Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County., Super. Ct. No. TA079583 Gary E. Daigh, Judge. Affirmed.
Irma Castillo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
INTRODUCTION
Appellant Landes Buckhalter challenges his second degree murder conviction on the grounds it was not supported by the evidence, the trial court erroneously admitted gang evidence, and his trial attorney rendered ineffective assistance of counsel. We reject the contentions, and affirm.
BACKGROUND AND PROCEDURAL HISTORY
Appellant shot Rogelio Ibanez, who was sitting in a car while his employee, Felipe Soltero, delivered rock cocaine to a customer.
A jury convicted appellant of second degree murder and found that he personally and intentionally fired a gun causing death, and personally used a gun (Pen. Code, § 12022.53, subds. (b)-(d)). Appellant was sentenced to 40 years to life in prison.
DISCUSSION
1. Substantial Evidence Supports Appellant’s Conviction.
Appellant contends the evidence is insufficient to support his conviction.
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
Soltero testified that he and Ibanez sold rock cocaine. They did not sell to individual users, as such people did not work, and had difficulty paying. They sold four quarter pieces for $500. That quantity could be sold on the street for $1000.
Soltero knew appellant as Shaggy. About four months before April 9, 2005, appellant purchased cocaine from Soltero without incident.
Sometime between the first encounter and April 9, 2005, Ibanez and Soltero were paged by a customer. When they arrived near the intersection of 98th and Avalon, only appellant was present. He told Soltero that the other person was on his way with the money. Soltero and Ibanez drove around the block. When they returned, Soltero got out of the car and again found only appellant waiting. Appellant pulled a gun, struck Soltero’s face with the gun twice, and took everything out of Soltero’s pockets, including the rock cocaine. Soltero returned to the car and told Ibanez he had been robbed. Ibanez and Soltero approached appellant and demanded that he return their property. Appellant held his hand in his pocket, as if he had a gun, and told them to leave. They left. Soltero wanted to retaliate. Ibanez refused, saying they had customers and friends in that neighborhood.
On the afternoon of April 9, 2005, Soltero and Ibanez were delivering rock cocaine to “Pookie,” who lived near 97th Street and Avalon. As Soltero drove east on 98th Street, he saw appellant. Appellant looked in Soltero’s direction. He made a hand sign shaped like an “M,” which Soltero understood to signify the Main Street Mafia Crips gang. Soltero told Ibanez that appellant was the person who previously robbed him. Ibanez said they should not have taken that street, and it appeared to him that appellant knew Soltero. Soltero continued driving, turned off of 98th Street and parked on 97th Street.
Soltero left Ibanez in the back seat of their Honda and went to deliver the drugs to Pookie. He was gone no more than five minutes. On his return to the car, he saw a crowd. He heard somebody say that someone should tell Pookie not to do anything because the police would be coming. Soltero attempted to hand the money from the drug sale to Ibanez. He saw that Ibanez had been shot. Soltero looked around and saw appellant standing in the crowd that had gathered near the southwest corner of 97th Street and Avalon. Appellant appeared to be “watching what’s going on.”
Detective Samuel Marullo knew appellant from numerous prior contacts that occurred while Marullo was assigned to the gang enforcement detail. The contacts occurred in the neighborhood of the Main Street Mafia Crips. Marullo often saw appellant at the intersection of 98th Street and Main, in the heart of that gang’s territory.
Marullo also knew that at the time Ibanez was shot appellant drove a white 1993 Caprice. On April 28, 2005, appellant drove up in that Caprice alongside Marullo at 98th Street and Main. The police escorted appellant to the police station, where they photographed him and his car.
Deon Webb told the police that on April 9, 2005, he had been standing about 50 yards away from a car in which someone was later shot, talking to his friend “Bug.” A white 1990’s model Caprice drove up alongside Webb and his friend. Its driver said, “Hey, cuz.” Webb responded, “Yeah?” The Caprice driver then asked, “You seen the Mexicans, man, that was driving that car?” Webb said he had not, and asked why. The Caprice driver replied, “I owe that motherfucker some slugs.” A little later, Webb heard five gunshots and dropped to the ground. He saw the man who had been driving the Caprice holding a gun while standing near a parked car. The man then got back into the Caprice and drove away slowly. Webb described the man as a light-skinned African-American or mulatto, bald or with a shaved head, no more than 21 years old, 5 feet 10 or 11 inches tall and about 140 pounds. Webb did not notice any tattoos on the man, who was wearing a tank top. Webb could not identify appellant from photographs or at trial, but the gunman’s car was the “exact same style” as the car depicted in photographs of appellant’s car shown to him by the detectives. Webb thought the car in the photograph could be the same car he saw on April 9, 2005. Webb did not identify appellant from a photographic array. He selected another man’s photograph as the “closest.”
At trial, Webb denied virtually everything he told the police. He did not know before the trial that the police recorded his interview with them.
Frank Hines was the person with whom Webb was conversing. Like Webb, he did not know that his interview with the police was recorded. His preliminary hearing testimony was read into the record, as he was unavailable to testify at the trial. At the preliminary hearing, he denied most of what he told the police. After the recording of the police interview was played at the preliminary hearing, Hines acknowledged the key portions of his statement.
At the pretrial hearing, the trial court observed, after hearing testimony about the police officers’ unsuccessful attempts to locate Hines: “It’s clear to me he doesn’t want to be found.”
Hines told the police that he and his friend Deon were talking when a white car pulled up near them. The car was “probably a Caprice.” The driver asked if “two Mexicans pulled up in a car.” A “little crazy dude” who was also present asked the driver which car he was referring to. The driver gestured down the street at a Honda that was parked about two houses down. The “crazy dude” asked whether the people the driver was looking for were cops. The driver replied, “No. I owe them motherfuckers some – some slugs.” The Caprice driver drove away, turned around, and began looking into cars. He turned his car around again, parked in the street, walked up to the Honda, and began shooting at a “Mexican dude” in the Honda. When shown photographs of appellant’s car, Hines initially said it was not the same car he saw on April 9, 2005. After examining the photographs further, however, he repeatedly said, “it could be the car” and that the car in the photographs was “similar” to the gunman’s car. Hines described the gunman as a “light-skinned” African-American or “a Mexican.” The gunman was approximately five feet seven inches to five feet nine inches tall, 150 to 160 pounds. He was wearing a T-shirt and had tattoos on his neck and head. Hines could not remember whether the gunman had tattoos on his arms. When shown a photographic array, Hines selected appellant’s photograph. Although he was not certain, he said the person in that photograph “looks like” the gunman. The eyes and skin color of the person in the photograph reminded him of the gunman’s. Hines specifically noted that both the gunman and the person whose photograph he selected could “pass both sides, Black or Hispanic.”
In his opening brief on appeal, appellant states that he was five feet seven inches tall and weighed 160 pounds when he was arrested.
At the trial, Marullo explained that he did not disclose that an interview was taped because witnesses will not talk to the police if they think their names will be disclosed.
Marullo photographed appellant’s tattoos during trial, and those photographs were introduced as exhibits. Among other tattoos, appellant had “9” tattooed on one tricep and “8” on the other. Marullo testified this signified 98th Street. Appellant had “M” tattooed on one forearm, which signified “Mafia,” according to Marullo. Collectively, these tattoos indicated to Marullo that appellant was associated with the Main Street Mafia Crips gang. Appellant did not have any tattoos on his neck, however.
On May 17, 2005, about five weeks after the shooting, Marullo and his partner found a gun hidden in a sock inside a van that was parked about a block from the crime scene. The van was in the possession of Danny Banks, who was a member of the 98th Street Mafia Crips gang. Ballistics testing established that the gun from the van was used to kill Ibanez.
When Marullo interviewed appellant on April 28, 2005, appellant said he had previously received three gunshots at 98th Street and Main. He attributed the attack to “Mexicans” who believed that he or one of two other victims “robbed them.” Marullo located an incident report regarding the shooting, which occurred on February 23 of an unspecified year.
At the preliminary hearing, Marullo testified the shooting occurred on February 23, 2005. The prosecutor said during opening statement that appellant was shot on February 23, 2005, a few weeks after he robbed Soltero and a few weeks before Ibanez was killed. His final argument also stated that appellant was shot a few weeks after he robbed Soltero. However, the exact year appellant was shot was not included in the trial testimony.
The circumstantial evidence and tentative identification of appellant constitute substantial evidence supporting appellant’s conviction. Soltero knew appellant, and observed him near the crime scene, shortly before the crime. Appellant made eye contact with Soltero and threw a gang sign at the vehicle in which Soltero and Ibanez were riding. It is reasonable to infer that the gang hand signal reflected, at a minimum, that appellant felt it necessary to assert his presence to Soltero and Ibanez. Appellant was present at the crime scene when Soltero discovered Ibanez’s body. In the interim, someone drove up to Hines and Webb in a car that appeared to be the same as or similar to appellant’s white Caprice, looking for “Mexicans” whom he owed “some slugs.” The driver of the Caprice then shot Ibanez. Hines tentatively identified appellant as the driver of the Caprice, and appellant fit within the height and weight range described by Hines. Appellant did not have tattoos on his neck, as Hines described, but he had large tattoos on his arms. Although Webb never identified appellant and his description of the gunman differed with respect to size and attire, both Webb and Hines agreed the gunman’s skin color was relatively light, either a light-skinned African-American or something else. Hines specifically noted that appellant’s photograph depicted the skin color he described as that of a “light-skinned” African-American or “Mexican” person. The jury could observe appellant and determine whether he fit any or all aspects of the descriptions given by Hines and Webb. A review of photographs of appellant admitted at trial indicates the description of his skin color was apt. (People’s exhibits 13-17.)
In addition, the murder weapon was found in the general vicinity of the crime scene in the possession of another member of the gang with which appellant was associated. The prior shooting against appellant may have furnished a motive for appellant to shoot Ibanez. Although the exact date of that prior shooting incident was not well-developed at trial, appellant clearly believed that someone he identified as “Mexicans” shot at him in retaliation for a prior robbery. That shooting gave appellant a motive to retaliate against persons whom he believed shot him. Moreover, appellant had previously engaged in violent and predatory conduct against Soltero when he pistol-whipped and robbed him. Minutes before the murder, he saw Soltero driving the Honda, and then he went looking for the people in the Honda, whom he described as “Mexicans.” His statement about owing them “some slugs” evinced hostility and a desire to retaliate against the occupants of the Honda. Whether Ibanez’s murder was retaliation for the earlier shooting or some other perceived wrong, appellant displayed a desire to inflict harm upon the people in the Honda.
In sum, the evidence was sufficient for a reasonable jury to find appellant guilty beyond a reasonable doubt.
2. The Admission of Limited Gang Evidence Was Not Error.
Appellant contends the trial court erred by admitting gang evidence, and the error violated his right to due process. Specifically, appellant complains of the following: (1) Soltero’s testimony that appellant “threw” the gang sign for the Main Street Mafia Crips gang at him as he and Ibanez drove by; (2) Detective John Skaggs’s testimony that he had communicated Soltero’s information about “Shaggy” and the gang sign, along with the location of the crime, to other officers, including “some other gang officers” working at his station; (3) Marullo’s testimony that he had known appellant for approximately five years because he had worked in the gang enforcement unit and had seen appellant many times in the “Main Street Mafia Crip neighborhood”; (4) Marullo’s testimony that appellant’s tattoos indicated he was associated with that gang; (5) Marullo’s testimony regarding the boundaries of the territory claimed by the gang; and (6) Marullo’s testimony regarding Banks’s gang membership and moniker.
Evidence of gang affiliation and activity is admissible when it is relevant to an issue such as motive, intent, or the truth of a gang enhancement allegation. (People v. Williams (1997) 16 Cal.4th 153, 193; People v. Gardeley (1996) 14 Cal.4th 605, 619-620.) The trial court must, however, carefully scrutinize the evidence because it may tend to inflame the jury. (People v. Williams, supra, 16 Cal.4th at p. 193.) Evidence Code section 352 provides that the court may, in its discretion, exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, create a substantial danger of undue prejudice, confuse the issues, or mislead the jury. The type of prejudice Evidence Code section 352 seeks to avoid is not the damage to a defense that naturally results from relevant evidence, but the tendency to prejudge a person or cause on the basis of extraneous factors. (People v. Zapien (1993) 4 Cal.4th 929, 958.)
The minimal gang evidence introduced at appellant’s trial was highly probative, in that it assisted in establishing his identity. It tended to corroborate Soltero’s testimony that appellant made a gang gesture at him and Ibanez as they drove past minutes before the murder. The gang gesture was relevant because it tended to show that appellant adopted a hostile or confrontational attitude when he saw Soltero and Ibanez. This, in turn, tended to show appellant’s identity as the killer. Similarly, the discovery of the murder weapon in a van in the possession of a member of the same gang with which appellant was associated had some tendency to show appellant’s identity. Similarly, had the murder weapon been discovered in the possession of persons who shared no known characteristics with appellant, it would have tended to show appellant was not the killer. In addition, the gang evidence provided some explanation for the reluctance of Hines and Webb to testify against appellant. Skaggs’s testimony about passing information on to “gang officers” and Marullo’s testimony regarding the boundaries of the territory claimed by the gang, however, had little probative value.
The gang evidence introduced at appellant’s trial was extremely limited in scope. There was no testimony regarding how long appellant had been in the gang, his position in the gang, or any of the prior gang activities or crimes that he or other gang members might have committed. Furthermore, the shooting was expressly committed for revenge, because appellant “owed” the Mexicans some bullets. The absence of a gang motive for the shooting diminished the possibility that the jury would link appellant with any negative propensity associated with gangs. Moreover, the gang evidence was not so pervasive or inflammatory as to create a risk that the jury would prejudge the case, or judge it on the basis of extraneous factors. It was therefore not unduly prejudicial.
It is important that appellant himself introduced a gang aspect into the case, by making a gang hand gesture at Soltero and Ibanez as they passed. He cannot legitimately complain that he was unduly prejudiced by admission of evidence of his own gang-related conduct preceding the crime.
Given the significant role played by the gang evidence in establishing appellant’s identity as Ibanez’s killer and the relatively limited scope of the evidence on this issue, the trial court did not abuse its discretion by concluding the risk of undue prejudice did not substantially outweigh the probative value of the evidence. The nature and extent of the gang evidence was limited and did not introduce such extreme unfairness as to violate “ ‘fundamental conceptions of justice. . . .’ ” (Dowling v. United States (1990) 493 U.S. 342, 352-353.) Accordingly, the admission of the evidence did not violate due process.
In supplemental briefing, appellant raised People v. Albarran (2007) 149 Cal.App.4th 214. It is distinguishable, as it involved gang evidence that was far more inflammatory than the evidence here.
3. Appellant Was Not Deprived of His Right to the Effective Assistance of Counsel.
Appellant contends his trial attorney rendered ineffective assistance. His claim is based on numerous categories of purported errors.
A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsel’s errors, appellant would have obtained a more favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Appellant must overcome presumptions that counsel was effective and that the challenged action might be considered sound trial strategy. (In re Jones (1996) 13 Cal.4th 552, 561.) Counsel is given wide latitude and discretion in the area of tactics and strategy, but the exercise of that discretion must be founded upon reasonable investigation and preparation, and reasonable and informed in light of the facts and options reasonably apparent to counsel at the time of trial. (Id. at pp. 561, 564-565.)
a. Defense counsel’s opening statement.
Appellant complains of two aspects of defense counsel’s opening statement. First, he argues counsel made an unreasonable tactical decision to inject the topic of gangs in his opening statement. He argues counsel’s statement eroded the court’s prior ruling excluding gang evidence and was a cause of the court’s later ruling permitting the prosecutor to admit gang evidence.
Before trial, defense counsel successfully moved to exclude gang evidence, except for the Main Street Mafia Crips gang sign that appellant displayed before the crime, his saying, “What’s up cuz” to the eyewitnesses, and his gang tattoos. He also successfully moved to exclude evidence that numerous unrelated weapons were found when appellant’s house was searched. He further obtained a ruling that the jury could hear that an unknown caller told the police the murder weapon was in the van, but was not to hear that the caller also said that appellant put the weapon in the van.
During the extensive pretrial discussions, neither the prosecutor nor defense counsel mentioned that Banks, who was in possession of the van when the gun was found, belonged to appellant’s gang.
Similarly, neither the prosecutor nor defense counsel referred to Banks’s gang membership during opening statement. The prosecutor summarized what the evidence would show without mentioning the gun in the van. Defense counsel basically suggested that Soltero was not credible, and there were other people in the area, including gang members, who might have killed Ibanez for drugs or money.
Specifically, defense counsel stated:
“Okay. Now, first of all, the evidence will show that Mr. Ibanez, the victim in this case, the deceased, was a drug dealer and in fact he was right in the middle of a drug transaction when he was shot and killed. He was making a drug delivery with Mr. Soltero who you will hear here as a witness. Mr. Soltero was tak[ing] the drugs to some people in the back of a building and, you know, leaving off the drugs and getting money. Mr. Soltero is a drug dealer also. Remember that when he testifies here as to what he says. Mr. Soltero like all people who are involved in criminal activity sometimes doesn’t tell the truth. . . . [¶] Mr. Soltero has a story that Mr. Buckhalter had robbed him at one point. Why does he tell that to the police? I don’t know. Doesn’t make any sense and it really doesn’t have any relevance here to this case because apparently the victim in this case when he is making a drug delivery, he has drugs in the car. He has money in the car. People want that drugs and money, and later apparently some of those drugs and some of that money is unaccounted for. Who took that? . . . [¶] Now, in addition, I think you are going to have testimony from the detectives who investigated this matter that the area where Mr. Soltero went back to behind the building was an area where there were gang members present. Now, again, what do gang members do? One of the principal activities of gang members how they make money is to buy and sell drugs and to steal drugs and money from other people. And Mr. Soltero is a soldier. He is in the back making a drug delivery and there are gang members present in that area right at the time of this drug delivery.”
The court later cautioned defense counsel that if he questioned any witness about gangs, the court would permit the prosecutor to present the previously excluded gang evidence. Defense counsel explained that he saw a distinction between “Evidence Code 352 type evidence saying he is a bad guy because he is a gang member” and “m[y] saying that there were gang members in the area who could have robbed this young man making this delivery.”
In our view, defense counsel utilized a reasonable strategy, by suggesting to the jury that there were many people in the vicinity, including gang members, who might have killed Ibanez for the drugs or money that Ibanez was likely to have in the car. Other evidence in the case showed that appellant had a personal motive, based on his having been shot in the past. To minimize the effect of that personal motive evidence, it was appropriate for defense counsel to suggest that there were other people in the area who also had a motive. Including gang members in that larger group was an acceptable tactic, since defense counsel knew there would be evidence that appellant had gang tattoos and threw a gang sign shortly before the shooting. As respondent aptly argues, “Tactically, even if appellant was a gang member himself who appropriately fell under his own counsel’s umbrella of suspects, it was better that there be others with him under the same umbrella than he be alone.”
We therefore conclude that mentioning gangs in the opening statement did not constitute objectively unreasonable performance.
Appellant also faults defense counsel for stating that no evidence linked appellant to the murder weapon. He argues this was also an unsound strategy because it led the court to revisit its previous ruling excluding gang evidence and was based upon inadequate preparation.
Defense counsel stated the following regarding the murder weapon:
“The police do find the murder weapon. . . . They went to a vehicle on the street. The vehicle is a van. You are going to hear evidence it has nothing to do with Mr. Buckhalter. No connection between that van and Mr. Buckhalter. They go to this van. They discover two people in the van and they ask them a bunch of questions and so forth. They eventually search the van. They find the murder weapon in a white sock in the van. [¶] Now, apparently one of the people in the van is a felon. . . . And that person apparently is arrested for being a felon in the possession of a gun, which is illegal so he gets arrested. But neither one of those two people are prosecuted for murder. Mr. Buckhalter is. The murder weapon is found in a van that has no connection to him and Mr. Buckhalter gets accused of murder because of this weird story that Mr. Soltero makes up apparently. He becomes a suspect and some other very, very skimpy evidence which we’ll talk about.”
Defense counsel’s reference to the lack of a connection between appellant and the van came up again, later in the trial, in the context of the admissibility of gang evidence.
The preceding day’s proceedings had concluded slightly early, because the prosecutor told the court that Detective Marullo was his next witness, and he needed to interview Marullo in detail, which he had previously been unable to do.
At the next morning’s proceedings, the prosecutor told the court that Marullo said he personally knew Danny Banks, and Banks was “a documented Main Street Crip gang member with a moniker of Pimp.”
Defense counsel argued that evidence of Banks’s gang membership should be excluded based on a discovery violation, as it was not mentioned in the discovery materials. The prosecutor replied that he had checked the discovery materials earlier that morning, and there was a police report that showed that Banks told the police about his gang affiliation, following his arrest in the van for being a felon in possession of a gun.
The trial court read the police report and ruled that there was no discovery violation.
Defense counsel then argued that evidence of Banks’s gang membership should be excluded pursuant to Evidence Code section 352. The trial court ultimately ruled that, while the scope of permissible gang evidence would still be limited, the specific gang evidence that linked appellant to the murder weapon would be admitted, because it was relevant and more probative than prejudicial.
Marullo’s subsequent testimony included his personal knowledge that Banks was an admitted and documented member of the Main Street Mafia Crips.
The record therefore shows that neither defense counsel nor the prosecutor realized until after opening statement that there was a police report in the discovery materials that showed Banks belonged to appellant’s gang. The prosecutor learned that fact when he spoke with Marullo, and then verified that the fact appeared in a police report. Defense counsel’s argument that there was no connection between appellant and the murder weapon was based upon what he then believed the evidence would show, due to the pretrial ruling that precluded evidence that an anonymous caller said appellant put the gun into the van.
The most important points are that defense counsel’s opening statement was an accurate forecast of what he then believed the evidence would show, the trial court’s ruling about the admissibility of Banks’s gang membership was not based on defense counsel’s opening statement, and the prosecutor was likely to have obtained the information about Banks’s gang membership when he discussed the case in detail with Marullo. Defense counsel’s opening statement may have alerted the prosecutor to a weakness in the People’s case, but the prosecutor probably already knew about that problem, which may explain why he did not mention the gun when he summarized the evidence in his opening statement. It is only speculation to say the prosecutor would not have discovered Banks’s gang affiliation without defense counsel’s argument. Therefore, assuming arguendo that defense counsel should have noticed the reference to Banks’s gang in the discovery materials, appellant has not demonstrated “a reasonable probability that, but for counsel’s failings, the result would have been more favorable to [him].” (In re Jones, supra, 13 Cal.4th at p. 561.)
b. Defense counsel’s closing argument.
Appellant also argues defense counsel “inflame[d] the already prejudicial effect of the gang evidence” by referring to the crime scene as located in an area that was a “hot bed [of] activity for gangs and drugs.”
While arguing that Soltero was not a credible witness, defense counsel stated the following in his closing argument:
“Should we believe everything Mr. Soltero says? Why? He is a criminal. He is a drug dealer. He has got a reason at least in his view to blame Mr. Buckhalter for this crime, but here is the problem for the prosecution with witness number one. Mr. Soltero is at the scene. Says by his own words that he has gone in to deliver drugs. He is going to give the drugs to the person in the back. Okay. This is a high gang area, very high gang area. Counsel talked about the hundreds and hundreds of gang members that are in that area. Well, of course there are. It is a main street hot bed [of] activity for gangs and drugs.”
Defense counsel could reasonably have concluded that this argument was necessary and appropriate to capitalize on portions of the prosecutor’s prior argument and to deflate other aspects of the prosecutor’s argument. In his opening argument, the prosecutor told the jury that, although there might be “hundreds” or “thousands” of members of the Main Street Mafia Crips, the jury could be certain the gunman was appellant because “[w]e know that all Main Street gang members aren’t out there at that street every day. There’s not thousands or hundreds, how many there are, that hang out on that corner. Some are in prison. Some are dead. Some are at work. Some are out committing crimes. Some are at different locations. So you narrow it down to what we’ll call active members of Main Street. Whatever number it is, it still narrows it down some more.” Defense counsel’s argument capitalized upon the idea that there were hundreds or thousands of members of appellant’s gang by characterizing it as “a high gang area, very high gang area” and “hotbed” of gang activity. The purpose of doing so was to expand the set of possible suspects to include the numerous gang members in the area, thereby countering the prosecutor’s argument that few people in the area could be the killer. Defense counsel’s argument was consistent with the theory he used in opening statement. It had no tendency to “inflame” the prejudicial effect of the limited gang evidence, as he did not refer to appellant’s gang status, attribute gang activity to appellant, or refer to crimes or other misconduct by gangs.
To the extent counsel argued the area was a “hotbed” for drug activity, the argument was supported by Soltero’s testimony that he and Ibanez had previously sold drugs to customers in the area, they did not sell to drug users, and they would not retaliate against appellant for the robbery because they had to continue to “work” for their customers in the area.
Accordingly, counsel’s argument may be deemed a sound and reasonable strategic decision.
c. Prosecutor’s opening statement.
The remainder of appellant’s ineffective assistance claims are based on the theory that defense counsel failed to object to instances of prosecutorial misconduct.
Conduct by a prosecutor that does not violate a ruling by the trial court is misconduct only if it amounts to the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury or is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Silva (2001) 25 Cal.4th 345, 373.)
First, appellant argues defense counsel rendered ineffective assistance by failing to object to a portion of the prosecutor’s opening statement in which he said his two eyewitnesses were not gang members. Appellant contends this constituted vouching.
If a prosecutorial misconduct claim is based on the prosecutor’s arguments to the jury, we consider how the statement would, or could, have been understood by a reasonable juror in the context of the entire argument. (People v. Benson (1990) 52 Cal.3d 754, 793.) No misconduct exists if a juror would have taken the statement to state or imply nothing harmful. (Ibid.)
A prosecutor may not vouch personally or on behalf of the government for the veracity of a witness or suggest that matters outside the record establish the witness’s veracity. However, the prosecutor may assure the jury of a witness’s apparent honesty or reliability based on matters in the record. (People v. Padilla (1995) 11 Cal.4th 891, 946, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800; People v. Stansbury (1993) 4 Cal.4th 1017, 1059, revd. on other grounds sub nom. Stansbury v. California (1994) 511 U.S. 318.)
In the challenged portion of his opening statement, the prosecutor said that appellant “pulled up and contacted two witnesses that were out there that afternoon. . . . There was Mr. D[e]on Webb and Mr. Frank Hines. Mr. D[e]on Webb and Frank Hines are not gang members. They are just two regular friends who have known each other for a long time.”
The prosecutor’s statement that Webb and Hines were not gang members was not supported by any evidence given thereafter. However, merely stating that Hines and Webb were not gang members did not constitute vouching. Although stating that a person is a gang member may imply certain negative characteristics, no positive characteristics, such as veracity, are implied by stating that someone is not a gang member. There are many dishonest people who are not gang members. Moreover, the prosecutor had not mentioned gangs at the time he made the challenged statement. In referring to Webb and Hines, the prosecutor was not comparing and contrasting the character of various witnesses. In short, the prosecutor was not vouching.
Deciding whether to object to allegedly improper argument is inherently tactical, and the failure to object will seldom constitute defective performance. (People v. Carpenter (1997) 15 Cal.4th 312, 396.)
Defense counsel could conclude there was no basis for objecting to the prosecutor’s statement, as it was not vouching. Because it was an opening statement, counsel did not know that no evidence would be introduced thereafter to prove that Webb and Hines were not gang members. Accordingly, appellant has neither overcome the presumption of sound strategy nor demonstrated objectively unreasonable performance by defense counsel.
d. Prosecutor’s question to Skaggs.
Before the court modified its order excluding gang evidence, the prosecutor asked Skaggs, “And with that information of Shaggy and with the description of the hand sign for ‘M’ and based on the location where this crime occurred, did you provide that information to any other law-enforcement officer in order to try and identify a possible suspect?” Skaggs said he did. The prosecutor then asked, “And who was that?” Skaggs replied, “My partner for one and some other gang officers that work at my same station.”
Appellant contends defense counsel rendered ineffective assistance by failing to object to “the question.” He argues, “The prosecutor knew what the answer would be, since he was assigned to the prosecution’s gang murder unit . . . and thus worked closely with police gang units.”
Defense counsel could have objected to Skaggs’s testimony regarding gang officers on the ground of relevance, as the method in which the police investigation developed was irrelevant at trial. He may have chosen not to object because he knew the jury would learn appellant was a gang member, based on the pretrial rulings.
However, appellant’s contention on appeal is not evidentiary, but one of prosecutorial misconduct. He assumes the prosecutor knew Skaggs would give exactly the answer he gave. This may be true, but the record provides no basis for such knowledge. The mere fact that the prosecutor “handle[d] only gang-related homicides” likely did not invest him with psychic powers. He may well have believed Skaggs would name particular officers or simply refer to his partner, Marullo, who was a former gang detail officer. It is extremely unlikely defense counsel believed, as appellant does, that the prosecutor knew precisely what Skaggs would say. It is even less likely that defense counsel would have succeeded in convincing the court that the prosecutor had engaged in misconduct because he knew precisely what Skaggs would say.
e. Prosecutor’s argument that he only handled gang cases.
Several times during his opening argument, the prosecutor referred to the Crenshaw Mafia Crips. On several occasions, he corrected himself. After referring to the wrong gang in three of four successive sentences, he said, “I keep saying Crenshaw. I’m sorry. I handle only gang-related homicides and there are a lot of gangs unfortunately in L.A. County and I get them confused sometimes. This is Main Street Mafia Crips.”
Appellant argues the “prosecutor was vouching for himself” and implying he “had superior knowledge about gang activity,” so the jury should “trust the government’s judgment.”
The prosecutor’s statement did not constitute vouching. No aspect of it suggested the prosecutor was himself worthy of trust or that the jury should convict appellant on the basis of facts outside the record or trust in the prosecutor or the government. Defense counsel could conclude there was no basis for objection to the prosecutor’s statement. Accordingly, appellant has neither overcome the presumption of sound strategy nor demonstrated objectively unreasonable performance by defense counsel.
f. Prosecutor’s comment on gangs.
In his opening argument, the prosecutor addressed the failure of Hines and Webb to identify appellant in court, their reluctance to testify, and Hines’s unavailability:
“And counsel as he should is going to come up here and argue to you, you know, there were two witnesses out here, Mr. – at least two, Mr. Hines and Mr. Webb. They were there. They saw the murder. They spoke to the shooter. And not one of them has pointed my client out. Do you think it’s coincidence that the one that did point him out from the six-pack isn’t here to testify? Do you think it’s coincidence that they didn’t call the police? The police had to find them? Do you think it’s coincidence that Mr. Hines denied ever making those statements at the preliminary hearing? That Mr. Webb denied making any statements here in court? That neither one of them wanted to be contacted? That both of them were concerned about their safety, specifically Mr. Hines about his family?
“Ladies and gentlemen, this is a gang-related homicide. We all know that we want people and witnesses to do their civic duty. We hate the fact that gangs are running the street, destroying our community, selling dope, killing people are running amuck. We hate that and we all want to do something about it. But when it happens in front of you, all of a sudden things change. At that point preservation takes over. And sure, I want to help society. I want to help everything. I want this to stop, but not at my peril.
“And it is not unusual for witnesses in that situation who live in that community or in these communities around Compton to feel that way. They don’t trust the police. They don’t like the police. The police hasn’t [sic] helped them when they need it. It’s happening all over the place: Murders. Mr. Webb tells you the last time I was there at that location there was another murder. Happens all the time. So is it unusual to find witnesses who are reluctant who change their testimony who even when at the safety of the station are not completely forthright about that? No, it is not and you can understand that, but do you let a murderer go because of that? No, we don’t do that either.”
Appellant argues the portion of the argument about gangs “running the street, destroying our community, selling dope, killing people” and running amuck was an appeal to jurors’ passions or prejudices and urged them to “take the defendant off the streets.” He contends his attorney should have objected to the argument.
Reasonable jurors would have understood the challenged comment not as an appeal to them to convict appellant because he was a gang member or associate, but as part of a lengthy explanation for why Webb denied making any statements to the police at trial, Hines did the same at the preliminary hearing, Hines was unavailable to testify at trial, and Webb did not identify anyone. In the context of the entire argument, therefore, reasonable jurors would have taken the challenged comment to state or imply nothing harmful. Accordingly, it was neither objectively unreasonable nor prejudicial for defense counsel to refrain from objecting.
g. Prosecutor’s comment about Webb’s “shoes.”
In his closing argument, the prosecutor returned several times to the topic of eyewitnesses’ reluctance to testify and identify appellant. In a portion of that argument challenged by appellant, he said,
“Counsel talks about Mr. Webb did not identify anybody in court. And you’ve heard Mr. Webb’s testimony and at least we heard his transcript. I submit to you on the stand even there he swore to tell the truth, nothing but the truth, so help him God. I submit to you that he had other concerns and that’s why every question I asked him which was on the transcript, by the way, he said no, no, no, I never said that, no, no, no. I’m of no use to you. I don’t know why I’m here. I can’t help you, et cetera.
“Again you heard Mr. Webb talking about the person who committed this murder. The evil look on his face. The cold-bloodedness. The audacity to commit this murder. An execution. And you actually expect him to cooperate and I.D. Mr. Buckhalter in court. I submit to you put yourself in his shoes and ask yourself if that’s something you would be willing to do.”
Appellant contends defense counsel should have objected to the final sentence of this portion of argument quoted above. He argues it was analogous to the prohibited practice of asking jurors to identify and empathize with the victim of a crime.
The prosecutor did not, however, ask the jurors to identify or empathize with the victim or his family, which is an appeal to jurors to decide the case on the basis of emotion, not evidence. (People v. Fields (1983) 35 Cal.3d 329, 362-363.) Instead, his appeal to jurors to imagine themselves in Webb’s position asked them to understand why Webb was reluctant to testify. This was not an appeal to jurors’ emotions. It was neither objectively unreasonable nor prejudicial for defense counsel to refrain from objecting to this remark.
h. Prosecutor’s argument regarding appellant controlling the neighborhood.
In his closing argument, the prosecutor responded to defense counsel’s argument that it was implausible appellant would remain in the vicinity if he had killed Ibanez. The prosecutor argued:
“[Defense counsel] indicated that a peculiar situation – a peculiar fact in this case because remember, you are not supposed to believe Mr. Soltero, but if you do believe him, the part that I want you to believe is the fact that Mr. Buckhalter was there after the murder somewhere by the corner looking down 97th Street and that if he was the murderer, you would expect him to have left the neighborhood.
“You would have expected him to have left the area, go somewhere so he wouldn’t be caught and arrested. If it was you or me or someone I would submit to you other than Mr. Buckhalter who had committed this offense in that location, logic tells you I’m going to leave this location and I’m going to go somewhere where I’m safe. Somewhere where I know. Somewhere I have people. Somewhere where I control the neighborhood. Somewhere I know people are not going to identify me because they know what’s coming if they do. And if I don’t do it, they know what my friends are going to do to them and their family and their dogs and their cars and their property.
“But if you live in that neighborhood and you control that neighborhood by shear [sic] violence and intimidation and you control that particular corner, that particular area after you commit that murder, do you really find the need to leave somewhere else? Especially if you are so bold that you rob drug dealers without being concerned, you are so bold that you murder people in broad daylight in front of people in that neighborhood knowing that they are not going to call the police, because we know they did not call the police, we know they had to be contacted almost two months later by some unknown means, that is what gangs do.
“That’s how they control.”
Appellant contends the prosecutor’s argument was improper because it was based upon his personal knowledge or belief and was “highly inflammatory.”
Nothing in the record indicated appellant “control[led]” the neighborhood where Ibanez was murdered or any other neighborhood. The evidence showed he was associated with one of several gangs that claimed that area as part of their territory. Appellant’s earlier robbery of Soltero may have indicated he was bold, but did not show he controlled the neighborhood. Accordingly, the prosecutor’s argument was based upon matters outside of the record, which is impermissible. (People v. Benson, supra, 52 Cal.3d at pp. 794-795.) Although the prosecutor may refer to matters that are common knowledge (People v. Wharton (1991) 53 Cal.3d 522, 567), we cannot assume that it was common knowledge that either appellant or the Main Street Mafia Crips controlled the neighborhood where Ibanez was killed.
Respondent argues the argument in question was a fair response to defense counsel’s argument. While it was appropriate for the prosecutor to attempt to refute the defense argument regarding appellant remaining in the area, the prosecutor was not entitled to resort to matters outside of the record. Accordingly, defense counsel should have objected to at least a portion of the argument quoted above. Had he objected on the correct ground, it is highly probable the court would have sustained the objection and taken corrective action.
The prosecutor’s argument created a strong risk that the jury would infer that the prosecutor knew more about appellant’s gang and his status within the gang than was shown by the limited gang evidence that had been admitted. Through this argument, the prosecutor told the jury, in essence, that he had additional information establishing that appellant was a gang member who controlled the neighborhood where Ibanez was shot by using violence and intimidation against anyone who displeased him or interfered with his control.
Although we believe defense counsel should have objected to the prosecutor’s argument that appellant controlled the neighborhood, there remains the issue of prejudice. We postpone resolution of that issue until we consider appellant’s remaining contentions.
i. Prosecutor’s argument that the Crenshaw gang sold drugs near the site where the gun was recovered.
In his opening argument, the prosecutor argued that the murder weapon was found “just about half a block or some short distance from where Mr. Buckhalter hangs out. We’ll call it his spot. . . . That gun is found in Crenshaw Mafia territory in a van near the spot where Crenshaw Mafia sells dope and that gun is found or a person in that van, in possession of that van is a Crenshaw Mafia Crip gang member.”
Appellant argues that because there was no evidence that his gang sold drugs, the prosecuter’s argument was based on matters outside the record.
For purposes of this analysis, we disregard the prosecutor’s erroneous use of the wrong gang name.
The only evidence of drug sales pertained to sales by Soltero and Ibanez. Nothing in the record showed that the Main Street Mafia Crips gang sold drugs at all, let alone “near the spot” where the murder weapon was found. This was therefore another instance in which the prosecutor’s argument relied upon matters outside the record and should have resulted in an objection from defense counsel.
This argument created a substantial risk that the jury would infer that the prosecutor knew more about appellant’s gang than was shown by the limited gang evidence that had been admitted. Although the inference that appellant’s gang sold drugs in that location was not unduly prejudicial, the prosecutor’s argument about the location itself served to strengthen the link between the gun and appellant. According to the prosecutor’s argument, the location of the van was strongly associated with the activities of the gang. Jurors reasonably could infer that the gun at that location was known to the members of the gang and used by them when they needed it in relation to their drug sales at that location. Because, according to the prosecutor, appellant controlled that neighborhood, he would likely have known about and been able to retrieve it for use in shooting Ibanez.
We again postpone deciding the prejudice from the lack of an objection, while we consider the remaining issues.
j. “Gang tattoos” label on photograph
Appellant also contends his attorney rendered ineffective assistance by failing to object to a label of “GANG TATTOOS” across the top of People’s exhibit 13, which was a photograph of appellant’s bare back and the backs of his arms. The “9” and “8” tattoos on the backs of his arms are visible in the photograph, which was printed on a piece of ordinary white printer paper. The label in question is not part of the photograph itself, but appears in an outlined rectangle above the photograph.
Before this photograph was introduced, Marullo testified that appellant had tattoos indicating “an association with 98th Main Street Mafia Crips.” When asked which tattoos showed the gang association, Marullo cited the “9” and “8” tattoos on appellant’s triceps and the “M” tattoo on one forearm. The prosecutor then introduced exhibits 13 through 17, and Marullo testified that exhibit 13 depicted a “rear view of [appellant] and on the left tricep is the number 9. On the right tricep is the number 8.”
Defense counsel probably should have objected to the “gang tattoos” label on exhibit 13. Even so, we see no possible prejudice from that label, since the tattoos themselves were obvious, and the jury had already repeatedly heard that appellant was a gang member.
k. Failure to trim photograph
Appellant also contends his attorney rendered ineffective assistance by failing to demand that the prosecutor comply with the court’s ruling granting his request that his colostomy bag be trimmed from the photographs in People’s exhibits 14 through 16. The court ruled that the colostomy bag should not be visible when the photographs were shown. The prosecutor said he would put “a sticky” over it “for now and then make it permanent afterwards or cut it out.” Instead, the pictures the jury saw included the yellow sticky notes over that part of appellant’s body. Appellant argues that the “glaring yellow Post-it note on the pictures . . . [left] the jury to speculate about what was under it.” We see no possible prejudice to appellant from the presence of the sticky notes. Indeed, defense counsel may have simply decided that the sticky notes accomplished the purpose of his request.
l. Prejudice
We have previously rejected most of appellant’s assertions regarding defense counsel’s performance. There were two significant mistakes that require a further assessment of prejudice: counsel’s failure to object to the prosecutor’s statement that appellant controlled the neighborhood, and counsel’s failure to object to the prosecutor’s statement that appellant’s gang sold narcotics in that area.
To justify a reversal, appellant had to establish a reasonable probability that he would have obtained a more reasonable result, but for counsel’s failure to object to the statements in question. (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing Strickland v. Washington (1984) 466 U.S. 668, 687, 694 & In re Wilson (1992) 3 Cal.4th 945, 950.) He has not met that burden for these reasons:
(1) The jury had already heard that appellant purchased cocaine from Soltero and pistol-whipped Soltero while robbing him. It also knew he was a gang member who threw a gang sign at Soltero and had many gang tattoos. Given what the jury already knew, there was little additional harm from the prosecutor’s improper statements that appellant controlled the neighborhood and belonged to a gang that sold narcotics. Moreover, even if the jury believed those statements, the information they contained did not mean that appellant killed Ibanez, which was the only real issue.
(2) The trial court carefully told the jury that counsels’ final arguments would summarize their view of the evidence, and if counsel misstated the evidence, the jurors should rely on their own memory of what the evidence showed. We assume that the jurors followed that instruction.
(3) The evidence of appellant’s guilt was strong. Hines had previously identified appellant as the shooter, and Webb had previously identified appellant’s car. Their evidence essentially corroborated the much stronger identity evidence provided by Soltero, who knew appellant and saw him nearby before and after the crime.
When Ibanez and Soltero drove by appellant on 98th Street, appellant looked at Soltero and displayed a gang sign. Appellant therefore knew that Ibanez and Soltero were in his area, in that particular car. Within minutes, the person who was the shooter drove up to Hines and Webb, asking for the two “Mexicans” in the car and angrily saying that he owed them some bullets. He then parked his car, walked up to Ibanez, shot him, and drove away again. The shooter’s words and actions showed that he had a strong personal motive for the shooting. Appellant was shown to be the person with that motive, as he had previously robbed Soltero, and had previously been shot by “Mexicans” who accused him or his companions of committing a robbery.
Considering all of the circumstances in this case, we conclude that any mistakes by defense counsel did not prejudice appellant and did not amount to the ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.