Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Louis P. Etcheverry, Judge., Super. Ct. No. BF122812A.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J
A jury convicted defendant Damien Wafford of kidnapping for ransom (Pen. Code, § 209, subd. (a)), making a criminal threat (§ 422), participating in a criminal street gang (§ 186.22, subd. (a)), and assault committed on behalf of a criminal street gang (§§ 243, subd. (a), 186.22, subd. (d)), and found a number of sentence enhancement allegations to be true, including allegations the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). Defendant was sentenced, inter alia, to a prison term of life without the possibility of parole for his conviction of kidnapping for ransom based on the jury’s finding the victim suffered bodily harm during the commission of the offense.
Further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends: (1) insufficient evidence establishes the “primary activities” element of the gang enhancements and substantive gang offense; (2) the amended information provided him with insufficient notice he faced a potential term of life without the possibility of parole because it failed to allege the victim suffered bodily harm in the course of the kidnapping; (3) insufficient evidence supports the jury’s finding the victim suffered bodily harm because the offense of kidnapping did not commence until after defendant had already inflicted injury to the victim; (4) the prosecutor committed misconduct by vouching for prosecution witnesses; and (5) defense counsel rendered ineffective assistance by failing to move to sever the gang charge and bifurcate the gang enhancements, and by failing to raise an effective objection to prejudicial gang evidence. We affirm.
FACTS
The victim, Sidney Maiden, met defendant while they were both incarcerated in the county jail. According to Maiden, defendant was a well-known member of the Bloods criminal street gang in jail and occupied the status of a “shot caller” within the gang. After Maiden was released from jail, he was “jumped in” to the gang. He was 18 years old at the time.
Shortly after he joined the Bloods, Maiden borrowed a.45-caliber gun belonging to defendant, which Maiden subsequently lost. Within a week or two of borrowing the gun, Bloods member Adam Jones came to Maiden’s apartment and said defendant wanted to see him.
After Maiden left his apartment with Jones, defendant drove up and told Maiden to get in the car. Maiden did not want to get in the car but did so anyway, explaining: “I had no other choice … because of who he is.” Maiden explained it was not a good idea to disobey a shot caller because “[y]ou either … going to have to fight someone, you could get shot, or you can get DP-ed, disciplined.”
After Maiden got in defendant’s car, defendant started driving towards a carwash located in Bloods territory. During the drive, defendant asked for his gun back. When Maiden told him he did not have the gun anymore, defendant said he wanted Maiden either to give him $200, or another gun plus $100.
When they reached the carwash, four other Bloods were waiting and defendant told them to follow him. Defendant took Maiden to an alley behind the carwash and told Jones to fight Maiden. Maiden testified that after they fought, defendant “walked in front of me like he was going to walk past me, and he turned around and socked me in my mouth, in my chin, busted my chin. And I hit my head on the back of the car, and I hit the ground. And I hit the ground, and I blacked out.”
When Maiden came to his senses, he got ready to stand up, but defendant told him to stay down. Defendant then told Maiden to walk over to the 7-Eleven and that they would meet him there. After defendant left, Maiden did not walk to the 7-Eleven as instructed but went to the carwash and asked to use the telephone. Maiden called Lameka Deloney, his child’s mother, and asked her to pick him up at the carwash. Maiden waited for 15 to 20 minutes in the carwash office before Deloney arrived.
As Deloney and Maiden were getting ready to pull out of the carwash parking lot, Maiden saw defendant drive by. Defendant slowed down and looked at them, before driving off. Deloney entered the freeway. When Maiden looked in the rearview mirror, he saw defendant and Jones chasing them.
Fearing the chase would result in an accident, Maiden told Deloney to “stop driving crazy and get off the freeway.” After they got off the freeway, Deloney pulled over to a curb and defendant pulled up next to them. Defendant “rolled down the window and said he has heat for anyone who wants it.” Maiden explained that this meant defendant had a gun and was ready to use it against anyone who had a problem with him.
Maiden told Deloney to drive him to his aunt’s house, so he could see if she could get some money for him. Deloney dropped Maiden off at his aunt’s house and then left. When Maiden knocked on the door, no one answered. After he realized no one was home, Maiden saw defendant and Jones had pulled up to his aunt’s house. Defendant told Maiden to get in the car. Maiden did not want to get in the car and was more afraid to get in the car than he was the first time. Maiden explained he was still bleeding from being beaten up and kept “[d]azing in and out.”
Although he feared for his life, Maiden got in defendant’s car. While they were driving, Maiden kept “blacking in and out.” At one point, he noticed they were driving past his grandmother’s house. Defendant looked at him and said, “I know your grandma stay right there.” Defendant then drove to Jones’s house.
Defendant took Maiden to Jones’s house. There, defendant told Maiden to try to call somebody to get money or a gun. Maiden felt that he could not leave the house and that, if he tried to leave, his grandparents would be in danger from defendant. During the ride over to Jones’s house, Maiden had seen a semiautomatic revolver between the front seats, close to defendant.
Maiden called Deloney again and told her he needed her to try to get some money for him. Deloney arrived 45 minutes to an hour later. Maiden was standing outside with defendant, Jones, and Maiden’s friend, Ced. When Maiden walked up to Deloney’s car, she told him she was trying to get money for him and tried to persuade him to get in the car. Maiden responded that he could not get in the car because he owed money and defendant would try to hurt or kill him if he left. Maiden also feared for his grandparents who lived just down the street.
Deloney left and returned about an hour later with Maiden’s friend, Kevin Gray. Maiden went outside to talk to them. They kept telling him to get in the car, but Maiden refused, trying to explain that they would hurt him or his grandparents if he did not get money or a gun.
After Maiden went back into the house, he heard helicopters followed by sirens. Defendant asked him if he had called the police and Maiden said no. Defendant then told him to follow him out back. Once outside, defendant told Maiden to get away from him and not to tell anyone what happened.
DISCUSSION
I. Sufficiency of the Evidence to Support the “Primary Activities” Element
Defendant contends there was insufficient evidence to support the “primary activities” element of the gang enhancements and substantive gang offense. He argues that the gang expert’s testimony lacked adequate foundation.
Section 186.22, subdivision (f) defines a “‘criminal street gang’” as a “group of three or more persons” that has as “one of its primary activities the commission of one or more of the criminal acts enumerated” in the statute. (§ 186.22, subd. (f).) A criminal street gang must also have “a common name or common identifying sign or symbol” and its members must “engage in or have engaged in a pattern of criminal gang activity.” (Ibid.)
“The phrase ‘primary activities, ’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.]” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).) It is settled that the primary activities element may be established through expert testimony. (People v. Vy (2004) 122 Cal.App.4th 1209, 1226; People v. Duran (2002) 97 Cal.App.4th 1448, 1465 (Duran); People v. Augborne (2002) 104 Cal.App.4th 362, 372.) “The testimony of a gang expert, founded on his or her conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from colleagues in his or her own and other law enforcement agencies, may be sufficient to prove a gang’s primary activities. [Citations.]” (Duran, supra, at p. 1465; Sengpadychith, supra, 26 Cal.4th at p. 324.)
Here, the expert, Officer Patrick Mara, offered uncontradicted testimony that the primary activities of the Bloods gang included “sales of narcotics, burglaries, robberies, shootings, and murders.” These crimes are specified in section 186.22, subdivisions (e) and (f) as qualifying primary activities. Officer Mara’s testimony was based on sources approved by our Supreme Court. (See Sengpadychith, supra, 26 Cal.4th at p. 324; see also People v. Gardeley (1996) 14 Cal.4th 605, 620.) Thus, the evidence was sufficient to support the jury’s finding on the primary activities element.
Defendant does not dispute that Officer Mara’s experience and knowledge qualified him as an expert on the criminal activities of the Bloods gang. Defendant, however, asks us to discredit Officer Mara’s testimony, arguing his opinion about the Bloods’ primary activities lacked sufficient foundation because there was no evidence the officer had knowledge of the gang’s non-criminal activities or had training in disciplines other than law enforcement “so that the number and nature of the enumerated crimes committed by its members on its behalf can be assessed in context.”
Defendant, however, provides no authority supporting this ground for discrediting Officer Mara’s testimony. As discussed above, Officer Mara’s opinion regarding the primary activities of the Bloods gang was based on sources approved in previous California decisions and was sufficient to establish this element of the gang enhancements and substantive gang offense. Defendant offers no compelling reason for departing from established law in this case.
II. Sufficiency of the Amended Information
Defendant contends his sentence of life without the possibility of parole violates his right to due process because the amended information did not allege the victim suffered bodily harm in the course of the kidnapping for ransom. As a result, he argues, his sentence should be reduced to life with the possibility of parole.
This issue was resolved against defendant in People v. Britton (1936) 6 Cal.2d 1 (Britton). In Britton, the defendant contended the trial court was without authority to sentence him to life without the possibility of parole because the indictment did not contain an allegation the victim suffered bodily harm in the kidnapping for the purpose of robbery. In rejecting this contention, the California Supreme Court stated:
“Section 209 of the Penal Code, for the purpose of this case, defines but one criminal act or offense, viz., kidnapping for purpose of robbery, for which any one of several punishments may be imposed, depending entirely upon the circumstances surrounding its commission. A charge in the language of the statute that the accused had kidnapped his victim for the purpose of robbery in violation of the statute apprises the accused of what he will be expected to meet and of the several punishments prescribed therefor, any one of which, upon conviction, may be imposed upon him. The indictment here involved charged the offense in the language of the statute and referred thereto.” (Britton, supra, 6 Cal.2d at pp. 4-5.)
The court pointed out:
“It is well settled in this state that an indictment or information needs not allege the particular mode or means employed in the commission of an offense, except when of the essence thereof. [Citation.] In other words, particulars as to manner, means, place or circumstances need not in general be added to the statutory definition. [Citations.] The indictment or information need only charge the essential elements of the statutory offense. It then fairly apprises the defendant of what he is to meet at the trial.” (Britton, supra, 6 Cal.2d at p. 5.)
Defendant’s reliance on People v. Lohbauer (1981) 29 Cal.3d 364 (Lohbauer) is misplaced. In Lohbauer, the California Supreme Court held a defendant may not “be convicted of an offense which is neither specifically charged in the accusatory pleading nor ‘necessarily included’ within a charged offense, when he does not consent to the substituted charge[.]” (Id., at p. 367.) Lohbauer is inapposite because defendant was not convicted of an uncharged crime. Rather, he was convicted of robbery for ransom, the statutory elements of which were fairly charged in the language of section 209. Under the court’s reasoning in Britton, the amended information provided defendant with sufficient notice of the potential punishments he faced, including life without the possibility of parole.
Thus, count 1 of the amended information charged: “On or about March 26, 2008, Damien Charles Wafford, did willfully and unlawfully seize, confine, inveigle, entice, decoy, abduct, conceal, kidnap, or carry away Sidney Maiden, with the intent to hold or detain, or who did hold or detain the said Sidney Maiden, for ransom, reward, extortion, or to extract from relatives or friends of said Sidney Maiden, money or other valuable things, to wit: two hundred dollars or firearm, in violation of Penal Code section 209(a), a felony.” (Unnecessary capitalization omitted.)
Section 209 specifically provides: “Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away another person by any means whatsoever with intent to hold or detain, or who holds or detains, that person for ransom, reward or to commit extortion or to exact from another person any money or valuable thing, or any person who aids or abets any such act, is guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the state prison for life without possibility of parole in cases in which any person subjected to any such act suffers death or bodily harm, or is intentionally confined in a manner which exposes that person to a substantial likelihood of death, or shall be punished by imprisonment in the state prison for life with the possibility of parole in cases where no such person suffers death or bodily harm.” (Id., subd. (a), italics added.)
We also attribute no error to the fact that, in instructing the jury on the bodily harm sentencing factor pursuant to Judicial Council of California Criminal Jury Instructions (2008) CALCRIM No. 1202, the trial court told the jury it was required to decide whether the prosecution proved “the additional allegation” that the defendant caused the victim to suffer bodily harm. Although such allegation was not included in the amended information, the instruction was nonetheless proper because the issue of whether the victim suffered bodily harm in the course of the kidnapping was raised by the evidence developed at trial. (See Bench Notes to CALCRIM No. 1202.)
III. Sufficiency of the Evidence to Support the Jury’s Finding of Bodily Harm
Another reason his sentence for kidnapping should be reduced to life with the possibility of parole, defendant asserts, is that there was insufficient evidence to support the jury’s finding the victim suffered bodily harm during the commission of the kidnapping for ransom. Defendant does not dispute that Maiden suffered bodily harm when he was beaten behind the carwash. Rather, defendant claims the kidnapping did not begin until after the beating occurred, when he ordered Maiden to get into his car at Maiden’s aunt’s house.
The trial court correctly instructed the jury on the elements of the crime of kidnapping for ransom in violation of section 209, subdivision (a), pursuant to CALCRIM No. 1202, as follows: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant (kidnapped[, ]/or confined) someone; [¶] [2. The defendant held or detained that person;] [¶] AND [¶] 3. The defendant did so (for ransom[, ]/[or] to get money or something valuable.) [¶] [It is not necessary that the person be moved for any distance.] [¶] … [¶] [If you find the defendant guilty of kidnapping for (ransom [, ]), you must then decide whether the People have proved the additional allegation that the defendant (caused the kidnapped person to suffer bodily harm).” The jury was also instructed with CALCRIM No. 1215 that “[t]he defendant is not guilty of kidnapping if the other person consented to go with the defendant.”
We disagree with defendant’s claim and conclude there was sufficient evidence of a kidnapping the first time defendant told Maiden to get in his car. The fact that the defendant was not a stranger to Maiden and that they were both members of the same gang did not necessarily render Maiden’s initial decision to get into defendant’s car a consensual one, as defendant asserts on appeal. In considering defendant’s claim of insufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Viewing the evidence under this standard, a rational trier of fact could infer from the circumstances that Maiden did not freely consent to getting into defendant’s car the first time but did so out of fear based on defendant’s high status as a shot-caller in the gang and knowledge that he could be disciplined for not obeying defendant’s commands.
Our conclusion is not altered by statements the prosecutor made during closing argument, which defendant characterizes as “an express concession that the kidnapping did not commence until after [defendant] went to [Maiden’s] aunt’s house.” As the People correctly observe, the jury was bound by the evidence, not by the theories advanced in the arguments of counsel. Because the evidence was sufficient to show defendant inflicted bodily injury on the victim during the course of a kidnapping, we must uphold his conviction and sentence of life without the possibility of parole.
IV. Prosecutorial Misconduct
Defendant contends the prosecutor committed prejudicial misconduct by vouching for the credibility of prosecution witnesses.
“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion―and on the same ground―the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
“A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief, ’ her comments cannot be characterized as improper vouching. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Defendant claims the prosecutor improperly vouched for prosecution witnesses in closing arguing by saying: “And I can’t think of any reason for them to make this up. Nor can I think of any reason for Sidney Maiden to make this up.” After the prosecutor made this statement, defense counsel objected on grounds of improper vouching, and the court sustained the objection. In response, the prosecutor stated: “I’m allowed to say that I believe. Well, that I can’t think of any reason for him to make this up based upon the same evidence that you have seen. Nothing special that I know that you haven’t heard.” Defense counsel objected again and, this time, the court overruled the objection.
Although the use of the phrase, “I can’t think of any reason” was improper, the prosecutor quickly clarified that his argument about witness veracity was based on the evidence the jury heard, not evidence outside the record. The prosecutor went on to provide a detailed description of factual circumstances Maiden testified to, which supported his argument that Maiden had no reason to lie or make up his testimony against defendant. The prosecutor noted, for example, that Maiden, who was in custody at the time of trial, was offered no promises in exchange for testifying against defendant. Maiden’s testimony also revealed that by cooperating with the police and prosecutor, he had acquired the reviled status of a “snitch” and encountered problems in jail and was no longer able to live in his hometown or stay with his grandparents. On this record, we conclude it is unlikely the jury would have thought the prosecutor was personally vouching for the credibility of witnesses. Rather, the complained-of remarks were part of an argument asking the jury to consider evidence showing the witnesses had no reason to lie. There was no misconduct as the prosecutor was asking jurors to believe witnesses based on the evidence.
We reach the same conclusion with respect to comments the prosecutor made in his rebuttal argument. While asking the jury to draw certain conclusions based on the evidence, he made a few statements like “I think it is pretty obvious to Mr. Wafford that Mr. Maiden is not getting in the car voluntarily”, “I think it is pretty clear at that point Sidney Maiden really doesn’t want to see Mr. Wafford, ” and “I don’t see how he would have a problem seeing the gun as he is getting into the car[.]” (Italics added.) In sustaining defense counsel’s objections on the grounds of improper vouching, the trial court remarked, “we’ve just got to get the I pronoun out of this.” The court advised the prosecutor: “You are saying, I don’t see like expressing a belief. Just―you can say it is apparent or something like that.” The prosecutor then argued: “It is apparent when you see the photo and the drawing that the gun could be seen as someone is getting in the car. I think―well there I go again. [¶] It is also apparent, ladies and gentlemen, with regards to credibility, this did, in fact, happen. And the reason we know that is because you don’t just have Sidney Maiden’s word, we have a number of people who spoke to Sidney Maiden as this happened.”
As can be seen, the prosecutor’s overall argument stressed the evidence supporting his assessment of witness credibility. Despite the prosecutor’s criticized use of the personal pronoun, it is not reasonably probable the jury would have understood his comments during argument to constitute a personal endorsement of prosecution witnesses. Defendant has not established that the prosecutor’s conduct resulted in an unfair trial, denied him due process of law, or involved deceptive or reprehensible methods to persuade the jury. Accordingly, we reject his prosecutorial misconduct claim.
V. Ineffective Assistance of Counsel
Lastly, defendant contends he was deprived of his constitutionally guaranteed right to the effective assistance of counsel by defense counsel’s omissions in regard to the gang allegations and gang expert’s testimony.
The applicable principles are settled: The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, “a defendant must show that counsel (1) performed at a level below an objective standard of reasonableness under prevailing professional norms; and thereby (2) subjected the defense to prejudice, i.e., in the absence of counsel’s failings a more favorable outcome was reasonably probable. [Citation.]” (People v. Hamilton (1988) 45 Cal.3d 351, 377.)
First, defendant says defense counsel rendered ineffective assistance in failing to move to sever the gang charge and bifurcate the trial of the gang allegations from the jury’s consideration of guilt of the other charges. We disagree. “Case law holds that where evidence of gang activity or membership is important to the motive, it can be introduced even if prejudicial. [Citations.]” (People v. Martin (1994) 23 Cal.App.4th 76, 81.) The thrust of the prosecution’s case was that kidnapping, criminal threat, and assault on Maiden were all gang related. The gang evidence was highly relevant and it is unlikely that had defense counsel made a motion to bifurcate the gang allegations, the motion would have been granted. Accordingly, defendant has failed to establish prejudice from counsel’s failure to make such a motion, and we need not determine whether counsel’s omission was the result of a reasonable tactical purpose. (See, e.g., People v. Maury (2003) 30 Cal.4th 342, 394 [where trial court would not have abused its discretion by denying severance motion, if made, no reasonable probability existed that such motion would have been granted; hence, defendant failed to establish prejudice from counsel’s omission].)
Thus, the prosecutor argued: “Basically I have to prove that the crimes committed in this case were gang related. I think it is fairly obvious at this point that they were. The only motive for the case to basically continue to maintain respect andrules within the gang. Just you don’t lose a shot caller’s gun, that’s the bottom line. And everything that happened to Sidney Maiden afterwards happened as a result of his dealings with Mr. Wafford and the Bloods.” (Italics added.)
Second, defendant contends defense counsel was ineffective in failing to effectively object to what he terms “inadmissible and highly prejudicial gang evidence.” He argues defense counsel should have made “five specific objections” to the gang expert’s testimony describing five prior incidents involving defendant, on the grounds the evidence was “speculative, highly prejudicial, and of extremely limited relevance” and implied “a continuous, long-standing course of violent, gun related conduct.” However, as the California Supreme Court has observed, “[a] mere failure to object to evidence or argument seldom establishes counsel’s incompetence. [Citations.]” (People v. Frierson (1991) 53 Cal.3d 730, 747.) Here, defense counsel did raise frequent objections to the gang expert’s testimony on the grounds the testimony was irrelevant, based on unreliable hearsay, violated defendant’s due process rights, and was prejudicial under Evidence Code section 352. The trial court eventually granted defense counsel a continuing objection. On this record, defendant has not shown his counsel was deficient or that the court likely would have granted the specific objections he claims his counsel should have made.
DISPOSITION
The judgment is affirmed.
WE CONCUR: CORNELL, Acting P.J., DAWSON, J.