Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA056138, Shari Silver, Judge. Modified in part; affirmed in part.
Andrew Reed Flier for Defendant and Appellant Joshua Palomino.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant Alejandro Palomino.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellants Alejandro Palomino and Joshua Palomino were each convicted, following a jury trial, of two counts of assault on a peace officer with a semiautomatic firearm in violation of Penal Code section 245, subdivision (d)(2), two counts of assault by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(1) against Marvin A., a minor, and Jose Duran and two counts of assault with a semiautomatic firearm in violation of section 245, subdivision (b) against Wendy Duran and Josue Vaca. The jury found true the allegations that appellants inflicted great bodily injury in the assault on Jose Duran within the meaning of section 12022.7, subdivision (a) and that a principal personally used a firearm in the commission of the assaults on the peace officers within the meaning of section 12022.53, subdivisions (b), (c), and (e)(1). The jury also found true all but one of the allegations that the offenses were committed to benefit a criminal street gang within the meaning of section 186.22. The exception was the assault on Marvin A. The jury further found true the allegations that Alejandro personally used a firearm in the commission of the assaults on the police officers and the assault with a semiautomatic weapon on Josue Vaca within the meaning of sections 12022.53, subdivisions (b) and (c) and 12022.5. The jury also found true the allegation that Joshua personally used a firearm in the assault on Wendy Duran within the meaning of section 12022.5.
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced Alejandro to a total of 69 years, 8 months in state prison. The sentence included the upper term on one of the convictions for assaulting a peace officer with a semiautomatic firearm. The court sentenced Joshua to a total of 50 years, 4 months in state prison. This sentence also included the upper term on one of the convictions for assaulting a peace officer with a semiautomatic firearm.
Appellants appeal from the judgment of conviction, making numerous claims of error. They contend (1) evidence about gang culture was more prejudicial than probative and should not have been admitted; (2) certain gang evidence was hearsay which violated their constitutional right to confrontation; (3) photographs of the most seriously injured victim, Jose Duran, were more prejudicial than probative and should not have been admitted; (4) the prosecutor committed misconduct in referring to gang evidence during opening statement and eliciting a reference to prison gangs from the gang expert; (5) the trial court committed misconduct when it instructed the jury to disregard a misstatement of the law by Alejandro's counsel; (6) the trial court erred in failing to instruct the jury that a defendant's out-of-court statements should be viewed with caution; (7) the court erred in instructing the jury with CALJIC No. 2.20.1 concerning the credibility of a child witness; and (8) the imposition of the upper term for one of the assault convictions violated their right to a jury trial and the ex post facto clauses of the state and federal constitutions. Joshua contends that there is insufficient evidence to support his convictions for assault of a peace officer and he received ineffective assistance of counsel throughout trial. Alejandro further contends that the trial court erred in imposing a 40 month term for the gang allegation on the assault conviction.
Appellants are correct that the trial court should have instructed the jury to view an out-of-court admission by a defendant with caution, but were not prejudiced by that omission. We correct the 40 month gang enhancement term imposed on Alejandro. We see no other error and affirm the judgment of conviction in all other respects.
Facts
Appellants Joshua and Alejandro Palomino are brothers. Both are members of the 18th Street gang. On July 2, 2006, they committed a series of crimes with fellow gang member Ernesto Ubaldo. The three men attacked two boys on a street corner in Panorama City, beating them both, one into unconsciousness. Jose Duran stopped to assist the two boys and was kicked into unconsciousness by appellants and Ubaldo. Joshua held a gun on Wendy Duran during the assault, which was also witnessed by the Durans' children. None of the victims were gang members.
As appellants left the scene, they made gang signs, challenged a motorist stopped at a stoplight and hit him with a firearm. Alejandro discharged a firearm at two police officers who came to the scene. He was caught on video discarding the gun as he fled. Joshua and Ubaldo were arrested at the scene less than a minute after the attacks. Alejandro was arrested the next day. DNA analyses showed that blood on Joshua's and Alejandro's jeans came from Jose Duran. Duran's blood was also on Joshua's shoe.
The attacks began, about 7:45 p.m., as 13-year-old I.S. and his 12-year-old friend, Marvin A. were walking with two girls across the intersection of Nordhoff Street and Van Nuys Boulevard in Panorama City. Joshua, Alejandro, and Ubaldo were walking across the intersection in the opposite direction. Joshua said to one of the girls: "Damn, girl. Why you hanging around these bitches?" According to Marvin, Joshua said: "What's up? Why don't you stop messing around with these little kids and come with us." I.S. responded: "What's your problem? That's my girlfriend." I.S. told Joshua to show some respect.
I.S. and Marvin started to walk away and heard someone yell: "What vato? Say what's up?" I.S. understood the remark as a challenge to fight. Alejandro ran back across the intersection and struck I.S. in the face with his fist. I.S. fell to the ground and got back up. Alejandro struck I.S. repeatedly with his fists. I.S. fought back. Joshua pulled I.S.'s hair from behind and began to hit I.S.
Marvin pushed Joshua off I.S. Alejandro continued fighting with I.S. Joshua began to hit Marvin. Marvin fell to the ground. Joshua and Ubaldo kicked him in the head repeatedly, and were "jumping on his head" after he was unconscious. At some point, Joshua went back to I.S., pulled his hair from behind and held his head down while Alejandro struck him in the head and face with his fists. I.S. fell to the ground and got into a "fetal position." Appellants kicked I.S. in his torso and his arms. I.S. heard someone say: "Pull out the cuete." Cuete is a Spanish slang for a gun. I.S. then saw a silver semiautomatic firearm on the ground. I.S. placed his hands up to indicate surrender, and stated, "I'm sorry," because he did not want to get shot.
As appellants and Ubaldo were attacking I.S. and Marvin, Jose Duran was driving his SUV westbound on Nordhoff Street toward Van Nuys Boulevard. His wife, Wendy Duran, and the couple's two children, Melissa and Angelina, were in the vehicle. Jose Duran stopped his vehicle approximately 20 feet away from where appellants were attacking I.S. and Marvin. Mr. and Mrs. Duran yelled at appellants to leave the boys alone. Jose Duran got out of his vehicle and ran towards appellants, intending to help I.S. and Marvin. Wendy Duran heard someone say: "Saca el cuete." This means get out the gun. Jose Duran kicked Joshua off one of the boys, but Joshua grabbed Jose's leg, knocked him to the ground, and struck him. Alejandro and Ubaldo kicked Jose Duran repeatedly in the chest, face, and head, even as he bled profusely.
Melissa and Angelina began screaming. Wendy Duran got out of her vehicle and yelled at Alejandro and Ubaldo to leave Jose Duran alone. Joshua pointed a silver semiautomatic firearm at her face, and said: "If you move, I'll kill you." Alejandro approached Wendy Duran and said: "I'm sorry, hyna," then went back to kicking Mr. Duran. Alejandro then added: "You have to understand this is gang-related."
Wendy identified Joshua in a field show-up held on the night of the shooting as the man who pointed a gun at her. Melissa identified Joshua in a photographic array as the man who pointed a gun at her mother. Both identified Alejandro as one of the men attacking Jose. At trial, Melissa was unable to identify appellants. Wendy identified appellants as two of the attackers, but could not remember which one held the gun.
Appellants and Ubaldo fled westbound across Van Nuys Boulevard and down the north side of Nordhoff. They passed a McDonald's restaurant. The men were making gang signs. They approached a vehicle being driven by Josue Vaca, which was stopped on Nordhoff in a left turn lane. Josue Vaca's driver's side window was rolled down. Rafael Sauceda was in the front passenger seat of the vehicle. Alejandro pointed a silver semiautomatic firearm at the two men. Joshua asked: "Where you from?" Mr. Rafael Sauceda raised his hands in the air and responded, "I'm from nowhere." Joshua lifted up his shirt, displayed gang related tattoos on his stomach, and stated: "This is 18th street." Alejandro struck Vaca in the face twice while holding the gun in his hand. Vaca was able to drive away. At trial, he identified Joshua as the one with the gun and Alejandro as the one who lifted up his shirt.
Sauceda told police that Alejandro was the one with the gun and Joshua the one who lifted up his shirt. At trial, Sauceda believed that Joshua was the one with the gun and Alejandro the one who lifted up his shirt.
Los Angeles Police Department Officer Egon Ponce was on patrol in a marked police vehicle, along with his partner, Officer Joshua Ordonez, when he received a radio report of an assault with a deadly weapon in progress at the intersection of Nordhoff Street and Van Nuys Boulevard. The suspects were described as three Hispanic males with shaved heads, wearing T-shirts and jeans. Los Angeles Police Department Officer Miguel Nunez and his partner, Officer Orrellana, also received the same radio report concerning the assault. Both sets of officers began driving toward the intersection.
Officers Nunez and Orrellana were flagged down by I.S. and Marvin about 50 yards from the corner of Nordhoff Street. I.S. told the officers that they had just been "jumped" by three Hispanic males at the intersection, and that a passerby was being beaten. The officers went to the intersection and found Jose Duran lying unconscious on the ground, bleeding from his mouth and nose. There was blood on the street and sidewalk where I.S., Marvin, and Jose Duran had been attacked.
Jose Duran and Marvin were taken to a hospital and treated. Duran had broken bones in his jaw, nose and face from the beating. He was in the hospital for 10 days after the attack and needed multiple surgeries to repair the damage to his face, including implants in his cheeks and eye socket. His face remained swollen and discolored for a month after the attack. Photographs of both victims' injuries were shown to the jury at trial.
Officers Ponce and Ordonez approached the intersection from the west on Nordhoff Street. As they did so, Officer Ponce saw appellants and Ubaldo, who matched the description of the suspects in the radio broadcast, walking north across Nordhoff Street, towards the McDonald's restaurant. There was a semi-truck with an attached trailer parked on the north side of Nordhoff Street, just west of the McDonald's driveway. As appellants and Ubaldo crossed the street, they appeared to be talking and gesturing to one another. Appellants and Ubaldo disappeared from Officer Ponce's view behind the back of the semi-truck. A few seconds later, Alejandro stepped out from behind the truck and stood in the street at the truck's rear wheels. He looked at Officers Ponce and Ordonez, removed a firearm from his person, moved the firearm's slide, then pointed the weapon at the officers and fired.
Alejandro ran northbound through the McDonald's parking lot. Officer Ponce got out of his vehicle and drew his weapon. Officer Ordonez placed a radio call to report the shooting, then ran towards the area where Alejandro had discharged his weapon. Officer Ponce ran towards the northeast comer of Tobias Avenue and Nordhoff Street, and saw Joshua Palomino and Ubaldo. He ordered Joshua and Ubaldo to the ground at gunpoint. Officers Nunez and Orrellana, who had been nearby and heard the gunshot, arrived and took the two men into custody. Officer Nunez estimated that 45 seconds elapsed between the gunshot and the capture of the two men.
Los Angeles Police Department Officers Matthew Mitchell and Luis Aguilar then arrived at the scene. Officer Mitchell saw bystanders on the corner of Tobias Avenue and Nordhoff Street pointing towards a man who was running through an alley. Other bystanders standing near an alley north of, and parallel to, Nordhoff Street pointed west and yelled: "He went that way." Officer Mitchell entered the alley and saw Alejandro enter the rear door of a two story apartment building. Officers Mitchell and Aguilar, along with other responding units, set up a perimeter containing the apartment building.
Officers conducted a canine search of the apartment building. A police dog alerted to apartment number 204. Christopher Ubaldo, Ernesto's brother was brought outside for a series of field showups, but was excluded as a suspect.
Los Angeles Police Department Detective Michael Berchem arrived at the scene about 10:00 p.m. Detective Berchem recovered one live.380-caliber round and one spent.380-caliber shell casing from the ground near the rear wheel of the semi-truck where appellant Alejandro Palomino had discharged his weapon.
After the canine search, Detective Berchem contacted the apartment manager, Josefina Martinez, who lived in apartment number 206, located next door to apartment number 204. The detective asked Ms. Martinez if any gang members lived in the building. Ms. Martinez told the detective that there were no gang members living in the building, and refused the detective's request for a list of residents in the building. Around 1:00 or 2:00 a.m., officers removed the perimeter around the building.
That same night, Detective Berchem reviewed video footage taken from a security camera located at the McDonald's restaurant. The video showed Alejandro discarding a weapon into bushes near a dumpster in the McDonald's parking lot. Detective Berchem subsequently recovered a silver semiautomatic,.380-caliber handgun from those bushes. The video footage was played for the jury at trial.
Detective Berchem learned that Officer Ponce had reviewed photographs and identified Alejandro as the man who had shot at him, and that one of two known addresses for Alejandro was apartment number 206. The detective also learned that Ms. Martinez was appellants' mother. Detective Berchem returned to the apartment about 4:00 or 5:00 a.m. He asked Ms. Martinez for permission to search her apartment for Alejandro. She refused.
Sometime early the next morning, Alejandro's girlfriend, Juliana Perez, picked him up from his mother's apartment building and took him back to the residence they shared in Reseda. That same morning, Detective Berchem went to Perez's residence in Reseda, saw a black SUV in the driveway of the residence and determined that the vehicle was registered to Alejandro. The hood of the vehicle was warm to the touch. Police conducted surveillance, and Alejandro was arrested when he left the residence several hours later. Following the arrest, Detective Berchem observed and photographed Alejandro's hands, which had scuff marks and cuts on them.
About 10 days later, Detective Berchem searched apartment number 111 in the building where Alejandro had first hidden. Joshua had lived with his girlfriend in that unit. Detective Berchem recovered a photograph of appellants making gang signs associated with the 18th Street criminal street gang.
Detective Berchem collected the clothing that appellants had been wearing at the time of their respective arrests, and requested that it be tested for the presence of blood and DNA. Detective Berchem also obtained oral swabs from appellants, Ubaldo, Jose Duran, I.S., and Marvin, and submitted them for testing along with appellants' clothing.
Henry Tauzon, a criminalist employed in the Scientific Investigation Division of the Los Angeles Police Department, analyzed appellants' clothing, and located blood on appellant Joshua's shoes and shirt. Mr. Tauzon also located blood on the bottom cuff portion of both appellants' pant legs. Mr. Tauzon collected and prepared cuttings from the clothing, and prepared a swab of the blood found on Joshua's shoes. Mr. Tauzon then sent the materials, along with all of the oral swabs submitted by Detective Berchem, to Cellmark Orchid Forensics laboratory for testing.
Jody Hrabal, a forensic DNA analyst employed by Orchid Cellmark Forensics conducted Polymerase Chain Reaction DNA testing on the clothing submitted in the instant case, and compared any DNA profiles recovered to the profiles from oral swabs of I.S., Marvin, and Jose Duran. Ms. Hrabal determined that Duran's DNA profile was present in the blood found on appellants' jeans, and that Duran's DNA profile, along with the profile of an unknown male, was present on the swab prepared from Joshua's shoe.
Vanessa Gould, a criminalist employed in the Scientific Investigation Unit of the Los Angeles Police Department, examined the semiautomatic,.380-caliber weapon that Detective Berchem recovered from the bushes near the McDonald's restaurant.
Ms. Gould compared the shell casing recovered in the instant case to those ejected by the weapon during test fires, and determined that all of the casings were fired from the weapon recovered by Detective Berchem.
At trial, Los Angeles Police Department Officer Edgar Hernandez testified as a gang expert. He worked in the department's gang enforcement detail from 2002 until 2008, and was assigned to monitor and track members of the "18th Street" criminal street gang. The 18th Street criminal street gang has 3,000 members in Los Angeles Police Department's Rampart Division alone. The 18th Street criminal street gang has symbols which members use in graffiti and tattoos, consisting primarily of references to the number 18. Officer Hernandez explained that the primary activities of the 18th Street criminal street gang are murder, attempted murder, robbery, attempted robbery, extortion, narcotic sales, vandalism, and auto theft. The People introduced two certified minute orders to show crimes committed by members of the 18th Street gang. One showed that Juan Gutierrez had suffered convictions for murder and robbery for an offense committed in May 2003. The other showed that Leskin Moreno had suffered a conviction for an attempted murder which occurred in April 2005. Moreno pled guilty in that case.
In 2002, both Alejandro and Joshua admitted to Officer Hernandez that they were members of the 18th Street criminal street gang. They said that they were members of the Hollywood clique or set of that gang. In 2002, Officer Hernandez saw Alejandro's upper body and observed a tattoo on his right arm of a clown wearing a jersey bearing the number 18. Officer Hernandez also saw Joshua's upper body and he had only his last name and an Aztec symbol tattooed on his back. Officer Hernandez viewed appellants' bodies prior to his testimony at trial, and saw numerous gang related tattoos on appellants that were not present in 2002. Both appellants had 18th Street criminal street gang tattoos on their chests, stomachs, arms, legs, wrists, and hands.
Officer Hernandez explained that a gang member tattoos his body with gang symbols to show allegiance and respect to his gang. Only members of a gang may tattoo gang symbols on their body, and individuals who leave a gang no longer acquire new gang-related tattoos. Officer Hernandez explained that 18th Street gang members place certain types of gang tattoos on themselves once they have committed a criminal offense on behalf of the gang, and he opined that the types of tattoos added to appellants' bodies since 2002 were consistent with those earned by gang members committing criminal offenses on behalf of their gang.
Officer Hernandez viewed the photograph of appellants recovered from appellant Joshua Palomino's apartment and opined that appellants were making 18th Street criminal street gang signs in the photograph.
Officer Hernandez explained that respect means "pretty much everything for a gang member," and that gang members equate fear and intimidation with respect. A gang member can earn respect and elevate his status within his own gang by committing crimes: the more violent the offense, the more respect the gang member earns as a result of its commission. Officer Hernandez explained that a gang member's act of calling out a gang's name during or after the commission of an offense sends a message to witnesses and victims that they should not cooperate with the police or testify regarding the offense. Gangs claim territory and protect that territory by instilling fear in residents so that they can maintain control of narcotics sales in an area and extort businesses in order to fund criminal activities. Gang members also elevate their status within a gang by committing offenses outside of their gang's territory. A gang member's act of shooting at a police officer would elevate his own status within his gang, as well as the gang's overall status, in the eyes of gang members in and out of custody.
Detective Hernandez opined that appellants were both active members of the 18th Street criminal street gang, and that their offenses in the instant case were committed to promote, facilitate, or in association with, a criminal street gang. Detective Hernandez opined that Alejandro's act of shooting at Officers Ponce and Ordonez would promote Joshua's status within the 18th Street criminal street gang because Joshua was with him during the offense.
Alejandro testified on his own behalf. On July 2, 2006, he, Joshua, three younger brothers and Ubaldo met Alejandro's parents at a restaurant for an early birthday celebration for Alejandro. The group left the restaurant about 7:00 p.m. Alejandro had consumed many beers by that point. Joshua and Ubaldo walked away from the restaurant and Alejandro lost sight of them.
Alejandro began to walk home alone. As he reached the corner of Nordhoff and Van Nuys, he saw Joshua and Ubaldo involved in a fight. Alejandro joined in to help Joshua and Ubaldo. When Jose Duran arrived, Alejandro helped fight him as well. Alejandro never saw anyone hold a gun on Wendy Duran. After Ubaldo kicked Jose Duran into unconsciousness, the three men began to run away.
When the three men stopped briefly behind a parked truck, Alejandro saw that Ubaldo had a gun in his hand. Alejandro took the weapon away from him. Alejandro began walking, noticed that there was a bullet sticking out from the gun's slide and tried to remove the bullet by moving the slide. The gun accidentally discharged.
He ran through the McDonald's parking lot once he saw the police officers. He went to his mother's apartment building, stayed in a neighbor's unit there overnight and was picked up the next day by Perez. He was arrested at her house. The shirt and shoes he was wearing at the time of the arrest were not the ones he was wearing during the fight.
Alejandro admitted that he had lied to Detective Berchem after he was arrested. He told the detective that he was at dinner with Perez and his parents at El Torito in the Northridge mall from 6:00 p.m. to 9:00 p.m. He also lied when he claimed that he had hurt his hands in a fall.
Alejandro admitted that he had joined the 18th Street gang in 2000. He did not acquire any new tattoos after 2002. In 2002, his girlfriend became pregnant and he decided to leave the gang. He started to get his gang tattoos removed. He got his GED and attended junior college for a year. He obtained employment.
Discussion
1. Expert gang evidence
Joshua contends that the trial court abused its discretion in denying his four motions in limine to exclude gang evidence. Specifically, he contends the trial court failed to engage in the required balancing analysis under Evidence Code section 352 before reaching its decision. Alejandro joins in this contention. We see no abuse of discretion.
Alejandro joined in these motions in the trial court.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
A trial court "need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing functions under Evidence Code section 352." (People v. Taylor (2001) 26 Cal.4th 1155, 1169.)
Joshua filed four motions in limine concerning gang evidence. To the extent that appellants claim error in the resolution of motions two and three, they have forfeited those claims by reaching agreements with the prosecutor on the subject matter of the motions. We consider the remaining two motions.
Motion number two sought to prevent appellants from being required to display the tattoos on their bodies. Joshua's trial counsel told the court that the parties had agreed that only photographs of the tattoos would be displayed during trial. The court agreed and ordered that the photographs would be used in lieu of disrobing. Appellants do not identify any other objections in the trial court to the tattoos. On appeal, Joshua claims that Officer Hernandez's testimony about tattoos was lengthy, cumulative and lacking in probative value. He has forfeited this claim by failing to make a timely and specific objection in the trial court.
Motion number one sought to exclude any evidence of gang rivalries. Motion number four sought to exclude evidence that (1) gangs gain influence, power and respect through fear, and to establish fear gang members commit crimes and violence, (2) the more crimes a gang commits, the greater its reputation, (3) the more violent the crime, the more the gang was feared and respected and the less it was challenged by rival gangs and (4) the gang's violent behavior made witnesses reluctant to report crimes, testify as witnesses or identify gang members. Both motions argued that the evidence was not admissible under Evidence Code section 352.
Motion number four also sought to preclude evidence that snitches are marked for death. The trial court indicated that such evidence would only be relevant if a witness recanted. The People did not offer any evidence that snitches were marked for death.
Joshua's trial counsel referred to Evidence Code section 352 during the hearing on the motions in limine. The trial court also expressly referred to section 352, stating: "Well, in terms of all my rulings this afternoon, in looking at Evidence Code 352...."
The court discussed the relevance of the gang evidence, noting that this was clearly a gang-related case, since there was evidence that appellants shouted their gang name, made gang signs and displayed their gang tattoos during the course of their crimes. The gang evidence was relevant to explain how the crimes benefited the gang. The court also found that the evidence would not consume an undue amount of time and would assist the jury. The court found that the probative value of the evidence outweighed the possibility of undue prejudice. This provides the required balancing under Evidence Code section 352.
Appellants seize on the court's statements: (1) "The court does not find that any prejudice exists" and (2) "And no prejudice exists whatsoever." The trial court also said: "[I]t seems to me that whatever prejudice does exist in terms of the jurors being put off by the gang culture, the gang issues are 100 percent part of the case." They contend that it is "unimaginable" that there was no prejudice from the gang evidence and conclude that the court's statements show that it did not properly analyze the evidence under Evidence Code section 352.
The "prejudice" referred to in Evidence Code section 352 applies to evidence that uniquely tends to evoke an emotional bias against one side, with very little effect on the issues. (People v. Crittenden (1994) 9 Cal.4th 83, 134.) It was clearly this prejudice to which the trial court referred.
We see no abuse of discretion in the trial court's ruling. It is well-established that gang evidence is admissible when the very reason for the crime is gang related. (People v. Champion (1995) 9 Cal.4th 879, 922; People v. Tuilaepa (1992) 4 Cal.4th 569, 588; People v. Frausto (1982) 135 Cal.App.3d 129, 140; People v. Beyea (1974) 38 Cal.App.3d 176, 194.) Appellants have not identified anything unusual about the evidence offered in their case that would exempt it from that rule. (See People v. Hernandez (2004) 33 Cal.4th 1040 [gang evidence is generally admissible in a trial where a gang enhancement is alleged, but some gang evidence may be so extraordinarily prejudicial, and of so little relevance to guilt that it threatens to sway the jury, and so gang enhancement should be bifurcated from trial on guilt].)
To the extent that appellants also contend that the trial court abused its discretion in permitting an expert to testify about the above-mentioned gang topics, we do not agree. In cases where a gang enhancement has been alleged, expert testimony regarding the "culture, habits, and psychology of gangs" is generally permissible because those subjects are sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (People v. Valdez (1997) 58 Cal.App.4th 494, 506.)
2. Confrontation of gang expert
Alejandro contends that his federal constitutional right to confrontation was violated by the admission of certain gang evidence offered to show that the 18th Street gang was a criminal street gang within the meaning of section 186.22. Specifically, he claims that the admission of a minute order showing that Leskin Joel Moreno pled guilty to attempted murder was testimonial hearsay, as was the prosecution's gang expert's testimony that Moreno and Juan Carlos Gutierrez, another convicted felon, were members of the 18th Street gang. He argues that the expert's testimony was based on statements from other gang members. He contends that he was unable to cross-examine Moreno about his guilty plea or the gang members who spoke to the gang expert about Moreno's and Gutierrez's gang membership, and that this violated their rights to confrontation as set forth in Crawford v. Washington (2004) 541 U.S. 36. Joshua joins in this contention.
Respondent contends that appellant has forfeited this claim by failing to object in the trial court. We agree.
A defendant who does not raise a Confrontation Clause claim in the trial court forfeits that claim. (People v. Lewis (2006) 39 Cal.4th 970, 1028, fn. 19.)
Appellants point out that the failure to object may be excused when the pertinent law later changes so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change. (People v. Turner (1990) 50 Cal.3d 668, 673-674.) They contend that that was the case here. We do not agree.
Appellants' claim of error relies on Crawford v. Washington, supra, generally and more specifically on Davis v. Washington (2006) 547 U.S. 813. Crawford was decided on March 8, 2004. Davis was decided on June 19, 2006. Appellants' trial did not begin until February 2008, more than 18 months after Davis and almost 4 years after Crawford. That was ample time for trial counsel to learn of both cases.
Assuming that the claims were not forfeited, we would find no violation of the Confrontation Clause.
It is the appellant's duty to affirmatively demonstrate error. (In re Kathy P. (1979) 25 Cal.3d 91, 102.) Appellants have failed to do so with respect to the testimony of the gang expert, Officer Hernandez. They did not cross-examine Officer Hernandez about the basis of his knowledge that Moreno and Gutierrez were gang members. On appeal, they simply rely on the officer's testimony on direct examination that a primary means of gathering information on gangs is through interviews with gang members. Thus, they have not established that Officer Hernandez's opinion was based on hearsay or that any statements made to him were testimonial. Thus, their claim fails. Further, even if we were to assume for the sake of argument that Officer Hernandez did rely on statements by gang members, we would find no violation of appellants' federal right to confrontation.
It is well-established in California law that an expert witness may base his opinion "on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible" so long as the material is of a type that may reasonably be relied on by an expert in forming an opinion on the subject at hand. (Evid. Code, § 801, subd. (b); People v. Gardeley (1996) 14 Cal.4th 605, 618.) Gang experts may reasonably rely on conversations with gang members, personal investigations of crimes committed by gang members and information from colleagues and various law enforcement agencies. (People v. Gardeley, supra, 14 Cal.4th at pp. 619-620.)
"[B]ecause Evidence Code section 802 allows an expert witness to 'state on direct examination the reasons for his opinion and the matter... upon which it is based,' an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]" (People v. Gardeley, supra, 14 Cal.4th at p. 618.) "[A] witness's on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into 'independent proof' of any fact." (Id. at p. 619.)
As appellants acknowledge, the Fourth District Court of Appeal has considered a claim that Crawford barred an expert witness from testifying that the defendant belonged to a gang and committed the charged offense for the benefit of the gang. (People v. Thomas (2005) 130 Cal.App.4th 1202.) The Court held that, "Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert's opinion. Crawford itself states that the Confrontation Clause 'does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.' (Crawford, supra, 541 U.S. at p. 59, fn. 9, 124 S.Ct. at p. 1369, fn. 9, citing Tennessee v. Street (1985) 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425.)"
(People v. Thomas, supra, 130 Cal.App.4th at p. 1210; see also People v. Ramirez (2007) 153 Cal.App.4th 1422, 1426-1428; People v. Cooper (2007) 148 Cal.App.4th 731, 747 [medical expert].) We agree with the reasoning of those cases.
We likewise see no merit to appellants' claim that the minute order showing a guilty plea by Moreno was inadmissible under the Confrontation Clause because the underlying plea reflected in that order was testimonial hearsay.
Appellants rely on the following reference to Kirby v. U.S. (1899) 174 U.S. 47 to support their claim: "Well into the 20th century, our own Confrontation Clause jurisprudence was carefully applied only in the testimonial context. (See, e.g.,... Kirby v. United States, 174 U.S. 47, 55-56, 19 S.Ct. 574, 43 L.Ed. 890 (1899) (guilty pleas and jury conviction of others could not be admitted to show that property defendant received from them was stolen)." (Davis v. Washington, supra, 547 U.S. at pp. 824-825.)
The opinion in Kirby does not assist appellants. The defendant in that case was convicted of receiving stolen property. The convictions of the thieves in a separate trial were admitted at Kirby's trial to prove that the property was stolen. The Supreme Court explained: "The fundamental error in the trial below was to admit in evidence the record of the conviction of the principal felons as competent proof for any purpose. That those persons had been convicted was a fact not necessary to be established in the case against the alleged receiver." (Kirby v. U.S., supra, 174 U.S. at p. 60.) The Court also noted: "Where the statute makes the conviction of the principal thief a condition precedent to the trial and punishment of a receiver of the stolen property, the record of the trial of the former would be evidence in the prosecution against the receiver to show that the principal felon had been convicted." (Id. at p. 54.) Thus, the fact of another's conviction of a crime is admissible if relevant, but may not be used to prove that the underlying conduct involved in the crime occurred.
Here, section 186.22 requires a showing that a defendant actively participates "in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal activity." (§ 186.22, subd. (a).) The California Legislature defined "pattern of criminal activity" as "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" certain enumerated offenses. (§ 186.22, subd. (e) [italics added].) Thus, under section 186.22, the People need not prove an offense was actually committed. They may simply show that a conviction for the offense was suffered. Under the reasoning of Kirby, the record of the earlier trial, in this case a minute order, would be admissible to show the bare fact of the conviction suffered in that trial. That was what occurred here. There was no violation of the Confrontation Clause.
Further, Moreno almost certainly made his guilty plea in order to obtain a more favorable sentence, or the possibility of a more favorable sentence. The prosecutor elicited and the trial court accepted the plea for purposes of judicial economy. It is not objectively reasonable to view the plea as obtained or given primarily for use in another criminal trial. Thus, the plea is not testimonial hearsay. (See People v. Cage (2007) 40 Cal.4th 965, 984 [confrontation clause is concerned with statements given and taken primarily to establish or prove some past fact for possible use in criminal trial].)
3. Photographs of Jose Duran's injuries
Alejandro contends that the trial court abused its discretion in admitting three photographs showing Jose Duran's injuries as they appeared days to weeks after he was beaten. He contends the photographs were graphic and shocking and were cumulative to the testimony of Wendy and Jose Duran and unnecessary due to appellant's offer to stipulate that Jose suffered great bodily injury. He further contends that the admission of the photographs violated his constitutional rights to due process and trial by jury. Joshua joins in this contention. We see no abuse of discretion.
"The admission of photographs [of a victim's injuries] lies within the broad discretion of the trial court under Evidence Code section 352 when a claim is made that they are unduly inflammatory. The court's exercise of its discretion will not be disturbed on appeal unless the probative value of the photographs is clearly outweighed by their prejudicial effect." (People v. Howard (2008) 42 Cal.4th 1000, 1023.)
The trial court found that the photographs "do not elicit a high level of shock or disgust or nausea in terms of the effect that it may have on jurors." We have reviewed the photographs and see no abuse of discretion in the trial court's finding.
Appellants point out that a juror was seen crying during Wendy Duran's testimony describing Jose Duran's injuries and argue that this shows that the prejudicial impact of the photographs was magnified by Wendy Duran's testimony. The trial court was aware that a juror was crying, but attributed it to Wendy Duran's testimony about the event as a whole, especially the facts that the Durans' children were in the car and that she begged her husband not to try to help the two teenagers. Further, the photographs were taken days to weeks after the attack and showed an 80 percent improvement from his initial condition. Thus, if anything, the photos softened Wendy's testimony, not magnified it.
The trial court found that the photographs were "material, relevant, highly probative." The court pointed out that the photographs would assist jurors in determining the extent of Jose Duran's injuries. The court also stated that the photographs were probative of appellants' state of mind in committing the other crimes. We see no abuse of discretion in these findings. Further, as respondent points out, the photographs corroborated the testimony of Wendy and Melissa Duran and I.S. about appellants' conduct in stomping Jose Duran repeatedly in the head. Appellant Alejandro disputed this testimony, testifying that only Ubaldo kicked Jose Duran in the head, and did so only a few times at the end of the incident. (See People v. Heard (2003) 31 Cal.4th 946, 973-974.)
Appellants point out that Alejandro offered to stipulate that Jose Duran had suffered great bodily injury. It is well-established that the People are not obliged to prove the details of a victim's injuries solely from the testimony of live witnesses "or to accept antiseptic stipulations in lieu of photographic evidence." (People v. Scheid (1997) 16 Cal.4th 1, 16; People v. Marks (2003) 31 Cal.4th 197, 226 [prosecutor entitle to use videotape of victim to prove she suffered great bodily injury rather than accept stipulation].) We see no abuse of discretion in the trial court's implied decision to allow the prosecution to reject appellants' offer to stipulate to great bodily injury.
We will assume for the sake of argument that appellants have not forfeited their constitutional claims. Since the photographs were properly admitted, appellants' claim that the admission of those photographs violated their constitutional rights fails.
4. Prosecutorial misconduct
Appellants contend that the prosecutor committed misconduct by appealing to the passions and prejudices of the jury during his opening statement and eliciting evidence about prison gangs in violation of a court order. They contend that this misconduct violated their constitutional rights to due process and a jury trial. We do not agree.
a. Opening statement
It is misconduct for a prosecutor to appeal to the passions and prejudice of the jury. (People v. Mayfield (1997) 14 Cal.4th 668, 803.) A prosecutor is entitled to refer to evidence in an opening statement which she believed will be produced at trial. (People v. Crew (2003) 31 Cal.4th 822, 839.)
Appellants contend that the below-quoted excerpt from the prosecutor's opening statement improperly appealed to the passions and prejudices of the jury and so constituted misconduct.
Here, the prosecutor stated: "Part of our purpose in giving you an opening statement is it's called a road map. Basically, we're trying to tell you what we expect the evidence to show, what the testimony will show, and it's particularly important in gang cases. Because one of the most important witnesses that you're going to hear from is going to be the last witness that you hear from. And so we need to kind of put this in context for you. Because this gang world is basically a counterculture. What words mean in that culture, what actions mean are totally different than what they mean to us in our everyday life. [¶] Gang members will tell you that their world revolves around respect. But you and I, we gain respect certain ways in life. Right? Get a good job, get an education, you raise your children well. [¶] In the gang world that's not what respect means. In the gang world, respect is all about fear. It's important to make people respect you. But what they mean by that is people have to fear you. And that's why you get this crazy, senseless violence because in their mind –" Appellant's counsel objected that this was argumentative. The prosecutor replied that she was referring to evidence that would be presented through the gang expert. The court overruled appellant's objection.
The prosecutor continued: "In their minds if someone fronts you off, if someone just doesn't automatically become scared of you, that is some sort of affront to them. You're not giving them the respect. You're not fearing them. And that way they have to do something to instill fear in you. [¶] It's this awful cycle that has basically led to us losing the street to these gang members. It's a culture of gang control of the neighborhoods through fear and intimidation. [¶] It starts out by these gang members committing violent acts. They commit them in broad daylight. They commit them out on the street right in front of everyone, specifically with the intent to put the neighborhood citizens in fear. Next time they walk by they don't have to beat somebody up, because when people see them coming, they already know what they're capable of. [¶] That's why crimes are committed the way they are out in the open. Neighborhood citizens are placed in fear, they're intimidated by the gang members. Next time the guy walks into the store, he can have whatever he wants because you know what he's capable of. [¶] The citizens, they don't cooperate with the police. And the reason they don't is because of this intimidation. L.A.P.D. can come and they can take a report, but then they go on to the next call. Who's left? These gang members are left. And the citizens know that. So they don't cooperate with the police. And as a result, police investigations get stymied; these gang members remain out in the street. They're not caught. They're not punished. And that just reinforces this fear in the community's mind. Right? 'I called the police once. The guy's still out there.' So the gang members are empowered by that. They commit more violent acts, and the cycle starts again. [¶] And that's what's going on here. 18th Street is no different than any other criminal street gang. The defendants, they're proud members of 18th Street."
Before the prosecutor made her opening statement, the trial court had ruled that gang culture was relevant and admissible. The court denied appellants' motion to exclude evidence that (1) gangs gain influence, power and respect through fear, (2) the more crimes a gang commits the greater their reputation, (3) the more violent the crime, the more the gang was feared and respected and (4) the gang's violent behavior made witnesses reluctant to report crimes, testify as witnesses or identify gang members. The prosecutor's statements all fell within these permissible categories and were based on expected testimony from the gang expert, Officer Hernandez. The officer did in fact give testimony which substantially matched the opening statement.
Appellants compare the above remarks by the prosecutor to those found improper in Viereck v. U.S. (1943) 318 U.S. 236 and Com. of Northern Mariana Islands v. Mendiola (9th Cir. 1992) 976 F.2d 475. We see no similarity. In Viereck, the prosecutor told the jury: "The American people are relying upon you ladies and gentlemen for their protection against this sort of a crime, just as much as they are relying upon the protection of the Men who man the guns in Bataan Peninsula, and everywhere else. They are relying upon you ladies and gentlemen for their protection. We are at war." (Viereck, supra, 318 U.S. at p. 248, fn. 3.) In Mendiola, the prosecutor told the jury: "Now as I said, a lot of people are interested in your decision.... Everyone in Saipan is interested. That's why there are so many people in the courtroom. The people want to know if they are going to be forced to live with a murderer. * * * * * * Your job is to worry about Mr. Mendiola. And when I say worry, I mean worry. Because that gun is still out there. * * * * * * Mr. Mendiola deserves to be punished for what he did and that's your decision. And it's important because, as I said, that gun is still out there. If you say not guilty, he walks out right out the door, right behind you." (Mendiola, supra, 976 F.2d at p. 486.) The remarks in this case are not remotely similar to those in Viereck and Mendiola. They do not call on the jury to convict appellants to keep the public safe. While the prosecutor's remarks suggest that gang members do escape punishment for their crimes and are emboldened by that, the prosecutor attributed the escapes to the fears of witnesses which prevented them from cooperating with the police. There is nothing in these remarks to suggest that it is the jury's duty to solve this problem.
b. Prison gang reference
Appellants contend the prosecutor committed misconduct by failing to properly prepare the gang expert to avoid discussing prison gangs. They contend that this topic was entirely barred by pretrial order of the court.
Intentionally eliciting testimony in violation of a trial court's order is prosecutorial misconduct. (People v. Chatman (2006) 38 Cal.4th 344, 379-380.) It can also be misconduct to fail to properly instruct a witness to avoid mention of inadmissible matters. (People v. Bentley (1955) 131 Cal.App.2d 687, 690.)
Before trial, appellants made a number of motions in limine concerning gang evidence. One motion sought to exclude references to prison gangs. During the hearing on the motions, the court asked the prosecutor what evidence she intended to elicit about prison gangs. The prosecutor stated that she had spoken with Mr. Cohen and told him that she intended to tell her gang expert that if the number 13 came up, he should just say that it refers to a Southern California Hispanic street gang and not mention that 13 refers to the Mexican Mafia. The court asked appellants' counsel: "Does that satisfy your concern?" Joshua's counsel Mr. Cohen replied: "I believe so, yes." Alejandro's counsel Mr. Matthews replied: "If it is limited to that, I would be satisfied."
During trial, the prosecutor asked Officer Hernandez: "What about the gang status itself? If you have a gang where members are willing to commit violent acts, is that gang going to be instilling more or less fear and intimidation in the neighborhood and among rivals than the gang who, you know, they're going to stay in their own territory and just tag up their own walls?" The officer replied: "Actually, the gang itself, by going outside their turf, outside their community where most of them live at and commit violent crimes, elevate themselves within their gang. [¶] The gang elevates themselves once they go into prison where they could be trusted by the prison gangs –" Counsel for Joshua objected. The court ultimately ordered the last part of the testimony concerning prisons stricken. Appellants then moved for a mistrial. The court denied the motion, finding no incurable prejudice. The court explained: "This is a gang case. And jurors are aware that people who commit gang murders or attempted murders or drive-by shootings and who are convicted, frequently go to state prison."
We see no violation of the court's order, intentionally or otherwise. The trial court did not exclude all references to prison gangs. The court only excluded testimony that the number 13 referred to the Mexican Mafia. Officer Hernandez did not refer to the Mexican Mafia at all. Thus, there was no violation of the trial court's order. Even reading the trial court's order very broadly to mean that the officer should not indicate that appellants were members of a prison gang, there would still be no violation of the court's order. The officer made no such suggestion.
To the extent that appellants contend that, even if the prosecutor did not commit misconduct, the gang expert's reference to prison gangs was so prejudicial that it could not be cured by an admonition, we do not agree. We agree with the trial court that the jury would understand that anyone convicted of a serious crime, including a gang member, would go to state prison. That newly incarcerated prisoners would not want trouble from prison gangs is also common sense.
We will assume for the sake of argument that appellants have not forfeited their constitutional claims. Since we see no misconduct by the prosecutor, appellants' claim that the prosecutor's misconduct violated their constitutional rights fails.
5. Judicial misconduct
During closing argument Alejandro's trial counsel told jurors that even if they believed that Alejandro was thinking about re-joining the gang, "the prosecution has to demonstrate that there was a union not only between the act and the intention, that even if [Alejandro] was thinking 'maybe I might want to join the gang again,' he had to have manifested this intent at the time he was beating somebody up saying 'I want to join the gang. So I'm kicking this guy.'" The prosecutor objected. Following a meeting of all counsel in chamber, the trial court admonished the jury: "Ladies and gentlemen, the last three sentences that [Alejandro's trial counsel] argued to you regarding what the law is was an absolute inaccurate statement of the law regarding the People's requirement to show an intent to join a gang. [¶] You are to disregard his last three statements and not consider that in any way." Alejandro contends that the trial court's use of the word "absolute" cast serious aspersions on defense counsel and implied an intentional attempt to mislead the jury on the law. He contends that the misconduct violated his federal constitutional rights to due process and a fair trial. We do not agree.
Joshua joins in this contention to the extent it may benefit him. Respondent contends that appellants have waived this claim by failing to object in the trial court. A claim of judicial misconduct can be waived if a defendant does not object in the trial court and request a curative admonition. (People v. Sturm (2006) 37 Cal.4th 1218, 1237.) Such an objection need not be made if it would be futile. (Ibid.) Since appellant's claim has no merit, an objection would not have been sustained and so would have been futile.
A trial court commits misconduct when it "persistently makes discourteous and disparaging remarks" regarding a defendant or defense counsel that "discredit the defense or create the impression [that the court] is allying itself with the prosecution." (People v. Carpenter (1997) 15 Cal.4th 312, 353.) A trial court may not "advise the jury of negative personal views concerning the competence, honesty, or ethics of the attorneys in a trial." (People v. Fatone (1985) 165 Cal.App.3d 1164, 1175.)
Appellant has not cited, and we are not aware of, any cases which suggest that saying that counsel's argument was "an absolute inaccurate statement of the law" is disparaging to counsel. The term "absolute" refers to the statement. As such, it is a proper modifier. Common meanings of absolute are "complete" or "not mixed." Alejandro's counsel's incorrect statement of the law consisted of at least two misstatements. He argued that the prosecution had to show that Alejandro was thinking about joining the gang (again). He also argued that the prosecution had to show that Alejandro manifested this intent by making a statement that he was kicking the victim because he wanted to join the gang. Thus, it was appropriate for the court to make it clear to the jury that counsel's entire statement was incorrect.
We will assume for the sake of argument that appellant has not forfeited his constitutional claims. Since the trial court did not commit misconduct, appellant's claim that the court's misconduct violated his constitutional rights fails.
6. Oral admission instruction – CALJIC No. 2.71
Alejandro contends that the trial court erred prejudicially in failing to instruct the jury that evidence of an out-of-court oral admission of a defendant should be viewed with caution. Joshua joins in this contention. Respondent agrees that the trial court erred, but contends that appellants did not suffer reversible prejudice. We agree with respondent.
A trial court has a sua sponte duty to instruct the jury to view an out-of-court statement by a defendant with caution. (People v. Mayfield, supra, 14 Cal.4th at p. 776.) The purpose of the instruction is to help the jury determine whether the statement was made and the witness reported it accurately. (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.)
Wendy Duran testified that Alejandro approached her while Jose Duran was being beaten and said "I'm sorry hyna." Alejandro then went back to Jose, kicked him in the head and said to Wendy, "You have to understand this is gang related." Thus, the trial court should have instructed the jury to view these statements by Alejandro with caution.
Instructional error is prejudicial if it is reasonably probable that there would have been a more favorable outcome in the absence of the error. "'[C]ourts examining the prejudice in failing to give the [cautionary] instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately.' [Citation.] [¶] Where there is no such conflict in the evidence, but simply a denial by the defendant that he made the statements attributed to him, we have found failure to give cautionary instruction harmless[,]" assuming that the jury was otherwise properly instructed on evaluating witness credibility. (People v. Dickey (2005) 35 Cal.4th 884, 905.)
Here, there was no conflict about the words used or whether they were repeated accurately. Alejandro testified that he was involved in the fight with the boys and Jose Duran, only saw Wendy Duran for a moment as he was fleeing the scene and did not speak to her. Thus, he denied making the statements at all. The issue for the jury was simply to determine whether Wendy Duran was credible. The jury was instructed on evaluating witness credibility. CALJIC No. 2.71, as given, still told the jury, "You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or part." CALJIC No. 2.27 told the jury that when only one witness testified to a particular fact, "You should carefully review all the evidence upon which the proof of that fact depends." The court further instructed the jury with CALJIC No. 2.20 (believability of a witness), 2.21.1 (discrepancies in testimony), 2.21.2 (witness willfully false), and 2.22 (weighing conflicting testimony).
The jury was fully instructed on assessing the credibility of a witness. I.S. and Melissa substantively corroborated Wendy Duran's account of being held at gun point. The evidence that appellants were acting to benefit their gang was extremely strong. We see no reasonable probability that appellants would have received a more favorable outcome if the court had instructed the jury to view evidence of Alejandro's statements to Wendy Duran with caution.
7. CALJIC No. 2.20.1
Alejandro contends that the trial court erred in instructing the jury with CALJIC No. 2.20.1 concerning evaluating the credibility of a child witness. He claims that the instruction improperly precludes consideration of a child witness's demeanor and any inability to perceive, understand, remember or communicate. He further contends that the instruction violated his constitutional rights to a jury trial, to present a defense, to confront witnesses, due process, a fair trial and conviction upon proof beyond a reasonable doubt. Joshua joins in this contention. We do not agree.
CALJIC No. 2.20.1 is mandated by section 1127f, which provides: "In any criminal trial or proceeding in which a child 10 years of age or younger testifies as a witness, upon the request of a party, the court shall instruct the jury [] as follows: [¶] In evaluating the testimony of a child you should consider all of the factors surrounding the child's testimony, including the age of the child and any evidence regarding the child's level of cognitive development. Although, because of age and level of cognitive development, a child may perform differently as a witness from an adult, that does not mean that a child is any more or less credible a witness than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child." CALJIC No. 2.20.1 incorporates the mandated instruction and adds a brief explanatory paragraph: "'Cognitive' means the child's ability to perceive, to understand, to remember, and to communicate any matter about which the child has knowledge."
As appellants acknowledge, their claim has been rejected by the Fourth, Fifth and Sixth District Courts of Appeal. (People v. McCoy (2005) 133 Cal.App.4th 974, 978-980 [Fifth District]; People v. Jones (1992) 10 Cal.App.4th 1566, 1572-1574 [Fourth District]; People v. Gilbert (1992) 5 Cal.App.4th 1372 [Sixth District]; People v. Harlan (1990) 222 Cal.App.3d 439, 454-456 [Fourth District].) Appellants urge us to reject these cases as wrongly decided. We decline.
We agree with the Fourth District Court of Appeal that "the second sentence of CALJIC No. 2.20.1 does not instruct the jury that it may not consider a child's age and cognitive ability in deciding his/her credibility as a witness. The use of the word 'perform' in the second sentence implies nonverbal action. This sentence merely advises the jury that due to the age and level of cognitive development, a child may act differently on the witness stand than an adult. It does not relate to the truth or falsity of the content of the child's testimony. The language refers to one of many factors to be applied by a jury in determining a witness's credibility, namely, the demeanor and manner of the witness while testifying. (See CALJIC No. 2.20.) [¶] Additionally, the cautionary aspect of the second sentence is neutral, in that it advises that any portion of a child's performance on the witness stand which is attributable to age or cognitive ability, does not mean a child is 'any more or less credible a witness than an adult.' [¶] Moreover, the third sentence in CALJIC No. 2.20.1 relates to the child's testimony. It states such testimony should not be discounted or distrusted solely because she or he is a child. This sentence does not give any greater credibility to the testimony of a child than an adult. It simply advises the jury that it should not give less credibility to a child just because the witness is a child. This is consistent with section 1127f, which is present state policy." (People v. Harlan, supra, 222 Cal.App.3d at pp. 455-456.)
We will assume for the sake of argument that appellants have not forfeited their constitutional claims. Since the instruction does not preclude the jury from considering a child's age and cognitive ability in deciding his credibility as a witness, appellants' claim that the instruction violated their constitutional rights fails.
8. Sufficiency of the evidence – Joshua's conviction
Alejandro testified at trial that he got the gun he used to shoot at the police officers from Ubaldo. Joshua contends that this is the only direct evidence of the source of the gun and that it was uncontradicted. He concludes that absent evidence that he handed the firearm to Alejandro, there is no evidence to support his conviction for the two counts of assault on a peace officer with a firearm based an aiding and abetting theory, and that such a conviction violates his federal constitutional right to due process. Joshua is mistaken.
In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks and citations omitted.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Stanley (1995) 10 Cal.4th 764, 792-793, internal quotation marks and citations omitted.)
There was evidence that Joshua pointed a silver semiautomatic firearm at Wendy Duran. Appellants and Ubaldo then fled. As they fled, either Alejandro or Joshua struck Mr. Vaca while holding a silver semi-automatic weapon in his hand. Moments later, police arrived and saw appellants and Ubaldo walking down the street, talking and gesturing. The three men walked behind a truck. Alejandro stepped out from behind the truck and fired a silver semiautomatic weapon at the officers. Joshua was arrested moments later. He did not have a gun. Alejandro discarded the weapon he used to shoot at the police officer. It was recovered by Detective Berchem. I.S. and Wendy Duran testified that the recovered weapon looked exactly the same as the weapon held by Joshua. This is more than sufficient evidence to support an inference that Joshua gave the weapon to Alejandro.
Further, even if Joshua did not give the weapon to Alejandro, there is still sufficient evidence to support Joshua's conviction for aiding and abetting the assault. Alejandro and Joshua were on a violent crime spree together, severely beating I.S. and Marvin and then beating Jose Duran into unconsciousness when he tried to assist I.S. and Marvin. As appellants left that crime scene, they attacked Mr. Vaca. When police officers arrived, Alejandro, Joshua and Ubaldo spoke together then moved out of the officers' sight (and line of fire). Alejandro then shot at the officers. This is more than sufficient evidence to support an inference that Joshua promoted or encouraged Alejandro in his attack on the police officers.
Since we have determined that "a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation] as is the due process clause of article I, section 15 of the California Constitution." (People v. Osband (1996) 13 Cal.4th 622, 690.)
9. Ineffective assistance of Joshua's counsel
Joshua claims that his counsel failed to provide competent representation in his efforts to exclude gang evidence, his opening and closing statements and his cross-examination of Alejandro. He also contends that his counsel was incompetent for failing to affirmatively present any favorable evidence during trial. He contends that these failures amounted to ineffective assistance of counsel.
Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.) "'"Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'"' [Citations.]" (People v. Thomas (1992) 2 Cal.4th 489, 530-531.)
When an appellant makes an ineffective assistance claim on appeal, we look to see if the record contains any explanation for the challenged aspects of the representation. If the record is silent, then the contention must be rejected "'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation [citation].'" (People v. Haskett (1990) 52 Cal.3d 210, 248.)
a. Motion in limine
Joshua's counsel filed a motion in limine to exclude gang evidence that relied on a case that had been depublished two years earlier, People v. Partida (2004) 115 Cal.App.4th 270. The trial court correctly ruled that this case had no binding authority and asked Joshua's counsel if he would like to make any additional arguments. Counsel replied no.
Citation to a depublished authority may well fall below an objective standard of reasonableness. Assuming that it does, we see no reasonable probability that appellant would have received a more favorable outcome in the absence of this citation. Counsel cited three valid cases as well as the depublished Partida case to support his claim that the gang evidence should be excluded pursuant to Evidence Code section 352. Joshua has not identified any cases which his counsel failed to cite. Joshua contends only that his trial counsel should have argued that the volume of gang evidence was cumulative. The only specific example he gives of cumulative evidence is in his discussion of another claim in his appeal. There, he refers to the gang expert's testimony about gang tattoos, which lasts for 31 pages of the reporter's transcript. There was no way for counsel to have anticipated the volume of this testimony at the pre-trial stage.
As we discuss, supra, this case was unmistakably a gang case. We see no reasonable probability that any attorney could have convinced the trial court to exclude evidence of gang culture. Further, even assuming for the sake of argument that some of the gang evidence was cumulative and that a competent attorney would have convinced the court to exclude a portion of it, we see no reasonable probability that Joshua would have obtained a more favorable outcome. The evidence of guilt in this case was very strong and the crimes themselves were disturbing. We see no reasonable probability that Joshua would have received a more favorable outcome if the gang evidence had been limited.
b. Opening statements
Joshua contends that his counsel's opening statement did not present any evidence related to his defense. He also claims, somewhat contradictorily, that counsel promised to call witnesses who were with appellant earlier in the day of the shooting, then failed to call those witnesses, or any witnesses.
Appellant has not cited any cases in which a short opening statement or no opening statement has been found to constitute ineffective assistance of counsel. "The decisions whether to waive opening statement and whether to put on witnesses are matters of trial tactics and strategy which a reviewing court generally may not second-guess. [Citation.]" (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) Joshua has offered no reason that his case should be an exception to the general rule. He has not overcome the presumption that counsel's decisions could be sound trial strategy. (People v. Thomas, supra, 2 Cal.4th at pp. 530-531.)
We do agree with Joshua that it is generally not sound strategy to promise in an opening statement to call witnesses and then fail to do so. However, "[m]aking promises about the defense evidence in opening statement and then failing to deliver does not constitute ineffective assistance per se." (People v. Burnett (2003) 110 Cal.App.4th 868, 885.) Here, Joshua's counsel stated that he would "have an opportunity to call witnesses who were present earlier in the day." Although not called as witnesses by Joshua, Joshua's mother and brother Alejandro did testify about Joshua's activities earlier in the day. Thus, we see no reasonable probability that the jury attached any importance to counsel's failure to call witnesses or that Joshua would have received a more favorable outcome if counsel had not referred to witnesses in his opening statement. Joshua offers no explanation of how actually calling other people who were with him earlier in the day would have helped his defense.
Joshua also complains that his counsel did not put on an affirmative defense. He does not explain what this defense should have been, or how it would have assisted him at trial. An appellant has the burden of showing ineffective assistance of counsel. Joshua has not met this burden and this claim fails.
c. Source of gun
Joshua contends that his counsel did not properly cross-examine Alejandro on the source of the gun Alejandro used to shoot at the police officers and did not present a competent closing argument on the source of the gun.
Alejandro testified that he received the gun from Ubaldo. On cross-examination by Joshua's counsel, Alejandro testified that he had never seen Joshua in possession of a firearm on the night of the offense. This is favorable testimony. Joshua does not explain what other questions, exactly, his counsel should have asked Alejandro. Counsel had no duty to merely re-ask Alejandro who gave him the firearm. Thus, this claim fails.
Appellant also contends that his counsel should have emphasized Alejandro's testimony about receiving the gun from Ubaldo in his closing argument. The content and emphasis of a closing argument are matters of trial strategy. It might have been sound strategy to focus on this testimony. However, it was equally sound strategy to focus on the statement that Joshua never had a gun. That is what counsel did. Appellant contends that it was deficient for counsel to argue: "No mention of any handoffs of the guns, nothing like that." However, taken in context, the statement is best understood as meaning that no one saw Joshua give a gun to Alejandro. This is helpful to Joshua, not harmful.
Even assuming that counsel was deficient in failing to refer to Alejandro's testimony that he received the gun from Ubaldo, we see no reasonable probability that Joshua would have received a more favorable outcome if counsel had referred to Ubaldo. As we discuss, supra, a hand-off of the gun was not necessary to support Joshua's conviction. Alejandro's credibility was suspect, as he significantly changed his account of his activities on the night of the shooting. Melissa and Wendy Duran told police that they saw Joshua with a gun. None of the victims saw Ubaldo with a gun.
10. Upper term
Appellants contend that the trial court's imposition of the upper term for one of the assault convictions violated their federal constitutional right to a jury trial as set forth in Cunningham v. California, supra, and related cases.
After the United States Supreme Court's decision in Cunningham, the California Legislature enacted amendments to Penal Code section 1170 to make California's sentencing procedures consistent with Cunningham. Under the amendments, the upper term is the statutory maximum within the meaning of Cunningham. (People v. Sandoval (2007) 41 Cal.4th 825, 843-845.) Thus, upper terms imposed under the new sentencing procedures are constitutional. (Ibid.)
Appellants' crimes were committed in 2006 and they contend that the application of California's revised sentencing procedures, which became effective in 2007, violates the ex post facto laws of the state and federal constitutions. In Sandoval, the California Supreme Court has found that a judicially adopted resentencing scheme identical to the revised legislative scheme could properly be applied retroactively. Thus, even if the trial court should not have applied the legislative scheme retroactively to appellants' sentences, there was no prejudice to appellants. The outcome would have been the same under the judicial scheme. A remand for resentencing would be merely an empty exercise.
11. Gang enhancement
Alejandro contends that the trial court erred in imposing a 40 month term for the count VII gang enhancement pursuant to section 186.22, subdivision (b)(1)(C). He contends that the proper term was a 20 month term under subdivision (b)(1)(B). Respondent agrees. We agree as well.
Section 186.22, subdivision (b)(1)(C) is triggered when the underlying offense is a violent felony within the meaning of section 667.5, subdivision (c). The substantive offense in count VII was assault with a semiautomatic firearm in violation of section 245, subdivision (b). That offense is not a violent felony within the meaning of section 667.5.
Assault with a semiautomatic firearm is a serious felony within the meaning of section 1192.7, subdivision (c)(31). Section 186.22, subdivision (b)(1)(B) applies when the underlying offense is a serious felony. The term imposed by that subdivision is 5 years, but since the sentence imposed on count VII was a subordinate term, the section 186.22 enhancement term should have been 20 months. (See § 1170.1, subd. (a), 1170.11; People v. Moody (2002) 96 Cal.App.4th 987, 992-993.)
Disposition
The 40 month enhancement term added to Alejandro Palomino's sentence for the count VII assault conviction pursuant to section 186.22, subdivision (b)(1)(C) is ordered corrected to a 20 month term pursuant imposed to section 186.22, subdivision (b)(1)(B). The judgment of conviction is affirmed in all other respects.
We concur: TURNER, P. J., KRIEGLER, J.
Motion number three sought to exclude any reference to prison gangs. The prosecutor told the court that he had reached an agreement with Joshua's counsel that the gang expert would not testify that the number 13 was a reference to the Mexican Mafia. The court asked counsel for appellants if it satisfied their concerns. They agreed that it did.