P. v. Gandara

Filed 6/12/08 P. v. Gandara CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Larrie R. Brainard, Judge. Affirmed.

A jury convicted Robert Gandara of attempted premeditated murder (Pen. Code,^[1] 664, 187, subd. (a), 189) and assault with a deadly weapon or by means of force likely to produce great bodily injury ( 245, subd. (a)(1)). As to both counts, the jury found true allegations that he personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1) and 1192.7, subdivision (c)(23), and on the attempted premeditated murder count, it found true allegations that he committed the attempted murder for the benefit of and at the direction of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). The court sentenced Gandara to an indeterminate term of 15 years to life on the attempted premeditated murder count, a determinate concurrent three-year term for the assault count, and a consecutive one-year enhancement for the personal use allegation.

On appeal, Gandara contends (1) his convictions are not supported by sufficient evidence due to unreliable and tainted eyewitness identifications; (2) the trial court violated his confrontation rights under the Sixth and Fourteenth Amendments by admitting into evidence at trial the preliminary hearing testimony of the victim, Kevin Ramirez; and (3) the court erred in failing to bifurcate evidence presented in support of the gang enhancement allegation, resulting in admission of prejudicial evidence that deprived him of his right to a fair trial. Gandara also contends he received prejudicially ineffective assistance of counsel in connection with all of these asserted errors. He maintains the cumulative errors deprived him of fundamental due process, warranting reversal. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Evidence

On the afternoon of October 26, 2002, Maria Ruano was outside her home at 2126 Osborn Street in San Diego talking with Kevin Ramirez, who had driven his car up onto her driveway to wait for Ruano's son, Jesus Pastenes. Ramirez and Pastenes were good friends and both members of the "T.N.S." criminal street gang. Pastenes's house was a well-known T.N.S. hangout. After a few minutes, Ruano noticed a white car pass by driven by a young man, who she later identified as Gandara. When Ruano looked up, she saw Gandara, who had exited his car, looking at them. He started to walk on the sidewalk past Ramirez's car. He then crossed the street toward Ruano, said, "What happened, Senora," and knocked her to the ground. Gandara said, "Fuck T.N.S.," pulled a knife from behind his pants and begin stabbing at Ramirez with the knife through the driver's side window of Ramirez's car, repeatedly telling Ramirez he was going to kill him. Ruano shouted and tried to pull Gandara away from Ramirez but Gandara threw her off. When Ramirez jumped into the passenger seat of his car to avoid the knife, Gandara moved to the passenger side of Ramirez's car and continued to stab at him. Eventually, with Ruano's help, Ramirez was able to exit the car window; he fell to the ground and continued to defend himself against Gandara, who continued to stab at him. When a crowd drew from the noise, Gandara ran away.

Ruano told an investigating police officer that day that she thought the assailant's name might be "Tiger" from a street gang known as Gamma Street, and that he was possibly staying at an address on Marine View Avenue. She got this information after asking Ramirez whether he knew the attacker; Ramirez denied knowing his attacker but made a comment about someone named Tiger. However, Ruano later chose Gandara's picture from a police photographic line-up, and identified him as the assailant at the preliminary hearing. She testified at trial that she had no doubt Gandara was her and Ramirez's attacker that day; she was absolutely certain Gandara was the man.

That same afternoon, Maria Padilla was in the bedroom of her house on Marine View Avenue when she heard a woman screaming loudly. She looked out her bathroom window and saw a man, who she later identified as Gandara, stabbing another man on the sidewalk. Both men, who were about 100 feet from Padilla, fell to the ground and Gandara continued to stab the other man, who was on his back trying to defend himself. A woman was standing behind the victim screaming during the stabbing. Gandara stopped and ran away into the passenger side of a white car, which left. Padilla saw Gandara's face while he was running away to the car because he kept looking around to see if anybody was following him. She identified the assailant as a light-skinned Hispanic male to the police officer who arrived at Padilla's house later that day in response to her husband's 911 call. A district attorney office investigator testified that the distance from Padilla's bathroom window to the driveway was 113 feet, and it was 245 feet from the window to the point at which Gandara ran back into the white car.

In December 2003, San Diego Police Department Detective Jaime Limon interviewed Padilla at her house. The detective showed her six photographs, telling her she should just look at each picture and see if she could recognize anyone. Padilla picked out Gandara's photograph and placed her initials on the picture at the detective's request. Padilla remembered Gandara's face and told the detective that she recognized his facial features. After she picked Gandara's photograph out of the lineup, Detective Limon told her, "You got him." Padilla had no doubt about her identification of Gandara when she picked out his picture, nor did she have any doubt when she identified Gandara as the assailant at trial.

At trial, Detective Limon testified that he separately showed Ramirez, Padilla and Ruano a photographic lineup containing Gandara's picture, and each chose photograph No. 2, which was Gandara's photograph. At the time, Ramirez stated, "Este es Mousie."

Over defense counsel's objection, the trial court admitted Ramirez's preliminary hearing testimony into evidence on findings that Ramirez had "purposefully made himself unavailable" as a witness in connection with a separate shooting incident and the prosecution had engaged in a good faith effort to locate him. The People read Kevin Ramirez's preliminary hearing testimony to the jury. In addition to describing the stabbing incident, Ramirez testified that the person who stabbed him that day was Gandara; that when Detective Limon showed him a series of photographs after the incident and asked him to identify his assailant, he picked Gandara's picture. Ramirez explained that he saw Gandara's face when Gandara exited the white vehicle, and he was still able to see Gandara's face as he approached his car. Ramirez testified he was not mistaken about his identification of Gandara as his attacker that day; he denied making his identification only because Gandara was a member of a rival gang or because he wanted to protect his own gang.

The People presented testimony from San Diego Police Department Detective Ernesto Encinas, who at the time of the incident was working in the gang unit and responsible for documenting and monitoring Logan street gang activity. Detective Encinas testified that in 2002, T.N.S. was a criminal street gang in the Southeast San Diego area whose main rivals were the associated U.F. and K.N. criminal street gangs. According to the detective, T.N.S., U.F. and K.N. are all documented gangs with the San Diego Police Department claiming the territory of Southeast San Diego. He explained that T.N.S. members had committed violent crimes against U.F. or K.N. members resulting in an ongoing feud and retaliation: a double homicide involving U.F. or K.N. members Larsen Tufi and Jose Alegre in March 2002, and a freeway shooting in September 2002. In July 2002, three U.F. gang members shot and injured some T.N.S. members in retaliation for the Tufi and Alegre murders.

Detective Encinas testified that the crime against Ramirez was a gang crime targeting Ramirez as a T.N.S. member based on the attacker's "Fuck T.N.S." remark before the stabbing. He opined Gandara's crime was committed in association with and specifically for the benefit of the U.F. criminal street gang based on the history between the two gangs, the location of the incident being a known T.N.S. gang hangout, the statements made by Gandara during the stabbing, and the fact the vehicle used by Gandara was owned by the wife of a documented U.F. gang member. The detective testified Gandara's acts benefitted him individually by enhancing his reputation among his own gang and other rival gangs, and it enhanced the gang's reputation among its alliance as well as sent a message to the community that it was not a gang to be "messed with."

Defense Evidence

Gandara testified in his own defense, describing his actions on October 26, 2002. He claimed that on that day he was scheduled for, but late to, community service he was attending for prior acts of vandalism and driving under the influence. Because they would not allow him to participate due to his tardiness, he decided to go to Imperial Beach to get his hair cut. Gandara testified he drove his Cadillac Fleetwood to the barber shop but because it was closed, he went to a park where he smoked a marijuana joint, played some basketball and ate. He eventually returned to the shop for his hair cut and left Imperial Beach at about 1:00 p.m. Gandara then went to a stereo shop and had some equipment his sister had given him installed in his car. After the installation was finished, he drove home, arriving at about 2:00 p.m. or 2:20 p.m. Gandara testified that his mother and six-year old brother were there, as were his father and his father's friend Frederico Torres. Gandara had a conversation with his father and Frederico and then went upstairs at about 2:30 p.m., where he watched television and ate. Gandara's sister arrived at the house between 2:40 p.m. and 3:00 p.m. Gandara spoke with her and paid her for the stereo, went downstairs, listened to music and cleaned his car, and spoke with his girlfriend between 3:00 p.m. and 4:00 p.m., making plans for that evening. Frederico left at 4:00 p.m. or 4:30 p.m. Gandara finished cleaning his car, showered, and left the house at 6:00 p.m. to go to his friend Jose Cardenas's house. From there, he walked to a shop, met up with Jose and others, and waited for Cardena's girlfriend, Veronica, to get ready. They picked Veronica up and went to Gandara's girlfriend's workplace at about 9:00 p.m. or 9:15 p.m., went back to his house and watched a movie until midnight or 1:00 a.m.

Gandara admitted being a member of the U.F. gang and having the moniker "Mousie," but he claimed to be only involved in "tagging." He stated he was going to take revenge on T.N.S. for prior gang shootings only by tagging, i.e., crossing out T.N.S. signs and writing "U.F." He denied any involvement in the stabbing, and denied knowing Ramirez or Ruano. On cross-examination, he admitted that his gang and K.N. became rivals with T.N.S. after several violent incidents between the gangs, and that in 2002, the gangs did not get along.

Gandara presented testimony from Frederico Torres, his sister Cruz Gandara and his father to corroborate his description of events on October 26, 2002.

DISCUSSION

I. Sufficiency of the Evidence of Identity

Challenging the reliability of eyewitness identifications by Kevin Ramirez, Maria Ruano and Maria Padilla, Gandara contends there is insufficient evidence of his identity as the perpetrator to support his convictions. As we shall explain, the contention has no merit.

In general, when we address a challenge to the sufficiency of the evidence supporting a conviction, "the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence evidence that is reasonable, credible and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) We will not reverse unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to support the jury's verdict. (People v. Redmond (1969) 71 Cal.2d 745, 755; see also People v. Stewart (2000) 77 Cal.App.4th 785, 790.)

Though Gandara's general challenge is to the sufficiency of the evidence to support his conviction, some of his specific assertions require a different appellate standard of review. We separately address Gandara's contentions as to each witness.

A. Maria Padilla

Gandara contends he was denied his due process right to a fair trial by the admission of Maria Padilla's in-court identification, which he maintains was tainted and rendered unreliable by misconduct that occurred during her pretrial identification when Detective Limon said, "You got him," after showing her the photographic lineup. Gandara asserts the trial court was required to but did not determine whether Padilla's in-court identification would be the product of a source independent of the tainted pretrial identification, which would have shifted the burden to the prosecution to establish the independent source of in-court identification by clear and convincing evidence. Finally, he argues that Padilla's in-court identification was not substantially corroborated by evidence giving it independent reliability.

Gandara has not shown he raised the issue of unreliable pretrial identification procedures in the trial court, by either moving to suppress Padilla's testimony or objecting to the testimony and asking the trial court to conduct an evidentiary hearing on the matter. " ' "In deciding whether an extrajudicial identification is so unreliable as to violate a defendant's right to due process, the court must ascertain (1) 'whether the identification procedure was unduly suggestive and unnecessary,' and, if so, (2) whether the identification was nevertheless reliable under the totality of the circumstances." ' " [Citation.] 'The defendant bears the burden of demonstrating the existence of an unreliable identification procedure.' " (People v. Gonzalez (2006) 38 Cal.4th 932, 942; see also Manson v. Brathwaite (1977) 432 U.S. 98, 114; People v. Yeoman (2003) 31 Cal.4th 93, 123.)^[2] As a consequence, the trial court was never asked to make factual findings as to the circumstances surrounding Padilla's pretrial identification findings to which we would defer in determining independently whether the pretrial identification procedure was unduly suggestive. (People v. Gonzalez, at p. 943; People v. Kennedy, supra,36 Cal.4th at pp. 608-609.) Given Gandara's failure to raise the issue to the trial court in a timely manner, the issue has been waived. (People v. Cunningham (2001) 25 Cal.4th 926, 989 [defendant's due process challenge to photographic lineup, first raised as part of motion for judgment of acquittal, was untimely and thus issue was waived].)

Setting the question of waiver aside (the People do not raise it) and accepting the underlying facts and circumstances of Padilla's pre-trial identification as undisputed, we nevertheless conclude it was not unduly suggestive and unnecessary. It is Gandara's burden to show that some aspect of the pretrial identification procedure " 'caused [the] defendant to "stand out" from the others in a way that would suggest the witness should select him.' " (People v. Cunningham, supra, 25 Cal.4th at pp. 989-990; see also People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) But here, Gandara concedes that "there is no evidence of police misconduct relative to Padilla's initial pretrial identification during the photographic lineup . . . " Indeed, the evidence is that Padilla positively identified Gandara's photograph from a multi-photo lineup before Detective Limon ever said anything to her. There is nothing in this record suggesting that the compilation of photographs or the way they were presented to Padilla before her positive identification of Gandara was so unnecessarily suggestive as to create a substantial likelihood of irreparable misidentification. (People v. Brandon, at p. 1051.) We fail to see how Detective's Limon's after-the-fact statement, "You got him," somehow retroactively invalidated Padilla's unaided pre-trial identification. Nor do we agree his statement would render any future in-court identification by Padilla invalid. The question is whether Padilla's in-court identification testimony should be excluded based on an impermissibly suggestive out-of-court identification procedure. Because Padilla's pre-trial, out-of-court identification of Padilla from the photographic lineup was made without any comment by Detective Limon and without any evidence of undue suggestion, we conclude Gandara has not met his burden of proving Padilla's out-of-court identification was tainted or unfair. This conclusion eliminates any need to address the second "totality of the circumstances" prong, and thus disposes of Gandara's challenge to Padilla's in-court identity testimony. (People v. Brandon, at p. 1052; People v. Kennedy, supra, 36 Cal.4th at p. 608; People v. Ochoa (1988) 19 Cal.4th 353, 412 [if we find that a challenged procedure is not impermissibly suggestive, our inquiry into the due process claim ends]; People v. Gordon (1990) 50 Cal.3d 1223, 1242 ["If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable"], overruled on other point in People v. Edwards (1991) 54 Cal.3d 787, 835.)

Gandara misunderstands that analysis when he asserts that "[a]part from the

taint. . ." Padilla's in-court identification was not "substantially corroborated by evidence giving it independent reliability." The independent reliability analysis is undertaken only where a court concludes the pretrial identification procedure was suggestive or unfair, a conclusion we have rejected. (People v. Ochoa, supra, 19 Cal.4th at p. 412; People v. Rodriquez (1977) 68 Cal.App.3d 874, 881.)^[3] Gandara had not shown a due process violation by admission of Padilla's in-court identification testimony.

B. Kevin Ramirez and Maria Ruano

Gandara challenges the reliability of the identification testimony of Ramirez and Ruano on grounds both individuals were affiliated with a rival street gang and only identified him as the assailant based on rumors they had heard. Specifically, Gandara points to Ruano's testimony that she believed a person named Tiger committed the crimes and later pointed out a passing car to police believing an occupant might have been involved, but was mistaken. He also points to a statement by Ramirez's counsel made during a sidebar conference outside the jury's presence in which counsel stated Ramirez had heard rumors that someone nicknamed "Mouse" or "Mousie" bragged about stabbing him.^[4] Gandara maintains the prosecution failed to offer sufficient evidence that their eyewitness identifications were "based on something more than rumors"; that the identifications are insufficient "absent additional, corroborating evidence."

Because they point to asserted weaknesses in the witness identification testimony, these arguments do not comprehend the sufficiency of the evidence standard. Detective Limon testified at trial that Ruano and Ramirez positively identified Gandara as their assailant from photographic lineups, and both Ruano and Ramirez gave in-court identifications of Gandara as the attacker; Ruano at trial and Ramirez at the preliminary hearing. The fact Ruano may have initially believed someone else was a suspect based on a nonspecific comment by Ramirez, or mistakenly thought she saw the suspect in a passing car on the day of the incident, is not fatal to the prosecution's case. Nor does evidence of gang affiliation by Ruano or Ramirez render their testimony insufficient to support the judgment. Such inaccuracies, bias, or weaknesses go to the weight of the evidence, not its sufficiency. It was up to the jury to determine the strength or weakness, and ultimately the credibility, of Ruano's and Ramirez's identification testimony. (See People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Scott (1978) 21 Cal.3d 284, 296.) If credited by the trier of fact, the testimony of a single witness, unless physically impossible or inherently improbable, is sufficient to sustain a conviction. (Evid. Code,

411; People v. Young, at p. 1181; In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497; People v. Keltie (1983) 148 Cal.App.3d 773, 781-782.) "Testimony is not inherently improbable unless it appears that what was related or described could not have occurred. [Citations.] 'To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.' " (People v. Johnson (1960) 187 Cal.App.2d 116, 122; see also People v. Barnes (1986) 42 Cal.3d 284, 306.)

Gandara has not shown there was anything inherently incredible or physically impossible in Ruano's or Ramirez's eyewitness identifications. Ruano's or Ramirez's affiliation with rival street gangs does not render their testimony physically impossible. His counsel had abundant opportunity to cross-examine both witnesses (as we explain as to Ramirez more fully in part II, ante).Their identification was sufficient to support Gandara's convictions of attempted premeditated murder and assault with a deadly weapon. "[W]hen the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court." (In re Gustavo M., supra, 214 Cal.App.3d at p. 1497; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885.)

II. Admission of Ramirez's Preliminary Hearing Testimony

Gandara contends the trial court violated his right of confrontation and cross-examination under the U.S. Constitution's Sixth and Fourteenth Amendments by admitting Ramirez's preliminary hearing testimony into evidence.

A criminal defendant has a constitutionally guaranteed right to confront and cross-examine the witnesses against him or her. (U.S. Const., 6th & 14th Amends.; People v. Carter (2005) 36 Cal.4th 1114, 1172.) An exception to the confrontation requirement exists where a witness is unavailable, has given testimony at a previous judicial proceeding against the same defendant and was subject to cross-examination. (Crawford v. Washington (2004) 541 U.S. 36, 59; Evid. Code, 1292, subd. (a)(2); People v. Carter, at p. 1172.) As to the cross-examination element, the United States Supreme Court emphasizes that " '[t]he Confrontation Clause guarantees an opportunityfor effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defendant might wish.' " (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679; see also People v. Carter, at p. 1172.) "[N]ot every restriction on a defendant's desired method of cross-examination is a constitutional violation." (People v. Frye (1998) 18 Cal.4th 894, 946.) Unless the defendant can show the prohibited cross-examination would have produced a significantly different impression of the witness's credibility, the trial court's exercise of discretion will not violate the Sixth Amendment. (Ibid.)

Here, Gandara does not challenge the trial court's finding of Ramirez's unavailability. Rather, he argues he did not have an adequate opportunity to cross-examine Ramirez due to his counsel's failure to inquire at the preliminary hearing about the circumstances surrounding Ramirez's out-of-court identification; that the evidence shows Ramirez's identification was ambiguous in that Ramirez "did not unequivocally state that appellant (or Mousie) was the individual who stabbed him" but only told Detective Limon, "Este es Mousie." He also asserts Ramirez's identification was potentially based only on rumors, which the jury did not learn due to counsel's ineffective cross-examination at the preliminary hearing. Gandara argues the jury was unable to fully or adequately assess Ramirez's credibility without the information about Ramirez's rival gang status and the asserted fact he identified Gandara "only after he heard unsubstantiated rumors from an unidentified source."

We reject the premise of these arguments. First, we disagree with Gandara's characterization of the evidence, particularly with respect to Ramirez's photographic identification. Detective Limon testified he read Ramirez his standard admonitions in performing a photographic lineup, telling Ramirez not to assume the suspect was there and not to guess. Ramirez looked at the photographs and pointed to photograph No. 2 (Gandara's picture) saying, "Es numero dos, este es Mousie." Ramirez also identified Gandara from the witness stand during the preliminary hearing as the person who had stabbed him. In context, the record shows Ramirez unambiguously identified Gandara as his assailant. Further, the jury heard Ramirez admit that he was the member of a rival gang, and he was cross-examined about his then dislike for U.F. gang members and asked whether he was identifying Gandara only because he was a rival gang member. In our view, given this evidence, the trial court's limitation did not leave the jurors without sufficient information to assess Ramirez's credibility or appraise his motives or biases. Finally, Gandara cannot be heard to complain about any limitation on Ramirez's cross-examination when his own defense counsel asserted objections to Ramirez's testimony about the rumors he had heard and the trial court sustained the objections on hearsay grounds, an evidentiary ruling that Gandara does not challenge on appeal. The court in People v. Frye made clear that the trial court retains wide latitude in restricting cross-examination within the confines of the confrontation clause. (People v. Frye, supra, 18 Cal.4th at p. 946.) Gandara has not shown an abuse of discretion in the trial court's specific evidentiary ruling limiting Ramirez's cross-examination about the rumors he had heard.

The arguments fail in substance as well. Gandara's arguments lack merit under settled principles stated in People v. Carter, supra, 36 Cal.4th 1114, and other cases (e.g., People v. Valencia (2008) 43 Cal.4th 268, 293-294; People v. Harris (2005) 37 Cal.4th 310, 332-333; People v. Smith (2003) 30 Cal.4th 581, 611) in that Gandara does not address the similarity or dissimilarity of his interest or motives in cross-examining Ramirez at the preliminary hearing and at trial. The admission of former testimony of

an unavailable witness is permitted under Evidence Code section 1291 and does not offend the Confrontation Clause "not because the opportunity to cross-examine the witness at the preliminary hearing is considered an exact substitute for the right of cross-examination at trial [citation], but because the interests of justice are deemed served by a balancing of the defendant's right to effective cross-examination against the public's interest in effective prosecution." (People v. Zapien (1993) 4 Cal.4th 929, 975.) A defendant's motive for cross-examination at the preliminary hearing "need not be identical, only 'similar' " to the motives of the defense at trial. (Ibid; accord, People v. Harris, at p. 333.) Absent some explanation or analysis as to why Gandara's defense interests or motives were somehow different during the preliminary hearing than at trial, we conclude there was no confrontation clause violation and uphold the trial court's ruling.
As explained above, "as long as a [Gandara] was provided the opportunity for cross-examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution simply because [Gandara] did not conduct a particular form of cross-examination that in hindsight might have been more effective." (People v. Carter, supra, 36 Cal.4th at pp. 1173-1174; accord People v. Smith, supra, 30 Cal.4th at pp. 611-612.) To the extent Gandara suggests Crawford v. Washington requires a different result, we disagree. In Crawford, the high court held that the admission of a "testimonial" hearsay statement violates the Confrontation Clause unless the declarant is unavailable to testify at trial and the defense had a prior opportunity for cross-examination. (Crawford v. Washington, supra, 541 U.S. at p. 68; U.S. Const., 6th Amend.) However, when the requirements of Evidence Code section 1291 are met, the defendant has been given the opportunity for prior cross-examination and there is no Confrontation Clause issue. (See Carter, at pp. 1173-1174; People v. Harris, supra, 37 Cal.4th at p. 333;People v. Wilson (2005) 36 Cal.4th 309, 340-341.)

III. Admission of Gang Evidence

Gandara contends the trial court erred by failing to bifurcate the evidence on the gang enhancement allegation from the evidence supporting the underlying charges and by admitting the gang evidence, the trial court deprived him of his due process right to a fair trial. He asserts there was no direct evidence linking Ramirez's assailant to any particular gang and that the evidence linking the offense to U.F. was speculative in that the assailant acted alone and "did not claim membership or affiliation in any particular gang." Gandara argues the gang evidence was not relevant to any disputed material fact because the key issue in the case was identity and not motive, which is not an element of the crime. According to Gandara, the trial court failed to balance its probative value against the prejudice as it was required to do, and the evidence was unduly prejudicial given his nominal involvement in the U.F. gang and lack of involvement in U.F.'s violent confrontations with its rival, T.N.S.

Gandara's contentions are meritless. In this case, the People alleged a gang enhancement under section 186.22, subdivision (b)(1). In such cases, it is well-established that expert opinion testimony about gang culture and habits is admissible to prove the enhancement. (People v. Gardeley (1996) 14 Cal.4th 605, 617; In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.) However, a trial court has the discretion to bifurcate the trial of the gang enhancement from the trial of guilt if it determines that 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.)
Bifurcation of trial on a gang enhancement allegation is not required to the extent evidence of a defendant's gang membership is admissible on the underlying charged offenses without regard to any gang enhancement allegation: "[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. [Citations.] To 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." (People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)

Hernandez further makes clear that "[e]ven 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." (People v. Hernandez, supra, 33 Cal.4th at p. 1050.) Noting the benefits of unitary trials, the Hernandez court explained that a "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." (Ibid.) Bifurcation is required only where a defendant can " 'clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.' " (Id. at p. 1051.)

We discern no abuse of the trial court's discretion in this case. The People presented evidence from which the jury could conclude that the assailant was tied to either the U.F. or K.N. street gang and the crime was gang-related: Ramirez testified his assailant said, "Fuck T.N.S." immediately before he began stabbing him. Gandara's claim that the evidence does not tie the assailant to any particular gang ignores Gandara's own admission that T.N.S. was a rival to both U.F. and K.N., as well as Detective Encina's testimony that the latter gangs were T.N.S.'s main rivals. Given this evidence, the jury could infer without speculation that Ramirez's attacker was a member of either the U.F. or K.N. gang. Further, the prosecutor sought to show that Gandara, an admitted U.F. member, committed the crime in order to retaliate for other violent incidents that had occurred between the rival gangs. He presented evidence that Gandara kept a memorial flyer for Larsen Tufi as well as newspaper clippings about the violent confrontations between T.N.S. and U.F. or K.N. members. The gang evidence was highly probative on the issues of identity, intent and motive. Though prejudicial to a certain degree, evidence of Gandara's gang membership and his gang's activities were "highly relevant to the prosecution's theory of how and why [Ramirez was attacked]." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1370; see also People v. Williams (1997) 16 Cal.4th 153, 193 [gang evidence relevant to motive and identity].) The gang enhancement was "inextricably intertwined" with the charged offenses in that it assisted in establishing Gandara's identity apart from the eyewitness testimony, a motive for his crimes, and his requisite intent to commit his crimes. (People v. Hernandez, supra, 33 Cal.4th at p. 1048.) In our view, none of the evidence offered to prove the gang allegation was so minimally probative on the charged offense, and "so inflammatory in comparison, that it threatened to sway the jury to convict regardless of defendants' actual guilt." (Id. at p. 1051.)

IV. Claims of Ineffective Assistance of Counsel

To establish ineffective assistance of counsel, Gandara bears the burden of showing first that his counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. (People v. Hernandez, supra, 33 Cal.4th at p. 1052.) Second, he must establish that, absent counsel's error, it is reasonably probable that the verdict would have been more favorable to him. (Id. at p. 1053.) " '[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' " (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland v. Washington (1984) 466 U.S. 668, 697.) A defendant must affirmatively demonstrate prejudice; it is not sufficient for the defendant to show the error had some "conceivable effect" on the outcome of the proceeding. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
Gandara raises issues with his counsel's constitutionally deficient performance with respect to each of the foregoing claims on appeal. Specifically, he contends his counsel was prejudicially ineffective for failing to (1) object to Padilla's assertedly tainted in-court identification; (2) effectively cross-examine Ramirez at his preliminary hearing about the circumstances of his identification of Gandara's photograph and the rumors he purportedly heard; and (3) request bifurcation of the gang allegation.
These contentions fail for several reasons. First, they are not cognizable on appeal. The record does not indicate why counsel failed to act with respect to the foregoing matters. "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." (People v. Carter (2003) 30 Cal.4th 1166, 1211, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) " '[T]he reviewing court should not speculate as to counsel's reasons. . . . Because the appellate record ordinarily does not show the reasons for defense counsel's actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, not on appeal.' " (People v. Lucero (2000) 23 Cal.4th 692, 728-729.) Having rejected Gandara's challenges to Padilla's identification and the admission of gang evidence above, we believe it may be that defense counsel did not assert objections or request bifurcation because he consciously concluded any objections or such a request would be meritless. As for Ramirez's preliminary hearing cross-examination, there may have been a reasonable explanation for counsel's declining to ask Ramirez whether he had heard rumors that Mousie was his attacker or whether he knew Mousie before the incident (one such reason being that the neighborhood rumors connected Gandara to the crime). The point is, we cannot know why counsel did not act in the manner Gandara wishes and it is not for us to speculate on the issue. (People v. Diaz (1992) 3 Cal.4th 495, 557.) We decline to find trial counsel incompetent without all the relevant facts.

Even if we were to address the merits of Gandara's ineffective assistance claims however, we would reject them. Having held Padilla's in-court identification was not tainted by her unaided out-of-court identification, we conclude Gandara's counsel did not act in a constitutionally deficient manner by declining to object to her trial testimony. In short, counsel was reasonably competent in concluding such an objection would have been meritless and thus futile. Appellant's trial counsel was not ineffective by not objecting. (People v. Price (1991) 1 Cal.4th 324, 386-387.) Likewise, because Ramirez's preliminary hearing testimony was admissible under Evidence Code section 1291, any objection to its admission would have been futile.

When a claim of ineffective assistance of counsel is based on counsel's failure to make a motion, the defendant must show that had reasonably competent counsel made such a motion, it would have been successful. (See People v. Grant (1988) 45 Cal.3d 829, 864-865.) Based on our rejection of Gandara's challenge to admission of the gang evidence, Gandara cannot meet his burden show his counsel rendered ineffective assistance by failing to request bifurcation of that evidence.
Finally, Gandara cannot establish prejudice. To demonstrate prejudice, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." (Strickland v. Washington, supra,466 U.S. at p. 693.) "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694; see People v. Weaver (2001) 26 Cal.4th 876, 961; People v. Bolin (1998) 18 Cal.4th 297, 333.) Gandara's prejudice argument is premised on the assertion that all of the eyewitness testimony was insufficient to support the convictions. But to the contrary, we have concluded that the identifications from Padilla, Ruano and Ramirez, Gandara's victim, were each properly admitted and constituted substantial evidence to support Gandara's conviction. Each of Gandara's ineffective assistance claims fail in view of the remaining admissible evidence pointing to Gandara as the assailant. He has not demonstrated that his counsel's failures "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland v. Washington, at p. 686.)

V. Cumulative Error

"Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Having assessed Gandara's evidentiary challenges and finding no error, we reject his contention that any cumulative effect of errors requires reversal. Contrary to Gandara's assertions otherwise, there was no miscarriage of justice requiring reversal on this record.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

McINTYRE, J.

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^[1] All statutory references are to the Penal Code unless otherwise indicated.

^[2] In assessing the totality of the circumstances, "[t]he factors to be considered . . . include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself." (Manson v. Brathwaite, supra, 432 U.S. at pp. 114; see also People v. Kennedy (2005) 36 Cal.4th 595, 608.)

^[3] Even if we were to consider the totality of the circumstances of Padilla's out-of-court identification, we would conclude it was reliable. Padilla testified she saw Gandara's facial features from her bathroom window from a distance of approximately 113 feet; she "focused [her] eyes on his face" during the incident, it was daytime, and there is no evidence of any obstruction between her and Gandara. She testified that she explained to Detective Limon that she recognized Gandara's facial features, and she did not have any doubts when she picked out Gandara's photograph. Under the circumstances, even though Gandara's out-of-court identification took place over a year later, we cannot say that factor alone (or even in combination with the distance) renders Gandara's identification unreliable.

^[4] The trial court ultimately permitted the jury to hear that Ramirez had provided information to Detective Limon that led the detective to obtain suspect information about a person with the nickname "Mousie."