Opinion
H041553
01-26-2017
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO CORTEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS110928A)
The prosecution alleged defendant Alberto Cortez fatally shot Jose Cisneros in an incident captured by two video cameras. The jury found Cortez guilty of first degree murder and active participation in a criminal street gang. (Pen. Code, §§ 187, subd. (a), 186.22, subd. (a).) The jury also found true firearm and gang enhancements. (§§ 12022.5, 12022.53, subd. (d), 186.22, subd. (b)(1).) The trial court imposed a total term of 50 years to life.
Subsequent undesignated statutory references are to the Penal Code.
Cortez raises three claims on appeal. First, he contends the trial court erred by admitting testimony from law enforcement officers identifying Cortez from the videos of the shooting. Second, he contends the prosecutor committed misconduct by asking a witness about Cortez's in-court reaction to one of the videos. Alternatively, he frames this claim as ineffective assistance of counsel based on his attorney's stipulation to a curative instruction. Third, he contends the evidence was insufficient to establish the existence of a criminal street gang under People v. Prunty (2015) 62 Cal.4th 59 (Prunty).)
We conclude Cortez suffered no prejudicial error, and his counsel's performance was not constitutionally deficient. We will therefore affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts of the Offense
Jose Cisneros was shot to death on Haight Street in Castroville in May 2011. Two security cameras on a neighbor's house recorded videos of the incident. The two videos showed an Isuzu SUV approaching the location just before the shooting. The driver and a passenger got out of the SUV, and the passenger approached Cisneros. The passenger then fired multiple shots at Cisneros and killed him, whereupon the two men returned to the SUV and drove away.
Police determined the driver was Fernando Miranda, who was wearing an electronic bracelet at the time. But the videos did not clearly show the face of the shooter. At trial, three law enforcement officers identified Cortez as the shooter from their review of the video evidence. The prosecution also introduced video footage from a Marshall's department store showing Cortez with Miranda and another man—Vincent Jacquez—shortly before the shooting. GPS data from Miranda's electronic bracelet showed that Miranda went directly to Cortez's house immediately after the shooting.
1. Details of the Shooting
On May 7, 2011, around 5:44 p.m., police received a report of a shooting near the intersection of Haight Street and Salinas Street in Castroville. Upon arriving at the location, they found Cisneros lying on the sidewalk with a bullet hole on the side of his head. He was not moving, he had stopped breathing, and he had no pulse. Police found 13 shell casings in the area of the victim. The casings were consistent with rounds fired from a nine millimeter semiautomatic pistol.
Two surveillance cameras on a neighbor's house captured the incident from two distinct angles. Police obtained digital copies of the recordings from both cameras. One camera showed a green Isuzu SUV stopping in the middle of the street just prior to the shooting. The driver—identified as Miranda—got out, adjusted an object on his ankle, and walked about 20 feet toward the sidewalk before stopping just short of the sidewalk. As Miranda got out, a passenger—identified as Jacquez—moved over from the right front passenger's seat and sat in the driver's seat. A second passenger—alleged to be Cortez—exited the right side of the vehicle and started jogging toward the sidewalk in a crouched position.
The second camera showed this passenger running onto the sidewalk while holding a gun out in front of himself. He walked toward Cisneros and fired multiple shots at him. The shooter then turned around and ran back toward the SUV.
The first camera then showed the shooter and Miranda returning to the SUV and entering it through the left rear door, whereupon the SUV drove off with Jacquez at the wheel. The incident lasted about 40 seconds.
Cortez does not dispute that Miranda was the initial driver of the SUV. GPS coordinates obtained from the electronic monitoring bracelet on Miranda's ankle put him at the location of the shooting at the time of the shooting. Videos from other locations in the area—a gas station, a liquor store, and a Walmart—also showed Miranda with the SUV shortly before and after the shooting.
However, the videos of the shooting did not clearly show the shooter's face. The videos showed the shooter wore a light-colored, short-sleeved shirt and dark pants. The shooter's hair was shaved or closely cropped on the sides of his head, with a darker patch of hair directly on top of his head.
2. Other Evidence of Cortez's Physical Appearance
The prosecution presented video recordings from several cameras in a Marshall's department store taken 70 to 50 minutes before the shooting. The videos showed Cortez, Miranda, and Jacquez milling around inside the store with Miranda's young son. Cortez wore a green basketball jersey over a white, short-sleeved shirt, dark pants, and Converse-style sneakers with black tops, white laces, white tips, and white on the sides of the soles. Cortez had dark hair, which was shaved on the sides of his head and longer on top.
The prosecution also introduced booking photographs of Cortez taken around the time of the shooting. The photographs showed that Cortez's hair was shaved on the sides of his head with a longer patch of hair on the top of his head. At trial, a police officer described this hair style as a "high fade," similar to that worn by marines. Another officer described the style as a "bowl cut or mushroom cut," "[l]onger on the top, buzzed on the sides."
3. Opinion Testimony Identifying the Shooter in the Videos
Three law enforcement officers testified that they identified Cortez as the shooter in the videos. Deputy Sheriff Jesse Pinon testified he was personally familiar with Cortez in May 2011 and he had met Cortez in person multiple times while on patrol. Deputy Pinon knew Cortez's family and where they lived. He had been inside Cortez's parents' residence. Deputy Pinon testified that he recognized Cortez as the shooter in the videos the first time he saw them. Deputy Pinon recognized Cortez's "high fade" haircut and his facial features, including his eyes, nose, and mouth. Deputy Pinon admitted that he had authored a report of the shooting incident in which he described the shooter as "unidentified." He explained, however, that he "just made a mistake" because he was focused on apprehending Miranda at the time. Deputy Pinon asserted that "[t]here is no doubt in my mind" Cortez was the shooter in the videos.
Detective Shaheen Jorgensen testified that she was familiar with Cortez's appearance at the time of the shooting. She had never seen Cortez in person, but she had seen him in other surveillance videos recorded in Castroville. She estimated that she had viewed "[p]robably in excess of eight to 10 hours" of videos showing Cortez. Those videos were of higher quality than the video of the shooting. She recognized Cortez as the shooter based on his gait, his hairstyle, his body type, and his height. She admitted she could not see his face in the video. She asserted, however, that she had "[a]bsolutely no doubt" Cortez was the shooter in the videos.
Detective Matthew Davis compared the videos of the shooting with the videos recorded at the Marshall's department store. Based on similarities between the images of the shooter and the images of Cortez at Marshall's, Detective Davis opined that Cortez was the shooter. Detective Davis testified that the black and white shoes worn by the shooter in the videos of the shooting resembled the shoes found in the warrant search of Cortez's residence.
4. Evidence of Cortez's Participation in a Criminal Street Gang
Deputy Pinon testified as an expert in criminal street gangs. He opined that Cortez was an active participant in the Norteño criminal street gang in May 2011. Specifically, Cortez was a member of the Northside Castro gang, a Norteño subset from Castroville. His gang moniker was "Trigger." He had numerous gang-related tattoos, including tattoos associated with the number "14" and the letter "N," and the phrase "Snitching ain't part of the game" on the side of his head.
On May 20, 2011, police executed a warrant search of Cortez's residence. They found clothing associated with Norteños and a photograph of Cortez flashing a gang sign associated with the Northside Castro gang. In jail, Cortez was housed in pods specific to Norteños. In his cell, guards found numerous kites with gang-related messages on them. While in custody, Cortez obtained more gang-related tattoos associated with the Northside Castro gang. In jail, after the shooting incident, Cortez obtained a tattoo on the side of his neck showing the letters "SK," which stood for "Sureño Killer" or "Scrap Killer." Norteños use "scrap" as a derogative term for Sureños. Deputy Pinon testified that, at the time of trial, Cortez was a brother in the Nuestra Familia, another Norteño gang. Deputy Pinon also opined that Miranda and Jacquez were active participants in the Norteño gang and members of the Northside Castro gang in May 2011.
Deputy Pinon testified that he found no evidence connecting Cisneros to any gang. Police identified Cisneros based partly on a permanent resident alien I.D., or "green card," found on his person. Deputy Pinon testified that Norteños sometimes perceive Mexican nationals to be Sureños. He opined that the murder was committed for the benefit of the Norteño street gang because it caused fear within the community and raised the status of the gang members involved in the offense.
B. Procedural Background
The prosecution charged Cortez and Miranda with two counts: Count One—First degree murder (§ 187, subd. (a)); and Count Two—Street terrorism (§ 186.22, subd. (a).) As to Count One, the information included gang and firearm allegations against Cortez. (§§ 186.22, subd. (b)(1), 12022.53, subds. (d) & (e)(1).) The case proceeded to trial in September 2014. Miranda reached a plea agreement with the prosecution in the midst of trial. The jury found Cortez guilty on both counts as charged and found true all enhancements.
The trial court imposed a total term of 50 years to life, composed of 25 years to life for Count One with a consecutive term of 25 years to life for personally discharging a firearm resulting in death. As to Count Two and the remaining enhancements, the court stayed all terms under section 654.
II. DISCUSSION
A. Admission of Identification Testimony
Defendant contends the trial court erred by admitting opinion testimony from law enforcement officers identifying him as the shooter in the videos. He argues that the admission of this testimony violated state law rules of evidence and his federal constitutional rights under the Sixth and Fourteenth Amendments. The Attorney General contends the testimony constituted proper evidence of the shooter's identity under both state and federal law. Except for the testimony of Officer Davis, we conclude the trial court did not abuse its discretion and did not violate Cortez's constitutional rights by admitting the testimony. With respect to the identification testimony of Officer Davis, we conclude the trial court erred by admitting it, but that the error was harmless.
1. Legal Principles
"Evidence Code section 800 limits nonexpert opinion testimony to 'such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony.' Admission of lay opinion testimony is within the discretion of the trial court and will not be disturbed 'unless a clear abuse of discretion appears.' [Citations.]" (People v. Mixon (1982) 129 Cal.App.3d 118, 127 (Mixon).)
The identity of a person is a proper subject of nonexpert opinion. (People v. Perry (1976) 60 Cal.App.3d 608, 612 (Perry).) Such testimony "does not invade the province of the trier of fact, but rather is submitted as an aid in the determination of the ultimate question of the identity of the culprit and the defendant's guilt or innocence." (Id. at p. 615.) There is no requirement that the identification of a defendant must be made by a percipient witness to the crime. (Id. at p. 612.)
2. Admission of Testimony Identifying Cortez as the Shooter in the Videos
As set forth above, the prosecution introduced the testimony of three law enforcement officers identifying Cortez as the shooter in the security camera videos. Cortez moved in limine to exclude admission of this testimony on grounds substantially the same as those raised here, but the court denied the motion. At trial, the court instructed the jury with CALCRIM No. 315—the pattern instruction concerning identification testimony—and CALCRIM No. 332 regarding expert opinion testimony.
Cortez now contends the trial court erred by admitting the testimony. For this claim, he relies principally on Mixon, supra, 129 Cal.App.3d 118. In Mixon, the Fifth District Court of Appeal considered the admission of such identification testimony by police officers. Two men robbed a gas station, and surveillance cameras captured photographs of the men. Two police officers viewed the photographs and identified Mixon as one of the men. Based on Perry, supra, 60 Cal.App.3d 608, the court in Mixon set forth two predicate conditions for the admission of such identification testimony: (1) that the witness testify from personal knowledge of the defendant's appearance at or before the time of the photographs; and (2) that the testimony "aid the trier of fact" in determining the identity of the person in the photographs. (Mixon, supra, 129 Cal.App.3d at p. 128.) Applying these conditions, the Mixon court found the officers' testimony admissible. Both officers had seen Mixon in person prior to the robbery, satisfying the personal knowledge requirement. Also, Mixon's appearance at the time of trial had changed since the time of the robbery, such that the officers' testimony aided the trier of fact. The court warned against the potential for prejudice in allowing police officers to give such testimony because a jury may draw negative inferences from the officers' familiarity with the defendant. However, the court found that the officers' testimony identifying Mixon was not unduly prejudicial because the basis for the officers' prior familiarity with his appearance was established outside the jury's presence.
Cortez contends the officers' identification testimony should have been excluded under Mixon. First, he argues that the testimony did not "aid the trier of fact" in determining the shooter's identity. He contends the jury could have relied on the Marshall's department store videos and Cortez's mug shots to compare his appearance at the time of the offense with the appearance of the shooter in the videos of the shooting. Cortez argues that the officers' testimony was therefore unhelpful and unnecessary.
We find this argument unpersuasive. We note first that the videos of the shooting were of poor quality, and Cortez's appearance at the time of trial had changed since the time of the offense. Both of these factors made it difficult for the jury to compare his in-court appearance to the appearance of the shooter in the videos. (See Mixon, supra, 129 Cal.App.3d at p. 131 [officers' testimony aided the jury because the surveillance photo was unclear and defendant's appearance had changed].) Second, while the mug shots presented a high quality image of Cortez's face and haircut near the time of the offense, the mug shots did not show his entire body, his gait or posture, or his clothing at the time of the shooting. Third, having viewed the videos from the Marshall's store cameras, we find that the quality of the images in those videos did not capture Cortez's appearance so accurately that additional testimony from the officers was unhelpful. For these reasons, we conclude the officers' testimony aided the jury.
As to the requirement that the witnesses testify from personal knowledge, Deputy Pinon clearly satisfied this element. He testified that he was personally familiar with Cortez at the time of the offense, and he had previously met Cortez multiple times while on patrol. Deputy Pinon was familiar with Cortez's family and had been in their home.
As to Detective Jorgensen, she admitted she had not met Cortez in person, but she had previously seen him in eight to 10 hours of comparatively high quality video. The Attorney General contends this is sufficient to establish a foundation for identification testimony under People v. Larkins (2011) 199 Cal.App.4th 1059 (Larkins). In Larkins, the Fourth District Court of Appeal considered the application of Mixon to a witness's identification testimony based on video surveillance recordings made prior to the commission of the offense. Larkins was charged with multiple instances of stealing property out of gym club locker rooms. Videos from surveillance cameras showed the thief entering and exiting some of the gyms and their locker rooms. A loss prevention manager at one of the gyms identified Larkins as the thief in the videos. The manager had never seen Larkins in person, but the manager had previously seen him 20 to 30 times in other, previously recorded, surveillance videos. Those prior videos were not admitted at trial, but the jury was presented with several sets of still photos from those videos.
Based on Mixon and Perry, Larkins argued that the manager's testimony was inadmissible because the manager did not have personal knowledge of Larkins' appearance prior to the thefts. The Larkins court, distinguishing Mixon and Perry, held the manager's testimony was admissible. (Larkins, supra, 199 Cal.App.4th at p. 1068.) First, the court noted that the manager was not a police officer, such that his testimony presented no danger of prejudice. Second, the court noted that Mixon concerned still photographs, whereas the identification by the manager was based on videos. As such, the court held that Mixon and Perry were "logically inapplicable to videos." Third, the court noted that the jury was able to view still photos taken from the 20 to 30 videos the manager relied on, such that the jury could test his ability to identify Larkins as the person in the videos of the thefts.
Applying Larkins here, Detective Jorgensen's identification testimony was properly admitted. Like the gym loss manager, Detective Jorgensen was able to view many instances of Cortez's appearance on video recorded prior to the videos of the shooting. Furthermore, the jury had the mug shots and the Marshall's department store video against which the jury could test Detective Jorgensen's ability to identify Cortez as the person in the shooting videos.
Cortez argues that the danger of prejudice was greater than that in Larkins because Detective Jorgensen was a police officer, whereas Larkins concerned identification testimony by a civilian. For the same reason, Cortez contends it was prejudicial for Deputy Pinon to give identification testimony. But the danger of prejudice was not so great as to outweigh the probative value of the testimony. (See People v. Leon (2015) 61 Cal.4th 569, 601 [no error in admitting detective's testimony identifying defendant as person in surveillance videos].) Even assuming it was error to admit Detective Jorgensen's testimony based solely on her viewing of previous videos, it was not so prejudicial as to require reversal. Neither she nor Deputy Pinon testified that their prior familiarity with Cortez's appearance was associated with any prior illegal conduct by him, and they did not testify to observing any such prior conduct.
Finally, as to the admission of Detective Davis's identification testimony, we conclude that evidence should not have been admitted. There was no evidence that Detective Davis had personal knowledge of Cortez's appearance at or prior to the time of the shooting, and Detective Davis did not testify that he had previously seen videos of Cortez. His testimony did nothing to aid the jury because the jury had the same opportunity as Detective Davis to compare Cortez's appearance in the Marshall's video to his appearance in the shooting videos. We conclude, however, that the admission of Detective Davis' testimony was harmless error under People v. Watson (1956) 46 Cal.2d 818, 836 (reversal required only where there exists a reasonable probability of a more favorable outcome for appellant). Detective Davis's identification testimony added nothing to the identifications made by Deputy Pinon and Detective Jorgensen. The latter two witnesses—both of whom presented a stronger basis for identifying Cortez—each testified that they were certain Cortez was the shooter in the videos. Detective Davis, whose testimony on this point was comparatively weak, made no statement as to his level of certainty. Given the other officers' testimony, Detective Davis' identification was of little significance.
Moreover, based on CALCRIM Nos. 315 and 332, the trial court properly instructed the jury on the weight of expert opinion testimony, including the ability of the officers to make accurate identifications. The jury was told it was not required to accept the opinion testimony as true or correct, that the meaning and importance of the opinions was for it to decide, and that it could disregard any opinion it found unbelievable or unsupported by the evidence.
Finally, the prosecution presented a great deal of other evidence connecting Cortez to the offense. This included the Marshall's department store video, which showed Cortez with Miranda and Jacquez 50 to 70 minutes before the shooting; Miranda's GPS data, which put him at the scene of the crime with near certainty; the fact that Miranda's GPS data showed he went to Cortez's house immediately after the shooting; the fact that Miranda, Jacquez, and Cortez were all in the same gang, giving them a common motive to commit the offense; and Cortez's tattoo of the letters "SK," which he got after the shooting, and which Deputy Pinon opined stood for "Sureno killer" or "scrap killer." Based on this evidence, we conclude it is not reasonably probable Cortez would have enjoyed a more favorable outcome in the absence of any error.
Cortez contends the erroneous admission of identification testimony violated his federal constitutional rights, requiring harmless error analysis under Chapman v. California (1967) 386 U.S. 18 (reversal required unless prosecution shows the error was harmless beyond a reasonable doubt). He argues that the admission of identification testimony rendered the trial fundamentally unfair and that the officers' testimony was tantamount to an opinion on the ultimate issue of guilt. (See People v. Torres (1995) 33 Cal.App.4th 37, 46 [a witness may not express an opinion as to the guilt or innocence of the defendant]; People v. Brown (1981) 116 Cal.App.3d 820, 829 [officer's testimony that defendant as a "runner" was tantamount to opinion of guilt].) We are not persuaded. None of the authorities cited by Cortez concerned the type of identification testimony admitted here, and the identification of a person is not tantamount to an opinion on guilt. Nor was the trial rendered fundamentally unfair. As a general matter, the erroneous admission of such testimony only violates state law rules of evidence. (See People v. Benavides (2005) 35 Cal.4th 69, 91 [generally, violations of state evidentiary rules do not rise to the level of federal constitutional error]; People v. Bell (1998) 61 Cal.App.4th 282, 291 [applying Watson standard to admission of identification testimony].) And for the reasons above, we perceive no grounds for reversal under the Watson standard for prejudice. We conclude this claim is without merit.
B. Prosecutorial Misconduct
Cortez contends the prosecution committed misconduct by asking Detective Jorgensen about Cortez's in-court reaction during the playing of one of the shooting videos. Cortez alternatively frames his claim as ineffective assistance of counsel. The Attorney General responds that any prosecutorial misconduct was harmless. We conclude the claim is forfeited because defense counsel stipulated to the trial court's curative instruction. We further conclude Cortez did not suffer ineffective assistance of counsel.
1. Background
Shortly after playing one of the shooting videos for the jury, the prosecutor questioned Detective Jorgensen about her identification of the shooter as Cortez. The following exchange then occurred:
"[Q:] Now, when we earlier played for the first time the second video that shows the actual shooting
"[A:] Yes.
"[Q:] -- did you observe Defendant Cortez's reaction when that was played?
"[A:] I did.
"[Q:] Would you please describe his reaction when that was played?
"[A:] He smiled and turned to the audience behind him." Defense counsel immediately objected and moved to strike the testimony. The trial court stated that it would take the objection under submission. The next morning, on a Friday, the court requested briefing from the parties and stated that it would rule on the objection Monday. No briefing on the matter appears in the record.
On Monday morning, outside the presence of the jury, the trial court ruled that the motion to strike would be granted. The court stated that the parties had reached a stipulation as to how to instruct the jury, whereupon both the prosecutor and defense counsel stated their agreement with the stipulation. When the jury returned, the court instructed the jury with the stipulated instruction as follows: "Last week, the court took under submission an objection by [defense counsel]. The court will now rule on that objection and sustain that objection. There is a stipulation by the parties as follows: [¶] Testimony was admitted regarding a reaction the defendant Mr. Cortez had during the playing of the video of the shooting of Jose Cisneros. That testimony has been stricken from the record, as it is unclear if he was reacting to the video or to something else. You are not to consider that testimony for any purpose."
2. Legal Principles
Apart from the penalty phase in a capital case, a defendant's in-court demeanor or behavior is not a proper subject for comment. "In criminal trials of guilt, prosecutorial references to a nontestifying defendant's demeanor or behavior in the courtroom have been held improper on three grounds: (1) Demeanor evidence is cognizable and relevant only as it bears on the credibility of a witness. (2) The prosecutorial comment infringes on the defendant's right not to testify. (3) Consideration of the defendant's behavior or demeanor while off the stand violates the rule that criminal conduct cannot be inferred from bad character." (People v. Heishman (1988) 45 Cal.3d 147, 197, abrogated on other grounds by People v. Diaz (2015) 60 Cal.4th 1176.)
To demonstrate ineffective assistance of counsel, Cortez must first show trial counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsel's performance or lack thereof. (Id. at pp. 691-692.) "Prejudice exists where there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." (People v. Benavides, supra, 35 Cal.4th at pp. 92-93, citing Strickland v. Washington, supra, 466 U.S. at pp. 687-688, 693-694.) "On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (People v. Mai (2013) 57 Cal.4th 986, 1009.) " 'Tactical errors are generally not deemed reversible; and counsel's decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, [the appellate court] will affirm the judgment "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . ." ' " (People v. Hart (1999) 20 Cal.4th 546, 623-624.) It is the defendant's burden on appeal to show by a preponderance of the evidence that he was denied effective assistance of counsel and is entitled to relief. (People v. Dowdell (2014) 227 Cal.App.4th 1388.)
3. Cortez Did Not Suffer Ineffective Assistance of Counsel
The Attorney General agrees with Cortez that the prosecutor should not have commented on his in-court demeanor. Although the Attorney General characterizes the prosecutor's conduct as "error" rather than misconduct, Cortez is correct that it is prosecutorial misconduct for a prosecutor to adduce testimony on a defendant's in-court demeanor as the prosecutor did here. And the trial court ruled accordingly by sustaining the objection and striking the testimony. The issue on appeal is the adequacy of the court's curative measures. Cortez contends the court failed to instruct the jury that the prosecutor's questioning was improper and to ignore whatever behavior by Cortez the jury may have observed. He specifically challenges that part of the instruction that stated the testimony was stricken because "it is unclear if he was reacting to the video or to something else." Cortez further contends the delay in giving the instruction allowed the jury to consider the erroneous testimony for three days. But his trial counsel stipulated to the wording of the curative instruction and he lodged no objection to the delay in giving it. On this record, defendant has forfeited any claim regarding the adequacy of the court's response.
Anticipating forfeiture, Cortez contends his attorney provided ineffective assistance of counsel by stipulating to the instruction and allowing the delay. He claims counsel could not have had a tactical basis for this performance, but he offers no support for this assertion. Given the portion of the instruction that told the jury it was "unclear if [Cortez] was reacting to the video or to something else," we think defense counsel may have had a tactical reason for requesting or agreeing to such language. For instance, it is possible that counsel saw one or more jurors observing Cortez's reaction to the video. Counsel may have believed that an instruction telling the jury to ignore what it had seen would be insufficient, and that it would be more effective for the court to offer the jury an alternative explanation for his conduct. Or counsel may have believed a swifter, more forceful instruction would draw further attention to his client's conduct or exaggerate its significance.
But even assuming it constituted deficient performance to stipulate to the instruction, Cortez has not met his burden to show he was prejudiced. The court instructed the jury not to consider the stricken testimony. Cortez has not shown that the jury could not or did not follow that instruction. In the absence of any showing to the contrary, we assume the jury adhered to the court's instruction. Accordingly, Cortez has not demonstrated a reasonable probability of a more favorable outcome. We conclude this claim is without merit.
C. Sufficiency of the Evidence of a Criminal Street Gang
Cortez contends the prosecution failed to introduce evidence sufficient to prove the existence of a criminal street gang. Relying on Prunty, supra, 62 Cal.4th 59, he argues that the prosecution failed to establish an organizational or associational nexus between the Northside Castro gang and the Norteño gang or any other subset gang of Norteños. He further contends the court failed to instruct the jury on the findings required for such a nexus. The Attorney General responds that the record holds substantial evidence to show the existence of a criminal street gang in which Cortez participated and for whose benefit he committed the offense. We conclude the record holds sufficient evidence to establish the Norteños as a criminal street gang under section 186.22.
1. Legal Principles
"In determining evidentiary sufficiency, the court reviews the entire record, in the light most favorable to the judgment, for the presence of substantial evidence. Substantial evidence is evidence sufficiently reasonable, credible, and of such solid value 'that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Chatman (2006) 38 Cal.4th 344, 389.)
Section 186.22 defines a "criminal street gang" as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission" of one or more certain enumerated offenses, "having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) Subdivisions (e) and (j) of that section further define "a pattern of gang activity" by the commission of certain predicate offenses by two or more persons on separate occasions within certain time periods.
The statute "requires that the gang the defendant sought to benefit, the individuals that the prosecution claims constitute an 'organization, association, or group,' and the group whose actions the prosecution alleges satisfy the 'primary activities' and predicate offense requirements of section 186.22(f), must be one and the same." (Prunty, supra, 62 Cal.4th at p. 75.) The requirement of an "organization, association, or group [] calls for evidence that an organizational or associational connection unites the 'group' members. When . . . the prosecution relies on the conduct of subsets to show a criminal street gang's existence, the prosecution must show a connection among those subsets, and also that the gang those subsets comprise is the same gang the defendant sought to benefit." (Id. at p. 85.) "That connection may take the form of evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together. And in other cases, the prosecution may show that various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization." (Id. at p. 71.) "[I]t is not enough . . . that the group simply shares a common name, common identifying symbols, and a common enemy. Nor is it permissible for the prosecution to introduce evidence of different subsets' conduct to satisfy the primary activities and predicate offense requirements without demonstrating that those subsets are somehow connected to each other or another larger group." (Id. at p. 72.)
2. The Evidence Was Sufficient to Establish the Norteños as a Criminal Street Gang
Cortez contends the prosecution failed to show that the Northside Castro gang was a criminal street gang or that a sufficient nexus existed between them and the Norteño gang. While much of the evidence concerned the Northside Castro gang, the prosecution's primary theory was that the Norteños were the "criminal street gang" for the purpose of satisfying section 186.22. The information alleged Cortez was an active participant in the Norteño criminal street gang, and it alleged the offense was committed for the benefit of that gang. Accordingly, the prosecutor's closing argument was centered on proving the existence of the Norteño criminal street gang. We therefore consider whether the prosecution introduced sufficient evidence to establish the existence of that gang under section 186.22.
Deputy Pinon, the prosecution's gang expert, opined that the Norteños were a criminal street gang. He testified to a number of common identifying signs and symbols used by Norteños, such as the color red, the number "14", the letter "N", certain hand signs, and various types of tattoos, such as the huelga bird. He testified that Norteños' primary activities in Monterey County included assaults, narcotics sales, murder, burglary, and car theft. (See section 186.22, subds. (e)(1), (e)(3), (e)(4), (e)(11), & (e)(25).) In addition to the instant offense, Deputy Pinon presented evidence of at least three predicate offenses, each committed by multiple Norteños in February 2007, May 2008, and June 2009. We conclude this evidence was sufficient to establish the existence of the Norteños as a criminal street gang under subdivision (f) of section 186.22.
Deputy Pinon further opined that Cortez was an active participant in the Norteño criminal street gang in May 2011. Deputy Pinon based his opinion on Cortez's contacts with other Norteño gang members, his placement in jail with other Norteños, his display of Norteño-related tattoos, and his possession of various Norteño-related indicia. When given the facts of a hypothetical offense similar to the facts of the instant offense, Deputy Pinon testified that such an offense would have benefited the Norteño gang and would have been committed in association with that gang. Shooting an individual in broad daylight would cause fear of the gang in the community, discourage citizens from reporting crimes, and increase the gang status of the members who committed the shooting. Commission of the crime would allow those members to promote themselves within the gang and rise through its ranks. We conclude this evidence is sufficient to establish Cortez's active participation in the Norteño gang under subdivision (a) and the fact that the offense benefitted the gang under subdivision (b)(1) of section 186.22.
Cortez disputes that Deputy Pinon testified that the offense was committed for the benefit of the Norteño gang. Cortez contends the expert's testimony referred to a generic "gang" without specifying the Norteños or Northside Castro as the gang in question. The record shows otherwise. The prosecutor's questioning on this point specifically referred to "the Norteño criminal street gang."
Furthermore, this theory of prosecution does not run afoul of the high court's holdings in Prunty. The Prunty court specifically declined to hold that a broader "umbrella" group such as the Norteños or Sureños could not constitute a criminal street gang under section 186.22. "[N]othing in this opinion reflects any skepticism regarding the general factual question of whether the Norteños exist . . . . We have previously upheld gang enhancements where the 'criminal street gang' in question was a geographically dispersed group. [Citation.] While we find the evidence here insufficient, nothing in our opinion reflects doubt that prosecutors can prove the existence of such a criminal street gang when the evidence supports such a conclusion." (Prunty, supra, 62 Cal.4th at p. 85.)
The issue of establishing a nexus between subsets arose in Prunty only because the prosecution's expert in that case failed to present evidence showing the different subsets were connected to each other or to the broader Norteño gang. (See Prunty, supra, 62 Cal.4th at p. 91 [the issue arises "only when the prosecution seeks to prove a street gang enhancement by showing the defendant committed a felony to benefit a broader umbrella gang, but seeks to prove the requisite pattern of criminal gang activity with evidence of felonies committed by members of subsets to the umbrella gang," conc. opn. of Corrigan, J.].) Here, by contrast, the prosecution's case hinged on proving the existence of Norteños as a unitary gang under section 186.22. The prosecution's expert testified to the primary activities of that gang. (See People v. Margarejo (2008) 162 Cal.App.4th 102, 108 [expert's testimony as to primary activities of the gang constituted sufficient evidence].) And the predicate offenses were all committed by Norteño members for the benefit of that gang, not some separate subset unassociated with Cortez. (See People v. Ewing (2016) 244 Cal.App.4th 359, 372-373 [Prunty did not apply where the prosecution did not proffer the predicate crimes of subset gang members to prove the existence of a criminal street gang].) Applying the elements of subdivision (f), we conclude the prosecution presented sufficient evidence to support such a finding. Although the prosecution also presented evidence of the Northside Castro gang and other Norteño subsets, neither the existence of these subsets nor the connections between them were necessary to prove the gang-related charges and allegations. For the same reason, the trial court was not required to instruct the jury on what findings were necessary to establish such connections. We conclude this claim is without merit.
Deputy Pinon testified that one of the predicate offenses was committed by two offenders who were members of both the Norteño criminal street gang and the Northside Castro gang.
Finally, Cortez briefly raises a claim of cumulative prejudice. Because we do not find multiple errors, there is no prejudice to cumulate. Accordingly, for all the above reasons, we will affirm the judgment.
III. DISPOSITION
The judgment is affirmed.
/s/_________
WALSH, J. WE CONCUR: /s/_________
RUSHING, P.J. /s/_________
PREMO, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.