People v. Molina CA1/2 (2022) · DecisionDepot

People v. Molina CA1/2

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California Court of Appeal Jun 24, 2022 No. A147875Unpublished

Filed 6/24/22 P. v. Molina CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A147875 v. (San Francisco County LANCE MOLINA, Super. Ct. No. 217223) Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, A147925 v. (San Francisco County WILLIAM JONES, Super. Ct. No. 217223) Defendant and Appellant.

In the early morning of Sunday, October 4, 2009, three men, Kedric Green, Michael Bailey and Kevin Harrell, all in their 20’s, agreed to drive two women home from a San Francisco nightclub upon learning that one of them, Ariael Kittles, had lost her car keys. The driver, Green, was visiting the Bay Area from Baton Rouge, Louisiana with his friend, Bailey, and they were staying with Bailey’s cousin, Harrell. At the end of the drive, the three would be assaulted and robbed by a group of strangers, and Bailey would be fatally shot.

Four defendants—appellants William Jones and Lance Molina (defendants), and two other defendants who are not parties to this appeal, Maurice Lige and Kittles—were arrested and charged in December 2009 with crimes related to this incident.1 After a 2014 trial, Jones and Molina were convicted of all the counts against them that were presented to the jury and some, but not all, of the accompanying enhancement allegations were found to be true. Kittles was acquitted, and Lige, besides receiving an acquittal on one count, was the beneficiary of a hung jury. In 2016, the trial court sentenced Jones to 57 years to life and Molina to 44 years and 4 months to life in state prison. Jones and Molina each appealed on numerous grounds.2 During the pendency of this appeal, the parties, with our permission, filed supplemental briefing on several subjects, most of which involve legislative changes enacted after trial that apply retroactively to defendants’ cases. This has resulted in voluminous briefing and this unusually long opinion, in which we address the following: First, defendants claim we must reverse all their convictions because the trial court violated their confrontation rights under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) by admitting the perjured preliminary hearing testimony of Arnold Biggins, a purported eyewitness to the incident and to the perpetrators’ actions immediately afterward. Relatedly, they contend the trial court erroneously instructed the jury about

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kind of fair trial which is this country’s constitutional goal. . . . The ‘right of confrontation is not absolute, however [citations], “and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” [Citation.]’ [Citations.] In particular, the right of confrontation ‘does not preclude the prosecution from proving its case through the prior testimony of a witness who is unavailable at trial, so long as the defendant had the right and the opportunity to cross-examine the witness during the earlier proceeding at which the witness gave this testimony.’ [Citation.] ‘ “If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial.” [Citations.]’ [Citation.] “Also indisputable is the principle that a witness, upon proper assertion of the privilege against self-incrimination, is unavailable as a witness at trial. [Citation.] ‘Evidence Code section 240, subdivision (a) defines unavailable witnesses as any of five types of witnesses. A witness who is exempted from testifying on the ground of privilege is defined as one type.’ [Citation.] ‘A witness who successfully asserts the privilege against self-incrimination is unavailable to testify for these purposes.’ [Citation.]” (Hollinquest, supra, 190 Cal.App.4th at pp. 1546-1547, fn. omitted.) The Hollinquest court further explained that Evidence Code section 1291, regarding the admission of former testimony, codified the “recognized exception to the rule that a criminal defendant has the right to confront the witnesses against him . . . . ‘When the requirements of Evidence Code section 1291 are met, “admitting former testimony in evidence does not violate a defendant’s right of confrontation under the federal Constitution. [Citations.]” [Citation.] [¶] Evidence Code section 1291, subdivision (a)(2),

The Hollinquest court disagreed. It was not convinced that Hollinquest’s cross-examination at the preliminary hearing was compromised by the lack of prior access to cell phone records because Hollinquest’s interest and motive at trial were “not dissimilar” to those he had at the time of the preliminary hearing “ ‘ “simply because events occurring after the first proceeding might have led counsel to alter the nature and scope of cross- examination of the witness in certain particulars.” ’ ” (Hollinquest, supra, 190 Cal.App.4th at p. 1549.) The court noted that the defense probed Buchanan’s calls to Hollinquest at the preliminary hearing. (Ibid.) “Thus,” the court continued, “the defense had a reason and at least the opportunity to elicit testimony from Buchanan about the extent of his cell phone conversations with defendant at the preliminary hearing. We also do not think any cross-examination of Buchanan on the subject of cell phone records by the defense at trial would have resulted in a more successful challenge to the reliability of his testimony. [Citation.] ‘ “As long as defendant was given the opportunity for effective cross-examination, the statutory requirements were satisfied; the admissibility of this evidence did not depend on whether defendant availed himself fully of that opportunity.” [Citation.]’ [Citation.] Further, at trial the defense had the cell phone records, and managed to engage in cross-examination and argument as to their import in the case.” (Id. at pp. 1549-1550, fn. omitted.) The Hollinquest court also rejected Hollinquest’s assertions that it was necessary to cross-examine Buchanan at trial to “bring out ‘whether Buchanan was expecting or being given any benefits in his own case in exchange for his testimony’ ” and so that the jury could observe his demeanor. (Hollinquest, supra, 190 Cal.App.4th at p. 1550.) Regarding the former, the court concluded the defense had the chance to explore the issue at trial

one of the assailants who attacked Bailey and that Green provided a description of the gunman who approached his car that was consistent with Harrell’s description and, apparently, with Jones’s physical appearance. It also includes the particularly damning photographic evidence showing that on the night of the incident, Jones wore a Rocawear jacket matching the jacket police seized from Biggins’s house that, as revealed by later testing, had Bailey’s blood on it. It includes Moore’s testimony that she brought some liquor to Jones at the Horseshoe the night of the incident and picked him, Molina and Kittles up on Nichols Street, where Biggins lived, shortly after the incident. Not only did Moore’s testimony place Jones at the Horseshoe on the night of the crime and, later that night, at or near Biggins’s house, it showed he lied to police by denying he was present at the Horseshoe at all in the hours before the incident and claiming he was at his girlfriend’s house throughout that night. Likewise damning for Jones was his jail cell call instructing Molina to say he had not seen Jones on the day of the incident, which indicated he was concocting a false story. In light of the other evidence against Jones and the absence of any dispute that Biggins testified falsely about the chain, the issue of whether Biggins committed perjury by knowingly misidentifying the seized neck chain as his own was of little consequence. The jury did not unqualifiedly accept all of Biggins’s testimony; nor, given the ample other evidence against Jones, did it need to do so to convict him. We conclude, therefore, that any error by the trial court in instructing the jury about Biggins’s possible perjury was harmless beyond a reasonable doubt. D. Jones’s Claim That the Prosecutor Did Not Show He Acted Diligently to Obtain Biggins’s Trial Testimony Lacks Merit. Finally, Jones argues the prosecutor failed to meet his burden of showing he acted diligently to obtain Biggins’s testimony at trial. Instead,

Jones moved for a new trial based on alleged prosecutorial misconduct that he claimed violated his confrontation rights. As the moving party, Jones had the burden below of establishing that the prosecutor engaged in misconduct. (See People v. Watts (2018) 22 Cal.App.5th 102, 116-117 [“On a motion for a new trial, the defendant has the burden of showing both the ineffectiveness of counsel and the prejudice it caused”].) Further, as this court recently noted, “We review a court’s ruling on a motion for a new trial ‘under a deferential abuse of discretion standard,’ which, regarding a constitutional claim, means ‘the asserted abuse of discretion is the asserted failure of the trial court to recognize violations of defendant’s constitutional rights.’ ” (People v. Ramirez Ruiz (2020) 56 Cal.App.5th 809, 825.) Put differently, we review the denial of a motion for a new trial de novo when claimed errors of constitutional magnitude are involved (see People v. Ault (2004) 33 Cal.4th 1250, 1260-1262 [regarding defendant’s constitutional right to a fully impartial jury]), but we defer to the trial court’s express or implied findings if supported by substantial evidence. (People v. Taylor (1984) 162 Cal.App.3d 720, 724.) This standard of review is essentially the same as that stated in Cromer, the case Jones relies on for his assertion of de novo review. (See Cromer, supra, 24 Cal.4th at pp. 900-901 [outlining a two-step review in which the reviewing court “appl[ies] a deferential standard of review to the trial court’s factual findings” and then conducts an independent review of a trial court’s determination that the prosecution’s efforts are sufficient to justify an exception to the defendant’s confrontation rights at trial].) With these principles in mind, we examine the merits of Jones’s argument. His analysis is fatally flawed because it is based on the false premise that the prosecutor’s agreement with Biggins’s sentencing court that

he was dismissing the charges brought against Biggins “purely because the evidence didn’t support a murder charge” shows the prosecutor charged Biggins in bad faith in the first place, since the evidence did not change between when the charges were filed in June 2014 and the sentencing hearing occurred in October 2014 in Biggins’s case. Jones places too much reliance on the prosecutor’s assent to the court’s summary of his reasons for reducing the charges while ignoring the prosecutor’s other statements and the context in which they were made. As the prosecutor later discussed with the trial court in opposing defendants’ motions for a new trial in the present case (and alluded to before the Biggins sentencing court when he referred to the jury’s disregard of Biggins’s preliminary hearing testimony in this case), a highly significant event occurred between when the prosecutor filed the original charges against Biggins and when he agreed to the negotiated disposition of Biggins’s case that caused him to reevaluate the strength of the evidence against Biggins: the jury in the present case returned a decidedly mixed set of verdicts regarding Jones, Molina, Kittles and Lige. The jury acquitted Kittles altogether, acquitted and hung on the charges against Lige, and found not true that in committing the murder Jones personally and intentionally discharged a firearm causing great bodily injury and personally and intentionally discharged a firearm for the benefit of a criminal street gang or to promote criminal conduct by gang members which caused great bodily injury. As the prosecutor contended in opposing Jones’s motion for a new trial, the jury’s verdicts unquestionably indicated its discomfort with relying on Simonton’s testimony (as well as Biggins’s). The jury was not convinced of several factual contentions the prosecution made for which Simonton’s testimony provided particularly important support, namely that Lige participated in the robbery (Simonton testified that Lige

participated in fighting with Bailey, later threw a “fake” necklace taken in the incident onto the roof of a building and went to the “Samoan’s” house (meaning Biggins’s) immediately after the incident), that Kittles also was involved (Simonton testified that she came to Biggins’s house immediately afterwards as the group looked at what had been taken in the robbery) and that Jones shot Bailey dead (Simonton testified that he saw Jones shoot Bailey and later leave his jacket and gun with Biggins). According to the prosecutor in opposing defendants’ motions for a new trial, the jury’s obvious discomfort caused him to reevaluate his ability to prove a robbery/murder case against Biggins. The prosecutor’s assertion is supported by the record. No one presented evidence at the trial in this case that suggested Biggins was the shooter (the defense pointed at Simonton rather than Biggins, based on Simonton’s apparent resemblance, like Jones, to the victims’ description of the armed man who confronted them). The evidence other than Simonton’s and Biggins’s testimony suggested the robbers went together to Biggins’s house immediately after the incident (as indicated by Moore’s testimony that she picked up Jones, Molina and others on the street where Biggins lived soon after the incident) and indicated that Biggins kept Bailey’s neck chain in his bedroom drawer. These post-robbery facts tend to show Biggins’s involvement, but a jury might find them insufficient to establish beyond a reasonable doubt that Biggins participated in the robbery. To prove Biggins’s involvement, the prosecutor could not necessarily rely on Biggins’s prior testimony, since it was given in exchange for immunity. Moreover, Biggins did not directly implicate himself and there was evidence suggesting he believed the chain he retained was not the stolen one but a similar one he already owned. And Biggins’s statements to police were many and varied and could have been portrayed, as they were in this

when the court asked him the reasons for dismissing the original charges. For example, Jones contends that the prosecutor told the sentencing judge that his views of Biggins’s case were affected by Biggins having cooperated with the defense (as well as the prosecution and the police) prior to the change in his account about the chain, but there is no indication in the record that Biggins cooperated with the defense. Jones asserts that the prosecutor’s statements to the court that he was affected by further investigation of the murder made no sense, since Biggins was first charged after the prosecution already had investigated and prepared for trial for a period of five years. Jones also asserts that the prosecutor inexplicably referred to Biggins providing a photograph of his own, “very similar necklace” when Biggins provided this photograph before he was charged (apparently to criticize the prosecutor’s decision to drop the perjury charge against Biggins as part of the negotiated disposition of his case). These statements may have been incorrect and/or not made much sense, but the trial court did not attribute them to deliberate, bad faith conduct on the part of the prosecutor, nor do we. In light of the verdict and what it indicated about the relative weakness of the evidence that remained available, these assertions are not grounds for holding there is insufficient evidence to support the trial court’s finding. Jones also relies on several cases, both within California and in other jurisdictions, that held a violation of confrontation or due process rights had occurred under various circumstances. None of these cases involved the circumstances present here, where the prosecutor provided a reasonable explanation for both his decision to charge Biggins and his later decision to dismiss those charges. (See State v. Herrera (1979) 286 Or. 349 [594 P.2d 823, 827-828] [prosecution failed to explain why it withdrew a witness’s immunity to testify after the witness testified at a preliminary hearing];

People v. Shapiro (N.Y.App.Div.1980) 50 N.Y.2d 747 [409 N.E.2d 897, 902- 905] [prosecutor’s threats to charge exculpatory witnesses with perjury if they testified differently than before violated defendant’s due process rights]; People v. Robinson (1983) 144 Cal.App.3d 962, 969-972 [prosecutor’s threat that defense witness would be charged if she testified improperly deprived defendant of that witness, but was harmless]; State v. Finley (2000) 268 Kan. 557 [998 P.2d 95, 100-104] [prosecutor deprived defendant of his due process and fair trial rights by threatening to refile charges against defense witness that had been dropped in exchange for her agreement to testify, resulting in her refusal to testify]; People v. Bryant (1984) 157 Cal.App.3d 582, 587-594 [prosecutor’s remarks to pending defense witness about present and possible future perjury charges against him, which led to witness refusing to testify, constituted government intimidation that violated defendant’s constitutional right to call witnesses on his behalf].) Therefore, these cases are inapposite. Jones further argues that the fact that the robbery charges against Biggins were purportedly barred by the three-year statute of limitations on robbery is evidence of the prosecutor’s bad faith. Assuming for the sake of argument that Jones’s assertion about the statute of limitations is correct, the prosecutor’s inclusion of the robbery charges does not establish bad faith. First, as Jones concedes, Biggins could have waived the statute of limitations as part of a negotiated disposition of his case. (Cowan v. Superior Court (1996) 14 Cal.4th 367, 372-373.) Further, the prosecutor may have included the robbery charges because robbery is an element of the felony-murder doctrine even if it could not be separately prosecuted. (People v. Morris (1988) 46 Cal.3d 1, 14 [“It is well settled that the statute of limitations applicable to the underlying felony is immaterial to the charge and conviction of felony murder”], disapproved on other grounds in In re Sassounian (1995)

Molina also argues that the jury’s finding that the firearm enhancements alleged against him were not true suggests it found him guilty of murder based on the natural and probable consequences doctrine. We cannot readily explain the jury’s finding not true as to Molina, but true as to Jones, that a principal was personally armed with and personally used a firearm in connection with the incident. Defendants were charged with, and found guilty of, first degree murder, conspiracy to commit robbery, and robbery regarding the same incident and the evidence unequivocally showed Bailey died from gunshot wounds. But we need not explain the inconsistencies to resolve the issues raised by defendants. (See People v. Carbajal (2013) 56 Cal.4th 521, 533 [“ ‘The system accepts the possibility that “the jury arrived at an inconsistent conclusion through ‘mistake, compromise, or lenity’ ” ’ ”]; People v. Gonzalez (2018) 5 Cal.5th 186, 207 [“[w]here a jury’s findings are irreconcilable, we normally attribute such tensions to compromise, lenity, or mistake, and give effect to all of the jury’s findings”].) Molina also contends that the jury could have improperly convicted him of first degree murder under the natural and probable consequences doctrine based on the felony murder instructions, which permitted conviction of defendants who were accomplices to a robbery or participated in a conspiracy to rob in which one of the perpetrators causes a death to occur. Molina is incorrect. He conflates the felony murder instructions with a natural and probable consequences instruction. The trial court’s felony murder instructions nowhere refer to or require any finding of “natural and probable consequences”; nor did they need to. (People v. Escobar (1996) 48 Cal.App.4th 999, 1020 [felony-murder doctrine has “no requirement that killings which occur during the perpetration of a felony be a natural and probable consequence of the felony aided and abetted”], abrogated on another point in

And indeed, the evidence does not. It indicates that the entire incident, from the time the three victims arrived in their car until they drove away, lasted only seven minutes. This includes the car arriving at the Horseshoe, Kittles’s last conversation with Bailey and her exit from the car, and the men approaching the car, talking to the victims, robbing them and looking for other valuables in the car, ordering them out of the car, looking on their persons for additional items to take, attempting to get them down on the ground, attempting to take their clothes, fighting with them, and after the shooting, fleeing as Green and Harrell carried Bailey to the car, put him in it, got in themselves and drove away. The evidence further indicates that the sequence of events immediately around the shooting, at most, lasted a few minutes, and there is no evidence that this sequence was planned. It involved a gunman fighting with a resistant Bailey over the gun and holding a gun to Bailey’s head, others in the vicinity urging the gunman to kill Bailey, Bailey backing up and falling to the ground, attempting to get up, the gunman shooting Bailey in the side or abdomen, Bailey trying to get up a second time and the gunman shooting him again, twice. This evidence does not suggest premeditated murder, which requires proof beyond a reasonable doubt of both deliberation and premeditation. “ ‘ “Deliberation” refers to careful weighing of considerations in forming a course of action; ‘ “premeditation” means thought over in advance. [Citations.]’ [Citation.] “Premeditation and deliberation can occur in a brief interval. ‘The test is not time, but reflection. “Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.” ’ ” ’ ” (People v. Solomon (2010) 49 Cal.4th 792, 812.) Thus, it is legally possible for a jury to find a murder that occurred in a matter of a few minutes was nonetheless premeditated. Nonetheless, here there is virtually no evidence that Molina

common’ (American Heritage Dict. (4th ed. 2000) p. 109), or ‘an organization of persons having a common interest’ (Merriam-Webster’s Collegiate Dict. (11th ed. 2003) p. 75). The same is true of definitions of ‘organization,’ which describe, for example, ‘[a] group of persons organized for a particular purpose . . .’ (American Heritage Dict., supra, at p. 1239), and persons comprising a ‘functional structure’ (Merriam-Webster’s Collegiate Dict., supra, at p. 874). Both terms envision some measure of connection among members, such as unity of purpose, shared activities, or other manifestations of a common relationship.” (Prunty, at p. 72, italics added.) “The phrase ‘primary activities,’ . . . implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations,” as opposed to the occasional commission of those crimes by one or more of the group’s members. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) “Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” (Id. at p. 324.) “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.) Further, as used in section 186.22, “ ‘pattern of criminal activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of, two or more” of certain enumerated offenses, “provided at least one of these offenses occurred after the effective date of this chapter, and the last of those offenses occurred within three years of the prior offense and within three years of the date the

by several sources, of statements that are testimonial in nature, including “ ‘extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’ [citation]; [and] ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial . . .’ [citation].” (Id. at pp. 51-52.)’ ” (People v. Pearson (2013) 56 Cal.4th 393, 462 (Pearson.) Since Crawford, our Supreme Court has construed information contained in police reports as testimonial because such reports “relate hearsay information gathered during an official investigation of a completed crime.” (Sanchez, supra, 63 Cal.4th at p. 694.) Thus, a statement about a completed crime made to an investigating officer by a nontestifying declarant is generally testimonial unless an exception applies. (Ibid.) In Sanchez, our Supreme Court specifically addressed gang expert testimony and limited the parameters of permissible testimony based both on Crawford’s confrontation clause ruling and on hearsay principles. We explained the significance of Sanchez in People v. Anthony (2019) 32 Cal.App.5th 1102 (Anthony): “In Sanchez, . . . the [California] Supreme Court . . . created a new paradigm for the presentation of gang expert testimony. (Sanchez, supra, 63 Cal.4th at p. 679.) Before Sanchez, an expert was given the latitude to testify both about general background information and about case-specific out-of-court statements in order to explain the basis for his or her expert opinion, and the court typically would instruct the jury to consider the information for that purpose only, and not for its truth. (Id. at p. 683, citing People v. Gardeley (1996)14 Cal.4th 605.) In Sanchez, the court eliminated this latitude with respect to case-specific facts, which it defined as facts ‘relating to the particular events and participants alleged to have been

involved in the case being tried.’ (Id. at p. 676.) It reasoned that when no other and competent evidence of those facts is offered, ‘there is no denying’ that the hearsay statements relayed by the expert are being offered for their truth. (Id. at p. 684.) Indeed, the jury in Sanchez had been instructed that, in assessing the believability of the expert, it ‘ “must decide whether information on which the expert relied was true and accurate.” ’ (Id. at p. 684; CALCRIM No. 332.) While the jury had also been instructed that the hearsay statements on which the expert relied should not be considered ‘ “proof that the information contained in those statements was true,” ’ that instruction was in conflict with the first one and could not logically have been applied. ‘[The jury] cannot decide whether the information relied on by the expert “was true and accurate” without considering whether the specific evidence identified by the instruction, and upon which the expert based his opinion, was also true.’ (Sanchez, at p. 684.) The state law evidentiary rule established in Sanchez, simply stated, is that out-of-court statements about case-specific facts may not be relayed by an expert witness unless they fall within an exception to the hearsay rule. Absent an exception, the case- specific facts must be established by competent (non-hearsay) evidence presented by other witnesses and the expert’s opinion may be based on a hypothetical question that assumes those facts. (Ibid.) “In Sanchez, the court also addressed the Sixth Amendment’s confrontation clause, as interpreted by the United States Supreme Court in Crawford and its progeny. (Sanchez, supra, 63 Cal.4th at pp. 685-686.) Admission through an expert of hearsay statements concerning case-specific facts, the court opined, violates the Evidence Code and, if the hearsay statements were testimonial and Crawford’s exceptions do not apply, also violates the Sixth Amendment. (Sanchez, at p. 685.) A ‘testimonial’

accepted background information’ ([Sanchez, supra, 63 Cal.4th], at p. 676), even when that information is based on hearsay: ‘In addition to matters within their own personal knowledge, experts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc.’ (Id. at p. 675.) ‘An expert may . . . testify about more generalized information to help jurors understand the significance of . . . case-specific facts.’ (Id. at p. 676.)” (Anthony, supra, 32 Cal.App.5th at p. 1131.) Recently, in People v. Valencia (2021) 11 Cal.5th 818, 831 (Valencia), our Supreme Court further distinguished between testimony that relates mere background information and testimony that relates case-specific facts. The issue in that case was whether testimony about predicate offenses fell on the case-specific or general background side of the line. The court held that predicate offense testimony is the kind of case-specific fact about which an expert cannot testify based on hearsay. “Hallmarks of background facts,” the court said, “are that they are generally accepted by experts in their field of expertise, and that they will usually be applicable to all similar cases.” (Id. at p. 836.) Testimony about such facts may concern “ ‘background information regarding [the expert’s] knowledge and expertise and premises generally accepted in his field.” (Id. at p. 835.) Thus, a physician may “ ‘relate generally accepted medical knowledge that will assist the jury’ ” without “ ‘personally replica[ting] all medical experiments dating back to the time of Galen.’ ” (Id. at p. 836.) Another example the court drew was from its recent decision in People v. Veamatahau (2020) 9 Cal.5th 16, in which it held an expert’s testimony about an FDA requirement that pills containing controlled substances bear distinct markings and a database relied on by

The evidence of Molina’s gang affiliation, besides his presence when Jones was arrested, his “Rock in Peace” tattoo and the nature of the crimes alleged in the present case against Jones, consisted of photographs of him making, or with others making, gang signs, including one with Marshall, and that he was found in a car with Marlborough and an assault rifle. Arguably, this evidence is substantial enough to support the jury’s gang findings and convictions under the old version of section 186.22, or even under the recently modified version. But that is not the question we must answer here. Given the instructional errors and the improper admission of hearsay and testimonial hearsay evidence here, we must determine whether there is sufficient evidence to render these federal constitutional errors harmless. As we have discussed in part II of the Discussion section, ante, the People, as the beneficiary of these errors, must “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman, supra, 386 U.S. at p. 24.) Reversal is required if there is a “ ‘reasonable possibility’ ” that the errors “ ‘might have contributed to the conviction.’ ” (Id. at p. 23.) In other words, we must determine whether the errors influenced the jury’s determinations. (See People v. Pettie (2017) 16 Cal.App.5th 23, 65.) “The test is not whether a hypothetical jury, no matter how reasonable or rational, would render the same verdict in the absence of the error, but whether there is any reasonable possibility that the error might have contributed to the [verdicts] in this case.” (People v. Lewis (2006) 139 Cal.App.4th 874, 887; accord, Pearson, supra, 56 Cal.4th 393, 463.) The People have not provided us with this level of certainty for three reasons. As we have indicated, Sergeant Jackson testified to an overwhelming amount of hearsay and testimonial hearsay evidence that, if believed, established an extensive and disturbing web over several years of

The court declined to adopt a bright-line rule based solely on the statute because it did not spell out that conspiracy crimes were either excluded or included. It rejected the “general rule” urged by the People “that section 182 [, subd.] (a) embraces enhancements and other similar penalty provisions” unless the statute expressly excludes them. (Lopez, supra, 12 Cal.5th at pp. 967-968.) It likewise rejected the defendant’s argument that the sentencing statute’s failure to expressly include conspiracy crimes should end the analysis and dictate that conspiracy crimes were not encompassed by the law. (Id. at pp. 971-972.) Rather, the court held the appropriate course was to apply “the usual tools of statutory interpretation” to ascertain legislative intent. (Id. at pp. 968-969.). The court looked at the context of the sentencing provision, as part of a broader measure (Proposition 21 (Primary Elec. (Mar. 7, 2000))) (Proposition 21) and considered that measure as whole. (Lopez, supra, 12 Cal.5th at pp. 972-973.) In Proposition 21, it found “particular reason to believe that when voters authorized indeterminate life terms as alternative penalties for convictions of certain enumerated offenses found to be gang- related, they did not intend to sweep in conspiracy convictions as well.” (Lopez, at pp. 971-972.) Specifically, other provisions of the initiative Proposition 21 expressly referred to conspiracy, including one that imposed enhancements of two to five years for a conspiracy to commit certain gang- related crimes. (Lopez, at p. 972.) The court identified other provisions specifically addressing the law of conspiracy. (Id. at pp. 972-973.) While voters had addressed conspiracy law, including providing specific term enhancements, “they did not adopt any comparable provision with respect to the alternate life penalties prescribed in section 186.22 [,subd.] (b)(4).” (Id. at p. 972.) “Under ordinary principles of statutory interpretation, [the court]

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