Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Tia Fisher, Judge, Los Angeles County Super. Ct. No. KA057204
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Miguel Guerrero (appellant) appeals from the judgment entered following a jury trial resulting in his conviction of attempted willful, deliberate, and premeditated murder. (Pen. Code, §§ 664, 187, subd. (a)), with findings of the personal discharge of a firearm proximately causing great bodily injury (§§ 12022.53, subds. (b), (c), (d) & (e)(1)), that the offense was committed for the benefit of, and at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(4)(C)), and that the offense was committed by the discharge of a firearm from a motor vehicle with the intent to inflict great bodily injury or death (§ 12022.55).
All further statutory references are to the Penal Code unless otherwise indicated.
During an initial trial, the jury deadlocked, and the trial court declared a mistrial. The conviction was obtained upon a retrial.
Appellant contends that: (1) the use of gang expert opinion testimony was improperly admitted at trial, and trial counsel was constitutionally ineffective as he failed to object to such testimony and to the prosecutor referring to such testimony during final argument; (2) the evidence is insufficient to support the enhancement for discharging a firearm from a motor vehicle (§ 12022.55); and (3) the imposition of a 15-year minimum mandatory prison term for the gang enhancement (§ 186.22, subd. (b)(4)(C)) was unauthorized.
Appellant’s latter two contentions have merit. This court will modify the judgment to strike the 15-year minimum term of imprisonment imposed as punishment for the gang enhancement. As modified, the judgment will be affirmed.
FACTS
Shortly before 4:00 p.m. on July 1, 2000, Carlos C. (Carlos), a Townsmen gang associate, was bicycling down the street in the unincorporated area of Los Angeles County known as East Valinda. Members of the rival Little Hill criminal street gang drove by. They stopped, yelled out their gang name “Little Hill,” got out of their car and beat up Carlos.
After the beating, the Little Hill gang members drove off, and Carlos bicycled to a friend’s. At the friend’s residence, Townsmen gang members picked up Carlos in a stolen car. At his companions’ request, Carlos retrieved a .357-caliber revolver from his residence. Carlos had been storing the revolver for the gang and gave it to “Youngster,” who was seated in the right front passenger seat of the car. With Carlos, Youngster, and a third youth in the car, “Bandit,” the car’s driver, cruised the neighborhood looking for Carlos’s assailants. When they did not find the assailants, Bandit pulled up in front of a residence where Edgar A. (Edgar) and Angelica M. (Angelica), two Little Hill gang associates, were sitting on a front porch talking. Youngster yelled out, “Townsmen,” and shot twice. He wounded Angelica in the upper back.
After the shooting, Angelica spoke to a Los Angeles County Deputy Sheriff, Sergeant Steven Mills, whom she knew from prior contacts. She told the sergeant that her assailants were the Townsmen gang members she knew as “Bandit” and “Youngster.” She identified the youths in a six-pack photographic display. At trial, Angelica testified that at the time of the shooting, Bandit was her husband Spanky’s biggest enemy. She indicated that her husband was a Little Hill gang member.
In September 2000, Sergeant Mills arrested Carlos. After a Miranda waiver (Miranda v. Arizona (1966) 384 U.S. 436), Carlos named the assailants in the current shooting. Carlos said that during the shooting, Bandit was driving the car and Youngster was the front right-hand passenger. Prior to the shooting, Bandit and Youngster had commented that Angelica was “Spanky’s wife.”
Later, Carlos pled guilty to attempted murder and obtained a negotiated 12-year prison term. In exchange for that lenient term of imprisonment, Carlos consented to allowing the prosecutor to videotape his statement about the events of the shooting. The videotape was played for the jury.
At trial, Carlos and Angelica recanted their out-of-court statements implicating appellant in the shooting. Carlos did not deny that he had participated in the retaliatory gang shooting. However, he exonerated appellant by claiming that he alone had stolen the car and committed the retaliatory gang shooting.
Sergeant Mills testified that he was a veteran gang officer who had years of experience working in East Valinda and with the Little Hill and Townsmen gangs. He said that he was certain that appellant was the only Townsmen gang member whose moniker was “Bandit.” Also, Anthony Mejia was the only Townsmen gang member whose moniker was “Youngster.” The sergeant informed the jury of the territorial claims of the two rival gangs and indicated that their claimed territories largely overlapped. Thus, from block to block, these rival gang members lived intermingled with one another.
Mejia was tried separately and convicted of attempted willful, deliberate, and premeditated murder. Mejia filed an appeal in this court following his conviction in People v. Anthony Mejia, B164713. We modified the judgment, and then affirmed it, in a nonpublished opinion filed on November 4, 2003.
The sergeant testified to gang culture, mores, and psychology of criminal street gangs and their members for the purpose of explaining why at trial Angelica and Carlos may have recanted their extradjudicial statements. He gave expert testimony on the retaliatory motive for the shooting and testified to the factual foundation for the gang enhancement. The sergeant opined that the shooting was committed for the benefit of, at the direction of, or in association with a criminal street gang and expanded in factual terms on this latter opinion.
In defense, appellant declined to testify and introduced on his own behalf two items of documentary evidence.
DISCUSSION
I. Expert Opinion Testimony Concerning a Criminal Street Gang
Appellant contends that the use of gang expert opinion testimony was unnecessary to the jury’s proper understanding of the issues in the case and constituted improper opinion evidence as was explained by the decisions in People v. Killebrew (2002) 103 Cal.App.4th 644, 651 (Killebrew) and People v. Torres (1995) 33 Cal.App.4th 37, 46-48 (Torres). Anticipating a forfeiture, he also raises claims of ineffective trial counsel.
The contention lacks merit.
A. Background
During direct examination, the prosecutor asked Sergeant Mills whether “[h]ypothetically speaking,” a gang member or someone associated with a gang could refrain from retaliation after taking the kind of beating inflicted on Carlos. The sergeant replied that failing to retaliate would have caused the individual involved and his gang to “lose face.” He explained that gangs operate on the basis of fear-based “respect.” Fear-based respect was necessary to produce the atmosphere of fear and intimidation in a community.
The prosecutor later inquired about the sergeant’s opinion regarding whether the facts in this case supported the ultimate fact of the gang enhancement. He made the following inquiry: “[Sergeant,] you have become familiar with the facts of this case from various sources, reports, speaking with people, including being present at various proceedings where testimony [had been] taken. Do you have an opinion based on your experience as to whether the conduct here and the shooting of Angelica . . . was gang-related, that is[, was it committed] for the benefit of, or at the direction of, or in association with a criminal street gang?”
Sergeant Mills replied, “Yes, I do.” He added: “My opinion is that [the shooting] was committed for the benefit of, in association with, and at the direction of the Townsmen criminal street gang.” The sergeant then spontaneously explained the basis for his opinion: “You have a Townsmen associate that is assaulted by rival gang members who actually yell out, ‘Little Hill,’ representing their gang and beating up a rival gang associate. You have three other Townsmen members that learn about this, about the assault, go to get a gun together, and drive around looking for the rival gang member to shoot, to retaliate against this previous assault. That in and of itself is an association with the Townsmen and at the direction of the Townsmen criminal street gang.”
The sergeant testified that the participants in the shooting received a benefit individually because they were “putting in work for the Townsmen criminal street gang” and improving their standing within the gang. Also, this shooting was committed in broad daylight in front of Edgar’s neighbors. Such shootings “produce[] [an] atmosphere of fear and intimidation” in the community that benefits a gang. Such shootings are frightening to the community and causes community members to be afraid to cooperate with the authorities because of possible gang retaliation. When the community is afraid to report crime, the gang can operate with impunity.
The prosecutor elicited the sergeant’s further opinion that at the time of the shooting, Carlos was not a hardcore gang member. The sergeant explained that Carlos had only one documented gang contact prior to the shooting, but he lived on a block that was claimed by the Townsmen. The sergeant believed that prior to his prison commitment, Carlos was not a gang member and was only “swaying towards becoming [one].”
Sergeant Mills explained that Carlos’s recanting was a reaction to the gang now that he was committed to state prison. The sergeant said the Carlos was probably doing what was known in gang parlance as “getting his reputation back.” The sergeant said that restoring his standing with the gang could not be accomplished merely by putting in work for the gang in prison. Gang mores dictate that no gang member should cooperate with the authorities or reveal the identity of gang assailants. No one who was gang-affiliated wanted to be known as a “rat” or a “snitch.” To regain his reputation, Carlos would be required to “right the wrong” that he had done by cooperating with the authorities, i.e., he had to try to get the person he had identified “off,” and had to try to “reverse” what he had said to the authorities. Carlos had already been convicted and sentenced so he had nothing to lose by now claiming that he alone was responsible for the shooting. By exonerating appellant, Carlos was attempting to reverse the effect of his cooperation with the authorities.
Sergeant Mills explained that Angelica was no longer married to Spanky, but she had remarried or was now living with an 18th Street gang member. She probably recanted because she is highly involved in gang life and lives by the mores of the gang. Giving up persons to the authorities who participate in gang violence goes “completely against” gang mores. Even though Angelica was initially cooperative, throughout her contacts with the police, she was never fully cooperative. And, she had never wanted to be a trial witness.
During final argument, the prosecutor urged that the prosecution evidence supported appellant’s conviction. The prosecutor told the jury that gang membership alone did not constitute proof of guilt of the shooting. However, the jury could consider gang membership to prove guilt, as follows: “Mills [had] testified, among other things . . . that this attempted murder was done at the direction of, in association with, or for the benefit of a criminal street gang. And he told you in short how he’s suggesting based on the evidence how he’s submitting to you that would be true. Youngster and Bandit were Townsmen guys. They don’t have a beef with anybody who beat down [Carlos] except that [Carlos] is an associate of theirs. And the guys who beat him down are Little Hill [gang members] and they claimed Little Hill when they beat him down. And to beat him down and for Townsmen not to do anything in response to that is to be a punk. [Carlos] would be a punk for not answering up, and Townsmen generally and its membership would be punked for not doing anything about it once they learned that Little Hill had kicked a—on one of their guys, to put it bluntly. . . . Mills says, Look, they have to respond—they have to respond to save face. And that’s what they do. When this offense [was] committed it’s committed in association with gang members. The motive is to pay back for [Carlos having been] beaten. And the benefit that would inure to the gang generally would be for them to save face and, not only that, for them to have in their history an act of one of their guys getting beaten by a rival gang and then going out immediately and right away and paying back their enemy for that.”
B. The Case Authorities
The general legal principles that pertain to the admissibility of gang evidence are well known and set out in the decision of People v. Albarran (2007) 149 Cal.App.4th 214, at pages 224 to 225. In the interests of brevity, we decline to repeat those principles here.
In Torres, supra, 33 Cal.App.4th 37, the court discussed some rules of admissibility related to the general legal principle that “expert opinion is admissible [only] if it is ‘[r]elated to a subject that is sufficiently beyond common experience [and] would assist the trier of fact.’” (Id. at p. 45.) In Torres, a police officer testified that gang members who were doing what was known as “‘collecting rent, ’” i.e., they were committing robbery by taking personal property by the use of force and fear and extortion. The Torres court held that it is improper for a witness to express an opinion as to the definition of a crime. (Id. at pp. 43, 45-46.) In expressing such an opinion, the witness was doing what is tantamount to expressing an opinion on guilt or innocence. (Id. at p. 47.) The court explained that “[o]pinion testimony often goes to the ultimate issue in the case. [Citation.] Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.” (Torres, supra, at p. 47.)
In Killebrew, supra, 103 Cal.App.4th 644, in a drive-by shooting, assailants attacked a group of family and friends mourning a County Boy Crips member’s death. During the shooting, the assailants yelled out, “East Side Crips.” (Id. at p. 647.) Later that night, the Bakersfield police anticipated a retaliatory gang strike. They stopped a convoy of cars filled with youths in East Side Crip territory. The officers recognized one occupant of a car as an East Side Crip. In one car, the officers recovered a handgun. The other two cars proceeded to a taco stand, where the police found a handgun in a box next to a dumpster. (Id. at p. 648.) At trial, to prove guilt, the prosecution had to tie the gun to one of the cars in the convoy and to tie Killebrew, a pedestrian, to the cars stopped at the taco stand. The prosecution theory was that the East Side Crips were traveling in a convoy for safety in anticipation of retaliation by the rival gang and had the firearms to protect themselves. (Id. at p. 649.)
The Killebrew court pointed out that the admissibility of opinion evidence on an ultimate issue is a matter left to the broad discretion of the trial court. (Killebrew, supra, 103 Cal.App.4th at pp. 651-652.) The expert in the case had properly testified that the East Side Crips could reasonably anticipate a County Boy Crip retaliatory strike following the assault and that the gang members were traveling together with a gun for protection. (Id. at pp. 657-658.) However, the reviewing court concluded that the gang expert went too far by testifying that when one gang member in a car possesses a gun, the other gang members in the car are aware of the gun and were constructively in possession of the gun. The court held that the officer’s testimony was not the type of culture and habit testimony found in the reported cases. Rather, it was testimony relevant to prove the subjective knowledge and intent of each occupant in the cars and testimony on the expert’s belief of the suspects’ knowledge and intent during the incident in question, issues that are properly reserved to the trier of fact. The expert testimony in the case was not expert opinion on the “expectations of gang members in general when confronted with a specific action,” which would have been admissible. (Id. at p. 658.) To the contrary, the expert opinion was the sole and only evidence the People introduced to prove the elements of the crime. As such, it was improper and unnecessary opinion on the ultimate issue of specific intent, which should have been excluded. (Ibid.)
Subsequent cases have clarified the impact of the decision in Killebrew. In People v. Gonzalez (2006) 38 Cal.4th 932, the California Supreme Court did not address the issue of whether the court in Killebrew set out a proper principle of law. The Gonzalez court merely commented that the court in Killebrew properly concluded that an expert is prohibited from testifying about his opinion concerning the knowledge or intent of a defendant on trial. (Gonzalez, supra, at p. 946.) That court asserted: “It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons. As [was] explained in People v. Gonzalez [(2005)] 126 Cal.App.4th [1539,] 1551, at footnote 4, [the] use of hypothetical questions is proper.” (People v. Gonzalez, supra, at p. 946, fn. 3; see also People v. Ward (2005) 36 Cal.4th 186, 210 [the expert’s testimony, as given through their responses to hypothetical questions, related to proper topics for expert opinion of defendant’s motivation for entering rival gang territory and his likely reaction to language or actions he perceived as gang challenges, constitutes admissible evidence].)
C. The Analysis
There were no objections in the trial court on the grounds now asserted on appeal. The admissibility of gang officer opinion is largely discretionary with the trial court. (See, e.g., People v. Killebrew, supra, 103 Cal.App.4th at pp. 656-657.) Since the defense failed to object to the expert opinion testimony in the trial court, the trial court had no chance to consider whether the evidence properly should have been excluded for the reasons now advanced on appeal. Nor did the prosecutor have the opportunity to correct any defect in the way in which he framed his inquiries to the expert. Accordingly, the contention is forfeited. (People v. Ward, supra, 36 Cal.4th at p. 211.)
Appellant also complains that trial counsel used the expert opinion evidence during final argument to improperly persuade the jury as to guilt and the truth of the gang allegation. This complaint is similarly forfeited because trial counsel raised no objection in the trial court to the prosecutor’s remarks. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1125.)
Anticipating a forfeiture, appellant contends in the alternative that trial counsel was constitutionally ineffective. He asserts that trial counsel should have: (1) objected that the expert opinion was unnecessary in light of the facts of the case; (2) the use of expert gang evidence generally does not permit the expert to opine on a defendants’ intent in a particular case; and (3) the expert opinion on the ultimate issues of fact lightens the prosecutor’s burden of proving his case. ~(aob, p. 28)~
“‘To establish ineffective assistance, defendant bears the burden of showing, first, that counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him.’ [Citation.] ‘If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation.’ [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053.)
If an appellant makes an insufficient showing on either one of these components necessary to show ineffective trial counsel, the ineffective assistance claim fails. A court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. (People v. Rodrigues, supra, 8 Cal.4th at p. 1126.)
“‘[C]ompetent counsel may often choose to forgo even a valid objection. “[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal.” [Citation.]’ [Citation.]” (People v. Farnam (2002) 28 Cal.4th 107, 202.) Had trial counsel objected that the expert opinion was framed in terms of a specific person, in lieu of hypothetical persons (People v. Gonzalez, supra, 38 Cal.4th at pp. 946-947 & fn. 3, Killebrew, supra, 103 Cal.App.4th at pp. 657-658.), or that the sergeant had improperly expressed an opinion concerning guilt (Torres, supra, 33 Cal.App.4th 37, 46-47), it would not have changed the outcome of the trial. The gist of the detective’s testimony was properly admissible as it was helpful to an understanding of the issues in the case. (People v. Gardeley (1996) 14 Cal.4th 605, 617; People v. Killebrew, supra, 103 Cal.App.4th at pp. 656-657 [listing the issues on which gang opinion testimony aids the jury and is admissible].) Without such testimony, the jury would not have fully understood the gang motive for the shooting, why the witnesses may have recanted, or why the shooting would have benefitted the gang and its individual members. Had trial counsel objected to the complained-of testimony, the prosecutor merely would have reframed his questions and elicited the same testimony in the proper hypothetical form. On this record, we conclude that trial counsel viewed such technical objections as unnecessary as the gist of the testimony was properly admissible in any event.
At trial, the trial court charged the jury as to how to consider expert opinion testimony and that the jury had to find each element of the offense and the gang enhancement true beyond a reasonable doubt. The opinion, even as elicited and improperly applied to the specific persons involved in the shooting, would not have caused the jury to abdicate its duty to make proper factual findings beyond a reasonable doubt as to specific intent and as to all the elements of attempted murder and the gang enhancement.
In short, appellant has failed to demonstrate a deficit performance or the prejudice necessary to establish ineffective trial counsel.
II. Insufficient Evidence
Defendant contends that the evidence is insufficient to support the enhancement for the discharge of a firearm from a motor vehicle. (§ 12022.55.)
We agree.
This enhancement requires the personal discharge of the firearm. (People v. Myers (1997) 59 Cal.App.4th 1523, 1532-1533; In re Jose D. (1990) 219 Cal.App.3d 582, 587.) It was undisputed at trial that appellant was the driver of the car, and Anthony “Youngster” Mejia was the youth in the passenger seat of the stolen car who discharged the firearm. Consequently, the enhancement fails to apply.
We are not required to take any further action with respect to the enhancement. At sentencing, the trial court struck the finding of the enhancement, leaving this court with nothing further to do.
III. Sentencing Error
Defendant contends that the 15-year minimum term imposed pursuant to 186.22, subdivision (b)(4)(C), was unauthorized.
Respondent concedes the error, and we agree.
At sentencing, the trial court imposed an indeterminate life term enhanced by a term of 25 years to life for the discharge of a firearm proximately causing great bodily injury. The trial court struck the findings of the lesser firearm enhancements, including the section 12022.55 enhancement pursuant to section 12022.53, subdivision (f), and the decision in Bracamonte. (People v. Bracamonte (2003) 106 Cal.App.4th 704, disapproved in part by People v. Gonzalez (2008) 43 Cal.4th 1118, 1130, fn. 8.)
The trial court concluded that section 186.22, subdivision (b)(4)(C), required the imposition of a minimum term of 15 years on the life term for attempted murder and imposed that minimum term of imprisonment.
Section 12022.53, subdivision (e), provides that findings on sections 12022.53 and 186.22 enhancements permit the imposition of a firearm-discharge enhancement even though the person did not personally discharge the firearm. However, where the gang enhancement provides the basis for the imposition of a firearm-discharge enhancement where there is no personal use, the trial court lacks authorization to impose an additional term or a minimum term for the gang enhancement. (People v. Salas (2001) 89 Cal.App.4th 1275, 1281-1283.)
Section 12022.53 provides in pertinent part: “(e)(1) The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d). [¶] (2) An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.”
The 15-year minimum term will be stricken from the judgment.
We observe that the trial court relied on the decision in People v. Bracamonte, supra, 106 Cal.App.4th 704 to strike the lesser firearm enhancements. Pursuant to the recent decision in People v. Gonzalez, supra, 43 Cal.4th at page 1127, the rule in Bracamonte is no longer in effect, and the lesser firearm-discharge enhancements properly should have been imposed and stayed. In the absence of a request, we will not sua sponte correct this error in the judgment. If the stricken firearm enhancements later become an issue, these terms are unauthorized and may be corrected at a later time.
DISPOSITION
The judgment is modified by striking the 15-year minimum term imposed in conjunction with the life term for attempted murder pursuant to section 186.22, subdivision (b)(4)(C). As modified, the judgment is affirmed.
We concur DOI TODD, J., CHAVEZ, J.