Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCS185552, Esteban Hernandez and Jeffrey F. Fraser, Judges.
HALLER, Acting P. J.
Javier Flores appeals from a judgment convicting him of assault with a firearm with a true finding on a gang enhancement. Flores contends the judgment should be reversed for ineffective assistance of counsel based on his trial counsel's failure to object to testimony from the prosecution's gang expert concerning prior criminal conduct committed by Flores and other gang members. We reject this contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Flores is a member of the D.A.T. gang, and victim Juan Ortiz has been an associate of the rival M.D.R. gang. D.A.T. and M.D.R. started as "tagging" gangs that marked territory with graffiti and have evolved into gangs that perform acts of violence, including assaults and homicides.
At about 8:00 or 9:00 p.m. on April 21, 2004, Ortiz was walking to a park in Imperial Beach. He saw Flores driving with a friend in a vehicle on the other side of the street about 35 feet away. Flores pointed a semi-automatic weapon at Ortiz and asked Ortiz if he was from M.D.R. Ortiz responded that he was not. Ortiz knew there had been some violence between D.A.T. and M.D.R. two days earlier; he felt afraid and thought Flores was going to shoot him. Flores withdrew the gun and told Ortiz that he had better "watch [his] back." Flores and his friend drove away, and then drove back around and yelled " 'D.A.T.' "
Feeling frightened, Ortiz went to a friend's home instead of to the park or to his home. The friend was a member of M.D.R. and had been a victim of violence. Some days later, Ortiz told the friend's mother what had occurred. Ortiz did not want the matter reported to the police because he "knew that something would happen to [him] if [he] would say something." Nevertheless, the mother contacted the police, and charges were subsequently filed against Flores.
When presenting its theory of the case, the defense acknowledged that Flores was a D.A.T. member. However, defense counsel maintained that the incident described by Ortiz never took place. To support the theory that Ortiz fabricated the incident, defense counsel urged the jury to discredit Ortiz based on various inconsistencies in his pretrial statements and testimony, including discrepancies between his statements to the police and his trial testimony. For example, according to police reports, Ortiz initially stated that Flores was the passenger in the vehicle, and then prior to the preliminary hearing he stated that Flores was the driver. However, at trial Ortiz denied that he ever told the police that Flores was the passenger.
The jury convicted Flores of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and found that he committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
Subsequent statutory references are to the Penal Code unless otherwise specified.
DISCUSSION
Flores contends his trial counsel provided ineffective representation because he failed to object to testimony from the prosecution's gang expert concerning Flores's and other gang members' prior criminal conduct.
To prevail on a claim of ineffective representation, the defendant must show that defense counsel failed to perform as a reasonably competent attorney, and it is reasonably probable that the result would have been more favorable to the defendant absent counsel's deficiencies. (People v. Wader (1993)5 Cal.4th 610, 636; People v. Sapp (2003) 31 Cal.4th 240, 263.) The defendant must overcome a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions or inactions can be explained as a matter of sound trial strategy. (In re Jones (1996) 13 Cal.4th 552, 561; People v. Carter (2005) 36 Cal.4th 1114, 1189.) If the record does not show prejudice from counsel's challenged conduct, a reviewing court may reject the claim without determining whether counsel's performance was deficient. (People v. Sapp, supra, 31 Cal.4th at p. 263.)
To permit examination of defense counsel's trial strategy, claims of ineffective representation are often more appropriately litigated through a petition for writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Flores's trial counsel is now deceased; thus, he is not available to provide a declaration for habeas review.
Prior to trial, the prosecution filed a motion asserting that Flores had suffered a prior conviction that involved a crime of moral turpitude admissible for impeachment should Flores elect to testify, and that it should not be excluded as more prejudicial than probative under Evidence Code section 352. The prior conviction was incurred on May 26, 2004, when Flores pleaded guilty to felony vandalism for his conduct on April 1, 2004, of spray painting gang graffiti causing property damage of $400 or more. The trial court granted the prosecution's motion, agreeing that the prior conviction was a crime of moral turpitude admissible for impeachment if Flores testified. Defense counsel did not file any pretrial motions seeking to exclude evidence regarding Flores's criminal history.
Flores did not testify at trial. Nevertheless, the prosecution presented evidence related to Flores's prior felony vandalism conviction when, for purposes of proving the gang enhancement, the prosecutor questioned its gang expert about Flores's gang membership and about D.A.T.'s commission of the statutorily-defined crimes necessary to show it was a criminal street gang (known as "predicate" crimes). (See People v. Bragg (2008) 161 Cal.App.4th 1385, 1400.) Defense counsel did not object to this testimony. Flores asserts his counsel's failure to object constituted ineffective representation. To evaluate this claim, we summarize the complained-of evidence in the context in which it was admitted.
To support his opinion that Flores was an active D.A.T. member, the prosecution's gang expert (Detective Michael Speyrer) testified as follows. There are five criteria used to document a person as a gang member, i.e., an admission of gang membership from the person; wearing gang clothing or tattoos; arrests (or being with others when they are arrested) for gang-related crimes; previous recorded police contacts associated with gang activity; and reliable information from a third party indicating membership. Detective Speyrer stated that his opinion Flores was an active D.A.T. member was based on Flores's April 1, 2004 arrest for tagging the letters "D.A.T." on a freeway; the observance of D.A.T. tagging at his residence during the subsequent execution of a search warrant; his arrest in the current case involving a victim who was associated with the rival gang M.D.R.; his tagging of the letters "D.A.T." on the wall and bench of his holding cell after his arrest in the current case; his tagging of "D.A.T." and his moniker "Puzl" on his shoes, as observed at the preliminary hearing in the current case; and his subsequent admission in the holding cell that he "ha[s] to represent," meaning he tagged his shoes so that people know who he is.
Detective Speyrer's testimony concerning the D.A.T.'s predicate offenses was as follows. Flores was charged with felony vandalism with a gang enhancement, based on the tagging of a carpet store and causing more than $400 in damage. On December 29, 2003, two carloads of D.A.T. members attacked an M.D.R. member and his brother with a chain and a stick; two of the eight assailants had been arrested so far. On March 15, 2004, D.A.T. members shot at an M.D.R. member at a trolley station in Chula Vista. On April 19, 2004, a homicide occurred when an M.D.R. member was shot through a door and a wall; the case was still under investigation and D.A.T. members were the suspected perpetrators.
Detective Speyrer described Flores's felony vandalism charge as the "tagg[ing] up a carpet store and caus[ing] over $400 worth of damage[,]" and described his April 1, 2004 arrest as "tagging on the freeway over by Interstate 54." It appears from the probation report that the felony vandalism charge described by Detective Speyrer and the April 1 arrest refer to the same incident.
Detective Speyrer stated the homicide occurred on April 13, whereas it appears from the record the correct date is April 19. In pretrial rulings, the trial court had ruled that the April 19 homicide should be sanitized and referred to as a "recent incident of violence" rather than a homicide. Although Detective Speyrer did not adhere to this ruling when he described the incident as a "homicide," Flores does not contend (nor does the record show) that this created reversible error. Notably, Detective Speyrer's testimony did not identify Flores as one of the suspects in the April 19 homicide.
Evidence of an offense committed by the defendant that is not charged in the current case is generally inadmissible to show the defendant's propensity to commit crimes, but is admissible when relevant to prove some material fact in issue other than criminal disposition. (People v. Whisenhunt (2008) 44 Cal.4th 174, 203.) Further, evidence of a defendant's criminal conduct is admissible to impeach a testifying defendant if the conduct involves moral turpitude. (People v. Williams (2009) 170 Cal.App.4th 587, 607-608; People v. Wheeler (1992)4 Cal.4th 284, 295-296.) However, because of the danger that other-crimes evidence will cause a jury to convict based on criminal propensity rather than proof of guilt in the current case, a trial court has discretion under Evidence Code section 352 to exclude the evidence based on an assessment that the potential for prejudice outweighs probative value. (See People v. Alcala (1984) 36 Cal.3d 604, 631; People v. Kipp (1998)18 Cal.4th 349, 371; People v. Wheeler, supra, 4 Cal.4th at pp. 296-297; People v. Williams (1997) 16 Cal.4th 153, 193.)
Here, the expert's testimony about Flores's prior arrest and charge of felony vandalism—which involved gang-related tagging—was relevant to support the charged gang enhancement. To impose the gang enhancement, the prosecution was required to show that the gang qualified as a criminal street gang because one of its primary activities is the commission of the statutorily-specified predicate offenses (§ 186.22, subds. (e), (f); People v. Bragg, supra, 161 Cal.App.4th at p. 1400), and that the defendant acted to benefit the gang (§ 186.22, subd. (b)(1)). The testimony concerning Flores's gang-related criminal history served to support these requirements. Further, the evidence of Flores's prior tagging activity showed he wanted to promote his gang and thus was relevant to prove he had a motive to engage in the gang-related threat to Ortiz. (See People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550 [evidence of gang activity admissible to show motive].) In short, the expert's testimony concerning Flores's prior felony vandalism conviction was clearly relevant to the prosecution's case-in-chief to prove material facts apart from criminal propensity.
Felony vandalism is one of the predicate offenses specified in the gang enhancement statute. (§ 186.22, subd. (e)(20).)
On appeal, Flores contends that the trial court made a pretrial ruling that his prior felony conviction could "only" be used for impeachment, and thus his counsel was ineffective for failing to object to the prosecution expert's testimony regarding his prior conviction. The argument fails as the record reflects no such pretrial ruling. The prosecution's pretrial motion, and the court's pretrial ruling, solely addressed the issue of whether the prior conviction was admissible for impeachment should the defendant testify. The fact that a prior conviction has been ruled admissible for impeachment does not automatically mean it is inadmissible to show some fact other than criminal disposition. Flores has not cited to anything in the record showing he made a pretrial request that testimony concerning his prior conviction be excluded from the prosecution's case-in-chief. Because the trial court was never presented with the issue of admission of the evidence in the prosecution's case-in-chief, Flores cannot support his claim of ineffective assistance based on the trial court's pretrial ruling.
Flores also contends that had defense counsel objected to the expert's testimony relating to his prior conviction, the trial court would have excluded the evidence because his counsel was not disputing that he was a gang member, and it was not necessary to identify him as a perpetrator to prove the D.A.T.'s predicate offenses. We are not persuaded. A defendant's not guilty plea puts in issue all the elements of the charges, and the prosecution has a right to fully present all evidence that supports its case. (People v. Balcom (1994) 7 Cal.4th 414, 422-423; People v. Waidla (2000)22 Cal.4th 690, 723, & fn. 5.) A defendant's stipulation or failure to dispute an issue does not foreclose the prosecution's presentation of evidence unless the trial court determines the potential for prejudice outweighs the probative value of the evidence. (People v. Waidla, supra, 22 Cal.4th at pp. 723-724; People v. Thornton (2000) 85 Cal.App.4th 44, 49.) Flores's acknowledgement that he was a gang member did not require the trial court to exclude evidence concerning his prior gang-related conduct absent a finding of undue prejudice. Likewise, although the gang enhancement statute does not require that the defendant have committed a predicate offense, the trial court was not required to exclude the testimony naming Flores as a perpetrator in a predicate offense unless it found the potential for prejudice outweighed the probative value of the evidence. Thus, to the extent Flores suggests the trial court would have been compelled to exclude the evidence had his counsel objected, the contention fails.
Moreover, the record does not show a reasonable probability that, had defense counsel objected, the trial court would have exercised its discretion to exclude the evidence as more prejudicial than probative. Flores's prior conviction was for tagging and did not involve any violence. The evidence involved facts that were much less egregious than the facts of the charged offense of assault with a firearm and was not likely to inflame the jury. (See People v. Whisenhunt, supra, 44 Cal.4th at p. 205.) Tagging activity, standing alone, would not suggest that Flores had a tendency to engage in acts of violence such as the charged offense of assault with a firearm. Given the high relevancy of the prior conviction evidence to prove the gang enhancement and to show motive, and given the noninflammatory nature of the evidence, the record does not show a reasonable probability the trial court would have excluded the evidence from the prosecution's case-in-chief.
For the same reason, even assuming arguendo the trial court would have exercised its discretion to exclude the prior conviction evidence except for impeachment, there is no reasonable probability that the expert's references improperly influenced the jury when deciding whether the prosecution had established Flores committed the charged offense. The gang expert referred to Flores's prior arrest and charge for tagging. There were no suggestions that he committed acts of violence. As stated, because the tagging did not involve egregious facts when compared to the charged assault with a firearm offense, it did not carry any significant danger of undue prejudice. It is not reasonably probable that the expert's reference to this nonviolent conduct inflamed the jury so as to improperly affect its decision regarding the much more serious charged offense.
To the extent the expert's testimony may have been interpreted by the jury to refer to two distinct acts of tagging (i.e., one involving a carpet store and one on a freeway, see fn. 3, ante) whereas there was in fact only one act, there was no prejudice. Again, it is not likely that the jury was inflamed or distracted from reviewing the evidence of guilt based on this relatively low-level criminal conduct.
Flores also asserts his counsel should have objected to the gang expert's additional references to his criminal history, including execution of a search warrant which revealed D.A.T. graffiti at his residence, and the facts that he was in custody for the current offense and he tagged his holding cell with D.A.T. graffiti. Again, this testimony was highly relevant to show Flores had a motive to commit the gang-related offense against Ortiz and that he acted to benefit the gang. Further, because these references solely concerned tagging activity, they were not of a nature to have inflamed the jury in a case involving an assault with a firearm charge. There is no reasonable probability the trial court would have excluded this testimony, or that the testimony was prejudicial to the outcome.
Flores further complains about his trial counsel's question to Detective Speyrer on cross-examination, asking if he (Flores) was involved in the D.A.T. shooting at the Chula Vista trolley station on March 15, 2004. Detective Speyrer responded that he needed to ask the judge if he could answer that question because the case was still under investigation. The prosecutor then asked defense counsel if he was withdrawing the question, and defense counsel replied that he was withdrawing it. Flores contends that this colloquy "strongly implied that [he] was involved" in the March 15 shooting. To the contrary, the detective's statement that the case was still under investigation did not shed any light on who was involved. No reasonable juror would have construed the detective's statement about an ongoing investigation—which did not specify any suspects—as providing evidence that Flores was involved in this crime. Defense counsel likely expected Detective Speyrer to respond that Flores had not been shown to be involved in this incident. According to the probation officer's report, although Flores was apparently identified by a witness as a perpetrator in the incident, the district attorney's office did not file charges against him. Thus, defense counsel may have asked this question to defend against the charged offense by showing that Flores was not involved in D.A.T.'s violent activities. This would not have been an unreasonable trial tactic. There is no showing of ineffective representation or prejudice from this question.
Flores's citation to People v. Ferraez (2003) 112 Cal.App.4th 925, does not advance his argument. In Ferraez, defense counsel's cross-examination elicited testimony that the defendant had been charged with gun crimes and arrested for gang activity, and the appellate court could conceive of no tactical reason for defense counsel's questions. (Id. at pp. 932-933.) This type of questioning did not occur here.
In a related argument, Flores contends that as a result of his counsel's conduct, the expert's testimony implicitly suggested to the jury that he was a participant in the D.A.T.'s predicate offenses involving "assault with a firearm" and a "brutal beating." Flores is apparently referring to the March 15, 2004 shooting at the trolley station and the December 29, 2003 assault with a chain and stick. As stated, no testimony was presented showing he was a suspect in the March 2004 shooting, and there is likewise nothing in the record identifying him as one of the suspects in the December 2003 beating. Because evidence concerning predicate offenses committed by the D.A.T. was clearly admissible to prove the gang enhancement, and because the testimony concerning these two offenses did not single out Flores as a suspect, this contention of ineffective representation is unavailing.
To further support his claim of ineffective representation, Flores cites his counsel's statement on cross-examination that he was sincerely impressed with Detective Speyrer's extensive training and experience investigating gang activity. Read in context, the statement does not show incompetent representation. Trial counsel made this statement as a prelude to eliciting testimony from Detective Speyrer that he had the same type of experience preparing reports, which in turn served to support the defense theory that Ortiz should be discredited because his testimony included statements that contradicted reliable statements made in police reports.
Flores has not established ineffective representation.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, J., AARON, J.