P. v. Lobretto
Filed 6/23/06 P. v. Lobretto CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
Plaintiff and Respondent,
TIMOTHY ALAN LOBRETTO,
Defendant and Appellant.
(Super. Ct. No. 01CM2044)
APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.
David R. Mugridge for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Timothy Alan Lobretto was convicted of numerous crimes arising from two incidents at a motorcycle club. In addition, the jury found that he committed all of the felony crimes for the benefit of a criminal street gang, the Hell’s Angels. He raises numerous issues focused primarily on two areas: the gang enhancements and the competency of his trial counsel. We affirm.
Defendant and several others were charged by information with 15 counts arising from two incidents in March of 2001. In addition, it was alleged that the crimes were committed for the benefit of a criminal street gang. Defendant’s trial was severed from the other defendants.
A series of attorneys represented defendant. Some of the counsel substitutions were based on defendant’s requests to retain new counsel. One of his attorneys, a retained counsel, was removed from this case after he suffered a self-inflicted gunshot wound shortly before trial was to begin. The matter was continued for some time waiting for defense counsel to regain emotional stability. The trial court eventually appointed James Oliver to represent defendant. Oliver had represented defendant early on in the proceedings. Days before trial, defendant sought to substitute newly retained counsel in the place of Oliver. The court denied the motion. Trial began on October 5, 2004.
The jury found defendant guilty of two counts of misdemeanor false imprisonment, four counts of second degree robbery, one count of second degree burglary, one count of assault by means of force likely to produce great bodily injury with a great bodily injury enhancement, one count of simple misdemeanor assault, and three counts of false imprisonment. As to all the felony counts it was found that defendant committed the crimes for the benefit of a criminal street gang. Defendant was found not guilty of three counts of dissuading a witness.
Defendant was sentenced to prison for an aggregate term of 23 years and eight months. The gang enhancements (including one 10-year term) amounted to 15 years and four months of the total term.
A. Background and Facts Relating to the Crimes
Defendant was an avid motorcycle enthusiast. In December of 1998, defendant approached others about forming an organized club. Defendant and others met at defendant’s house and five of them agreed to form a new club, the Exiled Motorcycle Club (Exiled).
The members consisted of defendant, Paul Goonan, Richard Whitlock, Frank McDaniel, and Wes Seruntine. They designed a patch for the club using shades of orange and gray to align themselves with the red and white colors of the Hell’s Angels Motorcycle Club (Hell’s Angels). They designated the following March 15 as the birth date of their club, March 15 also being the celebrated birth date of the Hell’s Angels.
Exiled held weekly meetings and collected dues. The group found a clubhouse location and fixed it up. Some members brought personal property to the club. When property was brought to the club, the individual would let the members know if the property was to remain personal property or was to become club property. Donated property was treated as club property, while lent property remained the personal property of the lender. Some property was purchased with club dues, for example the security system. Members always had the opportunity to come back and reclaim their personal property from the clubhouse. Andy Randazzo, Mark Craver, and others became members of the club. The members of the club wanted to be looked upon as a decent motorcycle club and did not want to get involved in illegal activities.
Exiled associated with Scream City Motorcycle Club in Fresno. Scream City eventually became the Fresno County chapter of Hell’s Angels. Exiled members wore patches to indicate their affiliation and support for the Fresno Hell’s Angels. Exiled was mentored by the Fresno Hell’s Angels and received information to train them and align them with the established ways of the Hell’s Angels. Exiled members would assist at Hell’s Angels functions doing “flunky” work.
The Mongols Motorcycle Club is a rival to the Hell’s Angels. The Exiled clubhouse was in Mongols territory. It was a subject of concern that Exiled members had to drive through Mongols territory when they traveled to and from their homes to the clubhouse.
In September 2000, Paul Goonan was deployed by the Navy on a cruise, at which time defendant and Craver left Exiled to instead associate with the Fresno chapter of the Hell’s Angels. Before Goonan left on his cruise, he said something offensive to Cydnie Newsome, defendant’s girlfriend, at the clubhouse. He said he loved her; he then grabbed her and kissed her. While she was trying to get away, they were interrupted and Goonan left the area. While Goonan was on his cruise with the Navy, he called Newsome and told her he was thinking about her. Cydnie handed the telephone to defendant. During Goonan’s birthday party in February of 2001, Goonan verbalized that he wanted to perform a certain sexual act with Newsome.
In February of 2001 there was rising tension between the Hell’s Angels and the Mongols motorcycle club in other parts of California. There was a concern that the Exiled clubhouse might be taken over by the Mongols because it was in their territory, or the Mongols might exact some kind of retaliation on Exiled. Exiled was instructed by Hell’s Angels that if they had firearms they should always carry them and if they were going to ride anywhere they should do so in groups of two. Defendant was present during these discussions.
On February 24, 2001, Goonan spent the night at the Exiled clubhouse with his girlfriend, Angela Clark, and his son. On the morning of February 25, 2001, others arrived at the clubhouse, including defendant and Brian Wendt, sergeant of arms of the Fresno Hell’s Angels. Defendant entered the clubhouse and took a shotgun, rolled it in a sheet and handed it to Wendt, who removed it from the clubhouse. Wendt also asked for the telephone list for the Fresno chapter of Hell’s Angels. Wendt took the list and left with others, including Exiled members Wes Seruntine and Dave Wilson.
Seruntine and Wilson returned and told Goonan they had been instructed to burn any documentation in the clubhouse that had any ties to the Hell’s Angels. They lit a fire and started to go through the paperwork in the clubhouse. Goonan objected. He called Randazzo, and Randazzo came to the clubhouse. Randazzo was very upset because they were burning some of his personal paperwork along with the paperwork affiliated with the Hell’s Angels. Things got heated and different individuals grabbed weapons. Randazzo had a gun and told everyone to shut up. Seruntine and Wilson surrendered their Exiled patches because they wanted to affiliate with Hell’s Angels and not Exiled.
On March 2, 2001, Goonan accepted an invitation to come to the clubhouse of the San Diego chapter of the Hell’s Angels. There was an altercation at the clubhouse. While at the San Diego clubhouse, Goonan and a person named Perez had a discussion regarding a woman both Goonan and Perez had dated.
On March 3, 2001, Goonan went to a party held by the Fresno Hell’s Angels. He went to show them their (Exiled) ranks had not changed and they were still supporting the Fresno Hell’s Angels. Wendt questioned Goonan about his trip to San Diego. Members of the Hell’s Angels instructed Goonan that they wanted to have a meeting with Exiled at their clubhouse on March 4th.
On March 4, 2001, Goonan, Randazzo, and two other Exiled members were present at the clubhouse. Eight members of the Fresno chapter of the Hell’s Angels arrived in four or five trucks at noontime. Defendant was one of the eight individuals who arrived at the clubhouse.
Goonan went outside and met the group. Craver locked the gate of the fence surrounding the clubhouse. The eight individuals were all dressed in Hell’s Angels attire. They entered the clubhouse. Defendant unplugged the telephones in the clubhouse and told all of the Exiled members to turn off any communication devices and pile them on the bar.
The Exiled members were told by the Hell’s Angels that Exiled was no longer a club. The membership numbers were too low and they were not in a position to defend themselves. Exiled was told that their club was being dissolved for their own good and their own safety from the Mongols. The Exiled members were told to remove their patches from their clothing. Goonan was angry and told them they did not have the right to do this. They responded they did not care, they were shutting them down.
The Hell’s Angels began removing items from the clubhouse and took them out to their trucks. The group took stereos, security equipment, compact discs, flashlights, a microphone, kitchen equipment, alcohol, memorabilia, and other items with a total value in excess of $2,000.
Goonan and Randazzo objected to the takings, but the Hell’s Angels did not care about their objections. They did not try to stop the Hell’s Angels from removing items because they did not want a conflict. Randazzo spoke up when they tried to remove the big screen television because he had paid for that with his personal funds. The Hell’s Angels left the television, as well as a few other things, in the clubhouse. The Hell’s Angels were at the clubhouse about two hours. Exiled members did not call the police because they were afraid of retribution. They were told they could keep the clubhouse open but not as a motorcycle club. Defendant was one of the individuals removing items from the clubhouse.
After the March 4, 2001 incident Goonan, his girlfriend Clark, and others fixed up the clubhouse. They restocked the bar and bought decorative items with their own money. In addition, they installed a new security system they had ordered but not received prior to the March 4, 2001 incident.
Goonan and others decided they would have their usual open house type of event on March 8, 2001 at the clubhouse. The clubhouse now had a generic motorcycle type of atmosphere without showing any support for any particular club.
On the evening of March 8, 2001, several people met at defendant’s house. They took three vehicles to go to the clubhouse and remove property. There were no weapons carried by the group, but Cydnie Newsom (defendant’s girlfriend) knew it was possible violence would be involved in the evening’s events.
Goonan, Clark, Randazzo, Kim Hake and her boyfriend Bob Clay were at the clubhouse on the evening of March 8, 2001. Goonan and Clark were looking at the new security monitor in the clubhouse when they saw a group of trucks pull up quickly and park in the back of the clubhouse. Goonan ran outside and could tell the situation was hostile. He then ran inside the office, told Randazzo what was going on, and ran behind the bar.
Twelve individuals entered the clubhouse: Wes Seruntine and his wife Andrea, Terry Wilson, Cydnie Newsome, Mark Craver, David Wilson, Timothy Ogawa, Brian Wendt, Tim Farrell, Tommy Tracy, Jacob Cannegieter, and defendant. Defendant was one of the first people in the door. He came behind the bar and shoved Goonan out of the way. Defendant had shoved Goonan away from the place where a gun was kept under the bar. Defendant told Hake and Clay to leave. They left.
Newsome turned off the monitor for the security camera; she then went around the bar and grabbed the telephone. Cannegieter went around the clubhouse and closed all of the blinds. Tim Farpella secured all of the doors. Ogawa secured the front door and then stood in front of it.
When defendant first spoke to Goonan, he commented on the sexual comments that Goonan had made about his girlfriend, Newsome. As defendant screamed at Goonan, Craver started screaming at Randazzo. Several people were holding Randazzo against the wall. Craver hit him several times, as did others. Wilson ran from across the room at full speed and hit the top of Randazzo’s head with both hands, like a pile driver, splitting his head open and temporarily knocking him out. The attackers removed Randazzo’s gun from his pocket.
Clark saw two or three guns on the pool table during the altercation; one of the guns was disassembled. Newsome said there were “maybe” three guns inside the clubhouse on the pool table. One gun was from Goonan, one from Randazzo, and Newsome did not know where the other gun came from.
While Craver and others were beating Randazzo, defendant hit Goonan in the face five or six times. Goonan fell to the floor and tried to cover up. Seruntine and Cannegieter picked Goonan up while defendant was kicking him in the face. Seruntine also punched Goonan, who was now unconscious, while defendant held him.
While Randazzo and Goonan were being beaten, Clark was cornered by the women to keep her from helping Goonan. When the beating was finished, defendant had blood all over his hands and arms. He asked Clark if he needed to get an AIDS test. She said no. Defendant went into the bathroom and washed off the blood. Clark was granted permission by defendant to help Goonan.
Defendant gave Randazzo a rag so Randazzo could wipe the blood off of his face so he could see better to open the safe. Randazzo opened the safe and the group took all of the money out of it, estimated to be about $200. The group took the keys to the clubhouse, the liquor, the food, and other items. Defendant allowed Randazzo to keep some personal items.
Craver or defendant instructed Randazzo to change the title on the lease and to turn the clubhouse over to a motorcycle club named the Soldiers for Jesus.
Goonan was in bad shape. He was helped off the floor to Clark’s car. Clark was told to walk to her car; five people including defendant walked behind her to the car. Defendant told Cannegieter to guard Clark until they were ready to let her leave; he held onto her car keys. Goonan suffered lapses of consciousness. Defendant told Clark to nurse Goonan back to health. Defendant told Clark she should not go to the police or tell anyone what happened because she knew who defendant was and who he represented. Defendant told her they would find her no matter where she was and they would finish what they started.
Defendant told Randazzo that if they went to the hospital or anything like that they would kill them. Defendant said, “you know who we are, we’re everywhere, you know we’ll find you, we’ll kill you” or something along those lines.
Clark was allowed to leave. She drove, with Goonan in the car, to her apartment. She waited 40 minutes then she drove to Randazzo’s house. She wanted to get a story straight with Randazzo before she went to the hospital. Randazzo was “busted up” but did not want to seek medical attention. They decided to say that Goonan had been jumped. She took Goonan to the hospital.
Goonan sustained trauma to his face. He had a tripod fracture of his right cheek and another fracture of a bone in his face . The injury was significant and required surgical repair. His face was put back together and fixed with two titanium plates and several screws. Goonan continued to suffer from hearing loss, a crushed nasal passage, and a loss of feeling to the right side of his face.
B. Events Occurring After the Crimes
Initially Goonan and Clark lied to the police about what happened because they feared retaliation. They eventually came forward and related what happened.
On April 18, 2001, law enforcement wired Randazzo with a transmitter. He had a conversation with defendant about the March 8, 2001 incident. The audiotape revealed their discussing that defendant had a personal problem with Goonan. Defendant discussed that he was upset at the way things were happening at Exiled. Defendant also mentioned that there was a fear that the Mongols would take over the clubhouse and the incident was a “check.”
On May 19, 2001, a field supervisor for the gang task force attended a motorcycle run in Selma. Jeffrey Morales was there in a Fresno Hell’s Angels vest. He was with Craver and Ogawa. Craver and Ogawa were wearing “prospect” clothing, indicating they were not yet full fledged members of the Hell’s Angels, but were considered prospects.
In July of 2001, law enforcement served search warrants and searched the homes of some of the participants in the March 2001 incidents, the Fresno Hell’s Angels clubhouse, as well as the homes of some individuals believed to be members of the Fresno Hell’s Angels.
A search at the home of Cannegieter produced a motorcycle with Hell’s Angels emblems, a helmet with Hell’s Angels stickers on it, a Hell’s Angels jacket, a Hell’s Angels vest, and other items.
At the home of Ogawa, officers found a Hell’s Angels jacket, numerous weapons, telephone lists for various clubhouses, a body armor vest, and other Hell’s-Angels-related items.
David Wendt’s residence was also searched. Officers found documents related to the Hell’s Angels, as well as Hell’s Angels clothing. Weapons were also found in the home.
At the home of Wes and Andrea Seruntine, officers found a Hell’s Angels vest, tee-shirt, hat, and a book.
George Tristan’s home contained numerous items linking him to the Hell’s Angels. In addition, a loaded shotgun and a knife were found in his home.
A Hell’s Angels vest with Fresno patches and motorcycle items were found in the home of Henry Garcia.
The home of Bob Davis was searched. It contained photographs of Davis in Hell’s Angels clothing and one picture showed him exhibiting several firearms.
Mark Craver’s home was searched. It contained a vest with a patch indicating that Craver was a prospect with the Hell’s Angels. It contained other Hell’s Angels material as well as numerous weapons. All of the weapons were legal except the butterfly knife.
Officers served a search warrant at defendant’s home on July 11, 2001. Defendant expressed anger at the officers who were pounding on his door. He refused to come out and/or follow orders. Defendant was forced to the floor. He was kicking and trying to get away. Defendant told the officers they were making a big mistake and did not know who they were messing with.
At defendant’s home officers found a Hell’s Angels jacket with patches indicating that defendant was a prospect with Fresno County chapter of the Hell’s Angels. In addition, officers found a telephone list of various chapters, as well as other Hell’s Angels telephone lists. Several guns were found in the bedroom with several boxes of ammunition. The guns were not seized because they were not stolen or otherwise illegal.
The clubhouse of the Fresno chapter of the Hell’s Angels was searched. The main building contained a pool table, full bar, kitchen area, big screen television and a lot of Hell’s Angels memorabilia. The clubhouse contained Hell’s Angels signs, documents, books, and photographs. In addition, multiple guns and ammunition were found. Surveillance cameras and a cardboard box with a shipping label were found in the Hell’s Angels clubhouse. Randazzo identified these items as having come from the Exiled clubhouse.
Jeffrey Morales testified at trial that he was currently a member of the Hell’s Angels Fresno chapter. Morales pleaded guilty in 1990 to one count of conspiracy to manufacture and distribute methamphetamine. At the time of this conviction he was a member of the Haites Riders motorcycle club. He testified that he believed that Mike Lynch, Henry Garcia, Bob Davis, Brian Wendt, David Wendt, George Tristan, and Timothy Ogawa were either Hell’s Angels or had been Hell’s Angels. Morales did not know the status of defendant or Craver because he was not around at that time.
C. Evidence Regarding Hell’s Angels Organization
The Hell’s Angels began in 1948 in San Bernardino. The club grew and there are now chapters throughout the United States, Canada, Western Europe, South America, Africa, Spain, Portugal, and New Zealand. The Hell’s Angels are extremely territorial, along county lines. The current rival of the Hell’s Angels is the Mongols.
Usually clubs are divided by county into chapters. Each chapter must have at least four members, although six are normally required. Membership can be in excess of 30 members. Each chapter has a president, vice president, sergeant at arms, secretary, treasurer, and oftentimes a trademark or copyright representative to enforce issues involving the insignia. The sergeant at arms collects intelligence about their members and others.
In the organizational structure of the United States above the chapters, there are West Coast Officers’ Association and East Coast Officers’ Association; they meet once a month. After each meeting, the officers fax information to the other areas to let them know what is going on worldwide. The meetings are attended by at least one representative from every chapter. Events usually occur immediately before or after meetings. They spend a lot of time at the meeting discussing how to profit from the Hell’s Angels insignia yet still protect its use in certain instances strictly for use by the Hell’s Angels. At other times meeting conversations are criminally related. The weekly meetings held by each Hell’s Angels chapter are referred to as “church.”
The Hell’s Angels also have a world meeting. At least two representatives from every country must be at the world meetings. World officers’ meetings are held two times per year.
In order to become a Hell’s Angel, one must first be in the “one percenter” motorcycle community and start associating with Hell’s Angels. At this point, the individual becomes an associate. At the next level an individual is sponsored by a full member to become a hang-around. The individual then becomes a prospect, which requires a unanimous vote of the chapter. A unanimous vote is also required to become a full chapter member. The same types of rules apply to a motorcycle club wanting to become a chapter of Hell’s Angels.
The Hell’s Angels claim red and white as their colors and no other group can wear that color. Outlaw Motorcycle clubs wear a three piece patch and also a “1%” patch. A full member of Hell’s Angels wears a three-piece patch. The top rocker of the patch says “Hell’s Angels.” The middle patch is the death head and the bottom rocker patch indicates the particular chapter of the member. A full patch member is a full member who may wear all three portions of the patch. In addition, only a full patch member may have a death head as a tattoo. Only full-fledged members can hug each other and give taps on the back.
In addition to the full patch and 1% patch, some Hell’s Angels earn a “Filthy Few” patch. A Filthy Few patch can be earned by killing or assaulting someone for the benefit of the club. Filthy Few patches have more than one meaning, depending on the look of the patch. A Filthy Few patch with black lettering, a black border and double ss lightening bolts between the words “filthy” and “few” means that individual has committed murder.
As an individual moves up the membership ranks he is constantly tested. For example, if a full member vomits a prospect is expected to clean it up. Individuals are tested in other ways. It involves any kind of “taking care of business.” (Hell’s Angels often wear a patch that says “TCB” and that stands for “Taking Care of Business.”) Taking care of business can range from being capable of violence, knowing how to fight, being able to manufacture methamphetamine, or having a good connection for drugs or guns.
Being a Hell’s Angel requires loyalty to the Hell’s Angels above loyalty to family or anything else. The ability to carry out violence and instill fear in others assists in rising in the ranks of the Hell’s Angels.
The sergeant of arms keeps things under control and if violence is necessary he is in charge of organizing that. He also maintains intelligence on informants and narcotics officers. Common among all outlaw motorcycle gangs is hostility toward law enforcement.
The Hell’s Angels have some common sayings and rules. For example, one of their sayings is that three people can keep a secret when two are dead. One of their rules is the “Rule of Three.” The Rule of Three is demonstrated by the following example: If a Hell’s Angel chapter wants to take control of a bar to sell drugs, the first time they go to the bar seeking control they are nice. If they are refused, they go in a second time wearing their patches and try to intimidate the owner of the bar and all the clients. If the owner still refuses to cooperate, then their third action would be something bad like beating the owner or burning down the bar.
D. Criminal Convictions and Activities of Hell’s Angels Members
Numerous law enforcement officials testified regarding particular criminal incidents involving members of the Hell’s Angels and many testified regarding criminal convictions of members of the Hell’s Angels. We set forth the most egregious incidents in this discussion.
Renato Gianinni, a retired police officer from San Bernardino, testified about an incident he witnessed in 1997. During the incident, a citizen drove by a Hell’s Angels party and accidentally bumped one of the motorcycles. Members left the clubhouse and beat up the driver while an 11- or 12-year-old child was on the floorboard of the vehicle. This incident was caught on videotape and the tape was played for the jury.
Jason Smith, a police officer for New Market, New Hampshire Police Department, was working the Laconia Motorcycle Week in New Hampshire in 1998. Sergeant Moyer of the police department yelled out that there was a fight when he saw a group of Hell’s Angels chasing a male into the roadway. The intervention by police officers was at first unsuccessful as the Hell’s Angels kicked, punched, pepper sprayed, and hit the responding officers with bottles and a police baton. Officer Smith gave a detailed account of this encounter and numerous photos of the incident were admitted into evidence.
Jaques Morin, a Royal Canadian Mounted Police Officer and a member of the International Outlaw Motorcycle Gang Investigators Association, testified regarding the Hell’s Angels in general and their activities in Canada. He testified that one of the primary revenue making activities for the Hell’s Angels is drug trafficking. Murder is one of the main things they participate in during territorial disputes. From drug trafficking, to murders, to controlling the sex parlors, any offense in the criminal courts and the Hell’s Angels are involved in it.
Morin introduced Canadian criminal documents for Maurice Boucher, who started the drug war in 1995 against the Rock Machine. Boucher was convicted of two murders and one attempted murder for his activities. Morin testified that during the Hell’s Angels drug war with the Rock Machine over 165 people were killed, and 261 arsons occurred. One hundred thirty-five Hell’s Angels were arrested.
Morin testified about a drug raid in Canada where they seized over $6,000,000 in cash. Fifty people were found guilty and they were Hell’s Angels or associated with the Hell’s Angels.
Timothy McKinley, a former Federal Bureau of Investigations agent, testified about Hell’s Angels and particular incidents of criminal activity involving Hell’s Angels. He testified regarding a Hell’s Angels member in Merced with a unique fighting skill. He would place his left hand on the side of his victim’s skull and strike a vicious right hook, crushing the skull and killing the victim with one blow. His sweatshirt read “Right Hook New Look.”
McKinley also testified regarding the 1978 Compton murders by the Hell’s Angels. Margo Compton had been a prostitute for the then president of the California Nomad chapter of the Hell’s Angels. An associate, Flash Gordon, also a Hell’s Angel, was operating a massage parlor called the Love Nest. Margo was one of the masseuses at the Love Nest. In order to keep her in line, they kidnapped her twin four-year-old daughters and held them to ensure that Margo continued to prostitute. She eventually went to the police department. After she testified at the preliminary hearing, people broke into her residence and killed the person on the couch assigned to guarding her. Her now six-year-old girls fled to the bedroom and covered their heads with a pillow. The triggerman lifted the pillow to see where their heads were, put the pillow back down and shot them. Then they killed their mother, Margo.
McKinley testified about the murder of William Ivan Grendolski. Grendolski left the Hell’s Angels. It was reported that he was in bad standing, and the Hell’s Angels were looking for him. He, his wife, his 17-year-old stepson, and his five-year-old daughter were murdered. It took 13 years and three trials to convict one of the two perpetrators and took 18 years to convict the other perpetrator. The individuals convicted of the murders were connected to the Hell’s Angels.
McKinley testified about a judge in Ohio who issued a directed verdict in favor of a Hell’s Angels in a murder case. The judge had been given a bribe. He was convicted of the bribe and died shortly thereafter in custody.
The prior convictions of Hell’s Angels included: (1) solicitation of murder (David Winn, San Bernardino, California), (2) for conspiracy to commit racketeering and conspiracy to murder (Guy Castiglione, current president of San Diego chapter), (3) two counts of felony witness intimidation in 1984 (Ronald Liquori, San Diego), (4) burglary in 2000 (Billy Castellano, San Diego), (5) burglary and assault with force likely to cause great bodily injury in 2001 (Thomas Castiglione, San Diego), (6) assault and possession of cocaine in 2002 (Chris Yvonne, San Diego), (7) conspiracy to sell drugs (George Christie, Ventura), (8) conspiracy to sell or transport methamphetamine in 2000 and 2001 (Timothy Giradins, Ventura), (9) felony assault in 2000 (Sabin Reynosa, Ventura), (10) assault with a deadly weapon in 2000 (Michael Kapps, Ventura), (11) transportation of methamphetamine, conspiracy to possess methamphetamine and possession of methamphetamine in 2001 (Edward Gregory, Ventura), (12) numerous drug and weapons charges (Robert Hill, Ventura), (13) murder in 1994 (Thomas Health, Ventura), (14) possession of a controlled substance for sale and simple possession of methamphetamine (Jimmy Shankles, Ventura), (15) manufacturing methamphetamine in 1997 (James Elrite, president of the San Jose chapter), (16) conspiracy to distribute methamphetamine and aiding and abetting possession with intent to distribute methamphetamine in 1996 (Carl Serrano, San Jose), (17) possession of methamphetamine in 1996 (Gary Foster, who became a Hell’s Angel in the Monterey chapter in 1997), (18) narcotics trafficking in 2001 (Rusty Coomes, president of the Orange County Hell’s Angels), (19) possession of methamphetamine for sale (Robert Downey, Orange County), and (20)conspiracy to distribute methamphetamine (Timothy Dover and Arthur Carasis, Richmond).
E. Criminal Street Gang Expert Opinion
Javier Gil-Blanco, a former San Jose police officer, testified that one of the primary activities of the Hell’s Angels is criminal activity. He described the structural organization of the Hell’s Angels and also described the tattoos that identify members of the Hell’s Angels. It was his opinion that the Hell’s Angels are a criminal street gang.
Thomas McKinley testified that one of the primary activities of the Hell’s Angels is criminal activity, including assault with a deadly weapon, assault with force likely to cause great bodily injury, homicide, attempted homicide, illegal drug activity, witness intimidation, and threats to commit crimes resulting in death or great bodily injury.
The “cross-pollination” between Hell’s Angels chapters is a substantial component of their success as a criminal organization. McKinley concluded that, even if Goonan made comments regarding defendant’s girlfriend and although the Fresno Hell’s Angels were inexperienced, the crimes were committed for purposes that benefited the Hell’s Angels.
Angela Clark was Lisa Martinez’s roommate in 2000-2001. Martinez testified that Clark drank excessively. Martinez had conversations with Clark about Goonan. Goonan had a temper and said that if his belongings were taken or club money was not accounted for he would take matters into his own hands.
Kim Hake testified that she knew Goonan well enough to stay away from him. Goonan was a heavy drinker and so was Randazzo. Randazzo was known to carry weapons. Hake went to the Exiled clubhouse on March 8, 2001 with her boyfriend, Bob Clay. She learned that night that the club had been disbanded. Goonan said that everything in the clubhouse was now his.
George Swigart was in the Navy with defendant. Swigart became involved with Exiled when Goonan was not around and became a member in December of 2000. He was present on March 4, 2001 when the club was disbanded. The remaining four members took their patches off and everything that was affiliated with the “red and white” (Hell’s Angels) went into a stove because they were a support club for the Hell’s Angels but were located in Mongol territory. No one threatened anyone on the 4th, no doors were locked or closed, and Swigart did not see any weapons.
Defendant took the Exiled patches on March 4, 2001, but returned Swigart’s patch to him about a month later. Goonan and Randazzo were not in favor of the idea of folding the club.
Swigart went to the clubhouse the evening of March 8th. He was outside and did not witness what went on inside the clubhouse. Goonan and defendant exchanged words and were arguing about something Goonan had said to defendant’s girlfriend.
Jaime Williford was present for several conversations among Goonan, Randazzo and Clark. They expressed their belief that the March incidents were not a Hell’s Angels related activity, but they thought they were pushed by authorities to make it into a Hell’s Angels activity. Goonan and Randazzo wanted to go after the people who beat them up and they were pressured into saying it involved the Hell’s Angels. Goonan and Randazzo were afraid of Perez, from the San Diego Hell’s Angels, and thought Perez was going to kill Goonan.
Defendant testified that he wanted to become a Hell’s Angel but had never seen any of the criminal activities that had just been described at his trial. He had heard negative things about the Hell’s Angels, but those stories were from a long time ago. He never saw anything illegal at any Hell’s Angels events that he attended. He viewed the group as a professional group of motorcyclists.
Clark had caused problems with other members of Exiled, and members did not like it that Goonan could not control his girlfriend. Defendant resigned from Exiled in November of 2000. They still called him seeking advice and telling him what was going on with the club.
Defendant heard that Goonan was mouthing off about sexual things he wanted to do with defendant’s girlfriend. In addition, the girlfriend told him that Goonan had forcefully kissed her and told her to leave the defendant. Defendant was not happy about these things.
Defendant told Exiled members they should burn anything having to do with the Hell’s Angels. Defendant was at the clubhouse the day items were burned, but he was only there to pick up a gun to return to a former Exiled member. He picked up the weapon and left.
Goonan called a meeting at the clubhouse on March 4, 2001. Goonan started the conversation and said Exiled did not want to be a motorcycle club anymore. The Exiled members went into the office and when they came out they had removed their Exiled patches from their vests. They gave the patches to Brian Wendt. Craver and defendant told Randazzo about property they thought they should have; Randazzo told them to take it. The club owed money to defendant so Randazzo let him take other items also.
Between March 4, and March 8, 2001, defendant received numerous telephone calls from Exiled members. Defendant was tired of all of it and got a group together to go down and talk to Exiled. Defendant wanted everyone present who had anything to do with the property in the clubhouse. Goonan had invited others to the clubhouse for an open house on March 8, 2001.
Goonan told Hake and Clay they needed to leave. Goonan asked defendant what he wanted. Defendant said they were there to talk about the property and other matters. Goonan said all of the property was theirs. As they talked, Goonan was sidestepping his way to the bar area where a handgun was usually kept.
Defendant told Goonan he was going to make it easy on Goonan and they could settle their problems one-on-one. Goonan reached down to grab the gun. Defendant jumped over the bar and grabbed Goonan. They struggled. Defendant was afraid of Goonan. Defendant ejected the clip from the gun and put the gun on top of the bar.
While defendant was having a conversation with Clark, telling her what Goonan had said and done to defendant’s girlfriend, he kept one eye on Goonan because he was sure Goonan had a knife in his hand.
Defendant heard a heated conversation between Randazzo and Craver about club money. Someone yelled out that Randazzo had a gun. Defendant glanced towards Randazzo and took his eyes off of Goonan. Goonan lunged at him with his right hand coming out from behind his back. Defendant blocked Goonan’s arm and hit him as hard as he could in the face.
Goonan did not have a knife, but defendant thought he did. Defendant was not trying to kill Goonan, he was only trying to stop him. The two began trading blows and they both fell to the floor. Defendant hit Goonan several times in the back of the head until he stopped being a threat to defendant. Goonan said he had enough and defendant stopped hitting him. Defendant told Goonan not to get up. When Goonan started to get up, defendant kicked him with his tennis shoe.
Defendant walked over to Randazzo and asked him where the club money was. Randazzo said there wasn’t any. Defendant shoved him because he was disgusted.
Defendant did not know that Goonan was badly hurt. He did not threaten anyone if they reported what happened or sought medical treatment.
People took property. Defendant told Randazzo that if he thought any of the property belonged to him he knew how to contact defendant to get it back. Defendant kept Goonan’s motorcycle because Goonan had defendant’s dining room table; defendant told Goonan he would return the motorcycle when he got his dining room set back.
Defendant explained the content of his conversation with Randazzo when Randazzo was wired by law enforcement. He repeated that the whole event was a personal thing between him and Goonan and among the current and former members of Exiled.
James Hernandez, a professor of criminal justice at California State University, Sacramento, testified as an expert on gangs and outlaw motorcycle clubs. He testified that different chapters of the Hell’s Angels see membership and involvement in the Hell’s Angels very differently. It was his opinion that the Hell’s Angels are not a criminal street gang. Each chapter of the Hell’s Angels organization is an individual entity. Although people involved in the organization may be involved in criminal activity, it is not a criminal organization.
He testified that law enforcement views the Hell’s Angels as very bad and an enemy. He reviewed the material from the case and did not agree with the prosecution’s experts’ opinions.
I. Constitutionality of the STEP Act
The Street Terrorism Enforcement and Prevention Act (STEP Act) was enacted by the Legislature in 1988. It was enacted based on the Legislature’s finding that “the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods.” (Pen. Code, § 186.21.)
The jury found true numerous gang enhancements under section 186.22, subdivision (b)(1). Proof of a gang enhancement requires that the defendant “is 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.” A criminal street gang is statutorily defined as “any 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 more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, of subdivision (e), having a common name or common identifying 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).)
Defendant contends that the STEP Act is unconstitutionally vague on its face and as applied and also results in cruel and unusual punishment.
“A facial vagueness challenge is based on the due process clauses of the Fifth and Fourteenth Amendments to the United States constitution, and on article I, section 7 of the California constitution. [Citation.] Under both the federal and state Constitutions, vagueness invalidates a criminal statute if the statute ‘“fail[s] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits …”’ or if it ‘“may authorize and even encourage arbitrary and discriminatory enforcement.” [Citation.]’ [Citations.]” (In re Jorge G. (2004) 117 Cal.App.4th 931, 938.)
Defendant acknowledges that “some” of his claims in this argument were not made in the trial court and would normally be considered waived on appeal. He argues, however, that the failure on the part of his counsel to raise any of the issues he now raises on appeal resulted in extensive and egregious ineffective assistance of counsel and we should reach the merits of his arguments.
We begin by noting that contrary to defendant’s assertion that “some” of his claims were not raised in the trial court, defendant has not shown, nor have we found, that any of his claims in this argument were raised and preserved in the trial court. Although defendant did not challenge the STEP Act in the trial court as void for vagueness on its face, we shall address this argument because such a question is a pure question of law that is reviewable absent an objection. (People v. Yeoman (2003) 31 Cal.4th 93, 118.)
In People v. Sengpadychith (2001) 26 Cal.4th 316 the California Supreme Court prefaced its opinion with the statement that it has continued to struggle, step by step, “through the thicket of statutory construction issues presented by the California Street Terrorism Enforcement and Prevention Act of 1988.” (Id. at p. 319.) From this statement defendant argues that the California Supreme Court has had to struggle with the STEP Act, therefore persons of ordinary intelligence have struggled, and the Supreme Court’s interpretations of the STEP Act come too late to enable such persons to modify their behavior and avoid the loss of liberty.
If defendant’s theory that struggles over the correct interpretation of a law result in a valid facial vagueness challenge were true, there would be very few laws that would withstand such a challenge. While the intricacies of the STEP Act have been fine tuned by case law, the law provides detailed and sufficient notice of what conduct it prohibits. In fact, although not acknowledged by defendant, the California Supreme Court has held that the “detailed requirements of the STEP Act are sufficiently explicit to inform those who are subject to it what constitutes a criminal street gang for purposes of the act.” (People v. Gardeley (1996) 14 Cal.4th 605, 623.)
Defendant continues his argument by stating that the case law surrounding the STEP Act has only made things worse. In this portion of his argument he criticizes holdings of the California Supreme Court, as well as some appellate court opinions. He fails to recognize that this court is bound by opinions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) It is not our place to disregard those opinions.
Continuing in his argument that the law is void for vagueness on its face, defendant launches into a criticism of case law allowing the use of law enforcement officers as expert witnesses to prove elements of the gang enhancement. Defendant claims that “when gang cops have not had training in psychology and sociology, they do not have the special skill, knowledge and training to properly evaluate what they observe in complex social groups such as gangs. This leads them to speculation and conjecture which is dependent upon lucky guesses and whatever they’ve picked up from the general education they received in grade school, high school and, occasionally, undergraduate college work…. Even where the prosecution’s ‘expert witnesses’ in the instant case received training, their training was received from other law enforcement officers, with no showing of any specialized training in sociology or psychology.”
While declaring as a truism that experts on gangs should have specialized training in gang sociology and psychology before they are allowed to testify, defendant does not back up his statement with any references to authority requiring the experts to meet his proposed standard of qualifications. Indeed, if defendant’s specially trained experts were called to testify, we would offer the guess that their knowledge would be based primarily on information gathered and processed by law enforcement officers. We note that the information required to prove the elements of a criminal street gang under the STEP Act (an organization having three or more individuals, having as one of its primary activities the commission of criminal acts, having a common name or identifying sign or symbol, and engaging in a pattern of criminal gang activity) is precisely the type of information that is in the purview of law enforcement officers. The STEP Act itself does not require any deep delving into the social or psychological reasons for the behaviors.
Defendant concludes that if the STEP Act had been originally written in the form in which it now stands after case law has interpreted it, “rather than be[ing] transmogrified into a methodology that facilitated lowering the burden of proof,” it would be susceptible to a facial challenge for unconstitutionality. Not only are we bound by the California Supreme Court’s interpretations of the STEP Act, but we do not believe that judicial interpretation of the act has altered the act into a statute that fails to provide notice that will enable ordinary people to understand what conduct it prohibits.
Next, defendant argues that as applied the STEP Act penalized him for exercising his associative rights and effectively proved his guilt by association. In particular, he argues that he was convicted based on the overwhelming evidence of the behavior of others, who may or may not have been gang members, and who have committed crimes, that may or may not be gang related. He again attacks the qualifications and training of law enforcement officers to act as experts. He claims that he was convicted without a showing that he joined the group knowing of its illegal purposes and without the intention to further those purposes. This, he argues, is a clear violation of his individual right to associate with others.
First, we find that defendant has waived this argument by failing to raise it in the trial court. Although we find that defendant has waived this argument, we note that the association argument has been rejected by the California Supreme Court, a point that defendant has not discussed in his brief. The California Supreme Court in Gardeley rejected this argument and set it forth again in People v. Loeun (1997) 17 Cal.4th 1, 11. “[T]he STEP Act punishes conduct, not association.” “The requisite ‘pattern of criminal gang activity’ is merely part of what the prosecution must prove to establish that the current crime is related to an ongoing ‘criminal street gang.’ … Nothing in the statutory scheme suggests that the Legislature intended that the prosecution could prove this ‘pattern’ only if it could show that a defendant had knowledge of prior crimes committed by fellow gang members.” (Id. at p. 10.)
As the last portion of this argument, defendant argues that the STEP Act is violative of the prohibition against cruel and unusual punishment by enhancing sentences based on acts of others.
Again we find that defendant has waived this argument by failing to raise it in the trial court and, as previously set forth, that defendant is punished for his conduct-not for his association with others who have committed the criminal acts necessary to show that the group involved is a criminal street gang. His punishment is not based on acts of others.
II. Effective Assistance of Counsel
Defendant makes a series of challenges to admission of prejudicial evidence, to the qualifications of the expert witnesses as providing “prejudicial” evidence, and claims prosecutorial misconduct. At the core of each of these claims is the underlying fact that defense counsel did not object to the admission of the evidence, did not challenge the qualifications of the expert witnesses, and did not raise a claim of prosecutorial misconduct. These issues are thus best addressed under the rubric of whether defendant received the effective assistance of counsel.
“The standard for showing ineffective assistance of counsel is well settled. ‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus.’ [Citation.] ‘Failure to object rarely constitutes constitutionally ineffective legal representation.’ [Citation.]” (People v. Gray (2005) 37 Cal.4th 168, 206-207.)
“[A] reviewing court will reverse a conviction on the ground of inadequate counsel ‘only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 979-980.)
a. Admission of Prejudicial Hell’s Angels Evidence
As set forth in the statement of the facts, the prosecution presented a vast accumulation of evidence regarding the Hell’s Angels in general, criminal activities of the Hell’s Angels, and convictions of selected members of various Hell’s Angels chapters throughout the United States and Canada. With the exception of minute portions of this evidence, defense counsel did not object to the admission of this evidence.
“[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation-including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like-can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
“[I]t has repeatedly been held that it is proper to introduce evidence which is even unpleasant or negative pertaining to an organization in issue which is relevant on the issue of motive or on the subject matter at trial.” (People v. Frausto (1982) 135 Cal.App.3d 129, 140.)
“In People v. Remiro (1979) 89 Cal.App.3d 809, 841-844, it was proper to introduce evidence of various criminal acts of a terriorist [sic] group, the Symbionese Liberation Army, in order to show the nature of the conspiracy pertaining to a murder.
“In the same manner, in People v. Manson (1976) 61 Cal.App.3d 102, 131, 155-156, it was proper to introduce evidence of the social structure, religion, and criminal activities of an organization known as the ‘Family’ because of its relevancy to the motivation and the nature of the conspiracy of the Tate-LaBianca murders. In In re Darrell T. (1979) 90 Cal.App.3d 325, 328-334, the court discussed evidence concerning the history and nature of various juvenile gangs as it pertained to the proof of the existence of a motive relative to the crime of murder. In People v. Beyea (1974) 38 Cal.App.3d 176, 194, evidence concerning a membership in the Hell's Angels was deemed to be properly introduced relative to the issue of motive.” (People v. Frausto, supra, 135 Cal.App.3d at pp. 140-141.)
The prosecution’s theory of this case was that what occurred here was not the result of a dispute among past and former Exiled members nor was it a personal dispute between defendant and Goonan, but that the acts were all motivated by the Hell’s Angels’ decision to make sure the Exiled club did not continue in Mongols territory. In addition, the prosecutor presented evidence that defendant was motivated to beat up Goonan in order to advance in the Hell’s Angels organization and that the manner