in Visalia, the racial slur
“gook” is used by Nortenos as “the most common way to refer to an Asian gang
member.”
Detective Ford opined that Smith and Blong were active members of the Asian
Bloods and that the charged offenses were committed in association with, and for the
benefit of, a criminal street gang. His opinions were partially based on their self-
admissions of gang membership. As mentioned, Smith and Blong had allegedly
confirmed their membership status to Detective Ford on prior occasions. In addition,
they had made incriminating disclosures to jail personnel during intake interviews
following various arrests. As documented on inmate classification questionnaires
received into evidence, Smith had made such admissions during three separate stints in
the county jail, including his arrest in this case. He had twice acknowledged an
association with the Asian Bloods, and in all three instances had written “Northerners” in
response to a question regarding his “known enemies.” Blong, who had been jailed at
least four different times, had always denied being associated with gangs but sometimes
wrote “North” or “Buster” in response to the question about his known enemies.
Detective Ford’s opinions were also based on evidence of Smith’s and Blong’s
history of associating with other alleged gang members, wearing “gang clothing” and/or
displaying gang hand signs, and their alleged involvement in gang-related crime (i.e., the
currently charged offenses). At least three of the victim’s attackers had worn red
clothing, including Joshua Xiong and codefendant Saeteurn. Saeteurn had also worn a
red hat, and the cane used by Joshua Xiong to strike the victim had been painted red.
Moreover, some of the codefendants who pleaded out of the case, including appellants’
brother, Meng Yang, had previously admitted, both to Detective Ford and on jail
classification questionnaires, that they were members or associates of the Asian Bloods.
To further establish the defendants’ gang ties and their identities in the
surveillance videos, the jury was shown photographs taken of them on the day of their

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arrest. Neither Smith nor Blong wore red during the subject incident, but both had been
photographed on prior occasions either wearing red (Smith) or flashing gang signs
(Blong). The prosecution introduced photos obtained from Blong’s Myspace page,
which included a profile picture of him contorting his fingers to form what Detective
Ford alleged was a gang sign.
Eight additional photos from the Myspace page showed Smith and Blong
congregating with a group of Asian males, many of whom were wearing red jackets, red
shirts, and red hats, and flashing alleged gang signs with their hands and fingers. Joshua
Xiong appeared in multiple photos next to Smith wearing a red hat and displaying hand
signs. Several people wore hats with the “B” logo of the Boston Red Sox, which
Detective Ford opined was not indicative of sports fandom but rather signified their
affiliation with the Asian Bloods. In six of the photos, Smith was wearing a red
Cincinnati Reds jacket and matching red hat, which Detective Ford likewise opined was
because his gang identifies with the color red and not because he is a fan of a baseball
team from Ohio. Blong appeared in several of the group photos, and, though not in red,
he repeatedly displayed the same alleged gang sign (i.e., the one seen in his profile
picture) and wore oversized khaki/light grey shorts that extended down over long white
socks—the same distinctive style of dress as was exhibited by one of the victim’s
attackers.
Defense Case
Each defendant testified on his own behalf. Codefendant Saeteurn alleged he was
intoxicated on the night in question and could only recall two things: (1) the victim called
someone a “gook” and (2) he reacted by assaulting him. Saeteurn claimed to have
amnesia with regard to every other aspect of the incident, to the point of not even
knowing if he had acted alone or with other people. Nevertheless, he confirmed
Detective Ford had accurately identified him from the surveillance videos.
Smith admitted being present when the incident occurred but denied participating
in the assault. He claimed Detective Ford had mistakenly identified him and Blong from

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the surveillance videos, and testified Blong was not at the grocery store that evening. On
cross-examination, when questioned about the photographs of Blong from Blong’s
Myspace page, he told the prosecutor, “I don’t recall that being my brother.” Smith
confirmed some of the photos were of him, and he admitted having “family and friends
who are known as – or classified as Asian Blood,” but denied he was a gang member. As
for the alleged display of gang signs by the people with whom he had posed for pictures,
he said, “I wasn’t aware of them, but I can’t speak for those individuals who are throwing
up signs.”
Blong denied being a gang member but admitted he and some of his relatives
“associate” with gangs. He denied any involvement in the charged offenses and testified
that none of the photographs from his Myspace page were actually of him. Blong’s
credibility was impeached with evidence of multiple prior felony convictions: first degree
residential burglary (§§ 459, 460, subd. (a)), possession of a firearm by a convicted felon
(former § 12021, subd. (a)), receiving stolen property (x 2) (§ 496, subd. (a)), and
possession of marijuana for sale (Health & Saf. Code, former § 11359).
Smith and Blong called two expert witnesses to refute the gang allegations. These
experts essentially opined that their clients were not gang members and the subject
incident did not involve any gang-related crimes. This testimony is further summarized
in our Discussion, post.
Verdicts and Sentencing
Appellants were convicted as charged and all enhancement allegations were found
to be true.
Smith was sentenced to an aggregate prison term of seven years, calculated as
follows: the middle term of three years for count 1, plus a consecutive three-year term for
the great bodily injury enhancement and a consecutive one-year term for count 2 (one
third of the middle term). Punishment for the great bodily injury enhancement on count 2
and the count 3 conviction of active participation in a criminal street gang was stayed

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pursuant to section 654. Punishment for the gang enhancement findings on counts 1 and
2 was stricken.3
Blong was sentenced to an aggregate prison term of 23 years, calculated as
follows: the upper term of four years for committing assault with a deadly weapon as
alleged in count 1, doubled to eight years because of the prior strike, plus a consecutive
10-year term for the gang enhancement (§ 186.22, sub. (b)(1)(C)). A concurrent sentence
was imposed for count 2. The trial court stayed punishment for the great bodily injury
enhancements and the substantive gang offense. Blong’s sentence was further enhanced
by a consecutive five-year term for the prior serious felony conviction.
Appellate Proceedings
On February 26, 2018, this court issued an opinion reversing appellants’
convictions for the substantive gang offense and the gang enhancement findings, and
affirming the judgments in all other respects. The People filed a petition for rehearing,
which was granted, and the parties filed supplemental briefing on the issue of whether
testimony by the People’s gang expert on matters relating to the “pattern of criminal gang
activity” requirement in section 186.22 entailed “case-specific facts” as contemplated by
Sanchez, supra.
DISCUSSION
Sufficiency of the Gang Evidence
Standard of Review
“ ‘When considering a challenge to the sufficiency of the evidence to support a
conviction, 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
3 The parties’ briefs erroneously state that Smith’s gang enhancements were
stayed. The reporter’s transcript and the second amended abstract of judgment (dated
2/26/16) clearly indicate that punishment for the gang enhancement findings, which
would have otherwise added a consecutive 10-year term of imprisonment (§ 186.22,
subd. (b)(1)(C)), was stricken pursuant to section 186.22, subdivision (g).

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defendant guilty beyond a reasonable doubt.’ ” (People v. Edwards (2013) 57 Cal.4th
658, 715.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that
upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the
jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) The jury’s findings on
enhancement allegations are reviewed under the same standard. (See People v. Stanley
(1995) 10 Cal.4th 764, 792-793.)
Law and Analysis
Section 186.22 proscribes the substantive offense of active participation in a
criminal street gang, as set forth in subdivision (a), and includes enhancement provisions,
which are found in subdivision (b). (Elizalde, supra, 61 Cal.4th at pp. 538-539.) The
elements of the substantive offense are: “First, active participation in a criminal street
gang, in the sense of participation that is more than nominal or passive; second,
knowledge that the gang’s members engage in or have engaged in a pattern of criminal
gang activity; and third, the willful promotion, furtherance, or assistance in any felonious
criminal conduct by members of that gang.” (People v. Rodriguez (2012) 55 Cal.4th
1125, 1130 (Rodriguez).) The enhancement provisions apply when an offense is
committed “for the benefit of, at the direction of, or in association with any criminal
street gang, with the specific intent to promote, further, or assist in any criminal conduct
by gang members.” (§ 186.22, subd. (b).)
Blong challenges the sufficiency of the evidence supporting his gang participation
conviction and the related enhancement findings, but his arguments are of the kind suited
for closing summation to a jury. He complains the criteria upon which Detective Ford
relied was “overbroad” and sometimes contradictory, e.g., he placed great weight on jail
classification questionnaires wherein Blong had listed Nortenos as being among his
enemies but ignored Blong’s contemporaneous denials of having any gang associations.
Blong further emphasizes that most of the alleged gang members with whom he was
known to associate were immediate family members or close relatives. These points are
not helpful to his claim. “Even where, as here, the evidence of guilt is largely

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circumstantial, our task is not to resolve credibility issues or evidentiary conflicts, nor is
it to inquire whether the evidence might reasonably be reconciled with the defendant’s
innocence.” (People v. Zaragoza (2016) 1 Cal.5th 21, 44.)
Turning again to the applicable law, active participation in a criminal street gang
can be proven by evidence of a defendant’s self-admission of gang membership, contacts
with a particular gang and/or its members, gang-related contacts with police, and being in
the company of a gang member while committing a charged offense. (See People v.
Castenada (2000) 23 Cal.4th 743, 752-753 (Castenada); People v. Williams (2009)
170 Cal.App.4th 587, 626; People v. Garcia (2007) 153 Cal.App.4th 1499, 1511.) A
defendant’s knowledge that the gang’s members have engaged in a pattern of criminal
activity is often inferable from the same evidence of his or her active participation in the
gang. (People v. Carr (2010) 190 Cal.App.4th 475, 489 and fn. 14 (Carr); see
Castenada, supra, 23 Cal.4th. at p. 752 [“every person incurring criminal liability under
section 186.22(a) has aided and abetted a separate felony offense committed by gang
members.”].) The third element, which requires willful promotion, furtherance, or
assistance in the commission of a felony by gang members, can be established by
showing either the defendant’s direct perpetration of the felony or actions that constitute
aiding and abetting. (Rodriguez, supra, 55 Cal.4th at pp. 1132, 1135-1136; People v.
Ngoun (2001) 88 Cal.App.4th 432, 435-437.)
“It is the province of the trier of fact to decide whether an inference should be
drawn and the weight to be accorded the inference.” (People v. Massie (2006)
142 Cal.App.4th 365, 374.) As discussed, there was evidence Blong had admitted to
Detective Ford that he was a gang member, as had some of his codefendants. Having
viewed the photographs from his Myspace page, we have no trouble concluding that the
jury, aided by the testimony of Detective Ford, could have reasonably believed those
images showed Blong flashing gang signs and associating with other gang members.
There was ample proof that Blong and his codefendants engaged in felonious conduct by
assaulting the victim. This evidence, taken as a whole and viewed in the light most

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favorable to the judgment, was sufficient to prove active participation in a criminal street
gang. (Carr, supra, 190 Cal.App.4th at p. 489 [jury may rely on circumstantial evidence
and expert testimony “to make findings concerning a defendant’s active participation in a
gang”]; People v. Martinez (2008) 158 Cal.App.4th 1324, 1331 [sufficient evidence of
active participation found where gang expert relied, inter alia, on defendant’s self-
admission of gang membership and his commission of a charged felony with another
gang member].) The same is true with regard to the gang enhancement findings. (See
People v. Morales (2003) 112 Cal.App.4th 1176, 1198 [jurors can reasonably infer a
crime was committed “in association” with a criminal street gang if defendant committed
the offense with fellow gang members].)
Admissibility of the Gang Evidence
While this appeal was pending, the California Supreme Court issued its decisions
in Elizalde and Sanchez. These cases announced changes in the law with respect to the
admissibility of incriminating statements made during jail intake interviews (Elizalde)
and the use of hearsay in expert witness testimony (Sanchez). Appellants’ arguments rely
on these opinions, and there is a preliminary question regarding the timeliness of their
claims. The People allege forfeiture based on a lack of necessary objections.
“Reviewing courts have traditionally excused parties for failing to raise an issue at
trial where an objection would have been futile or wholly unsupported by substantive law
then in existence.” (People v. Welch (1993) 5 Cal.4th 228, 237.) There is a split of
authority on the issue of forfeiture in cases where the trial proceedings occurred prior to
the Sanchez decision. (Compare People v. Flint (2018) 22 Cal.App.5th 983, 996-998
[Sanchez claim not forfeited because objections would have been futile] and People v.
Jeffrey G. (2017) 13 Cal.App.5th 501, 507-508 (Jeffrey G.) [same] with People v.
Blessett (2018) 22 Cal.App.5th 903, 925-941 (Blessett) [Sanchez claim forfeited because
“the change in the law was foreseeable” and objections would not have been futile].) In
our earlier opinion, we adopted the reasoning of Jeffrey G., supra, and concluded
appellants’ claims were not forfeited. We do so again, but also note that appellants

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present an alternative claim of ineffective assistance of counsel based on the failure to
preserve issues for appellate review. Were we inclined to accept the People’s forfeiture
argument, the merits of appellants’ claims would be evaluated in a deficient performance
analysis and the outcome would be the same.
Sanchez
The Sanchez opinion holds that a gang expert cannot testify to case-specific facts
asserted in hearsay statements unless such facts are within the expert’s personal
knowledge or independently supported by admissible evidence. A relatively small but
significant portion of Detective Ford’s testimony contained inadmissible hearsay.
However, for the reasons that follow, we conclude the admission of this evidence was
harmless.
“Hearsay is an out-of-court statement that is offered for the truth of the matter
asserted, and is generally inadmissible.” (People v. McCurdy (2014) 59 Cal.4th 1063,
1108.) The right of confrontation, as guaranteed by the Sixth Amendment to the federal
Constitution and made applicable to the states through the Fourteenth Amendment,
ensures the opportunity for cross-examination of adverse witnesses. (People v. Fletcher
(1996) 13 Cal.4th 451, 455.) In Crawford v. Washington (2004) 541 U.S. 36 (Crawford),
the United States Supreme Court held that the confrontation clause bars admission of out-
of-court testimonial hearsay statements unless the declarant is unavailable and the
defendant had a previous opportunity for cross-examination. (Id. at p. 59.)
Prior to Sanchez, expert witnesses could testify about out-of-court statements upon
which they had relied in forming their opinions even if the statements were otherwise
inadmissible under the hearsay rule. Case law held such evidence was not offered for its
truth, but only to identify the foundational basis for the expert’s testimony. (E.g., People
v. Gardeley (1996) 14 Cal.4th 605, 618-620; People v. Miller (2014) 231 Cal.App.4th
1301, 1310.) Pursuant to this rationale, appellate courts deemed the use of out-of-court
statements in an expert witness’s “basis testimony” to be compliant with the hearsay rule
and the requirements of Crawford. (People v. Valadez (2013) 220 Cal.App.4th 16, 30.)

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The Sanchez opinion holds that a trier of fact must necessarily consider expert
basis testimony for its truth in order to evaluate the expert’s opinion, which implicates the
hearsay rule and the Sixth Amendment right of confrontation. (63 Cal.4th at p. 684.)
“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.... 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.)
“The hearsay rule has traditionally not barred an expert’s testimony regarding his
general knowledge in his field of expertise.” (Sanchez, supra, 63 Cal.4th at p. 676.)
However, the hearsay rule does apply to testimony regarding “case-specific facts,”
meaning “those relating to the particular events and participants alleged to have been
involved in the case being tried.” (Ibid.) Unless subject to a statutory exception, such
hearsay is inadmissible under state law. (Id. at pp. 674, 698; Evid. Code, § 1200,
subd. (b).)
Federal constitutional issues arise if case-specific facts are presented in the form of
testimonial hearsay. (Sanchez, supra, 63 Cal.4th at pp. 680-681, 685.) “Testimonial
statements are those made primarily to memorialize facts relating to past criminal
activity, which could be used like trial testimony.” (Id. at p. 689.) Information contained
in a police report is generally construed as testimonial hearsay because police reports
“relate hearsay information gathered during an official investigation of a completed
crime.” (Id. at p. 694.)
The erroneous admission of testimonial hearsay is reviewed for prejudice under
the standard described in Chapman v. California (1967) 386 U.S. 18 (Chapman). (See
Sanchez, supra, 63 Cal.4th at pp. 670-671, 698.) The People must show, beyond a
reasonable doubt, that the error did not contribute to the jury’s verdict. (Id. at p. 698.)
The erroneous admission of non-testimonial hearsay is a state law error, which is

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assessed for prejudice under People v. Watson (1956) 46 Cal.2d 818 (Watson).
(Crawford, supra, 541 U.S. at p. 68; People v. Duarte (2000) 24 Cal.4th 603, 618-619.)
The Watson test asks if it is reasonably probable the defendant would have obtained a
more favorable result had the error not occurred. (Watson, supra, 46 Cal.2d at p. 836.)
Detective Ford related certain information to the jury that he had learned from, and
believed to be true based upon, his review of police reports, field identification cards, and
conversations with other police officers. His testimony included hearsay relating to the
existence of a specific criminal street gang, i.e., the Asian Bloods. To better frame the
issue, we note a criminal street gang is defined as “any ongoing organization, association,
or group of three or more persons … whose members individually or collectively engage
in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f), italics
added.) “A gang engages in a ‘pattern of criminal gang activity’ when its members
participate in ‘two or more’ statutorily enumerated criminal offenses (the so-called
‘predicate offenses’) that are committed within a certain time frame and ‘on separate
occasions, or by two or more persons.’ ” (People v. Zermeno (1999) 21 Cal.4th 927,
930.) The list of qualifying offenses is found in section 186.22, subdivision (e)(1)-(33).
To satisfy the predicate offenses requirement, the prosecutor introduced People’s
Exhibit No. 7 (Exhibit 7) and No. 8 (Exhibit 8). Exhibit 8 is a certified record of
conviction for someone named Bounme Yang, who was adjudicated of resisting an
executive officer (§ 69) and having a concealed firearm inside of a vehicle (former
§ 12025, subd. (a)(1)). The latter conviction was a qualifying offense under the gang
statute. (§ 186.22, subd. (e)(32).) Exhibit 7 is a certified record of conviction for Jesse
Saelee, who pleaded guilty to the qualifying offense of attempted murder. (§§ 187, 664;
§ 186.22, subd. (e)(3).) Detective Ford testified both men were members of the Asian
Bloods when they committed their crimes.
Detective Ford explained that his opinion regarding Bounme Yang’s status as a
gang member was based on “research into his gang history, based on my speaking with
[the arresting officer in the case], based on the evidence that was located on the scene,

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including gang clothing, gang indicia, [and] my knowledge of the individuals that were
with him when [the offense was committed].” As for Jesse Saelee, Detective Ford’s
information and belief regarding Saelee’s alleged gang membership was based on his
review of police reports, “the workup that was done by [another police officer], and based
on talking with the detectives.”
The record is unclear in terms of whether, and to what extent, Detective Ford had
personal knowledge of Bounme Yang’s purported membership in the Asian Bloods.
Although he was not involved in Yang’s case as an investigating officer, Detective Ford
apparently served as an expert witness during the prosecution phase and claimed to have
“testified on that case.” Yang’s crime of resisting an executive officer was found to be
gang-related within the meaning of section 186.22, subdivision (b)(1). Given Detective
Ford’s involvement in Yang’s prosecution, his personal knowledge of Yang’s
membership in the Asian Bloods is reasonably inferable.
With regard to Jesse Saelee, Detective Ford had merely been on patrol at the time
of the offense and testified he “might have” responded to the scene to provide assistance
to the arresting officers. By his own admission, Detective Ford’s opinion regarding
Saelee’s gang status was derived entirely from hearsay sources, i.e., police reports and
conversations with other law enforcement officers. Since there was no independent
evidence of Saelee being a member of the Asian Bloods, we conclude the expert’s
testimony on that point was inadmissible.
There is a split of authority regarding whether a gang expert’s testimony about
predicate offenses entails “case-specific facts” as contemplated by Sanchez. One view
holds that evidence of a pattern of criminal activity by alleged gang members should be
classified as “general background information” and thus treated as subject matter about
which a qualified expert may relate hearsay. (Blessett, supra, 22 Cal.App.5th at pp. 943-
945; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411; People v. Meraz (2016)
6 Cal.App.5th 1162, 1174-1175, review granted on an unrelated issue, March 22, 2017,
S239442.) The opposing perspective is that facts related to predicate offenses are case-

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specific. (People v. Lara (2017) 9 Cal.App.5th 296, 337 (Lara); People v. Ochoa (2017)
7 Cal.App.5th 575, 583, 588-589.)
As noted, case-specific facts are defined as “those relating to the particular events
and participants alleged to have been involved in the case being tried.” (Sanchez, supra,
63 Cal.4th at p. 676.) “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 Sanchez decision expressly “restores the traditional distinction between an
expert’s testimony regarding background information and case-specific facts.” (63
Cal.4th at p. 685.) To illustrate this distinction, the high court provided the following
example: “That an associate of the defendant had a diamond tattooed 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.)
In our view, whether an alleged predicate offense occurred and was committed by
a member of a particular gang is analogous to the presence of a diamond tattoo on an
associate’s arm in the above example, not to an expert’s opinion of what the tattoo may
signify. Since the existence of a criminal street gang is an element of section 186.22 that
requires proof of a pattern of criminal gang activity, and the occurrence of specific
predicate offenses is a factual matter upon which the prosecution’s theory of the case
depends, testimony concerning the predicate offenses may be construed as “relating to
the particular events and participants alleged to have been involved in the case being

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tried.” (Sanchez, supra, 63 Cal.4th at p. 676.) This admittedly broad construction of the
term “case-specific facts” seems reasonable and correct in light of the only alternative,
which would be to characterize details about specific crimes committed by specific
individuals as “general background information,” i.e., “testimony regarding [the expert’s]
general knowledge in his field of expertise.”4 (Id. at pp. 676, 678.)
Detective Ford’s testimony about the predicate offenses entailed “case-specific
facts” not only because the evidence related to an element of the gang charges, but also
because appellants were alleged to have had peripheral involvement in both incidents.
Blong was reportedly with Bounme Yang when Yang committed the qualifying firearm
offense. Smith was allegedly “contacted with Jesse Saelee” during the investigation into
Saelee’s predicate offense, and Detective Ford relied on that connection in forming his
opinion that Smith “associates with other gang members.” Given these circumstances,
we conclude the evidence related to the “participants alleged to have been involved in the
case being tried” and was therefore case-specific. (Sanchez, supra, 63 Cal.4th at p. 676.)
In summary, the crimes reflected in Exhibits 7 and 8 were used to establish the
predicate offenses element for count 3 and for the gang enhancements on counts 1 and 2.
Without Detective Ford’s inadmissible hearsay testimony, the jury had no basis upon
which to conclude at least two of those crimes were committed by members of the Asian
Bloods, leaving an evidentiary gap in the People’s theory of liability. (See People v.
Vasquez (2016) 247 Cal.App.4th 909, 922 [“ ‘The existence of a criminal street gang is
unquestionably an element of both the enhancement and the substantive offense.’ ”].)
However, after consideration of the supplemental briefing, we are persuaded that the
4 We realize section 186.22 also requires proof of a gang’s primary activities, and
an expert’s testimony on that topic is arguably more akin to general background
information. (See Sanchez, supra, 63 Cal.4th at p. 698 [describing as “background
testimony” information related about a particular gang’s “conduct and its territory.”)
However, in most instances, if not all, such testimony is at least partially derived from the
expert’s personal knowledge obtained during the course of his or her police work. In this
case, for example, Detective Ford described having personal knowledge that certain
crimes were among the primary activities of the Asian Bloods.

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charged crimes and other admissible evidence identifying Smith and Blong as members
of the gang were sufficient to support the jury’s findings on those gang allegations.
In their letter brief, the People argue that Smith and Blong’s own convictions for
assault with a deadly weapon, itself a qualifying offense under section 186.22,
subdivision (e)(l), are sufficient to satisfy the predicate crime requirements of the gang
allegations, citing People v. Louen (1997) 17 Cal.4th 1, 10 (Louen). In Louen, the
underlying incident supplied the necessary predicates: “Through evidence of defendant’s
commission of the charged crime of assault with a deadly weapon on [the victim] and the
separate assault on [the same victim] seconds later by a fellow gang member.” (Louen, at
p. 14.)
Appellants acknowledge assault with a deadly weapon is a qualifying offense but
argue the jury was not instructed it could consider that offense as a predicate crime. We
disagree.
Subparagraph 1 of the jury instruction on the gang crime defined “a pattern of
criminal gang activity” as the commission of the crimes of attempted murder or
possession of a concealed firearm in a vehicle, qualifying offenses corresponding to the
crimes evidenced in Exhibits 7 and 8. Later within that same instruction the jury was told
it could consider the charged crime in deciding ”whether a pattern of criminal gang
activity” had been proved. That latter advisement was repeated in a separate instruction
on the gang enhancement allegations, but without mention of the other predicate crimes.
Appellants contend the court’s failure to include the crime of assault with a deadly
weapon in subparagraph 1 contradicted its later instruction authorizing the jury to
consider that crime in deciding whether the pattern of criminal gang activity had been
proved. They argue that omission precluded consideration of the charged crime.
In our view, the court’s identification of the uncharged crimes in Exhibits 7 and 8
as qualifying offenses neither contradicted nor precluded its identification of the charged
crime as a qualifying offense. Neither of those instructions purported to be exclusive of

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the other. Indeed, to conclude otherwise would render the instruction regarding the jury’s
consideration of the charged crime meaningless.
The correctness of jury instructions is to be determined from the entire charge of
the court, not judged in artificial isolation or from consideration of only parts of an
instruction. (People v. Smithey (1999) 20 Cal.4th 936, 963-964.) “The reviewing court
also must consider the arguments of counsel in assessing the probable impact of [any]
instruction on the jury.” (People v. Young (2005) 34 Cal.4th 1149, 1202.) “Jurors are
presumed to be intelligent people, capable of understanding and correlating all
instructions.” (People v. Ayers (2005) 125 Cal.App.4th 988, 997.) Jurors are also
“presumed to follow the law as given to them by the trial court.” (People v. Mejia (2012)
211 Cal.App.4th 586, 627.)
In closing argument here, after discussing the significance of the uncharged
predicate crimes in Exhibits 7 and 8, the prosecutor made the following comments to the
jury about the charged crimes: “In red [referring to a visual aid], there’s ADW, assault
with a deadly weapon. That’s in red to remind you the current crimes count. So you can
use the 245s with a deadly weapon outside the store and inside the store to help show that
there is a pattern of criminal gang activity by the Asian Blood gang.”
In view of the foregoing, we find no reasonable likelihood the jury misunderstood
and misapplied the instructions on the predicate crimes. Even if the omission of the
charged crime in subparagraph 1 did conflict with the instruction regarding the use of that
crime to find a pattern of criminal gang activity proved, we find any such omission
harmless beyond a reasonable doubt. Although we may not engage in harmless error
review when the omission of a jury instruction “ ‘ “vitiat[es] all the jury’s findings” ’ ”
(People v. Merritt (2017) 2 Cal.5th 819, 822) where a reviewing court concludes that a
rational jury would have found the allegation true, despite the omission, any error is
harmless beyond a reasonable doubt. (Neder v. United States (1999) 527 U.S. 1, 10, 17;
People v. Mil (2012) 53 Cal.4th 400, 417.) Given the jury’s verdict on the charges, there

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is no likelihood that a defect in the predicate crime instructions would have changed their
finding on the gang allegations.
Blong’s reliance on People v. Smith (1984) 155 Cal.App.3d 1103, 1145, and
similar cases holding that a reviewing court cannot affirm a conviction based on theories
not presented to the jury is misplaced. Here, the court did instruct the jury it could
consider the charged crimes in deciding if the pattern of criminal activity had been
proved and the prosecution argued that theory to the jury.
Appellants only other arguments regarding hearsay concern the expert’s
testimony about a person named Brandon Saechao and the expert’s claims regarding
Blong’s and Smith’s association with gang members Bounme Yang and Jesse Saelee.
We address these issues in turn.
Detective Ford testified Smith had told him he was assaulted by Nortenos on “the
same day that an individual by the name of Brandon Saechao was murdered in front of
[Smith’s] residence.” In a separate interview with Blong, Blong indicated the victim in
this case had a connection to the “guys that shot Brandon in ’09.” These disclosures were
admissible under Evidence Code section 1220 as party statements, an exception to the
hearsay rule. Nevertheless, appellants complain Detective Ford conveyed hearsay by
additionally stating, “In talking with individuals related to the case, it was believed to be
Nortenos who committed the homicide of Brandon Saechao in front of [appellants’]
residence.” This argument ignores other admissible testimony wherein the expert
explained how the feud between the Nortenos and Asian Bloods began “right around the
same time as the homicide of Brandon Saechao.” Thus, the gang motive in this case was
readily inferable without the hearsay statement. The inference was further supported by
the fact the victim was called a “Buster” by one or more of the assailants.
We also find no prejudice in the use of hearsay to show appellants’ associations
with Bounme Yang and Jesse Saelee. At trial, appellants acknowledged having family
and friends who are gang members. Blong specifically admitted to associating with gang
members. Detective Ford not only claimed Smith and Blong had admitted their gang

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membership to him, but he also testified accomplices Joshua Xiong and Meng Yang had
told him they were gang members. Since Detective Ford had personal knowledge of
these admissions, his opinion testimony regarding the membership status of those
individuals was admissible. Joshua Xiong was actually the principal offender, as he was
the one who repeatedly struck the victim with his cane. The jury saw photographs of
Smith and Xiong together wearing red clothing (i.e., the signature color of the Asian
Bloods) and flashing alleged gang signs. The admissible evidence of appellants’ gang
ties was insurmountable. Therefore, and pursuant to the foregoing analysis, we conclude
the collective impact of all Sanchez errors was harmless beyond a reasonable doubt.
Elizalde
The Elizalde case holds that questions about gang affiliation posed to an arrestee
while processing him or her into jail do not come within the historically recognized
“booking exception” to the requirements of Miranda v. Arizona (1966) 384 U.S. 436
(Miranda). (Elizalde, supra, 61 Cal.4th at pp. 531-535.) While it is permissible for jail
officials to ask questions about gang affiliation during the booking process, the answers
to such questions are inadmissible in the prosecution’s case-in-chief unless they were
preceded by Miranda admonitions and a waiver of the right to remain silent. (Elizalde,
supra, 61 Cal.4th at p. 541.) The erroneous admission of a jail classification statement
obtained in violation of Miranda is reviewed for prejudice under the Chapman standard.
(Elizalde, supra, at p. 542.)
The People introduced several inmate classification questionnaires filled out by
appellants, codefendant Saeteurn, and accomplices Jonathan Yang and Meng Yang. In
his briefing, Smith argues Detective Ford “testified at length regarding jail classifications,
covering more than 20 pages of trial transcript.” This is true. Detective Ford also
testified that an admission of gang membership in a custodial facility is the most reliable
indicator of a person’s gang affiliation. The answers given during a jail classification
interview determine where the arrestee will be housed, and being housed with gang

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members can have deadly consequences, especially if the arrestee is affiliated with a rival
group. “[I]n essence, you lie, you die.”
We have already summarized the contents of appellants’ inmate classification
questionnaires. Again, Smith was jailed on three occasions and twice acknowledged an
association with the Asian Bloods. He admitted the association in 2007, denied
associating with gangs in 2008, and admitted again in 2012 when booked on the charges
in this case. In all three instances, he wrote “Northerners” in response to a question
regarding his known enemies. Blong denied being associated with gangs on all four of
his questionnaires but sometimes wrote “North” or “Buster” with regard to his known
enemies. Codefendant Saeteurn denied having gang associations following arrests in
January 2012 and in the current case, but he described his enemies as “Nortes” and
“Busters.” Meng Yang, following his arrest in this case, admitted associating with the
Asian Bloods and wrote “Norteno” in response to the question about his enemies.
Jonathan Yang denied associating with gangs in 2010 but identified his enemies as
“Northerners.” When arrested in this case, he admitted associating with “Asian” gangs
but wrote “none” in response to the enemies question.
In light of Elizalde, appellants argue their inmate classification questionnaires and
testimony concerning those documents were erroneously admitted. They further contend
any admissions made during their jail intake interviews were involuntary confessions,
and that they have standing “to challenge the un-Mirandized and involuntary ‘self
admissions’ of … co-defendant Saeteurn, and other persons alleged by
the prosecution to be affiliated with gangs.” We need not address the latter contentions.
Assuming all of the jail classification documents and related testimony was erroneously
admitted, the errors were harmless. In Elizalde, the error was found harmless beyond a
reasonable doubt because the defendant’s gang membership was established through
independent evidence, i.e., “by three witnesses who testified that they knew him to be a
[gang] member.” (Elizalde, supra, 61 Cal.4th at p. 542.) This case similarly involves

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convincing independent proof of appellants’ gang ties and the gang-related nature of the
charged offenses.
Detective Ford testified to having personally spoken with all six of the charged
perpetrators about their gang affiliations. Whereas appellants’ classification
questionnaires indicated that they “associate” with gangs, both of them admitted to
Detective Ford that they were gang members. In addition, both admitted to associating
with gang members during their trial testimony. Smith complains of the prosecutor using
the jail classification evidence to impeach other parts of his trial testimony. However, it
has long been held that “a defendant’s out-of-court statements obtained in violation of
Miranda [can] be used to impeach the defendant’s testimony.” (People v. Nguyen (2015)
61 Cal.4th 1015, 1075, citing Harris v. New York (1971) 401 U.S. 222, 225.)
Codefendant Saeteurn told Detective Ford he was not a gang member but admitted
to associating with such individuals. During the attack on the victim, Saeteurn wore a red
shirt and a red hat with a large “B” logo on it. Jonathan Yang, who also wore red during
the incident, likewise denied gang membership but admitted association. Meng Yang
admitted to Detective Ford that he was a member of the Asian Bloods.
There were no jail classification documents or related testimony for the principal
offender, Joshua Xiong. Detective Ford testified Xiong had previously told him he was a
gang member. During the subject incident, Xiong wore a red sweatshirt and red shoes,
and struck the victim with a cane that had been painted red. As mentioned, the jury saw
photographs of Xiong and Smith together wearing red and displaying alleged gang signs.
Given these facts and all the admissible evidence previously discussed, the gang verdicts
were virtually inevitable regardless of any evidence concerning the jail intake interviews.
We thus conclude the Elizalde errors were harmless beyond a reasonable doubt.
Due Process Claim
Appellants contend the erroneous admission of gang evidence as a result of
Elizalde and/or Sanchez error violated their constitutional due process rights by depriving

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them of a fair trial, and that such error requires reversal of their convictions of assault
with a deadly weapon. We are not persuaded.
“A person seeking to overturn a conviction on due process grounds bears a heavy
burden to show the procedures used at trial were not simply violations of some rule, but
are fundamentally unfair. [Citation.] Ordinarily, even erroneous admission of evidence
does not offend due process unless it is so prejudicial as to render the proceeding
fundamentally unfair.” (People v. Esayian (2003) 112 Cal.App.4th 1031, 1042.)
Appellants’ “fundamental unfairness” argument vis-à-vis the convictions on counts 1
and 2 is not well developed, and they offer little more than citations to People v. Albarran
(2007) 149 Cal.App.4th 214 (Albarran).
In Albarran, a prosecutor introduced evidence of the defendant’s membership in a
gang to substantiate certain enhancement allegations but engaged in “overkill” by
subjecting jurors to police testimony about the gang that “consumed the better part of an
entire trial day.” (Id. at p. 228 & fn. 10.) The testimony focused on the identities of other
gang members, descriptions of unrelated criminal activity committed by other gang
members, evidence of the gang’s threats to kill police officers, and references to the
Mexican Mafia—all of which was found on appeal to be “irrelevant to the underlying
charges” and to have had “no legitimate purpose in [the] trial.” (Id. at pp. 227-231.) The
irrelevant gang evidence created “a real danger that the jury would improperly infer that
whether or not [defendant] was involved in [the charged offenses], he had committed
other crimes, would commit crimes in the future, and posed a danger to the police and
society in general and thus he should be punished. Furthermore, [the] gang evidence was
extremely and uniquely inflammatory, such that the prejudice arising from the jury’s
exposure to it could only have served to cloud their resolution of the issues.” (Id. at
p. 230, fns. omitted.)
Case law holds that “admission of evidence of a criminal defendant’s gang
membership creates a risk the jury will improperly infer the defendant has a criminal
disposition and is therefore guilty of the offense charged.” (People v. Williams (1997) 16

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Cal.4th 153, 193.) However, when evidence of gang activity or membership is important
to the issues of motive and intent, it can be introduced despite its prejudicial nature.
(People v. Martinez (2003) 113 Cal.App.4th 400, 413; see People v. Samaniego (2009)
172 Cal.App.4th 1148, 1167 [“Gang evidence is relevant and admissible when the very
reason for the underlying crime, that is the motive, is gang related.”].) “The admission of
relevant evidence will not offend due process unless the evidence is so prejudicial as to
render the defendant’s trial fundamentally unfair.” (People v. Falsetta (1999) 21 Cal.4th
903, 913, italics added.)
It was apparent from the admissible evidence that this was a gang case. The
victim testified that his attackers called him a “Buster,” and Blong indicated to Detective
Ford during custodial interrogation that the victim was assaulted because of a perceived
Norteno affiliation. All of the gang evidence was relevant, either to the issue of motive
with respect to counts 1 and 2 or to proving the essential elements of count 3 and the
gang enhancement allegations. Detective Ford permissibly testified to self-admissions of
gang membership made to him by Blong, Smith, and others involved in the incident, and
the jury saw properly admitted photographs of Blong and Smith wearing “gang clothing,”
flashing gang signs, and associating with other alleged gang members. Appellants’ own
trial testimony further confirmed their history of associating with gang members. The
inadmissible gang evidence was not “extremely and uniquely inflammatory,” and this
case does not present “one of those rare and unusual occasions where the admission of
evidence has violated federal due process and rendered the [defendants’] trial
fundamentally unfair.” (Albarran, supra, 149 Cal.App.4th at pp. 230-231.)
We also reject the implied argument, apart from the due process claim, that
prejudice arose from Sanchez error and/or Elizalde error in relation to the verdicts on
counts 1 and 2. The implication is that hearing inadmissible evidence of appellants’ gang
ties, combined with the revelation they had been jailed on prior occasions, tainted the
jury’s ability to objectively decide if they were guilty of having assaulted the victim.
First, the entire incident was documented on video. The jurors were well equipped to

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determine whether appellants were among those who could be seen committing the
charged offenses. Second, Smith admitted, during a recorded custodial interview, to
having participated in the assault that occurred inside of the store (i.e., the count 2
offense). Between the video evidence, his prior partial admission of guilt, and the
admissible evidence of his gang connections, we perceive no likelihood the verdict on
count 1 (the initial attack outside of the store) would have been different but for Sanchez
error and/or Elizalde error.
As for Blong, the video evidence and admissible testimony of Detective Ford left
little chance of a more favorable outcome on counts 1 and 2, even though Blong denied
being present when the crimes were committed. His gang ties were independently
established by prior admissions to Detective Ford, the photos from his Myspace page,
and his own trial testimony. While one could infer a propensity to commit crimes based
on his numerous bookings into the county jail, such a conclusion was more powerfully
compelled by the evidence of his prior felony convictions. It is therefore evident, beyond
any reasonable doubt, that the erroneous admission of gang evidence did not affect the
guilty verdicts on counts 1 and 2.
Cross-examination of Defense Experts
Smith presents an additional claim regarding the prosecution’s cross-examination
of appellants’ gang experts on matters of law, including the experts’ familiarity with
provisions of section 186.22. Blong summarily joins in these arguments. We find no
grounds for reversal.
Additional Background
Jesse De La Cruz, Ph.D., served as an expert witness for Blong and codefendant
Saeteurn. Dr. De La Cruz is a convicted felon and was a member of the Nuestra Familia
prison gang during the 1970s. He was 63 years old at the time of trial, and admitted to
having spent the majority of his life engaged in criminal activity. In the late 1990s,
Dr. De La Cruz abandoned his former lifestyle and focused on self-improvement. He
obtained degrees in sociology and social work in 2001 and 2003, respectively, and went

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on to become an educator, published author, participant in community outreach
programs, and a member of various organizations devoted to criminal rehabilitation and
anti-gang endeavors.
In July 2014, Dr. De La Cruz obtained his doctorate in education. His doctoral
thesis focused on the lives of Latino gang members in Stockton. Based on his interviews
with 56 self-admitted gang members, and relying on additional research and his own life
experience, he developed a list of eight “indicators that most gang members have.” His
criteria for determining whether someone is a gang member is as follows: (1) “[G]eneral
emotional assessment” [this factor is not clearly explained in the record]; (2) A
criminogenic background, meaning a family history of criminal behavior and
incarceration; (3) No legitimate work history [“[g]ang members generally don’t work”];
(4) Poor performance in school; (5) An extensive criminal record; (6) Substance abuse
problems; (7) Tattoos [“they usually have the gang tattoo specific to their gang”]; and (8)
Association with gang members.
After interviewing Blong, reading police reports on the charged offenses, and
applying his eight indicators, Dr. De La Cruz concluded and opined that Blong was not a
gang member. He gave weight to Blong’s “calm [and] collected” demeanor during their
interview, his conclusion there was no criminogenic family background, Blong’s
graduation from high school, history of temporary employment for periods of “two or
three months at a time,” lack of substance abuse problems, and the absence of tattoos on
his body. The latter circumstance was deemed “very important” because “[i]f you’re
going to be representing the gang … [y]ou want to let everybody know.” He discounted
Blong’s prior felony convictions because none of the crimes were gang-related. As for
the final indicator, Dr. De La Cruz was under the impression that, apart from Blong’s
family members, Bounme Yang (subject of the predicate offense documented in
Exhibit 8) was “the only guy … that they connected him to as far as being a gang
member.”

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Blong’s attorney posed a hypothetical scenario adapted from the trial evidence,
notably asking the expert to assume the victim had called one of the assailants a “gook.”
The expert was then asked if he could conclude a gang crime had been committed. He
replied, “No, I could not. I would not classify it as a gang crime. I’d classify it as a
racial crime.”
Smith’s gang expert was Albert Ochoa, a behavioral interventionist for the Visalia
Unified School District. His expertise in local gang culture was derived from his
experiences working with teenage gang members. Mr. Ochoa’s testimony was unusually
brief. The direct examination, which addressed his qualifications and ultimate opinions,
spans nine pages of the reporter’s transcript.
Smith’s trial counsel posed a hypothetical scenario wherein a group of Asian
males attacked a Hispanic male who had “used a racial slur like ‘gook,’ called [them] a
racial insult.” Mr. Ochoa was then asked if he believed the attack was “in furtherance or
at the benefit or at the direction of a criminal street gang.” He replied, “No, it’s not,” and
referenced his experiences with young men who can’t control their anger when subjected
to a racial slur. Next, Mr. Ochoa opined it is possible for a person to commit a crime in
association with a gang member without the intent to benefit a gang. He then responded
affirmatively when counsel asked, “have you ever seen where people associate with a
gang, meaning that they’re around them but have no other connection with them [¶] …
[¶] [a]nd commit no crimes?”
During cross-examination of Dr. De La Cruz and Mr. Ochoa, the prosecutor
inquired of their familiarity with the provisions of section 186.22. The experts were also
asked if they had ever read CALCRIM Nos. 1400 and 1401, and whether they were
aware that non-gang members are still subject to liability under the gang statute.
Objections were made to most of these questions and some of the objections were
overruled. In closing argument and rebuttal, the prosecutor criticized the experts for not
knowing the applicable law.

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Appellants allege the trial court erred by overruling certain objections in light of
case law condemning opinion testimony on matters of law and statutory interpretation.
Smith further alleges ineffective assistance of counsel based on his trial counsel’s failure
to base his objections on proper grounds, e.g., only raising and “argumentative” objection
during closing argument and rebuttal. The prosecutor’s questions and comments are also
characterized as prosecutorial misconduct.
Analysis
Even if we assume every assertion of error has merit, the claims fail for lack of
prejudice. First, we incorporate by reference the harmless error analyses set forth in
earlier sections of this opinion. Second, we note the following with respect to the
testimony of both defense experts.
Dr. De La Cruz testified out of order, before Detective Ford appeared as an expert
witness, and was not recalled to address Detective Ford’s expert testimony. Dr. De La
Cruz’s opinions did not account for the admissions of gang membership made to
Detective Ford by Blong, Smith, Joshua Xiong, and Meng Yang. Furthermore, the
questions about section 186.22 and CALCRIM No. 1400 were a relatively small
component of the prosecutor’s cross-examination. She impeached Dr. De La Cruz’s
credibility by highlighting his self-admitted crimes of moral turpitude. His criminal past
included a drive-by shooting that wounded two people, two different stabbings, and a
residential burglary. Heroin addiction was another contributing factor to his five separate
commitments to state prison. Dr. De La Cruz also conceded on cross-examination that he
had no personal knowledge of, or experience with, Asian gang culture in the Visalia area.

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Smith’s expert, Mr. Ochoa, offered generalized opinions with no depth of analysis.
He ignored or disregarded all of the gang evidence in this case. When confronted with
some of that evidence on cross-examination, he testified (without further explanation)
that it had no impact on his opinions. Frankly, the verdicts would have been the same
had the People elected not to cross-examine Mr. Ochoa at all. For the reasons stated, we
conclude the alleged errors were harmless by any standard of prejudice.
Cumulative Error
Appellants allege cumulative error.
Under the cumulative error doctrine, “a series of trial errors, though independently
harmless, may in some circumstances rise by accretion to the level of reversible and
prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844; accord, In re Avena (1996)
12 Cal.4th 694, 772, fn. 32.) The “litmus test is whether the defendant received due
process and a fair trial. Accordingly, we review each allegation and assess the
cumulative effect of any errors to see if it is reasonably probable the jury would have
reached a result more favorable to defendant in their absence.” (People v. Kronemyer
(1987) 189 Cal.App.3d 314, 349, overruled on other grounds in People v. Whitmer (2014)
59 Cal.4th 733, 739-742.) Having conducted such an analysis, we conclude none of the
errors alleged on appeal—whether considered individually or collectively—resulted in
prejudice.
DISPOSITION
The judgments are affirmed.

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_____________________
ELLISON, J.†
WE CONCUR:
_____________________
HILL, P.J.
_____________________
SMITH, J.
† Retired judge of the Fresno Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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