Opinion
E052050
05-16-2012
THE PEOPLE, Plaintiff and Respondent, v. JOHN SANCHEZ, Defendant and Appellant.
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and William M. Wood and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. SWF028854)
OPINION
APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Affirmed.
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and William M. Wood and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant John Sanchez assaulted three people and smashed the windows of several cars with a metal pipe or jack handle. He acted alone. In addition to convicting him of three counts of assault (counts 1-3; Pen. Code, § 245, subd. (a)(1)),making a criminal threat (count 5; § 422), and felony vandalism (count 6; § 594, subd. (b)(1)), a jury convicted him of being an active participant in a criminal street gang (count 7; § 186.22, subd. (a)). The jury also found true allegations that he committed the assaults, criminal threat, and vandalism for the benefit of a criminal street gang under section 186.22, subdivision (b). After the jury's verdict and his admission that he had a prior strike and a serious felony conviction, he was sentenced to a total prison term of 22 years.
All further statutory references are to the Penal Code unless otherwise indicated.
Count 4 of the information alleged a second count of making a criminal threat under section 422. That count was dismissed on the People's motion.
On appeal, defendant contends: (1) the evidence was insufficient to support the jury's true finding on the gang enhancement allegation; (2) there was insufficient evidence to support the element of the gang participation crime that he willfully promoted, furthered, or assisted in felonious criminal conduct by members of the Latin Kings street gang; (3) the prosecution's gang expert's testimony was improper; and (4) if defense counsel failed to preserve any of the foregoing claims, defendant was denied his constitutional right to the effective assistance of counsel. We hold that defendant forfeited his argument regarding the gang expert's testimony because he failed to object to the testimony during trial. We reject the remaining contentions and affirm the judgment.
II. FACTUAL SUMMARY
In July 2009, Paul Montano operated a custom vehicle repair shop in Hemet. He corented the building with defendant's brother, Ishmael Asipuro. Occasionally, defendant would work on his own vehicle at the shop or would help out Asipuro or Montano.
On the morning of July 11, 2009, Montano, Robert Wilt, and Angelo Serrano were at Montano's shop. Serrano was aware that Asipuro was affiliated with the Hispanic gang, Latin Kings. Defendant had previously told Montano that he had been affiliated with the Latin Kings, but was no longer active. Defendant is known by his nickname, or moniker, "Brownie."
At approximately 8:30 a.m., defendant drove to the shop in a pickup truck. He was alone. He appeared agitated and angry. Defendant asked Montano why he was spreading rumors about his cousin being single. Montano thought defendant was joking and asked: "What are you talking about." Defendant then pulled a three and one-half foot steel jack handle from the back of his truck and started swinging it at Montano, Wilt, and Serrano and cursing at them.
Defendant chased Montano around a car belonging to one of Montano's customers. Defendant swung at Montano more than six times, striking him once on his right leg. After Montano got inside the car to protect himself, defendant smashed the windows of the car as he threatened to kill Montano and Montano's children.
Defendant turned to Wilt and asked: "Do you have a problem too?" Wilt said: "'No.'" Defendant swung the jack handle at Wilt and hit him in the arm as Wilt raised his arms to block a blow to his face. He suffered an inflamed tendon as a result. Wilt then ran away.
Defendant chased after Serrano, swinging the jack handle (or "steel pole" as Serrano described it). Serrano ducked to avoid getting hit and ran around his car. At some point, defendant called Serrano a "nigger." (Defendant is Hispanic.) Montano also heard defendant twice say: "This is my shop. This is Latin King's shop." Eventually, Serrano ran inside a woodshop and told someone to call the police.
Montano testified that defendant called Serrano the racial epithet when he "went after" Serrano. Serrano, however, said defendant used the term after they had been detained and were sitting on a curb.
When Serrano was asked at trial whether defendant had mentioned the Latin Kings, Serrano said "[y]es," that he "just basically screamed. He just basically gang banged on me that he represented his set." When asked for clarification, Serrano said: "[H]e just basically said, 'Latin Kings'—basically he represented his neighborhood." When asked how many times defendant said this, Serrano said: "[A]bout one time."
Montano, who was still in the customer's car, heard defendant say he was going to get his gun. Montano watched him get something out of his truck. Montano feared defendant would shoot him. He kicked open the door to the car and "took off."
Montano testified he saw defendant holding a black revolver, although it is not clear from our record when he saw the gun. No gun was found at the scene.
Defendant got back into his truck, but it would not start. He grabbed the jack handle again and broke windows on Montano's car and Wilt's car.
Serrano left the woodshop when he heard Montano say defendant had a gun. Montano, Wilt, and Serrano met up at a place some distance away from the shop. Montano used a telephone to call Asipuro to tell him what was happening. He told Asipuro to come to the shop; Asipuro said he was on his way. Montano then called 911. He told the 911 operator that defendant had a gun in his car and was "busting everybody's windows out."
Defendant returned to his truck, reached inside, then ran toward the men with the jack handle in his hand. He threw the jack handle aside and pulled out a knife from behind his belt. According to Serrano, it looked like a knife that was made out of a gun. Defendant swung the knife around in the air and then threw it at or toward Serrano. The knife landed on the ground near Serrano, who picked it up.
Hemet Police Officer Timothy Brewer responded to the 911 call and arrived at the scene. Officer Brewer ordered Serrano to drop the knife, which he did. He detained the four men. Defendant had an open knife case attached to his belt near the small of his back. The knife that Serrano had picked up fit into the case.
Asipuro arrived at the scene and attempted to contact Officer Brewer. Officer Brewer "told him to back off," and that he "would talk to him in a minute." Asipuro got back in his vehicle and drove to the shop.
Officer Brewer interviewed Montano. Montano told him that the first thing defendant said after he drove up to the shop was: "'Fuck you guys, Latin Kings . . . . This is my shop.'" Montano described the attack on him and Wilt, and said defendant "went up to the other [B]lack guy and he said, 'You fuckin' dumb nigger, I hate niggers, this is Latin Kings, fool. This is my shop.'"
Officer Brewer also interviewed Wilt. According to Officer Brewer, Wilt told him that "defendant had said 'Latin Kings' first and the shop belonged to them." At trial, Wilt testified he did not hear defendant yell anything about Latin Kings, had never heard of the Latin Kings, and did not know whether defendant was affiliated with that gang. He also denied telling Officer Brewer he heard defendant say "Latin Kings come first."
David Grande, an investigator with the Riverside County District Attorney's Office also interviewed Montano. Montano told him that he knew defendant and Asipuro claimed to be from Los Angeles and associated with the Latin Kings. Montano told him he feared retaliation from defendant's family against him and his family. Montano also told Investigator Grande about an incident that occurred on New Year's Eve 2009— several months after defendant's arrest in this case—when Asipuro yelled at him: "'You better watch your back.'" He also told him that Asipuro had once pulled up alongside him in a car and "attempted to dog him," i.e., stare at him in a challenging manner.
Serrano testified that Asipuro had called him prior to trial to tell him not to testify against defendant. This made Serrano concerned for his safety because, he said, "you never know what could happen, especially [in] situations like this."
Takashi Nishida testified as a gang expert. Nishida is a corporal in the Hemet Police Department and was a detective with the Riverside County Regional Gang Task Force. According to Nishida: the Latin Kings gang originated in the Los Angeles area and have claimed the Hemet area since 1994; they are trying to control outlying adjacent areas; the gang has common signs and symbols and uses graffiti to display them; it had approximately 40 to 50 members on July 11, 2009; and their primary activities are murder, attempted murder, weapons possessions, assault with a deadly weapon, drive-by shootings, shooting at inhabited dwellings, vandalism, robberies, and theft-related crimes. Nishida identified two Latin Kings members who have been convicted of criminal activity; specifically, assault with a deadly weapon and robbery. In his opinion, Latin Kings is a criminal street gang that engages in a pattern of criminal activity.
Nishida further opined that Asipuro and defendant are active participants in the Latin Kings. In discussing defendant's relationship with the Latin Kings, Nishida referred to tattoos on defendant's body indicating a Latin Kings affiliation and the testimony of witnesses in this case. Particularly significant to Nishida was Wilt's statement to Officer Brewer that defendant said "'Latin Kings come first'" and that "the shop belonged to them," and Serrano's statement that defendant, by saying "Latin Kings," was representing his neighborhood, or his set, at the time of the incident. Montano's statement that defendant said "Latin Kings" a couple of times during the incident was also significant. Nishida explained that that type of "claiming" is important because it intimidates people so that they do not resist his commission of the crime or testify or cooperate with law enforcement.
Nishida was asked whether defendant had ever previously admitted membership in the Latin Kings to law enforcement. He said he had, and referred to a December 2003 interview noted on a field identification card. Defendant admitted in that interview his membership in the Latin Kings and his moniker, "Brownie." When Nishida was asked for the basis of his opinion that defendant was an active participant of the Latin Kings on July 11, 2009, he pointed to defendant's act of yelling out "Latin Kings" during the assault, "as well as him essentially admitting that [he is] Latin Kings during my interview with him."
Nishida did not otherwise mention that he had interviewed defendant and it is not clear when this interview occurred. In their respondent's brief, the People state that defendant was interviewed by Nishida after he was arrested and admitted being a member of the Latin Kings. The page of the record to which the People cite, however, does not indicate when the interview took place.
The prosecutor posed a hypothetical that tracked evidence brought out at trial and which specifically referred to defendant and the other participants in the incident by name. The prosecutor asked Nishida whether the assault and vandalism described in the hypothetical were committed for the benefit of, at the direction of, or in association with the Latin Kings. Nishida opined that "it was for the benefit of the Latin Kings criminal street gang." He explained that by yelling out "Latin Kings," defendant was "using the gang to support his actions to commit the crime. He is using violence in trying to intimidate these individuals and trying to assault them . . . so they wouldn't report the incident and cooperate with law enforcement." This benefits the gang, Nishida continued, because it "instills fear in the community or rival gangs or gang members. It goes towards their notoriety. It goes towards their reputation." On cross-examination, he added: "They commit crimes. They commit violence to intimidate people, intimidate community members, [and] intimidate rival gang members. They want people to fear them based on their actions, their violent actions."
Nishida said he was aware of gang-related crimes involving Asipuro and the Latin Kings within the last five years, but was not aware that defendant had committed any gang-related crime involving the Latin Kings (other than the subject crimes) during that time.
III. DISCUSSION
A. Sufficiency of the Evidence to Support Gang Enhancement Under Section 186.22, Subdivision (b)
The jury found true the allegation made under section 186.22, subdivision (b) (section 186.22(b)) that the underlying assaults, criminal threat, and vandalism were committed for the benefit of, at the direction of, or in association with any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members. Defendant contends the evidence was insufficient to support either of the two prongs of this statute. We disagree.
"In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
1. Sufficiency of the Evidence That Offenses Were Committed for the Benefit of the Gang
Regarding the first prong of section 186.22(b)—i.e., that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang—the prosecution offered no evidence that the crimes were committed at the direction of or in association with a criminal street gang; it relied solely on the argument that they were committed "for the benefit of" the Latin Kings.
Our state Supreme Court recently held that "[e]xpert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal street gang' within the meaning of section 186.22[, subdivision] (b)(1)." (Albillar, supra, 51 Cal.4th at p. 63; accord, People v. Galvez (2011) 195 Cal.App.4th 1253, 1261-1262; but see People v. Ochoa (2009) 179 Cal.App.4th 650, 657 [Fourth Dist., Div. Two] ["A gang expert's testimony alone is insufficient to find an offense gang related."].)
Here, Nishida testified to the importance of a gang's use of fear and intimidation to gain notoriety. In gang culture, "fear and respect are synonymous." Such respect "makes them feel stronger and have more of a stronghold on a particular area." When "word gets around" of criminal activity by a gang, "it earns them a reputation" that increases their notoriety. This "instills fear . . . in a particular neighborhood or a community. Obviously, the larger the gang the more crime that they commit, the bigger their reputation gets." Assaults and vandalism such as that committed by defendant, Nishida explained, "goes toward [the gang's] reputation. [It] instills fear in the community or rival gangs or gang members. It goes towards their notoriety. It goes towards their reputation."
When asked by defense counsel to explain how striking Montano and Wilt benefits the Latin Kings, Nishida stated: "Again, it goes back to the fear and intimidation. They gain notoriety. He elevates the status within Latin Kings as being violent, furthering the reputation of that particular gang. . . . It goes toward their violence and their reputation in general."
Defendant contends that his "anger toward Montano and his decision to attack Montano and the others had nothing to do with the Latin Kings" and "was committed for [his] own personal benefit and because of a personal grudge with a friend." However, Nishida was asked about the possibility that the incident was more of a "personal dispute" between defendant and Montano. Nishida responded: "The actions that [defendant] did, basically yelling out 'Latin Kings,' damaging windows, assaulting with a metal pipe, brandishing a knife, throwing the knife, those portions are for the benefit of the gang . . . . [¶] It may have initially started off a personal issue, but the defendant turned it into a gang issue. He brought his gang into his personal problem."
The jurors could reasonably find, based upon the evidence that defendant repeatedly invoked the Latin Kings name as he committed his crimes and Nishida's testimony, that defendant's actions would instill fear of the Latin Kings in those who witnessed or heard about the incident and be intimidated by that gang, that such fear and intimidation would enhance the reputation and notoriety of the gang, and that the Latin Kings thereby benefitted from defendant's crimes. Thus, even if defendant's attack on Montano and the others was motivated initially by personal anger concerning something Montano said about his cousin, the jury could rationally conclude that his crimes were also committed for the benefit of the Latin Kings. Accordingly, we reject defendant's argument.
2. Sufficiency of the Evidence That Offenses Were Committed With the Specific Intent to Benefit Criminal Activity of Gang Members
Under the second prong of section 186.22(b), the People must prove that the crimes were committed "with the specific intent to promote, further, or assist in any criminal conduct by gang members." Defendant contends there is no substantial evidence to support this requirement. He asserts that "the record affirmatively established that [he] acted for personal reasons unrelated to the gang or his involvement in it." We reject the contention.
The People did not respond to this argument in their respondent's brief. Defendant, in his reply brief, asserts that the People's failure to address the issue constitutes a concession on this point. We issued an order directing the People to file a supplemental brief addressing the issue and allowing defendant an opportunity to respond. The People and defendant thereafter supplied us with supplemental briefs on this issue.
In determining the sufficiency of the evidence of a criminal defendant's intent, we note that "intent must usually be inferred from all of the facts and circumstances disclosed by the evidence, rarely being directly provable." (People v. Matson (1974) 13 Cal.3d 35, 41.) "We cannot look into people's minds directly to see their purposes. We can discover mental state only from how people act and what they say." (People v. Margarejo (2008) 162 Cal.App.4th 102, 110 (Margarejo).)
In Margarejo, the defendant, Luis Margarejo, was a member of the Highland Park gang. (Margarejo, supra, 162 Cal.App.4th at p. 105.) Police officers saw Margarejo run a stop sign. When the officers signaled for him to pull over, Margarejo proceeded to lead them on a chase for 17 or 18 minutes. During the chase, Margarejo made the Highland Park gang sign to pedestrians, at other cars, and to at least one of the chasing officers. (Id. at pp. 105-106.) Margarejo eventually stopped his car and fled on foot, carrying a gun. (Id. at p. 106.) He was apprehended in a friend's apartment. (Ibid.) He was convicted of numerous counts arising from the chase and his possession of the gun. (Id. at p. 104.)
On appeal, Margarejo challenged the sufficiency of the evidence of the jury's true finding under section 186.22(b). In rejecting the challenge and finding the evidence sufficient to support the specific intent element, the court stated: "Margarejo acted like he wanted to help his gang. His actions did his own escape no good. When fleeing at high speed, it is better to keep both hands on the wheel and to avoid creating a striking impression in the mind of every witness along the way. Logically, Margarejo must have had another purpose for staging this show. The message he broadcast—the only message he broadcast—was the gang message. The logical purpose was to accomplish the foreseeable effect: to proclaim the gang's dominance in the teeth of a determined police effort to enforce the law. The jury had an ample basis for concluding Margarejo was telling everyone he could that his gang was still in charge, despite the police pursuit. The jury could reasonably conclude Margarejo had 'the specific intent to . . . assist [other] criminal conduct by gang members . . . .' (§ 186.22, subd. (b)(1).)" (Margarejo, supra, 162 Cal.App.4th at p. 110.)
In quoting the statute, the Margarejo court replaced the word "any" with "other" before the words "criminal conduct by gang members." This may have been because at the time Margarejo was decided, authorities were in conflict as to whether the criminal conduct the defendant must intend to promote, further, or assist must be criminal conduct other than the offenses for which the defendant was convicted. (Compare Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1101 [intent must relate to other criminal conduct] with People v. Romero (2006) 140 Cal.App.4th 15, 19 [any criminal conduct].) The California Supreme Court settled this issue in Albillar, in which it held that "'the specific intent to promote, further, or assist in any criminal conduct by gang members'—is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be 'apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (Albillar, supra, 51 Cal.4th at p. 66.)
The court rejected the argument that his purpose in evading the police was to avoid arrest on an outstanding warrant. The court stated that this "does not explain his stream of gang signs. Margarejo conspicuously proclaimed his gang under startling circumstances. His efforts to communicate were continuous and systematic. The jury was entitled to find he had turned this pursuit into a reckless and attention-getting parade, and the parade into a gang crime." (Margarejo, supra, 162 Cal.App.4th at p. 110.)
Although the facts are not entirely analogous, Margarejo and the present case both involved individuals, acting alone, committing crimes with, apparently, an initial and primary purpose other than to promote, further, or assist criminal conduct by gang members. Yet, their actions—Margarejo's use of gang signs and defendant's invocation of Latin Kings in this case—suggest the further specific intent of promoting the individual's gang. One may, of course, harbor concurrent or multiple, yet specific, criminal intents in pursing particular conduct. (See, e.g., People v. Smith (2005) 37 Cal.4th 733, 746; People v. Cleveland (2001) 87 Cal.App.4th 263, 271-272.) Therefore, as in Margarejo, the jury could reasonably conclude defendant had the specific intent to promote, further, or assist the criminal conduct of Latin King gang members. B. Sufficiency of the Evidence to Support Conviction on Count 7 for Violation of Section 186.22, Subdivision (a)
The jury convicted defendant under count 7 of violating section 186.22, subdivision (a) (section 186.22(a)). This statute imposes punishment for "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang . . . ." The elements of the offense are: "(1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (Albillar, supra, 51 Cal.4th at p. 56.)
Although defendant points to evidence that he is no longer a member of the Latin Kings, it does not appear that he is challenging the sufficiency of the evidence that he is an active participant in a criminal street gang or that he has knowledge that Latin King gang members engage or have engaged in a pattern of criminal activity. Rather, defendant challenges the sufficiency of the evidence to support the third element—that he willfully promoted, furthered, or assisted any felonious criminal conduct by members of that gang. He contends that he cannot be convicted under section 186.22(a) because he acted "alone in a crime committed solely for personal reasons."
The California Supreme Court has granted review of People v. Rodriguez (2010) 188 Cal.App.4th 722, review granted January 12, 2011, S187680, which presents the question whether "an active participant in a criminal street gang [may] be found guilty of violating Penal Code section 186.22, subdivision (a), when, acting entirely alone, he commits a felony, and there is no other evidence indicating the crime had anything to do with the gang?" (Supreme Court Summary of Cases Accepted During the Week of Jan. 10, 2011.)
Initially, we reject defendant's assertion that his crimes are "non-gang related crimes" committed "for reasons wholly unrelated to the Latin Kings." As discussed in the preceding part, even if defendant was initially or partially motivated by personal reasons, the evidence is sufficient to support the jury's finding that the crimes were committed for the benefit of the Latin Kings; i.e., they were gang related.
Also in the previous section, we concluded that the evidence of defendant's invocation of Latin Kings during his crimes was sufficient to support the jury's determination that he acted with the specific intent to promote criminal conduct by gang members for purposes of section 186.22(b). By parity of reasoning, it follows that the same evidence supports the element of section 186.22(a) that he willfully promoted felonious criminal conduct by members of his gang.
Moreover, appellate courts have held that an active gang member can willfully promote or further such conduct by directly perpetrating a gang-related felony without the participation of other gang members. (See People v. Sanchez (2009) 179 Cal.App.4th 1297, 1307-1308 [Fourth Dist., Div. Two]; People v. Salcido (2007) 149 Cal.App.4th 356, 368; see also People v. Ngoun (2001) 88 Cal.App.4th 432, 435-437 [§ 186.22(a) applies to perpetrator of felony as well as to an aider and abettor].)
In People v. Ngoun, supra, 88 Cal.App.4th 432, the court held that section 186.22(a) applies to a gang member who is the direct perpetrator of a felony as well as to one who aids and abets the criminal activity of another gang member. The Ngoun court stated that the word "promote" in section 186.22(a) "means to contribute to the progress or growth of," and the word "further" "means to help the progress of." (People v. Ngoun, supra, at p. 436.) The court explained that the "literal meanings of these critical words squares with the expressed purposes of the lawmakers. An active gang member who directly perpetrates a gang-related offense 'contributes' to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct." (Ibid.)
Ngoun was relied on to affirm a gang participation conviction in Salcido. In Salcido, the defendant gang member committed certain crimes in the presence of other gang members, but there was no evidence that those gang members aided or abetted his crimes. (Salcido, supra, 149 Cal.App.4th at pp. 359-362, 368.) Although no other gang members participated in his crimes, the Court of Appeal held that the evidence was sufficient to support the conclusion that the defendant committed his crimes "'to promote, further, and assist the gang in its primary activities—the commission of criminal acts and the maintenance of gang respect.' [Citation.]" (Id. at p. 368.) The substantive crime of gang participation, the court concluded, "is demonstrated by the commission of, or aiding and abetting, even a single instance of gang-related felonious conduct." (Id. at p. 370.)
Salcido's crimes included possession of a dirk or dagger (former § 12020, subd. (a)(4)), possession of a billy club (former § 12020, subd. (a)(1)), providing a false identity to a peace officer (§ 148.9, subd. (a)), possession of a stolen vehicle (§ 496d, subd. (a)), carrying a concealed weapon in a vehicle (former § 12025, subd. (a)(1)), carrying a loaded firearm in a vehicle (former § 12031, subd. (a)(1)), and possession of brass knuckles (former § 12020, subd. (a)(1)). (Salcido, supra, 149 Cal.App.4th at p. 359.)
In Sanchez, the defendant and an accomplice robbed employees of a restaurant. (People v. Sanchez, supra, 179 Cal.App.4th at p. 1302.) There was no evidence that the accomplice was a gang member. Although the issue was not raised by the parties on appeal, the court considered an argument "lurking in [that] case" that the "promote/further/assist element . . . cannot be satisfied by evidence that the defendant perpetrated a felony alone or with nongang members . . . ." (Id. at p. 1307.) This court stated that if this argument was raised, it "would reject it on the authority of Salcido." (Id. at p. 1308.)
Based on these authorities (and assuming the first two elements are satisfied), the evidence that defendant committed the underlying, gang-related, assaults, criminal threat, and vandalism in this case is sufficient to establish that defendant promoted or furthered a felony committed by a gang member, i.e., himself.
Defendant points out that the third element of the statute—that he willfully promoted, furthered, or assisted in any felonious criminal conduct by "members of that gang"—uses the plural, "members." The use of the plural, he argues, requires defendant to "act with someone else." There are three responses to this.
First, section 7 provides that, when used in the Penal Code, "the singular number includes the plural, and the plural the singular." (§ 7.) The plural, "members," thus includes the singular, member.
Second, we must give the subject language "'a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity. [Citation.]'" (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744, quoting Marshall M. v. Superior Court (1999) 75 Cal.App.4th 48, 55.) If, as defendant urges, section 186.22(a) is violated only when two or more gang members join in the commission of a crime, then an active gang member who, on his own, enters a rival gang's territory and kills several rival gang members with the express purpose of enhancing his gang's power and reputation could not be found guilty under that statute. Such a result would be contrary to the Legislature's intent "to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs . . . ." (§ 186.21.)
Third, requiring that the felonious crime be committed jointly with another gang member is contrary to Salcido and Sanchez, in which gang members committed crimes without the participation of other gang members.
We therefore reject defendant's argument. C. Defense Counsel's Failure to Object to the Prosecution's Gang Expert's Testimony and Defendant's Claim of Ineffective Assistance of Counsel
1. Background
Defendant contends the prosecution's gang expert, Nishida, "improperly testified to how [defendant] acted, what [defendant] was thinking at the time he acted, and what [defendant] intended when he went to Montano's auto repair shop . . . on the day of the incident." He further contends the prosecutor used "feigned hypothetical question[s]" to ask Nishida his opinion about defendant's guilt, actions, and intent at the time he committed the offenses. The following summarizes the questions and testimony highlighted by defendant.
With respect to the bases for Nishida's opinion that defendant was an active participant in the Latin Kings, the prosecutor asked Nishida whether Serrano's testimony that defendant said "'Latin Kings'" during the incident and that defendant "basically represented his neighborhood or his set" was significant to Nishida. Nishida responded: "Yes. The defendant is letting the victims and anybody else that might be witnessing, you know, that he's from Latin Kings and if they . . . report something, they're going to suffer the [w]rath . . . from the gang itself."
When asked why "that type of claiming [is] significant," Nishida stated: "During the commission of that crime, he is letting everybody know that [he is] from a particular gang, specifically Latin Kings. He wants to intimidate people so he can accomplish whatever [he is] doing or committing the crime without any resistance or people trying to testify or cooperate with law enforcement."
The prosecutor posed the following "hypothetical": "Assume that the defendant is upset about something with [Montano] and he goes to the auto shop where [Montano] and the defendant and his brother [Asipuro] share the location and he starts yelling at [Montano]. The defendant yells, 'Latin Kings' and that the shop is his and belongs [to] Latin Kings. [¶] He swings a metal pipe or a steel jack handle at [Montano], actually hitting him once in the . . . leg. He bashes out the windows of the car [Montano] is hiding in. He says he is going to get his gun. He threatens to kill [Montano] and his family. He asks [Wilt], [Montano]'s helper in the shop, if he wants any of this and then swings the metal pipe at [Wilt] hitting him in the arm. [¶] He swings the metal pipe at [Serrano] after calling him a nigger and saying, 'I hate niggers. This is Latin Kings, fool. This is my shop.' [¶] When [Montano], [Wilt] and [Serrano] run away, the defendant bashes out windows of [Montano] and [Wilt]'s cars and then chases him [with] a knife that he pulls from a case on his belt. He throws the knife at [Serrano] and continues to threaten to kill them until police arrive."
The prosecutor then asked whether Nishida had an opinion as to whether the assault, the vandalism, and the threats described in the hypothetical "were committed for the benefit of, at the direction of, or in association with the Latin Kings." Nishida said he did, and stated his opinion that "it was for the benefit of the Latin Kings criminal street gang."
Nishida then explained the basis for his opinion: "Again, I hate to sound like a broken record, but using—using or him yelling out 'Latin Kings' is using that reputation. He's using the gang to support his actions to commit the crime. He is using violence in trying to intimidate these individuals and trying to assault them, obviously—also to—so they wouldn't report the incident and cooperate with law enforcement." Nishida was asked how that benefits the Latin Kings. He responded by saying: "It goes towards their reputation. Again, instills fear in the community or rival gangs or gang members. It goes towards their notoriety. It goes towards their reputation."
Defense counsel made no objections to these questions or responses other than one objection that the prosecutor's hypothetical question misstated the evidence, which the court overruled.
2. Analysis
The People contend defendant has forfeited his arguments regarding the gang expert's testimony by failing to object at trial. We agree.
"[Q]uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection at the trial on the ground sought to be urged on appeal." (People v. Welch (1972) 8 Cal.3d 106, 114-115; see also Evid. Code, § 353.) One purpose for the rule of forfeiture, or waiver, is to encourage defendants to bring errors to the attention of the trial court so that they may be corrected or avoided. (People v. Saunders (1993) 5 Cal.4th 580, 593.) This rule is applicable here. If defendant objected to the questions and testimony on the grounds he asserts on appeal, the court could have prevented any objectionable question from being answered and issued a curative admonition for any improper testimony. If an objection was sustained, the prosecutor could have rephrased a question, or presented it in the form of a hypothetical, in a manner that would have been proper. Because defendant did not object and give the court the opportunity to rule or to admonish the jury, or give the prosecutor a chance to rephrase questions, defendant has forfeited these arguments on appeal.
Defendant argues that if his counsel forfeited the arguments by failing to object, he was deprived of his constitutional right to the effective assistance of counsel. We reject this claim.
In order to prove defendant's counsel was ineffective, defendant has the burden of establishing that: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) To prove that counsel's performance was deficient, defendant must affirmatively show counsel's deficiency involved a crucial issue which cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Floyd (1970) 1 Cal.3d 694, 709, disapproved on another point in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.)
The failure to object to evidence ordinarily involves tactical decisions by counsel "and seldom establish[es] a counsel's incompetence." (People v. Frierson (1979) 25 Cal.3d 142, 158.) "Matters involving trial tactics are matters 'as to which we will not ordinarily exercise judicial hindsight. [Citations.]' [Citation.] 'In the heat of a trial, defendant's counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. Except in rare cases an appellate court should not attempt to second-guess trial counsel. [Citations.]' [Citations.]" (People v. Najera (1972) 8 Cal.3d 504, 516.)
Initially, we note that the prosecutor's hypothetical questions were not objectionable on the ground they mirrored the facts of the case; indeed, the hypothetical "must be rooted in facts shown by the evidence." (People v. Gardeley (1996) 14 Cal.4th 605, 618.) As our state Supreme Court recently stated: "[T]he prosecutor's hypothetical questions had to be based on what the evidence showed these defendants did, not what someone else might have done." (People v. Vang (2011) 52 Cal.4th 1038, 1046.) Thus, "it is not a legitimate objection that the questioner failed to disguise the fact the question was based on the evidence." (Id. at p. 1051.) Moreover, "expert testimony is permitted even if it embraces the ultimate issue to be decided." (Id. at p. 1049; see also Evid. Code, § 805.) Specifically, an expert may testify, in response to hypothetical questions, that a crime is gang related. (People v. Vang, supra, at pp. 1049-1050, fn. 5.) Thus, if the prosecutor's questions and Nishida's responses are objectionable, it is not because the hypothetical was based on the evidence in this case or that Nishida was asked for his opinion on ultimate issues, but because the prosecutor failed to use hypothetical questions that avoided explicit identification of defendant.
We cannot say that counsel's failure to object was not a reasonable tactical decision. First, it is not certain that an objection based on the ground that the prosecution should not have identified defendant and others by their names would have been sustained. Although the Vang court did not have to face that issue, it recognized that, "in some circumstances, expert testimony regarding the specific defendants might be proper." (People v. Vang, supra, 52 Cal.4th at p. 1048, fn. 4.) For this statement, the court cited to People v. Valdez (1997) 58 Cal.App.4th 494, in which the Court of Appeal upheld the use of expert opinion testimony that the defendant and others acted for the benefit of their gangs. (Id. at pp. 507-508.) Defense counsel in this case may have decided that this case was, like Valdez, the kind of case in which expert testimony regarding the specific defendant was proper.
Second, counsel may also have decided that any objection based upon the identification of defendant would have had little, if any, practical benefit for defendant and merely drawn the jurors' attention to Nishida's testimony. In light of Vang, it is clear that the questions posed by the prosecution and Nishida's responses would have been acceptable if they had used a generic identifier, such as "gang member," in place of defendant's name in the hypothetical question. Thus, instead of testifying, for example, that defendant was "letting everybody know that [he is] from a particular gang, specifically Latin Kings [because] he wants to intimidate people," Nishida could have— and arguably should have—opined that, based on the hypothetical facts (which tracked the evidence in this case), the hypothetical "gang member" would have been letting everybody know he is from a particular gang in order to intimidate people.
Defense counsel could have reasonably determined that objecting to the questions and testimony would merely have required the prosecutor to rephrase the questions as hypothetical questions and to use names other than the names of people involved in this case. Such objections, defense counsel could have also reasonably concluded, would have had little or no favorable effect on the defense and merely focused the jurors' attention on the testimony. For these reasons, we conclude that defendant has failed to establish that his counsel was constitutionally deficient.
Furthermore, even if his counsel's failure to object fell below the requisite standard of reasonableness, he has failed to establish prejudice. To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.) The defendant "must carry his burden of proving prejudice as a 'demonstrable reality,' not simply speculation as to the effect of the errors or omissions of counsel." (People v. Williams (1988) 44 Cal.3d 883, 937.)
As explained above, the practical effect of an objection based on the grounds asserted on appeal would have been to require the prosecution to rephrase his questions in the form of hypothetical questions that avoided the use of defendant's and other participants' actual names. Although Nishida would have then testified to his opinion of the hypothetical gang member's purposes and intent, not defendant's, we do not believe it is reasonably probable that this would have led any juror to arrive at a different result. Accordingly, we reject defendant's claim of ineffective assistance of counsel.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
RAMIREZ
P.J.
RICHLI
J.