Opinion
F059471 Super. Ct. No. VCF201117
10-14-2011
THE PEOPLE, Plaintiff and Respondent, v. MARIO ANTHONY LEON, Defendant and Appellant.
Kathleen M. Scheidel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge.
Kathleen M. Scheidel, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Mario Anthony Leon of the first degree murder of Carlos Lopez (Pen. Code, § 187, subd. (a)). The jury found true the two special circumstance allegations that the murder was committed while appellant was engaged in the attempted commission of a robbery (§ 190.2, subd. (a)(17)) and while appellant was an active member of a criminal street gang and was carried out to further the activities of the gang (§ 190.2, subd. (a)(22)). The jury also found true a gang enhancement (§ 186.22, subd. (b)(1)(c)) and a personal firearm use enhancement (§ 12022.53, subd. (d)). The court sentenced appellant to life without parole plus a consecutive term of 25 years to life for the firearm enhancement. On appeal, appellant challenges the admissibility and sufficiency of the evidence supporting the gang allegations. Appellant further contends the court erred in denying his pretrial motion to bifurcate the gang allegations. Appellant also raises claims of instructional error, ineffective assistance of counsel, and cumulative error. Finding no prejudicial error at appellant's trial, we will affirm the judgment.
Further statutory references are to the Penal Code unless otherwise specified.
FACTS
Around 3:00 a.m., on July 21, 2007, Carlos Lopez stopped to get gas at a gas station located on Houston and Ben Maddox Streets in Visalia. Lopez was accompanied by Esteban Coria and Hugo Meza, two acquaintances from work.
Lopez, Coria, and Meza went inside the gas station store to pay and then returned to Lopez's car to pump gas. A few minutes later, three young Hispanic men approached Lopez's group and asked for money. According to Meza, one of these men (later identified as appellant) was wearing a white shirt, one was wearing a black shirt and red hat, and one was wearing a red shirt.
The two groups started arguing, with appellant's group demanding money and Lopez's group refusing. During the argument, appellant pulled out a gun, pointed it at Lopez, and threatened to shoot Lopez if he did not give appellant any money. According to Coria's trial testimony, Lopez refused to give appellant any money and swung his fist at appellant. Appellant then shot Lopez in the chest. Lopez died shortly thereafter from the single gunshot wound to the chest. After appellant shot Lopez, he and his companions got into their car and drove away.
On the morning of the shooting, Meza and Coria both provided statements to police investigators. According to Meza's statement, when appellant pointed his gun and demanded that Meza and Lopez empty their pockets, Lopez said, "We don't even bang." When Lopez refused to give money to appellant, appellant threatened to shoot Lopez in the leg. Lopez replied, "do it, do it," after which appellant shot him in the chest. Meza described appellant as a Hispanic male, around 19 or 20 years old, and five feet nine inches tall. Meza also noted that appellant had a star tattoo above his right eye.
In his police statement, Coria, like Meza, reported that Lopez stood up to appellant during the encounter. Lopez reportedly said to appellant, "Go ahead and shoot. There is a cop right there. You'll get caught up in this." Coria described appellant as a young Hispanic male, five feet nine inches or five feet ten inches tall, with tattoos on his inner forearms.
Meza and Coria subsequently identified appellant as the shooter in photographic lineups prepared by William Diltz, an officer with the violent crimes division of the Visalia Police Department. Diltz testified that he compiled the photographic lineups using six photographs of similar looking individuals. Diltz explained the photograph of appellant was altered so the star tattoo on his forehead would not be visible.
Diltz showed Coria one of the photographic lineups on August 13, 2007. Coria picked appellant's photograph and said, "He was there. He was talking to me." Diltz showed Coria another photographic lineup on August 27, 2007. Coria picked the same photograph of appellant and said he was the one who shot Lopez.
Diltz also showed Meza a photographic lineup on August 13, 2007. Meza picked appellant's photograph and said, "That's him. He shot [Lopez]." Meza noted, however, that the photograph was different, explaining the shooter "had a star tattooed over his right eye." Diltz then showed Meza an unaltered photograph in which appellant's star tattoo was visible. Meza responded: "That's the guy. That's the star tattoo."
At trial, Coria and Meza both disavowed their prior identifications of appellant and claimed they were unable to identify or recall details about the person who shot Lopez. Both denied seeing a star tattoo on the shooter. Coria testified that Meza told him the shooter had a star tattoo on his forehead. Meza, however, testified that Coria was the one who told him the shooter had a star tattoo somewhere on his face.
Gang Evidence
Diltz searched appellant's bedroom on August 23, 2007, and collected various items Diltz described as indicative of "northern or Norteno membership or affiliation, gang membership." The items included a red beanie cap, a red and white striped baseball cap with a large red "N" embroidered on the front, a red San Francisco hat with a red emblem, and a red cloth belt with a letter "N" metal belt buckle. Diltz also collected a compact disk, on which was written "North Side Visa tracks" in capital letters.
In addition, Diltz collected from appellant's bedroom a number of photographs, which he described as follows: "The photographs show [appellant] with the tattoo, without the tattoo, wearing red ball cap, also wearing white T-shirt, and other subjects showing gang signs as well as [appellant]." Diltz also found a newspaper article, which he described as "a front page article from the Visalia Delta May 12th through the 13th, weekend edition, 2007," entitled "Gangs Creep In." Finally, Diltz collected a green pencil drawing of a sombrero with the word "Norte" written across the top.
Officer Luma Fahoum, a member of the Visalia Police Department's gang suppression unit, testified as the prosecution's gang expert. Fahoum testified that the Norteños are a predominantly Hispanic criminal street gang in Visalia, which identifies with the color red, the number 14, and the letter "N." There are over 1,000 Norteños in Visalia. North Side Visa (NSV) is the primary clique of Norteños in Visalia. Their common tattoos include the number 14, "X4," four dots, the letter "N," a Huelga bird, and the northern star." Fahoum opined that the primary activities of Norteños in Visalia were vandalism, burglary, carjacking, assault with a deadly weapon, drive-by shootings, robberies, murders and witness intimidation. The Norteños main rivals are the Surenos, who identify with the color blue, the number 13, and the letter "M."
Fahoum testified that when crimes are committed by gang members it is "nearly impossible" to find witnesses who are willing to come forward, and "[t]he ones that do come forward or do give a statement usually either recant ... or refuse to come to court out of fear." Fahoum further testified that if a gang member went to court to testify, even against a rival gang member, he would be labeled by other gang members as a "snitch" or a "rat" and, if in custody, would have to be segregated from other gang members.
Fahoum further testified about predicate offenses committed by NSV members. Between July 13 and July 27, 2005, Robert Mendoza and Usibo Campos went on a crime spree in Visalia, robbing several stores while wearing red bandanas over their faces. On September 21, 2007, David Huerta shot a fellow NSV member after he refused to get down on his knees and apologize to Huerta for becoming involved with Huerta's girlfriend. After the shooting, Huerta stole the other gang member's car and led police on a high-speed car chase throughout the city. With respect to this incident, Fahoum opined that Huerta likely perceived the refusal to apologize as an insult. Fahoum explained: "In the gang, world no insult goes unanswered. You're not really worth your salt as a gangster if you're going to walk away. And he was insulted multiple times. One, he was dating his girlfriend. Two, he refused to apologize for it. So it just went all kinds of bad for the victim."
Fahoum testified that gang members do not simply prey on rival gang members but often commit crimes of opportunity, such as carjacking and robberies, where the "[v]ictim just happens to be in the wrong place at the wrong time."
Fahoum described the concept of "respect" in gang culture:
"Gang members, that's what they do, they intimidate. They usually are in numbers, strength in numbers. They fly colors. They flash gang signs. They do things to intimidate other gang members and victims in society, witnesses. [¶] So ... the best way I can describe it is no insult goes unanswered in the gang world. If a gang member is insulted, there is 99.9 percent of the time retribution going to be - they're going to be dealt with the person who insulted that gang member in one way or another, usually right then, but could possibly be later."
Fahoum further testified that it is common for gang members to commit crimes alongside fellow gang members to demonstrate their dominance in a particular area or neighborhood. Fahoum explained that the majority of gang violence involves disputes over "turf." Committing a crime also benefits a gang member's individual status within the gang, because status is based on a progression from committing relatively minor to violent crimes.
Fahoum researched appellant's background by reviewing police reports and speaking to probation officers and detectives involved in this case. Fahoum's review of the information from these sources showed:
-On November 24, 2004, appellant identified himself as a NSV member when he was admitted into boot camp.
-On March 26, 2005, appellant was wearing a red shirt when he was contacted by Police Officer Verissimo. Appellant told the officer that he was wearing the red shirt because he was a Norteno. Appellant said he had been a Norteno all his life because he was from the north side. Appellant also said that he hated Surenos.
-On September 20, 2002, appellant was contacted at Green Acres School by Police Officer Johnson and admitted that he was a Norteno and that he was with two other Norteños.
-On March 1, 2003, appellant told Probation Officer Blackerby that he "kicks it" with Norteños.
-On August 3, 2003, appellant told Probation Officer McMann that he had been associating with Norteños since he was 13 years old. Appellant's parents were also interviewed and expressed concern about appellant's gang association.
-On December 2, 2003, appellant was again contacted by probation and admitted to associating with NSV.
-On February 29, 2004, a probation officer contacted appellant's mother, who said appellant was heavily involved with gangs and had vandalized her home by punching a hole in the laundry room and tagging the laundry room door with "X4" and "Visa." Fahoum explained "X4" represents the letter "N" and the Norteno gang. "Visa" is short for "Visalia" in NSV. Appellant's mother also stated appellant was out of control and constantly wearing red while running in the streets.
-On March 8, 2004, appellant called another detainee at juvenile hall a "scrap" which is a derogatory term for a Sureno.
-On March 9, 2004, appellant was involved in a fight at juvenile hall with Jose Gonzalez, a validated Sureno. As a result, appellant was ordered to register as a gang member.
Fahoum testified that appellant met nine out of the 10 criteria used by her department to validate that someone is a gang member. Fahoum explained that an individual only had to meet three criteria to be validated, unless he self-identified as a gang member in a custodial setting, in which case this criteria by itself was sufficient for validation.
In her testimony Fahoum specifically listed nine criteria, including: (1) self-admission; (2) custodial admission; (3) associating with known gang members; (4) being identified in pictures with gang members; (5) having gang tattoos; (6)wearing gang clothing; (7) participating in gang correspondence, "like jail mail, writing back and forth"; (8) being involved in a gang-related crime; and (9) being named by a reliable source (parents, probation, etc.). Fahoum testified appellant met each of these "but correspondence."
Fahoum testified that the most significant gang tattoos she recalled appellant having was the letter "N" on his forearm and the northern star on his forehead. Although the northern star tattoo was a common tattoo for Norteños to have, in Fahoum's experience and contact with over 500 Norteños, appellant was the only one she had ever seen with the northern star tattoo on his face.
Asked whether she had an opinion as to whether appellant was an active participant in a criminal street gang on July 1, 2007, Fahoum testified: "There is no doubt he was based on the nine criteria we discussed."
In response to a hypothetical question based on the evidence presented at trial, Fahoum testified:
"No doubt it's for the benefit of a criminal street gang because as we discussed, street gang members commit crimes of opportunity which robbery would be one of them. And street gang members don't take kindly to insults.
"'Shoot me, shoot me. The cops are over there,' in other words, 'I'm not giving you my money' is an insult. It would benefit that gang member dearly to take care of that issue and not walk away from it because he would be perceived as a coward amongst his gang. It would be in -well, the associates were wearing red. I don't know that they were gang members or not, but they were wearing the color that identifies with that gang. In that area, you're talking about Ben Maddox and Houston, is predominantly Norteno gang territory."
The Defense
The defense presented an alibi defense. Appellant and his mother both testified that, at the time of the shooting, appellant was at home asleep.
Appellant admitted to associating with Norteños and sometimes wearing red, but claimed he was not an active gang member at the time of the shooting.
Appellant, who testified he shared a bedroom with two brothers, testified the items found in his room did not belong to him and he did not know to whom they belonged. He also testified that his brothers were not gang members.
Appellant testified that the star tattoo over his eye was not gang related but "was a loyalty sign" to a former girlfriend named Estrella. Appellant explained that Estrella means star in Spanish. Appellant further testified that he acquired all his tattoos when he was a "kid," around 13 or 14 years old, at the California Youth Authority.
DISCUSSION
I. Admissibility of Gang Expert's Testimony
Appellant claims the gang enhancement and gang special circumstance must be reversed because: (1) inadmissible hearsay was improperly introduced through the gang expert's testimony concerning appellant's prior "gang-related contacts with law enforcement"; (2) the gang expert's testimony contravened appellant's rights under Crawford v. Washington (2004) 541 U.S. 36 (Crawford); (3) the gang expert relied on booking information that contravened appellant's rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); and (4) appellant was deprived effective assistance of counsel as a result of his trial counsel's failure to object properly to the gang expert's testimony and by failing to request a limiting instruction.
A. Hearsay Not Improperly Admitted Through Gang Expert
Appellant suggests the prosecution improperly used Fahoum to introduce inadmissible hearsay when she testified regarding appellant's prior contacts with other law enforcement officers in support of her opinion that appellant was a gang member. We disagree. "Expert testimony may ... be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions." (People v. Gardeley (1996) 14 Cal.4th 605, 618 (Gardeley).)This may include hearsay. (Ibid.; In re Fields (1990) 51 Cal.3d 1063, 1070 ["An expert witness, however, may base an opinion on reliable hearsay, including out-of-court declarations of other persons."].) Because the Evidence Code "allows an expert witness to 'state on direct examination the reasons for his opinion and the matter . upon which it is based,' an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion." (Gardeley, supra, 14 Cal.4th at p. 618.)
As appellant recognizes, courts have found to be reliable the types of material on which Fahoum based her opinions concerning appellant's gang membership. Experts may rely upon conversations with past and present members of various gangs to obtain the necessary information. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1384-1385 (Olguin).)They may rely on photographs of the defendant making a gang sign and on writings that displayed his gang affiliation. (People v. Gamez (1991) 235 Cal.App.3d 957, 967 (Gamez).) Additionally, gang experts regularly use materials they receive from various law enforcement personnel, probation officers, and social workers. (People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9.) Police reports and field identification cards are admissible under the public records exception to the hearsay rule when the reports contain the observations of police officers acting in their official capacity, and experts may rely on such reports in forming their opinions. (See, e.g., Rupf v. Yan (2000) 85 Cal.App.4th 411, 430, fn. 6 [police reports]; People v. Ruiz (1998) 62 Cal.App.4th 234, 241 [field identification cards].)
Despite these authorities, appellant asserts the hearsay materials on which Fahoum relied were improperly introduced for their truth. This is so, he claims, because the jury was not specifically instructed "the information relied upon by Fahoum in forming her opinion could not be used for the truth of the matter asserted." Thus, appellant asserts, "The purpose for which the testimony was elicited is only as good as the instructions to the jury regarding such purpose." We find no support for appellant's assertion, which goes not to the admissibility of Fahoum's testimony, which he challenges on appeal, but to the risk the jury would not properly consider the testimony. Under the above authorities, Fahoum's testimony detailing appellant's prior contacts with other law enforcement officers was properly introduced to support her conclusions concerning appellant's gang membership. To the extent appellant is arguing the court erred in not instructing the jury on the evidentiary limitations of the challenged testimony, we note that there is no sua sponte duty to give such instruction. (People v. Montiel (1993) 5 Cal.4th 877, 919.)
However, even if the court committed instructional error, there is no reasonable likelihood the result would have changed had the court given a limiting instruction. (People v. Breverman (1998) 19 Cal.4th 142, 172-174.) Appellant suggests the trial court should have instructed the jury that in reaching her conclusions as an expert witness, Fahoum relied on statements by other persons and sources, and that the jury could consider those statements "only to evaluate the expert's opinion" and not "as proof that the information contained in the statement[s] is true." (CALCRIM No. 360.) Under this instruction, the jury would still have been permitted to consider the hearsay statements in evaluating the credibility of Fahoum's testimony. In this regard, the jury here was properly charged with CALCRIM No. 332, that in evaluating the expert's testimony it "must decide whether information on which the expert relied was true and accurate." As we see no indication in the record that the information on which Fahoum relied to support her opinions was untrue or inaccurate, appellant has not shown the failure to give an instruction like CALCRIM No. 360 made any difference to the outcome of this case.
As given in this case, CALCRIM No. 332 [expert witnesses testimony] provided: "Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence. [¶] An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert's reliance on that fact in evaluating the expert's opinion."
We reject, as without merit, appellant's suggestion that this language essentially told the jury that hearsay statements relied on by the expert were introduced for their truth. Charging jurors to evaluate the reliability and accuracy of information conveyed in a statement relied on by an expert in rendering an opinion is not synonymous with instructing that the statement itself can be considered as proof the information is true.
B. Gang Expert's Testimony Did Not Violate Crawford
Under Crawford, supra, 541 U.S. 36 and the later decision of Davis v. Washington (2006) 547 U.S. 813 (Davis), the admission of testimonial out-of-court statements is barred by the confrontation clause of the Sixth Amendment unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.
There is nothing in Crawford or Davis that prohibits a gang expert from relying on hearsay as a basis for his or her opinions that identify a person as a gang member or about gang behavior generally. (See, e.g., People v. Ramirez (2007) 153 Cal.App.4th 1422 (Ramirez); People v. Fulcher (2006) 136 Cal.App.4th 41, 56-57; People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas).)"The rule is long established in California that experts may testify as to their opinions on relevant matters and, if questioned, may relate the information and sources on which they relied in forming those opinions. Such sources may include hearsay." (Thomas, supra, 130 Cal.App.4th at p. 1209, citing Gardeley, supra, 14 Cal.4th at pp. 618-619; Evid. Code, § 801, subd. (b).) Crawford does not undermine this established rule. (Thomas, supra, at p. 1210.) Since a gang expert "is subject to cross-examination about his or her opinions" and "the materials on which the expert bases his or her opinion are not elicited for the truth of their contents" but rather "are examined to assess the weight of the expert's opinion," this evidence does not offend the Sixth Amendment. (Thomas, supra, at p. 1210.) The confrontation clause "'does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.'" (Ibid., quoting Crawford, supra, 541 U.S. at p. 59.) "Hearsay in support of expert opinion is simply not the sort of testimonial hearsay the use of which Crawford condemned." (Ramirez, supra, 153 Cal.App.4th at p. 1427, citing Thomas, supra, 130 Cal.App.4th at p. 1210.) Thomas and Ramirez are correctly decided.
We reject appellant's assertion in his reply brief that Thomas "does not control this case, as in that case the court found no Crawford error because the jury was instructed that the materials on which the expert based his or her opinion were not elicited for the truth of their contents." This assertion is incorrect. Thomas does not specifically refer to such instruction being given or otherwise indicate its holding was based on the instructions given to the jury. As Fahoum was subject to cross-examination, the jury was able to determine her credibility, her expertise, and the reliability of the information she utilized to render her opinions. No Crawford violation occurred.
We have also reviewed Bullcoming v. New Mexico (2011) U.S. ___, 131 S.Ct. 2705 and Melendez-Diaz v. Massachusetts (2009) ___U.S. ___, 129 S.Ct. 2527, recent Supreme Court cases addressing Crawford, which are cited by appellant in a supplemental brief. Nothing in these cases alters our conclusion that no Sixth Amendment violation occurred.
C. Gang Expert's Testimony Did Not Violate Miranda
The requirements of Miranda are well established. To assure protection of the Fifth Amendment privilege against self-incrimination, a suspect may not be subjected to an interrogation while in custody unless he has previously been advised of and has knowingly and intelligently waived his rights to silence, to the presence of an attorney, and to appointed counsel if he is indigent. Statements made in violation of Miranda are inadmissible to establish guilt. (People v. Esqueda (1993) 17 Cal.App.4th 1450, 1480-1481.)
In Pennsylvania v. Muniz (1990) 496 U.S. 582 a four-justice plurality recognized "a 'routine booking question' exception which exempts from Miranda's coverage questions to secure the 'biographical data necessary to complete booking or pretrial services.'" (Id. at p. 601, plur. opn. of Brennan, J.) The court went on to note that a "'"booking exception" to Miranda does not mean, of course, that any question asked during the booking process falls within that exception. Without obtaining a waiver of the suspect's Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.'" (Id. at p. 602, fn. 14.)
In People v. Morris (1987) 192 Cal.App.3d 380 (Morris)the booking officer asked the defendant, "'if we should anticipate any type of problem with his being there in jail.'" The defendant answered negatively and then the officer asked, "''Who are you accused of killing?"'" The defendant responded that he had killed his sister-in-law. (Id. at p. 388.) We found the defendant's statements inadmissible because it was obvious that this was the type of question that the police should know was reasonably likely to elicit an incriminating response. (Id. at p. 389.)
In Morris, we recognized that the incriminating response must relate to the offenses for which the suspect is in custody. "The focus of our analysis is not what the police may lawfully ask a criminal suspect to ensure jail security. The police may ask whatever the needs of jail security dictate. However, when the police know or should know that such an inquiry is reasonably likely to elicit an incriminating response from the suspect, the suspect's responses are not admissible against him in a subsequent criminal proceeding unless the initial inquiry has been preceded by Miranda admonishments. A police officer's concerns for jail security, encompassing the safety of the suspect, can be triggered by a variety of factors, some of which would have nothing to do with the offense underlying the suspect's incarceration and, as importantly, could only be explored by inquiring of the defendant himself. Thus a suspect who is booked into jail wearing tattoos or other indicia of gang affiliation might alert the booking officer to the possibility of gang-related violence; the quickest way for the officer to resolve such concern is to ask the suspect whether jail personnel should anticipate any trouble in this regard once the suspect becomes housed in the jail. So long as the offense for which the suspect is in custody is not itself gang related, there is no reason the officer should foresee the question will elicit an incriminating response. In such a circumstance, an incriminating response is not the product of affirmative police conduct and would be admissible in the absence of Miranda warnings." (Morris, supra, 192 Cal.App.3d at pp. 389-390.)
In the 20-plus years since the Morris decision, gangs have become much more prevalent. Questioning about possible gang affiliations for housing purposes is now a routine question that is asked at booking. "The routine booking interview is an indispensable procedure in the efficient administration of justice." (People v. Quiroga (1993) 16 Cal.App.4th 961, 971.) Questioning about gang affiliations is a security question that must be asked to facilitate safe housing in the jails. The officer conducting the booking inquiry should not have to think ahead to when a question might, in the future, become a link to a crime a defendant might commit. As a result, the existence or nonexistence of Miranda advisements on a date not directly linked to the crime for which defendant has been arrested is immaterial to the current offense.
The only booking information relied on by Fahoum came from appellant's admission to boot camp on November 24, 2004, when appellant identified himself as a member of the North Side Visa clique of the Norteno gang. There is nothing in the record suggesting that this instance involved gang behavior or gang crimes. Thus, Miranda advisements were not required for the gathering of this routine booking information and Fahoum could properly rely on this information, consisting of appellant's own statement of gang membership, in reaching her expert opinion.
The probation officer's report indicates appellant was committed to boot camp in November 2004 based on his commission of the misdemeanor offense of escaping from a juvenile hall or facility. (Welf. & Inst. Code, § 871.)
D. Effective Assistance of Counsel
Appellant contends he was deprived effective assistance of counsel when his trial counsel: (1) failed to object to Fahoum's testimony regarding his prior contacts with law enforcement officers on the grounds the testimony "violated state hearsay rules and appellant's Fifth Amendment right against self-incrimination"; (2) failed to object when Fahoum testified to statements made by appellant's mother which the court had previously ruled inadmissible; and (3) failed "to request a limiting instruction that the basis of [Fahoum's] opinion was not being offered for the truth of the matter asserted."
"To establish constitutionally inadequate representation, a defendant must show that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citations.]" (People v. Mitcham (1992) 1 Cal.4th 1027, 1057-1058; see Strickland v. Washington (1984) 466 U.S. 668, 687-696 (Strickland.)Since failure of either prong of the required showing is fatal to establishing ineffective assistance of counsel, we need not address both prongs if we find appellant cannot previal on one of them. (People v. Cox (1991) 53 Cal.3d 618, 656.)
Defendant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Our review is highly deferential; we must make every effort to avoid "'the distorting effects of hindsight'" and to evaluate the challenged conduct from counsel's perspective at the time. (In re Jones (1996) 13 Cal.4th 552, 561; Strickland, supra, 466 U.S. at p. 689.) "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ...." (Strickland, supra, at p. 689.) The burden is to establish the claim not as a matter of speculation, but as a matter of demonstrable reality. (People v. Garrison (1966) 246 Cal.App.2d 343, 356.) As to the failure to object in particular, "[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel." (People v. Kelly (1992) 1 Cal.4th 495, 540.) Counsel is not required to make futile or unmeritorious arguments on behalf of a defendant. (People v. McPeters (1992) 2 Cal.4th 1148, 1173.)
Because we have rejected on the merits of appellant's claims that Fahoum's testimony constituted inadmissible hearsay under state law and violated his constitutional rights under Crawford and Miranda, we reject appellant's claim that his trial counsel was deficient for failing to object on these grounds. As to appellant's second and third claims, appellant has failed to demonstrate he was prejudiced by counsel's alleged deficiencies. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland, supra, 466 U.S. at p. 697.) For the reasons discussed above, we find no reasonable probability of a different outcome based on counsel's failure to request a limiting instruction such as CALCRIM No. 360. The requisite prejudice is also lacking with regard to counsel's failure to object when Fahoum testified, in violation of the trial court's in limine ruling, that appellant's mother reported to a probation officer that appellant was "heavily involved in gangs" and "out of control ... running the streets." This testimony was relatively brief and cumulative to other admissible evidence amply demonstrating appellant's involvement in the NSV gang.
During in limine motions, the trial court ruled: "I'm going to allow Officer Fahoum to testify that she used the mother's statement that the defendant wears red or was wearing red, and that the defendant painted 'Visa' and '14' on a door. Any other reference about being heavily involved in gangs or anything like that is not going to be allowed. And I think we ought to instruct the jury that's not being offered for the truth. It's being offered for an item that an officer uses to form their opinion."
II. Sufficiency of Evidence Supporting The Gang Allegations
Appellant contends the gang expert improperly expressed an opinion on his subjective knowledge and intent. He also contends insufficient evidence supports the gang allegations because there is no substantial evidence the murder was gang related or that he acted with the requisite specific intent to further the criminal activities of his gang. Appellant raises these arguments in different sections of his brief. However, as as they are interrelated, we will address them all here.
A. Gang Expert's Opinion Did Not Exceed Permissible Scope
"'There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case.' [Citations.]" (People v. Valdez (1997) 58 Cal.App.4th 494, 507 (Valdez).)Admission of expert testimony whether the defendant is an active gang member or associate and whether a crime would benefit a gang routinely are upheld as falling within the scope of proper questioning. (Gardeley, supra, 14 Cal.4th at pp. 619-620; People v. Ward (2005) 36 Cal.4th 186, 210 (Ward); Valdez, supra, 58 Cal.App.4th at pp. 507-509; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-1209; Olguin, supra, 31 Cal.App.4th at pp. 1370-1371.) However, a gang expert may not testify whether an individual possessed a specific intent or knowledge. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1197 (Frank S.); Killebrew, supra, 103 Cal.App.4th at p. 658.)
Contrary to appellant's assertions, Fahoum did not violate any of these principles when she testified she had "no doubt" appellant was an "active participant in a criminal street gang" at the time of the crime and "no doubt" the conduct described in the prosecutor's hypothetical was "for the benefit of a criminal street gang." In support of her opinions, Fahoum referred specifically to her previous testimony in which she explained that appellant met nearly all the criteria used by her department to validate someone as a gang member, and that gang members "commit crimes of opportunity which robbery would be one of them" and "don't take kindly to insults." Fahoum's testimony explaining why a gang member would feel honor-bound to shoot an attempted robbery victim who insulted the gang member by refusing to give him money and challenging the gang member to shoot him instead concerned matters "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact" (Evid. Code, § 801, subd. (a)) and "was not tantamount to expressing an opinion as to defendant's guilt." (Ward, supra, 36 Cal.4th at p. 210.) As is explained in Olguin, supra, 31 Cal.App.4th 1355, "It is difficult to imagine a clearer need for expert explication than that presented by a subculture in which this type of mindless retaliation promotes 'respect.'" (Id. at p. 1384.)
We note that appellant's reliance on cases such as Killebrew, supra, 103 Cal.App.4th 644, People v. Ramon (2009) 175 Cal.App.4th 843 and Frank S., supra, 11 Cal.App.4th 1192 is misplaced; none of the authorities cited by appellant is factually analogous to this matter.
Because Fahoum's testimony did not exceed the bounds of permissible expert testimony, we also reject appellant's related claim that his trial counsel rendered ineffective assistance by failing to object.
B. Substantial Evidence Supports The Gang Allegations
As with other claims of insufficient evidence, we review appellant's sufficiency of the evidence claim by examining the record in the light most favorable to the judgment, to determine if substantial evidence - evidence which is reasonable, credible, and of solid value - exists for a reasonable trier of fact to find the gang allegations true beyond a reasonable doubt. (Killebrew, supra, 103 Cal.App.4th at p. 660.) To prove the gang enhancement allegation, the prosecution was required to show the murder of Carlos Lopez was "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).) Criminal penalties may be increased only if both prongs of the statute are satisfied, that is, the evidence must support an inference the crime was committed for the benefit of (or at the direction of or in association with) a gang, as well as an inference of specific intent to promote or assist criminal gang conduct. (Gardeley, supra, 14 Cal.4th at pp. 623-624.)
Appellant challenges the sufficiency of the evidence supporting the first prong, arguing the prosecution "failed to adduce [a] nexus between Fahoum's opinion and other evidence that the homicide was gang related." In support of his argument, he notes, inter alia, there was no evidence any verbal gang references were made or hand signs used during the incident, or that he was wearing clothing that identified himself as a gang member. He also contends there was insufficient evidence of the second prong, that is, of his intent to further any criminal conduct by gang members. He asserts that Fahoum's "testimony that members of appellant's gang benefitted from the 'respect and fear' created by the homicide is nothing more than an overbroad theory in which any and all criminal conduct committed by any young man who qualifies as 'gang member' will fall" whether or not there is evidence the conduct is gang related. Finally, he relies on a Ninth Circuit opinion in Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, an opinion which (since appellant's opening brief was filed) has been definitively rejected by our Supreme Court. (People v. Albillar (2010) 51 Cal.4th 47, 66 (Albillar))
Appellant also applies his arguments challenging the sufficiency of the evidence to the gang enhancement allegation to the gang special circumstance allegation, which similarly requires proof "the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (22), italics added.)
We begin with Albillar, where the court resolved the conflict between Garcia v. Carey, supra, 395 F.3d 1099 (and other Ninth Circuit cases) and various cases decided by California courts of appeal. Garcia v. Carey as Albillar tells us, construed the statute "to require evidence that a defendant had the specific intent to further or facilitate other criminal conduct - i.e., 'other criminal activity of the gang apart from' the offenses of which the defendant was convicted." (Albillar, supra, 51 Cal.4th at p. 65.) Albillar holds to the contrary: "[T]he scienter requirement in section 186.22(b)(1) - i.e., 'the specific intent to promote, further, or assist in any criminal conduct by gang members' - is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (Albillar, supra, at p. 66.)
Albillar also rejected a related argument that the statute requires the specific intent to promote, further, or assist a gang-related crime, explaining: "The enhancement already requires proof that the defendant commit a gang-related crime in the first prong -i.e., that the defendant be convicted of a felony committed for the benefit of, at the direction of, or in association with a criminal street gang. [Citation.] There is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members." (Albillar, supra, 51 Cal.4th at p. 67.) Further, "[t]he enhancement set forth in section 186.22(b)(2) does not risk conviction for mere nominal or passive involvement with a gang. Indeed, it does not depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang." (Id. at pp. 67-68.)
Albillar concluded: "[I]f substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (Albillar, supra, 51 Cal.4th at p. 68.)
Here, both prongs of the gang enhancement statute are satisfied. Notwithstanding appellant's assertions to the contrary, there was substantial evidence the murder of Lopez was gang related. The incident took place in NSV gang territory. Despite the apparent lack of gang attire, appellant's gang affiliation was nonetheless on display through his tattoos, particularly the star tattoo placed conspicuously above his right eye. Appellant was accompanied by two males wearing red articles of clothing, a color associated with the gang. Although appellant's companions were never identified, the circumstances of the crime provided strong, if not conclusive, evidence they were either affiliated with or members of the NSV gang. Fahoum testified that gang members act together to commit crimes of opportunity, such as robbery. Moreover, there was evidence that the circumstances of the shooting were rooted in the gang culture of respect, power, and reputation. In our opinion, a reasonable jury could infer from the circumstances of the crime and the customs and priorities of the gang that appellant intended his shooting of a disrespectful victim of an attempted robbery to have the effect of elevating and expanding his reputation as an aggressive and violent member, thus facilitating future crimes committed by appellant and his fellow gang members. In short, there was substantial evidence the offense was committed for the benefit of the gang and with the requisite intent.
III. Denial of Bifurcation Motion
Appellant contends the court erred in denying his pretrial motion to bifurcate the gang allegations. He argues the court abused its discretion under state law because "the gang evidence was extremely prejudicial" and "had very little relevance to the underlying offense." He also contends the erroneous admission of the evidence violated his federal due process rights in that it "lightened the prosecution's burden of proof, improperly permitting the jury to find appellant guilty in large part because of his alleged gang affiliation." We find appellant's arguments unpersuasive and conclude the court did not err in denying appellant's bifurcation motion.
"[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation - including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like - can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]" (People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050 (Hernandez).)"Even if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself ... a court may still deny bifurcation." (Id. at p. 1050.) Hernandez explained that a "trial court's discretion to deny bifurcation of a charged gang enhancement is ... broader than its discretion to admit gang evidence when the gang enhancement is not charged." (Ibid.)Bifurcation is required only where a defendant can "'clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.' [Citation.]" (Id. at p. 1051.)
In applying this law, Hernandez noted that much of the gang evidence presented in that case was relevant to the charged offense, specifically on the issues of motive and intent. (Hernandez, supra, 33 Cal.4th at p. 1051.) Hernandez acknowledged that evidence of prior criminal acts by the defendants' fellow gang members and some of the expert testimony would not have been admissible at a trial that was limited to the charged offense (ibid.), but held that the trial court had acted within its discretion in denying the motion to bifurcate (ibid.).
In this case, gang evidence was inextricably intertwined with the substantive offense. The shooting was gang related, and the evidence was clearly relevant to the substantive crime to establish motive, intent, and identity. Under the facts of this case, we conclude the court acted within its discretion in refusing to bifurcate trial of the gang enhancement from trial of the charged offenses. (Hernandez, supra, 33 Cal.4th at pp. 1050-1051.) We also find no support for appellant's due process claim.
IV. Failure to Instruct on an Attempt
The prosecution proceeded on two theories of first degree murder: premeditated murder and felony murder. The felony-murder theory was based on a murder committed during the course of an attempted robbery of the victim. The trial court gave instructions on the felony-murder theory and robbery, but did not instruct the jury separately on all of the elements of an attempt. Because the evidence did not show that he committed a completed robbery, appellant contends his conviction of murder and the robbery special circumstance must be reversed for insufficient evidence. Although appellant presents his claim as a challenge to the sufficiency of the evidence, we construe it as one of instructional error, and conclude the trial court's failure to instruct on an attempt was harmless in this case.
Appellant does not claim the evidence is insufficient to establish an attempted robbery.
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We agree with the basic premise of appellant's argument that it was error for the trial court not to instruct on the elements of an attempt. In criminal law, "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a.) Under section 21a, a defendant may be found guilty of attempting to commit a crime when the defendant acting with the specific intent to commit the crime "performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action." (People v. Toledo (2001) 26 Cal.4th 221, 230 (Toledo).)"When a defendant is charged with an attempted crime, the court normally instructs the jury with CALCJIC No. 6.00 [predecessor to CALCRIM No. 460] (setting forth the requirements for an attempt to commit a crime) and also with an instruction setting forth the elements of the crime alleged to have been attempted." (People v. Beck (2005) 126 Cal.App.4th 518, 521 (Beck).)The court's "failure to instruct the jury on the elements of an attempt was error." (People v. Cain (1995) 10 Cal.4th 1, 44 (Cain).)
"'"'[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence [and] ... an erroneous failure to instruct on a lesser included offense constitutes a denial of that right ....' [Citation.]"' [Citation.]" (People v. Prince (2007) 40 Cal.4th 1179, 1264.) "A jury instruction that omits an element of an offense requires reversal unless the error was harmless beyond a reasonable doubt. [Citation.] However, if no rational jury could have found the missing element unproven, the error is harmless beyond a reasonable doubt." (People v. Nicholson (2004) 123 Cal.App.4th 823, 833.) "Pursuant to that standard of review 'we must ultimately look to the evidence considered by defendant's jury under the instructions given in assessing the prejudicial impact or harmless nature of the error.' [Citation.] '[W]e must inquire whether it can be determined, beyond a reasonable doubt, that the jury actually rested its verdict on evidence establishing the requisite [elements of the crime] independently of the force of the ... misinstruction.' [Citation.]" (Beck, supra, 126 Cal.App.4th at p. 524.)
Looking at the evidence and instructions as a whole, we conclude that the error was not prejudicial to appellant. As given, CALCRIM No. 540A informed the jury that to prove appellant guilty of first degree murder under the prosecution's felony-murder theory, the prosecution was required to prove that appellant attempted to commit robbery, intended to commit robbery, and while attempting to commit robbery, did an act that caused the death of another person. These elements were repeated in CALCRIM No. 730 on the robbery special circumstance allegation. CALCRIM No. 1600, the court's robbery instruction, properly advised the jury on the requisite element of a specific intent to deprive the victim of property by means of force or fear.
Thus, the first element of the attempt instruction was explicitly covered by the felony-murder, robbery special circumstance, and robbery instructions. In the context of the evidence presented at trial, the second element of the attempt instruction would have added nothing consequential to the definition of an attempt. Our high court has declared that, "insofar as relevant here this instruction merely restates the common meaning of 'attempt.' To attempt an act is to 'try' or 'endeavor to do or perform' the act. (Webster's New Internal Dict. (2d ed. 1958) p. 177.)" (Cain, supra, 10 Cal.4th at p. 44.) In finding that appellant committed murder - under either of the two theories offered - the jury necessarily considered and found the elements articulated in the attempt instruction: that is, that appellant used force or fear upon the victim to attempt to obtain money he believed was in the victim's possession. No reasonable reading of the trial evidence could have led to the conclusion that appellant's acts amounted to "'mere preparation'" and not "'actual commencement of the doing of the [robbery].'" (See Toledo, supra, 26 Cal.4th at p. 230, fn. 6.) Thus, in light of the instructions actually given by the trial court, the failure additionally to advise the jury that an attempt required a direct but ineffectual act done toward commission of the robbery did not contribute to the verdict obtained. (Cain, supra, at p. 44.)
V. Response to Jury Question
During deliberations, the jury sent the court a note asking it to describe the difference between the gang enhancement and the gang special circumstance. The court discussed the question with the attorneys without objection from either. The jurors were brought back in the courtroom and the court stated:
"[T]he question that I have is: 'Please describe the difference between Penal Code Section 186.22(b)(1)(c) and 190.2(a)(2).' They're essentially the same thing. But for the 190.2, that's what you call - what's called the special circumstance, which means - which [a]ffects the sentence. They both affect sentence, but the 190.2 requires active participation in the criminal street gang. The 186.22 requires active participation or mere association with a criminal street gang. Both of them require that the purpose of the association or active participation further the interest or at the direction of and in association with a criminal street gang. But one required the special circumstance, 190 requires active participation. The other one merely association. Okay? Does that do it? You may retire and resume."
Now appellant contends the court's response to the jury's question violated his state and federal constitutional rights to due process rights because, by telling the jury "the only difference between the gang sentence enhancement and the gang special circumstance was that the latter required 'active participation' in a criminal street gang[,]" the court effectively "eliminated the mens rea requirement from the gang special circumstance allegation that appellant intended to kill."
We initially conclude that appellant waived his right to object to the court's response to the jury's inquiry as a result of his trial counsel's acquiescence with the court's proposed response. Our conclusion is supported by People v. Rodrigues (1994) 8 Cal.4th 1060 (Rodrigues). In Rodrigues, our Supreme Court reviewed a defendant's claim that the trial court's response to a jury inquiry deprived him of his due process rights, although the trial court's response had been suggested and consented to by the defendant's trial counsel. The court stated, "Inasmuch as defendant both suggested and consented to the responses given by the court, the claim of error has been waived." (Id. at p. 1193.)
Our Supreme Court has made clear in cases following Rodrigues, supra, 8 Cal.4th 1060, that Rodrigues's waiver holding applies to circumstances when counsel merely agrees with the court's response to a jury inquiry or fails to seek further clarification. (People v. Marks (2003) 31 Cal.4th 197, 237 [citing Rodrigues in rejecting a defendant's contention that a court's response to a jury inquiry regarding its instructions was incorrect and stating, "if defendant favored further clarification, he needed to request it. His failure to do so waives this claim"]; People v. Hughes (2002) 27 Cal.4th 287, 402 [rejecting a claim that the court gave an insufficient response to a jury inquiry about deadlock, stating "this claim is waived by defense counsel's agreement with the trial court that informing the jury of the consequences of a deadlock would have been improper," and citing Rodrigues]; see also People v. Bohana (2000) 84 Cal.App.4th 360, 373 [the court, citing Rodrigues, held with regard to a jury inquiry about its instructions, "[w]here, as here, appellant consents to the trial court's response to jury questions during deliberations, any claim of error with respect thereto is waived"].)
However, even if waiver had not occurred here, we find unpersuasive appellant's claim that the court's response to the jury's question violated his due process rights by eliminating the mens rea requirement of the gang special circumstance. To establish a due process violation, appellant must show "'a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." (Estelle v. McGuire (1991) 502 U.S. 62, 72.) CALCRIM No. 736 correctly told the jury that to prove the gang special circumstance, the prosecution was required to prove, inter alia, that appellant intentionally killed the victim. The trial court also instructed the jury that, "Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt." (CALCRIM No. 220.) We presume the jury followed these instructions and do not find it reasonably likely the jury would have interpreted the court's response to their inquiry regarding the difference between the gang enhancement and the gang special circumstance, with its focus on the active participation element of the latter, as meaning the prosecution did not have to prove the other elements of the special circumstance on which the jury was previously and correctly instructed.
VI. Ineffective Assistance of Counsel — Evidence of Meza's Gang Membership
At appellant's trial, Meza, who confirmed he was currently in custody on an unrelated murder charge, testified he did not remember what the person who shot Lopez looked like and that he could not identify anyone in the court as the shooter. Meza claimed not to remember a number of other details he had previously reported concerning the incident, explaining, "I got a bad memory. You know?" Meza also denied being a gang member.
The prosecution thereafter sought to introduce evidence that Meza was a gang member. The court discussed the issue with the parties as follows:
"THE COURT: ...[B]ased upon the testimony of Mr. Meza during this trial where he was totally uncooperative, the Court does not believe that he doesn't remember. The Court believes that he is obfuscating and refusing to answer the questions.
"The testimony that he gave at grand jury proceeding is prior inconsistent statement based upon that obfuscation. I'm going to allow it to be admitted to the jury as a prior inconsistent statement....
"[THE PROSECUTOR]: And then I believe the information regarding Mr. Meza's gang contacts also needed to be admitted.
"THE COURT: There was testimony at the grand jury proceeding regarding gang indicia for Mr. Meza, and he denied any gang association or
affiliation or membership, and, apparently there's evidence to the contrary. And that was presented to the grand jury. I'm going to allow that to be admitted and presented to the jury also."
Without any defense objection, the court allowed the prosecution to introduce exhibit No. 32 into evidence, which consisted of the following excerpt from a grand jury transcript, wherein the prosecutor read testimony from the gang expert given in a preliminary hearing on Meza's case:
"[THE PROSECUTOR]: And what I'm reading to you is from a preliminary hearing on the current case that Meza is in custody for. And this was a gang expert on that case regarding any contacts Hugo Meza has with law enforcement.
"And it says starting in on May 12th of 2004, he was contacted by Officer McWilliams at El Diamonte High School, and Officer Mc Williams was advised of the burglary and that he identified Hugo Meza as a Sureno gang member. [¶] ... And when he was booked in ... juvenile hall on 4-506 regarding that, actually, I'm not sure if it was that same El Diamonte incident or not, for 506, he was booked into juvenile hall at that time as a Sureno gang member. And when the officer looked at that, Hugo Meza's inmate questionnaire at the jail, he said he wrote - Meza wrote that he associated with Southerners and has known enemies in custody for north."
In closing argument of appellant's trial, the prosecutor argued:
"Now, Officer Fahoum also talked about people being labeled rats, gang members being labeled rats if they do come and testify. It doesn't matter if they're testifying against their own gang members or against rival gang members. They're considered a rat. And why? Because they take care of their own business. They take care of things on their own. They don't take care of it like normal people with law enforcement and going through the court system. They take care of it on their own. So no matter what, if a gang member is testifying, they're going to be labeled a rat. And you heard what happens to rats. Nothing good. They can be killed. They'll be beat up.
"You have Hugo Meza who is in jail facing his own charges. He has to survive in jail. He doesn't want to be labeled a rat.
"We have entered Exhibit Number 32, which is some evidence that was brought out of the grand jury regarding Hugo Meza's gang involvement. He didn't want to admit to you he's a gang member, but, yet,
when he's booked into jail on August 7th, 2007 for his crime, he was booked in as a southern gang member. So, again, he's concerned for his safety. He doesn't want to be labeled a rat."
Appellant now contends he was denied effective assistance of counsel as a result of his trial counsel's failure to object "to the admission of Hugo Meza's 'gang contacts' as prior inconsistent statements in that evidence admitted contained no admissible statements of Meza." We reject appellant's claim because he has failed to make the requisite showing of prejudice.
Appellant argues that he was prejudiced because "If Meza's testimony had not been impeached [by the evidence of his gang contacts], then the only remaining testimony inculpating appellant was that of Esteban Coria." Appellant observes that Coria consistently testified at pretrial proceedings and at trial that he never saw a star on the shooter's forehead. Appellant concludes that, "if Meza had not been impeached, it is reasonably possible that the jury would have believed Meza and, in turn, believed appellant's defense that he was not involved in the crime."
The problem with appellant's argument is that there was much stronger evidence casting doubt on Meza's claim at trial that he could not recall the shooter, namely his consistent description and identification of appellant to police both the morning of the shooting, and when he identified appellant in the photographic lineups a few weeks later, when he pointed out to police that the photograph of the shooter did not show the star tattoo he observed during the shooting. When the unaltered photograph was then put on display, Meza confidently identified him as the person who shot Lopez. In light of the strong impeachment evidence provided by police witnesses against Meza, we find unpersuasive appellant's prejudice argument.
VII. Cumulative Error
In conclusion, appellant contends the cumulative impact of his trial counsel's errors requires reversal of his convictions. In rejecting appellant's individual claims of ineffective assistance, we have either found counsel did not err and/or any errors, assumed or not, were not prejudicial. Viewed cumulatively, we find that any errors by appellant's counsel at trial do not warrant reversal of the judgment.
DISPOSITION
The judgment is affirmed.
HILL, P.J. WE CONCUR:
WISEMAN, J.
LEVY, J.