P. v. Grey

Filed 12/29/08 P. v. Grey CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury convicted Aaron B. Grey of attempted murder and discharging a firearm from a vehicle, and found he personally discharged a firearm, causing great bodily injury. (Pen. Code, 664/187, subd. (a); 12034, subd. (c), 12022.53, subd. (d).) The jury found the crimes were not gang related. (Id., 186.22, subd. (b)(1).) The trial court sentenced defendant to prison for the midterm of seven years for attempted murder, plus 25-years-to-life for the firearm enhancement, and imposed but stayed a midterm sentence of five years plus the enhancement on the other count. (Id., 654.)

On appeal, defendant contends the trial court should have granted his motion to bifurcate the gang allegation, should have granted his new trial motion based on the alleged improper introduction of gang evidence, and should not have permitted a gang expert to testify as to his mental state. We find these claims lack merit, and we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The events leading to these crimes were more foolish than in most shooting cases, and the victim, who needlessly risked his and his sons safety, is lucky to be alive.

Prosecutions Case

At approximately 8 p.m. on October 10, 2006, V. was in a parked truck at a store waiting for her husband (the victim) to finish shopping; her baby daughter and her teenaged daughter Y. were with her. V. heard Y. telling someone that Y. wasnt looking at her, and then V. heard a girl from a car parked next to V.s truck saying stuff to Y, using foul language. V. testified that both girls were mouthing off to each other and being rude. Y. got out of the truck and asked the other girl why she was calling out names, but got back in the truck when V. told her to. Then a guy from the car told V. to shut up, called her names, and said he was calling some people, I guess to beat me up. [] He said that he -- he was going to kill me, my daughter, my baby. And then he said after that, bring your husband, I got something for him, too. V., when reminded of her statement to police, conceded that the man had mentioned the Piru gang. She identified defendant in court as this man, and testified he had had a grill, a shiny gold plate on his teeth. After the victim returned to the truck, defendant called my daughter names and said that, come out [of] the car and fight my sister or girlfriend, whatever she was to him. And my husband didnt pay no mind and drove away. [] And they threw a milkshake at the window. We went home. Defendant had said, let the bitch come out of the car and fight me. After they unloaded groceries at home, V.s husband went back to the store with M., their 17-year-old son.

Y. testified she had turned 16 years old the month before this event. She first noticed a car next to her familys truck, when someone began yelling at her, calling her the B word and just saying a lot of stuff[.] Y. got out of the truck, mad and expecting a fight, and called the girl a bitch, but when another female began yelling at her, saying things like you are messing with my sister, and her mother told her to get back in the truck, Y. returned to the truck. The females in the car started cussing and then they started cussing out my mom, calling her a fat bitch, and that I was a bitch and my little sister was a bitch. A man with braids and a gold grill on his teeth said that we were bitches and that we needed to shut up, and . . . I got something for you and your mom and your little sister, and thats it. He said something about its Piru or something like that, and stars up; Y. used to know a boy in the gang and he would use that expression, so she understood this to mean the man was also in the gang, which frightened her. When her father arrived and they drove off, one of the girls threw a milkshake at their truck. Her father grew mad on the way home, and left the house with her brother. She testified her father took pride in his truck and would be upset by someone throwing a milkshake on it.

The victim, Y.s father, testified that after he loaded the groceries in his truck and began to drive away from the store, a man told him to take my [fucking bitch] daughter out of the car. The man was wearing a red jacket and had gold teeth. As the victim continued to back his truck out of the parking space, Some females came out and started throwing stuff at the truck, at that time I was afraid.

After unloading the groceries at home, the victim went back to the store because he had forgotten an item, and he took his son M. with him. He also testified that he had it in his mind to confront the man. He drove to the other car and conceded that photographs showed he parked so as to block it, though he did not remember doing so. This would have been about 25 minutes after he left the parking lot. The victim asked the man why he disrespected the victims wife. He may have used foul language while asking this question, and asked the man to get out of his car, and he may have punched the man. Then the victim stepped back from the mans car window and felt something hot. Later he saw a scratch on his truck.

The victim had been shot in the shoulder.

While at the hospital, the victim told an officer he became angry when he heard that a female in a white sweater had disrespected my wife, and went with his son to the store to ask the people in that car why they had done so.

M. testified he did not see anything but heard his father yell for him after he was shot. He also testified he saw a flash. He then saw the other car drive off, and saw that the driver had a red jacket and gold teeth. He ran after the car and threw his cell phone at it. He remembered the driver with a gun but did not remember telling Detective Ramos that the man pointed it at him before M. threw the cell phone. He identified defendant as the driver in open court.

Elk Grove Police Detective Gabriel Ramos testified that V., M. and Y. all separately identified defendants picture from a photographic lineup; M. was sure (10 out of 10), but V. and Y. were less sure (6 out of 10). When Ramos arrested defendant on December 18, 2006, defendant was wearing a red shirt and a gold grill with the letters MVP on his teeth. The screen saver on defendants cell phone said Meadowview Piru, and defendants tattoos included Piru on his left forearm.

When Detective Ramos took V.s statement, she did not mention that defendant had threatened her baby, and had said that M. was shopping with the family. M. had told Detective Ramos that he had actually seen the shooting, and that he had seen defendant point a gun at him. When interviewed on November 30, 2006, M. was wearing a red and white shirt and hat, and blue shorts with red trim.

Elk Grove Police Officer Paul Grant testified that when he arrived at the scene, the victims truck was parked blocking several parking spaces. The victim had a bullet hole in his shoulder and was taken to the hospital. Officer Grant spoke with M., who said he had been shopping with his father and the rest of the family before he and his father returned to the store. M. told Officer Grant that he saw his father punch the man in the face, the man fired two shots at his father, then M. pushed his father out of the way and threw his cell phone at the mans head.

The parties stipulated that the Meadowview Piru is a criminal street gang, and that Detective Robert Strange would testify that defendant is a validated member of the Meadowview Pirus also known as the Bloods. The trial court then instructed the jury as follows:

You may consider evidence of gang activity only for the limited purpose of deciding whether the Defendant acted with the intent, purpose and knowledge that are required to prove the gang-related crimes and enhancements, or the Defendant had a motive to commit the crimes charged, or the Defendant actually believed in the need to defend himself, or the Defendant acted in the heat of passion.

You may also consider this evidence when you evaluate the credibility or believability of a witness. And when you consider the facts and information relied on by an expert witness in reaching his opinion, you may not consider this evidence for any other purpose. You may not conclude from this evidence that the Defendant is a person of bad character or that he has a disposition to commit crime.

This limiting instruction was also read to the jury after closing arguments were delivered.

Elk Grove Police Detective Robert Strange testified as a gang expert without objection. He described the Meadowview Piru gang, how the police validate members, and testified its members used violence to gain respect. [T]ypically in the gang subculture[,] power and influence and respect . . . are gained through the commission of acts of violence. [T]he thing most important, is the ability to commit violence and the willingness to do so and actually committing those acts of violence. This causes the community to fear gang members and discourages crime reports. In his opinion the instant offenses were gang-related, because defendant injected mention of the Piru into a verbal spat for intimidation and to increase his stature. A gang member such as defendant could not allow his dignity to be challenged, therefore he had to respond to the victims punch with a firearm or he would have looked like a punk. He has that gun to shoot somebody with it. You know, its so many times people conveniently say its self-defense when they shoot people in these situations. But that was an opportunity that presented [itself,] that now instead of fighting this guy, Ill just shoot this guy. Gang members typically will escalate violence, and respond to a punch with a weapon or by having a group beat the person up: Its not going to be a fair fight.

There was evidence that at the time of his arrest defendant had a teardrop tattoo on his face, which he had not had on April 6, 2006; Detective Strange opined that if defendant had not had it before the shooting on October 10, 2006, that might be a sign, understood by gang members, that defendant had shot someone, a kind of badge of achievement. However, he conceded this was his gut feeling and nobody has really given me a set answer on it.

Defense Case

Vanessa Pedroza Grey, defendants girlfriend at the time of the shooting, but wife at the time of trial, testified she was in her car during this incident, along with her daughter A. (aged 4) and her two sisters, I. (aged 11) and G. (aged 17). She was also pregnant with defendants child. She heard Y. and G. arguing, both were being rude and threatening, and she heard Y. say Ill beat your ass, Blood, or something. Grey testified she told her sister to go into the store, that it was not worth fighting over, but when G. went to the store with the younger girls, and Y. got back into the truck, Y.s mother started mouthing off, saying Puerto Rican pride and fuck you, bitch. All kinds of stuff. Defendant had not said anything during this time. He then said be quiet. No one is even saying nothin. Nobody is trying to argue with you. Grey then told Y.s mother V. to get out [of] the car then, meaning come out to fight, or put up or shut up[.] At about this point V. said she was going to call her boyfriend/husband something and Grey saw V. make a phone call from inside the truck. About 8 to 10 minutes later the victim came from the store, looked at the people in Greys car, loaded his groceries and drove away, but then he stopped nearby and made a telephone call from inside his truck. He circled the truck by Greys car and the little girl and the mom were arguing, just still yelling stuff out. Grey threw a juice at the truck so they would leave but her juice fell short. Defendant never threatened anybody, and never mentioned gangs, all he did was tell V. to be quiet.

Grey testified that after a period of calm, in about five minutes, the truck returned, blocking her car. But before the truck did that, she had become concerned about a green Escalade or Tahoe SUV that was circling the parking lot, driven by a dark-skinned bald-headed Mexican guy that had loud music playing. She also mentioned a black sedan behind the victims truck. The victim came running toward Greys car, opened the drivers side door and he punches Aaron and kicks him cause his foot is in my car. Then she saw the victims son M. coming, hes yelling for someone to come this way. And then I just hear a gunshot. M. threw something at Greys car and defendant had to hit the victims truck in order to drive off. Grey called her sister, G., who was still in the store, and told her to stay there, then Grey and defendant left.

Grey claimed defendant got the teardrop tattoo before this incident, in June 2006. When contacted by the police about one month after the shooting, she lied and told them the man in her car was Marcus Johnson; she did this to protect defendant and because Detective Ramos threatened to take away her daughter, and also to protect her sister, who had already spoken to the police.

Elk Grove Police Officer Chris Reece testified that the victim said he became mad on the way home from the store when his wife told him a Hispanic woman had called her a fucking bitch, and after dropping his family off at home he took his son back to the store to confront the people. V. told the officer that her husband was quick to anger.

Rebuttal

Detective Ramos testified that Grey was evasive when he interviewed her, and she claimed that Marcus Johnson was in the car with her on the night of the shooting. She told him that the people in the truck had been saying things like Puerto Rican this, Puerto Rican this. L.A. this, and someone in the truck referred to Bloods, Blood this, Blood that. The next day, when Detective Ramos confronted Grey about lying, she began to cry and claimed she was afraid of Marcus and his gang. He conceded that surveillance video showed a Tahoe circling the parking lot and a black sedan, as Grey had described.

DISCUSSION

The Peoples theory was that defendant injected his gang membership into what otherwise was a verbal spat between rude teenage girls, and that he responded out of proportion to the danger from the victim when he chose to shoot the victim, instead of taking other action in response to being punched in the face.

At the trial court level this was a close case. The jury could rationally have found self-defense, exonerating defendant, or either imperfect self defense or provocation, mitigating his culpability. The jury was instructed on all three of these principles. There was evidence from which the jury could infer the victims family had gang ties and had provoked the incident by shouting gang or racial slogans first. Y. admitted having known a boy in the gang, and M. wore what could be characterized as gang clothing. There was also evidence the victim and M. returned to the scene with back-up, the man in the green Tahoe SUV and possibly whoever was in the black sedan. In argument the People did not dispute that the victim ran up to defendants car and punched him in the face. Thus, despite the evidence of defendants membership in the Meadowview Piru gang, there was a real question about the level of his culpability, if any. (See 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, 68(2), p. 403 [apparent necessity suffices to show self-defense], 77, pp. 411-412 [imperfect self-defense negates malice]; id., Crimes against the Person, 214(1), p. 826 [sudden violent assault as provocation].)

Defendants view on appeal, expressed in each of his three contentions of error, is that although the jury rejected the allegation that the shooting was for the benefit of the gang, the gang evidence was so prejudicial as to unfairly induce the jury to reject his self-defense and provocation theories, and convict him despite the evidence.

Generally, we draw the opposite conclusion: The fact the jury rejected the gang enhancement shows that its collective passions were not so inflamed that it was unable to fairly evaluate the evidence in the light of the instructions. With this general statement of our views, we now analyze each of defendants specific claims of error.

I. Motion to Bifurcate

At first, defense counsel conceded the admissibility of expert testimony about gangs. Later, after the trial court brought the case of People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran) to the attention of the parties, the defense moved to bifurcate the gang enhancements. After a pretrial hearing (Evid. Code, 402) at which Detective Strange testified consistent with his trial testimony recounted above, the trial court denied the motion, finding that the gang evidence was directly relevant to the charged crimes:

[B]ecause Mr. Grey . . . was willing to take what was a verbal altercation between women and interject himself and actually threaten death and mentioned that it was all about Piru casts an entirely different indication over what occurred then some 30 minutes later. [] . . .

[I] think the detectives testimony was very critical because it was his opinion that Mr. Grey, under these circumstances, cannot do anything other than ratchet up or increase the reaction to what is a fist fight. And I do think that is a triable issue in this case for a jury to determine whether or not, in fact, Mr. Grey acted reasonably.

And I think it would be unfair and nothing short of hiding the truth from this jury if they were not to consider the role that Mr. Greys gang membership and gang activity plays in determining whether or not he acted reasonably under these circumstances. . . . [] . . . []

. . . I believe it is very distinguishable from Albarran, the facts in this case, and it is substantially more probative than prejudicial to permit the jury to hear this evidence from this detective.

We review an order denying bifurcation for an abuse of discretion. (People v. Albillar (2008) 162 Cal.App.4th 935, 942 (Albillar).) The burden is on the party seeking bifurcation to show a substantial danger of prejudice. (Id. at p. 943.)

The trial court properly concluded that the evidence of defendants gang membership and the culture of the gang was admissible to show his intent and motive and therefore no purpose would be served by bifurcation. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050 (Hernandez).)

In Albarran, supra, 149 Cal.App.4th 214, a divided panel of the Second District Court of Appeal concluded that a new trial motion should have been granted in a drive-by shooting case, because inflammatory gang evidence had been introduced, but there was little or no gang connection to the crime, only the fact that Albarran belonged to a violent gang whose members gain respect by committing crimes and intimidating people. (Id. at pp. 220-221.) In addition (p. 221):

Deputy Gillis opined that the shooting . . . intended to benefit the 13 Kings street gang because: (1) the shooting occurred in [the gangs territory]; (2) it occurred at a party and gang members often commit crimes during parties; and (3) more than one shooter was involved. Deputy Gillis stated that when these crimes were committed the 13 Kings were involved in an active gang war. Deputy Gillis also testified that [a victim] was a member of another gang, the Pierce Boys Gang, but he admitted he was unfamiliar with the Pierce Boys Gang, and knew of no rivalry between Albarrans gang and the Pierce Boys Gang.

The Albarran majority concluded the denial of a new trial motion was an abuse of discretion because there was insufficient evidence to support the contention that this shooting was done with the intent to gain respect. On the contrary, the motive for the underlying crimes . . . was not apparent from the circumstances of the crime. . . . There was no evidence presented that any gang members had bragged about their involvement or created graffiti and took credit for it. In fact, at the [Evidence] section 402 hearing Deputy Gillis conceded he did not know the reason for the shooting, though he had heard that gang members were present at the party. There is nothing inherent in the facts of the shooting to suggest any specific gang motive.^[Fn.] In the final analysis, the only evidence to support the respect motive is the fact of Albarrans gang affiliation. (Albarran, supra, 149 Cal.App.4th at p. 227.)

Presiding Justice Perluss dissented in detail, but because the issues are so fact-bound, even assuming Albarran was correctly decided, the facts here are distinguishable. Here, as the trial court noted, there was evidence showing that defendant injected his gang status into the dispute with the victims family, by using the gangs name (Piru) and stating that he was going to call other people to do violence to the victims family. Thus, there was a direct linkage between the Piru gang and this dispute. Such direct linkage was absent in Albarran.

In Hernandez, supra, 33 Cal.4th 1040, the California Supreme Court upheld the denial of bifurcation where a gang member told a woman just before robbing her and her friend, You dont know who you are dealing with, naming a street gang. (Id. at p. 1045.) The court found: Much of the gang evidence here was relevant to the charged offense. Indeed, defendant Hernandez himself injected his gang status into the crime. He identified himself as a gang member and attempted to use that status in demanding money from the victim. (Id. at pp. 1050-1051.) This case is factually like Hernandez, because, like Hernandez, defendant injected his gang membership into what was otherwise nothing more than a rude verbal spat.

Defendant segments the events of the night in question and argues there was no evidence he mentioned his gang involvement between the time the victim drove back to the store and the time of the shooting. This may explain why the jury rejected the gang enhancement, but it does not change the relevance of the gang threat as it illuminated defendants motive and intent. Had the gang enhancement been bifurcated, because the gang evidence explained defendants willingness to react to a punch by using a gun, it would have been admitted anyway, thus no purpose would have been served by bifurcation. The gang issue was not merely tangentially relevant to the charged crimes, as defendant argues on appeal.

II. New Trial Motion

Defendants new trial motion largely replicated the claims tendered in his motion to bifurcate the gang enhancement, and argued that at the time of the shooting there was no evidence of gang threats by defendant, because at that point he was simply sitting in his car when the victim ran up and punched him in the face. The trial court denied the motion because only limited gang evidence was introduced and defendant announced that he was a Meadowview Piru from the start; had he not done so bifurcation would have been granted. The trial court also noted the jury was able to [ferret] out the distinction between the underlying crime and its enhancement by the verdicts which were ultimately rendered in this case. So that I see this as bolstering rather than undercutting what was this Courts ruling in this case.

For the reasons that we reject the claim the bifurcation motion should have been granted, we reject the claim the new trial motion should have been granted. We agree with the trial court that the fact the jury rejected the gang enhancement showed it was not unduly inflamed by defendants gang membership, but could and did evaluate the evidence and apply the instructions dispassionately.

On appeal defendant faults the trial court for concluding the evidence bore on witness credibility. Several of the witnesses were reluctant to testify or gave evasive answers, and the gang evidence helped explain why. For example, the victim gave an improbable explanation to suggest he did not actually punch defendant, claiming that after he ran up to defendants car he simply put his hand on the top of defendants car and it must have slipped. The prosecutor conceded the victim punched defendant, and the victims fear of retaliation for having hit a gang member could explain his evasive testimony.

Defendant claims we must review the denial of a new trial motion de novo. There is some authority for this claim. (Albarran, supra, 149 Cal.App.4th at p. 224, & fn. 7; see also People v. Nesler (1997) 16 Cal.4th 561, 582 & fn. 5 (lead opn. of George, C.J.) (Nesler); cf. People v. Ault (2004) 33 Cal.4th 1250, 1260-1264.) There is contrary authority: In a recent California Supreme Court case, the court applied the abuse of discretion standard when reviewing the denial of a new trial motion based on due process claims. (People v. Hoyos (2007) 41 Cal.4th 872, 917, fn. 27.)

We need not plumb the niceties of this doctrinal dispute. Even reviewing the matter de novo, we would uphold the trial courts decision. No new trial was warranted.

III. Ultimate Issue Gang Evidence

Relying largely on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), defendant contends the gang expert was improperly allowed to testify as to the ultimate issues in the case. The claim is forfeited because trial counsel did not object in the trial court. (Evid. Code, 353; see People v. Morris (1991) 53 Cal.3d 152, 190, disapproved on another point by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) As a fallback, defendant contends trial counsel was incompetent because no Killebrew objection was made.

To prevail on this claim, defendant must show his counsels representation fell below an objective standard of reasonableness and, but for counsels error, there is a reasonable probability of a more favorable outcome. [Citations.] Further, defendant is not entitled to relief on direct appeal if the record does not show why counsel failed to act in the manner defendant challenges, unless there is no satisfactory explanation for counsels conduct or counsel was asked for an explanation and failed to provide one. (People v. Lizarraga (2003) 110 Cal.App.4th 689, 693.)

Defendant reads too much into Killebrew. One court described the actual holding in Killebrew as follows:

[A]n expert may properly testify about the size, composition, or existence of a gang; motivation for a particular crime, generally retaliation or intimidation; and whether and how a crime was committed to benefit or promote a gang. [Citing, inter alia, Killebrew.] . . .

An expert, however, may not testify that an individual had specific knowledge or possessed a specific intent. [Citing Killebrew.] In Killebrew, the appellate court held an experts opinion testimony was improper: Through the use of hypothetical questions, [the expert] testified that each of the individuals in the three cars (1) knew there was a gun in the Chevrolet and a gun in the Mazda, and (2) jointly possessed the gun with every other person in all three cars for their mutual protection. In other words, [the expert] testified to the subjective knowledge and intent of each occupant in each vehicle. Such testimony is much different from the expectations of gang members in general when confronted with a specific action. [] [The expert]s testimony was the only evidence offered by the People to establish the elements of the crime. As such, it is the type of opinion that did nothing more than inform the jury how [the expert] believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded. [Citation.]

In People v. Gonzalez (2006) 38 Cal.4th 932, 946-946 [], the California Supreme Court stated, [a]s did the court in [People v. Gonzalez (2005) 126 Cal.App.4th 1539], 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.] Even if we assume, without deciding, that Killebrew is correct in this respect, it has no relevance here. [The expert witness] merely answered hypothetical questions based on other evidence the prosecution presented, which is a proper way of presenting expert testimony. 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.] [] The Supreme Court further stated, there is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1513; see also People v. Ward (2005) 36 Cal.4th 186, 209-210.)

In this case, after testifying about the concept of respect in the gang culture, and that it is earned through violence, Detective Strange was asked a series of questions about his opinions about the charged crimes. His opinion was that by interject[ing] himself into the dispute and referencing his gang, defendant would improve his standing within the gang. When he was punched by the victim, he had to reply with greater force because he had already made this gang statement, and he cant back away from that now. In the middle of a nearly four-page narrative answer to a question to which no objection was lodged, Detective Strange included this passage:

. . . If he got beat up that day by this guy, that word would have traveled back, too. And in the eyes of gangsters he would have looked like a punk. So because he had already announced Piru and being that he drove to the grocery store with females and kids with a gun . . . he looks like an opportunist gang member.

To me hes look[ing] for an opportunity. He has that gun to shoot somebody with it. You know, its so many times people conveniently say its self-defense when they shoot people in these situations. But that was an opportunity that presented [itself] that now instead of fighting this guy, Ill just shoot this guy.

After the long narrative was over, Detective Strange detailed his discussions with gang members about escalation of force. In short, to preserve respect and frighten people, gang members really overpower their responses to situations; If somebody comes up and punches you, as a gang member, youre not gonna just answer with just punching him back. Its not going to be a fair fight. [] . . . And to answer it the way the Mr. Grey did is totally appropriate as far as the conversations Ive had with gangsters.

On appeal defendant characterizes all of these passages as improper ultimate opinion evidence.

In our view, the quoted passage was proper expert opinion, based on the detectives knowledge of gang culture. Although the way some of the points were phrased may have been technically objectionable, the gist of the testimony was not that the detective knew what was in defendants mind, it was that based on what he knew about gangs, including what gang members had told him about escalation of violence, the facts of this case as he understood them fit within the typical gang pattern. Had objections been lodged, at best the experts testimony would have been recast, formally, to avoid couching his answers so directly in terms of defendants thinking processes, but the gist of the testimony would have been the same. Therefore, because the essence of the testimony was bound to come in, defense counsel may rationally have concluded that no purpose would be served by lodging an objection that, at best, would merely have caused the testimony to be reworded, and would have called more attention to the testimony. Because the decision whether to object is inherently tactical, the failure to object to evidence will seldom establish incompetence. (People v.Freeman (1994) 8 Cal.4th 450, 490-491.)

Further, as stated, the jury was twice instructed about the limited admissibility of the gang evidence. It is not reasonable to conclude that the jury would have abdicated its duty to determine the facts, including defendants mental state, to the gang expert. Had the jury accepted the gang experts testimony uncritically, it would have sustained the gang enhancement. The fact it rejected that enhancement confirms that it carefully evaluated all of the gang evidence in this case, and there is no reason to suppose it unfairly warped the jurys assessment of defendants mental state.

DISPOSITION

The judgment is affirmed.

MORRISON , J.

We concur:

SIMS , Acting P.J.

HULL , J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com