People v. Cerezo CA2/6

Filed 3/18/15 P. v. Cerezo CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B254016 (Super. Ct. No. 2010032139) Plaintiff and Respondent, (Ventura County)

v.

JOE L. CEREZO,

Defendant and Appellant.

Joe L. Cerezo appeals conviction by jury of vehicle theft for the benefit of a criminal street gang and street terrorism. (Veh. Code, § 10851; Pen. Code, § 186.22, subds. (a) & (b)(1).) The imposition of Cerezo's sentence was suspended. He was ordered to serve time in county jail and placed on formal probation with a number of terms and conditions. Cerezo contends his Sixth Amendment right to confrontation was violated when a gang expert relied on testimonial hearsay to prove an element of the street terrorism crime and the gang enhancement. (Pen. Code, § 186.22, subds. (a) & (b); Crawford v. Washington (2004) 541 U.S. 36.) He recognizes that existing law does not support his position. (People v. Gardeley (1996) 14 Cal.4th 605, 619.) But he seeks modification of existing law and notes that the California Supreme Court is considering the issue whether a defendant's Sixth Amendment right to confrontation is violated by a gang expert's reliance on testimonial hearsay. (See People v. Sanchez (2014) 223 Cal.App.4th 1, review granted May 14, 2014, No. S216681.) We affirm.

FACTUAL AND PROCEDURAL BACKGROUND Cerezo is a member of the Ventura chapter of the Hells Angels motorcycle club, a criminal street gang. William Hoffman was a "prospect," or probationary member, of the Ventura chapter. In August 2010, Hoffman decided to leave the Hells Angels. If a Hells Angels member or prospect leaves the gang, he is expected to appear at the chapter's clubhouse to subject himself to a beating and to other conditions of departure. Hoffman told a Hells Angels member he intended to leave the gang. On August 20, Hoffman was expected at the clubhouse but did not appear. He did not respond to telephone calls and text messages that night from Hells Angels' members. At 3:00 the next morning, Cerezo and gang members Aaron McIntosh and William Holder knocked on the door of the house where Hoffman was staying. They asked Hoffman to return to the clubhouse with them. Hoffman refused. They demanded Hoffman's motorcycle and vest. Hoffman refused to surrender the motorcycle, and they took it. Hoffman described some of the activities of the Ventura chapter. He testified that he used violence for the Hells Angels when he was a prospect. He saw others do so at least five times. He heard members brag about beatings and drug sales they committed for the gang. He saw them take the motorcycles of every member who left. He once saw members "beat . . . up" a person they "kicked out" of the gang, and then "hog-tie" him while a tattoo artist blacked-out his Hells Angels tattoos. The only other evidence of predicate criminal offenses by Hells Angels' members was presented by the prosecution's gang expert, Deputy Sheriff Steven Jenkins. Jenkins was also the lead investigator in the case. He testified that the Hells Angels motorcycle club is a criminal street gang that is engaged in drug trafficking and extortion. He testified that taking a motorcycle from a prospect who leaves the gang benefits the gang because it prevents an appearance of weakness, induces fear and intimidation, and deters others from thinking they can leave the gang on their own terms.