Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from judgments of the Superior Court of Fresno County. Ct. No. F03906249-8, Gary Austin, Judge.
Roger T. Nuttall for Defendant and Appellant Jerry Neves, Jr.
Law Offices of Salvatore Sciandra and Salvatore Sciandra for Defendant and Appellant Reynaldo Salcido Rubio.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French, Louis M. Vasquez, Stephanie A. Mitchell, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
Appellants Jerry Neves, Jr., and Reynaldo Salcido Rubio were tried as codefendants and convicted of multiple offenses. They each raise several challenges to their convictions. We will affirm the judgments.
FACTUAL AND PROCEDURAL SUMMARY
On May 22, 2003, Jose Breceda had an argument with one of Rubio’s relatives over a Bulldog jersey. Three days later while Jose and his brother Sergio Breceda were installing a stereo in Sergio’s car, Rubio arrived, climbed out of the passenger side of a car, and pulled out a semiautomatic handgun as he walked toward Jose. Rubio stated, “All right. Let’s handle business. I’ve got my piece.” Rubio approached Jose, chambered a round, and hit Jose in the back of the head with the gun. The gun went off.
We will refer to Jose Breceda and Sergio Breceda by their first names, not out of disrespect but to ease the reader’s task.
When Sergio came around the car to see what was going on, Rubio pointed the gun at both Jose and Sergio. Rubio went to his car, still pointing the gun at Jose, climbed in and left.
On July 7, 2003, Roger Clark was engaged in a fistfight with another person when Rubio punched Clark in the mouth, causing Clark to lose a tooth and lose consciousness.
On September 9, 2003, Luis Rios was at a home in Pinedale. Around dusk, Michael Rios arrived and he and Luis headed to a market to get some beer. As they were walking, three people, including Rubio and Neves, approached them. Neves pulled out a gun and pointed it at Luis and Michael. When Michael asked what Neves was going to do, Neves replied that he was going to kill Michael.
We will refer to Luis Rios and Michael Rios by their first names, not out of disrespect but to ease the reader’s task.
Michael and Neves struggled over the gun. When Luis went to help Michael, Rubio pulled a gun on Luis. Rubio hit Michael on the back of the head with the gun. Neves fired a shot at Michael that grazed the side of Michael’s head.
The prosecution filed an information charging Rubio with two counts of possession of a firearm by a felon, three counts of assault with a firearm, and two counts of battery with serious bodily injury. The prosecution also alleged that (1) Rubio had a previous strike conviction; (2) he personally used a firearm; and (3) all the offenses were committed for the benefit of a criminal street gang.
The prosecution charged Neves with attempted murder, assault with a firearm, battery with serious bodily injury, and being a felon in possession of a firearm. The prosecution also alleged that Neves personally used a firearm, and all the offenses were committed for the benefit of a criminal street gang.
At trial, California Highway Patrol Investigator Anthony Gates testified as an expert on gangs. Gates had been assigned to the Multi-Agency Gang Enforcement Consortium for over five years. Gates testified that the Bulldogs were the largest gang in Fresno County, with over a thousand members. The Bulldogs wear the color red and anything associated with Fresno State athletics. One subset of the Bulldogs is the Pinedale Bulldogs or the Vario Pinedale Norte. The Pinedale Bulldogs subset has approximately 40 to 50 validated members and claims the area bordered by Blackstone, Palm, Nees, and Herndon. The Pinedale Bulldogs’ primary activities include narcotics sales, vehicle theft, and assaults with deadly weapons.
Gates opined that Rubio was a Pinedale Bulldog based upon seven self-admissions, numerous tattoos, association with other members of the Pinedale Bulldogs, and identification as a gang member by two reliable sources. Gates also was of the opinion that Neves was a Pinedale Bulldog. Neves had several tattoos specific to the Pinedale Bulldogs; he was known to associate with Pinedale Bulldog gang members; he self-admitted being a Pinedale Bulldog on two occasions; and he was identified as a gang member by a reliable source. Gates also testified that two other people, Victor and Adrian Baeza, were members of the Pinedale Bulldogs and both had prior convictions for burglary.
According to Gates, intimidation and respect are everything for a gang. Gangs use intimidation to intimidate rivals as well as a community. This makes it easier to commit crimes within a neighborhood because the community is reluctant to report crimes to the police. Gates testified that weapons generate respect, intimidating the community and making it less likely that rival gangs will confront the gang.
Gates further testified that it is beneficial for gangs to fight on a public street, as this intimidates the community and reinforces the idea that the gang will resort to violence. Personal disputes of one gang member can involve the entire gang because it is important for gang members to support each other. Rubio and Neves are cousins.
Gates reviewed police reports of the incident involving Michael and Luis. He opined that the assault benefitted the Pinedale Bulldogs. The incident occurring in the open enhanced the reputation of the Pinedale Bulldogs in the community and created further fear and intimidation throughout the community. That Rubio and Neves carried weapons sent a message to the community that the gang was violent and not afraid to use firearms. Based upon the reports, Gates determined that the incident between Michael and Neves came about because of an ex-girlfriend of Neves’s, whom Michael was dating.
The jury convicted Rubio of two counts of being a felon in possession of a firearm and three counts of assault with a firearm. As to three of the counts, the jury also found true that Rubio personally used a firearm. In a bifurcated proceeding, the jury found true that Rubio committed three of the offenses in association with a criminal street gang, within the meaning of Penal Code section 186.22, subdivision (b)(1). Rubio was sentenced to a total term of 20 years 4 months.
All further statutory references are to the Penal Code unless otherwise specified.
The jury convicted Neves of assault with a firearm and being a felon in possession of a firearm. The jury also found true that Neves personally used a firearm in the commission of the assault. Neves admitted his prior strike conviction. In the bifurcated proceeding, the jury found true the criminal street gang enhancement.
Neves substituted in new counsel who filed a motion for new trial, which the trial court denied.
Thereafter, the trial court denied Neves’s motions to strike his prior conviction and the gang enhancement for sentencing purposes. Neves was sentenced to a determinate term of 26 years in prison.
DISCUSSION
Neves and Rubio both contend: (1) the gang enhancement finding was not supported by substantial evidence; (2) the trial court erred in admitting Luis’s prior inconsistent statements; and (3) instructional error for failing to instruct with CALJIC No. 2.80. Neves separately contends trial counsel was ineffective for failing to file a motion to sever. Rubio separately contends (1) the prosecution committed prejudicial misconduct by failing to limit witnesses’ testimonies regarding fear and intimidation, and (2) trial counsel was ineffective in the gang enhancement phase of the trial.
I. Instructional Error
The claim of instructional error for failure to instruct with CALJIC No. 2.80 is a mistake. The jury was instructed with CALJIC No. 2.80 in the bifurcated trial on the gang enhancement.
II. Admission of Prior Statements
Neves and Rubio contend the trial court erred in admitting out-of-court statements made by Luis. We disagree.
Outside the presence of the jury, Luis refused to take an oath, testify, or answer questions, even after the trial court explained that it would hold him in contempt. The trial court indicated it would incarcerate Luis until he complied with the court’s order to testify. When called to testify before the jury, Luis refused to testify and refused to give a reason. The trial court found that Luis had willfully disobeyed a court order and ordered that Luis be incarcerated without bail until he testified.
Four days later, Luis testified. He stated that he did not want to testify because “I got a family. I want them to be safe, that’s all.” Luis claimed not to remember much about the incident, stating, “I’ve been trying to block it out.”
During his testimony, Luis claimed that he had been drinking heavily that day; he could not recall details of the fight; and he could not recall making statements to police officers. Even after he reviewed the police reports, Luis claimed he could not recall the statements. Luis did testify, however, that the events were fresh in his mind at the time he spoke to the officers and that his statements to the officers were truthful.
The trial court heard argument on the introduction of prior statements made by Luis to the officers. The trial court found that Luis exhibited the demeanor of someone who was afraid. Luis refused to testify for several days, despite being incarcerated. When he did testify, he expressed concern for the safety of his family. Luis claimed not to remember many details of the incident that he would be unlikely to forget, such as the statement by Neves that he was going to kill Michael, the gun firing during the incident, and the bullet striking Michael.
The trial court found that Luis was evasive and his failure to recall events not credible and ordered Luis’s prior statements admitted as prior recollection recorded or prior inconsistent statements.
Under Evidence Code section 1235, a prior inconsistent statement of a witness is admissible to impeach the witness and to prove the truth of the matters asserted therein. (People v. Green (1971) 3 Cal.3d 981, 985.) Under ordinary circumstances, the testimony of a witness that he or she does not remember a particular event is not inconsistent with a prior statement by the witness describing the event. (Id. at p. 988.) If, however, there is a reasonable basis for concluding that the witness’s failure to recall events is untruthful or the result of evasion, then the prior statements are admissible. (People v. Ledesma (2006) 39 Cal.4th 641, 711.)
Given Luis’s marked reluctance to testify and his expressed concern for his family’s safety, the trial court found that Luis’s claimed lack of recall was untruthful and evasive. This finding provides a basis for admitting the prior statements of Luis as inconsistent statements.
We conclude the trial court did not err in admitting the statements.
III. Gang Enhancement
Rubio and Neves attack the sufficiency of the evidence to support the gang enhancement. They both contend there was insufficient evidence to establish a pattern of criminal gang activity. In addition, Neves contends there was no evidence that one of the predicate offenses was committed by the Pinedale Bulldogs. They both also contend the evidence was insufficient to establish that the assault on Michael was committed for the benefit of a criminal street gang.
The reviewing court’s task is to review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Earp (1999) 20 Cal.4th 826, 887.) The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on “‘isolated bits of evidence.’” (Johnson, at p. 577; People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)
“‘“Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.]” [Citation.]’” (People v. Bradford (1997) 15 Cal.4th 1229, 1329 (Bradford).)
We apply the same standard to convictions based largely on circumstantial evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745.) “‘“‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’” [Citations.]’ [Citations.]” (Bradford, supra, 15 Cal.4th at p. 1329.) “We do not reweigh evidence or redetermine issues of credibility.” (People v. Ferraez (2003) 112 Cal.App.4th 925, 931 (Ferraez).)
An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]” (People v. Reilly (1970) 3 Cal.3d 421, 425.) In assessing the sufficiency of the evidence, the reviewing court considers the evidence in the light most favorable to the judgment and presumes the existence of every fact the trier of fact could reasonably deduce. (People v. Mincey (1992) 2 Cal.4th 408, 432.)
The Street Terrorism Enforcement and Prevention Act was enacted by the Legislature in 1988, based on the Legislature’s finding that “the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods.” (§ 186.21.) “Section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang. To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group’s primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group’s members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]” (People v. Duran (2002) 97 Cal.App.4th 1448, 1457 (Duran).)
“[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
The subject matter of the culture and habits of criminal street gangs meets the criteria for the admission of expert testimony because such evidence is “‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’” (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley); In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.).) “It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. [Citation.]” (Frank S., at p. 1196.) Such areas include “testimony about the size, composition or existence of a gang [citations], gang turf or territory [citations], an individual defendant’s membership in, or association with, a gang [citations], the primary activities of a specific gang [citations], motivation for a particular crime, generally retaliation or intimidation [citations], whether and how a crime was committed to benefit or promote a gang [citations], rivalries between gangs [citation], gang-related tattoos, gang graffiti and hand signs [citations], and gang colors or attire [citations].” (People v. Killebrew (2002) 103 Cal.App.4th 644, 657 (Killebrew), fns. omitted.)
Evidence Code section 802 provides, in pertinent part, that “A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter … upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion.” Expert testimony may be “premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions” and is reliable. (Gardeley, supra, 14 Cal.4th at p. 618.) If the threshold requirement of reliability is met, “even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony.” (Ibid.; see also Duran, supra, 97 Cal.App.4th at p. 1463.) Since Evidence Code section 802 permits an expert witness to “‘state on direct examination the reasons for his opinion and the matter … upon which it is based,’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]” (Gardeley, at p. 618.)
Thus, an officer testifying as a gang expert, just like any other expert, may give testimony that is based on hearsay, including conversations with gang members as well as with the defendant. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324; Gardeley, supra, 14 Cal.4th at p. 620; People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9.) A gang expert’s opinion also may be based upon the expert’s personal investigation of past crimes by gang members and information about gangs learned from the expert’s colleagues or other law enforcement agencies. (Sengpadychith, at p. 324; Gardeley, at p. 620; Vy, at p. 1223, fn. 9.)
“A gang expert may render an opinion that facts assumed to be true in a hypothetical question present a ‘classic’ example of gang-related activity, so long as the hypothetical is rooted in facts shown by the evidence. [Citation.]” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4.) This is true even if the gang expert’s opinion in effect embraces an ultimate issue in the case. (People v. Gonzalez (2006) 38 Cal.4th 932, 946-947 & fn. 3.) “Otherwise admissible expert opinion testimony which embraces the ultimate issue to be decided by the trier of fact is admissible.” (Killebrew, supra, 103 Cal.App.4th at p. 651.)
Predicate Offense and Pattern of Gang Activity
The contentions raised by Neves and Rubio essentially amount to a challenge to expert testimony on gangs and a request that this court reweigh the evidence. Expert testimony on the elements of the gang enhancement is admissible as evidence. (Frank S. supra, 141 Cal.App.4th at p. 1196; Killebrew, supra, 103 Cal.App.4th at p. 651.) We decline the invitation to reweigh that evidence. (Ferraez, supra, 112 Cal.App.4th at p. 931.)
Based upon his experience, training, and numerous contacts with gang members, Gates testified that the Pinedale Bulldogs’ primary activities included transportation and sale of narcotics, vehicle thefts, and assaults with firearms and deadly weapons. These offenses are all enumerated offenses that satisfy the primary activities element. (§ 186.22, subd. (e)(1), (4), (10) & (25).)
Additionally, Rubio and Neves added to the pattern of criminal activity with the present offenses. They both were charged with assault with a firearm, which qualifies as an enumerated offense. (§ 186.22, subd. (e)(1).)
As for a predicate offense, and additional evidence of a pattern of criminal gang activity, we need look no further than Rubio’s own convictions. Rubio had a prior conviction for sale of narcotics, which is one of the enumerated offenses and qualifies as a predicate offense. (§ 186.22, subd. (e)(4).)
Furthermore, burglary is a predicate offense and Gates testified that two Pinedale Bulldog members, Victor and Adrian Baeza, had convictions for burglary. (§ 186.22, subd. (e)(11).) Abstracts of judgment of the offenses were admitted into evidence.
Commission for the Benefit of the Gang
Gates opined that the assault on Michael and Luis by Neves and Rubio and their use of weapons benefitted the Pinedale Bulldogs. Gates testified that because the assault took place on Pinedale Bulldog territory, it enhanced the reputation of the gang in the community. The assaults served to intimidate the community and engender fear and respect for the gang. Additionally, Rubio and Neves acting together benefitted the gang in that it is important in the gang culture for gang members to support each other. That the use of weapons and the assault took place in public also benefitted the gang. A public assault and display of weapons generates respect for the gang.
This testimony is sufficient for a reasonable jury to find that the assault was committed for the benefit of, or in association with a criminal street gang, or with the intent to promote or assist in criminal conduct by a gang member. (§ 186.22, subd. (b)(1).)
IV. Ineffective Assistance of Counsel
Motion to Sever
Neves contends he received ineffective assistance of counsel because his trial counsel failed to make a motion to sever his case from that of his codefendant, Rubio. Neves argues that such a motion would have been granted.
Neves bears the burden of establishing inadequate assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425 (Pope), overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10 (Berryman), overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) To succeed here the appellate record must make it clear that the challenged omission was a “mistake beyond the range of reasonable competence. [Citations.]” (People v. Montiel (1993) 5 Cal.4th 877, 911.) To prevail, Neves must show: “(1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel’s failings. [Citations.]” (People v. Duncan (1991) 53 Cal.3d 955, 966.)
Once this burden is met, “the appellate court must look to see if the record contains any explanation for the challenged aspect of representation” such as an “informed tactical choice” by counsel. (Pope, supra, 23 Cal.3d at p. 425.) “Where the record does not illuminate the basis for the challenged acts or omissions [of counsel], a claim of ineffective assistance is more appropriately made in a petition for habeas corpus.” (Id. at p. 426.)
In the instant case, the record does not show why Neves’s trial counsel did not file a motion to sever. Nor is there any indication that counsel was asked to explain this omission. It is entirely possible, however, that trial counsel determined that such a motion had no merit. As Neves has not overcome the presumption that the challenged conduct was part of trial counsel’s strategy, we cannot assume counsel was incompetent. On this record, we cannot say counsel’s performance was deficient.
Even assuming competent counsel would have moved to sever the cases, Neves fails to show prejudice, i.e., that the motion would have been granted. Section 1098, in pertinent part, provides that “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials.”
“The matter of granting separate trials nevertheless remains largely within the discretion of the trial court [citation], guided by the principles set out in People v. Massie (1967) 66 Cal.2d 899. The court should separate the trial of codefendants ‘in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.’ [Citation.]” (People v. Turner (1984) 37 Cal.3d 302, 312, overruled on another point in People v. Anderson (1987) 43 Cal.3d 1104, 1149-1150.)
Neves and Rubio initially were to be tried separately. The People moved to consolidate and the trial court granted the motion. In part, the People moved to consolidate because the evidence in support of the charged offenses against both Rubio and Neves would be cross-admissible to establish the elements of the gang enhancement. Neves did not oppose the motion.
Later, when Neves sought a new trial claiming he was prejudiced by the consolidation, the trial court stated, “All of that evidence would have come in either way.” The Legislature has expressed a preference for joint trial of jointly charged defendants, and the advantages of such a trial do not justify severance of an otherwise proper joint trial. (People v. Freeman (1994) 8 Cal.4th 450, 496.)
Neves has not shown that failure to move for severance was ineffective assistance, or that the filing of such a motion would have been successful. (People v. Grant (1988) 45 Cal.3d 829, 864-865.)
Gang Enhancement
Rubio contends his trial counsel was ineffective during the trial on the gang enhancement. As support for this claim, Rubio cites the brevity of counsel’s argument. Other than brevity, Rubio has not cited any specifics as to how or why counsel was ineffective. Brevity alone is not grounds for finding counsel ineffective. The length of an argument is not a measure of its quality. (People v. Cudjo (1993) 6 Cal.4th 585, 634-635.)
Rubio’s Prior Conviction
Rubio contends his trial counsel was ineffective because counsel elicited from Gates information that Gates personally had observed Rubio engage in the sale of narcotics. This information, however, was admissible because it established a predicate offense. It is reasonable to assume that trial counsel made a tactical decision to elicit this information in his own way, rather than have it introduced by the People.
V. Prosecutorial Misconduct
Rubio claims the prosecutor committed misconduct because he inflamed the passions of the jury by continuously exploiting the witnesses’ reluctance to testify. Rubio’s claim fails.
First, Rubio failed to object in the trial court to most of the testimony to which he now objects. He has forfeited any claim of error by failing to object. (Berryman, supra, 6 Cal.4th at p. 1072.)
In the two instances where Rubio did object, the trial court sustained one objection and overruled the other. Rubio objected to a witness stating that he was testifying even though he had concerns for his safety. This type of comment, however, ordinarily is admissible since it reflects on a witness’s credibility. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369.)
The prosecutor’s comment to “Hold them responsible for the things they’ve done, for the intimidation and fear they’ve inflicted on families” was objected to and the objection sustained. There is no indication in the record that the jury ignored the trial court’s ruling and used this comment in its deliberations.
VI. No Cumulative Error
Having concluded there is no error, or no prejudicial error, it necessarily follows that there is no cumulative error.
DISPOSITION
The judgments are affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., KANE, J.