Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County No. RIF130834, W. Charles Morgan, Judge.
Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant Jessie Junior Gonzalez.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant Gabriel Daniel Morales.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Jessie Junior Gonzalez and Gabriel Daniel Morales (collectively appellants) were charged with robbery (Pen. Code, § 211; count 1) and street terrorism (§ 186.22, subd. (a), with the robbery allegedly committed for the benefit of the MD 13 criminal street gang. Gonzalez was also charged with misdemeanor sexual battery (§ 243.4, subd. (a); count 3), and it was alleged Morales had served two prior prison terms (§ 667.5, subd. (b)).
All further undesignated statutory references are to the Penal Code.
On February 8, 2007, a jury found Gonzalez and Morales guilty of robbery and street terrorism, and convicted Gonzalez of the lesser included offense of simple battery. The jury deadlocked on the criminal street gang enhancement and the court declared a mistrial. On November 6, a second jury found true the gang enhancement allegation related to the robbery conviction.
At sentencing, the trial court struck Morales’s two prior prison term allegations and sentenced both defendants to a total prison term of 13 years, the midterm of three years for robbery, plus 10 years for the gang enhancement. Sentence on the street terrorism conviction was stayed pursuant to section 654.
Morales and Gonzalez jointly challenge the trial court’s decision to advise the second jury that they had been convicted of robbery and street terrorism in a separate trial, the court’s failure to limit admission of gang expert testimony, and the sufficiency of the evidence to support the true finding on the gang enhancement. Morales argues his attorney rendered ineffective assistance of counsel by failing to object to the admission of witness intimidation evidence on grounds it was irrelevant, and he challenges the sufficiency of the evidence to prove he aided and abetted Gonzalez in the commission of the robbery. We conclude none of appellant’s contentions has merit and affirm the judgment.
I
FACTS
On New Years’ Eve 2005, Leah Timme and Brittanie Evans attended a party together. They drank beer during the six hours they were at the party. At approximately 3:30 a.m. on January 1, they decided to leave the party and rendezvous at a friend’s house. During the ride, Evans argued with someone in the car, and she later got out of the car and walked away. Concerned for her friend’s safety, Timme also got out of the car and walked with Evans to a nearby convenience store.
As Timme and Evans walked along a street an older model white Cadillac drove by them. One of the occupants of the car said something to the women through the open driver’s side window. Evans wanted to smoke some marijuana she had with her and she asked the driver of the Cadillac if he had any rolling papers. The driver did not directly respond to Evans’s question, but made some suggestion to the effect that Evans and Timme should get into his car. Timme told Evans to stop talking and come back to the sidewalk. When Evans turned around, a male passenger in the Cadillac jumped out of the car, walked over to Timme and Evans, and demanded, “Give me all you have.”
Evans quickly ran away, but Timme was unable to move. She held out her purse. The man grabbed her purse and her “privates” outside of her clothing. The driver told him to get back into the car and he did. Once the passenger was back inside the Cadillac, the driver drove the car away.
Timme called the police. Riverside Police Officer Marco Ortiz met Timme at the convenience store. Timme told the officer what had happened. She described both the driver and passenger of the Cadillac as Hispanic males. She said that the driver wore a “wife-beater” tank top, and that he had tattoos on his muscular arms and had a shaved head. The passenger, and the man who had taken her purse, had big ears and wore a black hat, white shirt, sweatshirt and dark jeans.
Riverside Police Detective Steve Shumway prepared six-pack photographic lineups, one each for Morales and Gonzalez. Timme positively identified Morales as the driver of the Cadillac and Gonzalez as the one who took her purse and touched her privates. Investigating officers determined that a white Cadillac had been stopped for a traffic violation less than one hour before the robbery. The officers who detained the car identified Morales as the driver and Gonzalez as the front seat passenger at the time. A week after the robbery, Morales and Gonzalez were again stopped in the white Cadillac. This time, Gonzalez was the driver and Morales was sitting in the back seat.
At trial, Timme testified that before trial she had received three telephone calls from someone who called herself “Diana” and claimed to know Gonzalez. Although Diana refused to give Timme any specific information, she did tell Timme that Gonzalez had nothing to do with the crime, that he had not even been out of the house that night, and that Timme had identified the wrong person. Diana and another woman identified on the telephone only as “Marylou” suggested Timme make a statement over the telephone to Gonzalez’s attorney and “it would be taken care of.” The telephone calls caused Timme to fear for her safety and the safety of her family. She also admitted that the calls affected her desire to testify at trial.
Riverside Police Detective Gary Toussaint testified as the prosecution’s gang expert at the first trial. He provided information about the Mad Down Locos (MD 13) criminal street gang, described the types of tattoos members of the gang commonly wear, and stated that one of the gang’s primary activities was committing robberies. He also testified Gonzalez and Morales had several tattoos indicative of MD 13 membership, and that they were documented MD 13 gang members. Based on the fact that Gonzalez and Morales were MD 13 gang members, who had committed a crime that was one of the gang’s primary activities, Toussaint opined that they had committed the robbery for the gang’s benefit.
Defense Evidence
Marylou Marroquin testified that she had contacted Timme in the course of her investigation on Gonzalez’s behalf at the suggestion of someone named Diana, but she denied trying to intimidate Timme and claimed that she made no threats. She said that Timme refused to meet with her, and that she said she wanted to contact an attorney. Timme did talk to Morales’s investigator. Consistent with her earlier description of Gonzalez, Timme described the man who took her purse as a muscular Hispanic male in his 20’s with big ears, tattoos, a shaved head, a “wife-beater” tank top, and a hooded sweat shirt.
Second trial
Although the first jury convicted Morales and Gonzalez of robbery and active participation in a criminal street gang, or street terrorism, they deadlocked on the gang enhancement allegation. The trial court denied a defense motion to dismiss the gang enhancement and permitted the prosecution to retry the truth of this allegation in a second proceeding.
The majority of prosecution witnesses testified at the second trial and in conformance with their earlier testimony. However, the prosecutor called a different gang expert at the second trial, Riverside County Sheriff’s Deputy Scott Impola. Impola, a 15-year veteran of the Riverside County Sheriff’s Department and member of both the California and Riverside County Gang Investigators Associations, testified that he had received approximately 20 hours of training on criminal street gangs at the sheriff’s academy, attended numerous seminars on the topic over the ensuing years and provided training to other officers, and that he had participated in over 300 criminal investigations involving various gangs, including the execution of search warrants, with approximately 12 criminal investigations involving MD 13 alone. When the instant crimes were committed, Impola was a member of the Riverside County gang intelligence unit. As a result, he frequently came into contact with members of various criminal street gangs and other officers working in the field.
Impola explained MD 13 is a criminal street gang of long-standing in Riverside County, with over 41 documented members claiming an area in the south side of Riverside that runs from Van Buren Avenue to California Street and across to Jones Street. The instant robbery was committed within MD 13’s claimed territory. Although the gang began as a tagging crew, it started to have ongoing feuds with other gangs and turned more violent over the years. Sometime in the early 2000’s, various MD 13 gang members were sentenced to prison, and the formerly multiracial gang became somewhat segregated into a primarily Hispanic criminal street gang.
Impola testified that members of MD 13 adopt some “crazy acronyms,” such as Mass. Destruction Kings, or Mob Dat Kills, or Mad Down Krazies (MDK), when referring to their gang in graffiti or tattoos. Impola stated that the gang has identifiable signs and symbols, i.e., MD, MDL, MDLO, MDLS, and the Roman numerals for 13 and 134, which gang members use in graffiti and tattoo art.
Impola testified that gang members prefer to commit crimes within their own territory, although they will also commit crimes elsewhere. However, he also explained that gang members will commit other crimes whenever the “opportunity comes to them....” He stated that the primary activities of MD 13 are the commission of crimes like robbery, violent assaults, methamphetamine sales, graffiti, and tagging. According to Impola, three MD 13 gang members were arrested and convicted in 2004 for possession of guns and methamphetamine after officers executed a search warrant for a particular residence. In January 2003, three members or associates of MD 13 committed a home invasion robbery.
Impola explained the importance of fear and respect in gang culture, stating that the more feared a gang is, the more respect it garners. He stated that gang members use intimidation to instill fear in others, and he stated that it was important for gang members to commit their crimes in front of each other as a form of verification. He further stated that gang members do not generally commit crimes with nonmembers, and that “[t]he gang has no real purpose other than to commit crimes.” He stated, “The crimes they commit generate property revenue, things for the gang members. It allows... them to live a lifestyle. Also makes them respected within their culture. It makes people fear them, which they seem to enjoy.”
Impola participated in a search of Gonzalez’s residence in April 2006. He testified that he and other officers discovered numerous gang-related items and materials, some bearing Gonzalez’s gang moniker, or nickname, “Troubles.” Impola testified that Gonzalez and Morales have several tattoos that are associated with MD 13 membership, and he identified these tattoos in photographs submitted to the jury. In Impola’s opinion, Gonzalez and Morales were members of MD 13 on January 1, 2006 and they committed the instant robbery for the benefit of MD 13. With respect to his opinion, Impola testified, “the objective of the gang is to commit crimes. They go out and do what they call criming. That’s a slang term for gangs to go out [] together and commit crimes[,] to look for someone to prey on, to look for an opportunity to steal or rob or assault another gang member. It is the objective of the gang to do that in order to gain notoriety. This crime was committed in a public place in [MD 13’s] general territory, and it was a crime [] typical of the offenses that a gang would commit.” Although he conceded the fact that gang members can commit crimes without intending to benefit their gang, and that he had no information that any other MD 13 members was aware of the robbery, Impola nevertheless opined that the instant crimes had benefitted Gonzalez and Morales’s reputation within MD 13 and the gang as a whole.
II
DISCUSSION
Morales and Gonzalez do not challenge the sufficiency of the evidence to support their convictions for robbery and street terrorism, and Gonzalez does not challenge the jury’s determination that he committed simple battery rather than sexual battery. They do contend the trial court improperly told the second jury about the robbery and street terrorism convictions in the second trial on the gang enhancement. Gonzales claims this amounts to the court giving a directed verdict on the enhancement, and both defendants claim the court violated section 1180 and their constitutional right to due process and a fair trial. We find no merit in any of these contentions.
Section 1140 states, “Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.” After the trial court makes the finding that there is no reasonability that the jury can agree, “the cause may be again tried.” (§ 1141.) “Where a jury fails to agree on a verdict it is the same ‘as if there had been no trial on that issue’ [citations].” (Brown v. Municipal Court (1978) 84 Cal.App.3d 180, 183.) Sections 1140, 1141, 1150 and 1151, which require a unanimous verdict of acquittal, do not violate the United States and California Constitutions. (Id. at p. 181.) No constitutional provision expressly or impliedly states a criminal defendant has a right to be acquitted when a jury disagrees. “The practice of discharging a hung jury and declaring a mistrial in a criminal case is long-established in United States and California courts.” (Id. at p. 182.)
Relying on sections 1179 and 1180 , and cases citing these sections, appellants contend the trial court erroneously informed the second jury they had been convicted of robbery and street terrorism. However, as noted above, there had been no verdict on the gang enhancement allegations. Therefore, the court’s instruction regarding the prior convictions (CALCRIM No. 1401) cannot be equated to a directed verdict on any issue in the second trial. (Contrast People v. Kobrin (1995) 11 Cal.4th 416, 423 [issue of materiality withdrawn from the jury during a single trial of perjury].) Thus, the court properly advised the jury that the issues in the second trial were limited to whether appellants committed robbery “for the benefit of, at the direction of, or in association” with MD 13, and whether they had the intent to promote criminal conduct by members of the gang when committing these crimes. (§ 186.22, subd. (b)(1).)
Section 1179 defines a new trial as “a reexamination of the issue in the same Court, before another jury, after a verdict has been given.”
Section 1180 states, “The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict or finding cannot be used or referred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the accusatory pleading.”
Gang Expert Testimony
Following the first trial, appellants filed a motion for new trial, arguing the gang evidence introduced in the first trial was insufficient to warrant the admission of gang evidence at the second trial. Relying on People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), appellants contend the trial court should have excluded gang evidence under Evidence Code section 352, and the court’s denial of their motion for new trial must be reversed. They also contend the prosecution’s gang expert’s testimony exceeded the bounds of expert testimony by including evidence of appellant’s subjective intent.
Appellants’ reliance on Albarran, supra, 149 Cal.App.4th at p. 214, is misplaced. In Albarran, the defendant was convicted of offenses stemming from his and another person’s shooting into a house during a birthday party, and the jury found true a gang enhancement allegation. (Id. at p. 217.) The defendant filed a motion for new trial, asserting that insufficient evidence supported the jury’s finding, and that a new trial was warranted on all charges and enhancements because the gang evidence was otherwise irrelevant. (Id. at pp. 217, 222.) The trial court granted defendant’s motion with respect to the gang enhancement, but denied the motion as to the underlying charges because the court believed the gang evidence was relevant to the defendant’s motive and intent on those charges. (Ibid.)
The appellate court reversed the trial court’s ruling after finding that the case before it “presente[d] one of those rare and unusual occasions” where the error was of federal constitutional dimension. (Albarran, supra, 149 Cal.App.4th at p. 232.) The court went on to state that the admission of certain gang evidence was extremely prejudicial and rendered defendant’s trial fundamentally unfair after noting that the gang expert conceded he was unsure if the shooting was gang related. (Id. at p. 227.) The reviewing court then determined the evidence was insufficient to prove the crimes were committed with the intent to gain respect, in that there was no evidence that a gang rivalry might have been involved or that the gang had claimed credit for the crimes. (Ibid.) Additionally, even if evidence of gang membership was relevant, the evidence concerning a threat to police officers, references to Mexican Mafia involvement, and evidence identifying other gang members and unrelated crimes was extremely prejudicial. (Id. at pp. 227- 228.)
However, in the instant case, not only did the underlying crime take place in MD 13’s claimed territory, it was committed by two MD 13 gang members, who sported shaved heads and gang-related tattoos, and had recently committed various other criminal offenses while driving around together in gang territory. Although the first jury could not reach a verdict on the gang enhancement, appellants fail to demonstrate that the jury’s failure to reach a verdict alone automatically precludes the admission of gang expert testimony at a second trial. Therefore, we conclude the court correctly denied appellants’ motion to grant a new trial or to exclude gang evidence at the trial of the gang enhancement.
Appellants also argue Impola improperly testified as to their subjective intent. They rely on selected exchanges between the prosecutor and the expert witness, which have been taken out of context to make this assertion. At trial, defense counsel argued the prosecutor posed an improper hypothetical question because he “parse[d]” the two elements of the enhancement. But it is clear from a reading of the expert’s testimony as a whole that the prosecutor’s hypothetical questions were based on the evidence adduced at trial.
In one instance, the prosecutor questioned Impola’s basis for his expert opinion that the crime was committed for the benefit of MD 13. The prosecutor asked, “Which individuals are we talking about?” When Impola clarified that he was referring to Gonzalez and Morales, the prosecutor asked, “Is your opinion different at all as to either one of them in how it benefits the gang?” Impola’s response to this question, “No. They work in conjunction to commit the crime[,]” drew a defense objection as calling for speculation. The court did not specifically rule on the objection, but told the jury, “Well, all right. So long as it’s understood that this is opinion, it can be accepted for that.”
There is one exception. The prosecutor asked how it benefitted a gang “[i]f [a gang member] committing the assault says anything openly about gangs.” Impola replied, “It, again, creates fear in the area of gang members. They can intimidate, based on their looks and things like that. I had investigations where a gang member was going in and he was robbing [¶]... [¶] [A]nd he never used a weapon. And he was not a very big guy. And I asked him, How did you accomplish this? [¶] And he said, ‘My tattoos are my weapons.’ [¶] He had tattoos all over his neck and side of his head and people were scared of him. And they do not necessarily have to know which gang they’re assaulted by to know that they have been assaulted by... [a] gang member in that area.” Defense counsel objected to the hypothetical on Evidence Code section 352 grounds, but the court overruled the objection.
Generally, an expert may provide opinion testimony on the basis of facts assumed to be true that are given in the form of a hypothetical question. (People v. Gardeley (1996) 14 Cal.4th 605, 618.) “Such a hypothetical question must be rooted in facts shown by the evidence[.]” (Ibid.) “‘There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case.’” (People v. Valdez (1997) 58 Cal.App.4th 494, 507.) Thus, in People v. Gardeley, supra, 14 Cal.4th at p. 619, “the trial court properly allowed expert opinion concerning whether a particular incident was ‘gang-related activity’ and whether the primary purpose of a particular gang was to commit specific offenses.” (People v. Valdez, supra, 58 Cal.App.4th at p. 508.)
“The 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.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371; Evid. Code, § 801.) Such evidence is admissible even though it encompasses the ultimate issue of the case.” (People v. Olguin, supra, 31 Cal.App.4th at p. 1371.) Indeed, the case defendant primarily relies upon, People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), holds that a gang expert may testify to an opinion concerning the motivation for a crime and “whether and how a crime was committed to benefit or promote a gang.” (Id. at p. 657; accord People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)
To the extent appellants rely on In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.) and Killebrew, supra, 103 Cal.App.4th at page 655 their reliance is misplaced. Although the court in Frank S. held that “the expert’s testimony regarding the minor’s specific intent to ‘promote, further or assist’ in criminal conduct by gang members (§ 186.22, subd. (b)(1)) exceeded ‘the type of culture and habit testimony found in the reported cases[,]’” we believe this case is distinguishable on its facts. (In re Frank S., supra, 141 Cal.App.4th at p. 1197, quoting Killebrew, supra, at p. 654) The California Supreme Court explained, Killebrew “merely ‘prohibit[ed] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.’” (People v. Gonzalez (2006) 38 Cal.4th 932, 946, italics added.) As the Gonzalez court noted, Killebrew “is somewhat unclear” as to whether the expert spoke of the defendants’ knowledge, or that of a hypothetical person. (People v. Gonzalez, supra, 38 Cal.4th at p. 946, fn. 3) “Obviously, there is a difference between testifying about specific persons and about hypothetical questions. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons.” (Ibid.) We conclude the appellants have overlooked this critical difference.
Sufficiency of the Evidence to Support the Jury’s True Finding on the Gang Enhancement
Appellants challenge the sufficiency of the evidence to support the second jury’s true finding on the gang enhancement allegations. They do not challenge the finding that MD 13 is a criminal street gang, or that they are active participants in this gang, but they do claim the evidence failed to show the robbery and street terrorism convictions were gang related, as opposed to crimes committed for personal gain. We disagree.
A gang enhancement under section 186.22, subdivision (b)(1) requires proof that (1) the defendant committed a felony; (2) the felony was committed for the benefit of, at the direction of, or in association with any criminal street gang; and (3) the felony was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1); see In re Ramon T. (1997) 57 Cal.App.4th 201, 207 & fn. 3.) Further, it is well settled that the prosecution may rely on expert testimony to establish the required elements of the gang enhancement. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) 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....” (Evid. Code, § 801, subd. (a); see also People v. Gardeley, supra, 14 Cal.4th at p. 617.) Gang experts may testify regarding certain activities of the gang even though they may parallel the elements of the criminal street gang allegation. (People v. Valdez, supra, 58 Cal.App.4th at p. 506.) The expert also may testify concerning whether the defendant acted for the benefit of a gang, even though it is an ultimate factual issue for the jury to decide, because these are matters far beyond the common experience of the jury. (Id. at pp. 508-510.) An expert’s testimony is also admissible concerning the existence, size, or composition of a gang, an individual’s membership in, or association with, a gang; the primary activities of a specific gang; the motivation for a particular crime; whether a crime was committed to benefit or promote a gang, and rivalries between gangs, gang-related tattoos; and gang colors or attire. (People v. Killebrew, supra, 103 Cal.App.4th at p. 657.)
Here, contrary to appellants’ assertions, there was substantial evidence they intended to “promote, further, or assist in any criminal conduct” of the MD 13 gang by committing a robbery, and that they committed this crime with the intent to promote the ongoing criminal activity of the MD 13 gang. (§ 186.22, subd. (b)(1); People v. Ferraez (2003) 112 Cal.App.4th 925, 929-930 [the substantial evidence standard of review is applied to gang enhancement allegations].) Gonzalez and Morales were active members of MD 13 at the time. They were seen together in the same car cruising through MD 13 territory, and they had been stopped previously for Vehicle Code violations prior to and after the instant crimes, which Impola stated could mean they were looking for crime victims together. Impola explained that gang members prefer to commit crimes in their own territories to intimidate the local residents and to ward off rival gang members and to enhance the gang’s reputation and their own. He also explained that a robbery committed by gang members that dress the part and have tattoos is also intimidating. Impola opined that Gonzalez committed the robbery, which occurred in the middle of a street and in front of Morales, and that this crime benefitted MD 13 for the reasons stated.
We also find People v. Morales (2003) 112 Cal.App.4th 1176 (Morales) instructive. In that case, the defendant and two fellow gang members, Flores and Moreno, robbed two victims while visiting a house where the victims were also visiting. (Id. at pp. 1179-1180.) Given a hypothetical detailing the underlying facts, the prosecution’s gang expert testified the crimes were committed for the benefit of, at the direction of, and/or in association with a criminal street gang. (Id. at p. 1197.) The expert explained that the gang provided a “‘ready-made manpower pool,’” and one member could count on the loyalty of the others to “‘watch his back.’” (Ibid.) Also, “the very presence of multiple gang members would be intimidating.” (Ibid.) The gang expert also explained that the crimes would benefit individual gang members by earning them notoriety in their gang and would benefit the gang “with notoriety among rival gang members and the general public.” (Ibid.)
The jury in Morales returned true findings on the street gang enhancements. On appeal, the defendant argued that there was insufficient evidence he had the specific intent to promote or assist criminal conduct by gang members. (Morales, supra, 112 Cal.App.4th at p. 1198) The appellate court disagreed and concluded “that defendant’s intentional acts, when combined with his knowledge that those acts would assist crimes by fellow gang members, afforded sufficient evidence of the requisite specific intent.” (Id. at pp. 1198-1199.) The court further explained, “[S]pecific intent to benefit the gang is not required. What is required is the ‘specific intent to promote, further, or assist in any criminal conduct by gang members... ’” Here, there was evidence that Gonzalez intended to commit a robbery, that he intended to commit it in association with Morales, that they were both members of MD 13, and that they intended to benefit or further their gang’s criminal enterprise.
Therefore, we conclude the evidence is sufficient to support a finding that appellants had the requisite intent to assist the criminal conduct of their fellow gang members. We simply find no merit in appellants’ fixation on missing gang indicia. Neither the fact that Gonzalez failed to reference MD 13 during the robbery, either by speaking or showing a gang hand sign, nor the fact that appellants claim they did not wear gang colors, committed the crime in an area without graffiti, and never claimed the crime was a retaliatory act against a rival gang member, precludes a finding that the offenses were gang related, given all the other circumstances indicative of gang activity.
Insufficient Evidence Morales Aided and Abetted in the Robbery
Morales contends insufficient evidence supports the jury’s conclusion he aided and abetted Gonzalez. We disagree.
Section 31 defines principals as “[a]ll persons concerned in the commission of a crime... whether they directly commit the act constituting the offense, or aid and abet in its commission....” An aider and abettor is one who acts “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, encouraging or facilitating the commission of” an offense. (People v. Beeman (1984) 35 Cal.3d 547, 560.) Here, we conclude there was sufficient evidence Morales intended to aid and abet the robbery Gonzalez committed. We rely on the following facts to reach this determination: (1) Gonzalez and Morales were driving the same car in the same area for some period of time, (2) they were together when traffic violations occurred, (3) the robbery occurred right in front of Morales, and (4) Gonzalez and Morales were members of the same criminal street gang. Therefore, the jury’s determination Morales knew of Gonzalez’s criminal purpose and that he intended to assist his fellow gang member in the commission of a crime is supported by substantial evidence. (Morales, supra, 112 Cal.App.4th at p. 1198.)
Ineffective Assistance of Counsel
The prosecution introduced evidence of the telephone calls from Diana to Timme as evidence of witness intimidation and Gonzalez’s consciousness of guilt. Morales’s trial counsel objected on grounds the admission of this evidence would violate his Sixth Amendment right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and Evidence Code section 352. The trial court overruled counsel’s objections, and the evidence was admitted at trial.
Morales does not challenge the court’s ruling with respect to the Crawford line of cases, but he does challenge the court’s ruling under Evidence Code section 352, and he asserts his trial attorney should also have objected to this intimidation evidence on grounds it was irrelevant. (Evid. Code, § 210.) Gonzalez joined Morales’s contention.
Generally, absent a specific evidentiary objection at trial, the issue is forfeited on appeal. (Evid. Code, § 353.) Consequently, appellants assert their attorneys violated their constitutional right to effective assistance of counsel by failing to also object on irrelevance grounds, citing Evidence Code sections 210, 350, 351. We find no merit in their contention.
Evidence Code section 210 states, “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Evidence Code section 350 provides, “No evidence is admissible except relevant evidence.” And, Evidence Code section 351 states, “Except as otherwise provided by statute, all relevant evidence is admissible.”
A claim that counsel was ineffective requires a showing by a preponderance of the evidence of objectively unreasonable performance by counsel and a reasonable probability that but for counsel’s errors, the defendant would have obtained a more favorable result. (In re Jones (1996) 13 Cal.4th 552, 561.) The defendant must overcome presumptions that counsel was effective and that the challenged action might be considered sound trial strategy (ibid) and the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Majors (1998) 18 Cal.4th 385, 403; People v. Pope (1979) 23 Cal.3d 412, 426, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10; overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Here, appellants fail to establish their trial attorneys committed prejudicial error.
Gonzalez contends evidence of the telephone calls between Timme, Diana, and Marylou Marroquin, his defense investigator, were not relevant because Timme “did not refuse to testify nor did she change her testimony.” Thus, he argues Timme’s credibility was a “non-issue.” We disagree.
“Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness’s fear is likewise relevant to her credibility and is well within the discretion of the trial court. [Citations.]” (People v. Burgener (2003) 29 Cal.4th 833, 869.)
Gonzalez also argues that the prosecution failed to establish any link between him and the telephone calls. However, “‘It is not necessary to show threats against the witness were made by the defendant personally, or the witness’s fear of retaliation is directly linked to the defendant for the evidence to be admissible. [Citation.]’ [Citation.]” (People v. Olguin, supra, 31 Cal.App.4th at p. 1368.) Moreover, Diana indicated that she knew Gonzalez, and she intimated a knowledge of the contents of Timme’s purse. Thus, a reasonable inference is that Diana not only knew Gonzalez, but that she also had more that inconsequential contact with him. Under such circumstances, evidence of witness intimidation is admissible. (People v. Hannon (1977) 19 Cal.3d 588, 599.)
With respect to Morales, the prosecutor explained that the witness intimidation evidence showed only “consciousness of guilt on the part of [] Gonzalez.” Therefore, whatever the effect this testimony had on Gonzalez’s case, there is no evidence the jury linked the witness intimidation evidence to Morales. Morales also contends the trial court abused its discretion by finding witness intimidation evidence more probative than prejudicial. (Evid. Code, § 352.) Morales claims the jury drew improper inferences from this evidence, but there is nothing in the record to support his assertion. Here, the evidence concerning the telephone calls to Timme was relevant to her credibility and Gonzalez’s consciousness of guilt, and Morales fails to convince us that the admission of this evidence resulted in a miscarriage of justice in his own case. (Evid. Code, § 353.)
Evidence Code section 353 provides, “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J., ARONSON, J.