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Name: People v. Pena
Case #: H023394
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 04/29/2005
Subsequent History: Rev. granted 7/27/05

Appellants were five alleged Norteno gang members accused in a joint trial of an assault on a fellow jail inmate. At trial, the court allowed the admission of a statement by one of the codefendants, Carrasco, to Sergeant Tarabini that the victim had disrespected a Norteno gang member and “had to be checked.” Appellants’ request for severance of the trials was denied. The jury was instructed that the hearsay could not be used against the other codefendants. The appellate court reversed the convictions of the four appellants other than Carrasco. The statement to Sergeant Tarabini was testimonial, and as such required full rights of confrontation under Crawford v. Washington. Each defendant’s right to confrontation was violated. The erroneous admission of the statements cannot be judged harmless beyond a reasonable doubt. Further, there was sufficient evidence to support the gang enhancement under section 186.22 with regard to Carrasco because the evidence showed that he committed the assault with the specific intent to punish the victim for not violating prison regulations to aid the gang, and to demonstrate the gang’s power in the face of disobedience or disrespect.