PEOPLE v. PRUNTY

Appellant’s Petition for Review

Cal.April 26, 2013

- §210234 se SUPREME COURTNO. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiff and Respondent, ) Court of Appeal ) No. C071065 Vv ) ) ZACKERY PRUNTY, ) Super. Ct. No. ) 10F07981 Defendant and Petitioner. ) ) ) PETITION FOR REVIEW TO EXHAUST STATE REMEDIES Susan K. Shaler Professional Law Corporation State Bar No. 115762 991 Lomas Santa Fe Dr., Ste C, #112 Solana Beach, CA 92075 858.259.6737 Attorney for PetitionergypREME COURT Zackery Prunty - if ED APR 26 2413 Frank A. McGuire Clerk Deputy @LNYWHOVILVCeINMO9CYOMJONOILVUVTOdG VINHNAOVLLVOCCNOINIdOTVdddVAOLYNOD 67emeeemwweeewwweweeeeetweeweeteee eesNOISNTIONOO QLneeteeeeCALVIOLA HydMSSAOOUdANdOLSLHOMYLNAWGNAWV HINAYLTINOAAGNVHIAITGNVTHSNNOOOLLHOTA LNAWONYWYVHLXISS$YaNOLLLLAdTUOAHUFHLGNV “IN@LNIOLIOddSCVHWANOLLILAdUAHLAHMONIGIOAG NIGaasddISNOO44AVINOILVOIXOLNIAUVINNIOA IVHLNOILONULSNILSANOTAOLGATIVATASNNOD NHHMTHSNN09JOAONV.LSISSVSALLOSAAANIGHAISONN YHNOLLILAdASNVOUEGAMINOAYASI“AWRIOLNALNI OIIOddSVSIHOIKMUALHONWVISNVAAUVINNTOA CaLdNALLV‘TLNNOOJOTVSUAATYUAHLAHM EUs“DNVDLAEULSTVNIATYOVJOLISANAa AHLYOdSASNAAAOAHLGA.LLIAWOOMANOLLILAd HAOUdOLMVAOWALLVWVSVLNAIOIANSNISVM HONACIAYNOILNOSASOUdAHLASNVOUGASYAAAAG DSOOM.LUNVANOSINNOOOLSLINSWHONVHNGONVD LAaaLsSTVNIWTSOAHLOLSONIGNIASAULAHLWAHLAHM II I INANNDUYVY LeenaSLOVAdOLNAWALVLS ZeeeeeeteewweeeeteA SVOAHLJOINHWALVLS [PreteeneecteesSALLRIOHLNVAOTIGVL. SLINGAINODHOATEaV.L TABLE OF AUTHORITIES FEDERAL CASES Chapmanv. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] 20... ccccccte ete cnet nena 27 Estelle v. McGuire (1991) 502 U.S. 62 [112 8.Ct. 475, 116 L. Ed.2d 385]...eeceeee ene nen eee 20 Harris v. Wood (9"Cir. 1995) 64 F.3d 1432 0.0.2... cece 21 In re Winship (1970) 397 U.S. 358 [90 S.Ct. 1068, 25 L.Ed.2d 368] .... 20 Jackson v. Virginia (1979) 443 U.S. 307 [61 L.Ed.2d 560, 99 S.Ct. 2781] ooeeeeee tee eee nen ees 6 Kyles v. Whitley (1995) 514 U.S. 419 [115 S.Ct. 1555; 131 LEd.2d 490] 2.0.0...eceeete28 Lockhart v. Fretwell (1993) 506 U.S. 364 [122 L.Ed.2d 180, 113 S.Ct. 838] 00. eeee teen ees 21 Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674, 104 S.Ct. 2052] 2...ceee eee nen nes 21, 26 Sullivan v. Louisiana (1993) 508 U.S. 275 [113 S.Ct. 2078, 124 L.Ed.2d 182] 2.0... ceceeeeeee eens 6 United States v. Alferahin (9th Cir. 2006) 433 F.3d 1148 ............. 19 United States v. Span (9" Cir. 1996) 75 Fd. 3d 1383... ...- 222-00 ee. 26 Woodfordv. Visciotti (2002) 537 U.S. 19 [123 S.Ct. 357, 154 L.Ed.2d 279] 0...ccccee eee eee eee e tenes 27 STATE CASES College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704 ........ 27 il In re Alexander L. (2007) 149 CalL.App.4th 605 ................005. 11 In re Cordero (1988) 46 Cal.3d 161 2.0.0.0... ec e cee e 22 In re Daniel C. (2011) 195 Cal.App.4th 1350 ..................005- 16 Inre Frank S. (2006) 141 Cal.App.4th 1192 .......... 0.2.0... ceca 9 Inre Hardy (2007) 41 Cal.4th 977 oo.ccee ee 26, 28 In re Lower (1979) 100 Cal.App.3d 144 2.0.2.0... eee eee eee 21 In re Saunders (1970) 2 Cal.3d 1033 2.0...ocees26 People v. Bassett (1968) 69 Cal.2d 122 2.0... 0cccc cee 8 People vy. Reilly (1970) 3 Cal.3d 421 2.0... c cc cece 7 People v. Abilez (2007) 41 Cal.4th 472 2.0.0.0... cence 23 People v. Acuna (2010) 182 Cal.App.4th 866 ..............0.00.005. 11 People v. Albillar (2010) 51 Cal. 4th 47 2...ce cee eee 4 People v. Buffington (2007) 152 Cal.App.4th 446 ................05. 15 People v. Carpenter (1997) 15 Cal.4th 312, 2.0... 0.0.0... cc eee 15 People v. Castillo (1997) 16 Cal.4th 1109 .. 0.0.0... 0.0.0.0... 2.0008. 19 People v. Conner (1983) 34 Cal.3d 141 2.0.0...ccceee 7 People v. Flannel (1979) 25 Cal.3d 668 2.2.2.0... 2 ccc cc cee eee 22 People v. Frierson (1985) 39 Cal.3d 803 2.0.00... 0c cc eee eee eee 25 People v. Gardeley (1996) 14 Cal.4th 605 ................. 4,9, 12,15 People v. Green (1980) 27 Cal.3d doo...eeeeee eee 6 iil People v. Guizar (1986) 180 Cal.App.3d 487 ......-.-6 2c ee eee eee 21 People v. Howard (1987) 190 Cal.App.3d 41 ..........-- 0 eee ee eee 27 People v. Johnson (1980) 26 Cal.3d 557 2.0... 0 ceeee 6, 7 People v. Lewis (1990) 50 Cal.3d 262 .. 0... 6. cece eee eee eee eee 20 People v. Lucero (1988) 44 Cal.3d 1006 ......... cece eee eee eee ee 7 People v. Martinez (2004) 116 Cal.App.4th 753 .......---. eee eee eee 4 People v. Pope (1979) 23 Cal.3d 412 2.2... . 6c cee ee eee ee eee 21, 26 People v. Ramon (2009) 175 Cal.App.4th 843 ........-.-0. 0 e eee 16 People v. Saille (1991) 54 Cal.3d 1103 2.0.0.0... eee eee eee eee 19 People v. San Nicolas (2004) 34 Cal.4th 614 ..........-. see eee eee 19 People v. Sanchez (1950) 35 Cal.2d 522 20.0... cee ee eee 23 People v. Sengpadychith (2001) 26 Cal.4th 316 ............-.0---- 6, 7 People v. Thompson (1980) 27 Cal.3d 303 «0.2... 000 eee eee eee eee 7 People v. Vy (2004) 122 Cal.App.4th 1209 .........---. eee eee ees 12 People v. Watson (1956) 46 Cal.2d 818 2.0... 6 cee eee eee eee 27 People v. White (1980) 101 Cal.App.3d 161 .......-.....- 0. eee. 20 People v. Williams (2008) 167 Cal.App.4th 983 ........... 3, 5, 9, 12, 13 STATE STATUTES Article I, section 15 of the California Constitution .................. 20 Fifth Amendment to the United States Constitution ............ 6, 18, 20 iv Fourteenth Amendmentto the United States Constitution ....... 6, 18, 20 Penal Code section 22 1.0.0.0... ccc cece ee ee eee c ee nnees 18, 22 Penal Code section 186.22 ..... 0.2.0.0... cece eee eeee 3, 8,9, 11, 17 Sixth Amendmentto the United States Constitution .............. 18, 20 OTHER AUTHORITIES CALCRIM No. 1401 20...ccc cece ee eee ees 11 CALCRIM No.3426 22.0...ecteee tenes 23, 26 Gomez, It is Not So Simply Because An Expert Says It Is So: The Reliability ofGang Expert Testimony Regarding Membership in Criminal Street Gangs: Pushing the Limits ofTexas Rule ofEvidence 702 (2003) 34 St. Mary’s L.J.581, 605 2.00.cccce teen ees 14 SUPREME COURT NO. IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiff and Respondent, ) Court of Appeal No. C071065 Vv ZACKERY PRUNTY, Super. Ct. No. ) ) ) ) ) 10F07981 Defendantand Petitioner. ) ) ) PETITION OF APPELLANT FOR REVIEW TO EXHAUSTSTATE REMEDIES AFTER THE PUBLISHED DECISION BY THE COURT OF APPEAL FOR THE THIRD APPELLATE DISTRICT IN CASE NUMBER C€071065, AFFIRMING THE JUDGMENT OF THE SUPERIOR COURT OF SACRAMENTO COUNTY. TO THE HONORABLECHIEF JUSTICE AND THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Petitioner Zackery Prunty respectfully petitions this Court for review to exhaust his state remedies, pursuant to California Rules of Court, rule 8.508 regarding the unpublished decision of the Court of Appeal, Third Appellate District in Appeal No. C071065,affirming the judgmentofthe Sacramento County Superior Court in Superior Court Case No. 10F07981. The case presents no grounds for review under California Rules of Court, rule 8.500(b), and the petition is filed solely to exhaust state remedies for federal habeas corpus purposes. STATEMENT OF THE CASE Petitioner adopts the statement of the case set forth in the Court of Appeal opinion. (Attachment A, 3.) On March 26, 2013, the Court of Appeal affirmed the judgement of the superior court. (Attachment A.) STATEMENT OF FACTS Petitioner adopts the statementof facts set forth by the Court of Appeal. (Attachment A,2-3.) ARGUMENT I WHETHER THE TRUE FINDINGS TO THE CRIMINAL STREET GANG ENHANCEMENTSTO COUNTS ONE AND TWO MUSTBE REVERSED BECAUSE THE PROSECUTION EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO PROVE PETITIONER COMMITTED THE OFFENSES FOR THE BENEFIT OF A CRIMINAL STREET GANG. The prosecution presented evidence about seven different Nortefio subset gangs, but failed to present any evidence linking the subsets together with one another,or to the larger Nortefio gang. There was no substantial evidence showingthe subsetseither coordinated or collaborated with one another, or with the larger gang. There simply was no substantial evidence that the multiple gangs, about which the prosecution presented evidence, were connected to one another. Specifically, there was no substantial evidence of any “collaborative activities or collective organizational structure ... , so that the various groups reasonably can be viewedasparts ofthe same overall organization.” (People v. Williams (2008) 167 Cal.App.4th 983, 988.) Such a connection amongdifferent gangsis required by section 186.22, subdivision (b). Instead, the prosecution andits expert impermissibly conflated multiple gangs into one. Detroit Boulevard Nortefios (ICT 141 [petitioner’s gang]), Del Paso Heights Nortefios (RT 212 [predicate offense]), Vario Gardenland Nortefios (IRT 212 [predicate offense]), Varrio Centro Nortefios (IRT 214 [predicate offense], 250 [location of charged offenses]; 1RT 250 [location of charged offenses]), Varrio Franklin Boulevard Nortefios (1RT209 [Chacon’s gang]), Varrio Diamonds Nortefios (IRT 218 [another active crew]), and Southside Park Nortefios (IRT 250 [location of charged offenses]) all were condensed into a single gang: Nortefios. Petitioner does not dispute his affiliation with a criminalstreet gang. Whatpetitioner disputes is the notion that anything he does, even with another person whoalso happensto be affiliated with (someother, different) street gang, is for the benefit of one gang, or another, or both. Thus, respondent’s litany ofpetitioner’s gang affiliation does nothing to address whether the evidence wassufficient. That is because gang affiliation, even gang membership, is not a crime. (People v. Gardeley (1996) 14 Cal.4th 605, 623.) Neither is a defendant’s gangaffiliation and criminal history sufficient to prove the current offense is gang-related. (People v. Martinez (2004) 116 Cal.App.4th 753.) Further, “[n]ot every crime committed by gang membersis related to a gang.” (People v. Albillar (2010) 51 Cal. 4th 47, 60.) Thus, the fact that petitioner and Chacon each wasaffiliated with a gang, and they committed crimes together, also does not makesufficient evidence the crimes were committed for the benefit of a gang. The prosecution’s evidence contradicted the theory of collaboration among the subset gangs. The evidence showedthe subset Nortefio gangs wereoften in fierce rivalry with one another - - not working together for any common Nortefio purpose. For example, both Varrio Centro Nortefios and Southside Park Nortefios had competing claimsto the location ofthe charged offenses. (IRT 250.) One ofthe predicate crimes, used to establish a “pattern of criminal gang activity,” was an “in-house” (IRT 212) shooting homicide by Varrio Gardenland Nortefios against a Del Paso — Heights Nortefio gang member. (IRT 211-212.) Conflatingall the Nortefio subsets into a single gangis no different from conflating the Nortefio and Surefio gangs into one Hispanic gang. There was no substantial evidence these various subsets participated in collaborative efforts, or had any organization, structure or communication that linked the subsets. (People v. Williams, supra, 167 Cal.App.4th atp. 988.) Because ofthe expert’s reliance on different subset gangs to establish both the primary activities and the pattern of criminal gangactivity, the evidence wasinsufficient as a matter of law to prove the gang enhancement. Hence,the true findings to the gang enhancementsviolate due process and should have been reversed. (Jackson v. Virginia (1979) 443 U.S. 307, 313- 314 [61 L.Ed.2d 560, 99 S.Ct. 2781]; see also, Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278 [113 S.Ct. 2078, 124 L.Ed.2d 182]; People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) The due process clauses of the Fifth and Fourteenth Amendments safeguard petitioner from criminal liability “except upon evidencethatis sufficient fairly to support a conclusion that every element . . . has been established beyond a reasonable doubt.” (Jackson v. Virginia, supra, 443 U.S. at pp. 313-314.) This Court explained the inquiry is twofold: First, we must resolvethe issuein the light of the whole record-- i.e., the entire picture of the defendant put before the jury -- and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whetherthe evidence of each of the essential elements . . . is substantial; it is not enoughfor the respondent simply to point to ‘some’ evidence supporting the finding, for “Not every surface conflict of evidence remains substantial in the light of other facts.’” [Citations.] (People v. Johnson (1980) 26 Cal.3d 557, 576; in accord People v. Green (1980) 27 Cal.3d 1, 55.) Thus, a reviewing court “must review the whole record in the light most favorable to the judgment below to determine whetherit discloses substantial evidence -- that is, evidence whichis reasonable, credible, and of solid value -- such that a reasonabletrier offact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson, supra, 26 Cal.3d at p. 578.) The same standard applies to enhancementallegations. (People v. Sengpadychith, supra, 26 Cal.4th 316.) The quantum of evidence necessary to sustain a verdict must exceed that which raises a mere suspicion of guilt. However, “Evidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicionis not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.” [Citation.] “To justify a criminal conviction, the trier of fact must be reasonably persuaded to a near certainty. Thetrier must therefore have reasonably rejectedall that undermines confidence.” [Citation.] (People v. Thompson (1980) 27 Cal.3d 303, 324.) “Substantial evidence” to affirm a conviction is evidence which, when viewedin light of the entire record, is of solid probative value, maintainsits credibility and inspires confidencethat the ultimate factit addresses has been justly determined. (People v. Lucero (1988) 44 Cal.3d 1006, 1020; in accord People v. Conner (1983) 34 Cal.3d 141, 149.) Reasonablenessis ultimately the standard underlying the substantial evidence rule. (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must determine whether any reasonabletrier of fact could have found, upon the evidence presented, each essential element of the crime “beyond a reasonable doubt.” The substantial evidencerule necessarily mandates consideration of the weightof the evidence considered bythetrier of fact in determining whetherit is sufficient. (People v. Bassett (1968) 69 Cal.2d 122, 139.) The prosecution evidence was insufficient to prove petitioner committed counts one and twoto benefit a criminal street gang. The gang enhancementallegation to each count was alleged and found true under section 186.22, subdivision (b)(1). Section 186.22, subdivision (b)(1) provides, “any person whois convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members,shall, upon conviction ofthat felony,” be subject to additional, consecutive punishment. The section defines “criminalstreet gang” in section 186.22, subdivision (f), as any ongoing groupofthree or more persons havingas oneofits primary activities the commission of one or more ofthe criminal acts enumerated in subdivision (e), and whose members individually or collectively engage in or have engagedin a pattern of criminal gangactivity. The acts set forth in subdivision (e), include carjacking and vehicle theft, and other felonies. Section 186.22, subdivision (b)(1), describes two prerequisite elements. First, the nature of the crime must be for the benefit of, at the direction of, or in association with a criminal street gang. Association with a gang memberis not whatis proscribed by this element. Second, the defendant’s state of mind must bethe specific intent to promote, further, or assist in criminal conduct by the gang. (People v. Gardeley (1996) 14 Cal.4th 605, 623; In re Frank S. (2006) 141 Cal.App.4th 1192, 1195.) Here, there was no substantial evidence to support a true finding oneither ofthese two elements. That is because the prosecution evidence treatedall Nortefio subsets as fungible goods, without providing any substantial evidence that such treatment was warranted. There was no substantial evidence of any: (1) “ongoing” association amongthe subsets; (2) that one gang had the requisite primary activities; or (3) that one gang engagedin a pattern of criminal gangactivity. Petitioner will discuss each of the three elements, and the absence of substantial evidence to prove them. First, the prosecution evidence wasinsufficient as a matter of law becauseit failed to provide substantial evidence of any collaborative effort amongthe various Nortefio subsets, about which the gang expert testified. (People v. Williams, supra, 167 Cal.App.4th at p. 988.) Thus, the prosecution evidence failed to prove the existence of any criminal street gang petitioner promoted by his offenses. Specifically, the reasonable inference from the evidence was that petitioner was a memberofDetroit ‘Boulevard Nortefios. Detroit Boulevard gang paraphernalia was seized from petitioner’s home (1RT 217), which waslocated within Detroit Boulevardterritory. (IRT 217.) All total, Sampletestified about seven different subsets.’ Sampletestified to two different predicate offenses: one committed by Varrio Gardenland Nortefios (IRT 211-212), and another by a Varrio Centro Nortefio (IRT 214). The Varrio Gardenland offense was committed against another subset member from Del Paso Heights. (IRT 212.) Sample had nobasis to believe petitioner knew anything about the perpetrators, or, by inference, their offenses. (1RT 255.) Petitioner and Chacon were from different subsets: Detroit Boulevard Nortefios and Varrio Franklin Boulevard Nortefios, respectively. (IRT 197, 207.) The only evidence about some overarching Nortefio umbrella waselicited on cross- 1 Detroit Boulevard (1CT 141 [petitioner’s gang]), Del Paso Heights (IRT 212 [relating to a predicate offense]), Vario Gardenland (1RT 212 [predicate offense]), Varrio Centro (IRT 214 [predicate offense], 250 [location of charged offenses]; 1RT 250 [location of charged offenses]), Varrio Franklin Boulevard (1RT209 [Chacon’s gang]), Varrio Diamonds (1RT 218 [another active crew]) and Southside Park (1RT 250 [location of charged offenses]). 10 examination when Sample explainedthe genesis of the Nortefio gang in the California prison system back in the 1960's and 1970's. (IRT 234-235.) As this Court explained in People v. Acuna (2010) 182 Cal.App.4th 866, 875-876, the question decided in Williams was “whether, in proving a crime was committed for the benefit of a criminal street gang, the People are limited to evidence regarding activities of the local gang or mayrely on the activities of a larger group of whichthelocal gangis part.” Justice Hull, writing for the panel concluded Williams held the prosecution may rely on the activities of the larger group, in petitioner’s case the Nortefios “only if the People establish collaborative activities and a collective organizational structure between the local gang and the larger gang. (People v. Acuna, supra, 182 Cal.App.4that p. 876.) Second, the prosecution evidence wasinsufficient becauseit failed to provethe nature of a gang’s primary activities. Subdivisions (f) and Gj) explain the differences between primary activities and a pattern of gang activity. (§ 186.22, subd.(f) and (g); see also, In re AlexanderL. (2007) 149 Cal.App.4th 605, 610 [discussing difference between primary activities and pattern] and CALCRIM No.1401.) While Sample testified the Nortefios had primary activities of homicide, assault with firearm, shooting at inhabited dwellings and attempted murder, he never related those il activities to petitioner, his Detroit Boulevard gang (or to Chacon and his Varrio Franklin Boulevard gang). To prove a gang enhancementallegation, the prosecution must present “substantial evidence”that “the group has as oneofits ‘primary activities’ the commission of one or morespecified crimes.” (People v. Vy (2004) 122 Cal.App.4th 1209, 1221-1222.) Here, the evidence did not showthis because of the mixing and matching among the various Nortefio subsets. Third, there wasinsufficient evidence of a pattern of gang activity for much the samereason: the conflating of multiple gangs into one. “[A] gang otherwise meeting the statutory definition of a criminal street gang’ ... is considered a criminal street gang under the STEP Act only if its members ‘individually or collectively engage in or have engagedin a pattern of criminal gang activity’ [citation] by ‘the commission, attempted commission, or solicitation oftwo or more’(italics added)ofthe statutorily enumerated offenses within the specified time frame [citation].” (People v. Gardeley, supra, (1996) 14 Cal.4th at p. 621.) In People v. Williams, the defendant was alleged to be a member of the SmallTown Peckerwoodscriminal street gang. (People v. Williams, supra, 167 Cal.App.4th 983, 987.) Like petitioner’s case, the SmallTown Peckerwoods was a smaller, subset gang, and the prosecution evidence 12 showed defendant Williams belongedto that subset. (bid.) So, too, the prosecution evidence here wasthat petitioner belonged to Detroit Boulevard. Like petitioner’s case, in Williams there was a larger gang, the Peckerwoods, and the Nortefios here. (People v. Williams, supra, 167 Cal.App.4th 983, 987.) Like Williams,there wasinsufficient evidence of any connection or collaborative effort between the subset andthe larger gang. (/bid.) Williams held that having a similar name - - SmallTown Perckerwoods and Peckerwoods- - did not permit the status or deeds of the larger group to be ascribed to the smaller group. (People v. Williams, supra, 167 Cal.App.4th at p. 987.) Thus, even referring to Detroit Boulevard or the other subsets by adding “Nortefio” to the end of the subset name, did not transmute the gangs into one. Williams also held a common ideology between the gangs wasinsufficient. (Jd. at p. 988.) Thus, Sample’s testimony the Nortefio subsets shared a commonideology of rivalry with Surefios (IRT 210) waslikewise insufficient. Before treating a subgroup as a part of a whole when “determining whether a group constitutes a criminal street gang,” more evidence than a namethat contains the same word is required. (People v. Williams, supra, 167 Cal.App.4th at p. 988.) 13 The lack of commonality among the Nortefio subsets was revealed in Sample’s testimony. For example, Sample testified Chacon was a member of Varrio Franklin Boulevard Nortefios. (IRT 197.) When the prosecutor later asked if Chacon was a memberofVarrio Gardenland, Sample disagreed, correcting the prosecutor that Chacon’s membership was with Varrio Gardenland Nortefios. (IRT 209-210.) Similarly, the first predicate offense, to which Sampletestified, was a homicide committed by Gardenland Nortefios against a Del Paso Heights Nortefio victim. (1RT 211-212.) Both Varrio Centro Nortefios and Southside Park Nortefios had competing claims to the location of the charged offenses. (IRT 250.) Asin Williams, appending “Nortefios” to the end of the subsets’ names did not turn them into a single gang. Finally, Sample’s unsupported opinion did not constitute substantial evidence to prove the gang enhancementallegations. His opinion exemplifies typical gang expert testimony that “comes from highly unreliable sources . . .” providing “no credible data upon whichthe officer can base his opinion.” (Gomez, It is Not So Simply Because An Expert Says It Is So: The Reliability ofGang Expert Testimony Regarding Membership in Criminal Street Gangs: Pushing the Limits ofTexas Rule ofEvidence 702 (2003) 34 St. Mary’s L.J. 581, 605.) Sample was an officer with the 14 Sacramento Police Department. His job wasto gather gang intelligence to be used by the prosecution. (IRT 195, 204-206.) Sample can be fairly considered a witness with prosecution bias. (Cf., People v. Buffington (2007) 152 Cal.App.4th 446, 454-455 [well paid expert routinely reaching favorable conclusion for one party supported inference expert was not entirely objective].) The law requiresthat “any material that forms the basis of an expert’s opinion mustbereliable.” (People v. Carpenter (1997) 15 Cal.4th 312, 404 [internal quotation marks omitted].) Here, Sample provided no substantial evidence linking the various subsets to the larger gang. Thus, his opinion about primary activities and pattern of gang activity did not, and could not, be substantial evidence. “[T]he law does not accord to the expert’s opinion the same degree of credenceor integrity as it does the data underlying the opinion. Like a house built on sand, the expert’s opinionis no better than the facts on whichit is based.” (People v. Gardeley, supra, 14 Cal.4th at p. 618 [internal quotation marksandcitation omitted].) Other than the nebulous generalizations by the expert that treated the various Nortefio subsets as a single entity, there was no evidence ofa single gang’s relationship to petitioner’s offenses. At some level, an offense linked in any way to a perpetrator with any gang connection, however 15 infinitesimal, would benefit all gangs by causing a generalized fear in the citizenry. Un re Daniel C. (2011) 195 Cal.App.4th 1350, 1363-1364.) This is not, however, the conduct proscribed by statute. (Cf., People v. Ramon (2009) 175 Cal.App.4th 843, 853 [cannot transmute gang enhancement allegation into general intent crime].) The prosecution failed to carry its burden by substantial evidence. The First Appellate District, Division Four, reversed the gang enhancement to arobbery charge because the gang expert’s opinion failed to provide sufficient evidence. Un re Daniel C., supra, 195 Cal.App.4th at p. 1365.) The only evidence to support the gang enhancementwasthat the juvenile was associated with the Nortefio gang, was in the company oftwo Nortefio gang members when committing the crime, andall three wore red, a color associated with the Nortefio gang. The juvenile took a large bottle of Jack Daniels from a supermarket. Like petitioner’s crime, the offense was objectively for personal reasons. Here, Manzo, who waslarger, heavier and older than petitioner (LRT 252-253), insulted petitioner and acted aggressively. (IRT 38-39.) As petitioner and Chacon were backing away (1RT 79 [Chaconpulled petitioner back]), Manzo baited them. (1RT 42, 46-47 [Santiago Aguilar reported Manzo askedpetitioner why he was backing away].) In Jn re Daniel C., the reason for the juvenile’s offense 16 was to obtain andto drink alcohol personally. In petitioner’s case, the reason for the confrontation was to confront, and defend against, Manzo who was aggressive toward petitioner and Chacon. Based onthe foregoing, the evidence wasinsufficient as a matter of law to prove any common Nortefio gang’s primary activities were those enumerated in 186.22, subdivision (e), a pattern of gang activity by a Nortefio gang, or that the crimes were gangrelated, not personal. Therefore the true findings on the gang enhancements to both counts should have been reversed. 17. II WHETHER REVERSAL OF COUNT1, ATTEMPTED VOLUNTARY MANSLAUGHTER, WHICH IS A SPECIFIC INTENT CRIME, IS REQUIRED BECAUSE PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO REQUEST INSTRUCTION THAT VOLUNTARYINTOXICATION MAYBE CONSIDERED IN DECIDING WHETHER PETITIONER HAD SPECIFIC INTENT, AND THEREFORE PETITIONER’S SIXTH AMENDMENT RIGHT TO COUNSEL AND FIFTH AND FOURTEENTH AMENDMENTRIGHTS TO DUE PROCESS WERE VIOLATED. There was uncontested evidence that petitioner was drunk at the time of the incident. (ICT 173.) The evidence waspetitioner was drunk on brandy. (1CT 173-174.) His behavior was consistent with intoxication, that is, uninhibited aggression typical of some people underthe influence of alcohol. No evidence, and no reasonable inference from the evidence, supported a conclusion petitioner was not drunk. Penal Code section 22, subdivision (b), provides, “Evidence ofvoluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent... .” It is ineffective assistance of counsel for a lawyerto fail to request or offer appropriate defense instructions. In fact, even wherethetrial court has a sua sponte duty to correctly instruct the jury on basic principles of law 18 relevant to the issues raised by the evidencein a criminal case, defense counsel must be deemed negligent if he fails to remind the court of that duty _andinsist that instructions helpfulto his client be given. (United States v. Alferahin (9th Cir. 2006) 433 F.3d 1148, 1161, n.6 [ineffective assistance of counsel established on direct appeal where counsel rejected jury instruction that would have supported one of the strongest aspects of the defendant’s case].) The prosecution’s case relied heavily on petitioner’s statement to law enforcement. A tape of the interview wasplayedforjurors during the prosecution’s case-in-chief. (1RT 202-204.) During petitioner’s interrogation, he made admissions concerning the charged crimes, and also explained he was drunk at the timeofthe incident. (ICT 173.) Voluntary intoxication can negate specific intent. (§ 22.) If counsel had requestedinstruction on voluntary intoxication, the trial court would have had to so instruct. (People v. Castillo (1997) 16 Cal.4th 1109, 1014; People v. Saille (1991) 54 Cal.3d 1103, 1120.) However,the trial court was not required to instruct on voluntary intoxication without a request. (People v. San Nicolas (2004) 34 Cal.4th 614, 690.) Because there was evidence of intoxication, and because there could have been no reasonable,tactical decision not to request an instruction favorable to the defense, petitioner 19 received ineffective assistance of counsel and his Sixth Amendmentright to counsel wasviolated. Further, this failure violated petitioner’s constitutionalright to the determination of every material issue presented by the evidence (People v. White (1980) 101 Cal.App.3d 161, 169), resulting in a violation of due process. (U.S. Const., Sth, 6th, & 14th Amends; Calif. Const., art. I, § 15; see Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S.Ct. 475, 116 L. Ed.2d 385]; In re Winship (1970) 397 U.S. 358, 364 [90 S.Ct. 1068, 25 L.Ed.2d 368].) Accordingly, reversal of count 1 is warranted. “To establish entitlementto relief for ineffective assistance of counsel the burdenis on the defendant to show (1) trial counsel failed to act in the mannerto be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would haveresulted in the absence of counsel’s failings.” (People v. Lewis (1990) 50 Cal.3d 262, 288.) Generally, if the record on appealfails to disclose why counselfailed to act in a particular way, the judgmentis affirmedin order to allow the claim to be pursued in a habeas corpus proceeding in the superior court. That way, trial counsel may have an opportunity to explain, in the course of an evidentiary hearing, the 20 reasons for the complained of action. (People v. Pope (1979) 23 Cal.3d 412, 426; In re Lower (1979) 100 Cal.App.3d 144, 152-153.) Whenthere “simply could beno satisfactory explanation” (People v. Pope, supra, at p. 426) for counsel’s action, an appellate court can grant relief if it finds that the defendant was prejudiced by counsel’s constitutionally inadequate representation. Where there is no conceivable rational tactical explanation for an omission, nothing more is necessary to establish counsel’s inadequacy. (In accord, People v. Guizar (1986) 180 Cal.App.3d 487, 492, fn. 3.) In this context, prejudice meansthat“the result of the proceeding was fundamentally unfair or unreliable . . ..” (Lockhart v. Fretwell (1993) 506 U.S. 364 [122 L-Ed.2d 180, 189, 113 S.Ct. 838, 842].) Thus, when counsel’s acts are “beyond any discernibletrial strategy”reliefmay be granted ondirect appeal. (Cf., Harris v. Wood cg" Cir. 1995) 64 F.3d 1432, 1438 [discussing defense counsel’s ineffective closing argument].) In Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674, 104 S.Ct. 2052], the United States Supreme Court held that error made by defense counsel requires reversal when “there is a reasonable probability that, but for counsel’s unprofessionalerrors, the result of the proceeding would have been different.” (/d. at p. 694.) This test is not outcome 21 determinative. Strickland does not require a showing “that counsel’s deficient conduct more likely than not altered the outcomein the case.” (/d. at p. 693.) The sole question is whether counsel’s errors were “sufficient to undermine confidence in the outcome”ofthe trial. (/d. at p. 694.) In re Cordero (1988) 46 Cal.3d 161, 189, held effective assistance includes a duty to prepare and requestall instructions applicable to the case. It is inconceivable that in a case where petitioner faced (and received) such a lengthy sentence that counsel would not have sought every supportable instruction to the jury that would have benefitted petitioner and held the prosecution to its burden ofproving every element. Evidence ofvoluntary intoxication is relevant and admissible on the question whether a defendant actually formed specific intent. (§ 22, subd. (b).) A requested instruction must be given if the theory is supported by evidencethatis sufficient to deserve consideration by the jury, namely, evidencethat a reasonable jury could find to exist in regard to that theory. (See People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.) The prosecution presented petitioner’s statement to police and urged jurors to believe its contents. During the course of making this statement, petitioner told police he was drunk at the time of shooting. Indeed, petitioner was very specific. He said he was already drunk on E&J Brandythat he stole 22 from Foodmax,and he intended to steal more. (LCT 173-174.) There was no evidence contradicting petitioner’s assertion of his intoxication. To the contrary, the reasonable inference from the evidence was that petitioner was drunk: he overreacted to aggression from Manzo, and whenheshot, he fired six shots wildly. (See e.g., 2RT 348.) In order for a jury to determine every material issue presented by the evidence (People v. Abilez (2007) 41 Cal.4th 472, 516), and to enable the jury to perform its function and to make a proper determination in conformity with applicable law (People v. Sanchez (1950) 35 Cal.2d 522, 528; the jury must be adequately instructed. The omission of instruction on voluntary intoxication failed to point out to the jury that voluntary intoxication could negate the specific intent required for attempted murder, or attempted voluntary manslaughter. That omission ofthis instruction preventedthe jury from performing its function in a competent manner. Accordingly, petitioner was deprived due processof law. Thereis a pattern jury instruction on voluntary intoxication. CALCRIM No.3426 provides: You mayconsider evidence,if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendantacted [or failed to do an act] with . A person is voluntarily intoxicated if he or she becomesintoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [Do not consider evidence of intoxication in deciding whether wasa natural and probable consequence of .] In connection with the charge of the People have the burden ofproving beyond a reasonable doubt that the defendant acted [or failed to act] with . If the People have not met this burden, you must find the defendant not guilty of . You may not consider evidence ofvoluntary intoxication for any other purpose. {Voluntary intoxication is not a defense to 24 .] While voluntary intoxication was not an absolute defense to count I, intoxication was a factor the jury could have considered in determining whetherpetitioner harbored specific intent. As such, it was analogousto a defense. In the plurality decision ofPeople v. Frierson (1985) 39 Cal.3d 803, the Court held that even in a capital case, defense counsel cannot decline to present the defendant’s only viable guilt defense for the purpose of saving it for the penalty phase. The defendant had wantedto present a defense of diminished capacity, but counsel declined to do so. Defense counsel brought the disagreementto thetrial court’s attention. Thetrial court ruled that defense counsel had the authority to decline to present a defense even though the defendant disagreed. (Jd. at pp. 810-811.) Frierson expressly held that defense counsel does not have authority to refuse to present a defense at the guilt phase “in the face of a defendant’s openly expressed desire to present a defense at that stage and despite the existence of some credible evidence to support the defense.” (Jd. at pp. 803, 812, 817-818.) This was not a choice of meretrial tactics (id. at p. 814), but rather an impermissible waiver of a defense. Here, there was evidence of petitioner’s voluntary intoxication, which jurors could considerin determining whetherpetitioner specifically intended to murder, orto kill, 25 Manzo. Petitioner’s statement about his drunkennessconstituted credible evidence under Frierson. The first prong ofStrickland was established by evidence of petitioner’s intoxication and the availability of a pattern instruction, favorable to the defense. Under Frierson,the failure to request instruction with CALCRIM No.3426had the effect of withdrawing a potentially meritorious defense, (People v. Pope, supra, 23 Cal.3dat p. 425) and violated due process (see Jn re Saunders (1970) 2 Cal.3d 1033, 1041-1043). As the Ninth Circuit Court ofAppeals held, “[w]e have a hard time seeing whatkind ofstrategy, save an ineffective one, would lead a lawyer to deliberately [make such an error].” (United States v. Span (9" Cir. 1996) 75 Fd.3d 1383, 1390.) Asto the second prong,it is reasonably probable that a more favorable determination would have resulted in the absence of counsel’s omission. (Strickland, supra, 466 U.S. at p. 687.) “A reasonable probability is a probability sufficient to undermine confidencein the outcome.” (Un re Hardy (2007) 41 Cal.4th 977, 1018 [internal quotes omitted].) This Court explained that “[t]his second part of the Strickland test is not one solely of outcome determination. Instead, the questionis whether counsel’s deficient performance renders the result of thetrial 26 unreliable or the proceedings fundamentally unfair.” (Un re Hardy, supra, 41 Cal.4th at p. 1019.) Woodfordv. Visciotti (2002) 537 U.S. 19, 22 [123 S.Ct. 357, 154 L.Ed.2d 279], examined the meaning of “a probability sufficient to undermine confidence in the outcome.” Woodford v. Visciotti explained that, while the defendant’s burden is to establish a “’reasonable probability that, but for counsel’s unprofessionalerrors, the result would have been different,’ . . . [Strickland] specifically rejected the proposition that the defendant had to prove more likely than not that the outcome would be altered [citation].” (Woodford v. Visciotti, supra, at p. 22 [italics in original omitted].) The Strickland standard is more rigorous than the Watson standard. (People v. Watson (1956) 46 Cal.2d 818.) Strickland falls somewhere between the Chapman standard (Chapmanv. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]) and the Watson standard. (People v. Howard (1987) 190 Cal.App.3d 41, 47-48, fn. 4.) However, even the lesser Watson standard is a good deal more favorable to the defense than often thought. This Court “made clear that a ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” (College Hospital, Inc. v. Superior Court (1994)8 27 Cal.4th 704, 715 [italics in original omitted].) Thus, the correct measure of prejudice in this case is even more favorable to the defense. The “touchstone”ofthe prejudice test in ineffective assistance of counselclaimsis “a ‘reasonable probability’ of a different result.” (Kyles v. Whitley (1995) 514 U.S. 419, 434 [115 S.Ct. 1555; 131 L.Ed.2d 490], applying Strickland.) The question is not whether the defendant would more likely than not have received a different verdict, but whether he received fair trial, understoodasa trial resulting in a verdict worthy of confidence. (/bid.) Applying this standard, one must concludethatthere is “a reasonable chance” — much more than a mereabstract possibility — that trial counsel’s failure could have contributed to the verdict. That is because jurors never knew they could considerthe effect ofpetitioner’s voluntary intoxication on his ability to form and harborthe specific intent element of attempted murder, or attempted voluntary manslaughter. Here, “counsel’s deficient performance render[ed] the result ofthetrial unreliable [and] the proceedings fundamentally unfair” Um re Hardy, supra, 41 Cal.4th atp. 1019), denying petitioner his constitutional rights to effective assistance of counsel and due process. Accordingly, reversal of count | was required. 28 CONCLUSION Petitioner respectfully submits the foregoing for review to exhaust state remedies arising from the aboveissues. “vo Yo DATED:April 22, 2013 W224) Lok LY ‘Suéan K. Shaler Attorney for Petitioner, Zackery Prunty c:\...\2012cases\prunty.pfrte 29 Filed 3/26/13 CERTIFIED FOR PARTIAL PUBLICATION” IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) THE PEOPLE, C071065 Plaintiff and Respondent, (Super. Ct. No. 10F07981) V. ZACKERY PRUNTY, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Sacramento County, Marjorie Koller, Judge. Affirmed. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R.Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputies Attorney General, for Plaintiff and Respondent. * Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of part I of the Discussion. A... 1 al Confronted by a person heperceivedto be a rival Surefio gang member, defenda Zackery Prunty, an admitted Nortefio gang member, pulled a gun and fired six shots, striking and injuring his perceived rival and another person. A jury found defendant guilty of attempted voluntary manslaughterasa lesser included offense of attempted murder and ofassault with a firearm and found true various enhancementallegations, including criminal street gang enhancement allegations underPenal Code! section 186.22. On appeal, defendant contends there wasinsufficient evidence the Nortefios qualify as a criminal street gang for purposesofthe gang enhancements.2 In support of his argument, defendantrelies on Peop/e v. Williams (2008) 167 Cal.App.4th 983 for tk proposition that where a larger group -- like the Nortefios -- consists of different, small subsets, the larger group cannotbetreated as a criminal street gang for purposes of section 186.22 unless there is evidence of collaborative activities or collective organizational structure betweenthe subsets. As we explain, to the extent Williams cat, be understoodto support this proposition, we disagree with Wi//iams on this point becausethere is nothing in the statute that requires such evidence. Here, evenif it coul be found that defendant was a memberof a smaller subset of the Nortefios affiliated wi his neighborhood, the evidence wassufficient for the jury to find that the Nortefios as a whole qualify as a criminal street gang within the meaningof section 186.22, even 1 All further section references are to the Penal Code unless otherwise noted. 2 Defendant also contendshis trial attorney provided ineffective assistance of counsel becausetheattorney failed to request an instructiontelling the jury it could consider defendant’s voluntary intoxication in determining whether he had the specific intent necessary for attempted murder andattempted voluntary manslaughter. We address and reject that argumentin the unpublished part of our opinion because we conclude that on the facts here, defense counsel could have reasonably determined that requesting an instruction on voluntary intoxication would have been fruitless. 2 without evidence of collaborative activities or collective organizational structure between the various Nortefio subsets. Accordingly, wewill affirm. FACTUAL AND PROCEDURAL BACKGROUND One evening in November 2010, Gustavo Manzo wentto a restaurant in midtown Sacramento with his girlfriend andherlittle brothers to get something to eat. He was wearing an L.A. Dodgers cap. As they were walking upto the restaurant, two guys approached them and“started talking like mess.” Oneofthe guys,later identified as defendant, was wearing a red checkered jacket. He asked Manzo where Manzo was from and said, “fuck a Skrap, 916.” Skrap is a derogatory term Nortefio gang membersuse for Surefio gang members. In return, Manzo called defendant a “Buster” -- a derogatory term for a Nortefio gang member. Defendant’s companion,later identified as Emilio Chacon, tried to get defendant to leave, but defendant kept saying, “this is Norte, fuck a Skrap, 916.” As defendant and Chacon eventually started backing away, Manzo took a couple of steps toward them. Defendant drew a gun and fired six times. Manzotriedto run but wasstruck in the buttocks with a bullet. One ofManzo’sgirlfriend’s brothers washit in the leg. Defendant was charged with the attempted murder ofManzo andassault with a firearm on Manzo’s girlfriend’s brother. Various enhancements were also charged, including criminal street gang enhancements undersection 186.22, subdivision (b)(1). At trial, the People’s gang expert testified that both defendant and Chacon were Nortefio gang members andthat the shooting would benefit the Nortefios by making them look stronger. Defendant’s theory at trial was that he acted in self-defense. The jury found defendant guilty of attempted voluntary manslaughteras a lesser included offense of attempted murder and of assault with a firearm and found the various enhancementallegations true. The trial court sentenced defendantto an aggregate prison term of 32 years. Defendant timely appealed. DISCUSSION I Ineffective Assistance Of Counsel Defendant contendshistrial attorney provided ineffective assistance of counsel because there was evidence defendant was drunk when he committed the shooting buthis attorney did not request an instruction on how the jury could consider defendant’s voluntary intoxication in determining whetherhe had the specific intent required for attempted murderor attempted voluntary manslaughter. We find no merit in this argument. “To establish entitlementto relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counselfailed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel’s failings.” (People v. Lewis (1990) 50 Cal.3d 262, 288.) When “the record on appeal sheds nolight on why counselacted orfailed to act in the mannerchallenged,” “wWnless counsel was asked for an explanation and failed to provide one, or unless there simply could be nosatisfactory explanation, these cases are affirmed on appeal.” (Peop! v. Pope (1979) 23 Cal.3d 412, 426.) Citing /n re Cordero (1988) 46 Cal.3d 161, 189, defendantfirst asserts that “effective assistance includes a duty to prepare and requestall instructions applicable to the case.” In effect, defendant suggests that becausea voluntary intoxication instruction would have beenapplicable here, his trial attorney rendered ineffective assistance by failing to prepare and request such aninstruction. But Cordero held no such thing. Whé the court in Cordero held wasthat “[a]dequate representation requires an attorney to research ‘ “carefully all defenses of . . . law that may be available to the defendant,” ’ ” and “counsel’s duty ‘includes careful preparation of and requestforall instructions whic in his judgmentare necessary to explain all of the legal theories upon which his defense 4 399rests.’ (/bid.) Contrary to defendant’s suggestion, ineffective assistance of counsel cannot be proven under Cordero merely by showingthat trial counsel failed to prepare and request an instruction that was potentially applicable to the case. Defendant next cites People v. Frierson (1985) 39 Cal.3d 803 for the principle that “defense counsel cannot decline to present the defendant’s only viable guilt defense for the purpose of saving it for the penalty phase.” Like Cordero, however, defendant misreads Frierson and misapplies it to this case. The court in Frierson madeclear that “(t]he principal issue presented [there wa]s whether a defense counsel’s traditional power to control the conduct of a case includes the authority to withhold the presentation of any defense at the guilt/special circumstance stage of a capital case, /n the face of a defendant’s openly expressed desire to present a defense at that stage and despite the existence of some credible evidence to support the defense.” (/d. at p. 812,italics added.) Indeed, the court “emphasize[d] that [its] holding rest[ed] on the fact that the record in th[e] case expressly reflect{ed] a conflict between defendant and counsel over whether a defense wasto be presented at the guilt/special circumstance stage.” (/d. at p. 818, fn. 8.) Nosuch thing happened here. Trial counsel did, in fact, present a defense for defendant -- self-defense -- and defendant points to no evidence that he openly expressed a desire to take a different tack by relying on voluntary intoxication instead of (or in addition to) self-defense. Frierson simply has no application here. As wehaveindicated, as long as trial counsel could have had somesatisfactory explanation for the conduct complained of, a claim of ineffective assistance must be rejected on direct appeal. (Peop/e v. Pope, supra, 23 Cal.3d at p. 426.) On the record here, we conclude that defendant’s trial attorney could have reasonably determined that requesting an instruction on voluntary intoxication would havebeen fruitless. Accordingly, the failure to request such an instruction did not amountto ineffective assistance of counsel. The principles of law involved hereare straightforward. “Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.” (Pen. Code, § 29.4, subd. (a) [formerly § 22].) “Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whetherthe defendant premeditated, deliberated, or harbored express malice aforethought.” (/d., subd. (b).) However,“[a] defendantis entitled to such an instruction only whenthere is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s ‘actual formation ofspecific intent.’ ” (People v. Williams (1997) 16 Cal.4th 635, 677.) In Williams, the defendant requested an instruction on voluntary intoxication as a defense to homicide based solely on a witness’s testimony that the defendant was “ “probably spaced out’ on the morningofthe killings.” (People v. Williams, supra, 16 Cal.4th at p. 677.) Thetrial court refused to give the requested instruction. (/d/d.) On review, the defendant contendedthetrial court erred in refusing to give the instruction, and he sought“to bolster that argument by pointing to comments he had madein the recorded interview with police that around the timeofthe killings he was ‘doped up’ and ‘smokin’ pretty tough then.’ ” (/b/d.) The Supreme Court rejected the defendant’s argument,stating as follows: “Even ifwe consider all three of these statements, there wasno error. Assuming this scant evidence of defendant’s voluntary intoxication would qualify as ‘substantial,’ there was no evidenceatall that voluntary intoxication had any effect on defendant’s ability to formulate intent.” (/d. at pp. 677-678.) The same conclusion applies here. As in Wi//iams, the evidence ofintoxication here was scant. In fact, the only such evidence was defendant’s statementto police that he was “drunk already” on brandy, from a bottle he hadstolenearlier in the evening in South Sacramento and had drunk with a couple of other people, when he headed downtown with Chaconto steal another bottle. There was no evidence of exactly how much alcohol defendanthad actually consumed, over what period he had consumedit, or just how drunk he wasatthe time of the shooting. Furthermore, just as in W///iams, there was no evidenceat all that defendant’s voluntary intoxication had any effect onhis ability to formulate intent. To the contrary, by his own admissionin his statementto police, despite his consumption of some unknownportion of the original bottle of brandy, defendant nonetheless managedto formulate the intent to “go steal [another] bottle from Safeway.” If he could form the intent to steal another bottle despite his earlier alcohol consumption, there would have been norational basis for the jury to concludethat he could not also have formedthe intent to kill required for attempted murder or attempted voluntary manslaughter. Under these circumstances, defendant’s trial attorney could have reasonably determinedthat the trial court would have refused to give a voluntary intoxication instruction, and that the jury would not have been persuaded by such an instruction in any event. Accordingly, the failure to request such an instruction did not amountto ineffective assistance of counsel. Il | Evidence OfA Criminal! Street Gang Subdivision (b) of section 186.22 provides an additional term of imprisonmentfor “any person whois convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” For purposesofthis enhancement, a “ ‘criminal street gang’ ”is “any ongoing organization, association, or group ofthree or more persons, whether formal or informal, having as one ofits primary activities the commission of one or more ofthe criminal acts enumeratedin [the statute], having a common name or commonidentifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd.(f).) A “ ‘pattern of criminal gang activity’ ” is “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [certain] offenses [identified in the statute], provided at least one ofthese offenses occurred after the effective date of [the law] and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.” (/d., subd.(e).) The People sought to prove the gang enhancementallegations here by showing “that there is a criminal street gang knownas the Nortefios , who have three or more members, who have a common name, sign or identifying symbol, and whose primary criminalactivities are the commission of [certain] crimes.” On appeal, however, defendant contends there was insufficient evidenceto prove that the Nortefios as a whole constitute a criminal street gang within the meaning ofsection 186.22. Defendant argues that this is so “because [the People] failed to provide substantial evidence of any collaborative effort among the various Nortefio subsets”and the People “treatedall Nortefio subsets as fungible goods, without providing any substantial evidence that such treatment was warranted.” Stated another way, defendant contends the People wrongfully “conflat[ed] multiple gangs into one.” The gang evidence here was substantially as follows: Detective John Sample of the Sacramento Police Departmenttestified as an expert in the area of Hispanicstreet gangs, including their culture. When asked,“whoare the Nortenos?” Detective Sample respondedthat “[t]hey’re a Hispanic street gang active in Sacramento and throughout California.” There are approximately 1,500 local members ofthe Nortefios. The Nortefios identify with the north andusethe letter N as a commonidentifying symbol and also the number 14 because N isthe 14th letter of the alphabet. The color typically associated with Nortefios is red. Theyare affiliated with a prison gang known as Nuestra Familia. Nortefios are predominant in Northern California. The primary enemies of the Nortefios are Surefio gang members. Surefios identify themselves with the south, the color blue, and the letters S and M and the number13.2 They are predominantin Southern California. The Nortefios do not have a particular “turf” in the area but are located all over Sacramento. There are a lot of subsets based on different neighborhoods. For example, Chacon wasaffiliated with Varrio Franklin Boulevard, a local set of Nortefios in South Sacramento. Chacon had a tattoo of the San Francisco 49ers emblem, which can be gang-related because Nortefio gang members usedtheletters “SF”to refer to “Skrap free”or “Sureno free.” Chaconalso had tattoos onthe interiors of his fingers, a one on the left hand and a four on theright side, consistent with the number 14. In an interview with Detective Sample, defendantidentified himself as a Northerner from Detroit Boulevard. He claimed Detroit Boulevard as his set. Defendant started claiming Norte because his mother’s side of the family claims Norte.4 3 Surefios identify with the number 13 andthe letter M (the 13th letter ofthe alphabet) because they are connected to the Mexican Mafia, which is a Hispanic prison gang. 4 It is not even clear from the evidence whether a discernible subset of Nortefios based in defendant’s Detroit Boulevard neighborhoodactually exists. During an interview, Detective Sample asked defendant if he was a “Northerner.” Defendant responded, “Yeah.” When Detective Sample asked “from where?” defendant answered, “Detroit Boulevard.” Detective Sample responded, “Now is that a set down there cause I haven’t heard-- or is it or do you just claim Norte?” Defendant replied, “Yeah. That’s myset. But everybody else from the D’s is Bloods.” Detective Sample said, “[S]o you’re a Norte and you’re just claiming your neighborhood?” Defendant responded, “Boulevard yeah.” When Detective Sample asked, “So nobodyelse claims Detroit Boulevard?” defendant answered, “Mm-mm. Well some other people do but notlike me. They ain’t putting down on me.” Attrial, Detective Sample testified,“I think he was saying they’re not putting it down like me,” which the detective understood to mean “that they’re active within the gang.” From this evidence,it is not clear that a discernible subset of Nortefios based in defendant’s Detroit Boulevard neighborhoodactually exists. Assuming for the sake of Detective Sample testified that the primary activities of the Nortefios in the Sacramento area include unlawful homicide, attempted murder, assault with a firearm, shooting into an inhabited dwelling, shooting at an occupied motor vehicle, and weapons violations. Detective Samplealsotestified that Nortefios in the Sacramento area engage in a pattern of criminal gangactivity. For one of the predicate crimes, Detective Sample testified that members of a subset of Nortefios in North Sacramento, the Varrio Gardenland Nortefios, were convicted of various charges, including murder and attempted murder, for an incident in August 2007arising out of a conflict with a Del Paso Heights Nortefio. For the other predicate crime, Detective Sampletestified that in July 2010 members of the Varrio Centro Nortefios shot at a drop-out Nortefio gang member. Thetestimony offered by Detective Sample to establish the Nortefios as a criminal street gang within the meaning of section 186.22 was remarkably similar to evidence offered for the same purpose in /7 re Jose P. (2003) 106 Cal.App.4th 458. There, “Officer Burnett testified that the Nortefio gang was an ongoing association of around 600 persons, identified by the color red and the number14,andthatit had as oneofits primary activities the commissionofthe criminal acts listed in section 186.22. She detailed the gang’s pattern of criminalactivity by describing [certain] firearms offenses and [a] convenience store robbery.” (Jose P., at p. 467.) On appeal, the appellate court concluded “{t]his [wa]s sufficient evidence to establish that Nortefio wasa criminalstreet gang.” (/bid.) In People v. Ortega (2006) 145 Cal.App.4th 1344, muchlike defendanthere,the defendant argued “there was insufficient evidence to sustain a finding of the existence of a criminal street gang because the gang to which the prosecution’s expert testified was - argumentthat there was sufficient evidence for the jury to find the existence of such a subset, we nonetheless conclude for the reasonsstated hereafter that the jury still could find that the Nortefios as a whole constituted a criminal street gang for purposes of section 186.22. 10 the Nortefio gang, and the term ‘Nortefio’ is merely the geographical identity of a number of local gangs with similar characteristics, but is not itself an entity.” (/d. at p. 1355.) This court rejected that argument, explaining as follows: “Detective Aurich, the prosecution’s gang expert, testified there were thousands of documented Nortefio gang members in Sacramento. Hetestified some of their commonly used symbols are the letter N, the Roman numeralIV, ‘catorce’ (Spanish for 14), and the color red. He testified some of their primary activities are the commission of murder, assault, witness intimidation, car-jacking, robbery, extortion, and dope dealing. Detective Aurich also testified regarding the facts of two crime reports of offenses committed by Nortefios. Oneinvolved a shooting into a crowdofrival gangsters. The other involved a Nortefio gang member shooting someoneat a gas station who was wearing Surefio colors. [{] Evidence was thus presented, through the prosecution’s gang expert, to establish every element ofthe existence of the Nortefios as a criminalstreet gang.” (/D/d.) Virtually ignoring Jose P. and Ortega, defendantinstead relies primarily on People v. Williams, supra, 167 Cal.App.4th at page 983 in arguing that the evidencethat the Nortefios qualify as a criminal street gang was insufficient here. In Wi//iams, the victim “was stabbed to death because she ostensibly caused a conflict between two members of a group ofyoung mencalling themselves the Small Town Peckerwoods.” (/d. at p. 985.) A jury found the defendant guilty of murder with a criminalstreet gang enhancementandofactive participation in a criminal street gang. (/d. at pp. 983, 985.) On appeal, he challenged the sufficiency of the evidence underlying the gang enhancement and the gang crime-- specifically, he asserted “there was insufficient evidence of the primary activities element that had to be proven in order to establish the Small Town Peckerwoods (STP) constituted a criminal street gang.” (/d. at p. 986.) The appellate court “conclude[d] the evidence wassufficient to establish the Small Town Peckerwoods were a criminalstreet gang, but [the court could not] determine whether jurors based their determination in this regard solely on evidence concerning that group 11 or also erroneously considered evidence related to some larger Peckerwood organization.” (/d. at p. 985.) Accordingly, the court reversed the gang enhancement finding and the conviction for the gang crime. (/0/d’) In explaining its conclusion, the appellate court in Williams noted that “[e}]vidence of gang activity and culture need not necessarily be specific to a particular local street gang as opposedto the larger organization,” but the court concluded that “having a similar nameis [not], ofitself, sufficient to permit the status or deeds of the larger gr oup to be ascribed to the small group.” (People v. Williams, supra, 167 Cal.App.4th at p. 987.) The expert in the case had “testified that the Peckerwoodsare a criminalstreet gang, as defined by the Penal Code, andthat smaller groups, such as the Small Town Peckerwoods, are all factions of the Peckerwood organization.” (/d. at p. 988.) As fa r as the record showed, however, the expert’s conclusion “appear[ed] to have been based on commonality ofname andideology, rather than concerted activity or organizational structure.” (/bid.) The court concluded as follows: “In our view, something more th an a shared ideology ofphilosophy, or a namethat contains the same word, must be shown before multiple units can be treated as a whole when determining whether a group constitutes a criminalstreet gang. Instead, somesort of collaborative activities or collective organizational structure mustbe inferable from the evidence,so that the various groups reasonably can be viewedasparts of the same overall organization. Th ere was no such showinghere.” (/bid.) Relying on Wi/liams, defendant contendsthere was no substantial evidence here of any connection between the various Nortefio subsets to which Detective Sample testified. Defendant argues further that the People’s evidence “contradicted the theory of collaboration among the subset gangs” by showing “the subset Nortefio gangs were of ten in fierce rivalry with one another -- not working together for any common Nortefio purpose.” According to defendant, the evidence here was insufficient under Wi//iams because “[t]here was nosubstantial evidence these various subsets participated in 12 collaborative efforts, or had any organization, structure or communication that linked the subsets.” To the extent the appellate court in W///iams required that “somesort of collaborative activities or collective organizational structure must be inferable from the evidence”before “various groups reasonably can be viewedasparts of the same overall organization” for purposes of determining the existence of a criminal street gang under section 186.22 (People v. Williams, supra, 167 Cal.App.4th at p. 988), we believe the court erred in adding an elementto thestatute that the Legislature did not put there. (See Code Civ. Proc., § 1858 [“In the construction of a statute .. . , the office of the Judge is simply to ascertain and declare whatis in termsor in substance contained therein, not to insert was has been omitted”].) The statute requires an “ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or moreofthe criminal acts enumerated in [the statute], having a common name or commonidentifying sign or symbol, and whose members individually or collectively engage in or have engagedin a pattern of criminal gang activity.” (§ 186.22, subd. (f).) Whether such an organization, association, or group exists does not necessarily depend on proof of collaborative activities or collective organizational structure between various subsets that identify themselvesas part of a larger group. Where, as here, smaller neighborhood subsets all claim a common name (Nortefio) and commonidentifying signs and symbols (the color red, the letter N, the number14), and share a common enemy (the Surefios) (even though sometimes they fight amongst themselvestoo), it is for the finder of fact to decide whetherthe larger group, as opposed to each smaller subset, has been shownto constitute a criminalstreet gang. Certainly proof of collaborative activities or collective organizational structure between various subsets can support a findingthat the larger groupsatisfies the statutory requirements necessary to be a criminal street gang, but we find nothing in section 186.22 requiring proof of such activities or structure. Just as in Jose P. and Ortega, where 13 evidence that did not include proofofcollaborative activities or collective organizational structure between various subsets was found sufficient to support the finding that the larger group(the Nortefios) constituted a criminal street gang, so the evidence here was sufficient for that purpose. The evidence here showedthat defendant identified himself as a Nortefio -- albeit a Nortefio associated with the Detroit Boulevard neighborhood. The evidence further showedthat those like defendant who claim to be Nortefios identify with the north and the color red and usethe letter N and the number 14 as commonidentifying symbols. The evidence showedthat those who identify themselves as Nortefios also share a common enemy -- the Surefios -- who identify with the south, the color blue, the letters M and S, and the number 13. The evidence also showed that the primary activities of the Nortefios in the Sacramento area include various qualifying crimes and that Nortefios in the Sacramento area engagein a pattern of criminal gangactivity. We believe nothing more was required to prove the existence ofa criminal street gang under section 186.22. From this evidence, the jury could have reasonably found,at the very least, that the Nortefios in the Sacramento areaconstitute an “informal,” “ongoing organization, association, or group ofthree or more persons”that has “a common name [and] common identifying sign[s] or symbol[s]” and has“as one ofits primary activities the commission of one or moreofthe criminal acts enumeratedin [section 186.22]” and “whose members individually or collectively .. . have engagedin a pattern of criminal gangactivity.” To the extent defendant arguesthat the crimes he committed were “objectively for personal reasons”rather than for the benefit of, at the direction of, or in association with a criminal street gang, and to the extent that argumentis based on his assertion that “there was no evidenceofa single gang’s relationshipto [his] offenses” because the People failed to provide sufficient evidence that the Nortefios as a wholeconstituted a criminal street gang, our discussion above disposes ofthis argument. There wassufficient evidence that the Nortefios in the Sacramento area constitute a criminal street gang within 14 the meaning of section 186.22, notwithstanding the evidence that there are different subsets of the gang associated with various neighborhoods throughoutthe area. Furthermore, there was more than enough evidence that defendant committed the shooting because he found himself threatened in a confrontation with a person he perceived to be a rival Surefio gang member. Underthe facts presented here, it was more than reasonable for the jury to conclude that defendant committed the shooting for the benefit of or in association with the Nortefio gang. DISPOSITION The judgmentis affirmed. ROBIE , Acting P.J. Weconcur: BUTZ J. DUARTE iJ. 15 CERTIFICATE OF WORD COUNT APPELLATE COUNSEL I, SUSAN K. SHALER,appointed counsel for petitioner, hereby certify that I prepared the foregoingpetition on behalf ofmy client. I calculated the word countfor the petition in the word-processing program Corel WordPerfect X4. The word countfor the petition is 5,897, including footnotes, but not including the cover, tables or attachments. The petition therefore complies with the rule, which limits the word count to 8,400. I certify that I prepared this brief in the word-processing program Corel WordPerfect X4 and this is the word count WordPerfect generated for this — petition. ) Dated: April 22, 2013 ATTACHMENT B PROOF OF SERVICE STATE OF CALIFORNIA, SAN DIEGO COUNTY _ Treside in the county of San Diego, State of California. I am overthe age of 18 and not a party to the within action; My business address is: Susan K. Shaler Professional Law Corp., 991 Lomas Santa Fe Dr., Ste C, #112, Solana Beach, CA 92075 On April 23, 2013, I served the foregoing document describedas: APPELLANT’S PETITION FORREVIEW on all parties to this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: Clerk, California Supreme Court Clerk, Court of Appeal 350 McAllister St Third Appellate District San Francisco, CA 94102 621 Capitol Mall, 10° Floor Sacramento, CA 95814 Central California Appellate Program District Attorney 2407 J Street, Suite 301 Sacramento County Sacramento, CA 95816-4736 901 GSt Sacramento, CA 95814 Kamala D. Harris Attorney General Ms.Katherine C. Carlson 13011 I Street, Suite 1100 Deputy Public Defender P.O. Box 944255 700 H St Ste 270 Sacramento, CA 94244-2550 Sacramento, CA 95814 Mr. Zackery Prunty Booking X4056863 9601 Kiefer Blvd Sacramento, CA 956863 I caused such envelope with postage thereon fully prepaid to be placed in the United States Mail at Solana Beach, California. Executed on April 23, 2013, Solana Beach, California. I declare under of the State of California that the aboveis true and correct. malty of perjury under theta SUSAN K. SHALER