Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS071085A
Duffy, J.
A jury convicted defendant Hugo Chavez of multiple offenses arising out of two drive-by shootings. He claims that there was insufficient evidence of gang involvement; that counsel erred by agreeing to let the jury hear that another defendant in the case had pleaded guilty to a crime and admitted gang involvement in the shootings; and that the trial court erred by allowing the prosecution to introduce evidence about defendant’s time in jail and that counsel erred by failing to complain about that evidence.
We find no reversible error and will affirm the judgment.
PROCEDURAL BACKGROUND
A jury convicted defendant of four counts of attempted deliberate, premeditated murder (Pen. Code, §§ 187, subd. (a), 189, 664, subd. (a) (counts 1, 5, 8, and 10), assault with a semiautomatic firearm (§ 245, subd. (b)) (count 2), shooting at an inhabited dwelling (§ 246) (count 3), shooting a firearm from a motor vehicle at a bystander (§ 12034, subd. (c)) (count 4), assault with a firearm (§ 245, subd. (a)(2)) (counts 6, 9, and 11), shooting at an occupied motor vehicle (§ 246, count 7), and street terrorism (§ 186.22, subd. (a)) (count 12). With regard to all of the counts except count 12, where the matter was not alleged, the jury found true allegations that the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the intent to promote, further, or assist in any criminal conduct by gang members (§ 186.22, subd. (b)(1)). With regard to counts 1, 2, 6, 9, 11, and 12, the jury found true allegations that defendant personally used a firearm (§ 12022.5, subd. (a)); with regard to counts 1, 5, 8, and 10 that he intentionally and personally discharged a firearm (§ 12022.53, subd. (c)); and with regard to counts 1, 5, 8, and 10 that he was a principal in the offenses (§ 12022.53, subds. (c), (e)(1)).
All statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced defendant to life imprisonment with a minimum parole eligibility period of 70 years.
FACTS
On February 25, 2007, a gunman shot from a moving white sport-utility vehicle, first at three people during a chase along U.S. Highway 101 and later that day at a person who was attending to his car in his driveway. The prosecution theorized that defendant and his friend Hugo Cervantez were in the vehicle and that defendant was the shooter in both incidents. The defense theorized that the gunman was Cervantez and disputed that defendant was in the vehicle at all when the U.S. Highway 101 shootings occurred.
Different witnesses described the make and model of this sport-utility vehicle differently. As will appear, they characterized it as a Chevrolet Suburban, a General Motors Corporation Yukon, and a Chevrolet Tahoe. All, however, were referring to the same vehicle.
I. Prosecution Case
A. Shooting at Rodolfo, Victor, and a Third Man
1. Victor’s Accounts to Police and in Court
In an interview that was videotaped and played for the jury, Victor told Salinas Police Detective Vicky Burnett that he collected his cousin Rodolfo and another cousin and they went to the Long’s Drugs in Salinas to buy diapers.
At trial, the victim witnesses were identified by their first names only.
As they arrived at the drugstore, “I seen 5, 4 or 5 gang members standing there in the corner by La Vina Market, ” Victor told Detective Burnett.
Victor told Detective Burnett that the men at the shopping center were staring at them and that they were Sureño gang members based on their clothing and the way they looked at them. One of them was wearing an Oakland Raiders professional football team jersey, apparel that Victor associated with Sureños. Victor and Rodolfo’s clothing was nondescript except that Rodolfo was wearing a San Francisco Giants professional baseball team cap. (We describe the significance of this below.)
Victor drove his vehicle down city streets to U.S. Highway 101 with the men from the shopping center following. He told Detective Burnett that he knew the pursuing vehicle had a top speed of 100 miles per hour, so he accelerated to 110 miles per hour on U.S. Highway 101 to elude it. His flight was soon blocked, however, by slower vehicles that occupied both highway lanes. At that point, the pursuing vehicle moved alongside his and defendant, the passenger, sat up through the passenger’s window and fired three rounds at him and his passengers. Defendant was wearing an Oakland Raiders jersey, which Victor believed to be a gang identifier. Victor identified defendant as the shooter after viewing a so-called six-pack photographic lineup of possible suspects. He was “pretty much sure it was him.” This was one of two photographic lineups that Detective Burnett showed Victor. Looking at the other lineup, which contained a photograph of Cervantez, Victor stated that he thought the driver of the pursuing vehicle was Cervantez, but he was not certain of that.
Detective Burnett testified that Victor told her that he had found a bullet behind the seat of his car, which the police collected from his residence. He said there were two people in the vehicle following his. He said that he thought the individuals at the shopping center were gang members. He had contacted the police because his mother wanted him to do so. He did not want to testify, however; in fact, he did not want the case to be prosecuted at all.
Detective Burnett explained to the jury that Norteño gang members identify with the color red and like to wear the apparel of the San Francisco Giants and San Francisco 49ers professional sports teams.
In court, Victor’s testimony was restrained compared to, or at odds with, the evidence he provided to Detective Burnett during her interview of him.
Victor testified that the incident occurred after he and his cousin Rodolfo drove to a Salinas shopping center. Victor noticed a group of men looking at him from a sidewalk. Although they said nothing, Victor regarded their stares as ominous and he and Rodolfo got back into Victor’s car and drove away.
A vehicle containing the men Victor and Rodolfo had seen at the shopping center followed them, aggressively tailgating as both vehicles drove toward U.S. Highway 101. Once on the highway, Victor tried to evade the pursuers. He heard gunshots during the chase. The cat-and-mouse game ended without injury to Victor and Rodolfo when they abandoned their car and ran away.
The morning after the shooting, Victor saw a photograph in the newspaper of a white sport-utility vehicle that had been in an accident. It looked like the one that had been following him, and he decided to contact the police.
Victor was aware that a bullet had lodged in the car’s back seat and he told his father, who extracted it and gave it to the police.
Victor testified that he did not recall telling Detective Burnett that he saw a passenger in the white sport-utility vehicle shooting from the window (contrary to what the video recording of the police interview showed jurors). He did not get a good look at the vehicle’s occupants and was unable to make identifications (also testimony that contradicted his recorded statement). He did not think defendant was the shooter (again, this testimony directly contradicted his recorded statement), and he could not be sure whether defendant was the driver of the vehicle that had followed him. He acknowledged that he saw someone wearing a Raiders jersey when the two victims got out of the car at the shopping center.
2. Rodolfo’s Accounts to Police and in Court
Detective Burnett testified that in an interview with her, Rodolfo identified Hugo Cervantez in a photographic lineup as the vehicle operator. The jury heard a tape recording of the interview. In the interview, Rodolfo said he was wearing a red sweater and a San Francisco Giants hat. As they were fleeing down the highway, the shooter, whom Rodolfo identified as the front passenger in a white sport-utility vehicle, climbed out of the passenger window frame and sat on its ledge so he could fire over the top of the vehicle. Rodolfo thought that he fired three times. He believed that he and Victor were targeted because his red sweater and San Francisco Giants hat may have made the shooters think they were Norteño gang members.
Detective Burnett testified that Rodolfo could not identify defendant in a separate photographic lineup. He said that the vehicle passenger had short hair like a fade or was bald. Cervantez had a similar hairstyle in his photographic lineup.
In court, Rodolfo testified that he was wearing a red sweater and a black cap but did not recall telling Detective Burnett that it was a San Francisco Giants cap. Because of loud music inside Victor’s vehicle, Rodolfo did not hear any shots.
A photographic lineup was presented to Rodolfo at trial but he testified that he was unable to identify anyone. He did not know the individuals at the shopping center. When asked whether he was concerned that “some guy that was wearing that Raiders jersey might do something about this” because he was testifying, Rodolfo answered, “Could be.” He was testifying in this case only under compulsion of a subpoena.
3. Shooting at Third Occupant of Vehicle on U.S. Highway 101
In counts 10 and 11, the jury convicted defendant of the attempted murder and assault with a firearm on an individual who did not testify and was never identified clearly. The amended information and verdict forms refer to him only as John Doe No. 4. This man was the third occupant of the vehicle containing Rodolfo and Victor.
B. Shooting at Jonathan
On the same day—February 25, 2007—a man named Jonathan was in his driveway. Jonathan, who is not a member of any gang, saw a white Chevrolet Suburban (Suburban) containing two Latino males. It stopped in front of his house. He could see that the passenger wore a green flannel shirt, but he could not see the driver clearly. The men seemed to be looking for someone.
Jonathan saw the passenger fire a gun in his direction. He dove to the ground and heard multiple gunshots. The first almost struck him in the head, but missed him entirely. He later saw bullets, bullet fragments, and bullet holes in the family’s cars and house.
Jonathan heard screeching tires as the Suburban drove off. He gathered his wits about him and he and his brother sped off in a family vehicle in hopes of finding the assailants. They spotted the Suburban and pursued it. It tried to evade them. At one point the Suburban braked suddenly and Jonathan ran into it. The Suburban resumed flight and Jonathan and his brother remained in pursuit. They caught up to it again and Jonathan rammed it, causing it to veer into an apartment complex and trapping its occupants.
Police had become aware of the chase and had sped to the accident scene, where they found the occupants inside the vehicle. They recovered the pistol that Jonathan had seen earlier. Jonathan identified defendant as the passenger from a digital photo one of the officers took of the vehicle’s occupants.
Salinas Police Officer Adam Shaffer identified defendant as the passenger in the wrecked Suburban.
Salinas Police Officer Neil Herrier examined three test-fired bullets from the gun found in the wrecked vehicle. He also examined cartridge casings collected from Jonathan’s house. Officer Herrier concluded that the crime-scene casings were fired by the same gun as the gun employed for the test-firings.
The parties provided two stipulations to the jury. In one, “an investigator with the Monterey County District Attorney’s Office” “took photographs of the clothing of Hugo Cervantez, Raiders jacket, and Hugo Chavez, green shirt.” In the other, it was stipulated that Cervantez, sitting “next to Hugo Chavez, ” was removed from the driver’s seat of the wrecked vehicle, which was a Chevrolet Tahoe, and that he was charged with and convicted of shooting at Jonathan. Cervantez, the jury was told, pleaded guilty to one count of willfully and maliciously discharging a firearm from a vehicle at Jonathan (§ 12034, subd. (c)) and admitted that the crime was done to benefit the Sureño gang (§ 186.22, subd. (b)(1)). He admitted an arming enhancement and to being a principal in the crime. As part of the plea bargain, he was not punished for the earlier shooting spree on U.S. Highway 101.
C. Gang Affiliation and Operations Evidence
Detective Burnett testified that she saw Cervantez at the hospital. At the time, he had short hair. Cervantez had several tattoos on his hands and arms, including a “La Posada” tattoo, a spider web with one dot, the initials “JP” and the gang-identifying number 13.
As we note below, another police officer would later testify that he read this tattoo as being “LP, ” for La Posada, and thus gang-linked. Indeed, Detective Burnett initially read it as “LP, ” but defendant dissuaded her, stating that it read “JP.”
Monterey County Sheriff’s Deputy Michael Hampson testified that defendant admitted on a jail intake form that he was a gang member and although he did not specify that he was a Sureño, he admitted that the Norteños were his enemies. Later defendant clarified to a jail-classification deputy that he was an active member of the La Posada gang set. (Other evidence would clarify that La Posada is a Sureño gang set, i.e. subgroup.) He was housed peaceably with other Sureño members in the county jail after his arrest in this case. Sureños would object if someone with no gang affiliation were placed in their midst; they would complain to jail staff that he was in the wrong area.
Salinas Police Officer Bryan McKinley, a gang intelligence officer, searched the wrecked vehicle in which defendant had been a passenger. He found a blue belt under the driver’s seat of the vehicle.
Officer McKinley also testified that numerous gang-related items were collected from a residence, including compact discs with gang writing on them, a notebook with the numbers 1 and 3 and (as later testimony would clarify) gang tagging, a blue and gray Dallas Cowboys flag, a poster of an individual who rapped about Sureño gangs, a piece of paper with county jail booking numbers and the names of La Posada gang set members, and a photograph of a woman displaying a Sureño hand signal. Both parties state that this was defendant’s residence. The record, however, does not establish whose residence it was.
Salinas Police Officer James Knowlton, a gang intelligence officer at the time of the crimes, testified that a cell phone found at a residence defendant had called repeatedly had a text message that stated the sender had just shot at Norteños and was listening to a police scanner afterward. The shooting, however, was a different shooting from the ones leading to the charges in this case.
Salinas Police Officer Robert Zuniga, another gang intelligence officer, testified that the two main gangs in Salinas were the Norteños and the Sureños. Sureño refers to a group of gangs that share the number 13 or XIII, which stands for the letter M in the alphabet, which in turn stands for Mexican Mafia or La Eme, the largest prison gang in California and the most prominent Sureño prison gang. Sureño gangs also shared the color blue and the word trece, which is Spanish for 13. La Posada Trece was a Sureño gang set in Salinas. Sureño gangs engaged in shootings, murders, vehicle theft, vehicle burglaries, home invasion burglaries, and selling and distributing narcotics. Sureño gangs associated with sports teams that used a blue motif, such as the Dallas Cowboys and the Los Angeles Dodgers. Sureño gang members often wore Oakland Raiders football jerseys, but the meaning of doing so was unclear because Norteño members were also known to wear that apparel. Norteño gangs associated with the number 14 and (as Detective Burnett had mentioned in her testimony) the color red and the apparel of the San Francisco 49ers and Giants.
Officer Zuniga opined that defendant was an active member of the La Posada Trece Sureño gang set. He had an “LP” tattoo, which stood for La Posada. He had tattoos of three dots by his eye and X3 (the Roman numeral for 10 plus 3, equaling 13) behind his left ear, both of which signified Sureño membership. A tattoo on his arm referred to a Sureño who had died in a gang-related shooting. Jail intake records registering him as a Sureño illustrated his level of commitment and active support for the gang, as did his being housed with other Sureños in jail. Defendant also had an anti-Norteño tattoo: a tattoo of the numbers and letters 187ELC behind his right ear. The numbers referred to section 187 (the Penal Code section for murder) and were considered derogatory. The letters referred to a Norteño gang set, East Las Casitas.
Reminded of Detective Burnett’s testimony that the tattoo read “JP, ” Officer Zuniga explained, “It’s kind of hard to say whether it’s an LP or JP. But if I had to look at it, putting 13 together with it, I would probably say it was an ‘L.’ ” “Oftentimes they’ll display their tattoo but in a different”—i.e., ambiguous—“way, where if another gang member or somebody of their own gang were to see it, they know exactly what it is. The average citizen, ” and indeed “the average police officer, ” “might not be able to tell what it is.”
Officer Zuniga also testified that in 2004 defendant had told police that he was a Sureño, and that school officials had noted that he had a gang association.
Finally, Officer Zuniga testified that on February 19, 2007, a few days before the crimes of which defendant was accused, a La Posada member was killed. Such shootings usually precipitated retaliatory shootings. Answering a hypothetical question about the February 25, 2007, shooting at Victor and Rodolfo, Officer Zuniga opined that the crime would have been committed for the benefit of, at the direction of, or in association with a Sureño street gang because it could be aimed at perceived rival gang members in retaliation for the homicide of a few days before. As for the shooting at Jonathan, Officer Zuniga responded to another hypothetical question and testified that it was done for the same gang-furtherance purposes even if Jonathan was a random target. “[T]hey’re benefiting the gang by... show[ing] how dangerous the gang is” “whether they perceive the individuals [i.e., Jonathan] to be a rival gang member or not.” Also, Jonathan could have been a mistaken target. “Gang members often perceive other people to be rival gang members and are often mistaken.”
Regarding the victims, Officer Zuniga had concluded that neither Jonathan nor his brother was a gang member or associate. With regard to the other shooting spree, Zuniga testified that Victor acknowledged having Norteño family members but was not a gang member himself, information that Officer Zuniga was not able to contradict, and that Rodolfo had no gang affiliations.
II. Defense Case
Defendant presented no evidence, but defense counsel cross-examined prosecution witnesses in an effort to establish reasonable doubt about defendant’s identity as the shooter.
DISCUSSION
I. Sufficiency of Evidence of Gang Involvement
Defendant claims that there was insufficient evidence to support the jury’s findings that gang enhancement allegations were true. There is no merit to this contention.
A. Applicable Law
“In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
B. Analysis
Defendant cites a number of cases in which, he asserts, courts found insufficient evidence to sustain a gang enhancement based solely or largely on expert opinion testimony and draws from them the conclusion that more is needed than such testimony regarding an individual’s gang-membership status and gang characteristics and behavior. (See People v. Ferraez (2003) 112 Cal.App.4th 925, 931 [gang expert’s testimony alone is insufficient to find an offense gang related].) He argues that “[t]he only evidence on the issue was provided by the People’s expert witness, Officer Zuniga, ” and that his “opinions and conclusions in this case did no more than inform the jury of how he believed the case should be resolved.” (See In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 [expert’s statement that minor intended to use knife for gang benefit insufficient to establish enhancement].)
We disagree. The evidence was not, contrary to defendant’s argument as we discern it, conjectural and without evidentiary support (see People v. Moore (2011) 51 Cal.4th 386, 405-406). There was more evidence than Officer Zuniga’s opinion testimony about defendant’s gang membership. Both defendant and his partner in crime Hugo Cervantez had Sureño tattoos. Defendant admitted to a jail-classification deputy that he was a member of La Posada, a Sureño gang set. He was housed safely and without incident or complaint among other Sureños in the county jail, something that could not have happened if he were not a Sureño himself. There was evidence, albeit muddled in its details, that on the day of the crimes Cervantez or defendant had been wearing an Oakland Raiders jersey that can identify a Sureño. Leaving aside other evidence whose import or value is not clear to us, such as the presence of the blue belt in the wrecked vehicle and Sureño-related evidence found in someone’s residence, we have no difficulty concluding that sufficient evidence of defendant’s Sureño status was presented to immunize the enhancement allegation finding from his due process challenge. As for the shootings themselves, there is abundant evidence, well above that required for constitutional purposes, that defendant shot at Victor, Rodolfo, and the third occupant for the benefit of, at the direction of, or in association with the Sureños and with the intent to promote, further, or assist in any criminal conduct by Sureños (see § 186.22, subd. (b)(1)). Rodolfo was wearing red clothing and a San Francisco Giants hat—items identified with Norteños. A few days earlier, a member of the Sureño La Posada gang set had been killed, an act that could be expected to trigger retaliatory shootings. The jury could infer that Rodolfo’s clothing was such a trigger, because it is uncommon for one group of men to see other men in a public place, not exchange a word with them, and then try to kill them. A mere exchange of glances or even stares would be unlikely to bring about this result, but gang identification, even if mistaken (Rodolfo had no Norteño ties) would explain it.
As for defendant’s shooting at Jonathan, the evidence of gang benefit is less than it was regarding the U.S. Highway 101 shooting incident. There was no evidence that Jonathan was wearing gang-identified clothing and all of the evidence was that he did not belong to any gang. Against this, we note that the confidential record shows Jonathan to have a Latino surname. The Norteños are a Latino gang, and defendant, the jury could reasonably infer from the evidence, may have mistaken Jonathan for a Norteño—Officer Zuniga testified that gang misidentifications are common—or even picked him as a random target to warn the community about Sureño rage at the recent killing. People do not usually shoot at strangers without provocation, and there was no evidence that Jonathan was doing anything but a cleaning chore in his driveway. Combining the temporal proximity of the shooting with the recent killing of the Sureño, the jury could infer that defendant shot at Jonathan to benefit the Sureños. We discern no due process violation and reject defendant’s claim.
II. Evidence of Cervantez’s Conviction
Defendant claims that he received ineffective assistance of counsel when counsel agreed to stipulate that Hugo Cervantez had pleaded guilty to willfully and maliciously discharging a firearm from a vehicle at Jonathan (§ 12034, subd. (c)) and admitted that the crime was done to benefit the Sureño gang (§ 186.22, subd. (b)(1)). Defendant argues that counsel should have fought to exclude this evidence and, if that effort failed, should have sought a limiting instruction that the jury could not consider this evidence as substantive evidence of defendant’s guilt.
As we will explain, there was no ineffective assistance of counsel.
A. Applicable Law
There is, of course, a two-part test that determines the outcome of an ineffective assistance of counsel claim. A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to petitioner’s claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)
“If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged, ’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 746.)
B. Analysis
Here, not only could there be a satisfactory explanation for agreeing to the stipulation, but there is such an explanation; it appears in the record
Faced with a strong prosecution case and a weak defense case—i.e., the extrajudicial statements of Victor and Rodolfo that defendant was the shooter, the testimony of Jonathan that the vehicle passenger fired at him and was wearing a green shirt, defendant’s being apprehended in the vehicle used for the shootings while wearing a green shirt and in the passenger’s seat, and inculpatory physical evidence—counsel competently could have decided that inculpatory testimony by Hugo Cervantez would be the proverbial nail in the coffin. Cervantez had pleaded guilty and was immune from further jeopardy to that extent as autrefois convict (see § 1017, subd. 3). “[T]he law exacts only a single punishment, and upon conviction or acquittal for the given acts the defendant may successfully plead autrefois convict or autrefois acquit against another prosecution for the same acts under a different section of the code.” (People v. Coffey (1911) 161 Cal. 433, 442.) Cervantez may validly have agreed to testify truthfully as part of the plea agreement. (See People v. Reyes (2008) 165 Cal.App.4th 426, 433-436.) Evidently defense counsel thought that Cervantez was available: in the defense trial brief, counsel stated that Cervantez, “if called to testify, is expected to truthfully state which individual fired a handgun, and also to state whether defendant Chavez had any prior knowledge of the shooter’s action and/or intent, or otherwise conspired with the actual shooter in this matter.” Not only could competent counsel conclude that a stipulation that Cervantez pleaded guilty would be a worthwhile tradeoff for avoiding his possible appearance in court, but the stipulation allowed counsel to argue that Cervantez was the shooter and that defendant was not even present at the scene of one of the shootings. He was able to argue that Cervantez had pleaded guilty and was solely guilty. Combined with the vague and not particularly inculpatory in-court testimony of Victor and Rodolfo, the stipulation allowed counsel to make the best of a bad situation at closing argument and credit Victor’s and Rodolfo’s in-court testimony, pick away at their more inculpatory extrajudicial statements, and contend that Cervantez alone was guilty of the crimes—after all, he had pleaded guilty to one of them. Counsel acknowledged that defendant was present when Jonathan was fired upon, but argued that Jonathan could not make out his assailant, the assailant was Cervantez, and that there was no evidence that defendant was even an aider and abettor of Cervantez’s asserted shooting at Jonathan.
To be sure, this quotation characterizes Cervantez as the actual shooter. What is important, however, is the suggestion that defense counsel believed Cervantez might testify. We also note that the People’s confidential witness list does not list Cervantez as a People’s witness. This consideration, however, does not exclude the possibility that he might have testified if counsel had not stipulated to introducing evidence of his guilty plea.
Defendant makes much of the stipulation’s provision that Cervantez pleaded guilty to being a principal in the shooting at Jonathan and did not plead guilty to personally shooting at him. He argues that counsel was spectacularly ineffective in this regard, because when the jury heard Cervantez was merely a principal, it could only conclude that defendant was the gunman. We find this argument unpersuasive. The jurors were instructed that a principal can be the perpetrator of a crime or an aider and abettor. Jurors may be expected to know that a negotiated plea is just that—bargained for—and could still have been expected to conclude, if persuaded by other evidence, that Cervantez had a more serious role in the crimes than the plea agreement acknowledged. Defense counsel could reasonably have hoped that the language about Cervantez’s stipulated role might baffle one or more jurors, and that bafflement was preferable to the alternative, namely the unbaffling evidence of defendant’s guilt adduced through testimony, a camel’s back on which testimony by Cervantez would only add the proverbial straw. If the stipulation’s language had been as inculpatory of defendant as he now argues it was, defense counsel could not legitimately have argued that Cervantez shot at all four victims.
Indeed, the stipulation told the jurors that Cervantez had obtained advantages from his plea agreement: “As part of the plea bargain it was agreed that no charges would be filed as it relates to the shooting on [U.S.] Highway 101, ” the trial court informed the jury.
The trial court told the jury that the parties had stipulated that Cervantez “admitted an enhancement pursuant to Penal Code [s]ection 12022[, subdivision] (a)(1). Which applies when a person is armed with a firearm during the commission of the crime. Penal Code [s]ection 12022[, subdivision] (a)(1), as admitted to by Hugo Cervantez, applies to any person who is a principal in the commission of the crime if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm.” This language did not foreclose the possibility that Cervantez was the shooter at Jonathan.
It is axiomatic that a criminal defendant claiming ineffective assistance of counsel “must show that counsel’s action or inaction was not a reasonable tactical choice.” (People v. Jones (2003) 30 Cal.4th 1084, 1105.) Taking the approach counsel took was a reasonable tactical choice and does not amount to deficient performance. There was no ineffective assistance of counsel.
Defendant next claims that it was ineffective assistance of counsel for his counsel not to ask for a limiting instruction that the jury was not to consider the stipulation as substantive evidence of his guilt. The People do not state that such an instruction was sought or given.
Defendant is correct that counsel could have asked the trial court for a limiting instruction. Such a request might have succeeded, though it was not guaranteed to do so. Introducing the evidence of the disposition of Cervantez’s case raised questions under both the Sixth Amendment to the United States Constitution and Evidence Code section 352. Following Crawford v. Washington (2004) 541 U.S. 36, introducing the evidence with or without a limiting instruction may have had Sixth Amendment implications. That is so because “ ‘Crawford... held that testimonial out-of-court statements offered against a criminal defendant are rendered inadmissible by the confrontation clause unless the witness is unavailable at trial and the defendant has a prior opportunity for cross-examination.’ ” (People v. D’Arcy (2010) 48 Cal.4th 257, 290.) As for Evidence Code section 352: “Evidence of a codefendant’s guilty pleas which is more prejudicial than probative when offered to raise an inference of the defendant’s guilt is per se more prejudicial than probative when offered simply to bolster the credibility of another witness.” (People v. Cummings (1993) 4 Cal.4th 1233, 1322.) Defense counsel could have cited these decisions to the court as part of arguments for a limiting instruction or to exclude the evidence.
We need not examine whether such an action by defense counsel would have produced desired results, however, thus leaving counsel exposed to an accusation of professional deficiency for not citing Crawford and Cummings. “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 v. Washington, supra, 466 U.S. at p. 697.) There is no reasonable probability of an adverse effect on the outcome as a result of counsel’s failure to seek the limiting instruction. The other evidence against defendant is sufficient to ensure that such is the case. That other evidence was strong and pointed ineluctably to defendant’s guilt. Accordingly, we find no merit in this claim, and do so without further discussion of Sixth Amendment and Evidence Code jurisprudence that might apply in these circumstances.
III. Defendant’s Assaultive Conduct in Jail
Defendant claims that the trial court abused its discretion and violated the due process clause of the United States Constitution by admitting evidence of his jail custody status and his participation in fights while in jail. He also claims ineffective assistance of counsel to the extent this court finds that counsel opened the door to the evidence, failed to adequately object to the evidence, and/or failed to request a limiting instruction.
A. Background Facts
The jury heard the evidence because defense counsel asked a witness two questions about defendant’s pacificity or belligerence while in custody with other Sureños.
Initially, defendant moved to exclude evidence of events in jail as irrelevant, cumulative, and substantially more prejudicial than probative under Evidence Code sections 350 and 352. The trial court ruled that evidence of assaults would be excluded under section 352, but “[a]s to the jail status, where he was housed and what he said on the day of booking and since then, his housing, I will not exclude at this point.”
On cross-examination, defense counsel asked Deputy Sheriff Hampson: “Deputy, are you acquainted with any fights then that might have occurred in that active Sureño [jail housing] pod that you were referring to in connection with Hugo Chavez?” and “Were you acquainted with any fights that Hugo Chavez might have been involved in back then?” Hampson answered “Yes” each time.
These questions caused the trial court to modify its prior order excluding the jail activity evidence “because of the questions asked by defense counsel.” The court also ruled that the prosecution’s gang expert could refer to the incidents “briefly” if he felt it was relevant to his opinion that defendant was a Sureño. Accordingly, on redirect examination, the prosecutor elicited testimony from Deputy Hampson about two altercations involving defendant. In the first, defendant attacked Hugo Cervantez, who was in a wheelchair at the time. Later, Cervantez was moved to “hous[ing] with gang dropouts.” The second occurred when defendant and another Sureño inmate attacked a third Sureño inmate. In addition, and as noted, Officer Zuniga relied on defendant’s jail situation in opining that he was a Sureño.
When the trial court instructed the jurors, it alerted them: “There have been references to defendant being in custody during this trial. You must disregard any references to his custody status as they are not evidence in this case. Defendant’s custody status has no bearing on his guilt or innocence of the charges, and you must not use his custody status for any purpose.” The court also instructed the jury on the limited purpose of the evidence of gang activity. The evidence could be used only to establish intent, knowledge, and motive as needed to establish elements of the charges and allegations and in considering witness demeanor and credibility and the basis of an expert witness’s opinion, but it could not be used as character evidence.
B. Applicable Law
“On appeal, ‘an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence....’ ” (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.)
C. Analysis
We deal first with defendant’s claims that the evidence was improper character evidence. Defendant failed to object to its introduction on that ground. We can review a claim that evidence is inadmissible only on the basis on which the claim was made before the trial court. (Evid. Code, § 353.) Even if we could disregard the statutory mandate, which we are not authorized to do, fairness to litigants and the trial court would also require our conclusion that defendant forfeited the claim. It would be unfair if a party were permitted to “argue [that] the [trial] court erred in failing to conduct an analysis it was not asked to conduct.” (People v. Partida (2005) 37 Cal.4th 428, 435.) Defendant has forfeited claims regarding impermissible character evidence.
The People further contend that defendant has forfeited his cumulative evidence claim and a pendent constitutional claim that the trial court’s asserted abuses of discretion under state law had the additional legal consequence of violating the due process clause of the Fourteenth Amendment to the United States Constitution.
We do not believe that the trial court abused its discretion in overruling defendant’s cumulativeness objection to the jail status evidence. This was valuable evidence of gang membership, arguably the most definitive such evidence. The ruling did not fall outside the bounds of reason.
As for defendant’s Evidence Code section 352 undue prejudice objection, the trial court did not abuse its discretion in overruling it either. Defendant was charged with the substantive offense of street terrorism under section 186.22, subdivision (a). Proof of the street terrorism charge required a showing that he “actively participated in a criminal street gang” (People v. Garcia (2007) 153 Cal.App.4th 1499, 1509) “at or reasonably near the time of the crime” (ibid.).
As for defendant’s relevance claim, the evidence plainly was relevant. We need not rehearse the facts described at length above; suffice it to say that this case involved gang charges and allegations and the evidence bore on those charges and allegations.
As noted, defendant claims his counsel was ineffective for failing to adequately object to the evidence and for failing to request a limiting instruction not to consider the evidence as character evidence or substantive evidence of crime. As noted above, however, the trial court gave a limiting instruction regarding his custodial status that met these concerns. It did the same regarding the evidence of gang activity. Also as noted, defendant claims that counsel was ineffective in opening the door to this area of evidence by asking the two questions about his comportment in his cross-examination of Deputy Hampson. Counsel may have made a mistake by asking those two questions. As we have found with regard to defendant’s claim regarding counsel’s failure to seek a limiting instruction following the Cervantez stipulation, we need not address the question of deficient performance further, because even if counsel did err by asking those questions, there is no reasonable probability that any such mistake resulted in an adverse outcome. The jury had already learned that defendant himself informed his jailers that he was a Sureño gang set member and that Norteños were his enemies, and that jail staff housed him in the Sureño pod without provoking the reaction that might be expected if he were not a Sureño. The circumstance that the jury received explanatory evidence that two internecine jailhouse altercations did not contradict the evidence of his Sureño membership was relatively trifling in comparison to the wealth of evidence the prosecution adduced regarding his Sureño membership.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Mihara, J.
The record shows, however, that defendant timely raised the cumulativeness objection. That theory of error is therefore entertainable on appeal. As for defendant’s due process claim, it too is entertainable, but only to a limited extent. Our rejection of defendant’s state law claims, as set forth in this section, yields the answer to his due process claim. “[R]ejection on the merits of a claim that the trial court erred... necessarily leads to rejection of the newly applied constitutional ‘gloss’ as well. No separate constitutional discussion is required in such cases, and we therefore provide none.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990, fn. 5.)