Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Ann I. Jones, Judge, Los Angeles County Super. Ct. No. BA285639
Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Joseph P. Lee and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
In a jury trial, Christian Gallegos (appellant) was convicted of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664/182, subd. (a)), with findings that a principal personally and intentionally discharged a firearm in the commission of the offense proximately causing great bodily injury (§§ 12022, subd. (a)(1), 12022.53, subds. (c), (e)(1), (d) & (e)(1)), and that the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal from the judgment, appellant contends that (1) the trial court abused its discretion by admitting the codefendant’s recorded postarrest statement, (2) the trial court improperly admitted expert gang testimony, (3) the trial court improperly admitted unduly prejudicial gang evidence, (4) trial counsel was constitutionally ineffective, and (5) enhancing the term for attempted murder for the discharge of a firearm violates the principles of double jeopardy, collateral estoppel, due process, double punishment, Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and the merger doctrine in People v. Ireland (1969) 70 Cal.2d 522 (Ireland).
We affirm the judgment.
FACTS
The trial evidence established on June 20, 2005, 16-year-old J. was at his City Terrace residence in East Los Angeles. Codefendant H. (H.), a friend of J.’s, knocked on J.’s door and invited J. to go with him to smoke marijuana. H. and J. left the residence and entered a Cadillac driven by appellant. J. did not know appellant, and when J. entered the Cadillac, appellant did not return J.’s greeting. Appellant drove H. and J. to a nearby hilly residential area. H. and J. got out of the Cadillac. H. shot at J., emptying a revolver and wounding J. three times, in the ankle, flank, and buttocks.
Initially, trial was conducted against appellant and H. in the same proceeding.
After the shooting, J. required surgery to remove a damaged kidney. J. told Los Angeles County Deputy Sheriffs that he believed it was an attempted execution because he had witnessed appellant’s brother, L.M., a Sentinel Boy (SBS) gang member, shoot a rival KAM (Krazy Ass Mexicans) gang member in the face, and L.M.’s preliminary hearing was in two days.
Soon after the shooting, appellant and H., SBS gang members, were apprehended in the Cadillac. Before they were arrested, the youths led the deputies on a vehicle and foot pursuit. After apprehension, H. disclosed the location of the revolver and the expended shells.
At the police station, appellant waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and denied knowing anything about the shooting and denied that J. had been riding in his stepfather’s Cadillac. Appellant’s comments also suggested that he had led the deputies on the pursuit because the Cadillac was unregistered and unlicensed. However, appellant acknowledged that he knew his brother had an upcoming legal proceeding in which the brother faced a life term.
After listening to J. testify, H. negotiated a plea bargain and pled guilty to simple attempted murder with the promise of a determinate 25-year term if he testified truthfully at the trial. H. then testified as a witness to the terms of his plea and acknowledged that initially, he had lied to Deputy Steven Hernandez (Detective Hernandez) when he said that appellant was the gunman. H. explained that after accusing appellant, the detective had urged him to be honest, and he had admitted that he was the gunman and claimed that appellant told him he had to commit the shooting.
During H.’s testimony, H. explained that appellant had H. use a ruse to get his friend, J., into the Cadillac. H. testified that appellant drove him to a residence belonging to two brothers who were SBS gang members, the Sifuentes brothers. O., one of the brothers, and appellant spoke to H. there in a bedroom. He was told that if he did not shoot J., not only would appellant shoot J., appellant would also shoot him. H. said that he was given no opportunity to avoid participation and that he was told that the shooting would allow him to earn “respect” within the gang. He said that certain gang members had accused him of being a “rat” after a recent arrest. H. explained that being a rat is the worst thing that a gang member can do. He told the detective that he believed the order to shoot J. had come from higher up the hierarchy of the gang, but appellant and O. were the only gang members present when appellant ordered the shooting.
Appellant told H. that appellant wanted to shoot J. because J. was “throwing rat.” During the shooting, appellant drove and gave H. the revolver.
A veteran detective, Scott Schulze, assigned to the East Los Angeles Operation Safe Streets gang detail, testified to the elements of the gang enhancement. He explained the concept of “respect” in the gang culture, the hierarchy in the gangs, and in response to a hypothetical question, testified that executions of witnesses are used by a gang to intimidate the community so as to thwart or to prevent prosecutions and cooperation with law enforcement. Additionally, hypothetically, H. and appellant may have had personal gang-related motives for the shooting. Such a shooting would have increased appellant’s and H.’s respect within the gang and within rival gangs. The detective also gave his opinion, based on admissions made by H. and appellant and on appellant’s gang tattoos, that H. and appellant were SBS gang members.
Referring to the gang names and the gang members that appeared in H.’s diary, H. testified that his gang is a “Sureno” gang and is “tied to” the Mexican Mafia. H. said that “Trece” or a “13” is also a reference to the Mexican Mafia. During Detective Schulze’s testimony, he further explained that a “Sureno gang” is a Southern California gang that is associated with “EME,” which is also known as the Mexican Mafia. The Mexican Mafia is a prison gang that controls most of the Hispanic Southern California gangs by fear, intimidation, and violence.
Appellant did not testify or present evidence in defense.
DISCUSSION
I. The Impeachment
Appellant contends that the trial court abused its discretion by admitting a prior consistent statement by H. and that the trial court should have limited this rebuttal pursuant to Evidence Code section 352.
We disagree.
A. Background
During direct examination, H. admitted that during his postarrest statement, he had initially lied to Detective Hernandez. During cross-examination, appellant attempted to impeach H. by pointing out purported inconsistencies between his trial testimony and in his postarrest statement to Detective Hernandez. Specifically, during cross-examination, trial counsel elicited from H. that prior to the plea, he had been told his exposure was to a prison term of 40 years to life. H. admitted that prior to the shooting, he never informed anyone that he intended to leave the gang; he just avoided his fellow clique members. Trial counsel used cross-examination to point out that H. had testified at one point that there was a plan; however, at another point, H. said there was no plan. H. admitted that he told the truth about the shooting only after Detective Hernandez told him that if they found particulate on his hands during the gun residue test and discovered that he was lying, there would be nothing the detectives could later do for him. H. agreed that at that point, he felt that he was in “deep trouble” and that he was looking for a way to get out of trouble. Trial counsel continued with this line of questioning, implying that H. had decided to get out of trouble by shifting blame to appellant.
Before trial and prior to H.’s mid-trial plea, the prosecutor said that he did not contemplate using either of the defendants’ postarrest statements to Detective Hernandez. H.’s counsel wanted to introduce in defense that portion of the statement in which H. was kneeling on the ground and praying while crying. The trial court commented that under the “doctrine of completeness,” if the defense put any part of H.’s postarrest statement into issue, the prosecutor was entitled to have H.’s entire statement admitted, subject to an exercise of the trial court’s Evidence Code section 352 discretion. The trial court suggested that H’s trial counsel probably would not want to do this as when H. was crying and being contrite, H. also admitted the shooting. The trial court postponed its ruling on this point until trial.
Trial counsel pointed out that H.’s testimony was potentially inconsistent with several of J.’s claims about the events of the shooting and implied that H.’s conduct suggested an intent to kill, despite H.’s denials that he never intended to kill J. Trial counsel elicited that (1) H. had never mentioned to the detective a youth named Cepillo, who was present when J. entered the Cadillac, (2) H. failed to mention they had returned after the shooting to the Sifuentes residence, and (3) he did not tell the detective about washing his hands after the shooting. In response to questioning, H. acknowledged that before his plea, he told the prosecutor and the detective that there was no prearranged signal communicating when he was to shoot J. and that H. and appellant never discussed the shooting once they were inside the Cadillac.
Trial counsel completed his cross-examination by implying that (1) “it [was] a fact that [H.] wanted to demonstrate on [his] own that [he was] never a rat, [or a] bitch, (2) [H. was] going to prove it by shooting someone,” (3) H. went over to J.’s residence with the intent to kill, and (4) H. had fabricated a story that also implicated appellant for the purpose of “get[ing] [himself] a good deal.”
After cross-examination, the prosecutor asked to use the DVD videorecording of H.’s postarrest interview to rebut the claims of recent fabrication and that H. had changed his story to obtain a better deal.
The trial court ruled that the statement was admissible in its entirety, and it permitted the prosecutor to reopen to question H. about why he had failed to mention such details.
Trial counsel objected, as follows: “If the court is introducing the entire statement . . . I object to [H.] sobbing and crying and portrayed as, you know—” The prosecutor argued the entire recording was necessary so that the jury could decide whether H. was sincere. The trial court replied that for the jury to fully evaluate H.’s statement, it would have to hear the entire recording and how H. was persuaded “to come clean.” Trial counsel reiterated, “[The] People are entitled to introduce prior statements. The effect it’s going to have against my client, because you have got the guy crying and praying and stuff like that, I don’t think it’s appropriate.”
The trial court explicitly exercised its discretion pursuant to Evidence Code section 352 and declined to redact. It said, “I think there is a need for the jury to understand the full context of [H.’s] behavior. It’s clearly been placed in issue by the defense.”
The prosecutor played the recording and engaged in further questioning to rehabilitate his witness.
The recording showed that H. initially told the detective that he and appellant encountered J. at the shooting site walking down the street. H. claimed that appellant then shot J. Detective Hernandez told H. that the detectives were going to administer a gun residue test on his hands. The detective also urged H. that it was time to be honest. The test would show whether H. had discharged the revolver, and J. had told them that H. was the gunman. H. started crying and said that J. “was a friend but, they were testing me and I didn’t want to do it.” H. explained that “[t]hey” wanted him to shoot J. because J. “was throwing rat.” Detective Hernandez asked who was giving the orders, and H. replied, “I think it’s the big one.” H. did not know who that was and said that appellant had delivered the order. H. explained that after the March 16, 2005, execution of several search warrants on gang residences and his arrest, certain gang members had decided that he was the person who “threw the rat” on Munoz and that H. might be a witness. After that, H. had avoided the gang, but on the day of the shooting, appellant had come over and picked him up at his residence at gunpoint. In response to the detective’s inquiries, H. had said that he had concluded that the motive for the shooting was J.’s status as a witness. During the interview, H. repeatedly said that he did not want to “do it,” and then and now, he was “scared.”
B. The Analysis
“An appellate court applies the abuse of discretion standard to review any ruling by a trial court on the admissibility of the evidence, including a ruling on an Evidence Code section 352 objection.” (People v. Cox (2003) 30 Cal.4th 916, 955.) Evidence of a previous statement made by a witness is admissible under the prior consistent statement exception to the hearsay rule where there has been an express or implied charge that the witness’s testimony is recently fabricated and the prior consistent statement was made before the motive for fabrication arose. (Evid. Code, §§ 1236, 791.)
1. Recent Fabrication
Appellant argues that H.’s postarrest statement was inadmissible in rebuttal as there was no inconsistency and no express or implied defense charge of recent fabrication, bias, or improper motive. We disagree. The defense cross-examination explicitly and by implication attempted to undermine H.’s credibility. In these circumstances, it is well established that the entire content of a police interview with the witness, made immediately after the arrest, is admissible to rebut charges of fabrication. Merely addressing questions to the witness about what he failed to tell a police officer on a prior occasion or addressing questions on cross-examination to a witness about his plea bargain is sufficient for the trial court to conclude there is an implied charge of recent fabrication. (People v. Dennis (1998) 17 Cal.4th 468, 531–532; People v. Noguera (1992) 4 Cal.4th 599, 629–630.) H. made his statement to the detective before entering into the plea bargain. (Noguera, supra, at p. 639; accord, People v. Jones (2003) 30 Cal.4th 1084, 1106–1107 [“a prior consistent statement is admissible if it was made before the existence of any one or more of the biases or motives that, according to the opposing party’s express or implied charge, may have influenced the witness’s testimony”].) Also, Evidence Code section 791 permits the admission of a prior consistent statement when there is a charge that the testimony given is fabricated or biased, not just when a particular statement at trial is challenged. (People v. Kennedy (2005) 36 Cal.4th 595, 614.)
As for the scope of the rebuttal, the entire statement was relevant and properly admissible to rehabilitate the witness. (People v. Gurule (2002) 28 Cal.4th 557, 621.) The statement tended to show that H. was being truthful because he acknowledged that he was the gunman and showed that he may also have committed the shooting either for reasons of duress or to regain respect within the gang. Viewing the statement as a whole, the jury could have concluded that earlier statement was essentially the same as his trial testimony. Seeing the witness’s statements in their proper context would have aided the jury in assigning weight to the statement and to H.’s trial testimony. (Evid. Code, §§ 210, 780.) Consequently, appellant’s claims are unpersuasive.
In any event, there was no specific objection on this ground, and the claim is forfeited. (People v. Smith (2003) 30 Cal.4th 581, 629–630.)
Appellant complains that the trial court improperly relied on Evidence Code section 356, what the trial court referred to as the “doctrine of completeness,” to admit the entire videotape recording when certain portions of the tape recording assertedly went well beyond the scope of relevant impeachment and should have been excluded. (See People v. Samuels (2005) 36 Cal.4th 96,130 [referring to Evidence Code section 356 as the “rule of completeness”].)
“‘Evidence Code section 356 permits introduction of statements “on the ‘same subject’” or which are necessary for the understanding of the statements already introduced. [Citation.]’” (People v. Harrison (2005) 35 Cal.4th 208, 239.) The People argue that reliance on Evidence Code section 356 is unnecessary to justify the admission of the entire interview, and we agree. Nevertheless, we note that defendant did open the door by his cross-examination, and it makes no difference that the prosecutor initially questioned the witness in a limited way about what he said to the detective. (People v. Harris (2005) 37 Cal.4th 310, 334; see, e.g., People v. Rowland (1992) 4 Cal.4th 238, 261–262.)
In any event, the general rule of waiver applies. Appellant failed to make a specific and timely objection on this ground, and he has thus failed to preserve the claim for review. (People v. Waidla (2000) 22 Cal.4th 690, 717.)
3. Redacting the Statement
Appellant claims that rebuttal with H.’s postarrest statement should have been limited “to the one or two omissions or inconsistencies that would have rehabilitated the witness” and the remainder of the statement properly should have been excluded pursuant to Evidence Code section 352. The complaint appellant raises on appeal differs from his objection in the trial court. There, trial counsel objected that the statement should be redacted to exclude all portions in which H. was crying and sobbing. Trial counsel apparently was complaining that observing H.’s distraught demeanor after he changed his story would have an inflammatory effect on the jury and that the use of that part of the statement would improperly bolster the witness’s credibility.
We address the objection appellant made in the trial court. “[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.” (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009.)
Sustaining the defense objection here would have meant excluding almost all of the postarrest interview. As trial counsel questioned H.’s credibility during cross-examination and implicitly claimed that H. had omitted important details before he testified at trial, the prosecution was entitled to put H.’s statements into evidence to give the jury the opportunity to fully evaluate the witness’s testimony. (People v. Harrison, supra, 35 Cal.4th at p. 239.) If the majority of the statement was redacted, the jury would have been deprived of the opportunity to fully evaluate the truthfulness of H.’s trial claims. That the witness was crying and sobbing during most of the interview was damaging to the defense, but the demeanor of the witness was not extraneous to the issue of witness credibility and thus not unduly prejudicial. Unless the dangers of undue prejudice, confusion, or time consumption “‘substantially outweigh’” the probative value of relevant evidence, an Evidence Code section 352 objection should fail. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) No aspect of the latter part of the interview was so inflammatory or irrelevant that the trial court abused its discretion by refusing to redact.
4. Due Process
Appellant argues a denial of due process. Insofar as his evidentiary claims are forfeited, we do not consider his due process arguments. (People v. Chaney (2007) 148 Cal.App.4th 772, 779 (rev. den.).) In the alternative, appellant’s claim of a fundamentally unfair trial based on the trial court’s failure to exclude certain evidence on Evidence Code section 352 grounds fails. As a general matter, even a “mere erroneous exercise of discretion under [the] . . . ‘normal’ rules [of evidence fails to] implicate the federal Constitution.” (People v. Cudjo, supra, 6 Cal.4th at p. 611; accord, People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3 [as the evidence was properly admissible at trial, the due process claim also fails]; Jammal v. Van de Kamp (1991) 926 F.2d 918, 919–920.)
II. The Expert Opinion
Appellant contends (1) police officers are not qualified to give expert opinions with respect to criminal street gangs; (2) the basis for such expert testimony is unreliable; and (3) Detective Schulze’s opinions that appellant and H. had personal motives that were gang-related for committing this crime—that the crime’s commission would have increased their stature with fellow gang members and with rival gangs—was inadmissible as such an opinion invaded the province of the jury.
The contention lacks merit.
A. Introduction
In People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), the court summarized the relevant legal principles, as follows: “California courts have long recognized the potentially prejudicial effect of gang membership. As one California Court of Appeal observed: ‘It is fair to say that when the word “gang” is used in Los Angeles County, one does not have visions of the characters from the “Our Little Gang” series. The word gang . . . connotes opprobrious implications. . . . [T]he word “gang” takes on a sinister meaning when it is associated with activities.’ (People v. Perez (1981) 114 Cal.App.3d 470, 479.) Given its highly inflammatory impact, the California Supreme Court has condemned the introduction of such evidence if it is only tangentially relevant to the charged offenses. (People v. Cox (1991) 53 Cal.3d 618, 660.) In fact, in cases not involving gang enhancements, the Supreme Court has held evidence of gang membership should not be admitted if its probative value is minimal. (People v. Hernandez (2004)33 Cal.4th 1040, 1047.) ‘Gang evidence should not be admitted at trial where its sole relevance is to show a defendant’s criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense.’ (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.)
“Thus, as a general rule, evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative. (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) Consequently, gang evidence may be relevant to establish the defendant’s motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193; see generally Evid. Code, § 352.) ‘Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]’ ([Hernandez], supra, 33 Cal.4th at p. 1049.) Nonetheless, even if the evidence is found to be relevant, the trial court must carefully scrutinize gang-related evidence before admitting it because of its potentially inflammatory impact on the jury. (People v. Williams, supra, 16 Cal.4th at p. 193; People v. Carter (2003) 30 Cal.4th 1166, 1194 [evidence of defendant’s gang membership although relevant to motive or identity creates a risk the jury will improperly infer defendant has a criminal disposition and is therefore guilty of the charged offense and thus must be carefully scrutinized].)” (Albarran, supra, 149 Cal.App.4th at pp. 223–224.)
The punishment for certain crimes can be enhanced if the crime involves a criminal street gang. (§ 186.22, subd. (b)(1); see generally People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley).) To establish this criminal street gang enhancement, the prosecution must prove some facts in addition to the elements of the underlying crime, for example, that the criminal street gang has engaged in a “‘pattern of criminal gang activity.’” (§ 186.22, subds. (e) & (f).) “Accordingly, when the prosecution charges the criminal street gang enhancement, it will often present evidence that would be inadmissible in a trial limited to the charged offense.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1044 (Hernandez).)
Section 186.22, subdivision (b)(1) authorizes an enhancement for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (Italics added.) A “‘criminal street gang’ means 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 of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), 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).) A “‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.” (§ 186.22, subd. (e).) The list of crimes included within subdivision (e) include: assault by means of force likely to produce great bodily injury, assault with a deadly weapon or firearm, robbery, unlawful homicide or manslaughter, the commission of serious drug offenses, such as sale, drive-by shootings, witness and victim intimidation, grand theft, robbery, burglary, kidnapping, felony vandalism, carjacking, unlawful firearm offenses, the making of terrorist threats, and grand theft. A “pattern of gang activity may be shown by the commission of one or more of the offenses enumerated in . . . subdivision (e). . . .” (§ 186.22, subd. (j).)
“Evidence Code section 805 provides that ‘[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.’ Nevertheless, an expert opinion is inadmissible ‘if it invades the province of the jury to decide a case.’ (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 972 [105 Cal.Rptr.2d 88].) Such evidence is ‘wholly without value’ to the trier of fact. (Ibid.) The determination whether an expert witness’s opinion bears upon or decides an ultimate issue in the case is sometimes a difficult decision, and ‘“a large element of judicial discretion [is] involved.”’ (People v. Wilson (1944) 25 Cal.2d 341, 349.)” (People v. Frederick (2006) 142 Cal.App.4th 400, 412.)
In People v. Valdez (1997) 58 Cal.App.4th 494 (Valdez), the court addressed the admissibility of testimony from an experienced police officer on gang membership, sociology, and culture: “In People v. Olguin (1994) 31 Cal.App.4th 1355, 1371, the court explained that ‘[t]he requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. [Citations.] Such evidence is admissible even though it encompasses the ultimate issue in the case. [Citations.]’ (See People v. Torres (1995) 33 Cal.App.4th 37, 45; People v. Gamez (1991) 235 Cal.App.3d 957, 965.) On the other hand, ‘[e]xpert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness.’ (People v. Torres, supra, 33 Cal.App.4th at p. 45; see also In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1121 [expert opinion about who molested the child not admissible].)” (Valdez, supra, at p. 506.)
The Valdez court said: “In general, where a gang enhancement is alleged, expert testimony concerning the culture, habits, and psychology of gangs is permissible because these subjects are ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ [Citations.]” (Valdez, supra, 58 Cal.App.4th at p. 506.)
B. The Analysis
1. The No-Expertise and Unreliable Foundation Claims
Appellant does not attack Detective Schulze’s individual qualifications to render an expert opinion. He makes a broader attack on the use of police officer expert opinion regarding gangs. Based primarily upon a law review article written by Placido Gomez, “Article: It is Not So Simply Because an Expert Says It is So: The Reliability of Gang Expert Testimony Regarding Membership in Criminal Street Gangs: Pushing the Limits of Texas Rule of Evidence 702 ” (2003) 34 St. Mary’s Law Journal 581, appellant claims that no police gang officer can give a valid expert opinion in a criminal case. He argues that the detective’s expertise is based almost entirely on his prior conversations with gang members and other on-the-job experience. He argues that these are unreliable bases, rather than a well-established body of ascertainable scientific principles, for expert opinion. Accordingly, he concludes that a police officer cannot render a valid opinion on gang matters as the body of gang knowledge known to police officers is categorically unreliable.
Moreover, appellant asserts that the use of such opinion violates the federal confrontation clause. He urges that hearsay, particularly of the testimonial variety, is not the type of material upon which an expert can reasonably rely. Appellant asserts that police officers gather almost all their background knowledge during suspect interrogations, and those statements amount to testimonial hearsay. Any information obtained during such interrogations has not been subjected to cross-examination. He argues that after the decision in Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the hearsay basis for expert gang opinion should be deemed to render police officer opinions on gang matters unreliable and wholly inadmissible.
Appellant did not raise these issues in the trial court, and consequently, the claims are not cognizable on appeal. (Valdez, supra, 58 Cal.App.4th at p. 505.) This is not a case where applying the contemporaneous objection rule is unfair because “the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change.” (People v. Turner (1990) 50 Cal.3d 668, 703.) The Turner exception is meant to apply where there is a later unforseeable change in the law, and the question is whether in the absence of an objection, the party will be able to obtain relief on that ground notwithstanding the lack of a trial objection. Here, the exception does not apply as the decisions in Crawford and People v. Thomas (2005) 130 Cal.App.4th 1202, 1210 (Thomas) were filed well before the trial in this case. The issues are forfeited.
We note that in December 2005, well before the trial in this case, on further review, the New York Court of Appeals in People v. Goldstein (2005) 6 N.Y.3d 119 overruled the Supreme Court’s decision in People v. Goldstein (2004) 14 A.D.3d 32, 38, the decision mentioned in Thomas. The Court of Appeals held that Goldstein was denied his rights under the federal confrontation clause because the expert witness was permitted under the guise of stating the basis for her expert opinion to tell the jury the statements made by other persons out of court without cross-examination. The court determined that the statements were made in contemplation of prosecution, even though the expert was only employed by contract by the government, and was not a government official. (People v. Goldstein, supra, 6 N.Y.3d at p. 129.)
To forestall appellant’s assertion of ineffective trial counsel, we nevertheless address the issues on the merits.
“To establish ineffective assistance, defendant bears the burden of showing, first, that counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him.” (People v. Hawkins (1995) 10 Cal.4th 920, 940.) “‘[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’” (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland v. Washington (1984) 466 U.S. 668, 697.)
We do not address appellant’s claim that the detective’s opinion testimony invaded the province of the jury as appellant has not raised that issue as constitutionally ineffective trial counsel.
Appellant acknowledges that the California authorities universally approve the use of experienced police officers as gang experts on such issues as gang culture, psychology, mores, and values, as well as on such issues as motive and intent and whether there is evidence supporting the finding of a gang enhancement. (E.g., Hernandez, supra, 33 Cal.4th at p. 1049; Gardeley, supra, 14 Cal.4th at p. 619; People v. Killebrew (2002) 103 Cal.App.4th 644, 656–657 [listing the various topics upon which expert opinion testimony on gangs is properly admitted]; Valdez, supra, 58 Cal.App.4th at p. 509; People v. Gamez (1991) 235 Cal.App.3d 957, 965.)
Recently in People v. Gonzalez (2006) 38 Cal.4th 932, 949, the court said, “A gang expert’s overall opinion is typically based on information drawn from many sources and on years of experience, which in sum may be reliable.” We are bound by the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Consequently, we find no merit in the claims the detective was unqualified and the basis for his opinion was unreliable. There is also no showing of prejudice, and the claim of ineffective trial counsel fails.
As for appellant’s claim that trial counsel was constitutionally ineffective because he failed to object on Crawford grounds, again there is no demonstration of prejudice. In Thomas, supra, 130 Cal.App.4th at pages 1210 to 1211, the court determined that Crawford does not apply to the hearsay relied upon by a gang expert as the foundation for his opinion. The court held that “because the statements were not offered to establish the truth of the matter asserted, but [are offered] merely as one of the bases for an expert witness’s opinion, the [federal] confrontation clause, as interpreted in Crawford, does not apply.” We agree with the reasoning in Thomas. (See also People v. Cooper (2007) 148 Cal.App.4th 731, 746–747.)
2. Due Process
There is no merit to the claim that the use of the expert gang testimony was arbitrary and fundamentally unfair. The evidence was admissible under state law, relevant to the issues in the case, and not so unduly prejudicial so as to deny appellant due process. (People v. Cudjo, supra, 6 Cal.4th at p. 611; accord, People v. Sanders, supra, 11 Cal.4th 475, 510, fn. 3; Jammal v. Van de Kamp, supra, 926 F.2d at pp. 919–920; compare Albarran, supra, 149 Cal.App.4th at pp. 229–230, fn. omitted.)
III. The Gang Evidence
Appellant contends that the use of a good part of the gang evidence was inadmissible as it was unduly prejudicial, and he also asserts that the gang evidence was unfairly used “to create a [gang] motive [for the commission of the offense] not otherwise suggested by the evidence.” He argues that the mention of the gang’s connection to the Mexican Mafia and Detective Schulze’s testimony about the photographs seized on March 16, 2005 was unduly prejudicial and that the use of much of the gang evidence was “overkill,” which denied him due process.
The contention is forfeited.
A. Waiver
The Evidence Code section 352 and due process claims are waived because appellant failed to object on grounds of undue prejudice to any particular item of gang evidence used during the trial. (People v. Partida (2005)37 Cal.4th 428, 434 (Partida).) To avoid the general rule of waiver, appellant argues that his motion to bifurcate served the purpose of an Evidence Code section 352 objection to the gang testimony. However, while the motion to bifurcate, which is in the nature of a motion to sever, requires a consideration of undue prejudice, it essentially raises different issues. Further, the legal analysis is not the same. (Compare People v. Williams (1997) 16 Cal.4th 153, 194, discussing Evid. Code § 352, with the decision in Hernandez, supra, 33 Cal.4th at pp. 1048–1051, which addresses bifurcation of a gang enhancement.) We conclude that the motion to bifurcate was insufficiently specific to allow appellant to avoid the general rule of forfeiture. (Partida, supra, 37 Cal.4th at p. 435 [section 353 “does not require any particular form of objection; [r]ather, ‘the objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility’”].)
Appellant also complains that one element of Detective Schulze’s testimony is inadmissible as his expert opinion on appellant’s personal gang-motive for committing the shooting has no support in the trial evidence. This contention is also forfeited as appellant raised no relevancy or Evidence Code section 352 objection to the testimony.
B. The Merits
Again, as appellant raises claims of ineffective trial counsel, we address the merits of his Evidence Code section 352 and due process claims.
Appellant argues that the trial court should have excluded the following items of unduly prejudicial gang evidence: (1) Hernandez’ testimony that the “13” designation in the gang’s name, “Sentinel Boys Trece,” meant that the gang was connected to the Mexican Mafia, (2) during H.’s testimony, the prosecutor had him list the monikers for his fellow SBS gang members, e.g., Krook, Evil, Largo, and Mugsy, and the prosecutor displayed to the jury photographs of H.’s clique, which included at least one gang member who was holding a rifle, (3) the prosecutor had H. testify that “Weasel” “jumped” him into the gang, (4) Detective Schulze identified in the same group of gang photographs “Sickum,” “Mousie” and “Zappo,” and one gang member who was holding a firearm and another who was throwing a gang sign, (5) testimony of Detective Schulze that the primary activities of the SBS gang was committing crimes such as murders, assaults, narcotics sales, theft, and graffiti despite the use of predicate crimes that merely involved robbery and assault with a bottle, and (6) testimony of Detective Schulze that SBS was at war with the KAM gang, and the hostilities involved “murders, assaults, and retaliatory murders and assaults.”
Here, the evidence of gang membership and of the gang and personal motives for the shooting was cross-admissible on the issues of motive and intent. During this attempted murder trial, the People had to prove the specific intent for attempted murder and for the gang enhancement. To prove these elements of the offense and enhancement, the above gang evidence was properly admissible. (See, e.g., Hernandez, supra, 33 Cal.4th at p. 1049; Williams, supra, 16 Cal.4th at p. 193; Gardeley, supra, 14 Cal.4th at p. 619 [gang testimony may serve to prove that what was done presents a classic example of gang-related activity]; People v. Killebrew, supra, 103 Cal.App.4th at pp. 654–658.) The other items of evidence were relevant to proving the gang’s history, symbols, and that the gang engaged in a pattern of criminal activity. Some of Detective Schulze’s comments made the other testimony more understandable to persons ignorant of the gang culture.
The only arguably unnecessary item of gang evidence was the testimony referring to the gang’s relationship to the Mexican Mafia prison gang. (See Albarran, supra, 149 Cal.App.4th at p. 231, fn. 15.) But the use of that evidence was at best harmless given the overwhelming evidence of appellant’s participation in the shooting and the evidence that the shooting was gang-related and committed to thwart the Munoz prosecution and to punish a local resident who was “throwing rat.” It is not reasonably probable that the result in this case would have been different had the Mexican Mafia evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Also, apart from Detective Schulze’s opinion testimony, the trial evidence rationally supports the inference that appellant had gang-related reasons for committing the crime, apart from the personal reason of wanting his brother to avoid a long prison term. The trial evidence established that appellant and H. committed the shooting in association with the gang, they were both gang members, and that another gang member, O., was involved in the shooting. H. told the detective that he believed that a gang member other than appellant had ordered the execution. From this evidence, the jury could draw a reasonable inference that J.’s execution was ordered by someone more important in the gang and that it was not just appellant who was involved in enlisting H. to commit the shooting. This evidence at the very least demonstrated a gang-associated killing.
With these factual bases for the expert opinion, there was no abuse of discretion in permitting the detective to testify about “respect” in the gang culture as it amplified H.’s testimony on the reasons for the shooting. The detective’s information about gangs also clarified that H. and appellant were possibly motivated to commit the shooting to obtain respect within their own gang and the gang community.
2. Due Process
Appellant’s due process claim is not cognizable on appeal as there was no due process or supporting evidentiary objection made in the trial court. (See Partida, supra, 37 Cal.4th at p. 436.) However, were we to address this claim on appeal notwithstanding the failure to object, we would find that the fleeting reference to the Mexican Mafia was not such a serious error that it prevented a fair trial. (See People v. Hisquierdo (1975) 45 Cal.App.3d 397, 405; cf. Albarran, supra, 149 Cal.App.4th at pp. 230–231.)
Also, appellant’s claims lack merit or are nonprejudicial, and he has not established ineffective trial counsel. (Strickland v. Washington, supra, 466 U.S. at p. 697; In re Fields, supra, 51 Cal.3d at p. 1079.)
IV. The Sentencing Contentions
The trial court sentenced appellant to an aggregate term of 40 years to life in state prison, consisting of a term of 15 years to life for the attempted murder, enhanced by a consecutive term of 25 years to life for the discharge of a firearm.
Appellant contends that the facts underlying the offense and the section 12022.53, subdivisions (d) and (e)(1) enhancements are essentially the same. He argues that consequently, under the doctrine of merger in Ireland, supra, 70 Cal.2d 522 and pursuant to section 654 and Apprendi, supra, 530 U.S. 466, the enhancements must be stricken. He also makes the claims that principles of double jeopardy, collateral estoppel, and due process prevent his punishment by the additional term of 25 years to life.
We disagree.
A. The Ireland Claim
In People v. Sanders (2003) 111 Cal.App.4th 1371 (Sanders), the defendant raised a similar contention. The Sanders court explained that in Ireland, the Supreme Court held that the felony-murder rule could not be applied when the underlying felony is an assault. The reason for the Ireland court’s ruling was that the assault is an integral part of the homicide, and to hold otherwise would relieve the prosecution of the need to prove malice, as most homicide cases involve assault. (Ireland, supra, 70 Cal.2d at p. 539.) The Sanders court observed that the Supreme Court has not applied the doctrine other than in the context of felony murder and assault and that the doctrine has no application to enhancements. (Sanders, supra, at p. 1374.)
B. Penal Code Section 654
That court in Sanders also explained that with respect to multiple punishment, three previous decisions have held that the use of the section 12022.53, subdivisions (c) and (d) enhancements in a murder case do not amount to multiple punishment: People v. Hutchins (2001) 90 Cal.App.4th 1308, 1314 (Hutchins); People v. Myers (1997) 59 Cal.App.4th 1523, 1529; and People v. Ross (1994) 28 Cal.App.4th 1151, 1157–1159. (Sanders, supra, 111 Cal.App.4th at p. 1375.) The Sanders court said: “‘[S]ection 654 does not bar imposition of a single firearms use enhancement to an offense committed by the use of firearms, unless firearms use was a specific element of the offense itself. Indeed, where imposition of a firearms use enhancement is made mandatory notwithstanding other sentencing laws and statutes, it is error to apply section 654 to stay imposition of such an enhancement.’” (Sanders, supra, at p. 1375, quoting Hutchins, supra, at p. 1314.)
We agree with the decision in Sanders.
Further, the recent decision in People v. Palacios (2007) 41 Cal.4th 720 (Palacios), supports the conclusion that section 654 presents no bar to the imposition of a 25 years to life term for the discharge of the firearm. In that case, the California Supreme Court held that in section 12022.53, the Legislature evidenced an intention to create a sentencing enhancement “unfettered by section 654.” (Palacios, supra, at pp. 729, 733.) Further, the Supreme Court cited Hutchins, supra, 90 Cal.App.4th 1380 and Sanders, supra, 111 Cal.App.4th 1371 with approval to support the court’s conclusion that the legislative intent underlying section 654 is no bar to the use of a section 12022.53 enhancement. (Palacios, supra, at pp. 732–733.)
C. Apprendi
Appellant makes an Apprendi argument that is difficult to discern. He appears to be asserting that in the aftermath of Apprendi, discharge of a firearm enhancements (§ 12022.53, subds. (c) & (d)) do not apply if the underlying offense and the enhancement have several identical elements.
Apprendi holds that the imposition of a sentence enhancement, other than a prior conviction, which increases the sentence beyond the prescribed statutory maximum, must be based on jury findings made beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 476.) The Court’s reasoning was as follows: The federal Constitution requires the elements of a crime to be proved beyond a reasonable doubt because they expose the defendant to punishment; likewise, the elements of a sentence enhancement must be proved beyond a reasonable doubt if there is exposure to increased punishment. (Apprendi, supra, at pp. 474–476, 482–484.)
Appellant’s argument appears to be an effort to raise the same claim made by the defendant in People v. Izaguirre (August 16, 2007, S132980) ___ Cal.4th ___ (Izaguirre).
In Izaguirre, the defendant argued that under Apprendi, conduct enhancements are treated like offenses for purposes of fundamental due process, including the right to jury trial and proof beyond a reasonable doubt. Izaguirre claimed that the firearm-related enhancements alleged and found true under the murder and attempted murder counts were necessarily included within the offense of first degree, drive-by shooting murder, and that they must be struck under the multiple conviction rule, even though they are not necessarily included offenses, and whether or not they were actually imposed as punishment at sentencing. (Izaguirre, supra, ___ Cal.4th ___ at p. ___ [p. 7].)
In Izaguirre, the court rejected this claim. It held that the principles of Apprendi were satisfied because the firearm-related enhancements were submitted to a jury and found true beyond a reasonable doubt. (Izaguirre, supra, ___ Cal.4th ___ at p. ___ [p. 6].)
Further, the court pointed out that an enhancement is by definition “‘an additional term of imprisonment added to the base term’” (Izaguirre, supra, ___ Cal.4th ___ at p. ___ [p. 10].) For that reason alone, the enhancement cannot be equated with an offense. (Ibid.) The court also distinguished the exception to section 954 set out in People v. Pearson (1986) 42 Cal.3d 351 and explained that the exception in People v. Pearson was “specifically addressed to convictions of necessarily included offenses in a unitary proceeding that could lead to improper multiple punishments in contravention of section 654, not multiple enhancements expressly authorized under other sentencing provisions.” (Izaguirre, supra, at p. ___ [pp. 9–10].) The court said that rather, the rule in People v. Reed (2006)38 Cal.4th 1224, controls, i.e., enhancements are not considered when applying the multiple conviction rule to charged offenses. (Izaguirre, supra, at p. ___ [p. 10].)
D. The Other Claims
Appellant makes the further argument that the enhanced punishment violates the double jeopardy clause. Generally, “[d]ouble jeopardy precludes reprosecution for an offense of which a defendant has been acquitted or to which jeopardy has otherwise attached. . . .” (People v. Davis (1995) 10 Cal.4th 463, 514, fn. 10; see also Illinois v. Vitale (1980) 447 U.S. 410, 415 [three guarantees of double jeopardy clause: no second prosecution for same offense after acquittal; no second prosecution for same offense after conviction; no multiple punishment for same offense].)
The fact that two criminal statutes proscribe the same conduct “does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes.” (Missouri v. Hunter (1983) 459 U.S. 359, 368–369 [finding no double jeopardy for violating first degree robbery and commission of any felony through use of a deadly or dangerous weapon].) “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the Legislature intended.” (Id. at p. 366.) The question is one of legislative intent; where the Legislature makes clear its intent to subject a defendant to conviction and sentence under both statutes, such cumulative punishment under several statutes in a single trial is permissible. (Ibid.) As stated in Palacios, the Legislature has made clear its intention that the firearm enhancement is mandatory and is to be imposed consecutively to the punishment for the underlying offense.
The doctrine of collateral estoppel would bar the relitigation of an issue raised in an earlier action. (People v. Davis, supra, 10 Cal.4th at p. 514, fn.10.) But the imposition of a term for the underlying offense and for the discharge of a firearm involves neither a finding from an earlier action, nor relitigation. Consequently, this doctrine does not apply to prevent imposition of the consecutive term for the enhancement.
Appellant argues that the sentence he received violates due process because it is “fundamentally unfair to impose . . . two life sentences for doing but one wrongful act merely because it is labeled both a ‘crime’ and a ‘sentencing enhancement.’” There is no authority for the proposition that the federal due process clause serves the same function as this state’s multiple punishment provision in section 654. The decision in United States v. Oppenheimer (1916) 242 U.S. 85, 87-88, is not on point. That decision considers reprosecution before jeopardy attaches, but after a final judgment of acquittal on the merits on a collateral matter that is by law designed to bring a prosecution to a halt. (Id. at pp. 87–88.)
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.
During their testimony, Detective Schulze and H. had looked at a number of photographs obtained during the March 16, 2006, seizures at SBS residences. They identified the various SBS gang members depicted, and H. explained that the youths were members of the “Little Wicked Surenos,” an SBS clique. “Krook” or appellant was depicted, as were “Mugsy,” the Sifuentes brothers, “Largo,” and other youths. The gang members displayed gang tattoos and gang hand signs and struck poses with firearms.
Later, when H. decided to enter a plea, H. made an additional recorded statement to the prosecutor about the events of the shooting. That statement was not used during trial.