People v. Lopez CA3 ( 2015 )

Filed 2/18/15 P. v. Lopez CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sutter)
----
THE PEOPLE, C060565
Plaintiff and Respondent, (Super. Ct. No. CRF081476)
v.
SALVADOR LOPEZ,
Defendant and Appellant.
Defendant Salvador Lopez appeals his conviction for attempted murder with true
findings that he intentionally and personally discharged a firearm causing great bodily
injury and committed the offense for the benefit of a criminal street gang, and his
conviction for active participation in a criminal street gang with a true finding he
personally used a firearm. He contends (1) the trial court prejudicially erred in denying
his motion to bifurcate the gang charge and enhancement from the other charges; (2) the
trial court prejudicially erred in admitting evidence of his prior offenses and those of his
family members; (3) the trial court prejudicially erred by failing to instruct the jury on the
limited use of the prior crimes evidence or, in the alternative, that counsel was ineffective
for failing to request such an instruction; (4) the trial court prejudicially erred by allowing
1
a gang expert to testify about out-of-court statements by defendant’s brothers and another
associate and the contents of a sheriff’s report or, alternatively, that counsel was
ineffective in failing to object to this testimony; and (5) that counsel was ineffective in
failing to move to strike, or request a mistrial based on, the gang expert’s comments,
which allegedly cast aspersions on defense counsel, and allegedly improper comments
made by the prosecutor in closing argument. Finding no prejudicial error, we affirm.
FACTUAL BACKGROUND
Josiah Pacheco, a Norteño gang member, was walking down the street when a
green sedan with three or four people suddenly stopped near him. Three people got out
of the car and one said, “What’s up?” to Pacheco. Pacheco responded, “[N]othing.”
Then one started shooting at Pacheco. Pacheco stated he was shot by “[s]ome Soreno
[sic].” He also identified defendant as the shooter. Pacheco knew defendant from time
they had spent together in juvenile hall. Pacheco reported defendant had “a problem”
with Pacheco, because Pacheco had beaten up defendant’s older brother. Pacheco also
admitted he used to “gang bang” with the “Norte.”
The day after the shooting, Pacheco was interviewed by police and again
identified defendant as the shooter. He also positively identified defendant as the shooter
in two separate photographic lineups. Pacheco stated he did not want to press charges
because he did not want a reputation. Over the course of further interviews, Pacheco
identified defendant as the shooter on two more occasions and stated that the people in
the car were “southerners.” He also revealed that defendant’s first name was Salvador.
Law enforcement arranged for Pacheco to participate in a pretext phone call with
defendant. Throughout the phone call, defendant denied shooting Pacheco. Defendant
did, however, admit he was a gang member.
Prior to trial, Pacheco repeatedly told law enforcement he did not want to press
charges against defendant and that at trial he would deny defendant had shot him. He
also expressed disdain for “snitches” and reported a “snitch” would be killed by his own
2
gang. At trial, Pacheco recanted his earlier statements identifying defendant as the
shooter. He testified defendant did not shoot him, and he did not know who had shot
him. He acknowledged that if he did know who shot him, he would not confirm that law
enforcement had the shooter; but in any event, defendant was not the shooter. Pacheco
also denied having previously fought with defendant’s brother.
Officer Aaron Moe testified as an expert in the Sureño criminal street gangs. He
observed the area where the shooting occurred was known for gang-related activity. Moe
testified gang members commit crimes to earn respect, and killing a rival gang member
would significantly increase a gang member’s status. The best way for gang members to
earn respect and increase their status is to commit acts of violence. The more violent the
crime, the more status is earned. Sureños and Norteños are rival gangs. Moe explained
that many current gang members are “multi-generational or the brothers and sisters
growing up, emulating what older family members are doing.” Gang membership can be
a “family tradition,” and young children have demonstrated significant gang knowledge
based on education from their older brothers, sisters, uncles, cousins, or parents.
Moe also testified that the Sureño gang’s primary activities are crimes of violence.
Defendant had repeatedly admitted to Moe he was a gang member and stated he had been
one since sixth grade. Defendant also had a gang-related tattoo, and multiple
photographs showed him demonstrating gang hand signs. In December 2007 defendant’s
brother Ignacio, his cousin Diego, and another Sureño gang member, Fidencio Mendoza,
assaulted a rival Norteño gang member by shooting him. As a result, Ignacio and
Mendoza were convicted of assault with a firearm. In November 2006 officers conducted
a traffic stop on a vehicle containing defendant and other Sureño gang members. Pedro
Alvarado was a passenger, and officers found him carrying a loaded firearm. As a result,
Alvarado was convicted of carrying a loaded firearm in public. Defendant was
adjudicated a ward of the court for carrying a concealed weapon in a vehicle. Defendant
was also involved in an incident in which two Norteños were assaulted and property
3
taken from them. Defendant assaulted one of the victims with a board. The people
convicted of this offense were members of two local Sureño gangs.
Moe concluded that on March 12, 2008, defendant was an active participant in the
Sureño criminal street gang. Based on the fact that the victim was a documented Norteño
gang member and the assault was committed by a Sureño gang member with a handgun,
Moe opined that a hypothetical offense resembling the facts of this case would have been
committed for the benefit of, in association with, or at the direction of the Sureño
criminal street gang.
Moe also offered an explanation for Pacheco’s reticence to cooperate with law
enforcement as the trial approached. Gang members had told Moe that when a gang
member like Pacheco cooperates with law enforcement, he loses respect within the gang
structure. Accordingly, the majority of victims who are gang members do not cooperate
with the prosecution.
Defendant denied shooting Pacheco. He claimed he was at home babysitting his
younger brother. He admitted telling Moe that he is a Sureño, but he claimed that to him
that simply meant he was from the south, Mexico. He denied ever telling Moe he was in
a gang. He admitted associating with known gang members and making gang signs in
photographs, but he claimed that was just to “fit in.” Defendant admitted his brothers,
Ignacio and Juan, were Sureño gang members but claimed they had dropped out. He
admitted he had a conviction for battery with serious bodily injury and a gang
enhancement. He stated he had stabbed a rival gang member “to be cool.” He also got
“13” tattoos when he was in juvenile hall because he thought it was “cool.”1 Defendant
acknowledged that when he was younger, he wanted to be in the gang, but ultimately that
1The number 13 is important to Sureños. It represents the 13th letter of the alphabet,
“M,” which stands for “Mexican Mafia.” Sureños affiliate themselves with the Mexican
Mafia.
4
had gotten him into trouble. Specifically, he had admitted being in possession of a gun
after being told he could not win at trial and was sent to a youth guidance center. Since
his release from the guidance center he had tried, albeit unsuccessfully, to stay out of
trouble. He claimed the “trouble” was not gang related. He acknowledged he had seen
Pacheco somewhere but did not recall that Pacheco had ever beaten up his brother.
Defendant claimed that in the phone call with Pacheco, he had admitted being a gang
member because he was “playing along” with the caller.
PROCEDURAL HISTORY
Defendant was charged with attempted premeditated murder (Pen. Code,
§§ 664/187)2 and participation in a criminal street gang (§ 186.22, subd. (a)). As to the
attempted murder charge, it was further alleged defendant intentionally and personally
discharged a firearm, causing great bodily injury (§ 12022.53, subd. (d)), and that he
committed the offense for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(C)). As to the participation in a street gang charge, it was further alleged
defendant personally used a firearm. (§ 12022.5, subd. (a)(1).)
Defendant’s pretrial motions included a motion to bifurcate the gang charge and
gang enhancement from the trial of the underlying charges. He argued the case was
appropriate for bifurcation as “[t]he prejudicial effect of the gang evidence, most of
which does not involve defendant directly, is to bolster the prosecution’s case by giving
the jury the impression that the defendant is associated with others who commit crimes.
The gravity and seriousness of the gang evidence creates ‘a substantial danger of
prejudice requiring that the charges be separately tried.[’] [Citation.]” Defendant also
argued that because the community was “jittery” about gangs, in particular given local
media coverage of gang shootings, it would be difficult for jurors to remove their feelings
2 Undesignated statutory references are to the Penal Code.
5
from deliberations. The People opposed the motion as defendant was charged with not
only a gang enhancement but also with the substantive offense of active participation in a
criminal street gang, which would require essentially the same evidence as the
enhancement. Accordingly, the People contended there was no way to separate the cases
and have the jury understand the case. Further, the gang evidence was relevant to the
motive underlying the attempted murder. Specifically, the People argued the attempted
murder was the result of personal animosity between defendant and the victim and also
because they were rival gang members. The trial court ruled defendant had not
established that the probative value of the gang evidence was substantially outweighed by
the danger of undue prejudice. Accordingly, the court denied the motion to bifurcate.
Following a jury trial, the jury found defendant guilty on both counts and found all
the enhancement allegations true. After finding the information had not properly alleged
premeditated attempted murder, the trial court sentenced defendant to the upper term of
nine years for attempted murder plus 25 years to life for the firearm enhancement, and the
upper term of three years for active participation in a street gang plus 10 years for the
firearm enhancement. The sentence on the street gang conviction was stayed under
section 654. The street gang enhancement allegation was struck in the interest of justice.
Various fines and fees were imposed.
DISCUSSION
I
Motion to Bifurcate Was Properly Denied
Defendant contends the trial court abused its discretion in denying his motion to
bifurcate the gang charge and enhancement from the other charges as the relevance of the
gang evidence was minimal and the potential prejudice was great. We disagree.3
3 Defendant cites section 954, which permits the trial court, in its discretion, to sever
charges. However, his argument does not address the factors to be considered in
6
Bifurcation of a gang enhancement may be warranted where the gang evidence is
“so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway
the jury to convict regardless of the defendant’s actual guilt.” (People v. Hernandez
(2004) 33 Cal. 4th 1040, 1049 (Hernandez).) But, “[t]o the extent the evidence
supporting the gang enhancement would be admissible at a trial of guilt, any inference of
prejudice would be dispelled, and bifurcation would not be necessary.” (Id. at pp. 1049-
1050.) “Even if some of the evidence offered to prove the gang enhancement would be
inadmissible at a trial of the substantive crime itself . . . a court may still deny
bifurcation.” (Id. at p. 1050.)
The denial of a motion to bifurcate the trial of a gang enhancement is reviewed for
an abuse of discretion. (Hernandez, supra, 33 Cal.4th at p. 1048.) The “trial court’s
discretion to deny bifurcation of a charged gang enhancement is . . . broader than its
discretion to admit gang evidence when the gang enhancement is not charged.” (Id. at
p. 1050.) There is no abuse of discretion if the gang evidence is relevant to the charged
offense or is not so minimally probative and so inflammatory in comparison that “it
threatened to sway the jury to convict regardless of defendant[’s] actual guilt.” (Id. at
p. 1051.) To show an abuse of discretion, defendants have the burden “ ‘to clearly
establish that there is a substantial danger of prejudice requiring that the charges be
separately tried.’ [Citation.]” (Ibid.)
determining whether a severance motion should be granted: “ ‘(1) the cross-admissibility
of the evidence in separate trials; (2) whether some of the charges are likely to unusually
inflame the jury against the defendant; (3) whether a weak case has been joined with a
strong case or another weak case so that the total evidence may alter the outcome of some
or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder
of the charges converts the matter into a capital case.’ ” (Alcala v. Superior Court (2008)
43 Cal. 4th 1205, 1220-1221.) Rather, defendant’s argument rests solely on his assertion
that the gang evidence had an unduly prejudicial effect and was minimally probative.
Having made no claims as to factors 3 and 4, we need not address them.
7
Here, defendant was charged with not only a gang enhancement, but with a
substantive gang offense. Thus, the gang evidence was directly relevant and admissible
on the issue of defendant’s guilt on a substantive charge. As such, any potential
prejudice was dispelled and bifurcation was not necessary. (Hernandez, supra,
33 Cal.4th at pp. 1049-1050.)
Moreover, even without the substantive gang offense, the gang evidence was
inextricably intertwined with the attempted murder charge. The motive for the offense
here was personal animosity between Pacheco and defendant, as well as the more general
animosity between them stemming from their rival gang memberships. Pacheco initially
identified his shooter as “[s]ome Soreno [sic].” He knew defendant because of their
respective involvement in gangs and knew defendant was a Sureño. Pacheco gave
numerous statements to police identifying defendant as the shooter but by trial was
recanting his earlier statements. Gang evidence was relevant to explain the
inconsistencies between Pacheco’s trial testimony and pretrial statements. Thus, the gang
evidence was relevant and admissible on the attempted murder charge to help the jury
understand defendant’s motive and identity, and to evaluate the credibility of witnesses.
(People v. Samaniego (2009) 172 Cal. App. 4th 1148, 1167-1168; see also Hernandez,
supra, 33 Cal.4th at pp. 1049-1051.) Under the facts of this case, we conclude the court
acted within its discretion in refusing to bifurcate trial of the gang enhancement from trial
of the charged offenses. (Hernandez, supra, 33 Cal.4th at pp. 1050–1051.)
II
Prior Offenses Were Properly Admitted
Defendant next contends the trial court abused its discretion in admitting evidence
of his prior offenses and those of his family members. Defendant argues the evidence of
his prior offenses, as well as those of his family members, had little or no probative value
on the issues of a pattern of gang activity, and the predicate offenses for the gang
enhancement could have been established by convictions of other Sureños. He also
8
contends the evidence was not relevant for some other purpose under Evidence Code
section 1101, such as to establish intent, motive or identity, or common design or plan.
Moreover, defendant contends the evidence was highly prejudicial character evidence.
We disagree.4
Moe testified about a number of offenses involving defendant and his family
members, and testified about the involvement of many of defendant’s family members in
the Sureño gang. In March 2005 defendant and nine other youths dressed in blue, a color
affiliated with the Sureños, attacked two Norteños. Defendant was adjudicated for
battery with serious injury with a gang enhancement. After a traffic stop in November of
2006 Pedro Alvarado, a Sureño, was convicted of carrying a loaded firearm in public.
Defendant was also in the car and was adjudicated as a ward of the court for carrying a
concealed weapon in a vehicle. In May of 2008 Fidencio Mendoza, a Sureño, and
defendant’s older brother Ignacio were convicted of assault with a firearm. Defendant’s
two older brothers and two cousins were also active members of the Sureño gang.
“Evidence Code section 352 provides the trial court with discretion to exclude
otherwise relevant evidence if its probative value is substantially outweighed by the
probability that admitting the evidence will unduly prolong the proceeding, prejudice the
opposing party, confuse the issues, or mislead the jury. (People v. Kirkpatrick (1994)
7 Cal. 4th 988, 1014 [30 Cal. Rptr. 2d 818, 874 P.2d 248].) ‘We apply the deferential
abuse of discretion standard when reviewing a trial court’s ruling under Evidence Code
section 352. [Citation.] . . .’ (People v. Kipp (2001) 26 Cal. 4th 1100, 1121
[113 Cal. Rptr. 2d 27, 33 P.3d 450].)” (People v. Zepeda (2008) 167 Cal. App. 4th 25, 34-
35.) “ ‘Prejudice for purposes of Evidence Code section 352 means evidence that tends
4 We agree with the parties that trial counsel’s objection to the admission of the gang
evidence adequately preserved this issue for review on appeal. Accordingly, we address
the issue on its merits, not as a claim of ineffective assistance of counsel.
9
to evoke an emotional bias against the defendant with very little effect on issues, not
evidence that is probative of a defendant’s guilt.’ [Citation.]” (People v. Tran (2011)
51 Cal. 4th 1040, 1048 (Tran).)
In asserting that the evidence of defendant’s and his relatives’ prior offenses had
little or no probative value, defendant’s argument disregards the fact that he was charged
with not only a gang enhancement, but also with a substantive gang offense. Proof of the
gang enhancement required, among other things, evidence that the gang’s “members
individually or collectively engage in or have engaged in a pattern of criminal gang
activity.” (§ 186.22, subd. (f); see id. at subd. (e).) A “pattern of criminal gang activity”
is defined as gang members’ individual or collective “commission of, attempted
commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or
conviction of two or more” enumerated predicate offenses during a statutorily defined
time period. (§ 186.22, subd. (e); see People v. Gardeley (1996) 14 Cal. 4th 605, 617.)
The predicate offenses must have been committed on separate occasions, or by two or
more persons. (§ 186.22, subd. (e); People v. Loeun (1997) 17 Cal. 4th 1, 9-10.) The
substantive gang offense required the prosecution to prove defendant’s “(1) active
participation in a criminal street gang, in the sense of participation that is more than
nominal or passive; (2) knowledge that the gang’s members engage in or have engaged in
a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or
assistance in any felonious criminal conduct by members of that gang.” (People v.
Albillar (2010) 51 Cal. 4th 47, 56 (Albillar).)
Here, the evidence defendant complains of was relevant on the issues of the
pattern of criminal conduct, defendant’s active participation in the gang, and his
knowledge of the gang’s purpose. The evidence of defendant’s prior offenses and those
in which his family members were involved was relevant to establish the predicate
offenses underlying the pattern of criminal conduct. To the extent defendant argues the
offenses of Sureños other than defendant and his family members could have been
10
utilized instead, the prosecution was not required to so sanitize its case. “That the
prosecution might be able to develop evidence of predicate offenses committed by other
gang members . . . does not require exclusion of evidence of a defendant’s own separate
offense to show a pattern of criminal gang activity.” (Tran, supra, 51 Cal.4th at p. 1049.)
Moreover, the evidence of defendant’s prior offenses, including the battery with a gang
enhancement, which could not serve as a predicate offense, was relevant to establish that
defendant’s involvement with the gang was not nominal or passive. Rather, defendant
and at least one other gang member engaged in an assault against rival gang members.
Finally, the evidence that defendant’s family members had been involved in gang-related
offenses was relevant to establish defendant had knowledge “that the gang’s members
engage in or have engaged in a pattern of criminal gang activity.” (Albillar, supra,
51 Cal.4th at p. 56.) Thus, the evidence complained of was highly probative to establish
a number of elements of the charged offenses.
Furthermore, we cannot find the evidence was unduly prejudicial. Where, as here,
“the prosecution is required to establish the defendant was an active participant in a
criminal street gang and had knowledge of the gang’s criminal activities, the jury
inevitably and necessarily will in any event receive evidence tending to show the
defendant actively supported the street gang’s criminal activities. That the defendant
[and his family members were] personally involved in some of those activities typically
will not so increase the prejudicial nature of the evidence as to unfairly bias the jury
against the defendant.” (Tran, supra, 51 Cal.4th at p. 1048.) In short, the use of evidence
of a defendant’s prior offenses and the offenses of his family members did not “create ‘an
intolerable “risk to the fairness of the proceedings or the reliability of the outcome.” ’
[Citation.]” (Ibid.) Accordingly, we find there was no abuse of discretion in admitting
evidence of defendant’s prior gang-related offenses or those of his family members.
11
III
No Error in Not Giving Limiting Jury Instruction
Defendant contends the trial court erred in failing to instruct the jury on the limited
use of his or his family members’ prior crimes evidence; specifically, that the jury could
not use the evidence “to draw any inference of familial or personal disposition to commit
the charged crimes.” If we find the matter forfeited, defendant argues in the alternative
that counsel’s failure to request such an instruction was ineffective assistance of counsel.
Counsel did not request a limiting instruction on the evidence of defendant’s and
his family members’ prior offenses. The trial court has no sua sponte duty to give such
an instruction. (Hernandez, supra, 33 Cal.4th at p. 1051.) Contrary to defendant’s
assertion, this is not an extraordinary case in which the evidence was both “ ‘highly
prejudicial and minimally relevant to any legitimate purpose.’ [Citation.]” (Id. at
pp. 1051-1052.) As above, the evidence was relevant on elements of both the gang
enhancement and the substantive gang offense. (Id. at p. 1052.) Accordingly, the court
had no sua sponte duty to provide limiting instructions to the jury on the use of this
evidence. We therefore address defendant’s alternate argument that the failure to request
a limiting instruction was ineffective assistance of counsel.
“ ‘To establish ineffective assistance, defendant bears the burden of showing, first,
that counsel’s performance was deficient, falling below an objective standard of
reasonableness under prevailing professional norms. Second, a defendant must establish
that, absent counsel’s error, it is reasonably probable that the verdict would have been
more favorable to him.’ [Citation.] ‘If the record does not shed light on why counsel
acted or failed to act in the challenged manner, we must reject the claim on appeal unless
counsel was asked for and failed to provide a satisfactory explanation, or there simply
can be no satisfactory explanation.’ [Citation.] On this record, we cannot say that
counsel were deficient for not requesting a limiting instruction. ‘A reasonable attorney
may have tactically concluded that the risk of a limiting instruction . . . outweighed the
12
questionable benefits such instruction would provide.’ [Citations.]” (Hernandez, supra,
33 Cal.4th at pp. 1052-1053.)
The instruction explains that evidence of other crimes may not be considered to
show a defendant’s disposition or propensity to commit crimes. It also explains the
proper purposes for which such evidence may be considered, including intent, motive,
identity, and that the crimes were committed for the benefit of a street gang or in
association with a street gang with the intent to promote or assist in criminal conduct by
gang members. (CALJIC No. 2.50.) That is, here the prior offense evidence was
relevant to, and could be considered on, a number of elements of the charged offense and
enhancement. As above, the evidence was relevant on the issues of a pattern of criminal
conduct, defendant’s active participation in a gang, and his knowledge of the gang’s
purpose. Under the circumstances, defense counsel might reasonably have concluded it
was best if the court did not explain all the ways in which the evidence could be used
against defendant. (Hernandez, supra, 33 Cal.4th at pp. 1052-1053.) Given the tactical
risks of requesting a limiting instruction, we find no ineffective assistance of counsel.
IV
Defendant’s Claimed Confrontation Clause Violations
Defendant contends “the trial court prejudicially erred and violated [his]
confrontation rights by admitting evidence of statements made out of court by persons
not presented for confrontation.” Specifically, he complains about the admission of
statements by defendant’s brothers and Mendoza admitting that they were gang members
and identifying their particular subsets. He also contends Moe’s testimony recounting the
contents of a sheriff’s department report describing defendant’s participation in the
battery with serious bodily injury was improperly admitted. Alternatively, to the extent
that counsel failed to object to the admission of these statements, defendant asserts he
was denied effective assistance of counsel. We will conclude that defendant failed to
preserve the right to challenge the statements by a timely and specific objection based on
13
the confrontation clause. Moreover, any challenge would have been futile as the
statements were not rendered inadmissible by the confrontation clause; thus, his counsel’s
failure to object did not constitute ineffective assistance.
A. The Confrontation Clause Generally
The confrontation clause of the Sixth Amendment to the United States
Constitution provides that “ ‘[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.’ ” (Crawford v. Washington
(2004) 541 U.S. 36, 42 [158 L. Ed. 2d 177] (Crawford).) The confrontation clause has
traditionally barred “admission of testimonial statements of a witness who did not appear
at trial unless he was unavailable to testify, and the defendant had had a prior opportunity
for cross-examination.” (Id. at pp. 53-54.) “Under Crawford, the crucial determination
about whether the admission of an out-of-court statement violates the confrontation
clause is whether the out-of-court statement is testimonial or nontestimonial.” (People v.
Geier (2007) 41 Cal. 4th 555, 597, overruled on other grounds in Melendez-Diaz v.
Massachusetts (2009) 557 U.S. 305 [174 L. Ed. 2d 314] (Melendez-Diaz).)
Crawford did not specify what constitutes a testimonial statement for purposes of
the confrontation clause but offered examples of the “[v]arious formulations of this core
class of ‘testimonial’ statements,” i.e., “ ‘ex parte in-court testimony or its functional
equivalent–that is, material such as affidavits, custodial examinations, prior testimony
that the defendant was unable to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecutorially,’ [citation]; ‘extrajudicial
statements . . . contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions,’ [citation]; [and] ‘statements that were made
under circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial’ [citation].” (Crawford, supra,
541 U.S. at pp. 51-52.)
14
The high court subsequently explained that “[s]tatements are nontestimonial when
made in the course of police interrogation under circumstances objectively indicating that
the primary purpose of the interrogation is to enable police assistance to meet an ongoing
emergency. They are testimonial when the circumstances objectively indicate that there
is no such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.”
(Davis v. Washington (2006) 547 U.S. 813, 822 [165 L. Ed. 2d 224]; see also Michigan v.
Bryant (2011) 562 U.S. 344 [131 S. Ct. 1143, 1157, 179 L. Ed. 2d 93].)
The United States Supreme Court continued to grapple with what constitutes
testimonial statements in Melendez-Diaz, supra, 557 U.S. 305; Bullcoming v. New
Mexico (2011) 564 U.S. ___ [131 S. Ct. 2705, 180 L. Ed. 2d 610]; and Williams v. Illinois
(2012) 567 U.S. ___ [132 S. Ct. 2221, 183 L. Ed. 2d 89], but reached little further
consensus. In short, the United States Supreme Court has not provided an exhaustive or
comprehensive list of what constitutes a testimonial statement.
The California Supreme Court has carefully examined the various approaches
adopted by the United States Supreme Court in those cases following Crawford in a
trilogy of its own cases decided in 2012: People v. Lopez (2012) 55 Cal. 4th 569,
People v. Dungo (2012) 55 Cal. 4th 608, and People v. Rutterschmidt (2012) 55 Cal. 4th
650. The California Supreme Court recognized that the United States Supreme Court had
not agreed upon a definition of “testimonial” for confrontation clause purposes. (Lopez,
supra, 55 Cal.4th at p. 581.) Based on its reading of the United States Supreme Court
cases, the Lopez court identified two “critical components” required to find a statement
testimonial: (1) the statement must have been made with some degree of formality or
solemnity (id. at pp. 581-582), and (2) “all nine high court justices agree that an out-of-
court statement is testimonial only if its primary purpose pertains in some fashion to a
criminal prosecution, but they do not agree on what the statement’s primary purpose must
be” (id. at p. 582).
15
B. Trial Testimony and Defendant's Objections
Prior to trial, defendant filed a “Trial Brief re: Admissibility of Gang Evidence.”
Within that brief, under the heading “Incompetent Hearsay Evidence Must be Excluded
at Trial,” defendant argued “[s]everal of the proffered incidents rely heavily upon
statements made by the defendant and others. Because most of those statements are self-
serving statements, containing both exculpatory and inculpatory information, the
statements in their entirety should be excluded at trial.
“Similarly, California courts, in the context of gang expert testimony and
evidence, have excluded gang evidence that is unreliable. For example, courts have held
that a gang expert can not [sic] offer non-specific hearsay regarding an incident unless he
has personal knowledge of the incident.”
Under the heading “The Gang Expert Cannot Render an Opinion Based on
Incompetent Hearsay,” defendant averred, “It is anticipated that the expert in this case
may attempt to rely on hearsay evidence that is irrelevant, unreliable and prejudicial.
Defendant objects first on hearsay grounds.” Defendant did not mention Crawford,
supra, 541 U.S. 36 or the confrontation clause in his trial brief or in argument on the
issues.
Prior to Moe’s testifying as an expert witness, the trial court conducted an
Evidence Code section 402 hearing “to get to the hearsay aspects and other objections
that [defense counsel raised] in his trial brief.” Defense counsel objected to any
testimony by Moe related to gang activity, claiming there was no evidence the shooting
was gang related. The trial court overruled the objection. At no time during that hearing
was there any discussion of Crawford or the confrontation clause.
As relevant to these claims on appeal, Moe testified his general duties in the gang
suppression unit are to “conduct practical enforcement, contact gang members in the
local area, contact and document their activities”; he reviewed letters by gang members
and associates, received outside agency reports regarding arrests or involving gang
16
members, participated in gang-related probation searches and gang sweeps, reviewed
field contact reports detailing contacts with individuals in the community, including
information about tattoos, clothing and associates, and he had had contact with over
1,000 gang members. As a gang officer, he spoke with gang members and associates,
sometimes daily. For the most part, they were willing to speak with him on the street and
were open about their gang memberships. They were less open and cooperative about
admitting their gang memberships when they were being interviewed or interrogated.
Moe would speak with them about their gang affiliations, their associates, how long they
had been in their gangs, their methods of joining the gangs, and what they did to earn
their “stripes and respect.” He would also ask about current trends, symbols, and
rivalries. The court qualified Moe as an expert in the Sureño criminal street gangs.
Moe described a number of photographs depicting defendant, his family members,
and other documented Sureño gang members wearing gang-related clothing, adorned
with gang-related tattoos, and demonstrating gang hand signs. In one, defendant was
demonstrating a hand sign for West Myrtle, a subset of the Sureños. Also in the picture
were two documented Sureño gang members and one admitted gang member. Another
person in the photograph was throwing a gang-related “13” hand sign and had gang
tattoos. Two of the others pictured had gang-related charges pending against them.
In another photograph, defendant was demonstrating the “13” hand sign. Next to
him was a documented Sureño gang member, demonstrating the WM (for West Myrtle)
hand sign and wearing gang-related clothing. Moe also described a photograph of
defendant and Pedro Alvarado that officers found during a traffic stop. During the traffic
stop, Alvarado admitted to being a gang member and had gang-related tattoos. Also
depicted in the photograph were Jose Mangana and Eddie Lopez. Mangana and Alvarado
were throwing gang signs together that indicated they were Sureños and part of the West
Myrtle set. Another picture depicted defendant, his older brother Juan, and two others.
When asked if Juan had “admitted to being a gang member,” Moe answered, “Yes.”
17
Specifically, Juan was part of the West Myrtle set. Another photograph depicted
defendant and Juan wearing gang-related clothing and demonstrating gang symbols.
Defendant’s brother Ignacio was in a photograph with Michael Flores, with the words
“West Myrtle” and the number “13” on the photograph. In another picture of defendant,
Ignacio, and Flores, defendant and his brother were throwing the WM symbol and the
picture had a 13 on it.
Moe testified about an assault with a firearm in which both Fidencio Mendoza and
defendant’s brother Ignacio were involved in shooting Isaac Gomez. Each was convicted
of assault with a firearm and commission of an act for the benefit of a street gang. Moe
had personally spoken with Ignacio several times, and Ignacio had admitted his gang
membership, claiming West Myrtle Sureños. Moe had also spoken with Mendoza, who
admitted his gang membership, claiming YC Trece. It would be common for them to
commit crimes together because the two groups get along and associate with each other.
Moe also testified about a case in which defendant was adjudicated for battery
with serious injury and a gang enhancement. Defendant entered admissions to the
offenses and as a condition of probation was ordered to register as an illegal street gang
member. Moe also testified as to the contents of a sheriff’s report describing the facts
leading to that adjudication. Two documented Norteño members, Benny Castro and
Ricky Diaz, were walking when they saw approximately 10 subjects wearing blue. As
Norteños, they assumed the subjects wearing blue were Sureños. They tried to flee, but
the group caught them. One of the group asked if Castro and Diaz were gang members.
They answered no. The group then assaulted Castro and Diaz, hitting them several times
with hands, feet, and boards. At the end of the assault, Castro’s shoes and Diaz’s cell
phone and jacket were stolen. Defendant’s involvement in the assault was “that he was
identified by one of the co-defendants, Anthony Mendoza, and Benny Castro, as being
involved. Benny Castro identified Salvador as the subject that hit him with the board.”
Defense counsel objected on hearsay grounds to the testimony detailing defendant’s
18
involvement in the assault. The trial court overruled the objection. There was no
objection on the basis of Crawford or the confrontation clause. All of the juveniles
convicted in that case were members of either the YC Trece or West Myrtle Sureños.
Moe testified further that defendant had admitted to being a gang member as early
as 2006. Defendant stated he had been a member since sixth grade. His two older
brothers and two cousins were also active members in the Sureño criminal street gang.
Moe offered an opinion that defendant was involved in criminal street gang
activity and was an active participant in the Sureño street gang. He based this opinion on
the fact that defendant was continually in contact with known Sureño gang members, had
been actively participating with them in the offenses he had been arrested for, had
knowledge of and the ability to demonstrate gang-related hand signs, had gang-related
tattoos, and the fact that he had family members involved in the gang.
C. Defendant's Confrontation Clause Claims Were Forfeited by His Failure to
Make a Specific and Timely Objection
“The right to confrontation may, of course, be [forfeited], including by failure to
object to the offending evidence . . . .” (Melendez-Diaz, supra, 557 U.S. at p. 314, fn. 3;
see also Evid. Code, § 353.) In California, “[t]he general rule is that ‘when an in limine
ruling that evidence is admissible has been made, the party seeking exclusion must object
at such time as the evidence is actually offered to preserve the issue for appeal’ (People v.
Jennings (1988) 46 Cal. 3d 963, 975, fn. 3 [251 Cal. Rptr. 278, 760 P.2d 475]), although a
sufficiently definite and express ruling on a motion in limine may also serve to preserve a
claim (People v. Ramos, supra, 15 Cal.4th at p. 1171).” (People v. Brown (2003)
31 Cal. 4th 518, 547.)
“[A] motion in limine to exclude evidence is a sufficient manifestation of
objection to protect the record on appeal when it satisfies the basic requirements of
Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion is advanced
and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable
19
body of evidence; and (3) the motion is made at a time before or during trial when the
trial judge can determine the evidentiary question in its appropriate context. When such a
motion is made and denied, the issue is preserved for appeal. On the other hand, if a
motion in limine does not satisfy each of these requirements, a proper objection satisfying
Evidence Code section 353 must be made to preserve the evidentiary issue for appeal.”
(People v. Morris (1991) 53 Cal. 3d 152, 190, overruled on another ground in People v.
Stansbury (1995) 9 Cal. 4th 824, 830, fn. 1.) A blanket, pretrial objection to all “hearsay”
evidence proffered under the “guise” of expert testimony is not sufficient to preserve a
confrontation claim because the admission of out-of-court statements does not necessarily
implicate the confrontation clause; to implicate the confrontation clause, the statements
must be both hearsay and testimonial. (Crawford, supra, 541 U.S. at pp. 51, 59-60 &
fn. 9; see People v. Loy (2011) 52 Cal. 4th 46, 66 [“ ‘Not all erroneous admissions of
hearsay violate the confrontation clause. . . . Only the admission of testimonial hearsay
statements violates the confrontation clause . . . .’ [Citations.]”].) Further, a global
hearsay or Evidence Code section 352 objection to the admission of evidence on the basis
of an expert’s opinion does not allow a particular out-of-court statement to be considered
in its appropriate context with regard to whether it is in fact testimonial.
“Under California law, error in admitting evidence may not be the basis for
reversing a judgment or setting aside a verdict unless ‘an objection to or a motion to
exclude or to strike the evidence . . . was timely made and so stated as to make clear the
specific ground of the objection or motion . . . .’ (Evid. Code, § 353, subd. (a), italics
added [by Zamudio].) ‘In accordance with this statute, [the California Supreme Court
has] consistently held that the “defendant’s failure to make a timely and specific
objection” on the ground asserted on appeal makes that ground not cognizable.
[Citations.]’ (People v. Seijas (2005) 36 Cal. 4th 291, 302 [30 Cal. Rptr. 3d 493, 114 P.3d
742].) Although no ‘particular form of objection’ is required, the objection must ‘fairly
inform the trial court, as well as the party offering the evidence, of the specific reason or
20
reasons the objecting party believes the evidence should be excluded, so the party
offering the evidence can respond appropriately and the court can make a fully informed
ruling.’ [Citation.]” (People v. Zamudio (2008) 43 Cal. 4th 327, 354; see Assem. Com.
on Judiciary com., 29B pt. 1A West’s Ann. Evid. Code (2011 ed.) foll. § 353, p. 599.)
“A general objection to the admission or exclusion of evidence, or one based on a
different ground from that advanced at trial, does not preserve the claim for appeal.”
(People v. Marks (2003) 31 Cal. 4th 197, 228.) In general, where a defendant does not
expressly object on confrontation grounds at trial, the constitutional claim is not
preserved for appeal. (See Melendez-Diaz, supra, 557 U.S. at p. 314, fn. 3; People v.
Catlin (2001) 26 Cal. 4th 81, 138, fn. 14 (Catlin); Evid. Code, § 353.)
Thus, to preserve a claim of Crawford error, defendant was required to make
timely and specific objection to identified evidence, rather than a sweeping motion to
exclude a nebulous body of out-of-court statements relied upon by an expert in reaching
an opinion. Where such an objection is made, the prosecution has the opportunity to
show that a particular out-of-court statement is not testimonial and the trial court can then
determine, in the first instance and in the appropriate context, whether the challenged
statement is testimonial.
Here, defendant did not make any objection to any of Moe’s testimony on the
basis of Crawford or the confrontation clause. Rather, during trial, he made only a
general hearsay objection to Moe’s testimony relaying the contents of the sheriff’s report.
Because of defendant’s failure to raise a timely and specific Crawford objection in the
trial court, his claims on appeal regarding Crawford and the confrontation clause are
forfeited.
D. In Any Event, Defendant’s Confrontation Rights Were Not Violated
To prevail on a claim of ineffective assistance of counsel, defendant must establish
both that counsel’s performance was deficient and the errors were prejudicial. If he fails
to establish one prong, we need not address the other. (Strickland v. Washington (1984)
21
466 U.S. 668, 687-688, 691-692 [80 L. Ed. 2d 674]; People v. Ledesma (1987) 43 Cal. 3d
171, 216-218.) Defendant cannot meet that burden here. Defendant claims that counsel
was ineffective for failing to object to the admission of Moe’s testimony that Juan,
Ignacio, and Mendoza had admitted to him they were gang members. As to these claims,
we find the statements were not testimonial and therefore Crawford does not apply.
Defendant also contends counsel was ineffective for failing to object on confrontation
clause grounds to Moe’s testimony setting forth the contents of the sheriff’s report
detailing the facts underlying defendant’s juvenile adjudication for battery with great
bodily injury and a gang enhancement. However, as to this testimony, defendant had
previously waived his confrontation rights as to those charges when he entered an
admission to the offenses. An objection based on the confrontation clause would have
been without merit.
Admissions to gang membership were not testimonial.
Moe testified he spoke with gang members daily and they were willing to speak
with him openly about their gang memberships. He also testified Juan, Ignacio, and
Mendoza had admitted their gang memberships. There was, however, no indication in
the testimony about the context of those conversations or the circumstances under which
they took place. There is nothing in the record that indicates the conversations occurred
as part of a police interrogation, had any degree of formality or solemnity, or were
procured with the primary purpose of creating an out-of-court substitute for trial
testimony. (People v. Valadez (2013) 220 Cal. App. 4th 16, 36 (Valadez).) In fact, Moe’s
testimony that gang members disclaim their gang memberships in the context of
interrogations and police interviews suggests the contrary.
Not every conversation between a police officer and a gang member is necessarily
conducted with the purpose of creating a testimonial substitute for use in a future
prosecution. Police officers may have conversations with gang members for multiple
reasons. “Day in and day out such information would be useful to the police as part of
22
their general community policing responsibilities quite separate from any use in some
unspecified criminal prosecution.” (Valadez, supra, 220 Cal.App.4th at p. 36.) The
information could also be gathered to deter future criminal activity or maintain
institutional security or safety of those already incarcerated. Given Moe’s testimony that
he had many casual, consensual conversations with gang members in which they openly
admitted their gang memberships, we cannot conclude Moe’s multiple conversations with
Ignacio, Juan, and Mendoza were testimonial. Because the statements of Ignacio, Juan,
and Mendoza admitting their gang memberships were not testimonial, counsel was not
ineffective in failing to raise a confrontation clause objection.
Confrontation rights as to juvenile adjudication waived.
Defendant was adjudicated for battery with great bodily injury and a gang
enhancement in 2005 based on his admission to both offenses. In juvenile proceedings,
the court must explicitly advise the minor of his right to confront and cross-examine
witnesses, and in making an admission to the charges, the minor must waive those rights.
The court is required to make an explicit finding that the minor waived his right to
confront and cross-examine witnesses. (Cal. Rules of Court, rule 5.778.)
Crawford is not violated if the defendant had a prior opportunity to cross-examine
the declarant. (People v. Angulo (2005) 129 Cal. App. 4th 1349, 1368.) Here, defendant
had the opportunity to confront and cross-examine the victims and the officers in the
juvenile case when the matters were being adjudicated in the juvenile courts in 2005 by
going to trial on the charges. By electing not to do so, he necessarily waived his right of
confrontation. (Ibid.) The right to confrontation is not Lazarus-like, resurrected after it is
waived when the defendant is charged with additional offenses.
Here, defendant’s confrontation rights were satisfied in the juvenile proceeding.
He waived them. He cannot now reclaim them. Accordingly, counsel was not
ineffective for failing to raise a Crawford objection to the testimony regarding the
sheriff’s report.
23
V
No Ineffective Assistance of Counsel or Prosecutorial Misconduct
Defendant’s final contention is that trial counsel was ineffective when he “failed to
move to strike the gang expert’s comment that the Mexican Mafia controls gang
members on the street by using attorney-client privilege or for a mistrial” based on this
statement. He also contends counsel was ineffective for failing to object to improper
comments made by the prosecutor in summation. Defendant contends Moe’s statement
“cast aspersions upon defense attorneys as a class, suggesting that they are generally so
foolish or so corrupt that they are easily manipulated by the Mexican Mafia.” He goes on
to contend such a comment “could only inflame the jury against both counsel and client
and arouse the suspicion that [defendant’s] defense was likewise manipulated by the
Mexican Mafia.” As to the claimed prosecutorial misconduct, defendant contends the
prosecutor improperly “urged the jury to use the prior offense evidence to infer a
disposition to commit crimes on the part of [defendant] and his family,” and the
prosecutor failed to prevent Moe “from blurting out irrelevant information about
[defendant’s] family members’ involvement in criminality [citation] and the comment
that the Mexican Mafia controls gang members on the street, among other ways, by using
attorney-client privilege.”
As detailed above, to establish ineffective assistance of counsel, defendant must
show both deficient performance by counsel and prejudice. Where, as here, the record
provides no information as to counsel’s reasons for failing to act in a particular manner,
we must reject the claim on appeal unless “ ‘there simply can be no satisfactory
explanation.’ [Citation.]” (Hernandez, supra, 33 Cal.4th at p. 1053.) Defendant has not
met this burden.
Expert’s Statement
When describing the history of the Sureño street gang, Moe relayed the connection
between the Sureños and the Mexican Mafia. He indicated it was common for Mexican
24
Mafia prison gang members to control what Sureños do on the streets by “using the
miniature style writing. In my training and experience, I’ve come across miniature
writings, the kites, which are hit lists. They have marching orders to go out and tell an
individual to establish a regiment in a certain area. They communicate through attorney-
client privilege. They communicate through ghost writing, which is different ways
through -- it’s [invisible] writing.
“They’re able to bring it out, through a heat source. They communicate by gang
members themselves getting out of prison on -- given orders in prison. Once they’re
paroled, they take the orders to the street and put them in order.” Moe then went on to
describe the relationship between the Sureños and their rivals, and their territories.
We simply do not agree with defendant that these comments cast aspersions on
defense counsel’s character and integrity as a class or by implication on defendant’s
specific trial counsel. (See People v. Maciel (2013) 57 Cal. 4th 482, 525.) But even if
they could be so interpreted, counsel was not ineffective for failing to object and moving
to have the comments stricken. “[T]he decision whether to object, move to strike, or seek
admonition regarding such testimony is highly tactical, and depends upon counsel’s
evaluation of the gravity of the problem and whether objection or other responses would
serve only to highlight the undesirable testimony.” (Catlin, supra, 26 Cal.4th at p. 165.)
Viewing the statement in its context, it was a passing and obscure comment, not likely to
be understood by the jury as impugning defense counsel as a class or in particular.
Objecting to the statement and seeking to have it stricken would have drawn attention to
the statement it did not otherwise warrant. It was a reasonable tactical decision to not
draw undue attention to the statement by moving either to strike it or for a mistrial.
Prosecutorial Conduct
In closing argument, relative to the gang enhancement allegation, the prosecutor
sought to explain to the jury what “a pattern of criminal activity” meant. He discussed
the four possible predicate offenses. He then went on to discuss the Sureño gang’s
25
primary activity as committing violent crimes. In that context he argued, “Let’s look to
those predicate acts and offenses. All offenses committed by [Sureño] gang members
here in Sutter County. The dates, the shooting of Isaac Gomez, December 31, ’07. Two
and half [sic] months later is when [defendant] tried to shoot Mr. Pacheco. Big brother,
little brother. And I’m going to use an example that I think is appropriate.
“I have a 10-year[-]old son. He is a very good baseball hitter. He hit two home
runs out of the park last year. I have a seven-year[-]old son who looks up to his big
brother a lot. Wants to be a great hitter just like his older brother. In a similar way, that’s
what we have here. [Defendant’s], older brother, tried to kill a rival gang member,
December 31st, ’07. His younger brother, [defendant], tried to kill a rival gang member
two and a half months later.”
Defense counsel responded to this argument in his own closing argument, stating,
“[the prosecutor] says in essence that my client has a bigger brother, older brother that he
wants to emulate. That’s my big word. But there’s no facts of that. That’s no
significance. That is something that [the prosecutor] is expressing as his view of the
case; and his opinion on the case, it is not a fact.
“There’s no fact that says [defendant] wants to be like his big brother.” In
rebuttal, the prosecutor argued, “And [defense counsel] said it’s my opinion that
[defendant] is trying to emulate his big brother. Well, that is my opinion. But my
opinion is not what’s most important. It’s what your opinion is. The Evidence Code [sic]
has shown that his older brother -- and I’m not exactly sure if it’s the one in court. But
his older brother did try to kill a rival [Norteño] gang member only two and a half months
before [defendant] tried to kill a [Norteño] gang member. That definitely shows a pattern
of violence by that family, a pattern of violence against the rival gang. A pattern of
violence that shows that family is out to do whatever it takes for their gang.”
We do not agree with defendant’s conclusion that these statements in closing
argument amounted to prosecutorial misconduct. “ ‘ “It is settled that a prosecutor is
26
given wide latitude during argument. The argument may be vigorous as long as it
amounts to fair comment on the evidence, which can include reasonable inferences, or
deductions to be drawn therefrom. [Citations.]” ’ ” (People v. Williams (1997)
16 Cal. 4th 153, 221.) The statements here were a fair comment on the evidence and
included what was plainly the prosecutor’s inference from that evidence. We also
disagree with defendant’s interpretation of the record. The prosecutor was not arguing
that there was a familial propensity or disposition to commit crimes. The prosecutor was
arguing that in shooting Pacheco, defendant was emulating the acts of his older brother,
actively engaging in the gang’s primary activity, and establishing the requisite pattern of
criminal conduct. Defense counsel’s statements in closing argument reveal that was his
interpretation of the prosecutor’s statements as well. “There was no misconduct, hence
no ineffective assistance.” (Id. at p. 224.)
DISPOSITION
The judgment is affirmed.
RAYE , P. J.
We concur:
NICHOLSON , J.
BUTZ , J.
27