Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA046198, Michael Johnson, Judge. Affirmed.
Randy S. Kravis for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
The jury convicted defendant Michael Phillip Torres of the attempted murder of David Mendoza in violation of Penal Code sections 664 and 187, subdivision (a), finding the attempted murder was committed willfully, deliberately, and with premeditation. The jury found not true the allegations that he personally used a firearm in committing the offense (§ 12022.53). Defendant was also convicted of being a felon in possession of a firearm (§ 12021, subd. (a)(1)); making criminal threats upon Erin Sutton (§ 442); illegal street gang activity (§ 186.22, subd. (b)(1)); attempting to dissuade witness Joe “Smokey” Neria (§ 136.1, subd. (a)(2)); intimidation of witness Neria (§ 137, subd. (b)); and intimidation of witness Sutton (§ 137, subd. (b)). The jury found that all of the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Defendant waived his right to a jury trial on the prior conviction allegations. The trial court found defendant had two prior convictions under the three strikes law and had served three prior prison terms.
All further statutory references are to the Penal Code, unless otherwise indicated.
As to each count, defendant was sentenced under the three strikes law. The trial court imposed a sentence of 45 years to life on the attempted murder conviction, based on a tripling of 15 years due to the finding as to the gang allegation. (§ 186.22, subd. (b)(5).) Defendant received an indeterminate term of 25 years to life for the firearm possession conviction, plus the three-year gang enhancement. Defendant also received 25 years to life sentences, plus the five-year gang enhancement for making criminal threats against Sutton and for attempting to dissuade Neria as a witness. (§ 186.22, subd. (b)(1)(B).) The separate criminal street gang conviction was stayed under section 654. Punishment on the remaining two convictions was stayed under section 654. The total sentence was a determinate term of 13 years and an indeterminate term of 120 years to life.
Defendant timely appeals contending: (1) by instructing on conspiracy, the trial court instructed the jury with a legally inadequate theory for attempted murder; (2) the jury’s rejection of the personal firearm use allegations as to the attempted murder was directly contradictory to its conviction for possession of a firearm by a felon; (3) the trial court effectively directed a prosecution verdict on the substantive crime of engaging in illegal gang-related activity along with the special gang allegations through its limiting instructions on how to consider evidence of predicate criminal acts by Mexican Mafia members other than defendant; (4) the trial court abused its discretion in admitting evidence of statements Maria Salazar made in a police interview as prior inconsistent statements; (5) the trial court abused its discretion and violated defendant’s constitutional rights to due process and a fair trial by admitting testimony from the prosecution’s gang expert that Mendoza’s belated identification of Neria as the shooter was likely to have been coerced by Mexican Mafia threats or promises; (6) trial counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to request a limiting instruction proscribing the jury from drawing a negative inference from Mendoza’s invocation of the right to remain silent in refusing to answer questions from the defense during cross-examination; (7) the trial court prejudicially erred by failing to give a limiting instruction as to the application of pattern instructions (CALJIC Nos. 2.04, 2.05, and 2.06) that permitted the jury to consider efforts by defendant to procure false testimony, to fabricate evidence, or to suppress evidence; and (8) trial counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to correct the trial court’s apparent factual error in connection with the court’s decision to impose consecutive sentences as to the attempted murder and firearm possession convictions.
We affirm.
STATEMENT OF FACTS
Prosecution
Daniel Evanilla, a special agent for the California Department of Corrections, is an expert in the Mexican Mafia gang, which is also referred to as “eme” for the letter M in Spanish. The Mexican Mafia originated in the 1950’s in a central California prison. Originally, most of its members were from an East Los Angeles street gang, but its founding idea was for all Latino gang inmates to band together against acts of intimidation by prisoners from other gangs and races. The Mexican Mafia currently is comprised of inmates and members of Latino gangs based in Southern and Central California. A member of the Mexican Mafia will typically retain his local gang affiliation, but is expected to raise money for the prison gang by committing crimes such as robberies and extorting money from local drug dealers and shop owners (taxes). The money received will typically be sent through the prison inmate’s wife or girlfriend to the inmate’s “trust account.” The local gang will generally forward one-third of those taxes to the Mexican Mafia and keep the balance for the local gang. One member of the local gang usually functions as its “head shot-caller,” who is responsible for collecting taxes and arranging for the proceeds to be transmitted to the Mexican Mafia members in prison.
At the time of trial, there were approximately 165 known Mexican Mafia members. Each member would know the identity of other authentic members. The gang’s primary activities include murder, extortion, robbery, drug dealing, witness intimidation, and other violent acts of intimidation. In gang parlance, to “green light” a person is to target that person for violent death because of a refusal to pay taxes or take gang assignments, cooperation with the police, or commission of inmate assaults that were not gang-authorized. Impersonating a Mexican Mafia member or associate for the purpose of collecting taxes, which were not forwarded to the gang but kept by the impersonator, would also cause the Mexican Mafia to issue a green light against that person. Mexican Mafia members would consider it a disgrace if someone impersonated gang membership to trade on the gang’s reputation for personal gain. The killing of such a person by a Mexican Mafia member would benefit the gang because it would vindicate the gang’s reputation and authority.
An associate is an aspiring gang member who assists the gang to prove himself worthy of full membership.
Agent Evanilla opined that defendant was a member of the Mexican Mafia prison gang. The prison authorities had classified defendant as a gang “associate” in 1991, but “upgraded [him] to a validated member of the Mexican Mafia in 1994 when he was at Pelican Bay State Prision.” As of the time of trial, defendant continued as an active member of that gang.
Validation as a Mexican Mafia member is based on the criteria of the particular law enforcement or penal institution that makes the assessment for purposes of custodial placement. The inmate has a right to challenge the determination.
While in jail or prison custody in California, visitors are separated from the inmate by a glass window. They must speak to each other through telephones that are monitored by the authorities. Accordingly, important messages that inmates do not want intercepted are written on paper, shown through the window, and swallowed or otherwise destroyed. It is very common for Mexican Mafia members to use female visitors to transmit gang-related communications to the outside world.
For purposes of proving the section 186.22 gang offense and allegations, Agent Evanilla also testified as to predicate crimes committed by Mexican Mafia members other than defendant.
Deputy Javier Clift of the Los Angeles County Sheriff’s Department also testified as a gang expert, specializing in prison gangs including the Mexican Mafia, which imposes its rules on Latino gangs in Southern California. Among other things, the Mexican Mafia sends its members into neighborhoods to collect money or narcotics as taxes for the benefit of Mexican Mafia members in prison and on the streets. The San Fer gang is controlled by the Mexican Mafia. Punishments for violating Mexican Mafia strictures range from monetary penalties to physical attacks to death. During the period of defendant’s confinement in the underlying matter, he was a verified and very powerful Mexican Mafia member, highly respected within the inmate community of the Los Angeles County Jail. “Carnale” is a Spanish term meaning brother.
Maria Salazar testified as to the shooting incident. On the evening of June 12, 2003, she was living in an upstairs apartment on Memory Lane Park with “quite a few people” who went there to “do drugs.” At that time, she was using drugs “[e]very day, all day.” She slept on a couch in the living room, underneath the window facing the front of the apartment, looking out toward the street. That night, she was in the apartment with Mendoza, whom she knew as “Diablo,” and Rodrigo “Ghost” Reyes, who appeared to have a gun in his pocket. Salazar was asleep, “coming down off the drugs” she had taken—crack cocaine, marijuana, and cigarettes. Ghost awakened her by pacing back and forth behind the couch and looking out the front window. Salazar fell asleep again, but awoke when she heard knocking and saw Ghost going to the front door. Someone asked Ghost a question, and Mendoza went to the door. She heard a confrontation with Mendoza and a gunshot. One of the voices she heard at the door was that of Joe “Smokey” Neria. Mendoza said, “These motherfuckers just shot me.” He sat on the couch, holding his chest. She saw two skinny, tall males who appeared to be Mexican flee the apartment building and drive off in a white car. Ghost ran away in a different direction. Salazar ran out of the apartment and crossed the street to a friend’s house, where she called the 911 operator to report the shooting.
A few minutes afterwards, as Salazar went around the corner to “score” some drugs, she saw Neria. He knew about the shooting. She did not obtain any drugs, but when she saw the ambulance in front of the apartment, she walked to the Good Knight Inn with Neria, where her boyfriend, David Jason “Pelon” Reyes, had a room. She woke him up, obtained some drugs from him, and spent the night in his room. The Good Knight Inn was approximately three blocks away from the Memory Lane apartment.
Detective Terence Keyzer of the Los Angeles Police Department interviewed Salazar on June 26, 2003. Excerpts of that audio-taped interview were played to the jury. Salazar recalled during the interview that Ghost had a gun in his hand while pacing the living room prior to the shooting, and he had told her that he believed something was going to happen. When she awoke to the knock on the door, Salazar saw Ghost answer the door with the gun in his hand. The person at the door asked Ghost to identify himself. Ghost said, “I’m G.” The person at the door asked for Diablo, and Ghost told him to wait while he called Mendoza. When Mendoza went to the door, the person asked whether Mendoza was “a carnal”—meaning, as Salazar understood it, “one of the big homies.” Mendoza replied, “Yeah,” and began to pull up his shirt, when the person at the door shot him. Salazar did not see the shooter’s face.
During her examination, Salazar could not recall making various statements contained in the interview with Detective Keyzer.
Mendoza would testify it meant “brother,” with no particular application to the Mexican Mafia.
Emergency room physician Pranav Kachhi treated Mendoza when he arrived at the Panorama City hospital at 8:55 p.m. Mendoza had received a gunshot wound to his chest. Mendoza was in shock, but appeared coherent and not under the influence of narcotics. The bullet exited his back without severing any major organs. After observation, Mendoza was released the following morning. Detective Stephanie Lazarus responded to the shooting scene on Memory Lane Park at approximately 9:25 p.m. By that time, Mendoza had been taken to the hospital. She and other police officers found an expended bullet in a barstool inside the apartment and shell casings outside the front door to the apartment. Los Angeles Police Department Officer Genaro Arredondo, a firearms expert, examined the expended bullet and cartridge found at the shooting scene. Both were .45 caliber, intended for use in a semi-automatic firearm.
Neria testified under a grant of immunity. He was in custody at the time of trial, having been convicted of being a felon in possession of a firearm. He was a longtime member of the San Fernando, or “San Fer” street gang. He had prior convictions for drug, theft, and driving offenses. In June 2003, he was renting a room at the Good Knight Inn and “spending a lot of time doing drugs,” especially cocaine. In the middle of June, he met Mendoza, whom he knew only as “Diablo.” He was also spending time with Salazar and Ghost. Neria would visit the Memory Lane apartment to sell and use drugs. Mendoza told Neria that he was a member of the White Fence street gang and that he had been recently paroled from Pelican Bay.
On one occasion, Mendoza said he was a “carnal” from the Mexican Mafia and ordered a prostitute to turn over her money to Neria. She complied, but Neria later returned it, not believing Mendoza’s representations. Also, when Neria and Mendoza went to a “dope house,” Mendoza demanded a share of the drugs and money from the sellers. Believing it dangerous to be in the company of someone holding himself out as a member of the Mexican Mafia, Neria disassociated himself from Mendoza. When a friend of Neria’s was beaten for associating with Mendoza, Neria told a person called Bandit that his friend had nothing to do with Mendoza’s attempts to recover taxes for the Mexican Mafia. Neria told Bandit that Mendoza was staying at the Memory Lane apartment. Bandit telephoned someone to find out whether Mendoza was from the Mexican Mafia. Soon afterward, two white cars, a Toyota and a Cadillac, drove up to Neria and Bandit. Defendant was one of the persons who exited the cars. He asked about Diablo. Neria told defendant that Mendoza was “taxing people and beating people up.”
Defendant drove Neria to the Memory Lane apartment in his white Cadillac. The Toyota followed. Neria had consumed a large amount of narcotics and alcohol that afternoon and “was still high.” Neria was told to go to the apartment with defendant and another person, who was tall and bald. Neria assumed defendant and the other person were from San Fer, which had many members. When the three reached the apartment, Ghost answered the door. Defendant asked if he was “Diablo.” Ghost said, “No.” Mendoza came to the door and admitted being Diablo, but did not respond when defendant asked if he was from the Mexican Mafia. Defendant asked, “Are you a carnal?” Mendoza said nothing, but began to pull up his shirt as if to show his prison tattoos. Mendoza appeared unarmed. At that moment, defendant fired a gun at Mendoza, who grabbed his chest and said, “Ah, shit. They shot me.” Neria denied being the shooter.
Although Neria testified he was not sure who fired the gun, he testified the shot came from the direction of the person standing on his right side, where defendant was located. He had previously identified defendant as the person who shot Mendoza.
Neria, defendant, and the other person ran away. Neria, who was surprised that Mendoza had been shot, sat down. He saw Salazar approach, and they walked to the Good Knight Inn. Approximately an hour later, the tall and bald person returned in a car with three other male Latinos and ordered Neria to come with them. The driver had “SUR” tattooed on the back of his head, indicating allegiance to a prison gang. They told Neria he would be taken into hiding until the “shit clears up.” After changing cars in the San Fernando Valley, the tattooed driver accused Neria of divulging information about the shooting. Neria denied it and was taken to a number of different locations. Approximately six hours after the shooting, he was taken to another car with the tall, bald male and another person. While driving, they attacked Neria, punching or stabbing him and choking him with a rope. Neria resisted and managed to jump out of the car. He hid by a residence and prevailed upon the residents to call for help. Neria gave a false story to the deputies because he was afraid of retribution if he identified the persons who attacked him. Medical personnel at the scene dressed the rope wounds to his neck and the stab wounds to his back. Defendant was arrested and taken into custody.
Within a month, detectives visited Neria in jail, telling him they knew he was at the shooting scene and a green light had been placed on him. Neria denied being at the apartment, admitting only that he was “at the corner” at the time. The following summer, in 2004, while defendant was in custody in the Wayside jail for a narcotics offense, Neria received a visit from a woman (Christina Davalos) he did not know. After verifying his identity and that he remembered the incident involving defendant, she asked if anyone had spoken to him about the incident. He told her about the detectives’ visit, but said he told them nothing.
Records from the facility showed that on June 26, 2004, Neria received a visit from Davalos, wife of Jose “Hoser” Flores.
Davalos returned a few weeks later. She showed him a letter and told him to read it, while saying that she knew nothing of its contents. He understood that the note came from defendant. It said that Neria had made a serious mistake, but that he could “clean it up” by refusing to talk to the police. However, if Neria did otherwise, “I’ll kill you and your family, just to let you know not to fuck with the eme. If you agree, say yes. If you disagree, say no.” Neria said he agreed. Davalos said he would receive another visit soon. Before leaving, she put the note in her mouth and chewed it. Agent Evanilla opined that under circumstances such as those testified to by Neria, if a known Mexican Mafia member had shot someone in the presence of a person who was subsequently placed in custody with that gang member, and the inmate received a threatening note from a female to “keep his mouth shut or he and his family would be killed,” the threat would be something to benefit the Mexican Mafia because it would help the gang member secure his release from custody.
Jail records showed that Neria received another visit from Davalos on July 17, 2004.
Upon return to his jail module, Neria discovered from an inmate that he was in fact the subject of a green light. He so informed the guards and was moved to the “green light module” in the downtown jail. Lawrence Sanchez, a licensed private investigator representing defendant, visited Neria in the attorney room. Defendant was also in the room. Sanchez asked Neria if he knew who Diablo was and if he knew about an attempted murder. Neria denied any such knowledge and told the investigator he would not speak to him about it.
Deputy Yvette Mattes was working at the jail on that date, August 25, 2004. She saw Sanchez meet with defendant in the attorney room. Sanchez told Deputy Mattes that he had completed his meeting with defendant and asked to see Neria. The deputy issued the pass and Neria was brought to the attorney room. Defendant remained in the room. Neria was seated across from Sanchez; the two made eye contact during the visit. Within approximately five minutes, Neria told Deputy Mattes that he had completed the visit and wanted to leave. Neria appeared “very nervous, scared and very pale.” When Deputy Mattes uncuffed him from the bench, he was shaking in fear. She escorted him back to his housing location. The deputy wrote a report documenting her observations. Some months later, when Sanchez was in the attorney room on an unrelated matter, the investigator complimented her on having “really good writing skills” in terms of precision and detail.
Sanchez made the request using the assumed name under which Neria had been booked.
Mendoza testified as part of the prosecution case. For purposes of the felon in possession count, defendant stipulated to being a convicted felon. At the time of trial, defendant was in custody on a parole violation. Mendoza had been previously convicted of felonies, including selling cocaine in 2005, vehicle theft in 2001, and possessing cocaine for sale in 1999. He was a member of the White Fence gang with a large “W-F” tattooed on his stomach, but he was not sure whether he remained a member at the time of the shooting. He did not recall what he told the police after being shot in the chest on June 12, 2003, in the Memory Lane apartment. He had been “doing drugs and alcohol” for the four days leading up to the incident. While in the hospital, he was on “heavy doses” of morphine and Vicodin, and could not remember the incident or what he told police. He was “in a blackout.” When initially questioned, he told officers that he did not know who shot him. On November 20, 2004, after having been threatened by gang members and meeting with Sanchez, Mendoza signed an affidavit from the investigator, in which he indentified Neria as the shooter. He did not inform the police of the identification, but subsequently testified that way at the preliminary hearing. Mendoza apparently had been in a fight with Neria prior to the shooting incident, which was not mentioned in his affidavit. Mendoza explained that Neria had taken his car—“That’s how the whole thing happened.” During the course of the preliminary hearing, Mendoza received telephonic threats.
Separate counsel, appointed to represent Mendoza, advised him to invoke his Fifth Amendment right to remain silent. Mendoza informed the trial court he understood his right, but chose to disregard his counsel’s advice and testify. As discussed infra, Mendoza would invoke his right to silence as to one aspect of cross-examination.
As to the shooting itself, Mendoza testified that he lifted his shirt because he intended to fight, not to show his prison tattoos. Due to his heavy drug use, he did not remember whether he had been trying to extort taxes for the Mexican Mafia. Only one person came to the door—Neria.
On cross-examination, Mendoza explained that some days prior to the shooting, he had taken a dislike to Neria because “Smokey” had failed to return the Mercedez-Benz he had borrowed from Mendoza’a parents. When the car was eventually recovered, it had been vandalized. Neria had also disparaged Mendoza to other people. When asked about physically confronting Neria prior to the shooting, Mendoza invoked his constitutional right to remain silent. He admitted, however, telling Ghost that he “went out and found Mr. Neria and [he] beat the crap out of him.” The trial court subsequently ruled Mendoza had no valid basis for invoking his Fifth Amendment right, and Mendoza testified that the day before the shooting, Neria and he engaged in a short fistfight. Mendoza knocked Neria to the ground and the latter ran away. When Mendoza saw Neria at the apartment door, Neria appeared angry and Mendoza assumed they would fight again. Neria, however, shot him. Ghost ran away.
On June 13, 2003, the day after the shooting, Detective Michael Morlan interviewed Mendoza at the police station concerning the incident. Mendoza said “he had been claiming to be Mexican Mafia, eme, and he was taxing people.” That day, he had been using drugs and drinking—“partying”—with “some people” at the Good Knight Inn before going to the Memory Lane apartment. “[H]e was just kind of whacked out on drugs, and he ended up getting . . . shot.” Mendoza told the detective he was not actually part of the Mexican Mafia, but a member of the White Fence gang. With regard to the shooting itself, Mendoza related that “G” or “Ghost” opened the apartment door and said, “Just a minute, I’ll get him.” There were a “couple” of male Hispanics at the door as Mendoza approached. One of them asked twice whether Mendoza was “a carnal.” When Mendoza lifted his shirt to display his prison tattoos, “They just shot [him].” Mendoza’s description of the shooter was ambiguous.
Officer David Heilman participated in the interview of Mendoza at the hospital following the shooting. Mendoza was alert. Mendoza told the officer that there were two Latino males in the apartment doorway. One was younger (16 to 20 years old) and shorter (less than 5’6” tall) than the other. The younger one stood in front of the other and asked Mendoza if he was “Diablo from White Fence,” shooting Mendoza after he denied it. The officer noted that Mendoza had given differing versions of the shooting. Mendoza admitted being known as Diablo.
In a follow-up interview on July 16, 2003, conducted five days before defendant was arrested in the underlying matter, Mendoza selected defendant’s photograph out of a six-pack photo display, as “look[ing] like the guy that shot me.” However, when the detective asked him to circle defendant’s photograph, Mendoza refused and said, “It’s not him.” Agent Evanilla participated in the photographic lineup. Initially, Mendoza said defendant’s photograph “looks like the guy” who shot him, but he was unwilling or unable to make an affirmative identification. Mendoza said it was “too dark and he couldn’t be sure.”
Deputy District Attorney Michael Jesic was in charge of the investigation and early stages of defendant’s prosecution, including the preliminary hearing in late November 2005. On the morning of the hearing, Mendoza told the prosecutor that it was “Smokey” who had shot him. He gave the prosecutor an affidavit to that effect signed just prior to the hearing. Until then, the prosecutor had received no communication from Mendoza implicating Neria as the shooter. The prosecutor proceeded to have Mendoza read the police report concerning the shooting line by line to verify or deny each statement. Mendoza admitted having misrepresented himself as being part of the Mexican Mafia to tax people for money and drugs that he would use for himself. He also admitted there were at least two male Hispanics standing in front of the apartment door just before the shooting.
In June 2004, John Marcello, a private investigator, was retained by Frank Di Giacomo, one of the attorneys who represented defendant in the early stages of the prosecution. He interviewed Mendoza in a restaurant. Mendoza told the investigator that prior to the shooting, he had been on a narcotics binge and had just used heroin before the incident. He did not know who shot him. In fact, “he was so loaded that he didn’t even know he was shot.”
Erin Sutton was a member of the Toonerville gang, although he did not share the ethnicity of most of its members. He did not want to testify in defendant’s trial. In September 2004, Sutton was in custody having been charged with felonies involving stolen property and narcotics. From conversations with Neria, Sutton knew of defendant by his nickname, “Fly” or its equivalent word in Spanish, “Mosca.” Sutton was housed close to Neria in county jail. Neria told Sutton about defendant and that he was defendant’s “homeboy.” On a bus ride to or from the jail to court on September 7, 2004, defendant asked for Sutton’s name and custody number, and told him to speak to defendant’s investigator. Sutton understood that defendant was widely reputed to be a member of the Mexican Mafia, with the power to order others to do what he wanted. Agent Evanilla opined that the request that Sutton meet with defendant’s investigator was consistent with conduct intended to benefit the Mexican Mafia.
The prosecution’s gang expert would testify that a Toonerville member would be expected to comply with requests from the Mexican Mafia.
Soon afterwards, on September 18, 2004, Sutton received a visit from Sanchez, who identified himself as representing defendant, followed by a visit from a female named Tanya whom he had not met before. In the jail’s visiting room, through the glass partition, the woman showed him a paper with a typed note and asked if he knew who Mosca was. He said he did. Sutton could not remember precisely what was typed on the paper, but it was “some stuff” the woman wanted him to tell defendant’s investigator—“something about [Neria] bragging about committing some crime”—more specifically, that Neria was “bragging about shooting someone.” The woman told him the note came “from Mosca.” In fact, Sutton had never heard Neria make such claims. After showing him the first note, the woman displayed an envelope with telephone numbers of Sutton’s mother and girlfriend. Sutton understood that as a threat to their safety. The woman also gave Sutton her own phone number, telling him to call her if he had any questions. According to the prosecution’s gang expert Deputy Clift, this was typical of the manner in which Mexican Mafia members conveyed information to inmates and threatened them to comply with directions.
She would be identified as Tanya Butterfield, the wife or girlfriend of Daniel Miranda, also known as “Baby Face,” “Face,” or “Cara.”
When he was summoned to court from the jail, Sutton wrote a note to the prosecutor because he feared for the safety of his mother and girlfriend; the note referred to “Mosca.” In response, a deputy district attorney visited Sutton in the court’s lockup, and detectives talked to him a few days later. From a photographic lineup, Sutton identified Tanya’s photograph.
On September 23, 2004, Deputy Clift took part in the traffic stop, parole search, and arrest of Miranda in the company of his girlfriend Butterfield. They had left their Lawndale residence and driven away together.
Sanchez visited Sutton three or four times in the jail’s attorney room. The first time, Sutton refused to speak with him because he did not know him. The next time, the investigator showed him a letter of authorization from defendant. Sutton told Sanchez that a green light had been issued against him. Defendant’s investigator told him, “We can help you out if you help us out.” Sutton understood Sanchez as offering a promise of help in exchange for his helping in defendant’s case. On the next visit, Sanchez told him that defendant knew nothing about the green light and showed him a note “explaining how there was no green light on [Sutton].” Sutton, however, refused to help by giving the desired statement concerning Neria, telling the investigator that he was “wasting his time.”
On November 18, 2004, Detective Michelle Diaz was conducting undercover surveillance of the visitors’ room at the county jail, while defendant met with his common law wife Alina Tristan, and Butterfield met with another inmate, Miranda. It appeared that Tristan was writing notes for defendant to read. Butterfield removed a gold chain from her neck, showed it to Miranda, and handed it to Tristan, who showed it to defendant before putting it away. Agent Evanilla opined that in the context of the Mexican Mafia, passing the chain to Tristan was a sign of respect toward defendant.
Agent Evanilla opined that Miranda was a Mexican Mafia associate from 2003 through 2005.
On March 30, 2005, Deputy Joseph Manfree searched Samuel “Cobra” Trujillo in his jail cell. Trujillo placed a small latex-wrapped bindle in his mouth and tried to swallow it. The deputy ordered him to spit it out. Trujillo refused and fought back when the deputy tried to remove the bindle from his mouth. The deputies restrained Trujillo and recovered the bindle, which contained written notes or “kites.” According to Deputy Clift, the notes recovered from Trujillo included lists of inmates attending court. Such a list is useful to other inmates because persons attending court can be used to deliver kites. Based on his experience and expertise, the notes’ contents and the use of the “M” signature on some of Trujillo’s notes indicated that they were authored by defendant. The contents of those notes showed that defendant held a leadership position in the Mexican Mafia “controlling the entire L.A. jail system.” Another kite was addressed to defendant.
“Kites” are notes from inmates in security housing units who have limited means of communicating to inmates or anyone else outside.
Detective Terrie Illsley testified concerning the wiretapping of the jail system’s phone lines to record inmate conversations. Conversations on August 18 and October 25, 2004, placed by defendant to Tristan were played to the jury. Other persons, including Miranda and Virginia “Big Virge” Moore, joined the August 18 conversation; Sanchez joined the conversation on October 25. Officer Bryan Lium testified concerning recorded jail phone calls made on August 13 and November 3, 2004, which were placed by defendant to Tristan and played to the jury.
Detective Lee Ann Jones testified concerning the wiretapped jail phone call made on the early evening of March 17, 2005, which defendant placed and involved Rudy Beltran. Deputy Clift testified the conversation concerned “Mexican Mafia business,” specifically the collecting of gang taxes in the Wayside jail. Another recorded telephone call between Tristan and Jose “Hoser” Flores on March 21, 2005, was played to the jury. In the conversation, Flores referred to his wife, Davalos, as having been arrested and placed in jail. Tristan appeared to access court records on the Internet, informing Flores that Davalos had been released that day. In a taped phone call of March 24, 2005, between Tristan and Sanchez, the investigator explained that he was being investigated “for that witness tampering thing” and could not visit the courthouse. Later that day, defendant and Tristan spoke to each other on the telephone. In a recorded phone call on the following day between Tristan and Flores, the two referred to making a pickup and delivery of money to defendant.
Agent Evanilla agreed.
From a photographic lineup, Neria identified a photograph of Davalos as being the person who visited him in jail in the summer of 2004.
In a recorded phone call from Tristan to Rudy Gonzales and Cynthia Salazar on April 14, 2005, concerning delivery of money to the jail, the participants referred to “Baby Face,” “Face,” or “Cara,” meaning Miranda and his “old lady,” Butterfield, and her need for a criminal defense lawyer. She had been arrested for bringing a note to Sutton. They also referred to the fact that Davalos had been arrested in similar circumstances with regard to Neria. A recorded phone call of the following day between Tristan and Butterfield revealed the two setting up a meeting and discussing the criminal case against Butterfield. In a recorded phone call of April 29, 2005, between Flores and Davalos, Flores spoke of taking rent or taxes from narcotics dealers.
On May 27, 2005, Officer Ruben Arellano was working undercover on an unrelated narcotics detail, when Mendoza approached him about buying drugs. When Officer Arellano offered to pay $60, Mendoza told him he had no drugs on his person, but would get some if the officer drove him to a nearby location. The officer told him it was too dangerous because he didn’t know Mendoza and it was a “gang area.” Mendoza replied that he was “Diablo from White Fence and that he was also Eme and that [the officer] shouldn’t worry about the Columbus Street gang members . . . because [Mendoza] was with them.” The officer agreed to walk to the location with Mendoza. During the walk, in order to allay the officer’s gang fears, Mendoza pulled up his shirt to reveal his White Fence tattoo. After making the narcotics transaction, Mendoza was arrested. Agent Evanilla opined that Mendoza’s conduct was consistent with attempting to earn money for the Mexican Mafia in order to “work off” his debt to the gang.
On June 9, 2005, Detective Jones participated in the search of Davalos’s residence, finding two driver’s licenses, one in the name of Christina Flores and the other, Christina Lorena Davalos. A search of the residence of defendant’s mother uncovered two stashes of currency totaling $11,000 inside a crawl space under the house, accessible through a bedroom closet, and $6,000 in a coffee pot inside the closet. There were also gang-related photographs and writings pertaining to defendant, along with photographs of “Big Verge” Moore.
On May 30, 2007, a list of Mexican Mafia members in California state custody was found in defendant’s cell at Men’s Central Jail. The list also named members on the streets, as well as some who are no longer living. The list was not exhaustive. According to Deputy Clift, the list of Mexican Mafia members found in defendant’s jail cell is something that would not only be useful to a member in prison, but it would be unlikely to be in the possession of someone outside the gang.
Defense Case
Kody Scott was an inmate at the Los Angeles County Jail in 2004, where he remained at the time of trial. Scott was a gang member. He was given the moniker, “Monster,” based on a violent attack he committed when he was 13 years old. He was 48 years old at the time of trial. He entered guilty pleas to assault with a deadly weapon and two assaults on police officers. While in prison, he wrote a book about his “experiences on the street.” It was published in 1993. He had not committed any crimes since his release in 1995, but was facing charges of burglary, carjacking, robbery, and assault with a deadly weapon.
In August 2004, Scott was in the jail’s attorney visiting room at the same time as defendant. He was seated nearby defendant and made small talk with him after Scott’s visit had ended. At some point, a Latino male inmate Scott did not know—apparently, Neria—was brought into the room. The inmate spoke to Sanchez for less than five minutes, before the inmate was taken away. The inmate appeared calm at all times.
Sanchez was retained to work for defendant on the underlying prosecution in July 2004. As part of his investigation, he searched for Neria or “Smokey.” Searching a public database, Sanchez found a jail inmate with the same birth date and similar build as Neria, booked under a different name. On August 25, 2004, Sanchez visited the Central Jail and requested a visit with defendant. They met in the attorney visiting room for 15 to 20 minutes. When the visit ended, Sanchez requested to see the person he thought was Neria. Defendant was not escorted out of the visiting room, but Sanchez moved to another area. Neria was eventually brought into the room, but he repeatedly denied being Joe Neria and insisted that Sanchez write down the phone number of the inmate’s mother to verify that he was “Jose Munoz.” Sanchez concluded the interview and, on his way out of the room, told defendant that the inmate denied being Neria. Deputy Mattes told investigator Sanchez to “keep moving.”
Sanchez interviewed Sutton twice at the Central Jail. On the first occasion, Sutton declined to speak to him about whether he had information concerning the Mendoza shooting because he first wanted to verify with defendant whether “it was okay to talk to [Sanchez].” Within a few weeks, Sutton telephoned and requested a meeting. When they met, Sanchez requested that Sutton tell him the truth about whether he heard Neria discuss the shooting. Sutton said he had information, but wanted defendant to have the “same girl” visit Sutton first. Sanchez did not know who Sutton was referring to, but said he would convey that request to defendant. A few weeks later, Sanchez received another telephone call from Sutton requesting a meeting. At that meeting, Sutton told Sanchez that during a bus ride, Neria related how “Diablo” had stabbed him with a screwdriver, and that Neria “had to shoot him” because “Diablo had quote, ‘fucked with him too much.’”
Sanchez denied ever meeting with or talking to Butterfield.
Defendant testified on his own behalf. He had been in custody since July 21, 2003. On May 11, 2004, he was moved from state prison to the Los Angeles County Jail. Regarding the list taken from his jail cell, defendant explained that while acting as his own attorney, he had composed it as a list of potential witnesses on the gang allegation. As to the gang-related photographs recovered from his mother’s residence, they were all contained in a box of his own personal materials that was sealed and sent there from prison. Defendant was acquainted with Miranda, but had no relationship with his wife, Butterfield. She never visited defendant.
Defendant admitted meeting Sutton on a custody bus. Sutton approached defendant, telling him he knew about defendant’s “case and what had transpired,” including aspects that “no one else could know.” Sutton agreed to speak to defendant’s investigator concerning his knowledge of the incident. Defendant asked Sanchez to interview Sutton, but he never requested that Butterfield speak to anyone in custody. Defendant did not request that anyone visit Sutton.
Davalos was a friend of Tristan. Defendant had seen Davalos visiting at the jail. On the occasion when Tristan and Butterfield were together in the jail visiting room, Butterfield was not there to visit defendant. She was there to visit Miranda. It was the deputies who assigned the places where the inmates sat. They happened to place defendant and Miranda next to each other. The gold necklace was passed from Butterfield to Tristan because defendant bought it from Miranda.
With regard to the occasion in which Neria and defendant were together in the attorney visiting room, defendant did not know Neria and did not know he would be there. Defendant made no effort to stare or look at Neria.
Defendant never discussed his case with Scott. Defendant had no Mexican Mafia tattoos.
On cross-examination, defendant denied being a member of the Mexican Mafia; he has been a San Fer member “all his life.” Defendant owned a Cadillac at the time of the Mendoza shooting. Defendant knew of another person named Michael from the San Fer gang, who was called Little Mosca and could have been the person addressed in a kite as “M San Fer”—although Little Mosca was not an inmate at the time. Defendant admitted paying Sanchez privately “for other services” after Sanchez had been appointed and was being paid by the court.
Rebuttal Case
Officer Lium had a telephone conversation with Sanchez on July 19, 2005. Sanchez denied receiving any compensation on behalf of defendant in addition to the compensation from the court.
DISCUSSION
Conspiracy Instruction
People v. Iniguez (2002) 96 Cal.App.4th 75 (Iniguez) held that a guilty plea to conspiracy to commit attempted murder must be set aside because there was no such crime under California law: “[T]he targeted crime of the conspiracy, attempted murder, requires a specific intent to actually commit the murder, while the agreement underlying the conspiracy pleaded to contemplated no more than an ineffectual act. No one can simultaneously intend to do and not do the same act, here the actual commission of a murder. This inconsistency in required mental states makes the purported conspiracy to commit attempted murder a legal falsehood.” (Id. at p. 77.)
Defendant contends that because the jury was instructed on an improper theory of conspiracy, as well as on valid theories of direct liability and aiding and abetting, his attempted murder conviction must be reversed. While we agree with the Iniguez decision that the crime of conspiracy to commit attempted murder does not exist under the laws of this state, we find any instructional error in this case harmless, regardless of the standard of review. The record demonstrates the attempted murder was not prosecuted under a conspiracy theory, and the jury found the attempted murder was willful, deliberate, and premeditated—mental state findings incompatible with a determination that defendant intended to kill Mendoza, while also conspiring to do an act that would not kill him. As we explain, there is no substantial likelihood the jury applied the conspiracy instruction either to convict defendant of the nonexistent crime or to lessen the prosecution’s burden of proving every element of attempted murder.
Count 1 of the amended information charged defendant with the attempted willful, deliberate, and premeditated attempted murder of Mendoza, and further alleged defendant personally and intentionally discharged the firearm to cause Mendoza’s great bodily injury. There was no conspiracy allegation pursuant to section 182, subdivision (a)(1). (Cf. Iniguez, supra, 96 Cal.App.4th at pp. 77-78.) The jury found defendant guilty of attempted murder, specially finding he committed the attempted murder willfully, deliberately, and with premeditation—but rejecting the firearm use allegations.
The jury had been accurately instructed as to the elements of attempted murder under sections 664 and 187: “Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (E.g., People v. Lee (2003) 31 Cal.4th 613, 623; see CALJIC No. 8.66 [“In order to prove attempted murder, each of the following elements must be proved; [¶] 1. A direct but ineffectual act was done by one person towards killing another human being; and [¶] 2. The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being.”].) The jury was also instructed that attempted murder was a specific intent crime, and it must determine whether the murder attempted was “willful, deliberate, and premeditated.”
Regarding aiding and abetting liability, the jury was correctly instructed pursuant to CALJIC No. 3.00, that each principal involved in the crime’s commission was equally guilty: Principals include “[t]hose who directly and actively commit the act constituting the crime, or [¶] . . . [t]hose who aid and abet the commission of the crime.” (See § 31; People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.) Neither a defendant’s mere presence at the crime scene, nor the mere knowledge that a crime is being committed and failure to prevent it, would suffice to establish liability as an aider and abettor. Rather, a person aids and abets the charged crime “when he or she: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the crime.” (CALJIC No. 3.01.) Finally, with regard to conspiracy, the jury was instructed among other things that it must find “an agreement between two or more persons with the specific intent to agree to commit the crime[] charged in Count 1 (attempted murder) . . ., and with the further specific intent to commit that crime . . . .” (CALJIC No. 6.10.5.) In addition to the agreement and specific intent elements, the jury was required to find an “overt act.” (Ibid.)
The conspiracy instruction listed each of the offenses alleged in the amended information.
Neither party mentioned conspiracy as a potential theory of liability for the attempted murder. The prosecutor argued that defendant was directly liable as the shooter. However, the prosecutor argued aiding and abetting as a viable alternative: “[E]ven if you find . . . that Mr. Neria may have actually been the shooter, [defendant] I think you will find, is still guilty of all of these crime on an aiding and abetting theory . . . .” In reference to Neria’s admission to the investigating officers that he was present during the shooting, the prosecutor argued: “[Neria] doesn’t want to admit to being the shooter, and it is up to you to decide whether he is or is not the actual person with the gun. However, I think you will find that he did not act alone, [and] he did not have the motive. [Defendant] has the motive, and [defendant] was behind everything else that happened subsequently with Davalos, with Butterfield, with Sutton, with Sanchez, and with Mendoza . . . .” In her final closing argument, the prosecutor disputed the argument that defendant was innocent if he did not shoot Mendoza: “Not so . . ., he was with Joe Neria. If [defendant] gave him the gun, if he confronted him and he is not guilty of the personal use of the gun[,] but he is still guilty as an aider and abettor, he is still guilty . . . .”
In her opening statement, the prosecutor referred to evidence of a conspiracy in the context of the obstruction of justice counts. The same is true for the prosecution’s closing argument.
Initially, in assessing defendant’s instructional error contention, we distinguish the Iniguez decision. The procedural posture of that case differed critically from defendant’s in that Iniguez entered a guilty plea to “conspiracy to commit attempted murder,” a nonexistent crime under California law. In contrast, defendant’s jury found him guilty of an offense long recognized under the laws of this state—attempted murder. Because defendant was not convicted of a nonexistent crime, defendant argues his attempted murder conviction must be reversed because of the possibility that the jury, having been instructed with conspiracy in conjunction with attempted murder, applied a legally inadequate theory to convict him of a nonexistent crime.
In Iniquez, the defendant’s appeal raised only a claim of sentencing error. In response, the Attorney General argued the sentence must be reversed because the defendant entered a plea to a nonexistent crime. (Iniguez, supra, 96 Cal.App.4th at p. 77.)
Defendant analogizes the instructional error in his case to that condemned in the line of cases typified by Yates v. United States (1957) 354 U.S. 298, 312 (Yates)—that a general verdict must be set aside where it is legally supportable on one ground, but either unconstitutional or contrary to law on another ground, and it is impossible to tell which ground the jury selected. (See also Sandstrom v. Montana (1979) 442 U.S. 510, 526 [when a case is submitted to the jury on alternative theories, the unconstitutionality of any of the theories requires the conviction be set aside].) However, in Griffin v. United States (1991) 502 U.S. 46, 51-60 (Griffin), the Supreme Court recognized the distinction between situations in which the general verdict may have rested on a legally inadequate ground (generally requiring reversal) and those in which one of the possible bases of conviction was supported by inadequate evidence, in which case guarantees of due process and fair trial rights under the Fifth Amendment do not apply. Our Supreme Court has made this same distinction: “If the inadequacy of proof is purely factual . . . reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. But if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute, as in [People v. Green (1980) 27 Cal.3d 1], the Green rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton), fn. omitted.)
We highlight the rationale for these alternative approaches to appellate review because of the peculiar nature of the instructional error in this case: “When one of the theories presented to a jury is legally inadequate, such as a theory which ‘“fails to come within the statutory definition of the crime”’ ([Guiton], supra, 4 Cal.4th at p. 1128, quoting [Griffin, supra, ] 502 U.S. [at p.] 59), the jury cannot reasonably be expected to divine its legal inadequacy. The jury may render a verdict on the basis of the legally invalid theory without realizing that, as a matter of law, its factual findings are insufficient to constitute the charged crime. In such circumstances, reversal generally is required unless ‘it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.’ (Guiton, [supra, ] at p. 1130.)” (People v. Perez (2005) 35 Cal.4th 1219, 1233.)
Thus, in every case that applied the more stringent standard of review, the legal error would not have been apparent to the jury. (See, e.g., Yates, supra, 354 U.S. at pp. 311-312 [one of the conspiracy objectives was legally insufficient because it ran afoul of the statute of limitations]; People v. Zacarias (2007) 157 Cal.App.4th 652, 657, 660-661 [jury instructed on improper theory of conspiracy to commit a federal crime]; Lara v. Ryan (9th Cir. 2006) 455 F.3d 1080, 1082 [jury instructed on proper theory of express malice, along with improper theory of implied malice, for attempted murder].) The situation is different here. Conspiracy to commit attempted murder is “a conclusive legal falsehood” because it is logically incoherent, requiring the jury to find the legally recognized mental state of a specific intent to kill, but coupled with an agreement that contemplates “no more than an ineffectual act” to that end. (Iniguez, supra, 96 Cal.App.4th at p. 79.) As the Iniguez court concludes: “No one can simultaneously intend to do and not do the same act, here the actual commission of a murder.” (Ibid.) Appreciation and application of this fundamental logical principle is not the special province of jurists or logicians. Rather, the rule of non-contradiction is basic to the commonsense reasoning we attribute to laypeople.
Defendant therefore errs in asserting we must wholly eliminate the possibility that the jury convicted defendant as a coconspirator, rather than as an aider and abettor. It is essential to remember that a conviction for conspiring to murder Mendoza would have been perfectly valid and would have entailed no fundamental logical inconsistency. “‘A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act “by one or more of the parties to such agreement” in furtherance of the conspiracy.’ [Citations.]” (People v. Jurado (2006) 38 Cal.4th 72, 120; see also People v. Russo (2001) 25 Cal.4th 1124, 1131; see People v. Petznick (2003) 114 Cal.App.4th 663, 680-681 [“for defendant to be guilty of the crime of conspiring to commit murder, he had to have been one of the participants who harbored the specific intent to kill”].) Accordingly, the proper question is whether there was a substantial likelihood that the jury convicted defendant of a nonexistent crime by finding he simultaneously intended to murder Mendoza, while agreeing to a course of conduct designed to insure Mendoza’s survival.
Nothing in the record provides a basis for believing the jury reached such a nonsensical verdict. First, regardless of the theory chosen, the jury’s attempted murder verdict was necessarily predicated on a finding that defendant had the specific intent to kill Mendoza, and that finding would have been logically inconsistent with a determination that defendant entered into a conspiracy that also contemplated that the actions to be taken to kill Mendoza would fail to do so. We are confident the jury would have spotted the logical flaw in such a chain of reasoning. Indeed, the jury’s special finding of premeditation tends to eliminate any serious doubt on this point, as it would have focused the jurors on the logical fallacy inherent in the erroneous conspiracy instruction. In order to make that special finding, the jury would have had to apply CALJIC No. 8.67, which provided in relevant part: “If you find that the attempted murder was preceded and accompanied by a clear, deliberate intent to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is attempt to commit willful, deliberate, and premeditated murder.”
The Ninth Circuit Court of Appeal’s decision in Lara v. Ryan, supra, 455 F.3d 1080 is instructive. There, the jury had been instructed on an incorrect implied-malice theory, along with the correct theory of express malice. Despite the fact the parties argued the improper theory to the jury, the federal appellate court found to an “absolute certainty” that the jury based its conviction on the legitimate theory because the jury’s special finding that the attempted murder was willful, deliberate, and premeditated was logically inconsistent with a finding of the mental state required under an implied malice theory—recklessness. (Id. at p. 1087 [“[L]ogically, the jury could not have found that Lara attempted murder willfully, deliberately and with premeditation and that he attempted murder with implied malice. The two are inconsistent.”].)
We note the record provides yet another strong indication the jury’s verdict was premised on a legally adequate theory. During deliberations, the jury submitted a question seeking clarification of the instructions bearing on conspiracy liability: “Is every member of a conspiracy equally liable for a crime committed by a coconspirator for purposes in furtherance of the object of the conspiracy, even without their knowledge of or an active part in the actual crime?” Had the jury attempted to assess liability for attempted murder under that theory, one would certainly expect a question concerning the logical contradiction in reconciling an intent to kill with an agreement to engage in conduct designed to insure the victim’s survival. Given that conspiracy had only been mentioned in the context of the obstruction of justice charges, the clear inference is the jury was considering those offenses when it asked the question.
In sum, as the record establishes no reasonable probability that the jury found defendant guilty on an improper theory, the instructional error was harmless. (People v. Perez, supra, 35 Cal.4th at p. 1233.)
Firearm Possession Conviction
Defendant contends his conviction for being a felon in possession of a firearm (count 2) cannot stand because the verdict was fatally inconsistent with the jury’s rejection of the personal firearm use allegations. According to defendant, on the facts presented to the jury, if he did not personally use the firearm to shoot Mendoza, he could not have possessed it either. We disagree because his argument is contrary to the applicable law and the facts adduced at trial.
Inconsistent verdicts are permissible. Section 954 provides: “An acquittal of one or more counts shall not be deemed an acquittal of any other count.” Further, “a verdict of conviction on one count which appears inconsistent with a verdict of acquittal on another count ‘. . . shall afford no basis for a reversal where the evidence is sufficient to support the conclusion that the defendant is guilty of the offense of which he stands convicted.’ [Citation.]” (People v. Hamilton (1978) 80 Cal.App.3d 124, 130.) Verdict inconsistency may be the result of a jury compromise or grant of lenity to the defendant, and the defendant is sufficiently protected from jury irrationality or error by appellate review of the sufficiency of the evidence supporting the conviction. (People v. Lewis (2001) 25 Cal.4th 610, 656 [“An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict”]; People v. Palmer (2001) 24 Cal.4th 856, 863; People v. Pahl (1991) 226 Cal.App.3d 1651, 1656.)
Relying on People v. Hamilton, supra, 80 Cal.App.3d 124, defendant contends there is a limited judicial exception to the rule that an acquittal of one crime shall not be deemed an acquittal of another crime when all the essential elements of the crime the defendant was acquitted of are identical to the essential elements of the crime to which the defendant was convicted. Such an exception existed in the past, limited in application to conspiracy cases. (People v. Pahl, supra, 226 Cal.App.3d at pp. 1657-1659.) However, our Supreme Court has now rejected a rule that verdicts must be consistent. (People v. Lewis, supra, 25 Cal.4th at p. 656; People v. Palmer, supra, 24 Cal.4th at pp. 864-865.)
In any event, there was no inconsistency in the verdict. The possession necessary to support a conviction under section 12021 “may be either actual or constructive as long [as] it is intentional.” (People v. Spirlin (2000) 81 Cal.App.4th 119, 130.) A person “has constructive possession when the weapon, while not in his actual possession, is nonetheless under his dominion and control, either directly or through others.” (People v. Pena (1999) 74 Cal.App.4th 1078, 1083-1084.) It is not necessary to prove exclusive possession of the prohibited item. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) Dominion and control may be shown by circumstantial evidence and any reasonable inferences drawn from that evidence. (People v. Williams (1971) 5 Cal.3d 211, 215; People v. Neese (1969) 272 Cal.App.2d 235, 245-246.) Assuming the jury believed Neria or a third person performed the shooting, it would have been reasonable to infer from the circumstantial evidence that defendant provided the firearm to the shooter or ordered the shooting, thereby exercising dominion and control over the weapon.
Participation in Criminal Street Gang Verdict
Defendant contends the trial court effectively directed a prosecution verdict on the substantive crime of engaging in illegal gang-related activity along with the special gang allegations (§ 186.22) through its limiting instructions on how to consider evidence of predicate criminal acts by Mexican Mafia members other than defendant. Review of the record uncovers nothing suggestive of a directed verdict. Because defendant’s claim rests on an unreasonable interpretation of a wholly benign limiting instruction, it fails on its merits.
During the direct examination of prosecution gang expert Agent Evanilla, as the prosecutor began to adduce documentary evidence of predicate criminal acts committed by Mexican Mafia members, the trial court gave a sua sponte limiting instruction to the jury: “[A]s I will instruct you, there is a specific and rather technical definition of criminal street gangs under the law of California. And one component of that is proof of specific criminal acts that have been conducted on behalf of the criminal street gang. I believe these documents that are now being marked and are going to be discussed go to that element of proof that is required to show that an organization is a criminal street gang under the law. [¶] The fact that there are other cases mentioned here, the fact that there are other individuals who are mentioned here, have nothing to do with this defendant, Mr. Torres, and it’s not offered to prove or even suggest that he was personally involved in these other cases. This is just proof that is required to establish the technical elements of what kind of organization qualifies as a criminal street gang under the laws of the state.” There was no objection to this instruction.
Read in context, the trial court’s direction was obvious and unambiguous—and intended to protect defendant from prejudicial inferences: The evidence that other persons from the gang had committed criminal acts was not to be attributed to defendant. Rather, the evidence was to be considered solely as to whether the prosecution proved that the Mexican Mafia was a “criminal street gang” under California law. The court made it clear that it would later instruct the jury on the specific elements of proof required to make such a finding.
On appeal, defendant asserts the trial court’s use of the words “proof” and “required” somehow combined to convey the understanding that the evidence to be offered would conclusively prove the Mexican Mafia was a criminal street gang for purposes of section 186.22. There is no likelihood the jury would have adopted such a strained, unreasonable interpretation. Not only was the gravamen of the court’s limiting instruction readily understandable and helpful to defendant, but defendant’s proffered interpretation would have made little sense either when it was given or when the jurors undertook their deliberations. Had the court meant to instruct that an element had been conclusively established, there would be no sense in going through the exercise of presenting the proof. Moreover, the court thoroughly and accurately instructed the jury on the elements of a criminal street gang finding without indicating that any element had already been established. In contrast, with regard to the felon in possession of a firearm count, the court instructed the jury that one of the elements had been established.
Contrary to defendant’s assertion, the challenged instruction bears no material similarity to the one found unconstitutional in People v. Figueroa (1986) 41 Cal.3d 714. As our Supreme Court recently explained, in Figueroa, “the trial court instructed the jury on all the elements of the charged securities law violation, including the requirement that the item at issue actually be a security. Then the court instructed the jury that the item was a security, thereby improperly removing that element from the jury’s consideration.” (People v. Prince (2007) 40 Cal.4th 1179, 1269-1270.) Here, the trial court did nothing to imply that an element of the section 186.22 gang offense and allegations had been removed from the jury’s consideration. Accordingly, there was no constitutional error requiring review under Chapman v. California (1967) 386 U.S. 18, 24, much less review for “structural error” as defendant asserts. (People v. Prince, supra, 40 Cal.4th at pp. 1269-1270.) In any event, as the jury had no reason to interpret the court’s limiting instruction as a directed verdict, the jury was accurately instructed as to the elements and corresponding burden of proof as to the gang offense and allegations under section 186.22, and the evidence of the Mexican Mafia’s qualifying as a criminal street gang was very strong, any error would have been harmless under Chapman’s harmless beyond a reasonable doubt standard.
Admission of Salazar’s Statements to Police
Defendant contends the trial court abused its discretion in relying on the hearsay rule’s prior inconsistent statements exception to admit statements Salazar made in a recorded police interview. As the court’s ruling was reasonable and nonprejudicial, we reject the contention.
At trial, when asked about the immediate circumstances of the Mendoza shooting, Salazar testified she awoke to hear someone ask Ghost a question and saw Mendoza go to the door. She heard a confrontation with Mendoza and a gunshot. Mendoza said, “These motherfuckers just shot me.” One of the voices she heard at the door was that of Neria. When questioned as to details of the shooting she had previously recounted, Salazar testified that she could not remember them, but her memory would have been better when she was interviewed by the police after the incident. When the prosecutor moved to admit her recorded statement to the police, defendant objected on “improper impeachment” grounds, arguing the prior statements were not contradictory. The trial court overruled the objection, finding the pretrial statements admissible as prior inconsistent statements. In the statement, Salazar recounted additional details of the shooting, including that she saw Ghost answer the door with the gun in his hand. The person at the door asked Ghost to identify himself. Ghost said, “I’m G.” The person at the door asked for Diablo, and Ghost told him to wait while he called Mendoza. When Mendoza went to the door, the person asked whether Mendoza was “a carnal.” Mendoza replied, “Yeah” and began to pull up his shirt, at which point he was shot.
“Evidence Code section 1235 provides: ‘Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with section 770.’ Evidence Code section 770, in turn, provides: ‘Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.’” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 78, fn. 22.)
“A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Ledesma (2006) 39 Cal.4th 641, 705.) “Evidence Code sections 770 and 1235 except from the general rule against hearsay evidence a witness’s prior statement that is inconsistent with the witness’s testimony in the present hearing, provided the witness is given the opportunity to explain or deny the statement. (Evid. Code, § 770, subd. (a).) ‘Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness’s prior statement describing the event.’ (People v. Johnson (1992) 3 Cal.4th 1183, 1219.) When, however, ‘a witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is implied.’ (Ibid.)” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 78, fn. omitted.)
Defendant argues the trial court abused its discretion because there was no evidentiary basis for finding deliberate evasiveness on the part of Salazar. We disagree. By the time Salazar testified as to her lack of memory, she would have heard about defendant’s supposed status as a Mexican Mafia “shot-caller,” who had the power and motivation to have her punished for giving unfavorable testimony. “The trial court had the opportunity to view [Salazar’s] demeanor and therefore was in the best position to assess the credibility of her claimed nonrecollection.” (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 78.) We find no error. (See ibid.) Nor do we find prejudice. Defendant is correct that in the recorded statement, Salazar mentioned the additional fact that she heard someone ask whether Mendoza was a “carnal”—a fact that tended to undercut defendant’s defense theory that Neria shot Mendoza pursuant to a personal grudge unrelated to gang concerns. However, as the Attorney General points out, that same testimony was adduced from Neria and through a prior statement by Mendoza. Mendoza’s cumulative testimony was harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836, which asks whether it is reasonably probable defendant would have achieved a more favorable result if the court had not admitted the challenged evidence.
Agent Evanilla’s Expert Testimony
Defendant contends the trial court abused its discretion and violated defendant’s constitutional rights to due process and a fair trial by admitting testimony from the prosecution’s gang expert, Agent Evanilla, in which the expert impermissibly opined as to a matter outside the scope authorized by Evidence Code sections 720 and 801. According to defendant, Agent Evanilla opined as to Mendoza’s subjective mental state—specifically, the victim’s reasons for belatedly identifying Neria as the shooter. This contention fails because our review of the record shows the expert did not purport to testify as to Mendoza’s subjective mindset, but rather as to his opinion of whether Mendoza’s course of conduct would have benefitted the Mexican Mafia. The latter testimony, offered in the context of a hypothetical set of facts premised on the prosecution case, was well within the province of a legitimate expert opinion under California law.
The applicable standards concerning the legitimate scope of a gang expert’s testimony are well settled. Such testimony may properly be admitted to prove motive and intent. (See People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) Expert testimony has repeatedly been offered to prove the “motivation for a particular crime, generally retaliation or intimidation” and “whether and how a crime was committed to benefit or promote a gang.” (People v. Killebrew (2002) 103 Cal.App.4th 644, 657.) An expert may testify about whether a defendant acted for the benefit of a gang, even though the question is an ultimate factual issue in the case, when these matters are beyond the jury’s common experience. (People v. Valdez (1997) 58 Cal.App.4th 494, 507-509.)
Here, in the challenged aspects of the gang expert’s testimony, Agent Evanilla was asked to opine on whether it would “benefit the Mexican Mafia” (1) for a shooting victim who had not previously identified the shooter to maintain his silence until a few days before the preliminary hearing, at which time the victim would offer testimony that “a different person” was the shooter, and (2) for that victim to be seen months after the shooting in the same neighborhood as the incident, holding himself out as a Mexican Mafia member and exacting taxes for the gang. The expert testified that such actions would benefit the gang because they would impair the law enforcement’s investigation of the shooting, and because the victim would be paying off the debt he originally owed to the gang.
Such testimony falls within the general rule that testimony concerning the culture and habits of criminal street gangs meets the criteria for the admission of expert testimony because such evidence is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (People v. Gardeley (1996) 14 Cal.4th 605, 617; In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.).) “It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. [Citation.]” (Frank S., supra, at p. 1196.) Again, valid subjects of gang expertise include motivation for a particular crime and whether a crime was committed to benefit or promote a gang. (People v. Killebrew, supra, 103 Cal.App.4th at p. 657.) Here, of course, not only was there a contested issue as to whether the Mendoza shooting was gang-related, but defendant had been charged with obstructing justice through post-arrest efforts to intimidate witnesses.
This was not a case in which the expert exceeded the proper bounds of gang testimony by opining as to the victim’s subjective knowledge and motivations. For instance, in Frank S., the gang expert improperly opined as to the minor’s intent regarding knife possession without any supporting evidence of gang motive. (Frank S., supra, 141 Cal.App.4th at p. 1199.) “The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense.” (Ibid.) As the record makes plain, Agent Evanilla’s opinion was based on his knowledge of how the Mexican Mafia conducted its criminal affairs. (See People v. Killebrew, supra, 103 Cal.App.4th at pp. 657-658; People v. Ferraez (2003) 112 Cal.App .4th 925, 930-931 [gang expert’s testimony properly admitted to explain how the gang’s reputation was enhanced through drug sales].) To the extent the expert’s opinion implicated Mendoza’s motivations, the expert did so only tangentially and within the context of explaining how Mendoza’s conduct would have been understood by the Mexican Mafia. Accordingly, there was no abuse of discretion in admitting the evidence and no substantial likelihood of prejudice.
Having concluded the gang evidence was admissible and nonprejudicial, defendant’s derivative constitutional claims must fail. (E.g., People v. Ayala (2000) 23 Cal .4th 225, 253 (Ayala) [“There was no violation of state law, and because defendant’s constitutional claims are predicated on his assertion that state law was violated, they too must fail.”].)
Mendoza’s Invocation of the Privilege Against Self-ncrimination
Defendant contends trial counsel rendered constitutionally ineffective assistance by failing to request a limiting instruction to proscribe the jury from drawing a negative inference from Mendoza’s invocation of the privilege against self-incrimination in refusing to answer questions from the defense during cross-examination. As we explain, the claim fails because defendant cannot rule out the possibility of a legitimate tactical basis for counsel’s conduct and, in any event, there is no reasonable likelihood the giving of such a limiting instruction would have affected the verdict.
“To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’ shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694 (Strickland).) “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Cunningham, supra, at p. 1003.)
“The Sixth Amendment guarantees competent representation by counsel for criminal defendants[, and reviewing courts] presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions.” (People v. Holt (1997) 15 Cal.4th 619, 703.) “A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. ‘If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ [Citations.]” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
This issue arose in the context of Mendoza’s cross-examination. In a conference outside the jury’s presence and before the prosecution began its direct examination, Mendoza’s appointed counsel represented that Mendoza would invoke his Fifth Amendment right to remain silent if asked about an pre-shooting incident in which he stabbed Neria (according to an admission to Sanchez). The trial court therefore proscribed any questioning on that subject. Later, the parties informed the court that the defense wanted to question Mendoza concerning a fistfight with Neria, apart from the stabbing incident, which he had testified about at the preliminary hearing. The prosecutor did not object. Mendoza’s counsel said he would invoke his right to remain silent. The court ruled that it would allow the questioning and allow Mendoza to consider whether to invoke his right on a question by question basis.
During direct examination, Mendoza adverted to fighting Neria because he had taken Mendoza’s car. On cross-examination, the defense questioned Mendoza in detail concerning the car theft and why it caused him to dislike Neria. When asked about an ensuing confrontation with Neria and whether it became “physical,” Mendoza invoked his right to silence. Mendoza did the same when asked whether he “ever told anybody that” he “beat the crap out of [Neria]?” However, Mendoza admitted that he so testified at the preliminary hearing. The witness repeatedly refused to answer questions concerning whether, just before the shooting, he was taking his shirt off to fight Neria. Nevertheless, Mendoza admitted testifying at the preliminary hearing that Neria appeared angry with Mendoza immediately before he fired the gun. Outside the jury’s presence, the trial court ruled Mendoza had no legitimate basis for refusing to answer questions bearing on the fistfight with Neria because there was no realistic probability he would be prosecuted as a result of any such admissions. Accordingly, when subsequently questioned, Mendoza admitted that he and Neria had a fistfight the day before the shooting. On the evening of the shooting, when Mendoza saw Neria at the apartment door, Neria appeared angry and Mendoza assumed they would fight again. Before that happened, however, Neria shot him.
Defendant’s argument fails under Strickland’s performance prong because the appellate record does not show why counsel failed to object and “does not eliminate the possibility that counsel’s omission was tactical.” (People v. Montiel (1993) 5 Cal.4th 877, 914.) Contrary to defendant’s assertion, Mendoza’s invocation of the Fifth Amendment in refusing to answer questions concerning a fight with Neria would not necessarily have undercut defendant’s defense. It would have been reasonable for the jury to infer that Mendoza was reticent to admit the fight because he feared being prosecuted for it, which would support the further inference that the fight actually occurred—thereby bolstering the credibility of the defense. Accordingly, applying the requisite deference to trial counsel, we cannot fault him for not requesting the standard instruction that the jury “must not draw from the exercise of [the constitutional privilege against self-incrimination] any inference as to the believability of the witness.” (CALJIC No. 2.25.)
Moreover, any deficient performance in this regard would have been nonprejudicial. As the Attorney General explains, there were significant credibility problems affecting Mendoza entirely independent of his initial refusals to testify about the confrontation with Neria. Not only was Mendoza a gang member, drug dealer, and convicted criminal, but he had originally told the police that he was too intoxicated to identify the shooter. His later identification of Neria, along with his testimony as to their mutual antipathy, would have struck any reasonable juror as having been contrived. On this record, there is no reasonable probability defendant would have obtained a more favorable result absent counsel’s alleged shortcomings. (See People v. Cunningham, supra, 25 Cal.4th at p. 1003, citing Strickland, supra, 466 U.S. at pp. 687-694.)
Jury Instructions on Evidence Fabrication and Suppression
Defendant argues the trial court prejudicially erred by failing to limit the application of the pattern instructions on evidence fabrication and suppression (CALJIC Nos. 2.04, 2.05, and 2.06) so they would not apply to the substantive offenses involving obstruction of justice (counts 5-7). According to defendant, application of those instructions to the obstruction of justice counts effectively lowered the prosecution’s burden of proving the elements of those offenses. His argument fails because the instruction properly applied to the other offenses, and defendant forfeited the claim by failing to request a special limiting instruction. Moreover, there was no error and no prejudice because there was no reasonable likelihood the jury would have applied the challenged instructions to the obstruction of justice counts—and, even if it did, the instructions did not eliminate or reduce the prosecution’s burden of proof.
Without objection and with no request for a limiting instruction, the trial court instructed: “If you find that the defendant attempted to or did persuade a witness to testify falsely or did fabricate evidence to be produced at the trial, that conduct may be considered by you as a circumstance tending to show a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide.” Similar instructions were given as to efforts to procure false or fabricated evidence to be produced at trial and the attempt to suppress evidence against defendant through witness intimidation. Defendant concedes the instructions were applicable to the attempted murder charge. Accordingly, defendant failed to preserve the claim concerning a special limiting instruction because he did not raise the issue below. (See People v. Bolin (1998) 18 Cal.4th 297, 328 [finding forfeiture where “[t]he instruction correctly states the law, and defendant did not request clarification or amplification” at trial]; People v. Ledesma, supra, 39 Cal.4th at p. 697 [“defendant has forfeited any claim that the trial court’s comments were erroneous, because he did not request an instruction that [the expert’s] testimony could be considered only for the limited purpose of evaluating the basis of the experts’ opinions”].)
Alternatively, reviewing the claim as one affecting defendant’s “substantial rights” under section 1259, there was no error. As defendant points out, People v. Jackson (1996) 13 Cal.4th 1164, 1225 endorsed the interpretation that the challenged instructions apply only in ““situations where a defendant attempts to induce a witness to lie for him in a judicial proceeding or otherwise tries to fabricate evidence when a trial or prosecution is pending.’” We agree. The instructions cannot be reasonably interpreted otherwise. Accordingly, even without a limiting instruction, it would have been unreasonable for the jury to apply the instructions in determining whether defendant committed offenses he had no reason to believe had been, or were likely to be, charged against him at the time he engaged in the acts of obstruction. It would have been obvious that the challenged instructions applied to defendant’s conduct in trying to avoid conviction for the attempted murder and authorized an inference of consciousness of guilt as to his guilt for that offense. Certainly, no one argued otherwise.
Nor is there any reason to think the jury would have applied CALJIC Nos. 2.04 through 2.06 to avoid determining all the elements of the obstruction of justice counts beyond a reasonable doubt. By their unambiguous terms, those instructions were entirely permissive both as to a finding of evidence suppression/fabrication and as to drawing an inference of consciousness of guilt. Further, consciousness of guilt is not an element of the obstruction counts, and each challenged instruction made it clear that such a finding was not only insufficient by itself to prove guilt, but that its weight and significance—if any—were for the jurors to decide. As our Supreme Court has pointed out, these “instructions made clear to the jury that certain types of deceptive or evasive behavior on a defendant’s part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendant’s guilt, and allowing the jury to determine the weight and significance assigned to such behavior. The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.] We therefore conclude that these consciousness-of-guilt instructions did not improperly endorse the prosecution’s theory or lessen its burden of proof.” (People v. Jackson, supra, 13 Cal.4th at p. 1224.) Accordingly, given that the evidence of defendant’s guilt on the obstruction of justice counts was very strong, any instructional error was “harmless under any standard.” (Id. at p. 1225.)
Imposition of Consecutive Sentences
Defendant contends trial counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to correct the trial court’s apparent factual error in connection with its decision to impose consecutive sentences for the attempted murder and firearm possession convictions (counts 1 and 2).
After the jury verdicts, defendant discharged appointed trial counsel David Houchin and retained Vincent Oliver to represent him in connection with post-trial matters, including a new trial motion alleging ineffective assistance of trial counsel. At the hearing on November 9, 2007, the court took evidence, heard argument, and denied the new trial motion. The prosecution presented evidence in support of the prior convictions allegations, which the court found them to be true, including that defendant had suffered two “strikes” under the three strikes law.
The sentencing hearing followed. The trial court represented that it had reviewed the probation officer’s report and the prosecution’s sentencing memorandum. Defense counsel had filed no sentencing pleadings and made no argument. With regard to the firearm possession conviction, the court imposed a third-strike sentence of 25 years to life, plus an additional 3 years for the midterm gang enhancement (§ 186.22, subd. (b)(1)(A)). The court stated: “I will make this consecutive to the sentence in count 1. The defendant’s possession of the firearm was on the same day and basically the same occasion as the shooting of Mr. Mendoza. There was testimony that he was seen in possession of a firearm at the gathering point before everyone went to the apartment where Mr. Mendoza was shot, so that was a different operative fact. But in all events, I will exercise my discretion to sentence this consecutive.” Counsel did not attempt to correct the court or otherwise argue that consecutive sentencing was inappropriate.
As defendant points out, a defendant is generally entitled to effective assistance at sentencing, which can include counsel’s obligation to ensure “that the sentence is based on complete and accurate information.” (People v. Cropper (1979) 89 Cal.App.3d 716, 719.) Defendant is also correct that neither party can identify any testimony that defendant was seen in possession of a firearm prior to the shooting. Indeed, Neria repeatedly testified that he did not see defendant with a firearm before the shooting. Accordingly, defendant asserts trial counsel rendered constitutionally defective performance by failing to correct a factual misunderstanding that was crucial to the court’s discretionary sentencing choice as to the imposition of a consecutive, rather than a concurrent, sentence. As we explain, however, defendant fails to demonstrate prejudice under the Sixth Amendment because the record does not establish that the court’s sentencing choice was based on a mistaken view of the facts.
It is well settled that a reviewing court need not determine whether counsel’s performance was deficient before examining whether the defendant suffered prejudice as a result of alleged deficiencies: “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland, supra, 466 U.S. at p. 697.) Mere speculation does not meet the Sixth Amendment standard for demonstrating prejudice. (E.g., In re Clark (1993) 5 Cal.4th 750, 766.)
Read in context, the trial court’s belief that defendant had been previously seen in possession of the weapon informed its finding that the firearm possession was “a different operative fact” from the attempted murder. Such an analysis is the kind applicable to the determinations of whether multiple punishments were permissible under section 654 and whether consecutive sentencing was mandatory or discretionary. (See § 667, subd. (c)(6) [“If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count”].) Then, after finding section 654 did not apply and that consecutive sentencing was not mandatory, the court stated: “But in all events, I will exercise my discretion to sentence this consecutive.” Thus, it appears that for purposes of exercising its discretion, the court put aside the “operative act” consideration and based its discretionary determination on other considerations. The reasonableness of our reading of the record is bolstered by the fact that with regard to sentencing on each count, the court methodically discussed first whether section 654 proscribed multiple punishments and whether consecutive sentencing was mandatory, before explaining how it would independently exercise its discretion. We further note the court imposed consecutive sentences on all counts, save those stayed pursuant to section 654. In no instance did the court state a reason for imposing consecutive terms.
“In deciding whether to impose consecutive terms, the trial court may consider aggravating and mitigating factors, but there is no requirement that, in order to justify the imposition of consecutive terms, the court find that an aggravating circumstance exists. (See § 669; Cal. Rules of Court, rule 4.425(a), (b).) Factual findings are not required.” (People v. Black (2007) 41 Cal.4th 799, 822.) Here, the court stated that it had reviewed the probation officer’s report, which identified five circumstances in aggravation (planning indicative of premeditation, numerous adult prior convictions, a pattern of violent conduct indicative of a danger to society, being on parole at the time of defendant committed the underlying crime, and unsatisfactory performance on parole) and none in mitigation. As those legitimate considerations all but compelled the court’s exercise of discretion, and there is nothing in the record that argues for mitigation, we find no reasonable probability the court would have imposed a concurrent sentence if counsel had pointed out the court’s factual error. (See People v. Cunningham, supra, 25 Cal.4th at p. 1003, citing Strickland, supra, 466 U.S. at pp. 687-694.)
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.