P. v. Garcia

Filed 1/23/09 P. v. Garcia CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Merced County. John D. Kirihara, Judge.

John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant Daniel Tarin Garcia and a minor, M.B., assaulted Carlos. Appellant was charged in count 1 with assault with force likely to produce great bodily injury or with a deadly weapon; a special allegation that the offense was gang related was attached to this count. He was charged in count 2 with active participation in a street gang. Special allegations were attached to both counts alleging that appellant had one prior strike and one prior serious felony conviction resulting from a 2004 conviction for assault with a firearm. (Pen. Code,  245, (a)(2).) Jury trial was bifurcated. The jury found appellant guilty of assault with force likely to produce great bodily injury and it found true the allegation that this crime was gang related. (Pen. Code,  245, subd. (a)(1); 186.22, subd. (b)(1)(B).) The jury was not able to return a verdict on count 2; this count subsequently was dismissed. The court found true the special allegations that appellant had a prior strike and a prior serious felony conviction. (Pen. Code,  1170.12, subd. (c)(1); 667, subd. (a)(1).) Appellant was on probation when he committed the current offense and the court determined that appellant violated the terms of his probation. Appellant was sentenced to an aggregate term of 15 years imprisonment.

Appellant argues the prosecutor committed misconduct during his closing argument, the gang expert was improperly permitted to testify about appellants specific intent and the court erred by admitting evidence of statements appellant made to a jail classification officer in 2004 and 2006. None of these arguments is persuasive and his related ineffective assistance claims are equally unconvincing. We will affirm.

FACTS

On the evening of April 24, 2007, appellant quickly drove into the parking lot of an apartment complex. Carlos was driving out of the parking lot at the same time. Carlos drove back into the parking lot. While still sitting in his truck, Carlos told appellant to drive slower because there were children in the area. Appellant and his passenger, M.B., cursed at Carlos and approached Carloss truck. Appellant opened the drivers side door. M.B. threw an aluminum can at Carlos, hitting him on the head. Appellant threw a bottle at Carlos, hitting him on the leg. Carlos was standing on the running board of his truck when appellant pulled him out of the truck. Appellant and M.B. punched Carlos and he fell to the ground. They continued to hit and kick him for several minutes. Carloss stepson yelled at them to stop. The stepson heard either M.B. or appellant shout Norte and Its all about Merced. Carloss brother ran over, pulled M.B. away from Carlos, and fought with M.B. Carlos got up from the ground and fought with appellant. Eventually, everyone stopped fighting. Carlos grabbed appellants car keys, preventing appellant and M.B. from leaving before the police arrived.

A police officer arrived at the apartment complex. He found a glass tequila bottle on the floorboard of the drivers side of the truck and an aluminum can on the ground near the truck. He arrested appellant and M.B.

Carlos was driven to the hospital, where he was treated and released. Carlos complained of head and shoulder pain. He sustained a black eye, bruises on his face and abrasions on his hands.

A jail classification officer testified that appellant stated he was a Norteno and asked to be housed with other Nortenos in 2004 and 2006. Appellant denied gang affiliation when he was arrested for the current offense. Nonetheless, he was housed with Nortenos.

A gang expert called by the People opined that appellant was a member of the Norteno street gang and that M.B. was a validated Norteno. Based on a hypothetical similar to the facts in this case, the gang expert testified that a statement to slow down would be interpreted as a challenge and would typically result in a verbal and/or physical assault. The statements, Its all about Merced and Norte are significant because the speaker is expressing his commitment to the Nortenos. Such a crime would be committed with the specific intent to benefit criminal gang activity.

Appellant testified in his own defense. He denied being a past or current gang member. He denied confronting Carlos, throwing a bottle or attempting leave the scene. He testified that he went to look for his sister, who lived in one of the apartments. He heard a commotion and saw M.B. fighting with someone. He ran over to help M.B. When he arrived, he was hit in the back and the mouth. He responded by fighting with one of the men who was there.

DISCUSSION

I.             Appellants statements to a classification officer made in 2004 and 2006 were properly admitted.

A.     Facts

A classification officer responsible for the housing of arrestees at the main jail testified that in order to determine where an arrestee should be housed within the jail, he considers the arrestees current charges, criminal history, in-custody behavior, age, gang affiliation, mental and medical health.

In 2004, he spoke to appellant in an unrelated case about his housing at the jail. At the time of booking, appellant claimed that he was northern affiliated and his enemies were Surenos. Appellant was assigned to a cell block with other active Nortenos. Inmates who are not affiliated with the Nortenos would not be put in this cell block because they would be assaulted. Appellant was not assaulted while he lived in this cell block and never complained about his housing assignment.

The classification officer also testified that in 2006 appellant contacted another officer and asked for a cell change. As a result, the classification officer approached appellant. Appellant told him that he considered himself to be an active Norteno and he wanted to be moved from general population to the wing where Nortenos were housed. He was moved to the Nortenos wing. Appellant had been in general population for one day before he requested to move to the Norteno wing.

In his booking sheet for the current offense, appellant denied any gang affiliation and said that he wanted to be placed in general population. Nonetheless, based on appellants past behavior, incident reports and classification reports, he was housed with active Nortenos from the date of his arrest in the current matter until trial. Appellant was never assaulted during this period and never asked to be moved.

Defense counsel objected to admission of this testimony because appellant was not given Miranda advisements prior to making these statements to the classification officer. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) The objection was overruled.

B.    Appellants statements in 2004 and 2006 fall within the routing booking question exception.

In Pennsylvania v. Muniz (1990) 496 U.S. 582 (Muniz), a four-justice plurality recognized a routine booking question exception which exempts from Mirandas coverage questions to secure the biographical data necessary to complete booking or pretrial services. (Id. at p. 601, plur. opn. of Brennan, J.) However, this exception does not include questions asked during booking that are designed to elicit incriminatory admissions. (Id. at p. 602, fn. 14.)

Appellant argues that admission of statements he made in response to the classification officers question about gang affiliation in 2004 and admission of his unsolicited statements to the classification officer in 2006 go beyond the routine booking question exception created in Muniz. He contends that any questions or statements pertaining to an arrestees gang affiliation or membership are clearly designed to elicit an incriminating response and are admissible only if proper Miranda warnings were given. We are not persuaded.

In People v. Morris (1987) 192 Cal.App.3d 380 (Morris), this court found that certain statements the appellant made during his booking were inadmissible because they directly related to the charged crime. We concluded that it was obvious this was the type of questioning a booking officer should know is reasonably likely to elicit an incriminating response. In Morris, we implicitly recognized that in order to fall outside the routing booking question exception, the incriminating response must relate to the offenses for which the defendant is currently in custody. (Id. at pp. 389-391.) The existence or nonexistence of Miranda advisements on a date not directly linked to the crime for which the defendant has been arrested is immaterial to the current offense.

Questioning about possible gang affiliation for housing purposes is now a routine security question that must be asked at booking to ensure the safety of inmates and staff. (U.S. v. Washington (9th Cir. 2006) 462 F.3d 1124, 1133 [since agents routinely obtain gang moniker and gang affiliation information to ensure prisoner safety, question concerning Washingtons gang moniker was a routine booking question].) It would be unreasonable to conclude that a gang affiliation question posed by a booking officer in an unrelated case is somehow designed to elicit incriminatory evidence for use in the trial of a potential future offense.

Thus, the classification officer was not required to consider the possibility that appellants response to the gang affiliation question he posed in 2004 might, at some unspecified future time, become relevant to a crime that appellant might possibly commit. Furthermore, appellants statements to the classification officer in 2006 were not made in response to police questioning. It was appellant who initiated the contact with the classification officer and asked to be housed with Nortenos. Therefore, we conclude that the gang-related information appellant provided in 2004 and 2006 falls within the routine booking information exception and Miranda advisements were not required.

People v. Pokovich (2006) 39 Cal.4th 1240, which is cited by appellant, is distinguishable. There, our Supreme Court held that statements made by a defendant in a competency examination cannot be used by the prosecution at trial. However, questions asked during a competency hearing relate to the crime or crimes with which appellant is currently charged. Statements made by an arrestee during booking in a case prior to the current offense are not analogous to statements made during a competency hearing, because the questions in a competency hearing focus on the current offense and the defendants current mental capacity. The gang-related statements at issue here were made years before the current offense occurred. Appellant denied gang membership during his booking for the current offense and this denial was reported to the jury.

II.          Appellant forfeited review of the gang experts testimony that in a hypothetical situation the assault would be committed with specific intent to benefit the gang; the resultant ineffective assistance claim lacks merit.

A.     Facts

The gang expert opined that appellant was an active participant in a Norteno street gang. He also opined that the crime appears to be motivated for the purpose of benefitting a criminal street gang. After eliciting this testimony, the prosecutor posited a hypothetical question based on the facts of this case. Then the prosecutor asked whether, in the gang experts opinion, such a crime would be committed in association with or to benefit the Norteno street gang. The gang expert answered in the affirmative, explaining that it would intimidate and cause fear. Then the prosecutor asked whether such a crime would be committed with the specific intent to promote criminal gang activity. Again, the gang expert answered in the affirmative. He explained that this crime would demonstrate to others that they should not mess with Norteno[s] and it would tell people that this area belongs to the Norteno gang. Defense counsel did not object to any of this testimony.

B.    Review was forfeited because objection was not interposed below.

It is a well-established principle that only points that were raised and ruled on in the trial court are reviewable on appeal. (Evid. Code,  353; People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13.) To preserve an evidentiary issue for appellate review, timely objection must have been interposed on the same ground during trial. (People v. Hill (1992) 3 Cal.4th 959, 989.) In this case, appellant did not object to the portion of the gang experts testimony that is challenged on appeal. Accordingly, appellate review of the issue was forfeited. We discern no basis to exercise our discretion to ignore the well-established contemporaneous objection rule.

C.    The ineffective assistance claim fails because appellant has not established either deficient performance or prejudice.

To prevail on an ineffective assistance claim, appellant bears the burden of showing both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Gurule (2002) 28 Cal.4th 557, 610-611.) Here, appellants ineffective assistance claim fails because the underlying legal argument is not convincing. Moreover, he did not demonstrate prejudice.

Appellant relies on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew) and In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.) to support his claim that a gang experts testimony may not include an opinion on the presence or absence of specific intent. Appellant assigns no significance to the fact that in this case the prosecutor posed her question about specific intent in the context of a hypothetical situation. However, our Supreme Court has found this distinction to be determinative.

In People v. Gonzalez (2006) 38 Cal.4th 932 (Gonzalez), which was decided after Killebrew and Frank S., the California Supreme Court stated: we read Killebrew as merely prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial. [Citations.] ... Generally, an expert may render opinion testimony on the basis of facts given in a hypothetical question that asks the expert to assume their truth. [Citations.] (Gonzalez, supra, 38 Cal.4th at pp. 946-947, fn. omitted.) The court explained: [T]here is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrewas barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons. [U]se of hypothetical questions is proper. (Id. at p. 946, fn. 3.)

Following and applying Gonzalez, we conclude that appellants argument lacks merit and defense counsel reasonably could have failed to object on this basis because it would have been overruled. (See People v. Osband (1996) 13 Cal.4th 622, 678.)

Also, appellant failed to establish prejudice. In jury trials, the risk that jurors might attribute unwarranted significance and weight to an experts opinion simply because of his status as an expert is mitigated by the instruction that they are exclusive judges of the believability of a witness and are not bound by an experts opinion. There was substantial evidence other than the gang experts testimony proving that the assault on Carlos was gang related. We presume the jury knew that to convict appellant it was required to find the elements of the gang enhancement beyond a reasonable doubt and it knew that it possessed the discretion to disregard the gang experts testimony. The jury was unable to reach a verdict on count 2, thereby demonstrating that it did not blindly or reflexively accept the gang experts testimony. Consequently, appellant has not established a reasonable probability of a more favorable verdict if the gang expert has been prohibited from giving the testimony that is challenged on appeal.

III.       Appellant forfeited his prosecutorial misconduct claim; the resultant ineffective assistance claim fails for lack of prejudice.

A.     Facts

The jury was instructed on self-defense, defense of others and reasonable doubt. It was instructed that the People bore the burden of proving beyond a reasonable doubt that appellant did not act in lawful self-defense or defense of another.

During the prosecutors first closing argument he made the following remarks, without defense objection:

You heard a whole bunch of instructions today just before lunch. [The judge is] going to give you a copy of those instructions. Those instructions are important and theyre important because that is what the law is. And in your duty and in your analysis of the facts and your determination as to what the evidence is, you have to apply the facts to the law. So all of the instructions are important, but some of them may not apply, such as, if you believe that Carlos [] and [his brother and his stepson] told the truth and you believe their version of what happened, then the self-defense instructions are irrelevant. You dont have to consider those. If you believe what the defendant testified to yesterday, then you do need to consider those, defense of others instruction. But if you go back there and all twelve of you say You know what, we dont believe the defendant or ten of you say dont believe anything the defendant said or the story doesnt make sense, you still have to discuss the self-defense instruction or defense of others instruction with the two that are -- may be believed what the defendant said. But as the judge told you, all the instructions may not apply.

The prosecutor later remarked, without defense objection:

Again, as I said, if you believe what the defendant said about what happened, his self-serving statements about what happened, if you believe that, what he told you yesterday, then you need to consider the self-defense of others. He doesnt have the -- the defendant doesnt have a self-defense argument here at all. So even if you believe everything that he said yesterday, he has no self-defense because he in his version was never attacked .

So even if you believe what the defendant said yesterday, he doesnt have a self-defense argument. If you believe what he said, he may have a defense of others. But thats only if you believe what he said.

During defense counsels closing argument, he replied to the quoted portions of the prosecutors argument, as follows:

Now, the prosecutors going to want you to believe that, hey, it boils down to who do you believe there? Do you believe Carlos [] and his family or do you believe [appellant]? If you believe [appellant], sure, whatever. But you shouldnt believe him for -- because hes a gangster. But thats not how you look at it, okay. Remember, she has to prove the case beyond a reasonable doubt. So its not about who you believe more. Its about whether his testimony gave you a reasonable doubt as to whether hes guilty, okay. You might still think its more likely that Carlos [] is telling the truth, all right. But if his testimony was convincing enough to you that you think, yeah, theres some real issues here as to what really happened, Im not really sure what happened, then you have a reasonable doubt here. Even if you think that its still possible or even probable that Carlos [] was telling the truth because somebody [is] probably telling the truth does not mean you dont have a reasonable doubt.

During the prosecutors final closing argument he did not repeat or reiterate the comments he made earlier about the possible inapplicability of some jury instructions.

B.    Review was forfeited because objection was not interposed below.

A prosecutor violates the federal Constitution when he or she engages in a pattern of misconduct so egregious that it infects the trial with such unfairness that it makes the conviction a denial of due process. (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citations.] (Ibid.)

To preserve a claim of prosecutorial misconduct, a defendant must timely object on this ground and request a curative instruction. This requirement is excused only when an objection would have been futile or the claimed misconduct could not have been cured by timely judicial admonishment. (Id. at p. 820.)

In this case, defense counsel did not object on any ground to the portion of the prosecutors argument quoted above or assert a prosecutorial misconduct claim. If defense counsel had objected to the prosecutors allegedly objectionable comments, the judge could have given a curative admonition and instruction to the jury. Alternatively, it could have ordered the prosecutor to rephrase the allegedly improper argument. Thus, the alleged error was subject to cure. We discern no basis to exercise our discretion to ignore the contemporaneous objection rule. Accordingly, we conclude appellant forfeited appellant consideration of the prosecutors allegedly improper closing argument.

C.     The ineffective assistance claim fails for lack of prejudice.

We reject the associated claim that counsel was ineffective for absence of prejudice. When an ineffective assistance claim can be resolved solely on the basis of lack of prejudice, it is unnecessary to determine whether counsels performance was objectively deficient. (In re Jackson (1992) 3 Cal.4th 578, 604.) It is not reasonably probable that under the circumstances of this case that the jury would have returned a more favorable verdict if defense counsel had objected to the prosecutors allegedly improper remarks.

We reject appellants assertion that the prosecutor inferred that it was appellants burden to prove self-defense. Reasonable jurors would interpret the challenged remarks merely as a contention that if the jury did not believe appellants testimony, then the evidence did not support a conclusion that appellant acted in self-defense or in defense of M.B.

Also, defense counsel directly responded to the substance of the prosecutors challenged remarks in his own closing argument and the prosecutor did not revisit this subject during her prosecutors final closing argument.

Finally, the jury was instructed that the People bore the burden of proof to prove beyond a reasonable doubt that appellant did not act in lawful self-defense or defense of another and that if an attorney made a statement that conflicted with the courts instruction, the jury was to follow the courts instructions. We assume the jury abided by the courts admonitions and instructions, and thereby avoided any prejudice. [Citation.] (People v. Stitely (2005) 35 Cal.4th 514, 559.)

DISPOSITION

The judgment is affirmed.

_________________________

Levy, J.

WE CONCUR:

_______________________________

Vartabedian, Acting P.J.

_______________________________

Kane, J.

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