Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR66830
RAYE, Acting P.J.Members of two antagonistic Hispanic gangs clashed on a summer evening, leaving one man seriously wounded. Defendant Ignacio Morfin Mendoza and three other alleged members of the Norteño gang, Johnny Hernandez, Miguel Mendoza, and Juan Arteaga, were charged with various gang offenses. An information charged defendant with attempted murder (Pen. Code, §§ 187, 664 -- count I), three counts of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1) -- counts II, III, IV), and with actively participating in a criminal street gang (§ 186.22, subd. (a) -- count V). It was further alleged as to counts I, II, III, and IV that the offenses were committed “for the benefit of, at the direction of, and in association with a criminal street gang.” (§ 186.22, subd. (b)(1).) As to counts I, II, III, and IV, it was also alleged defendant personally inflicted great bodily injury. (§ 12022.7, subd. (a).)
All further statutory references are to the Penal Code unless otherwise indicated.
A jury found defendant guilty of attempted voluntary manslaughter (§§ 192, subd. (a), 664), one count of assault by means of force likely to produce great bodily injury, and of actively participating in a criminal street gang. The jury acquitted defendant of the other two counts of assault.
Sentenced to 16 years in prison, defendant appeals, contending: (1) the court failed to instruct on the elements of actively participating in a criminal street gang, (2) insufficient evidence supports the primary activities element of participation in a gang, (3) ineffective assistance of counsel, (4) the court erred in permitting expert testimony regarding the origins of the fight, and (5) prosecutorial misconduct. We shall reverse defendant’s conviction for actively participating in a criminal street gang, set aside the gang enhancement, and remand for a partial retrial. In all other respects, we shall affirm the judgment.
Factual and Procedural Background
One summer evening in 2005, Ramon Ruelas, Rafael Castrejon, and Zeferino Valdez sat drinking together at Castrejon’s home. Ruelas admitted to having been a member of the Sureño gang but stated he had left the gang about two years before the incident. Valdez admitted membership in the Sureños and stated Ruelas and Castrejon were also members of that gang.
As a black pickup truck passed the house, its driver “threw up gang signs.” However, Ruelas paid no attention to the driver’s gestures. Later that night the trio walked to a store. As they walked, the same black pickup passed them.
Valdez testified that as they walked, he decided to go to Hernandez’s house to fight him. According to Valdez, once when he and his wife were looking at an apartment to rent, Hernandez came out of his house and “mess[ed] with” and “disrespect[ed]” Valdez in front of his wife and children. A few weeks previously, Hernandez had approached Valdez with a crowbar.
The night of the incident, Valdez intended to approach Hernandez and ask him “if he wanted to fight me one on one, that was it.” Ruelas accompanied Valdez to “cover . . . Valdez’s back.”
The Altercation
When they reached Hernandez’s house, the trio met a group of five or six men. Valdez testified that one or two beer bottles were suddenly hurled at him. Valdez was knocked out and remembered nothing until he awoke in the hospital days later. During the fight, Valdez lost a shoe.
Ruelas testified that shortly after the black pickup passed by, five men emerged from the darkness and “rushed” him, Castrejon, and Valdez. The attackers were armed with baseball bats and tools; one swung a metal pipe.
Ruelas began fighting with a light skinned, tall, thin man with a bald head. Another man, armed with the metal pipe, hit Ruelas in the head and arm. Ruelas emerged from the fight with a broken hand and arm.
When the fighting died down, Ruelas and Castrejon started to leave but returned to retrieve Valdez, who lay on the ground in a large puddle of blood. Ruelas and Castrejon picked up Valdez and carried him to a nearby store. The duo then drove Valdez to the hospital.
What the Neighbors Saw
Hernandez’s neighbors also caught glimpses of the altercation. Fifteen-year-old Kimberly C. was outside when she saw “a lot of people, like, walking towards each other . . . .” One group walked down the street; the other group stood at the end of the alley. Kimberly saw someone from the group that was walking throw a bottle at a dog coming toward them. Kimberly went into her gated yard, and although she did not see what took place, she heard the sound of punches being thrown.
Kimberly’s mother, Susan C., heard “some voices outside, loud voices.” A moment later, Kimberly entered the house and told her “there was a fight outside.” Susan went outside and looked out the gate. She saw a body lying on the sidewalk and called 911.
Susan returned to the gate, but the body on the sidewalk had vanished. She looked down the street and saw two figures supporting a third figure, slumped between them, walking away. A group of teenage boys stood down the street near the Hernandez house. After the fight, Susan saw three or four people get into a black pickup truck, which looked like one often parked outside Hernandez’s house.
Brett C., Susan’s husband, testified that he walked into his kitchen and his “wife’s brother’s girlfriend said there was a fight outside.” Brett told her to call 911 and went to investigate. Hernandez and a group of young men approached him. Brett told them he had called 911 and the police were on the way. Hernandez said he was looking for somebody, and Brett pointed toward another group of people a block and a half away and said: “Well, that must be who you are looking for.” Hernandez and the others got into a black pickup and drove quickly away.
The Investigation
City of Corning Police Officer Timothy Osborn arrived on the scene in the aftermath of the fight. Freshly broken beer bottles littered the street, along with two unmatched tennis shoes. Osborn also found two puddles of blood on the sidewalk. Osborn was dispatched to a nearby business, where an injured man had sought help. The man was gone, but Osborn found blood spatters on the sidewalk outside the business.
Corning Police Detective Mel Allison interviewed Ruelas and Castrejon, who had been detained by another officer. Ruelas told Allison that Hernandez had driven by Castrejon’s house, “throwing up gang signs and talking gang shit.” Ruelas recognized Hernandez but was not concerned since Hernandez was alone and Ruelas “didn’t think [Hernandez] would do anything when he was alone.” As he walked to Castrejon’s parent’s house, he heard some gang members say “Norte.” During the fight, Ruelas saw Castrejon battle Hernandez near Hernandez’s house.
Castrejon told Detective Allison that he, Valdez, and Ruelas, accompanied by some female friends, were hanging out at Castrejon’s house drinking beer. Valdez and Ruelas wanted to go buy more beer, and Castrejon decided to join them. As they left the house, a black pickup truck Castrejon believed Hernandez owned went by.
After the pickup passed, the trio decided to walk to Castrejon’s parents’ house. When they got to Fifth and Butte Streets, they saw four or five people, who “jumped them.” Castrejon did not recognize any of the assailants. One man hit Castrejon on the side of his head with a stick. Castrejon fought back.
Castrejon got up and began to run but returned to help Ruelas get Valdez up off the street. The trio went to a nearby store for help, and then Castrejon drove Valdez and Ruelas to the hospital.
The beating left Valdez with his jaw broken in four places, his nose broken in two, and broken cheekbones.
Investigation of Hernandez
Detective Allison interviewed codefendant Hernandez following his arrest. The night of the incident, Hernandez heard some yelling coming from the alley behind his house and went out to investigate. Suddenly, he was struck in the back of the head and knocked unconscious. When Hernandez regained consciousness a short time later, everyone was gone. According to Hernandez, the fight came about because he was “messing around with some Sure[ñ]o girls.” After the fight, Hernandez went to a fast food restaurant until it was safe to go home.
Detective Allison and Corning Police Officer David Kain served a search warrant at Hernandez’s house. The officers found three aluminum bats, one bloodstained. They did not find any other baseball-related items in the house. The officers also found a metal jack handle and several items of red clothing.
In Hernandez’s black pickup, Officer Kain found several photographs. In one photo, a shirtless Hernandez stands with a group of men, all sporting gang-related tattoos. Letters found in the truck discussed various Norteño gang members and were sprinkled with gang terminology.
Officer Kain also found music CDs by a Norteño artist. On one CD’s label the letter “S” was replaced by the letter “Z” and on another label the letter “S” was crossed out, “a sign of disrespect towards the Sureños.”
Defendant’s Interview
Defendant told Detective Allison he had been home with his brother the night of the altercation. The brothers (defendant and Miguel Mendoza) lived in a trailer on their grandparents’ property. Defendant said he remained in the trailer all night. When Allison asked about his injured face, defendant said he got hurt boxing with his cousin. Defendant later told Allison the injury resulted from being hit in the face with a rock.
Subsequently, defendant told Allison the fight with Valdez, Ruelas, and Castrejon began “when someone threw a beer bottle that hit Zeferino Valdez in the face.” According to defendant, Valdez, Ruelas, and Castrejon, whom he knew to be Sureños, yelled gang phrases such as “L.A. and San Diego” and “Sur Trece.” Defendant offered “Norte” as a rejoinder.
After the beer bottle struck Valdez, he, Ruelas, and Castrejon began throwing rocks. One rock struck defendant in the face. Defendant began fighting with a “tall dude.” As they fought, defendant believed he broke the other man’s arm because he heard a popping noise. Defendant also kicked a “big dude” who was on the ground three or four times in the head. According to defendant, there was a lot of blood. Defendant lost a shoe in the melee. After the fight ended, defendant returned home and threw away his other shoe.
In a later interview, defendant told Officer Kain the Sureños arrived at Hernandez’s home and began throwing rocks. Defendant went outside and heard them yell “Sur Trece” at him. Defendant yelled back “Norte.” A “big guy” started to approach him. Defendant, armed with a bat, went toward the large man.
Defendant said Valdez “wrapped him up in a bear hug.” Defendant hit Valdez under his chin with the butt of the bat. Valdez let go and defendant hit him again. As Valdez fell, defendant hit him approximately six times in the back of the head with the bat. Defendant did not intend to kill Valdez but admitted his actions could have done so.
Expert Testimony
Eric Clay, an investigator in the Tehama County District Attorney’s office, specializes in gang investigations. Clay stated the two rival Hispanic gangs operating in the county are the Norteños and the Sureños. The two gangs evolved from prison gangs: the Norteños from Nuestra Familia and the Sureños from the Mexican Mafia. The two gangs engage in “a never-ending rivalry. Members of one gang assault, threaten, intimidate, vandalize, you name it, members of the other gang and it goes back and forth.”
The two gangs cleave to various symbols. Norteños favor the number 14, representing the letter “N.” Sureños favor the number 13, representing the letter “M.” Norteños sport red clothing; Sureños sport blue clothing.
According to Clay, gang members focus on power, respect, family, and notoriety. Clay testified: “The whole lifestyle of a gang is who’s the biggest, badest in the gang and who do we look up to, and that all is power albeit through fear, basically, and the respect is also from fear . . . .” Gang members follow a “code of silence” in their dealings with police, declining to aid the police in favor of settling conflicts with rival gangs on their own.
Clay stated that Norteños “commit basically any crimes, they reckless drive, so it is traffic violations all the way to vandalisms, thefts, we have had batteries committed by them, we have had stabbings, we have had shootings, even just simple batteries with a fist.” As examples, Clay described three criminal acts committed by members of the Norteño gang that, he stated, constituted “predicate acts” within the meaning of the criminal gang statute. In the first, in July 2000, four Norteños shot at the home of a Sureño gang member. Two Norteños were convicted of the drive-by shooting. In the second offense, in 2003, a Norteño stabbed two Sureños after exchanging words. Two Norteños were convicted in the case. In the third offense, also in 2003, a verbal altercation between Sureños and Norteños in a parking lot led to a shooting. A man and his wife, both Norteños, were convicted of the crime.
According to Clay, county law enforcement uses a common-sense approach to identifying gang members. Law enforcement considers a variety of factors, including admission of gang membership to jail personnel, wearing gang clothing, participation in gang activities, association with known gang members, displaying gang signs, possessing gang paraphernalia, and sporting gang tattoos.
Employing these criteria, Clay determined that Valdez, Castrejon, and Ruelas belonged to the Sureños. Clay also testified that in his opinion, defendant belonged to the Norteños. According to Clay, while being classified in the county jail, defendant “admitted to jail staff that he was a Norte[ñ]o gang member.” Police records also documented defendant’s association with known gang members. In addition, defendant is shown in a photograph garbed in a red sweatshirt, and during a probation search at his residence, officers found other red clothing.
Officer Kain also testified as an expert on gangs. Kain, too, considered defendant an active member of the Norteños. Kain believed the bats found in Hernandez’s home were used as weapons. In Kain’s opinion, the fight among Valdez, Ruelas, Castrejon, and the other men outside Hernandez’s house “was a gang-motivated fight.” The fight benefitted the Norteño gang by “boost[ing] their respect, it boosts their notoriety within their own gang, and it disrespects the Sure[ñ]os.”
Defense Case
Clayton Hollopeter, a Los Angeles County Probation Commissioner and creator of a gang intervention program, testified as a gang expert. Hollopeter testified most gang members join a gang by being “jumped in by other gang members for a period of time, usually four or five minutes, it is sort of a proof of your desire to be in the gang, it is a fight.”
Some gang members’ children are “born into” the gang. Very few gang members are “hard core.” According to Hollopeter: “The active gang members may be as high as 20 or 25 percent of a gang’s membership, and there are guys who sometimes do gang stuff together with other gang members, but they still conduct their life in a more or less normal way.” In general, Hollopeter testified, gang members admit gang membership to him.
Yesenia Barriga, Hernandez’s niece, lives with her mother. On the evening of the altercation, Yesenia accompanied Hernandez and his son to a grocery store. They shopped for about two and a half hours, after which Hernandez dropped Yesenia off at home around 9:30 p.m. At around 10:30 p.m., Hernandez dropped off his son at the Barriga home. Hernandez’s son spent the night there. Yesenia, Hernandez’s mother, and Hernandez’s sister all testified they saw a baseball pitching machine and other baseball equipment at Hernandez’s house.
When recalled by defendant, defense counsel asked Clay if it was possible a junior gang member might lie to the police in order to “take the fall” for a senior gang member. Clay responded it was possible and that “it happens.”
DISCUSSION
I. Instructional Error
Defendant argues the trial court erred in failing to instruct the jury on the crimes that qualify as “primary activities” underlying the gang enhancement on the assault count and the charge of membership in a criminal street gang. The People concede the issue. The concession is appropriate.
Defendant was charged with participation in a criminal street gang in violation of section 186.22, subdivision (a). The information also charged a gang enhancement under section 186.22, subdivision (b). To invoke the gang statute’s sentence-enhancement provision and to find defendant guilty of violating section 186.22, the jury was required to find that the gang’s primary activities included the commission of one or more of the offenses enumerated in the gang statute. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322 (Sengpadychith); People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).)
The trial court instructed the jury with CALJIC No. 6.50 on the charge of participation in a street gang and with CALJIC No. 17.24.2 on the gang enhancement. The instructions included reference to “primary activities” and the need to find that one of the gang’s primary activities was the commission of one or more of the crimes listed in section 186.22, subdivision (e). However, the instructions failed to describe the listed offenses but referred vaguely to “the applicable criminal acts” without identifying the crimes that constituted the gang’s primary activities. As a consequence, the instructions failed to inform the jury of a necessary element of the substantive gang offense and the gang enhancement. Failure to instruct on an element of an offense or an enhancement is reversible per se. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.)
We therefore accept the People’s concession and shall remand for retrial.
II. Sufficiency of the Evidence
Defendant argues retrial is barred on the crime of actively participating in a criminal street gang and the gang enhancement under section 186.22, subdivision (b)(1) because the People failed to present sufficient evidence to support the element of “primary activities.” If we find insufficient evidence to support a conviction on a substantive crime, the double jeopardy clauses of the state and federal Constitutions bar retrial. (Burks v. United States (1978) 437 U.S. 1, 18 [57 L.Ed.2d 1]; People v. Hatch (2000) 22 Cal.4th 260, 271-272.)
Although defendant concedes substantial evidence supportive of the primary activities element may consist of expert testimony, he argues neither of the People’s experts stated directly what the gang’s primary activities were. Instead, one expert listed a variety of crimes committed by Norteño gangs, and the other expert testified that rivalry among the gangs led to the commission of both qualifying and nonqualifying crimes. This evidence, defendant contends, is insufficient to support the substantive gang count and the gang enhancement and bars retrial.
The element of primary activities is not satisfied by a general showing that a gang commits crimes. Instead, there must be substantial evidence that a chief or principal occupation of the gang is to commit any of the crimes specified in section 186.22, subdivision (e). (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1004; Sengpadychith, supra, 26 Cal.4th at p. 323.)
Defendant contends none of the gang experts testified that commission of any of the offenses listed in section 186.22, subdivision (e) was a primary activity of the Norteños. Defendant terms Clay’s testimony “too generic” to establish the element of primary activity and failed to show the gang “consistently and repeatedly engaged in this sort of conduct.”
Defendant reads the expert testimony too narrowly. District Attorney Investigator Clay testified that Norteños “commit basically any crimes, they reckless drive, so it is traffic violations all the way to vandalisms, thefts, we have had batteries committed by them, we have had stabbings, we have had shootings, even just simple batteries with a fist.” (Italics added.) Although Clay did not unequivocally state that the Norteño gang’s primary activities included commission of any of the offenses listed in section 186.22, subdivision (e), the jury could reasonably infer from this testimony that one of the primary activities of the Norteños was the perpetration of crimes such as assault with a deadly weapon, attempted murder, or murder, crimes enumerated in section 186.22, subdivision (e).
Defendant also contends “the evidence of the three predicate offenses, one of them occurring five years before the instant offenses and two of them occurring three years later, was insufficient to establish that Norteños consistently and repeatedly committed one or more crimes listed in the gang statute or that a primary activity of the gang was commission of those crimes.” In support, defendant relies on People v. Perez (2004) 118 Cal.App.4th 151 (Perez).
In Perez, a gang expert testified that the gang the defendant belonged to had participated in the retaliatory shootings of a few individuals over a period of less than a week and a beating six years earlier. (Perez, supra, 118 Cal.App.4th at pp. 157, 158, 160.) The court found the testimony insufficient to establish the group’s members consistently and repeatedly committed criminal activity listed in the gang statute. (Id. at p. 160.)
Here, in contrast, prosecution expert Clay testified to three specific Norteño gang crimes, the first in 2000 and the latter two in 2003. These offenses, unlike the offenses in Perez, provide sufficient evidence to establish the Norteños consistently and repeatedly committed crimes enumerated in the gang statute.
Finally, defendant challenges the sufficiency of the evidence that defendant knew the Norteños were engaged in criminal activity. As defendant points out, it is an element of the substantive gang offense that the defendant know the gang’s members engage in a pattern of criminal activity. (People v. Robles (2000) 23 Cal.4th 1106, 1115 (Robles).)
We find the evidence sufficient to establish defendant’s knowledge. A mere admission of gang membership is not sufficient. (Robles, supra, 23 Cal.4th at pp. 1109-1110.) However, here defendant admitted to being a member of the Norteños and also described his involvement in the fight. Defendant described the Sureños yelling disrespectful gang phrases at the Norteños. Defendant yelled back “Norte.” Valdez and defendant fought, and defendant battered Valdez with a bat.
The jury could reasonably conclude from defendant’s testimony that, as a three-year member of the Norteños, he recognized the bad blood between Norteños and Sureños, bad blood that led to criminal acts such as assault and battery. Defendant’s testimony provides sufficient evidence he knew about the Norteño gang’s crimes.
Our review of the record reveals sufficient evidence to support defendant’s conviction of the substantive gang offense and the gang enhancement under section 186.22, subdivision (b)(1). Although the trial court prejudicially erred by failing to properly instruct the jury on the elements of participating in a criminal street gang, double jeopardy does not bar retrial.
Since we vacate defendant’s conviction for actively participating in a criminal gang and the gang enhancement, defendant’s contention regarding defense counsel’s ineffectiveness in conceding defendant’s gang membership is moot.
III. Expert Testimony
At trial, Officer Kain testified that, in his opinion, the fight began when Hernandez drove by the Sureños’ residence and flashed gang signs. Kain stated Hernandez’s action virtually challenged the Sureños to a fight. According to Kain, the gang signs flashed by Hernandez, coupled with the two gangs yelling gang phrases back and forth, led him to believe the fight was “gang-motivated.”
Defendant argues that since self-defense was a potential defense in the case, this testimony usurped the jury’s function of determining who started the fight. Defendant’s self-defense theory rests upon evidence that “Valdez was looking to fight Hernandez because he was mad” about a prior fight; the Sureños started the fight by arriving at Hernandez’s house and throwing rocks at defendant, his brother Miguel, and Hernandez. Although this version of events was undercut by Ruelas’s testimony that Hernandez had previously driven by Castrejon’s house throwing gang signs, defendant contends the testimony of Hernandez’s niece, Yesenia Barriga, that she and Hernandez had been grocery shopping at the time established Hernandez was not driving around town making gang challenges.
Since under the law of self-defense the jury was required to determine who instigated the fight and decide whether the victim’s response was reasonable, defendant argues it was error for the court to allow Kain to testify about which party he believed started the fight.
Defendant’s argument would ordinarily be foreclosed by his counsel’s failure to assert a timely objection at trial. Nonetheless, we will address the claim on the merits to avoid consideration of defendant’s derivative ineffective assistance of counsel claim.
Evidence Code section 801 allows the admission of expert opinion that is “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] . . . [¶] [b]ased on matter . . . perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . . . .” A trial court has wide discretion to admit or exclude expert testimony, a discretion we will not disturb absent a clear abuse of that discretion. (People v. Manriquez (1999) 72 Cal.App.4th 1486, 1492.)
The use of expert testimony in the area of gang sociology and psychology is well established. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370-1371.) The culture and habits of criminal street gangs are appropriate subjects of expert testimony. (Gardeley, supra, 14 Cal.4th at p. 617.)
In addition, otherwise admissible expert opinion testimony that embraces the ultimate issue to be decided by the trier of fact is admissible. (Evid. Code, § 805.) This rule, however, does not permit the expert to express any opinion he or she may have. “‘Undoubtedly there is a kind of statement by the witness which amounts to no more than an expression of his general belief as to how the case should be decided . . . . There is no necessity for this kind of evidence; to receive it would tend to suggest that the judge and jury may shift responsibility for decision to the witnesses; and in any event it is wholly without value to the trier of fact in reaching a decision.’ [Citation.]” (Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1182-1183 (Summers).)
Defendant argues Kain’s opinion is just such a statement. In support, defendant cites People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew). There, the expert testified that when one gang member possesses a gun, every other gang member knows of the gun and will constructively possess the gun. (Id. at p. 652.) This testimony provided the only evidence to establish the elements of the crime. (Id. at p. 658.)
The appellate court found the trial court erred in admitting the testimony because the expert testified not about generalized habits and customs of gangs, but about the subjective knowledge and intent of each occupant of the car. (Killebrew, supra, 103 Cal.App.4that p. 658.) The court noted the expert simply informed the jury of his belief about the suspects’ knowledge and intent, issues properly reserved to the trier of fact. (Ibid.)
The Killebrew court distinguished People v. Muniz (1993) 16 Cal.App.4th 1083 (Muniz). In that case, an officer testified that in his opinion the defendant, a known gang member, was preparing to commit a drive-by shooting when he was observed holding a loaded rifle in an illegally parked car with three other known gang members. The officer based his opinion on facts he observed, not on inferences based on an incident to which the defendant was not connected. In addition, the defendant’s conviction was based on not only the officer’s observations, but also on the defendant’s admission that he was on his way to rival gang territory to do a retaliatory gang shooting. (Killebrew, supra, 103 Cal.App.4th at pp. 658-659; Muniz, supra, 16 Cal.App.4th at p. 1086.)
The situation in the present case resembles Muniz, not Killebrew. As in Muniz, Kain testified based on facts presented by witnesses at trial in conjunction with his general observations regarding gang activities. In addition, defendant’s conviction was based not just on Kain’s testimony, but on the testimony of defendant and others involved in the fight.
Kain’s testimony did not amount to “an expression of his general belief as to how the case should be decided.” (Summers, supra, 69 Cal.App.4th at p. 1182.) Therefore, the court did not err in admitting Kain’s testimony as to the genesis of the fight between the two rival gangs.
IV. Prosecutorial Misconduct
Defendant contends the prosecutor committed prejudicial misconduct during closing argument in stating: “Like it or not, we can no longer ignore the fact that there are gangs in Tehama County. It used to be a big city thing, it may have been the reason why some of you moved up here. To get away from that sort of thing. There are a number of documented Norte[ñ]os and Sure[ñ]os in Tehama County and some of them have gone to prison for some serious crimes, [during] jury selection several of you indicated that you had an awareness that there was gang activity in our communities, in our area. And they are here, they are no longer a big city problem, they are our problem and we have to deal with them.” The prosecutor later commented: “I would especially ask you to look at Count 5, which is the gang charge. Send these guys a message because they really need one.”
According to defendant, the prosecutor’s words told jurors “to convict defendants in order to help solve the newly arisen gang problem in the county.” These comments led the jury to convict defendant not because he was guilty of the charged crimes, but in order to protect community values and preserve order. This, defendant contends, constitutes misconduct. Although defense counsel failed to object to these comments by the prosecutor, defendant claims any objection would have been futile. In the alternative, defendant contends defense counsel performed ineffectively in failing to object; counsel could not have had any strategic reason for not objecting.
Defendant argues the present case bears a close resemblance to People v. Lopez (2006) 138 Cal.App.4th 674. However, the Supreme Court granted review on July 19, 2006, S143615, subsequent to the filing of appellant’s opening brief.
A prosecutor commits misconduct when he or she uses deceptive or reprehensible methods in an effort to persuade the jury. When the claim of misconduct focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Wilson (2005) 36 Cal.4th 309, 337; People v. Samayoa (1997) 15 Cal.4th 795, 841.)
A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. “‘The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence. Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of society’s woes is far too heavy a burden for the individual criminal defendant to bear.’” (United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1149, quoting United States v. Monaghan (D.C. Cir. 1984) 741 F.2d 1434, 1441.)
The prosecutor’s comments in the present case veered dangerously close to asking the jurors to convict defendant in an effort to rid their county of criminal gang activity. However, the comments, though inappropriate, do not amount to misconduct. The trial court instructed the jury pursuant to CALJIC Nos. 1.00 and 1.02 that the attorneys’ statements were not evidence, that it must follow the law as given by the court and ignore contradictory statements by the attorneys, and that it must not decide the case based on sympathy or prejudice.
We presume the jury relied on these instructions, not the prosecutor’s arguments, in convicting defendant. Under the court’s instructions, the jury could completely disregard all counsel’s arguments. We also presume “‘the jury treated the court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ [Citation.]” (People v. Morales (2001) 25 Cal.4th 34, 47.)
Even assuming the comments amounted to prosecutorial misconduct, defense counsel failed to object and request a timely admonition at trial. If the defense fails to object, a claim of prosecutorial misconduct is reviewable only if an objection would have been futile or would not have cured the harm caused by the misconduct. (People v. Welch (1999) 20 Cal.4th 701, 753.) Here, the complained-of comments are not so inflammatory or egregious that a timely admonition would not have cured any resulting harm.
Nor do we find defense counsel performed ineffectively in failing to object to the comment. In order to show ineffective assistance of counsel, defendant must show that trial counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate. In addition, defendant must show it is reasonably probable a more favorable determination would have resulted had defense counsel performed effectively. (People v. Price (1991) 1 Cal.4th 324, 440.)
The prosecutor’s brief remark pales in comparison to the evidence amassed against defendant. Competent defense counsel could have determined as a tactical matter not to draw further attention to an otherwise inconsequential argument by objecting. Defendant admitted to belonging to the Norteños and acknowledged responding to the Sureño gang’s taunts with a Norteño slur. Defendant told Officer Kain that he grabbed Valdez as Valdez came at him. Defendant hit Valdez with a bat, and after Valdez fell, defendant pummeled him in the back of the head with the bat. It is not reasonably probable a more favorable determination would have resulted had defense counsel objected to the prosecutor’s remarks.
DISPOSITION
Defendant’s conviction for actively participating in a criminal street gang (count V) and the gang enhancement associated with count II are reversed and remanded to the trial court for retrial. In all other respects, the judgment is affirmed.
We concur: MORRISON , J., ROBIE , J.