Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. FF407351
McAdams, J.
A jury convicted defendant of premeditated attempted murder. (Pen. Code, §§ 664, subd. (a), 187, 189.) It also convicted defendant of the willful discharge of a firearm from a vehicle (§ 12034, subd. (c)), and found that he committed both offenses for the benefit of a street gang, and personally and intentionally discharged the firearm during the commission of the attempted murder. (§§ 12022.53, subd. (c), 186.22, subd. (b)(1)(C).) The court sentenced defendant to a total prison term of 35 years to life.
Unless otherwise indicated, all further statutory references are to the Penal Code.
On appeal, defendant contends that the trial court abused its discretion to his prejudice and deprived him of an opportunity to present his defense of misidentification when it refused to permit Dr. Robert Shomer to testify as an expert on the psychological factors affecting eyewitness identification. He also argues that the trial court erroneously denied his motion for a pre-trial lineup, that the prosecutor committed prejudicial misconduct in closing argument, that trial counsel was ineffective for failing to object to the misconduct, that substantial evidentiary support for the gang activity enhancement is lacking, and that the abstract of judgment must be amended to delete the 10-year term for the gang enhancement. The Attorney General concedes the last point. We will modify the judgment to correct the sentence and, as modified, affirm.
STATEMENT OF FACTS
The Shooting
On Sunday, August 1, 2004, at approximately 1:00 p.m. Avelino Hernandez-Perez, who had emigrated to the United States from Mexico in 1999, was drinking beer with his friends in the carport area in front of the Gilroy apartment complex in which he then lived. He was wearing a shirt with yellow stripes, blue jeans and belt with decorative markings and a large belt buckle. He was crouching in a kneeling position similar to a catcher’s on the driver’s side of a Silverado truck parked in the carport.
Mr. Hernandez-Perez noticed a Yukon drive past them on Forest Avenue. The car made a U-turn and pulled into the driveway of the apartment complex. The driver kept looking at them. The driveway was a dead-end, and the driver of the Yukon turned around and drove back the way it had come. On his way out of the driveway, the driver of the Yukon stopped approximately six feet away from him, lowered the driver’s side window and said, “Hey, where are you from,” in English.
At trial, Mr. Hernandez-Perez variously described the vehicle as a Chevy Tahoe or a Yukon, but he identified People’s exhibit No. 11 as a picture of the Yukon from which the shots were fired.
The driver wore a red stocking cap pulled down to just above his eyebrows. Mr. Hernandez-Perez responded in Spanish that he was “going to find someone who spoke English because [he] didn’t speak English,” and as he spoke the driver produced a handgun and started shooting.
Mr. Perez identified People’s exhibit number 10, a red stocking cap, as “just like the one [he] saw on the individual’s head.”
As soon as Hernandez-Perez saw the gun he stood up and ran, seeking cover under the Silverado truck. But immediately upon pulling out the gun, the driver fired off three or four shots, and the first bullet struck Mr. Hernandez-Perez in the side, in the flank area. The second bullet went into the hip and came out of his upper thigh. Then the Yukon made a left turn out of the driveway onto Forest Street and drove off towards Leavesley.
The only occupant of the Yukon was the driver; there was no one else in the front seat area. Hernandez-Perez did not see anyone in the backseat, but the windows were tinted black and he could not see in.
Paramedics arrived at 1:30 p.m., about 25 minutes after the shooting. Mr. Hernandez-Perez was in the hospital for four days. When the police came to his house to see him 15 days later, he was still in pain and could not move without great discomfort. He needed a crutch to walk for a month after he was shot. At the time of the trial, he still had numbness in the area of his wounds and a throbbing pain when he lifted something heavy.
Gilroy Police Officer Joseph Deras interviewed Mr. Hernandez-Perez at the hospital. He showed Mr. Hernandez-Perez a photographic lineup two different ways. The first time, he showed Mr. Hernandez-Perez just the pictures. The second time, he used an envelope to cover the top part of the head down to the eyebrows, to simulate a cap, because Mr. Hernandez-Perez described the shooter as wearing a red beanie cap. Mr. Hernandez-Perez did not identify defendant’s picture either time.
Officer Deras was called by the defense.
Defendant’s Whereabouts on August 1, 2004
Rebecca Benavidez knew defendant in August 2004 because he was living with her daughter, Maggie. Maggie, defendant, and defendant’s brother, Adam, had helped her move back to Gilroy from Southern California. Defendant had breakfast at her apartment on Murray Avenue, across from San Ysidro Park, on the morning of August 1, 2004. After breakfast, defendant left in her daughter’s Yukon to get the oil changed. She believed he was alone. Later than morning, her daughter left in her (Benavidez’s) car.
Defendant returned to Benavidez’s apartment around noon or 1:00 p.m., looking for her daughter. When she told him that her daughter was not there, he left again. At some point after he left, Maggie returned. About 45 minutes after defendant left, she heard police sirens and went outside. She saw defendant running by, about 25 feet away from her. She looked out to Murray Avenue and saw her daughter’s truck parked on the side of the road with the door open and the stereo on.
In-court Identification
At trial, Mr. Hernandez-Perez identified defendant as the driver of the Yukon who shot him. He could not remember what the driver was wearing on the top portion of his body because “[i]t all happened so fast.” He “barely remember[ed]” that at about 7:30 p.m. that night at the hospital, the police showed him a series of six photos. He had been given some painkillers and he was “a little unconscious.” However, at trial, on cross-examination, he recalled that he twice picked out the picture of the individual who shot him: the man depicted in the photograph number 2 (defendant). He made it clear to the police that photo number 2 was of the man who shot him “because [he] didn’t want them to press charges against an innocent person.” Mr. Hernandez-Perez testified that his recollection was better at trial than it was on the day he was shot, two and a half years earlier; his memory had not faded at all. He was 100 percent certain of all the things to which he had testified.
Defendant’s Apprehension
At 1:06 p.m., Gilroy Police Officer Mark Tarasco received a call of a drive-by shooting on Forest Avenue. A “B.O.L.” was broadcast for a tan or gold Yukon involved in the shooting. At 1:09 p.m., Officer Tarasco was traveling on I.O.O.F. Avenue just past Forest Avenue when he spotted a gold-colored G.M.C. Yukon go through a stop sign at the intersection of I.O.O.F and Murray Avenues at 30 miles an hour. The Yukon continued traveling on Murray at speeds up to 45 or 50 miles per hour. Officer Tarasco followed the Yukon with his lights and siren on. The Yukon came to an abrupt stop in front of several apartment complexes across from San Ysidro Park. Officer Tarasco’s car stopped behind the Yukon, just as the driver-side door of the Yukon swung open and the driver, identified by Officer Tarasco as defendant, ran out of the car toward the apartment complexes. He was wearing a white tank top and red warm up pants.
Officer Tarasco lost sight of defendant when he jumped over a five or six foot wooden fence in the complex. Tarasco broadcast a description of defendant and his clothing over the radio to other officers in the area. No one else got out of the Yukon.
Officer Tarasco immediately looked in the Yukon. It was a two-seater. No one was hiding in it. In the cargo space behind the second seat, Officer Tarasco found a lunch pail which contained a big-barreled, .44 Magnum revolver wrapped in a red shirt. He also found a red beanie.
Gilroy Police Officer Noel Provost was one of a number of Gilroy police officers who had gathered in the area of Forest Street, I.O.O.F. Avenue and Walnut Lane in response to Officer Tarasco’s broadcast. Gilroy Police Department Communications radioed them that a neighbor had seen the suspect at a house to the left of 305 Walnut Lane. The police conducted a house-to-house search of a quarter-mile area for 1 hour and 49 minutes before finding defendant at 340 I.O.O.F. Avenue. Officers were invited into the house by a teenaged boy. After identifying himself and getting no response at a locked bedroom door, Provost kicked a hole in the door and entered. A bathroom door in the bedroom was also locked. In the meantime, Officer Ryan Hollar had climbed into the bathroom through the window, despite efforts on the part of a person inside the bathroom to prevent him from doing so. The person hiding inside identified himself to Officer Hollar as Leon Martinez. When Officer Provost again announced himself and ordered the suspect to open the door, defendant did so.
In the bedroom, buried under other clothing in a laundry basket that was covered with a cardboard box containing miscellaneous items, police found defendant’s white tank top and red sweat pants.
Police immediately covered defendant’s hands for later gunshot residue testing. He was wearing a short-sleeved T-shirt with a design on the front and blue sweat pants.
Forensic Evidence
Criminalist Steven Dowell, an expert on gunshot residue (GSR), analyzed samples that had been collected from defendant’s hands, a white tank top, and a pair of red sweatpants. He found one highly specific particle of gunshot residue on the sample from defendant’s right hand and two highly specific particles of gunshot residue on the white tank top. A highly specific particle only comes from the primer material of cartridges, meaning that it comes from the discharge of a firearm. The presence of one highly specific particle of gunshot residue on a person’s hand requires an explanation of how it got there. Dowell could not say that “the person discharged the firearm because of the possible ways that the particle could have … arrived on this hand, but … he was somehow associated with an event, the discharge of a primer material.” Dowell explained that the presence of GSR on a person’s hands was consistent with the person firing the gun, but it was equally possible that the GSR on a person’s hand was from having the hand in the area where a gun was fired. He testified: “[I]f I interact with an environment in which there’s gunshot residue, I can collect those particles or transfer those particles to my hands although I didn’t discharge a firearm and I wasn’t near the firearm when it went off but I came into an environment in which there was gunshot residue. Or if someone else touches me who was in that environment or in some way or another touches me they can transfer the particles. So I don’t have to be directly related to the event. I can be unrelated to the event and still collect these particles.”
Criminalist Eric Barloewen, a firearm expert, examined the .44 Magnum revolver recovered from the truck and a fired bullet recovered from the scene of the shooting. He determined that the revolver had fired the bullet.
Barlowoen also processed the revolver for fingerprints by various means including the use of specific wavelengths of light to try to enhance potential ridge details; superglue fuming to bond to the oils in sweat and form a white polymer; a fluorescent dye staining procedure and the traditional black fingerprint powder. He took 12 digital images of the ridge detail revealed by the different enhancement techniques. There were no ridge details on the grip of the gun.
Fingerprint examiner Michael Valverde, an expert in fingerprint comparison and analysis, analyzed photos sent to him by the Crime Lab. The photos contained “ridge detail that was unusable either because it was insufficiently clear or so fragmented that identifications could not be effected even with a named individual and … known fingerprints.” Many of the photos were of the same ridge detail “captured using different techniques, alternate light sources, but the same images were being captured.” He did not document how much ridge detail was not usable “for the purpose of making a fingerprint comparison.” Two images of the same ridge detail on the recovered gun were compared to defendant’s known prints and both images were of the defendant’s left ring finger phalange. Defendant’s fingerprint was found “along the right side of the frame just above the trigger and in front of the trigger.”
Valverde did not find any other usable prints that he could “automate” into the “system” on the gun. He explained that if, after evaluating the print, the fingerprint analyst was not furnished with a named individual for comparison, “we would attempt to automate, is the terminology we use, encode that print whether it’s a palm print or a fingerprint and try to develop a list of candidates for comparison.” In this case, he did not “believe there were any [prints] that were really automatable, which would make them of a lesser quality, and a manual comparison would need to be done.” On cross-examination, Valverde agreed with defense counsel that it was possible that “the other 11 pictures had fingerprints on them that were usable and belonged to somebody other than Mr. Martinez.” It was also possible the other prints belonged to defendant, but without having the name of another person to which the prints should be compared, they remained “usable and unidentified and not automatable.”
Criminalist Opritsa Tudoriu, an expert on DNA analysis extracted six DNA samples from the inside of the forehead area of the red cap recovered from the Yukon. Four of the six samples generated DNA profiles. By comparing the DNA on the cap to the DNA in a vial of blood drawn from defendant, Tudoriu was able to determine that defendant was the sole source of the DNA from one of the areas sampled on the cap, and he could not be excluded as being a possible contributor to the DNA mixtures from the three other areas sampled on the cap. At least three, and maybe more, people contributed DNA to the three samples containing mixed DNA.
Gang Evidence
Gilroy Police Officer Jeff Roccaforte testified as an expert on Hispanic criminal street gangs. According to Officer Roccaforte, there are two main groups of Hispanic criminal street gangs in California, the Norteños and the Sureños, and the geographical dividing line is in Bakersfield. Typically, Hispanics from Southern California are considered Sureños, while those from Northern California are considered Norteños. In Gilroy, there are several Hispanic gangs claiming control of different parts of the city, but the gangs are predominantly affiliated with the Norteños, although there are some Sureño gang members in the city. Norteños and Sureños are rivals, and in the city of Gilroy it is very common for Norteño gang members to attack Mexican nationals, who are considered Sureños, even if they are not gang members. In Northern California, and particularly in the Gilroy area, the line between Sureños and Mexican nationals is blurred because the Sureño gang members in the area are typically Mexican-born Hispanic males or first or second generation Hispanics from Mexico who often speak Spanish only. Norteños claim the letter N, the color red, and the number 14. Sureños claim the color blue and the number 13.
Officer Roccaforte researched police reports and certified court records of crimes involving Norteño gang members in Gilroy, in defendant’s home town of Salinas, and in Monterey County. On May 19, 2001, Paul Zapata, an admitted Norteño gang member, killed Juan Trigueros, a Mexican national who was not a gang member, at the 7- Eleven store on Leavesley Avenue in Gilroy. The victim was wearing a jersey with the color blue on it. The jury convicted Zapata of first degree murder and found that he had committed the murder for the benefit of the gang. This was a very good example of a primary activity of a Norteño criminal street gang. The primary activities of Norteños in the city of Gilroy are murders, attempted murders, assaults and robberies. Several bars in Gilroy cater to Mexican nationals, and several patrons have been robbed by Norteño gang members. Roccaforte knew of several robberies where a Mexican national was strong-armed and robbed of an item of blue clothing, as a sign of power and a show of disrespect to Mexican nationals.
The jury was instructed on the nonhearsay uses of Roccaforte’s testimony as follows. “Ladies and Gentlemen, throughout the course of the testimony of the detective you’re going to hear matters that are outside of his direct personal knowledge that are being presented to you as the basis of his opinion, and those matters are to be considered by you not for the truth of the matter stated but merely to explain the basis for his opinion.”
Roccaforte located another gang-related murder in Pacific Grove, Monterey County. In that case, a jury convicted Anthony Estrada and Leo Quintos, both self-admitted Norteño gang members, of murder and found that the murder was committed for the benefit of the Norteño criminal street gang. In a third case located by Roccaforte, David Anthony Garcia, a self-admitted Norteño gang member, was convicted of a second degree robbery that was found to have been committed for the benefit of the Norteño criminal street gang.
Based on police department records of contacts between defendant and various police agencies, Roccaforte determined that defendant was a Norteño gang member. For example, in a search of defendant’s bedroom conducted by the Stanislaus County Sheriff’s department in June of 2002, a shotgun was found draped with a red bandana. According to Roccaforte, a red bandana is the Norteño flag. In December of 2003, defendant, wearing a red 49er’s cap, admitted to a Salinas police officer that he had been a Norteño associate for one year. In June of 2000 and in August of 2003, defendant admitted to Monterey County Jail employees that he was a Norteño gang member. In June of 2000 he was also a passenger in a car stopped by Salinas police. A loaded .357 Magnum was found in the car, which was driven by a person “validated” by the Salinas police department as a Norteño gang member. He also twice admitted being a Norteño gang member to police officers in 1998. It was noted that year that he had the number “14” tattooed on his stomach. In 1999, he was arrested wearing a red hat with the word “Salinas” on it and a belt buckle with the number “4” engraved on it; that number is a variation of the number “14” which corresponds to the letter “N”, the fourteenth letter of the alphabet. Defendant still had this tattoo on his stomach when he was in county jail in November of 2004. In Roccaforte’s opinion, defendant was still a Norteño gang member at the time of trial.
In addition, Officer Roccaforte testified about several “kites” that were found in defendant’s cell or on his person while housed at the Santa Clara County jail. A “kite” is a letter written by an inmate in a very tiny hand that is used to deliver information between gang members. For example, one kite had 12 of “The 14 Bonds” – the Norteño constitution – written on it. Another was a roster of active gang members in custody at that time; defendant was listed. Yet another was a incident report addressed to “my felon Ns” (a symbol for Norteños) about a Samoan inmate’s disrespect of a gang member. In it, defendant identified himself as the author by his gang moniker (“Cholio de Salas”) and by his rank as the “overall” in charge of the seventh floor tier at the county jail. The number and content of the kites in defendant’s possession indicated that he was a high-ranking gang member in a position of authority in the jail.
Officer Roccaforte also reviewed the evidence from the case at hand. It was significant that defendant wore a red knit cap at 1:00 p.m. on an August day in Gilroy; it indicated to him that defendant wore the cap not to keep his head warm but to advertise his gang affiliation. He also noted that many Mexican nationals lived in the area of Forest Avenue between Leavesley and Swanston (where the shooting occurred) and that it was an ideal street to drive down if one were looking for a Mexican national. In addition, the victim’s longish hair and the design on his belt buckle could lead a Norteño gang member to believe that the victim was a Sureño or a Mexican national and make him the target of an attack.
The greeting, “Where are you from?” is used by gang members as a challenge. There is no right answer to that question; it means that an assault is going to occur after that phrase is spoken. In Officer Roccaforte’s opinion, the attack on Mr. Hernandez-Perez was committed for the benefit of the Norteño street gang because gang members derive their power from, and thrive on, the fear their violent acts instill in the community.
As previously noted, Officer Joseph Deras testified for the defense. A summary of his testimony is included in chronological order in the statement of the prosecution’s case.
Defendant’s estranged wife testified on his behalf. Maggie was defendant’s girlfriend in August of 2004. She had subsequently married defendant but they were separated at the time of trial. When Maggie returned to her mother’s apartment, she “called defendant to pick [her] up at [her] mom’s.” It seemed as if she talked to him seconds before she heard the police. The next time she saw defendant he was running through her mother’s apartment complex and jumped a fence. He was wearing a white tank top and red sweat pants. At that point she saw the Yukon parked “some feet” away from her mother’s apartment; the motor was running and the music was on.
When defendant left in the morning to get the oil changed, he did not have the green lunch bag, red beanie, or gun that were later found in the truck by police. After Maggie got her truck back from the police, she saw that it had a sticker in the window indicating that the oil had been changed on August 1.
Their relationship had always been an on and off thing, and there were times that defendant would use methamphetamines. During the year and a half prior to August 1, when defendant wasn’t living with her in Gilroy, he was living with his parents in Salinas. When he lived with her, he did not invite individuals to the house who looked to her as if they were Norteño gang members and did not wear a lot of red. She had never seen him with a red knit stocking cap. She had never seen him with a gun. When they went to Los Angeles shortly before defendant’s arrest, they stayed at a hotel with a lot of Sureños. Defendant did not interact with them or appear agitated in their presence.
A few weeks before his arrest, defendant was acting paranoid about the GPS system in the Yukon.
Professor James Hernandez, who teaches criminal justice at the California State University at Sacramento, testified as an expert in gangs. He views “Norteño” and “Sureño” as identities “that people want to hang onto” and as a “precursor to being involved in the gang.” “Gangs are primarily neighborhoods.” There are two key Hispanic prison gangs, the Nuestra Familia, which claims the color red and dominates in Northern California, and the Mexican Mafia, which claims the color blue and dominates in Southern California. These gangs operate in the prisons, but they also have street regiments that operate on the streets and are different from street level gangs. Street level gang members tend to be youngsters in their teens, whereas the prison gang members tend to be older, in their 30’s and 40’s. Membership in a street gang tends to be short term, whereas membership in a prison gang is generally for life. Street gang members join or stay in gangs to avoid getting into fights, for safety and to have a sense of belonging, as in a family. A large number of street gang members are foster children or abused children.
After reviewing all of the police reports, the preliminary hearing transcript and the testimony of Detective Roccaforte, Prof. Hernandez concluded that this case was not necessarily gang related. In his opinion, the tattoo on defendant’s stomach was old and did not indicate current gang membership. The crime itself did not have the hallmarks of a gang statement. He did not consider the wearing of a red hat as such a statement.
The parties stipulated that when defendant was arrested on August 1, 2004, he had methamphetamine in his system.
Rebuttal
Officer Tarasco was recalled and testified that he spoke with Maggie when he waited with the Yukon after the defendant fled from the car. She told him she never heard from defendant after he left her mother’s house at noon.
DISCUSSION
Denial of Motion for Pre-Trial Lineup
The shooting at issue in this case occurred on August 1, 2004. On May 16, 2006, the defense filed a motion to compel a pretrial lineup pursuant to Evans v. Superior Court (1974) 11 Cal.3d 617 (Evans). The prosecutor opposed the motion, arguing that his case was based on circumstantial evidence that defendant was the shooter and that, based on the inability of the victim and his companions to pick defendant out of a photographic lineup on the day of the shooting, he did not think they would identify defendant at trial. The court and the attorneys discussed the possibility that the witnesses would identify defendant at trial, and they agreed that such an eventuality could “cut both ways.” The court denied the motion, ruling as follows. “The court is satisfied, just so the record is complete, that eyewitness identification could become an issue but the Court is satisfied from the totality of the record, and the Court … quarrels with the statement in the declaration that eyewitness identification is a material issue because there is no substantial evidence to establish the defendant as the perpetrator other than eyewitness testimony. First of all, there is no eyewitness testimony from these three that establishes the defendant as the perpetrator. There is evidence that establishes the vehicle of the perpetrator. There is circumstantial evidence that establishes the defendant as the perpetrator based on his connection to the vehicle immediately after the offense; and the other evidence that’s been established by the record, the DNA, the gunshot residue, fingerprints, and the defendant in the vehicle, all of which connects him to the vehicle directly and circumstantially and which connects him to the offense. That there is a reasonable likelihood of misidentification does not seem to have been adequately shown. Combine that with the 21 month delay in bringing the motion from the apprehension of the defendant the court does not believe that there is good cause to order the evidence lineup on the eve of trial. The motion is therefore denied.”
In Evans, our Supreme Court held that “due process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve.” (Evans, supra, 11 Cal.3d at p. 625, fn. omitted; People v. Farnam (2002)28 Cal.4th 107, 182.) In our view, the court did not err in concluding that defendant’s due process rights would not be infringed by denial of a lineup. At the time of the court’s ruling, no eyewitness had identified defendant; the prosecution’s case hinged entirely on the strength of the circumstantial evidence linking defendant to the offense. At that stage of the proceedings, eyewitness testimony would not have tended to resolve the issues in the case, inasmuch as the motion was not made until the eve of trial, 21 months after the shooting. We perceive no error.
Exclusion of Expert Testimony
Defendant contends that the trial court abused its discretion by refusing to permit Dr. Robert Shomer to testify as an expert on factors affecting the accuracy of eyewitness identification, once the victim identified defendant in court, despite his failure to do so at the time of the shooting. Defendant argues that the error deprived him of an opportunity to present his defense that someone else was in the Yukon with him and actually shot Mr. Hernandez-Perez. This violated his federal constitutional right to present a defense, and was not harmless. For the following reasons, we conclude the court abused its discretion in refusing to permit Dr. Shomer to testify. However, we also find that the error did not deprive defendant of his federal constitutional right to present a defense; and the error is harmless beyond a reasonable doubt.
a. Factual Background
Outside the presence of the jury, on the second day of the defense presentation, defendant sought to call Dr. Shomer, as an expert whose testimony sheds light on the “vagaries of eyewitness identification.” (United States v. Wade (1967) 388 U.S. 218, 228.) The prosecutor objected, having filed a memorandum of points and authorities listing several cases in which the trial court’s refusal to permit testimony from an identification expert had been upheld.
Defense counsel made the following offer of proof. He noted that at the time he made his unsuccessful motion for a pre-trial line-up, the prosecutor had indicated that the victim was not expected to make an in-court identification of defendant. Nevertheless, defense counsel had considered the identification of defendant as the assailant a “significant issue” because “the fact that the defendant is in the car after the shooting is not … corroborative evidence of him being the actual shooter.” It was the defense theory that another person was in the Yukon with defendant, and that the other person got out of the vehicle sometime during the three minute interval between the shooting and the police stop, since under normal conditions the distance between the two locations could be traveled in one minute, 16 seconds to two minutes, 20 seconds.
The victim’s identification of defendant in court had caught defense counsel by complete surprise, which he “dealt with by going to an expert witness so that such a dramatic turn of event from being unable to identify, to not only identifying, but now believing that he had made identifications at the time of the event, that needs to be explained to the jury. And the jury needs to get an understanding of how that mechanism could happen, even with a witness who isn’t lying. … This witness may honestly believe that (a) he made an identification back at the time of the shooting. And (b) may honestly believe that Mr. Martinez was the shooter. However, those issues need to be explained to the jury and that’s the purpose of the testimony.”
He had notified the prosecutor as soon as he had made contact with Dr. Shomer. He noted that Dr. Shomer was the same expert whose proposed testimony was the subject of People v. McDonald (1984) 37 Cal.3d 351 (McDonald), the case on which he relied. Dr. Shomer would testify to “the factors of identification.” Dr. Shomer’s testimony would help “the jury to understand how those factors come into play in the course of an identification and allows the jury evidence from which it can understand how the presence of violence, the presence of a weapon, the short duration, the lack of ability to give details of a description and the lack of a[n] identification … shortly after the incident, how those interplay and challenged the identification that was made in court. [¶] You can also disabuse the notion of what the complaining witness testified to which is that his memory was better now than it was at the time of looking at the photo lineups shortly after the shooting.”
Additionally, because the victim gave only a very “weak description” of his assailant as a Hispanic male wearing a red cap, “the doctor would be testifying to all of those different factors. The factor of the time lapse, the factor of the memory not getting better over time. The suggestibility that occurs when the individual comes into court and sees somebody in the court room that they have seen prior pictures of, and how that causes them to believe that what they are seeing is the individual that was involved in the shooting. [¶] These are all matters that are not within the common experience of jurors….”
Finally, with respect to the evidence that that the victim was under morphine sedation at the time of the photo line-up, defense counsel stated that “another issue that Dr. Shomer can testify about, what he would say is not that [a sedated person] will necessarily misidentify somebody, but it can impact your ability to make an identification at that point; however, it is going to also impact your ability to retain the details about the assailant. In other words, you’re not going to be able to then make an identification further down the road, if you can’t make one at the point of being under the influence. If it impacts your ability to make an identification at that point, it also precludes you from making the identification and retaining the information at a later point in time.” Defense counsel estimated that his direct examination of Dr. Shomer would take between 30 and 40 minutes, which the court observed would mean “he won’t finish today.”
The court asked the parties to comment on the direct and corroborating circumstantial evidence in the case. The prosecutor outlined this evidence: (1) the direct evidence presented was that no one was in the car at the time of the shooting except the driver, and the driver was the shooter; (2) three minutes later, defendant was driving the car; (3) he was fleeing the police; (4) defendant had gunshot residue on his hand and on his shirt; (5) His DNA was on the cap that was identified as the cap worn by the shooter; and (6) his fingerprint was on the firearm.
Defense counsel argued that the only identification evidence in the case was the victim’s in-court identification, because his testimony that he identified defendant from the hospital was proven to be false by the police officer’s testimony. Further, he noted that the victim testified that he was unable to see through the back windows into the backseat, and did not know who, if anyone, was in the backseat. He stated that the prosecutor was aware that there were indications that defendant’s brother, Adam, had “been in the car earlier that day … very close in time to the time of the shooting,” although that evidence had not been produced in court. Defense counsel also argued that the prosecution’s expert on residue had testified the presence of residue on defendant’s hand and shirt was consistent with several scenarios other than his shooting the gun; that the cap contained the DNA of three or four other people; and that the gun also had other people’s fingerprints on it.
The prosecutor countered that there was no evidence that Adam Martinez was in the car at the time of the shooting; his statement was that he was at Oil Changers with his brother earlier in the day but was nowhere near the crime scene at the time of the shooting, and his statement was corroborated by three people. Further, there was no evidence that anyone else had handled the gun. “The uncontradicted testimony of the expert is that there was ridge detail, but no prints” capable of comparison.
The court refused to permit Dr. Shomer to testify, ruling as follows: “The court has read and considered all of the cases, McDonald, as the primary case, that found an abuse of discretion in excluding the testimony and set forth pretty much an outline of the process for the court to review. This case is significantly different than McDonald from the standpoint that that case was not only primarily based, but almost exclusively based on eyewitness testimony. [¶] Each of the cases cited by the People in opposition … involved a request for eyewitness identification testimony that was excluded either on relevance or 352 grounds. [¶] And the cases are all very interesting for their decision, all of which says basically that it was an error to exclude the testimony, and if it was error, it was harmless error. This court is not of a mind to create harmless error. The court wants to make the correct ruling in the first instance and not be saved by harmless error, because the court believes that it is not appropriately fair for the parties. [¶] The court has considered and compared the offer of testimony and the record before the court, the record in all of the other cases as cited, with the exception of People v. Walker, the 1988 case that the court has not seen. [¶] Based on that, the court finds the offered testimony in this case to be significantly on-line with the Sanders, Sandoval, Walker, Brown and Jones case[s] and distinguishable from it. [¶] Is the circumstantial evidence conclusive? Well, no, both sides can clearly argue its importance and relevance, and the jury will have to sift through it and determine it. [¶] Is the direct evidence by way of identification conclusive? No. [¶] Are there issues that can be raised by the defense in regards to eye-witness identification such as to warrant the appropriate instruction? Absolutely. [¶] Is this a case that is primarily or substantially an eyewitness identification case to the exclusion of circumstantial evidence? The court believes not. [¶] Has it got some basic relevance? Yes. [¶] Is it outweighed by 352 considerations of time and presentation? Yes. [¶] Therefore, the court will exclude the testimony of Professor Shomer.”
The next morning, February 6, 2007, the prosecution recalled Officer Tarasco as a rebuttal witness and both sides rested at 10:49 a.m. The jury returned its verdicts on February 8, 2007.
b. Relevant Legal Principles
The seminal case on the admissibility of expert testimony on the psychological factors affecting eyewitness identification is McDonald, supra, 37 Cal.3d 351, overruled on another ground by People v. Mendoza (2000) 23 Cal.4th 896, 914. McDonald teaches that the controlling consideration in determining the admissibility of expert testimony on this subject, as on any subject, is whether the subject matter is “sufficiently beyond common experience” such that the testimony of an expert would be of some assistance to the jury. (Evid. Code, § 801, subd. (a); McDonald, at p. 373; People v. Valdez (1997) 58 Cal.App.4th 494, 506.) “[T]he admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would ‘assist’ the jury. It will be excluded only when it would add nothing at all to the jury’s common fund of information, i.e., when ‘the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness’ (People v. Cole (1956) 47 Cal.2d 99, 103).” (McDonald, at p. 367; see also People v. McAlpin (1991) 53 Cal.3d 1289, 1300 [citing McDonald; expert testimony on delay in parental reporting of child sexual abuse and child molester profiles admissible].) The trial court has wide discretion to determine whether an opinion passes this test, and its exercise of that discretion will not be disturbed on appeal absent a manifest abuse.
McDonald also provides guidance on the circumstances under which the exclusion of expert testimony on eyewitness identification will usually constitute an abuse of discretion. “ ‘[W]e do not intend to “open the gates” to a flood of expert evidence on the subject.’ [Citation.] We expect that such evidence will not often be needed, and in the usual case the appellate court will continue to defer to the trial court’s discretion in this matter. Yet deference is not abdication. When an eyewitness identification of the defendant is a key element of the prosecution’s case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony.” (McDonald, supra, 37 Cal.3d at p. 377, fn. omitted.)
This test has been often stated. (People v. Plasencia (1985) 168 Cal.App.3d 546, 554 [no abuse of discretion found, but if there was error, it was not prejudicial]; People v. Jackson (1985) 164 Cal.App.3d 224, 240 [abuse of discretion found; harmless error]; People v. Walker (1986) 185 Cal.App.3d 155, 162-163 [same]; People v. Walker (1988) 47 Cal.3d 605, 628 [it would not have been abuse of discretion to admit testimony, but no abuse of discretion or prejudice found for excluding it]; People v. Sandoval (1994) 30 Cal.App.4th 1288, 1297 [no abuse of discretion or prejudice found; People v. Sanders (1995) 11 Cal.4th 475, 509 [no abuse of discretion, no prejudice]; People v. Jones (2003) 30 Cal.4th 1084, 1112 (Jones) [no abuse of discretion found]; People v. Lewis (2006) 39 Cal.4th 970, 995-996) [no error in denying without prejudice pretrial motion for funds to hire eyewitness expert; no ineffective assistance of counsel for failing to offer such testimony]; People v. Goodwillie (2007) 147 Cal.App.4th 695, 725 (Goodwillie) [no denial of right to present meaningful defense].)
In Jones, our Supreme Court clarified that McDonald’s holding is not limited “to cases in which, apart from the eyewitness identification, there is no other evidence whatever linking defendant to the crime: Exclusion of the expert testimony is justified only if there is other evidence that substantially corroborates the eyewitness identification and gives it independent reliability.” (Jones, supra, 30 Cal.4th at p. 1112.)
c. Analysis
Defendant argues that the trial court here abused its discretion in excluding Dr. Shomer’s expert testimony because, under McDonald, the court must “evaluate the asserted corroborative evidence to ascertain whether there were ‘elements’ of that evidence which could raise a reasonable doubt respecting the identity issue,” and that, in this case, the trial court did not do so. He draws this lesson from the following language in McDonald: “[I]n the testimony of each of the witnesses who identified defendant in the courtroom there were elements that could have raised reasonable doubts as to the accuracy of the identification. These elements included the suddenness and unexpectedness of the event, discontinuity and other difficulty of observation, fear and other stress at the time of perception, overestimation of the duration of the event, ‘feedback’ factors following the event, failure or uncertainty of several witnesses in selecting defendant’s photograph from police displays, and, particularly important, apparent cross-racial identification discrepancies. Further doubts could have arisen from the dramatic declaration in open court by a prosecution eyewitness that defendant was not the perpetrator, and from the testimony of six witnesses that defendant was not in the state on the day the crime was committed. In these circumstances the exclusion of Dr. Shomer’s testimony undercut the evidentiary basis of defendant’s main line of defense – his attack on the accuracy of the eyewitness identifications – and deprived the jurors of information that could have assisted them in resolving that crucial issue.” (McDonald, supra, 37 Cal.3d at pp. 375-376.)
In addition, citing the recent case of Goodwillie, defendant suggests that trial court consideration of the defense’s challenges to the prosecution’s evidence may have a constitutional basis. In Goodwillie, the defendant challenged the exclusion of his proferred eyewitness identification expert, based on Holmes v. South Carolina (2006) 547 U.S. 319 (Holmes). “In Holmes, the Supreme Court addressed ‘whether a criminal defendant’s federal constitutional rights are violated by an evidence rule under which the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict.’ [Citation.] [¶] The defendant in Holmes sought to introduce evidence that another man had attacked the victim, proffering at a pretrial hearing the testimony of several witnesses who placed the other man in the victim’s neighborhood on the morning of the assault, and the testimony of four additional witnesses who testified at the pretrial hearing that the other man had proclaimed the defendant’s innocence or had admitted to having committed the crimes. (Holmes, supra, 547 U.S. at p. 323.) The trial court excluded the defendant’s evidence…. [¶] The South Carolina Supreme Court affirmed, holding that ‘ “where there is strong evidence of an appellant’s guilt, especially where there is strong forensic evidence, the proffered evidence about a third party’s alleged guilt does not raise a reasonable inference as to the appellant’s own innocence.” Citation.’ (Holmes, supra, 547 U.S. at p. 324.) ¶ The United States Supreme Court explained why this holding was untenable: ¶ ‘Under this rule, the trial judge does not focus on the probative value or the potential adverse effects of admitting the defense evidence of third party guilt. Instead, the critical inquiry concerns the strength of the prosecution’s case: If the prosecution’s case is strong enough, the evidence of third-party guilt is excluded even if that evidence, if viewed independently, would have great probative value and even if it would not pose an undue risk of harassment, prejudice, or confusion of the issues. [¶] Furthermore, as applied in this case, the South Carolina Supreme Court’s rule seems to call for little, if any, examination of the credibility of the prosecution’s witnesses or the reliability of its evidence.’ (Holmes, supra, 547 U.S. at p. 329.) … [¶] … [¶] … ‘[B]y evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. Because the rule applied by the State Supreme Court in this case did not heed this point, the rule is “arbitrary” in the sense that it does not rationally serve the end that the [State v.] Gregory [(1941) 198 S.C. 98] rule and other similar third-party guilt rules were designed to further. Nor has the State identified any other legitimate end that the rule serves. It follows that the rule applied in this case by the State Supreme Court violates a criminal defendant’s right to have “ ‘a meaningful opportunity to present a complete defense.’ ” ’ (Holmes, supra, 547 U.S. at p. 331.)” (Goodwillie, supra, 147 Cal.App.4th at pp. 727-728.)
The Goodwillie court rejected the analogy to Holmes and the defendant’s constitutional challenge to the exclusion of expert testimony on eyewitness identification, partly on the grounds that “California’s evidentiary rule regarding eyewitness identification expert testimony does not rely solely on ‘evaluating the strength of only one party’s evidence....’ (Holmes, supra, 126 S.Ct. at p. 1735.)” (Goodwillie, supra, 147 Cal.App.4th at p. 730.) By way of example, the Goodwillie court noted that in Sanders, the Supreme Court had mentioned the defendant’s lack of an alibi and observed that had he presented such evidence, it would have been considered on the question whether to admit the proferred expert testimony. The Goodwillie court similarly noted that the defendant neither presented an alibi, nor “raise[d] challenges to the evidence corroborating the multiple eyewitness identifications. He thus cannot establish that the trial court failed to consider his challenges to the prosecution’s evidence.” (Goodwillie, supra, 147 Cal.App.4th at p. 730.)
Defendant’s position has merit. In McDonald, there was, of course, no corroborative evidence for the defendant to challenge, but the Court made it clear that the defendant’s challenges to the reliability of the identifications themselves, as well as his presentation of alibi witnesses, were relevant to the question whether the proferred expert testimony was likely to be useful to the jury and therefore should be admitted. Goodwillie simply highlights that which is implicit in McDonald, Sanders, and Jones: that the existence per se of corroborating circumstantial evidence is not the touchstone of the McDonald test. Rather, the key inquiry is whether the corroborating circumstantial evidence is so substantial that it lends independent reliability to the eyewitness identification evidence. On this question, any challenges by the defense to the prosecution’s circumstantial evidence are relevant to the inquiry.
Here, the defense mounted a significant attack through cross-examination on each and every piece of physical evidence that the prosecution proferred as circumstantial evidence pointing to defendant as the shooter. The end result, as the trial court correctly observed, was that the circumstantial evidence was not conclusive. On such a record, the accuracy of the victim’s identification of defendant as the shooter was a key issue in the case. However, the circumstances surrounding Mr. Hernandez-Perez’s identification raised serious questions about the reliability of his identification. Officer Deras testified that the victim was unable to identify defendant from a photographic lineup that was shown to him twice, once with the subjects’ heads covered to the eyebrows to simulate a cap. The victim himself testified that he had very little recollection of what happened at the hospital; he had been given painkillers and was “a little unconscious.” Yet he also testified that he was certain he had positively identified a picture of his assailant, whom he actually identified for the first time in court, 21 months after the shooting. It is true that Dr. Shomer’s testimony may not have been necessary to educate the jurors that “the passage of time frequently effects [sic] one’s memory.” (People v. Plasencia, supra, 168 Cal.App.3d at p. 555.) However, his testimony was likely to be extremely useful in explaining less obvious factors, such as how sedation “can impact your ability to … retain the details about the assailant” at a later time, or how the supplanting of an actual memory by imaginary information of convincing force can affect the reliability of a later identification.
In this case, the potential usefulness of Dr. Shomer’s testimony to the jury’s understanding of the case was overridden by the trial court’s concern that the doctor’s direct testimony would consume 30 to 40 minutes, spill over to the next day and, presumably, consume more time on cross-examination. In an ordinary case, the trial court’s decision would be deserving of our deference. However, in our view, this was an unusual case, and the trial court was misled by language in the McDonald line of cases which seems to suggest that if the prosecution’s case contains any circumstantial evidence in addition to an eyewitness identification, it is never an abuse of discretion to preclude the expert testimony on the factors affecting the reliability of eyewitness identification. We think the focus of the trial court’s inquiry should be less on the existence of circumstantial evidence and more on its force, and on whether the jury would benefit from the expert’s testimony, particularly if, as here, the circumstances surrounding the identification are somewhat unusual.
On this point, we find persuasive the reasoning of People v. Walker, supra, 185 Cal.App.3d 155. There, the defendant was charged with three robberies, one of which he admitted and two of which he denied. His admitted commission of a similar robbery was used as circumstantial evidence to corroborate the eyewitness identifications of him in the robberies he denied committing. The Court of Appeal observed: “Where the inference [of identity] is merely suggestive – as it is here – and reasonable persons could still disagree on the defendant’s identity, a defendant cannot be denied the opportunity to present evidence on an issue crucial to his defense. Thus a trial court in evaluating whether the evidence of independent reliability meets the minimum required by McDonald must be satisfied that there is no possibility that any reasonable jury could be affected by further testimony on factors relating to eyewitness identification. Only where the trial court is convinced that the state of the record is such that the proffered testimony relating to the relevant specific psychological factors affecting eyewitness identification could not raise a reasonable doubt as to identity, may the court exercise its discretion to exclude such testimony.” (Id. at p. 165.) The Walker court concluded that “since the ‘modus operandi’ here was not signatorally unique, the court erred in excluding Dr. Girsh’s testimony.” (Id. at p. 166.)
For the reasons stated in Walker, we conclude that the trial court abused its discretion here. However, we are convinced that the error did not deprive defendant of his right to present a meaningful defense and was, in any event, harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) Each piece of forensic evidence may have been open to interpretation, but all together the pieces fit together in a way that securely tied defendant to the shooting. In addition to the forensic evidence, there was the evidence that the Yukon belonged to his then-girlfriend; that defendant’s flight path took him right past his girlfriend’s mother’s apartment; and that he changed his attire and tried to hide the clothing that might lead to his identification in a laundry basket. The evidence of defendant’s membership in a gang that hunts Mexican nationals provided a powerful motive for the shooting. Finally, through the court’s instruction on the factors affecting eyewitness identification, and defense counsel’s skilful cross-examination and argument, the jury was apprised of the problems with the victim’s identification and was provided with the tools to evaluate it. Under these circumstances, we are convinced beyond a reasonable doubt that the error in precluding Dr. Shomer’s testimony did not affect the verdict.
Insufficient Evidence to Support Gang Enhancement
Defendant argues that there is insufficient evidence to support the gang enhancement. Specifically, he argues that there is insufficient evidence to prove that one of the primary activities of the gang is the commission of one or more homicides, attempted murders, or robberies because (1) proof of one prior robbery offense is insufficient to prove that robbery is a primary activity of a gang, citing In re Jorge G. (2004) 117 Cal.App.4th 931; (2) the two prior murders and the current offense occurred too far apart (2001, 2002, and 2004) to be considered more than isolated instances, distinguishing this court’s opinion in People v. Vy (2004) 122 Cal.App.4th 1209; and (3) Officer Roccaforte’s opinion testimony is insufficient as a matter of law because he relied on police reports and certified court records for support instead of witness and police officer interviews he conducted himself.
Defendant also argues that there was insufficient evidence to prove a “pattern of criminal gang activity” because the evidence was insufficient to prove that the prior crimes were committed by gang members. We disagree.
In reviewing a claim of insufficiency of the evidence on appeal, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) “An appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425; accord, People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) “The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation]…. An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) Reversal is warranted only if it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.) The substantial evidence standard applies to a claim that the evidence was insufficient to support a gang enhancement finding. (People v. Vy, supra, 122 Cal.App.4th at p. 1224.)
The prosecution alleged, and the jury found, that defendant committed the attempted murder of Mr. Herandez-Perez for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) Section 186.22 defines a “criminal street gang” as “a group of three or more persons” that has as “one of its primary activities the commission of one or more of the criminal acts enumerated” in the statute. (§ 186.22, subd. (f).) It must also have “a common name or common identifying sign or symbol” and its members must “engage in or have engaged in a pattern of criminal gang activity.” (Ibid.)
“The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) Proof that a “group’s members consistently and repeatedly have committed criminal activity listed in the gang statute” is sufficient to establish the gang’s primary activity. (Id. at p. 324.) The occasional commission of crimes by the gang’s members, however, is insufficient. (Ibid.) The trier of fact may consider past offenses and the charged offenses in determining whether the primary activity element is satisfied. (Id. at pp. 320, 323.) Expert testimony also may be used to establish that one of the group’s primary activities is the commission of statutorily enumerated offenses. (Id. at p. 324; People v. Gardeley (1996) 14 Cal.4th 605, 617-620.)
Here, Officer Roccaforte testified that the Norteño gang was predominant in Northern California and that the geographic dividing line was in Bakersfield. He estimated that there were a couple of hundred Norteño gang members in Gilroy, that they identified by the color red and the number 14, and that one of the primary activities of the gang was the commission of murder, attempted murder, robbery and assault, all of which are statutorily enumerated offenses. (§ 186.22, subd. (e)(1) [assault with a deadly weapon or by means of force likely to produce great bodily injury], (2) [robbery], (3) [unlawful homicide], and the attempt to commit any enumerated offense].) He discussed two murders and one robbery committed by admitted Norteño gang members for the benefit of the street gang. If believed by the jury, this is sufficient evidence to establish that the Norteños are a criminal street gang, and that robbery, murder, attempted murder, and assault are the primary activities of the Norteño street gang.
However, defendant appears to argue that Officer Roccaforte’s expert opinion lacked sufficient reliability and a factual foundation, as a matter of law, because it was not based on his personal interviews of witnesses and police officers. Expert testimony may be premised on material that is not admitted into evidence, or on material that is not ordinarily admissible, such as hearsay, if that material is reliable and of a type that is reasonably relied upon by experts. (People v. Gardeley, supra, 14 Cal.4th at p. 618.) Numerous cases have held that an expert may rely on hearsay in forming his or her opinion. (See People v. Catlin (2001) 26 Cal.4th 81, 137; People v. Montiel (1993) 5 Cal.4th 877, 919; People v. Duran (2002) 97 Cal.App.4th 1448, 1463; People v. Valdez, supra, 58 Cal.App.4th at pp. 510-511.) An expert witness whose opinion is based on inadmissible matter can, when testifying, describe the material that forms the basis of his or her opinion. (People v. Gardeley, at p. 618.) “Thus, a gang expert may rely upon conversations with gang members, his or her personal investigations of gang-related crimes, and information obtained from colleagues and other law enforcement agencies.” (People v. Duran, at p. 1463, italics added.) Here, Officer Roccaforte testified about his extensive experience with gangs as a police officer in both Northern and Southern California and as a member of a gang task force that investigates gang activity in Gilroy. He personally researched and reviewed the police reports and certified court records about which he testified. The jury was entitled to conclude from this testimony that Officer Roccaforte was qualified by training and experience to render his opinions, and that those opinions were reliably and factually supported by police and court records. This expert witness testimony and the documentary evidence of the predicate offenses, if believed by the jury, were sufficient to prove that the primary activity of the Norteño street gang was the commission of the enumerated offenses in section 186.22. (People v. Gardeley, supra, 14 Cal.4th at p. 620.)
In re Jorge G. is inapposite. In that case, no expert testimony was offered on the gang’s primary activity and, in the absence of such testimony, there was sufficient evidence of only one predicate offense. Therefore, the Court of Appeal found that the minimum prerequisite of the statute – two predicate offenses – had not been met. (In re Jorge G., supra, 117 Cal.App.4th at p. 945.) The case of People v. Perez (2004) 118 Cal.App.4th 151 is also inapposite. In that case, a police officer testified as an expert about the CLB gang’s history of racial hatred and violent acts towards Asians, including a rash of retaliatory shootings in less than one week and a child beating six years earlier, but the officer did not, so far as the Perez opinion shows, render an opinion about the gang’s primary activities. (Id. at p. 160.) Here, by contrast, there was expert testimony that committing murder, attempted murder, and robbery are primary activities of the Norteño street gang and, in addition there was documentary and other evidence of three other offenses (two murders and the current offense).
Defendant’s claim that the predicate offenses were isolated instances and were too far apart in time, as a matter of law, to qualify as a pattern of criminal activity is not well taken. The statute requires that the predicate offenses occur after the effective date of the chapter, September 26, 1988, and that the last offense occur “within three years after a prior offense.” (§ 186.22, subd. (e); People v. Gardeley, supra, 14 Cal.4th at pp. 625-626.) The predicate offenses here occurred in 2001, 2002, and 2004, and therefore meet the statutory criteria. From the evidence presented, a rational jury could reasonably infer that these crimes constituted a pattern of criminal activity and were not isolated instances of gang violence. Thus, the evidence was not insufficient on this ground.
Finally, defendant argues that there was insufficient evidence that the predicate offenses were committed by Norteño gang members. The record does not support this contention. First, there was ample evidence presented from which the jury could infer that defendant was a Norteño gang member and, as he acknowledges, the current offense may constitute one of the two required predicate offenses. (People v. Loeun (1997) 17 Cal.4th 1, 10.) Second, Officer Roccaforte testified that Paul Zapata, the perpetrators of the Pacific Grove murders, and the robber Anthony Garcia, were all admitted gang members. In addition, they were “validated” as gang members by law enforcement agencies. Defendant discounts this testimony because it was based on hearsay, but we have rejected that contention above.
In any event, in addition to Roccaforte’s testimony, certified court records showed jury findings that the Gilroy murder was committed by Zapata for the benefit of the Norteño gang. They also showed that Estrada, one of the Pacific Grove defendants, pleaded guilty to the murder and admitted the gang allegation, and that Quintos, another of the Pacific Grove defendants, pleaded no contest to the murder and the court found the gang allegation true. Defendant’s jury was entitled to infer from these findings that the persons who had killed for the benefit of the gang were gang members. Thus, assuming it is true, as defendant alleges, that the extant court records contain no information about the disposition of the Pacific Grove charges as to Galvan, or the gang allegation as to the robber Garcia, there is nevertheless sufficient evidence to prove that at least two predicate offenses were committed by gang members for the benefit of the gang.
Prosecutorial Misconduct
Defendant argues that the prosecutor committed misconduct in closing argument by (1) improperly arguing propensity evidence to convince the jury that the attempted murder was premeditated, and (2) disparaging defense counsel. He claims these comments, in combination if not singly, denied him due process.
Defense counsel did not object to either comment. Thus, in the alternative, defendant argues that counsel rendered ineffective assistance of counsel by failing to object.
a. Applicable Legal Principles
“ ‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “ ‘A prosecutor’s ... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citation.]’ [Citation.] ‘[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ ” (People v. Smithey (1999) 20 Cal.4th 936, 960.) “In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970.)
Ordinarily, claims of prosecutorial misconduct are forfeited by the failure to object, unless an admonition would not have cured the harm, or an objection would have been futile. (People v. Boyette (2002) 29 Cal.4th 381, 432.) Here, defendant does not argue that his case comes within either of these exceptions. Rather, as noted, he argues that counsel was ineffective for failing to object. However, as our Supreme Court has “noted repeatedly, the mere failure to object rarely rises to a level implicating one’s constitutional right to effective legal counsel.” (Id. at p. 433.) To establish a claim of ineffective assistance of counsel, the defendant must show “both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings.” (People v. Price (1991) 1 Cal.4th 324, 440; Strickland v. Washington (1984) 466 U.S. 668, 687.) However, when the defendant “has not satisfied the second part of the test, we need not consider whether trial counsel’s performance was deficient.” (People v. Price, at p. 440.) In addition, to prevail on direct appeal, the defendant must also show that “counsel was asked for an explanation and failed to provide one, or … there simply could be no satisfactory explanation” for counsel’s failure to object. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266, internal quotation marks omitted.)
b. The Prosecutor’s Comments
The first comment to which defendant now objects is this: “The judge read you the length of time the person spends considering whether the attempted murder is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. Let me stop there. If you’re a gang member you’re already premeditating crimes for weeks and months and years.” (Italics added.)
The second comment to which defendant now objects is this: “[A]s [defense counsel] was giving his closing arguments I kept thinking about the first thing they teach you in law school. The first thing they teach you in law school is when the facts are against you, you argue the law; and when the law is against you[,] you argue the facts; and when the facts and the law are against you[,] you point a finger at the D.A. and you get personal and you get dirty and you make a personal attack on the D.A. and the police officer. Now I lost track. I was counting how many times he pointed at me and said disparaging things. I lost track at 27 I think. … I’m not going to respond each and every time he misstated the law or misstated the facts.”
No objections were interposed, or admonitions requested, at the time the comments were made.
c. Analysis
We are hard-pressed to see how timely admonitions could have failed to cure any possible prejudice arising from the comments set forth above. Accordingly, we find defendant has forfeited his claim of prosecutorial misconduct.
We also find no ineffective assistance of counsel. As to the first comment, we see no reasonable likelihood that the jury would have interpreted the comment about premeditation as an evidentiary shortcut by way of propensity evidence. The comment referenced the correct statement of law, as expressed in the jury instruction on premeditation. It also referenced an inference that could be drawn from the evidence presented at trial that defendant was a gang member, and that one of the primary activities of the gang was hunting down Mexican nationals. Thus, counsel cannot be required to object to the comment, or blamed for failing to do so. Finally, we see no reasonable probability that a more favorable determination would have resulted in the absence of the comment.
As to the second comment, we see no “reasonable likelihood that the jury would understand the prosecutor’s statements as an assertion that defense counsel sought to deceive the jury.” (People v. Cummings (1993) 4 Cal.4th 1233, 1302.) Even if there were a likelihood that the jury understood the prosecutor’s comments in the most damaging sense, we note that arguably more egregious comments have not been found to have crossed the line into misconduct. (See e.g., People v. Williams (1996) 46 Cal.App.4th 1767, 1781-1782 [defense counsel had to “ ‘obscure the truth’ ”]; People v. Bell (1989) 49 Cal.3d 502, 538 [defense counsel’s job is to “ ‘throw sand in your eyes’ ” and “get his man off”]; see also People v. Gionis (1995) 9 Cal.4th 1196, 1216; People v. Breaux (1991) 1 Cal.4th 281, 305.)
In any event, we need not decide whether the prosecutor’s remarks constituted misconduct to which defense counsel should have objected because we are convinced the comments could not have affected the outcome of the trial either viewed singly or in combination with the prosecutor’s comments about premeditation. (People v. Price, supra, 1 Cal.4th at p. 440.)
Finally, we are not convinced that there is no explanation for counsel’s failure to object. In our view, this is exactly the sort of situation in which competent counsel might make a tactical decision to refrain from objecting, if in his or her estimation the client had more to lose than to gain by challenging the prosecutor’s incivility. For these reasons, we reject defendant’s ineffective assistance of counsel claim.
It follows that we do not view the prosecutor’s comments as a pattern of misconduct elevating the error to one of federal constitutional dimension. (People v. Estrada (1998) 63 Cal.App.4th 1090.)
Strike vs. Stay of Gang Enhancement
In this case, the court ordered that the determinate 10-year term provided by section 182.22, subdivision (b)(1)(c) be “stayed as it is subsumed in the punishment for the [section] 12022.53(c)” offense. Defendant argues that the enhancement should have been stricken or deleted instead of stayed. The Attorney General concedes the correctness of defendant’s argument and, for the following reasons, we agree.
Section 186.22 provides in relevant part: “(b)(1) Except as provided in paragraphs (4) and (5), 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [¶] ... [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years. [¶] ... [¶] (5) Except as provided in paragraph (4) [life terms for certain felonies], any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life, shall not be paroled until a minimum of 15 calendar years have been served.” Attempted premeditated murder is punishable by life in prison. (§ 664, subd. (a).) In People v. Lopez (2005) 34 Cal.4th 1002, 1007 our Supreme Court concluded that “the Legislature intended section 186.22, [subdivision] (b)(5) to encompass both a straight life term as well a term expressed as years to life (other than those enumerated in subdivision (b)(4)) and therefore intended to exempt those crimes from the 10-year enhancement in subdivision (b)(1)(C).” The proper remedy is to delete the 10-year enhancement. (Id. at p. 1011.) Accordingly, we will order the judgment “modified to delete the 10-year gang enhancement imposed under … section 186.22(b)(1)(C)” and remand the cause to the trial court for amendment of the abstract of judgment. (Ibid.)
CONCLUSION
Substantial evidence supports the gang enhancement. The trial court did not abuse its discretion in refusing to order an Evans lineup. The trial court did abuse its discretion in refusing to permit Dr. Shomer to testify as an expert on eyewitness identification, but the error was harmless and did not deprive defendant of an opportunity to present his defense. Defense counsel’s failure to object to the prosecutor’s comments during closing argument waives his claim of prosecutorial misconduct on appeal; however, defendant has not shown that counsel rendered constitutionally ineffective assistance of counsel. The judgment must be modified to delete the 10-year gang enhancement.
DISPOSITION
The judgment is modified to delete the 10-year gang enhancement imposed under section 186.22(b)(1)(C) and the cause is remanded to the trial court for amendment of the abstract of judgment. As modified, the judgment is affirmed.
WE CONCUR: Mihara, Acting P.J., Duffy, J.