Opinion
H034186
12-21-2011
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL SANDOVAL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC651901)
Defendant Miguel Angel Sandoval appeals a judgment entered following a jury trial during which he was convicted of second-degree murder committed for the benefit of a criminal street gang.
Defendant asserts the following errors on appeal: (1) there was insufficient evidence to support the murder conviction and the gang enhancement; (2) the court erred in admitting and refusing to admit certain evidence; (3) defendant was denied effective assistance of counsel; (4) the court erred in its instructions; and (5) the errors were cumulative.
STATEMENT OF THE FACTS AND CASE
In December 2006, the victim in this case, Robert Ojeda and his fiancée, Isabel Perez, went to Marina Foods shopping center in San Jose. Perez was driving the car, with Ojeda in the passenger's seat. Their two-year-old son and their friend, Deborah Delgadillo were in the backseat of the car.
When they got to the shopping center, Perez stopped the car to let Delgadillo out to go to Marina Foods, while she and Ojeda drove toward the cigarette store. As they were driving in the parking lot, Ojeda said, "Stop the car." "That guy said my name." Perez stopped the car, and Ojeda got out.
As Ojeda was standing by the car, Perez saw two Hispanic men approach him. The two men were later identified as Roberto Herrera and defendant. Herrera said to Ojeda, "Are you from the south side?" Ojeda said, "No, I'm from the east side." Herrera and Ojeda shook hands. Ojeda reached out to shake defendant's hand, and defendant did not take it. Ojeda said, "What's up? You're not going to shake my hand or what?" Herrera then put a small gun to Ojeda's head, shot and killed him.
Herrera and defendant quickly walked away from Ojeda and got into a Cadillac Escalade that defendant had driven to the shopping center. Omar Ramirez-Solorio, who had been in the backseat on the drive to the shopping center, was now in the driver's seat, and drove Herrera and defendant away from the scene. Also in the car at the time was Florencio Escalante, who had been a victim of a gang-related shooting a week prior. Defendant was happy and laughing, and said, "Let's go get another," and "Let's celebrate."
Defendant was a member of Logan 33rd, a Sureno gang from San Diego. Solorio and Herrera were members of Clanton, a Sureno gang. Escalante was a member of 18th Street, a Sureno gang.
Surenos and Nortenos are rival Hispanic gangs that commit crimes ranging from assaults to robberies and murder. Each gang has its own subsets, and Clanton members are known to spend time with other Sureno gang members who are not Clanton. There was evidence of 10 prior offenses committed by Clanton members, including assault, auto theft and attempted murder.
Surenos often call Nortenos "sodbusters," or "busters," because Nortenos were originally from farming towns. "[B]uster hunting," refers to Surenos looking for Norteno members to attack. Buster hunting includes deciding if a person is a member of a rival gang by looking at his clothing color, hairstyle and race, or asking him "[D]o you bang?" or "Are you Southsider?"
The victim in this case, Ojeda, was a member of the Norteno gang. On the day of the shooting, Ojeda was wearing all black clothing, with K-Swiss shoes that had red stripes on them. "K-Swiss" has been known to mean "Kill Surenos when I see Surenos," and red is associated with the Norteno gang. The Marina Foods shopping center where the shooting happened is known as Norteno gang territory. Salvador Reyna, defendant's neighbor, heard defendant and Solorio talking about going buster hunting, saying they were "going to kick some buster's ass."
Defendant was charged by information with murder (Pen. Code, § 187). The information also alleged defendant committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that the principal personally used a firearm (§ 12202.53, subds. (d) & (e)(1)).
All further unspecified statutory references are to the Penal Code.
Following a jury trial, defendant was convicted of second-degree murder, and the enhancements were found true. Defendant was sentenced to 40 years to life in prison.
DISCUSSION
Substantial Evidence
Defendant asserts there was insufficient evidence to support his murder conviction, and the finding that the crime was committed for the benefit of a criminal street gang.
In addressing a challenge to the sufficiency of the evidence supporting a conviction, we examine the "whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We presume in support of the judgment "the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]" (Ibid.)However, the Court of Appeal "was not created . . . merely to echo the determinations of the trial court. A decision supported by a mere scintilla of evidence need not be affirmed on review." ' " (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651-652.)
It is the appellant's burden to establish that the judgment is not supported by substantial evidence. (In re Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1011.) In meeting that burden, the appellant is charged with presenting an adequate record from which the error is demonstrated. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295).
Murder Conviction
In this case, the prosecution proceeded against defendant on the murder charge on a theory of aiding and abetting Herrera in the commission of the crime, or conspiring with Herrera to commit the crime. Defendant asserts the evidence produced at trial was insufficient to establish his guilt under these theories.
"All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, . . . are principals in any crime so committed." (§ 31.) The rationale for finding the defendant guilty as an accomplice has been described as follows: " '[W]hen an accomplice chooses to become a part of the criminal activity of another, she says in essence, "your acts are my acts," and forfeits her personal identity. We euphemistically may impute the actions of the perpetrator to the accomplice by "agency" doctrine; in reality, we demand that she who chooses to aid in a crime forfeits her right to be treated as an individual.' [Citation.]" (People v. Prettyman (1996) 14 Cal.4th 248, 259.) To be found guilty as a principal of a crime the defendant did not personally commit, the prosecution must show that the "aider and abettor act[ed] with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citations.]" (People v. Beeman (1984) 35 Cal.3d 547, 560.) Factors the jury may consider when assessing aiding and abetting "include presence at the scene of the crime, companionship, and conduct before and after the crime, including flight." (People v. Haynes (1998) 61 Cal.App.4th 1282, 1294.)
A person may not be found guilty of a crime as an aider and abettor simply because he or she was present when the crime was committed or failed to take action to prevent it; those factors, however, are ones that a trier of fact may consider in assessing culpability. (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530.) Similarly, a person's knowledge of another's criminal purpose is insufficient of itself to support aider and abettor culpability; the person "must also share that purpose or intend to commit, encourage, or facilitate the commission of the crime. [Citation.]" (Id. at p. 530.)
Here, the prosecution produced ample evidence to support the theory that defendant aided and abetted Herrera in the commission of the crime. Specifically, defendant was a member of Logan 33rd, a subset of the Sureno gang. Herrera, the shooter, and Solorio, the getaway driver, were members of Clanton, a subset of the Sureno gang. Escalante, a passenger in the car with Herrera, was a member of 18th Street, a subset of the Sureno gang. Escalante had been shot in a gang-related incident that occurred on November 27, 2006, before the shooting in this case that occurred on December 3, 2006.
Sureno and Norteno gangs are rivals. Both gangs have a culture of violence and commit crimes upon each other in retaliation for crimes or disrespect. Members of Clanton often participate with other Sureno gang members in criminal activity.
On the day of the killing, defendant and Solorio were heard talking about going "buster hunting," or looking for Norteno gang members to attack. The Marina Foods shopping center was considered Norteno territory. When Herrera and defendant arrived at the Marina Foods shopping center, they walked around together for approximately 10 minutes without entering any stores. Defendant knew Herrera had a gun with him. The victim was wearing shoes with red stripes, and the color red is associated with the Norteno gang. Just before Herrera shot the victim, he asked him if he was from the south side, meaning Sureno, to which the victim responded that he was from the east side.
After the shooting, Herrera and defendant went immediately back to their car where Solorio was waiting in the driver's seat with the car running ready to leave. When Solorio drove the car away from Marina Foods, defendant did not appear to be surprised or upset, saying "Let's go get another," and "Let's celebrate."
The evidence at trial was sufficient to support defendant's conviction under a theory of aiding and abetting. Defendant was not only present at the scene, he acted with Herrera in surveying the parking lot for victims, knew Herrera had a gun with him, was heard talking about looking for Nortenos to attack, and showed no surprise after the shooting while fleeing from the scene. (See, e.g., People v. Haynes, supra, 61 Cal.App.4th at p. 1294.) Based on the evidence, the jury could reasonably conclude that defendant, Herrera, Solorio and Escalante, all members of the Sureno gang, went to a known Norteno gang territory looking for a Norteno victim in retaliation for the shooting of Escalante that occurred a week prior to the crime in this case.
Viewing the whole record in a light most favorable to the prosecution, we conclude that a rational trier of fact could conclude that defendant aided and abetted Herrera in the shooting of the victim. There was sufficient evidence to support the murder conviction in this case.
Gang Enhancement
Defendant asserts there was insufficient evidence to support the conclusion that the murder was 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." (§ 186.22, subd. (b)(1).) In particular, defendant points to the fact that there was no evidence presented that he did displayed gang signs, wore gang clothing or engaged in any gang graffiti while the murder was committed.
The arguments defendant raises are similar to those in People v. Romero (2006) 140 Cal.App.4th 15 (Romero),where the court found sufficient evidence to support a finding that the crime was committed for the benefit of a criminal street gang. In Romero, the defendant was a Hispanic gang member. He picked up a fellow gang member and third person, displayed a rifle, and said " 'Let's go do this. . . .' " (Id. at p. 17.) They drove into an area controlled by a rival African-American gang, with whom the defendant's gang been fighting a violent war for the past three years, and approached a liquor store, known as a hangout of the rival gang. (Id. at pp. 17, 19.) They saw two African-American men standing outside and immediately fired at them, killing one. (Id. at p. 17.) At trial, a gang expert testified that the shootings were committed to benefit the gang because there was no reason a person from defendant's gang would be anywhere near that liquor store unless they were expecting or looking for trouble. (Id. at p. 19.) The expert further explained that "whether or not the victims were gang members, a shooting of any African American men would elevate the status of the shooters and their entire gang. Further, [the defendant] admitted that the Latino men in his neighborhood were having problems with the African American men." (Ibid.)
In determining that the evidence was sufficient to support the gang enhancement, the Romero court was not concerned that there was no evidence that the defendants wore gang colors or used gang slogans while committing the crime. The gang expert's testimony about gang culture and rivalries was sufficient to create an inference the shootings were gang related. (Romero, supra, 140 Cal.App.4th at p. 19.)
Here, while defendant is correct that there was no evidence that defendant wore gang colors, or used slogans or signs during the murder, there was sufficient additional evidence to support the gang enhancement in this case. As discussed above regarding the evidence presented to support the theory of aiding and abetting, there was sufficient evidence that the murder was committed to benefit a street gang. The Surenos and Nortenos were rival Hispanic gangs that believed in retaliating against those who confronted or assaulted one of their members. The target of the retaliation did not need to be the person responsible for the prior assault. Defendant, Herrera, Solorio and Escalante were all members of the Sureno gang, and went to the Marina Foods shopping center, which was a known Norteno gang territory. Defendant and Solorio discussed going "buster hunting," or looking for Norteno victims earlier in the day of the shooting. A rational trial of fact could conclude that the four went to Marina Foods looking for a Norteno victim to attack in retaliation for Escalante's shooting that occurred a week prior.
We find the evidence was sufficient to support the enhancement in this case that murder was 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." (§ 186.22, subd. (b)(1).)
Admission of Evidence that Defendant Possessed Screwdriver in the Past
Defendant argues the trial court erred when it admitted evidence that he possessed a sharpened screwdriver in 2000 when San Jose police contacted him, and that a sharpened screwdriver was found in his bedroom during a search in 2006.
During in limine motions, the prosecutor argued that he intended to introduce the evidence of defendant's possession of the screwdriver in the past, along with other evidence, to demonstrate defendant's gang membership. Defense counsel argued the evidence should be excluded because it was cumulative. The court ruled that the evidence was admissible under Evidence Code section 352.
"[W]hen ruling on a[n] [Evidence Code] section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352." (People v. Williams (1997) 16 Cal.4th 153, 213.) " 'Prejudice' as contemplated by section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a [Evidence Code] section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. . . . [¶] [E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008-1009.)
Here, defendant argues the screwdriver evidence was cumulative and prejudicial, because he was a self-admitted member of the Sureno gang. However, the defense did not concede defendant's gang membership at trial. Rather, Detective Nishita testified that defendant told the Department of Corrections that he was a member of the Sureno gang from San Diego.
The screwdriver evidence was relevant to demonstrate defendant's intent in approaching the victim in the Marina Foods parking lot. The sharpened screwdriver found in defendant's bedroom was like the type that Detective Ramirez had seen Logan gang members carry and use to defend against violence from Norteno gang members. The evidence was relevant to show defendant's involvement with the Sureno gang, willingness to use violence against Nortenos, and intent on the day of the incident. While there was other evidence of defendant's membership in the Sureno gang, the screwdriver evidence was not cumulative, nor was it more prejudicial than probative.
Here, it is clear, is "the trial court understood and fulfilled its responsibilities under Evidence Code section 352." (People v. Williams, supra, 16 Cal.4th 153, 213.) The court did not abuse its discretion in admitting the screwdriver evidence.
Exclusion of Evidence that Herrera Became Unpredictable when Intoxicated
Defendant argues the trial court erred in refusing to admit evidence that Herrera was unpredictable when intoxicated, because such evidence was relevant to show that defendant did not know in advance what Herrera had planned, and could not have reasonably predict what would happen when they went to Marina Foods. In addition, defendant asserts the trial court's refusal to admit this evidence violated his right to present a defense.
Specifically, defense counsel wanted to present testimony from Solorio that when Herrera used drugs, "he was not the same person. You wouldn't know what his next reaction would be. He gets unpredictable." The prosecutor responded that under the natural and probable consequences doctrine of aiding and abetting, Herrera's predictability was irrelevant, because the issue is whether the killing of the victim was a reasonably foreseeable consequence.
The trial court ruled that the evidence of Herrera's unpredictability could be potentially misleading to the jury, and was inadmissible. However, the court did permit evidence that Herrera was intoxicated, and that he became emotional when drunk.
Under the natural and probable consequences doctrine" ' "[A] person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime. The . . . question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. [Citation.]" [Citation.] Liability under the natural and probable consequences doctrine "is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted." [Citation.]
. . . A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case [citation] and is a factual issue to be resolved by the jury.' [Citation.]" (People v. Ayala (2010) 181 Cal.App.4th 1440, 1449.)
The trial court's exclusion of evidence of Herrera's unpredictability when intoxicated was proper under the circumstances. The issue of whether Herrera's killing of the victim was reasonably foreseeable under the circumstances was the ultimate question under the natural and probable consequences doctrine. Therefore, Herrera's unpredictability when drunk was irrelevant. The court did not err in excluding the evidence.
In addition to defendant's argument that the court erred in refusing to admit the evidence under Evidence Code section 352, defendant also argues that the court's refusal to admit the evidence violated his right to present a defense.
Defendant's right to present a defense at trial does not automatically override a court's exercise of discretion under Evidence Code section 352. " 'As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.' " (People v. Cudjo (1993) 6 Cal.4th 585, 611.) A defendant does not have a constitutional right to present all relevant evidence in his defense, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352. (People v. Babbitt (1988) 45 Cal.3d 660, 682-683.) "It follows, for the most part, that the mere erroneous exercise of discretion under such 'normal' rules does not implicate the federal Constitution. Even in capital cases, we have consistently assumed that when a trial court misapplies Evidence Code section 352 to exclude defense evidence, . . . the applicable standard of prejudice is that for state law error, as set forth in People v. Watson (1956) 46 Cal.2d 818, 836 . . . . [Citations.]" (Cudjo, supra, 6 Cal.4th at p. 611.) Thus, if proffered evidence fails to meet the threshold requirement of relevance, its exclusion under Evidence Code section 352 does not implicate any due process concerns. (Babbitt, supra, 45 Cal.3d at p. 685.) Likewise, "[a]lthough the complete exclusion of evidence intended to establish an accused's defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right." (People v. Cunningham (2001) 25 Cal.4th 926, 999.)
"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice . [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
As discussed above, evidence of Herrera's unpredictability had little probative value on the question of whether the killing was reasonably foreseeable in this case, and would likely mislead the jury in its consideration of the natural and probable consequences doctrine. The trial court properly exercised its discretion in excluding the evidence under Evidence Code section 352, and did not violate defendant's right to present a defense.
Testimony from the Gang Expert about Intent
Defendant argues the trial court erred in admitting certain portions of Nishita's testimony as a gang expert. In particular, defendant points to Nishita's testimony about defendant's subjective intent and knowledge as a violation of his due process rights under the 14th Amendment.
"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.] California law permits a person with ' "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801).' (People v. Gardeley (1996) 14 Cal.4th 605, 617.) However, Evidence Code section 801 limits this testimony to that related to a subject ' "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) The subject matter of the culture and habits of criminal street gangs . . . meets this criterion. [Citations.]' (People v. Gardeley, supra, at p. 617.)" (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196-1197.)
"Expert opinion testimony allowed under People v. Gardeley has not included testimony that a specific individual possessed a specific intent. (People v. Kellebrew [(2002)] 103 Cal.App.4th 644, 657-658[, disapproved on other grounds in People v. Xue Vang (2011) 52 Cal.4th 1038].)" (In re Frank S., supra, 141 Cal.App.4th at p. 1197.) The court in Killebrew "found the expert's testimony regarding the minor's specific intent to 'promote, further, or assist' in criminal conduct by gang members (§ 186.22, subd. (b)(1)) exceeded 'the type of culture and habit testimony found in the reported cases.' (People v. Killebrew, supra, 103 Cal.App.4th at p. 654.) In Killebrew, the expert officer testified 'that when one gang member in a car possesses a gun, every other gang member in the car 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. 659.)" (In re Frank S., supra, 141 Cal.App.4th at p. 1197, fn. omitted.) Therefore, the Killebrew court found that reversal of the judgment was required. (People v. Killebrew, supra, 103 Cal.App.4th at p. 659.)
In this case, Detective Nishita testified as to his belief of the "subjective . . . intent" of defendant, an issue reserved to the trier of fact. (In re Frank S., supra, 141 Cal.App.4th at p. 1197.) He specifically opined that a killing like the one that occurred in this case would be for the benefit of or in association with a criminal street gang, what a gang member could be thinking under circumstances presented in this case, and that the four men must have discussed in the Escalade as they were driving to the shopping center before the shooting.
Detective Nishita's testimony about defendant's subjective state of mind, as well as any "belief" he may have had was improper. An expert's opinion is only as good as the facts upon which it is based. (See, e.g., CALCRIM No. 332.) Detective Nishita's belief about the circumstances of this case is not a fact, and he cannot testify to what defendant and his cohorts were thinking when the murder was committed, or whether the murder was for the benefit of a street gang. Indeed, Detective Nishita is not capable of offering an opinion on defendant's subjective intent. Defense counsel's objections to this testimony as improper opinion should have been sustained.
While Detective Nishita's opinion about defendant's subjective intent was improper, there was additional evidence presented at trial on the ultimate issue of whether the murder was "committed for the benefit of, at the direction of, or in association with [a] criminal street gang." (§ 186.22, subd. (b)(1).) The prosecution presented evidence that Nortenos and Surenos are rival gang members, and that defendant admitted to the Department of Corrections that he was a member of the Sureno gang. Solorio testified at trial about defendant's involvement with the Sureno gang, and about defendant's conduct and statements in the car after the shooting. Reyna testified that he heard Solorio and defendant talk about going "buster hunting." Finally, there was evidence that when they were at the Marina Foods parking lot, Herrera "checked" the victim by asking, "Are you from the south side?"
The prosecution presented sufficient evidence that defendant's actions in accompanying Herrera to Marina Foods, and in leaving with him after the shooting of the victim were done with the intent to aid and promote defendant's Sureno gang without the improper opinion testimony elicited from Detective Nishita. (See People v. Gamez (1991) 235 Cal.App.3d 957, 978, disapproved on another point in People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 10; People v. Muniz (1993) 16 Cal.App.4th 1083, 1087-1088.) Accordingly, we find that it is not reasonably probable that a result more favorable to defendant would have occurred had the court excluded the improper opinion of Detective Nishita at issue here. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Gang Expert's Testimony about Profiling
Defendant argues the trial court erred when it admitted profile evidence from the gang expert about how Surenos typically behave when hunting Nortenos. Specifically, Detective Nishita testified that gang members will "check" to decide if a person is a rival gang member, and will ask a person, "Where are you from?" or "Do you bang?" The gang member will look at the color of another person's clothing or shoes, or look at tattoos for indications of rival gang membership. Defendant asserts Detective Nishita's testimony was inadmissible profile evidence.
"A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime." (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) "In profile testimony, the expert compares the behavior of the defendant to the pattern or profile and concludes the defendant fits the profile." (People v. Prince (2007) 40 Cal.4th 1179, 1226.) In other words, the expert " 'attempts to link the general characteristics of [a particular type of criminal] to specific characteristics of the defendant.' " (Ibid., italics omitted.)
" 'Profile evidence' . . . is not a separate ground for excluding evidence; such evidence is inadmissible only if it is either irrelevant, lacks a foundation, or is more prejudicial than probative." (People v. Smith (2005) 35 Cal.4th 334, 357.) Profile evidence is considered "insufficiently probative" when "the conduct or matter that fits the profile is as consistent with innocence as guilt." (Id. at p. 358.)
Here, Detective Nishita did not provide improper profile evidence. While he did testify as an expert about what gang members do to determine if a person is a member of a rival gang, he did not compare defendant's conduct to a profile of gang members, and conclude that defendant was guilty because he fit the profile. Therefore, the court did not err in admitting the evidence.
Evidence of Meaning of "K-Swiss"
Defendant asserts the trial court abused its discretion when it ruled in limine that evidence of the meaning of "K-Swiss" could be admitted at trial because it was more probative than prejudicial.
In this case, Detective Nishita testified at the preliminary hearing that the "K-Swiss" brand of shoes the victim wore has been referred to as "Kill Surenos when I see Surenos." Detective Nishita's opinion was based on a conversation he had with another gang expert.
Prior to trial, defense counsel moved in limine to exclude Detective Nishita's evidence regarding the meaning of "K-Swiss" under Evidence Code section 352. The court denied defense counsel's request, stating, "The Court, in balancing prejudicial versus probative aspects of the subject area, is of the opinion that the probative— potentially probative value outweighs the potential negative aspects. And further, that the defense is in a position to be able to effectively cross-examine, and a lot of the points that defense counsel has made can in fact be made with respect to cross-examination."
Here, the record is clear that the court conducted a balancing test to determine if the "K-Swiss" evidence was more prejudicial than probative, and "understood and fulfilled its responsibilities under . . . section 352." (People v. Williams, supra, 16 Cal.4th 153, 213.) The court considered the evidence relevant to prove the gang enhancement, and the fact that the victim was wearing K-Swiss shoes with four red stripes could have been a factor in his selection as the victim in this case. In addition, the court specifically noted that the problems with the evidence and its value to the case would be reflected in the defense's cross-examination of Detective Nishita.
In any event, any error in admitting the "K-Swiss" evidence was harmless. (People v. Watson, supra, 46 Cal.2d 818.) Reversal is required only if it appears after review of the entire record that it is reasonably probable the defendant would have received a more favorable result if the evidence had not been admitted. (People v. Cox (1991) 53 Cal.3d 618, 668.) Here, there was additional evidence of gang involvement in the crime presented at trial. It is not reasonably probable that defendant would have received a more favorable result had the evidence been excluded. Therefore, we find no prejudice to defendant in the admission of the "K-Swiss" evidence.
Ineffective Assistance of Counsel
Defendant asserts he was denied effective assistance of counsel because his trial attorney failed to object to the admission of certain evidence. Specifically, defendant argues his attorney should have objected to the admission of predicate offenses, Officer Ramirez's testimony about the Logan gang in San Diego, and Officer Nishita's testimony under Evidence Code section 352.
To prevail on a claim of ineffective assistance of counsel, first, defendant must establish that " 'counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citation.]" (People v. Ledesma (1987) 43 Cal.3d 171, 216, quoting Strickland v. Washington (1984) 466 U.S. 668, 688.) However, "[a] reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." (People v. Carter (2003) 30 Cal.4th 1166, 1211.) On direct appeal, where the record "does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.) In other words, defendant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) "[I]f the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel's performance." (People v. Castillo (1997) 16 Cal.4th 1009, 1015.)
Second, defendant must show prejudice. Specifically, defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
Finally, we note that we "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland v. Washington, supra, 455 U.S. at p. 697.)
Predicate Offenses
Defendant argues his attorney was ineffective because he did not object to the admission of 10 predicate offenses committed by Clanton gang members.
Section 186.22, subdivision (f) defines " 'criminal street gang,' " in part, as an association of three or more persons "whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§186.22, subd. (f).) As pertinent here, section 186.22, subdivision (e) defines " 'pattern of criminal gang activity' " as two or more qualifying offenses committed "on separate occasions, or by two or more persons." (§ 186.22, subd. (e).) As potentially relevant here, qualifying offenses include attempted murder, aggravated assault, robbery, and discharging a firearm from a vehicle. (§ 186.22, subdivision (f)(1), (2), (3), (6).)
The jury heard evidence of 10 potential " 'predicate offenses' " (People v. Gardeley, supra, 14 Cal.4th 605, 610, fn. 1.) by Clanton gang members since 1997: (1) a stabbing in October, 2006; (2) a car theft in January, 2005; (3) a "drive-by" shooting into a house; (4) another car theft; (5 & 6) assault with a firearm and attempted murder, and a separate assault with a firearm in July, 2002; (7) a felony assault on a Norteno gang member in which Herrera participated in June, 2001; (8) robbery in January 1999; (9) assault with a deadly weapon in September, 1998; and (10) felony assault by stabbing in the face with a screwdriver.
Defendant asserts his defense counsel should have objected to the admission of the 10 predicate offenses, because only two were required to meet the prosecutor's burden of proof in this case. Defendant argues he was denied effective assistance of counsel by of his counsel's failure to object, because the evidence was cumulative and prejudicial.
The prosecution had the burden of proving the gang enhancement beyond a reasonable doubt. To do this, the prosecution had to prove, in part, a " 'pattern of criminal gang activity.' " (§ 186.22, subd. (f); People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) The prosecution proves a pattern of criminal gang activity by showing the commission or attempted commission of, or conviction for "two or more" enumerated offenses "committed on separate occasions, or by two or more persons." (§ 186.22, subd. (e); People v. Loeun (1997) 17 Cal.4th 1, 4.) Thus, the testimony about the 10 predicate gang offenses was admissible if it was "not more prejudicial than probative and [was] not cumulative. [Citation.]" (People v. Albarran (2007) 149 Cal.App.4th 214, 223; Evid. Code, § 352.) For Evidence Code section 352 purposes, " 'prejudicial' " is not synonymous with " 'damaging,' " but refers instead to evidence that uniquely tends to invoke an emotional bias against the defendant without regard to its relevance on material issues. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) "Although no bright-line rules exist for determining when evidence is cumulative, we emphasize that the term 'cumulative' indeed has a substantive meaning, and the application of the term must be reasonable and practical." (People v. Williams (2009) 170 Cal.App.4th 587, 611.)
Here, defense counsel was not deficient for failing to object to the admission of the 10 predicate offenses. The predicate offenses at issue here were not unduly prejudicial, because none of them involved defendant, and each was described in a basic, superficial way. The evidence was not more inflammatory than the testimony about defendant's and Herrera's conduct during the shooting incident in this case. In addition, the testimony regarding the predicate offenses did not "necessitate undue consumption of time." (Evid. Code, § 352.) The testimony necessitated 41 pages of trial transcript that has a total of 2,398 pages. (Compare People v. Williams, supra, 170 Cal.App.4th at pp. 610-611.) Had defense counsel objected on the ground of Evidence Code section 352, the court would have acted well within its discretion in overruling the objection.
Defendant cannot establish prejudice from his counsel's failure to object to admission of evidence of the predicate offenses. As noted, the court would likely have overruled any objection based on Evidence Code section 352. However, had the court sustained an objection, and eight of the 10 offenses were not admitted, we cannot say that that it is reasonably probable the result of the proceeding would have different. (Strickland v. Washington, supra, 466 U.S. at p. 694.) The trial contained ample evidence of defendant and Herrera's involvement in Sureno gangs, and the fact that the killing of the victim in this case was for the benefit of the Sureno gang. The admission of eight additional predicate offenses committed by Clanton members since 1997 did not prejudice defendant. Defendant has not established that he was denied effective assistance of counsel with regard to the evidence of the predicate offenses.
Officer's Testimony about Logan Gang
Defendant asserts his attorney was ineffective for failing to object to Detective Ramirez's testimony about the Logan gang in San Diego, because the evidence was irrelevant and unduly prejudicial.
At trial, Detective Ramirez, a member of the San Diego Police Department, testified as an expert in the Logan gang in San Diego. Specifically, Detective Ramirez testified about the meaning of the gang-related tattoos on defendant's body. Defendant had a tattoo of the word "Logan" on the lower part of this back, and the number "33" in roman numerals. Detective Ramirez opined that these tattoos meant defendant was a member of Logan 33, a subset of the Sureno gang in San Diego. Detective Ramirez further testified that the activities of the Logan gang were drug sales, theft, assault with a deadly weapon and attempted murder.
Defendant's primary complaint about Detective Ramirez's testimony is that the crime in this case was not alleged to be involved with the Logan gang; therefore, the testimony was irrelevant and prejudicial, and defendant's counsel should have objected under Evidence Code section 352.
While defendant is correct that the murder in this case was not alleged to be involved with the Logan gang, it was alleged as an attack on a Norteno by Surenos. Detective Ramirez testified that the Logan gang was a subset of the Surenos. Evidence that defendant was a member of the Logan gang was directly relevant to intent in this case, and whether defendant was a mere bystander to Herrera's killing of the victim, or a participant.
We need not consider whether defense counsel's failure to object to the Logan evidence was deficient, because defendant cannot establish but for his counsel's conduct the result of the proceeding would have been different. (Strickland v. Washington, supra, 466 U.S. at p. 694.) Because the Logan evidence was relevant to issues in this case, had defendant's attorney objected under Evidence Code section 352, the objection would very likely have been overruled. Defendant has not established that he was denied effective assistance of counsel with regard to the Logan evidence.
Officer's Opinion Testimony about Gangs
Defendant asserts he was denied effective assistance of counsel because his trial attorney failed to object to certain portions of Detective Nishita's testimony about gangs under Evidence Code section 352.
Specifically, defendant argues his trial attorney should have objected to the following information Detective Nishita provided: (1) Sureno gangs come from the Mexican Mafia, while Norteno gangs come from the Nuestra Familia; (2) violence is "glamorized" in gangs; (3) violence is used as discipline in gangs; (4) a person can commit a crime, or "crime in" to gain membership to a gang; (5) weapons are important to Surenos, and members almost always carry them; (6) gang members use items that have a legitimate purpose, such as screwdrivers as weapons; (7) gang members decide whether to arm themselves based on the color clothing they are wearing, and whether they will be entering an area where there is a possibility they will meet up with a rival gang member; (8) gang members do not want to be caught in a rival area without a weapon, (9) gang members earn their status in the gang by committing a crime; (10) fear and intimidation are used to gain respect within a gang; (11) respect within a gang is earned by responding to challenges; (12) gangs use the internet to communicate about crimes committed; and (13) gang life is focused on breaking the law.
Defendant argues all of the evidence cited above should have been excluded because it was irrelevant to the crime charged, and his counsel should have objected to its admission at trial.
Detective Nishita's testimony about gangs was directly relevant to the issues in the case. Specifically, the testimony about a gang's origin, culture, habits, weapons and crimes relate to the allegations in this case that defendant aided and abetted a fellow Sureno gang member in the murder of a rival gang member, and that the crime was for the benefit of a gang with the specific intent to promote, further, or assist in the criminal conduct of a gang member. Detective Nishita's testimony offered the jury an explanation for why defendant would go to the Marina Foods parking lot with Herrera and stand by while Herrera shot and killed a person without provocation.
As above with regard to the Logan evidence, we need not consider whether defense counsel's failure to object to portions of Detective Nishita's testimony was deficient, because defendant cannot establish but for his counsel's conduct, the result of the proceeding would have been different. (Strickland v. Washington, supra, 466 U.S. at p. 694.) Because Detective Nishita's testimony was relevant to issues in this case, had defendant's attorney objected under Evidence Code section 352, the objection would very likely have been overruled. Defendant has not established that he was denied effective assistance of counsel with regard to Detective Nishita's testimony.
Aiding and Abetting Theory Violates 14th Amendment
Defendant asserts that the natural and probable consequences doctrine violates equal protection because an aider and abettor or a co-conspirator may be convicted of murder, without any finding of malice, while the actual killer may be convicted of murder only if there is a finding of malice. He cites People v. Chun (2009) 45 Cal.4th 1172, which held that "[w]hen the underlying felony is assaultive in nature, . . . the felony merges with the homicide and cannot be the basis of a felony-murder instruction." (Id. at p. 1200.) Defendant asserts that the disparate treatment of direct perpetrators and aiders and abettors violates equal protection.
"The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (In re Eric J. (1979) 25 Cal.3d 522, 530.) "If persons are not similarly situated for purposes of the law, an equal protection claim fails at the threshold." (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)
Direct perpetrators and aider and abettors are equally culpable under the law (§ 31); however, they are not similarly situated for purposes of the law. The mental state necessary for conviction as an aider and abettor is different from the mental state necessary for conviction as the actual perpetrator. "The actual perpetrator must have whatever mental state is required for each crime charged. . . . An aider and abettor, on the other hand, must 'act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' [Citation.] The jury must find 'the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense . . . .' [Citations.] Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. [Citation.]" (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.)
Therefore, defendant's equal protection claim in this case fails, because direct perpetrators and aiders and abettors are not similarly situated.
Instructional Error
Defendant argues the trial court erred in instructing the jury on conspiracy as a theory of murder liability, because it was inapplicable under a theory of aiding and abetting.
Here, the court instructed the jury with CALCRIM No. 416, "Evidence of Uncharged Conspiracy," and CALCRIM No. 417, "Liability for Coconspirators' Acts." The theories articulated by the prosecutor during closing argument were that defendant could be convicted of murder as an aider and abettor to murder, an aider and abettor to a crime where the natural and probable consequences of that crime are murder; conspiracy to commit murder, and conspiracy to commit another crime where the natural and probable consequences of that crime are murder.
CALCRIM No. 416 ("Evidence of Uncharged Conspiracy"), which provided, in part: "To prove that the defendant was a member of a conspiracy in this case, the People must prove that: [¶] 1. The defendant intended to agree and did agree with Roberto Herrera to commit murder; [¶] 2. At the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit murder; [¶] 3. The defendant, or Roberto Herrera, committed the following overt act to accomplish murder; 1. Point out the car Robert Ojeda was riding in; 2. Signal to Roberto Herrera; 3. Approach Robert Ojeda on the passenger side of his fiance's car; 4. Ask Robert Ojeda his gang affiliation; 5. Distract Robert Ojeda from seeing the gun being drawn; or 6. Shoot Robert Ojeda in the forehead killing him. AND [¶] At least one of these overt acts was committed in California."
CALCRIM no. 417 as given stated in part: "To prove that a defendant is guilty of the crime charged in count 1, the People must prove that: [¶] 1. The defendant conspired to commit one of the following crimes: assault by means of force likely to produce great bodily injury; [¶] 2. A member of the conspiracy committed murder to further the conspiracy; [¶] AND [¶] 3. Murder was a natural and probable consequence[] of the common plan or design of the crime that the defendant conspired to commit."
--------
Defendant argues at length that conspiracy is not a proper theory of liability in this case. Specifically, defendant notes that section 31 limits principals to those who actually commit the crime and those who aid and abet in the commission of the crime. In addition, defendant points to the fact that a number of cases in California have held contrary to the express language of section 31, allowing conspiracy to form a legal theory of criminal liability. (See, e.g., People v. Duran (2001) 94 Cal.App.4th 923, 941; People v. Belmontes (1988) 45 Cal.3d 744, 788-789; People v. Prieto (2003) 30 Cal.4th 226, 249-250.) Defendant asks this court to overlook case precedent, and adhere to the language of section 31, rejecting conspiracy as a theory of criminal liability.
Our supreme court has recently declared without reservation that section 31 forms the basis for criminal liability based on conspiracy. In In re Hardy (2007) 41 Cal.4th 977, the court stated, "[o]ne who conspires with others to commit a felony is guilty as a principal. (§ 31.) ' ". . ." [Citations.]' [Citation.] Thus, if petitioner conspired with others to kill the victims for financial gain, he is as guilty of their murders as the person who actually stabbed them." (Id. at pp. 1025-1026.)
We reject defendant's claim under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, and find no error in the trial court's conspiracy instructions.
Cumulative Error
Defendant contends that, even if this court finds that the above alleged errors are not prejudicial when viewed separately, their collective effect denied him a fair trial. Our Supreme Court has recognized that "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.)
We have concluded that the evidence amply supports defendant's conviction and gang enhancement and that it is not reasonably probable that a result more favorable to defendant would have occurred absent any of the alleged errors. Accordingly, we also find that no cumulative prejudicial error has been shown.
DISPOSITION
The judgment is affirmed.
_____________
RUSHING, P.J.
WE CONCUR:
_________
PREMO, J.
_______
ELIA, J.