Filed 2/23/18 P. v. Mendez CA5






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH MENDEZ, JR.,

Defendant and Appellant.

F071843

(Super. Ct. No. BF151840A)


OPINION

APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge.
Solomon Wollack, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Peter W. Thompson, for Plaintiff and Respondent.
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Appellant Joseph Mendez, Jr., was found guilty by jury as charged in count 1 of first degree murder (Pen. Code, §§ 187, subd. (a), 189) ; in count 2 of willful, deliberate and premeditated attempted murder (§§ 187, subd. (a)/664); in count 3 of assault with a firearm (§ 245, subd. (a)(2)); in count 4 of possession of a loaded firearm in public by an active gang member (§ 25850, subd. (c)(3)); and in count 5 of active participation in a criminal street gang (§ 186.22, subd. (a)). The jury found true, as to count 1, the special circumstance allegation that the offense was committed to further the activities of a criminal street gang (§ 190.2, subd. (a)(22)); as to counts 1, 2, 3, and 4, that the offenses were committed at the direction of, or to benefit, a criminal street gang with the intent to promote, further or assist the activities of the gang (§ 186.22, subd. (b)(1)); as to counts 3, 4 and 5, that Mendez personally inflicted great bodily injury (§ 12022.7, subd. (a)); as to counts 1, 3, 4, and 5, that Mendez personally used or discharged a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (d)); and as to count 2, that Mendez, acting as a principal, intentionally discharged a firearm (§ 12022.53, subds. (c), (d) & (e)(1)).
The trial court sentenced Mendez to life without parole on count 1, plus 25 years to life on the enhancement. It further imposed a consecutive term of life with the possibility of parole on count 2, plus 25 years to life on the enhancement. Sentence was stayed on the remaining counts pursuant to section 654.
On appeal, we disagree with Mendez’s arguments that counsel was ineffective for failing to call an expert witness to testify on issues regarding eyewitness testimony; that the trial court erred in giving CALCRIM No. 315; that the trial court erred in allowing evidence of rap lyrics and a video; that the prosecutor committed misconduct in arguing on the reasonable doubt standard; that the trial court erred in admitting gang expert witness hearsay testimony; that cumulative error occurred; that evidence was insufficient to support the gang allegations; and that his sentence of life without the possibility of parole was cruel and unusual punishment and violated equal protection and due process of law. We also disagree with his argument in supplemental briefing that his case should be remanded for resentencing in light of Senate Bill 620. However, we agree with his argument that his conviction for the substantive offense of gang participation must be reversed as it is a lesser included offense of possession of a loaded firearm by an active gang member.
STATEMENT OF THE FACTS
Events of November 18, 2013 in Delano
Car Theft on Fremont Street
Juan Silva resided on Fremont Street; Mendez lived nearby. On the morning of November 18, Silva borrowed a red two-door Toyota Solara from Yoanna Flores. He later stopped at Mendez’s house and asked if he could use the bathroom. Silva parked the car in the driveway, left the keys in the car and went inside, while Mendez and two other men were standing outside. When Silva came back outside, the vehicle was gone, as were Mendez and the other two men. Silva told the police Mendez had taken the car and gave some addresses where Mendez might be found.
Shooting on 11th Street
At approximately 1:00 p.m. on November 18, Jose Fernandez was walking and started to cross 11th Street when a two-door red car turned left, went around a church, up through an alley, and stopped in a position where the occupants could see him pass the alleyway. As soon as Fernandez passed the alley, the car pulled up to the next alley and waited for him to approach. Fernandez ran down 11th Street, but three Hispanic men had already exited the vehicle. The men said, “What’s up ese? What you bang, ese?” Fernandez told the men he did not bang, but one of the men told the others, “Get him, ese. Get him, ese.” Fernandez fought with all of the men until one reached for a gun. Fernandez took off running down 11th Street, looked back and saw the man with the gun squatting in the middle of the street and heard a shot. Fernandez was hit by a bullet but kept running. A friend picked him up and took him to the hospital. Fernandez claimed to be an ex-Delano Norte gang member. Fernandez identified Mendez from a photo lineup, but was equivocal about his identification at trial. Detective Rubin Campos’s interview with Fernandez, including his identification of Mendez, was recorded and played for the jury during trial.
Shooting at Kalibo Park
On November 18, at approximately 8:00 p.m., Gad Romero and Cody Harris were hanging out in Kalibo Park, in an area known as a Norteño hangout. The two noticed their friends May Cantorna and Jennifer Cervantes sitting by the fence near the apartment complex at the edge of the park, and walked over to join them. About five minutes later, a red car pulled into the apartment complex parking area and a Hispanic male got out and asked the group if they knew where the person was to buy weed. Romero told the man the guy was not awake. The man asked Romero “do [you] bang.” Romero responded, “Look at me. Do I look like I bang?” Harris then approached the man, who asked him “Do you bang?” Harris said, “No, but what’s up?” The man said, “Say fuck Norte,” and Harris again told the man he did not bang. The man pulled a gun from his pocket and shot Harris, who fell to the ground and died within minutes. Romero and Cantorna both identified Mendez as the person who shot and killed Harris, who was African-American.
Gang Expert Testimony
Police Officer Michael Strand testified as a criminal street gang expert witness. Strand testified to the various ways individuals become members of a street gang and their use of monikers or nicknames to hide their true identities. He explained that, in the Sureño culture, all members are equal, but some have different levels of influence, as shot-callers, facilitators, and Mexican Mafia members. In contrast, the Norteño gang consists of a pyramid hierarchy, with Nuestra Familia members at the top, followed by the Northern Structure or Nuestra Raza, with several thousand Norteño foot soldiers at the bottom.
Strand testified that reputation is important to all gang members, as they operate through fear, intimidation, and violence. Respect is important to gang members and is often derived from committing violent acts to instill fear in those from whom they want respect. Instilling fear benefits a gang by giving them more control and by dissuading witnesses to gang crimes from coming forward and cooperating with police. Gangs use graffiti to mark territory and they make themselves known by the color of clothing they wear, tattoos, hand signs, social media, word of mouth and reputation by committing crimes. Rival gangs disrespect each other through graffiti and by entering a rival gang’s territory and asking, “Where you from” and “Do you bang?” Gangs often engage in acts of violence against each other.
According to Strand, the city of Delano is the geographical demarcation line between the rival Sureño and Norteño gangs. Sureños is Spanish for Southener; Norteño is Spanish for Northener. The Sureños hold a slim 15-block territory in Delano known as Chinatown. Sureños identify with the number 13 and the color blue, and use the word “sur” for south or Sureño, and the word “ese” for “S” for South Sider. Strand explained Sureños have allegiance to the Mexican Mafia, no matter which subset they belong to, including the local subsets of South Side Delano.
Strand described the relationship between Sureños and African-Americans as “[h]ostile.” Norteños identify with the number 14, the color red, and the “Huelga bird.” African-Americans have been known to be associates or members of the Norteños.
Strand testified to several predicate offenses Sureño gang members had been involved in.

Strand knew Mendez from pervious contacts and arrests. Strand opined that Mendez and his various associates were Sureños. Mendez had a number of Sureño tattoos. At the beginning of trial, Strand noted Mendez had a new tattoo, “NK” with the “N” backwards and crossed out, indicating “Norteno killer.” Mendez had numerous contacts with police. In some cases, he identified himself as Sureño, in others as a Sureño South Side Delano, with the moniker of Smokie. After several incidents, Mendez was designated as a “gang hazard.”
On October 24, 2013, police conducted a probation search of Mendez’s residence and found an SKS rifle under the house. Sureño graffiti was seen throughout the house. Based on his knowledge of Mendez’s activities, Strand believed Mendez was an active Sureño at the time of the November 18, 2013, events.
DNA Evidence
DNA testing on a swab taken from the .380 casing found at Kalibo Park yielded a profile, but Mendez was excluded as a contributor.
Defense
Anna Ovando, with the public defender’s office, interviewed Cantorna in March 2015, regarding the shooting. Cantorna told Ovando she identified two individuals from police lineups as the potential shooter because they both had similar “jaw features” or “pointy chins.” Cantorna told Ovando she was uncertain which suspect was the actual shooter. Ovando testified that Cantorna recalled the shooter was tall, possibly Hispanic and had a distinctive jaw line.
DISCUSSION
I. DID MENDEZ RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO CALL AN EXPERT TO TESTIFY ON EYEWITNESS IDENTIFICATION?
Mendez contends trial counsel provided constitutionally ineffective assistance of counsel by failing to call an expert witness to testify regarding the problems associated with eyewitness identification. As argued by Mendez, the case against him was based “almost entirely on eyewitness identifications” made by witnesses Romero, Fernandez and Cantorna. And while Mendez acknowledges trial counsel “devoted the bulk of her cross-examination to challenging those identifications,” “she did not call any eyewitness identification expert to educate the jury about the long line of research which has found such evidence to be unreliable.” We find no merit to Mendez’s claim.
To prevail on a claim of ineffective assistance of counsel, the defendant must prove more than a failure by counsel to undertake a particular strategy or investigation. Rather, “defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) In meeting this standard, the defendant must overcome a strong presumption that counsel’s conduct was sound trial strategy or otherwise within the wide range of reasonable professional assistance. (People v. Burnett (1999) 71 Cal.App.4th 151, 180; People v. Bunyard (1988) 45 Cal.3d 1189, 1215, abrogated on another point in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) Moreover, “prejudice” in this context occurs only where defense counsel’s deficient performance “‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’” (People v. Kipp (1998) 18 Cal.4th 349, 366, quoting Strickland v. Washington (1984) 466 U.S. 668, 686.) If “a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient.” (People v. Kipp, supra, at p. 366.)
Applying these principles to the facts at hand, we conclude Mendez’s challenge to his attorney’s performance fails on two grounds - he has failed to prove either deficient professional performance or resulting prejudice. With respect to the quality of defense counsel’s representation, we first note that the decision to call a particular witness—including an expert witness in the area of psychological factors impacting eyewitness identifications—is generally a discretionary matter rather than a legal requirement. (See, e.g., People v. Lewis and Oliver (2006) 39 Cal.4th 970, 995 [“Expert testimony on the psychological factors affecting eyewitness identification is often unnecessary”]; People v. McDonald (1984) 37 Cal.3d 351, 377 [whether to admit or exclude expert testimony on psychological factors impacting eyewitness identification “remains primarily a matter within the trial court’s discretion”], overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914.) And, here, significantly, we do not know why defense counsel failed to call such an expert, given that she was never asked. As such, the law requires us to affirm on this ground unless there simply is no reasonable explanation for her conduct. (People v. Maury (2003) 30 Cal.4th 342, 389.) The record in this case reflects otherwise.
Generally speaking, expert testimony is admissible where the area of expertise is “sufficiently beyond common experience” that such testimony would assist the trier of fact. (Evid. Code, § 801, subd. (a); People v. McDonald, supra, 37 Cal.3d at p. 373.) As already noted, expert testimony in the area of psychological factors impacting eyewitness identification is not necessarily called for in many cases. And, here, Mendez identifies nothing specific to his case that would uniquely require such expert testimony. For all we know (which is little or nothing), defense counsel may have consulted with such an expert and decided his or her testimony was not required in this case. (See People v. Datt (2010) 185 Cal.App.4th 942, 953 [concluding that, where “defendant has failed to establish that his trial counsel failed to consult an expert or that such an expert would have been able to provide favorable testimony, he has not shown that his trial counsel was deficient in failing to present expert eyewitness identification testimony”].)
It is true the defense was focused on the theory that the three eyewitnesses misidentified Mendez as the perpetrator of the crimes. However, as acknowledged by Mendez, defense counsel spent quite a significant amount of time at trial, both in cross-examination and summation, drawing the jury’s attention to numerous factors sufficient to undermine the eyewitnesses’ identifications. Specifically, defense counsel challenged the eyewitness identifications, in both cross-examination and in closing argument, noting the perpetrator’s face was partially obscured, the brevity of the observations, and the lighting conditions at the time. Counsel emphasized the possibility that the witnesses were influenced by each other, and she emphasized the lack of reliability of eyewitness identifications by pointing to inconsistent statements made by the witnesses during identification of Mendez from photographic lineups and the certainty of identification at trial. Yet, Mendez argues that the only way for the jury to accurately assess the witnesses identification testimony would have been to have heard from an expert regarding the pitfalls and defects of uncorroborated eyewitness testimony.
In arguing counsel’s ineffectiveness, Mendez relies, in part, on People v. McDonald, supra, 37 Cal.3d 351. The issue in McDonald was whether a trial court abused its discretion in precluding the defense from introducing expert testimony on the reliability of eyewitness identifications. (Id. at p. 361.) The California Supreme Court held that the trial court had abused its discretion. “When an eyewitness identification of the defendant is a key element of the prosecution’s case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony.” (Id. at p. 377.) McDonald, however, provides no support for the claim that expert testimony must be presented by a defense attorney in every case where an eyewitness identification is uncorroborated.
We agree with respondent that Mendez has failed to meet his burden to prove no plausible explanation exists for his attorney’s failure to call an expert on eyewitness identification. Indeed, rarely will this court reverse based upon a defense counsel’s purported tactical error, as it is not our role to judge an attorney’s decisions during the course of trial in the “harsh light of hindsight.” (People v. Hinton (2006) 37 Cal.4th 839, 876.) And, in this case, in the absence of any clear facts indicating defense counsel made a tactical error during trial by not calling an expert witness to challenge the eyewitness identification, we will let her decision stand.
Finally, in any event, even aside from Mendez’s failure to prove deficient performance from counsel, we would nonetheless conclude no prejudice exists on this record. The jury was instructed, per CALCRIM No. 315 , to consider the very factors defendant contends the expert witness would have covered. The very detailed instruction that the jury was given to guide its evaluation of eyewitness identification testimony identified a host of relevant factors, and Mendez’s trial counsel utilized many of these factors in support of her argument to the jury that the witnesses identification of Mendez was suspect. The jury was also instructed that the prosecution had the burden of proving defendant’s guilt beyond a reasonable doubt. Thus, given these clear instructions, which we presume the jury followed, as well as the absence of any showing by defendant that an expert would have provided specific evidence relating to the identifications that would have made a difference to his case, we conclude his challenge must fail. (People v. Datt, supra, 185 Cal.App.4th at p. 952; People v. Kipp, supra, 18 Cal.4th at p. 366.)
II. DID THE TRIAL COURT COMMIT ERROR BY INSTRUCTING WITH CALCRIM No. 315, THAT LEVEL OF CERTAINTY IS A FACTOR TO CONSIDER IN EVALUATING EYEWITNESS TESTIMONY?
On the issue of eyewitness identification, Mendez also argues CALCRIM No. 315, as given, violated his 14th Amendment due process rights by instructing that a witness’s level of certainty is a factor to consider in evaluating the accuracy of identification testimony, which “flies in the face of an accepted body of research, which shows that witness certainty has no correlation with accuracy.” We disagree.
CALCRIM No. 315, which directed the jury to consider numerous questions when evaluating eyewitness identification testimony, including “[h]ow certain was the witness when he or she made an identification?.” Mendez argues CALCRIM No. 315 violates due process by including witness certainty among the factors used to evaluate the accuracy of identification testimony despite social studies showing an eyewitness’s certainty in his or her identification is not a reliable indicator of accuracy. Mendez maintains that the “‘witness certainty’ factor is far out of step with a well-established body of scientific research,” and either the trial court erred in giving the instruction or trial counsel was ineffective for failing to request the instruction be modified.
Because Mendez claims his right to due process was violated by use of the instruction, we consider the contention on appeal even though defense counsel did not object to the instruction as given. (§ 1259; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) We find no due process violation. It is true, as Mendez argues, that eyewitness identifications are fallible, but fallibility is not a new discovery. Fifty years ago, the United States Supreme Court observed that “[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” (United States v. Wade (1967) 388 U.S. 218, 228.) The law has been responsive to this reality in evolving various protective measures to lessen the risk of mistaken identification. To this end, “vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt” exist to assist juries in assessing eyewitness testimony. (Perry v. New Hampshire (2012) 565 U.S. 228, 233.)
Among these efforts to safeguard against mistaken identification, the California Supreme Court approved use of a jury instruction listing factors relevant to the evaluation of eyewitness identification. (People v. Wright (1988) 45 Cal.3d 1126, 1138-1144.) The court held that “CALJIC No. 2.92 [CALCRIM No. 315‘s predecessor] or a comparable instruction should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence.” (Id. at p. 1144.) “[A] proper instruction on eyewitness identification factors should focus the jury’s attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence.” (Id. at p. 1141.)
Among the list of relevant factors, CALJIC No. 2.92 included “[t]he extent to which the witness is either certain or uncertain of the identification.” (People v. Wright, supra, 45 Cal.3d at p. 1154.) The California Supreme Court later reaffirmed the propriety of including a certainty factor in a jury instruction on the evaluation of identification testimony (People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232) and more recently rejected the assertion that a trial court has a sua sponte duty to delete the certainty factor (People v. Ward (2005) 36 Cal.4th 186, 213). The high court is well aware of studies showing a “lack of correlation between the degree of confidence an eyewitness expresses in his identification and the accuracy of that identification,” and was cognizant of these studies when it first adopted a jury instruction listing witness certainty among the factors to be considered by a jury considering eyewitness identification. (People v. McDonald, supra, 37 Cal.3d at p. 369.) Nevertheless, the court approved listing “[t]he extent to which the witness is either certain or uncertain of the identification” as a factor for the jury’s consideration in evaluating an eyewitness identification. (People v. Wright, supra, at pp. 1141, 1154.) The court did so against the argument of a dissenting justice who maintained that the instruction would reinforce the mistaken “lay belief that the more certain an eyewitness is of his identification, the more likely the identification is correct.” (Id. at p. 1159 (dis. opn. of Mosk, J.).) The majority concluded that listing relevant factors in a “neutral manner,” without endorsing “a particular psychological theory relating to the reliability of eyewitness identifications” was the proper approach. (Id. at p. 1141.) “The instruction should not take a position as to the impact of each of the psychological factors listed.... An instruction that ‘explained’ the influence of the various psychological factors would of necessity adopt the views of certain experts and incorporate the results of certain psychological studies while discounting others. It would require the trial judge to endorse, and require the jury to follow, a particular psychological theory relating to the reliability of eyewitness identifications. Such an instruction would improperly invade the domain of the jury, and confuse the roles of expert witnesses and the judge.” (Ibid.) A neutral listing of factors, the court believed, would respect the jury’s role in assessing witness credibility while still permitting counsel to argue that a particular witness’s identification was unreliable. (Ibid.)
Whether or not the instruction would be improved by further clarifying the relevance of witness certainty, there is no basis for declaring the instruction unconstitutional as currently written. We are bound by California Supreme Court authority approving the instruction with its certainty factor. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We also note that the United States Supreme Court continues to consider “the level of certainty demonstrated at the confrontation” between the eyewitness and suspect as a relevant factor in evaluating a witness’s ability to make an accurate identification. (Perry v. New Hampshire, supra, 565 U.S. at p. 239, fn. 5.) Federal courts have recognized that there is “no United States Supreme Court case holding that due process is violated when, in assessing the reliability of a witness’s identification of a defendant, the jury considers the witness’s level of certainty in making the identification. On the contrary, the existing Supreme Court precedent appears to approve of such considerations.” (Arroyo v. Biter (C.D.Cal., June 22, 2012, No. ED CV 12–00088–GAF (RZ)) 2012 U.S.Dist. Lexis 180579, pp. 13–14.)
The trial court did not err in giving CALCRIM No. 315 with its certainty factor. Nor was defense counsel ineffective in failing to request modification of the instruction to omit the certainty factor.
III. DID THE TRIAL COURT ERR BY ADMITTING RAP LYRICS AND A VIDEO TO SHOW MENDEZ’S MOTIVE AND INTENT?
Mendez contends the trial court abused its discretion when it admitted violent and inflammatory rap lyrics and video with little, if any, probative value as his gang membership “was never in dispute,” and that it was unduly prejudicial under Evidence Code section 352. We disagree with Mendez’s contentions.
Background
Approximately three weeks prior to the shootings, police conducted a probation search of Mendez’s residence and discovered a binder of rap lyrics. In some of the lyrics, the composer identified himself as Smokie, Mendez’s gang moniker. The written lyrics included the statements, “I’ll murder your bitch,” “The only thing you got comin’ is death from my Smith & Wesson,” and “You get hit with my strap, and you just hear that click clack.” The lyrics also included multiple references to shooting Norteños, i.e., “I keep killing Chaps cause that’s the thing I do,” and “shooting up Ch[a]ps just to upgrade my life.”
In 2014, after the shootings, police discovered a You Tube video, entitled “RIP Hits,” in which the late Alex Lara, known as “Hits,” sings and references the shooting of an African-American male at Kalibo Park and appears to implicate Mendez. A second video was filmed in an alley near Mendez’s house and included numerous lyrics about murdering Norteños.
Under Evidence Code section 352, Mendez moved to exclude the two videos and the binder of rap lyrics. The trial court excluded the “RIP Hits” video, but permitted the jury to view part of the other video and allowed Detective Strand to testify about the rap lyrics found at Mendez’s house.
During trial, Detective Strand testified that a binder with “a good amount of college-ruled paper with rap lyrics on it” was found in Mendez’s house and, in some lyrics, the writer identified himself as Smokie. Detective Strand described the theme of the lyrics as “significant and consistent with gang activity,” and quoted at length from the lyrics, which included multiple references to guns and shootings, especially of Norteños.
The video was played for the jury, showing Mendez along with three other gang members. All are wearing gang colors, throwing gang signs, and the alley in which they are standing is covered in Sureño graffiti. The video was filmed in an alley near Mendez’s house, sometime before May 29, 2012, when one of the individuals in the video died. Evident in the video is a .45 pistol and a sign that says, “‘Sur up, Chapes,’” essentially translated to mean the Sureños were encroaching on Norteño territory. The individuals in the video were singing about their gang credentials and killing Norteños.
The jury was instructed not to consider the gang evidence as proof that Mendez was a person of bad character or that he had a disposition to commit crimes.
Standard of Review
“We review claims regarding a trial court’s ruling on the admissibility of evidence for abuse of discretion. [Citations.] Specifically, we will not disturb the trial court’s ruling ‘except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’” (People v. Goldsmith (2014) 59 Cal.4th 258, 266.)
Relevance
Mendez first contends the rap lyrics were not necessary to prove his gang membership, as that was not in dispute, citing defense counsel’s concession on the issue. However, Mendez’s intent and identity were at issue as he pled not guilty to all of the charges, and the video and lyrics in question provided circumstantial evidence that he was an active gang member, that he intended to and had motive to kill Norteños, and that he committed the crimes for the benefit of the gang. (People v. Daniels (1991) 52 Cal.3d 815, 857-858.) This evidence, although anticipatory, was explicitly relevant to the charges against defendant. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1372-1373 [trial court properly admitted over Evidence Code section 352 objection rap lyrics written by defendant that demonstrated his membership in a gang, his loyalty to it, his familiarity with gang culture and, inferentially, his motive and intent on the day of the killing].) While lyrics and poems do not often establish their author’s true state of mind (see, e.g., In re George T. (2004) 33 Cal.4th 620, 636-639 [lyrics of particular poem, with its ambiguity and lack of incriminating circumstances, did not amount to a criminal threat]), here, however, the lyrics, coupled with the other evidence of Mendez’s gang membership and his animosity towards Norteños, go beyond mere fiction to disclosing defendant’s state of mind, his motives and intentions, and his fealty to furthering his criminal gang’s activities. Furthermore, defense counsel’s “concession” of Mendez’s gang membership did not occur until defense counsel’s closing argument, after the evidence was presented to the jury.
Undue Prejudice
Mendez also contends the rap lyrics were more prejudicial than probative, pursuant to Evidence Code section 352. That section provides the trial court with discretion to exclude otherwise relevant evidence if its probative value is substantially outweighed by the probability that admitting the evidence will unduly prolong the proceeding, prejudice the opposing party, confuse the issues, or mislead the jury. (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn 22.) For purposes of the statute, “‘prejudicial’ is not synonymous with ‘damaging,’ but refers instead to evidence that ‘“uniquely tends to evoke an emotional bias against defendant”’ without regard to its relevance on material issues. [Citations.]” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
In People v. Zepeda (2008) 167 Cal.App.4th 25, the jury convicted the defendant of murdering two members of a rival gang, and it imposed criminal street gang enhancements. The court in Zepeda affirmed the trial court’s decision to allow the prosecution to play for the jury two tracks from a “gangster rap” CD the defendant had written and to provide the jury with the lyrics, and found the admission of the rap lyrics was not unduly prejudicial under Evidence Code section 352. In doing so, the court noted the trial court did not play four other tracks from the CD, the tracks provided noncumulative evidence of the defendant’s state of mind and his gang association, and the substance of the lyrics, while graphic, did not evoke an emotional bias against the defendant as an individual apart from what the facts proved. (Zepeda, supra, at p. 35.)
Applying the same analysis here, we conclude the rap lyrics were not unduly prejudicial nor cumulative. The trial court admitted the rap lyrics which were, according to the gang expert, “consistent with gang activity.” As was the video, which showed Mendez and several other associates in gang colors, throwing gang signs, surrounded by gang graffiti, and identifying themselves as gang members. To avoid cumulative and undue prejudice, the trial court specifically did not allow a video that mentioned the killing of an African-American in Kalibo Park and implicated Mendez.
Because the rap lyrics and video were highly probative of Mendez’s intent and motive to commit first degree murder and attempted murder, and to do so for the benefit of a criminal street gang, the trial court did not abuse its discretion in finding the prejudicial effect did not substantially outweigh the probative value of the evidence and we reject Mendez’s claim to the contrary.
IV. DID THE PROSECUTOR COMMIT MISCONDUCT BY IMPLYING PROOF BEYOND A REASONABLE DOUBT EXISTS AS LONG AS JURY BELIEVES MENDEZ WAS GUILTY?
Mendez contends the prosecutor committed misconduct during rebuttal argument by misstating the reasonable doubt standard “by likening it to a mere belief” in Mendez’s guilt. Anticipating the respondent’s contention that trial counsel’s failure to object to the prosecutor’s statement forfeited any claim of prosecutorial misconduct on appeal, Mendez argues that the failure to object constituted ineffective assistance of counsel. We find no prejudicial error.
Background
During closing argument, in response to argument of defense counsel, the prosecutor said the following:
“Counsel spoke greatly about the beyond a reasonable doubt standard. Don’t be afraid of that standard. Judge Lua read it to you. It may sound confusing. If you have questions on it, he’s the man to talk to. If you guys have questions on any of that, you know, he’d be happy to answer that. But keep in mind it’s the same standard used in every criminal court in this country used to convict the guilty on a daily basis. I am not going to read you the instruction. You already have it, and you will be able to refer to it.
“But I have a question for you guys. If you believe that the defendant is guilty in this case and you believe that he is the shooter but you are not sure if I have proven the case beyond a reasonable doubt, I want you to ask yourselves, well, why would you believe the defendant is guilty if I didn’t prove the case beyond a reasonable doubt?” (Italics added.)
Defense counsel did not object to this argument at trial. The trial court properly instructed the jury regarding the People’s burden of proof using CALCRIM No. 220.
Applicable Law
“[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements [citation].” (People v. Marshall (1996) 13 Cal.4th 799, 831.)
“‘“To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument.”’ [Citation.] A court will excuse a defendant’s failure to object only if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct.” (People v. Jackson (2016) 1 Cal.5th 269, 349.)
“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) As stated earlier, to prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel’s performance was deficient and that he suffered prejudice. (Strickland v. Washington, supra, 466 U.S. at p. 687.) The deficient performance component of an ineffective assistance of counsel claim requires a showing that “counsel’s representation fell below an objective standard of reasonableness” “under prevailing professional norms.” (Id. at p. 688.) With respect to prejudice, a defendant must show “there is a reasonable probability”—meaning “a probability sufficient to undermine confidence in the outcome”—“that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at p. 694.) We “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,... that course should be followed.” (Id. at p. 697.)
Analysis
Mendez contends the prosecutor’s statements, italicized above, likened the reasonable doubt standard to “a mere belief” in his guilt. In support of his argument, Mendez provides an extensive discussion of People v. Centeno (2014) 60 Cal.4th 659, 673 (Centeno), in which the Supreme Court considered whether a prosecutor misstated the reasonable doubt standard in closing argument. There, the People’s case was filled with inconsistent witness statements and an absence of direct evidence of the defendant’s wrongdoing. (Id. at p. 670.) In closing, the prosecutor used a visual aid—an outline of the State of California—and placed it in front of the jury. (Id. at p. 665.) In explaining the People’s burden of proof, the prosecutor gave the jury a hypothetical in which the issue to be decided was what state the outline represented. (Id. at p. 665–666.) She described the hypothetical evidence, which included witness testimony about the state, some accurate some not. For example, one witness testified that the state was next to another state that allowed gambling. (Id. at p. 665.) Another hypothetical witness testified she had been to the state and visited a town called “Fran-something” with cable cars and a beautiful bridge. (Ibid.) The prosecutor summarized additional fictional evidence and posited that some of the hypothetical testimony was correct, some was incomplete, some was inaccurate, and a lot of information about the state had not been presented. She then stated, using the visual aid, “‘but is there a reasonable doubt that this is California? No. You can have missing evidence, you can have questions, you can have inaccurate information and still reach a decision beyond a reasonable doubt.’” (Ibid.) Discussing the evidence before the jury, counsel then argued the jury’s decision should be “based on reason. It has to be a reasonable account.” (Id. at p. 666.) She went on to describe the conflicting evidence in detail, repeatedly urging that the People’s interpretation of the evidence was the most reasonable, as compared to the defense theory of the case. (Ibid.)
The Supreme Court held the prosecutor’s argument was improper because it impermissibly suggested that the jury apply a lower burden of proof. The court explained that the image used, an outline of the State of California, “necessarily [drew] on the jurors’ own knowledge rather than evidence presented at trial ... [and] trivialize[d] the deliberative process, essentially turning it into a game that encourages the jurors to guess or jump to a conclusion.” (Centeno, supra, 60 Cal.4th at p. 669.) Further, the prosecutor implied that, in the face of starkly conflicting evidence and issues of witness credibility, the People’s burden was met if its theory was “‘reasonable’” in light of the facts supporting it. (Id. at p. 671.) In short, “it [was] error for the prosecutor to suggest that a ‘reasonable’ account of the evidence satisfies the prosecutor’s burden of proof.” (Id. at p. 672, original italics.)
We find Mendez’s argument that the prosecutor’s remarks in this case were similar to those in Centeno unpersuasive. A review of the prosecutor’s argument demonstrates that he properly characterized the beyond-a-reasonable-doubt standard multiple times during his closing and rebuttal arguments and measured the evidence presented by the People against that standard. We see nothing untoward in the prosecutor’s statement, when taken in context. (See People v. Romero (2008) 44 Cal.4th 386, 416 [approving prosecutor’s argument that the jury must “‘decide what is reasonable to believe versus unreasonable to believe’” and “‘accept the reasonable and reject the unreasonable’”].)
Unlike the prosecutor in Centeno, the prosecutor here did not encourage the jury to accept the People’s theory solely because it was “reasonable.” Instead, his comments, when viewed in context, spoke to the strength of the evidence. He certainly did not attempt to redefine the beyond a reasonable doubt standard, as Mendez suggests. “Nothing in the prosecutor’s explanation lessened the prosecution’s burden of proof. The prosecution must prove the case beyond a reasonable doubt, not beyond an unreasonable doubt.” (People v. Romero, supra, 44 Cal.4th at p. 416.) We see no prosecutorial error here and therefore reject Mendez’s argument that his counsel was constitutionally ineffective for failing to object during the prosecutor’s closing argument.
V. DID THE TRIAL COURT ERR WHEN IT ADMITTED GANG EXPERT WITNESS HEARSAY TESTMONY IN VIOLATION OF THE SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES?
Detective Michael Strand, the prosecution’s gang expert, testified about the facts of Mendez’s past encounters with law enforcement and past predicate offenses involving Sureño gang members. Much of Strand’s information came from police reports and field interview cards. In his oral testimony, Strand used a PowerPoint presentation, which listed Mendez’s Sureño associates and his various arrests, and included word-for-word excerpts from the police report that gave rise to those arrests. Strand also used the PowerPoint presentation to discuss each of the predicate offenses.
In his opening brief, Mendez contends the admission of testimonial hearsay violated his Sixth Amendment right to confrontation (see Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and the effect of hearsay admitted in violation of federal law necessitates reversal of all of the charges against him or, at a minimum, the reversal of the charges that include a gang component. After Mendez filed his opening brief, the California Supreme Court decided People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Respondent contends Sanchez does not aid Mendez; in his reply brief, Mendez claims it does.
Standard of Review and Applicable Law
“The Sixth Amendment to the federal Constitution guarantees a defendant’s right to confront adverse witnesses. [Citation.] In addition, the prosecution may not rely on ‘testimonial’ out-of-court statements unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination.” (People v. Harris (2013) 57 Cal.4th 804, 839-840.) Under the federal confrontation clause, as interpreted by our California Supreme Court, at least two factors must be considered to determine whether a statement is testimonial. “First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution.” (People v. Dungo (2012) 55 Cal.4th 608, 619.) However, Sixth Amendment jurisprudence following the Supreme Court’s decision in Crawford remained in considerable flux and courts have spent significant effort collecting and summarizing the various permutations of the doctrine. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 395; and see, e.g., People v. Barba (2013) 215 Cal.App.4th 712, 720-733.)
In the course of this appeal, several aspects of this doctrine solidified in California, as expressed in Sanchez, which considered “the degree to which the Crawford rule limits an expert witness from relating case-specific hearsay content in explaining the basis for his opinion.” (Sanchez, supra, 63 Cal.4th at p. 670.) Sanchez reasserted the historical distinction between case-specific hearsay and the general hearsay relied upon by experts to detail general knowledge in the expert’s field of expertise. (Id. at pp. 675-678.) In doing so, it clarified that “[i]f an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay.” (Id. at p. 684.)
Having established this baseline, the court then considered whether certain types of hearsay evidence in gang cases are testimonial in nature and thus within the purview of Crawford’s constitutional restrictions on admissibility. (Sanchez, supra, 63 Cal.4th at p. 687.) The court detailed its understanding of the present evolution of what constitutes testimonial hearsay, explaining as a precursor, “[t]estimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial.” (Id. at p. 689.) It then recounted various permutations of the primary purpose test, before applying the overarching doctrine to certain evidence relied upon in reaching the gang conclusions in that matter. (Id. at pp. 689-694.) In its application, the court found that police reports are generally testimonial in nature, as are field identification cards written during the course of an active investigation. (Id. at pp. 695-697.) The court concluded the admission of such testimonial hearsay violates the confrontation clause. (Id. at pp. 695–698.)
Forfeiture
The People contend Mendez forfeited his challenge to the gang expert’s use of testimonial hearsay because he did not object on constitutional grounds. Mendez alternatively contends his trial counsel was ineffective for failing to object. We agree with Mendez’s assertion that objection on constitutional grounds would have been futile because, at the time, the expert’s testimony would not have been subject to a hearsay objection. As a result, we need not address his ineffective assistance of counsel claim.
Analysis
In his opening brief, Mendez identified the portions of Strand’s testimony he challenges. In his reply brief, Mendez states, “because Sanchez has added clarity to what may and may not be challenged on confrontation grounds,” he specified that he is challenging Strand’s testimony on (1) the information contained in the police reports, displayed during Strand’s PowerPoint presentation and the word-for-word excerpts Strand recited from those reports and (2) the case-specific testimony about the activities of third parties whom Strand believed to be Sureño gang members. Mendez does not contest the use of Strand’s testimony regarding the two field interview cards or the rap video and lyrics shown to the jury.
Background
Evidence of Mendez’s Active Gang Status
Detective Strand opined Mendez was an active gang member at the time of the current offenses because he had previously contacted him and arrested him, but also based on his review of police reports, bookings from his arrests, field interviews, photographs, and social media. In his Power Point presentation, Strand testified to six bookings involving Mendez, only one of which he was personally involved in: (1) August 31, 2009, in which Mendez self-identified as a Sureño and was tagged a “gang hazard”; (2) November 22, 2009, when Mendez was arrested for burglary and tagged as a gang hazard; (3) September 25, 2013, when Mendez was arrested for carrying a concealed dirk or dagger and resisted a police officer; (4) October 11, 2013, when Mendez was charged with carrying a concealed dirk or dagger and had a blue bandana in his property; (5) October 24, 2013, when Mendez was charged with possession of an assault rifle, gang participation and possession of stolen property. At the time of his arrest by Strand, he was wearing blue boxer shorts and was photographed with gang tattoos; and (6) November 21, 2013, in connection with the current offense, when Mendez was booked and stated he was part of the South Side Criminal gang.
Detective Strand also testified that he reviewed numerous police reports in which Mendez had some participation. Strand had personal participation and therefore knowledge of six of the relayed instances. Strand testified to the following police reports: (1) August 13, 2009, Mendez was in a vehicle with various other gang members when it was stopped. Mendez admitted his Sureño moniker was Smokie, and he was dressed in blue and had a gang tattoo. (2) August 31, 2009, Mendez was driving a vehicle, which was stopped. In the car, was another Sureño gang member. Mendez again admitted being a Sureño. (3) September 25, 2009, Mendez was in the home of another gang member when it was searched and a long rifle found. (4) November 22, 2009, Mendez was arrested along with another Sureño gang member for burglary of a market. (5) March 15, 2010, Mendez was found to be in violation of curfew. (6) June 27, 2010, Mendez was a passenger in a traffic stop that included two other Sureño gang members. Mendez identified himself as a “southerner.” (7) September 28, 2012, Strand made contact with Mendez and four other Sureño gang members, three of whom were in violation of parole or probation and not to affiliate with other gang members. Mendez had a number of observable gang tattoos. (8) September 25, 2013, Mendez was seen throwing a five-inch dagger. He claimed he needed the dagger to protect himself from Norteños. Strand contacted Mendez and another Sureño at the time and Mendez was wearing what Strand described as “a pretty unique hat.” (9) October 8, 2013, officers, including Strand, responded to reports of vandalism that included graffiti that said “187 smokey n hits,” which a Norteño explained he wrote because he did not like Smokie (Mendez) and Hits, Alexis Lara, as they were Sureños. Lara was later shot and killed in 2014. (10) October 12, 2013, Mendez was caught with a locked blade knife. At the time, he said he was enroute to a fellow Sureño gang member’s home. (11) October 24, 2013, Strand participated in a probation search of Mendez’s address. Numerous gang indicia was found in the home, along with rap lyrics. He was arrested for possession of an assault rifle. (12) November 10, 2013, various individuals fled from a vehicle in a traffic stop Strand was involved in. A loaded .22-caliber revolver and Mendez’s hat were found inside the vehicle. (13) November 18, 2013, Fernandez identified Mendez after he was shot. Strand interviewed Fernandez later in February 2014, who stated he used to be a Norteño. (14) November 18, 2013, Mendez was identified as the shooter in Kalibo Park when Harris was killed. (15) November 19, 2013, Silva speculated that Mendez took the vehicle Silva had borrowed from his friend Flores.
Predicate Offenses
To show Sureños committed a pattern of criminal activity, Detective Strand adduced evidence of five predicate offenses. Strand familiarized himself with all five cases by reading police reports, but testified he spoke to one of the individuals involved in one of the offenses, was at the “traffic stop” during another offense and “assisted McFarland PD” with another.
In September 2009, Juan Antonio Martinez shot an individual who was looking at a female he was with. Strand spoke with Martinez “about the case.” Martinez pled no contest to attempted murder. Strand opined Martinez was an active Sureño gang member based on his self-admission and that he had been contacted with numerous documented Sureños, including Mendez prior to that offense. Strand opined that Martinez committed the offense for the benefit of the Sureño gang, based on the circumstances of the crime.
In December 2009, Juan Jose Herrera attempted an armed robbery. The aforementioned Martinez supplied Herrera with the gun and Herrera and Mendez’s cousin, Peter, held the victim at gunpoint. Strand opined Herrera was a Sureño at the time of the offense, based on his self-admission and that he was arrested in the past with Mendez. Strand opined Herrera committed the offense for the benefit of the gang because the offense was committed with another gang member.
In June 2012, Jesus Gerardo stole a car and assaulted peace officers with the car. Strand opined Gerardo was a Sureño at the time of the offense, based on his gang admission, his tattoos, and that he had been previously arrested with other Sureño gang members, including Mendez. Strand opined that he committed the offense for the benefit of the gang, based on the circumstances of the crime.
In November 2012, Jesse Sanchez was stopped during a traffic stop after he was suspected of breaking into another vehicle. Strand testified he was at the traffic stop. Sanchez was arrested and charged with being a gang member in possession of a loaded firearm, carrying a concealed firearm, and gang participation, after he was stopped in a vehicle and a weapon found. Strand opined Sanchez was a Sureño at the time of the offense based on his self-admission of being a Sureño, and that he had previously been “contacted with … Mendez.” Strand opined the offense was committed for the benefit of the gang because there were two other Sureños in the car when it was stopped.
In July 2013, Juan Silva pled no contest to taking a vehicle without the owner’s consent, possession of a stolen vehicle, and providing false identification. Strand “assisted McFarland PD” with this case Strand opined that Silva was a gang member at the time of the offense as he had been previously “tagged” as a “gang hazard” in 2011, and was listed as “[s]ur 13” and claimed “to back up” the south. Strand opined that the offense was committed for the benefit of the gang, as gang members use stolen cars to commit other crimes.
Portions of Strand’s Testimony Were Inadmissible
Given the guidance provided by Sanchez, it is apparent that some of the evidence introduced through Detective Strand was testimonial hearsay and inadmissible. For example, when discussing Mendez’s gang affiliation, Strand relied, in part, upon numerous police bookings and reports, of which he had no personal knowledge. Strand also relied, in part, upon such police reports when detailing facts related to the predicate offense requirement of the gang enhancements.
However, Detective Strand did not rely exclusively on inadmissible testimonial hearsay when recounting his opinion that Mendez was an active gang member. Strand had numerous personal contacts with Mendez, including arresting him on October 24, 2013, following a probation search, in which a loaded SKS assault rifle was found underneath the house. Mendez had numerous gang tattoos, which Strand personally observed and photographed. In addition, the rap lyrics and video were admissible evidence of Mendez’s gang membership. Detective Strand also testified that he was personally involved in the investigation of three of the predicate offenses he testified to.
Prejudice
In summary, we conclude Detective Strand related some testimonial hearsay in opining Mendez was an active Sureño gang member. In addition, the record shows Strand related some case-specific hearsay in adducing evidence of the prior convictions of Sureño gang members.
“‘“‘Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24.’ [Citation.] We ask whether it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the error.’”’” (People v. Capistrano (2014) 59 Cal.4th 830, 873.) “‘To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision.” (People v. Neal (2003) 31 Cal.4th 63, 86.)
Mendez alleges introduction of testimonial hearsay affected his convictions on all counts. He argues in the alternative that, if we find the confrontation error harmless as to the substantive charges, it was prejudicial as to the various gang allegations, which would include count 5’s substantive gang charge; the gang enhancements to the other four charges; the special circumstance gang allegation as to the murder count; the firearm enhancement on the attempted murder count, which required, as one of its elements, that the gang enhancement be found true; and the count 4 substantive charge of possession of a loaded firearm in public by an active gang member, which also contains the requirement of a criminal street gang.
We first consider the gang enhancement. Determining if Mendez suffered prejudice from the erroneous introduction of testimonial hearsay requires us to examine the “elements of the gang enhancement and the gang expert’s specific testimony.” (Sanchez, supra, 63 Cal.4th at p. 698.)
To convict Mendez of the gang enhancement, the People must demonstrate the relevant gang engaged in a pattern of criminal gang activity, proof of which required the existence of at least two predicate offenses committed by members of the gang. (§ 186.22, subds. (b)(1), (e), (f).)
As the People argue, Detective Strand described three predicate offenses with which he had personal knowledge to satisfy this requirement. The nonobjectionable evidence introduced regarding these offenses contains evidence that all three offenses were committed by Sureño gang members. As such, they can be used to prove that Mendez’s criminal conduct was part of a pattern of Sureño criminal behavior. We therefore conclude any error in admitting evidence of the other predicate offenses was harmless beyond a reasonable doubt.
Mendez also argues we must reverse his underlying convictions for the substantive gang conviction, specifically that there was no personal evidence relayed by Detective Strand of current gang membership. Mendez also argues his underlying convictions turned on whether or not the jury accepted the murder and shooting were gang-related, as all other evidence regarding the offenses was minimal.
We find, however, that any improperly introduced testimonial hearsay evidence, discussed above, regarding Mendez’s gang affiliation, were harmless beyond a reasonable doubt. Detective Strand provided a legitimate opinion that Mendez had multiple gang tattoos and a gang moniker, was associated with gang members, and was participating in gang-related criminal activity. Detective Strand properly detailed his opinion that Mendez was a Sureño gang member based on his personal interactions with him and Mendez’s self-admission to him. He also properly presented general expert testimony regarding gang rules and expected conduct regarding shooting and gang rivalries, specifically as it related to Sureños and Norteños in the town of Delano. Based on this evidence, it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the erroneous admission of certain hearsay evidence. (People v. Capistrano, supra, 59 Cal.4th at p. 873.)
VI. WAS THERE CUMULATIVE ERROR?
Mendez contends the jury would have reached a more favorable result but for the cumulative effect of the alleged errors. As we have “‘either rejected on the merits [Mendez’s] claims of error or have found any assumed errors to be nonprejudicial,’” we reach the same conclusion with respect to the cumulative effect of any claimed errors. (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236; see also People v. Butler (2009) 46 Cal.4th 847, 885.)
VII. DOES SUBSTANTIAL EVIDENCE SUPPORT MENDEZ’S CONVICTION ON THE GANG ALLEGATIONS?
Mendez contends that the prosecution’s theory that the Sureños were the criminal street gang for purposes of the various gang allegations was error when, in actuality, the relevant criminal street gang was Mendez’s neighborhood gang, South Side Delano. As argued by Mendez, “[b]ecause there was no substantial evidence about this group’s primary activities, there was legally insufficient evidence to support the gang allegations,” as required by People v. Prunty (2015) 62 Cal.4th 59 (Prunty). We disagree.
Legal Principles
“In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.” (People v. Albillar (2010) 51 Cal.4th 47, 59-60; accord, Prunty, supra, 62 Cal.4th at p. 71 [“We apply a deferential standard of review when evaluating ... whether the evidence ... [is] sufficient to satisfy the STEP Act’s [criminal street gang] definition”].) “This standard applies whether direct or circumstantial evidence is involved.” (People v. Mendez (2010) 188 Cal.App.4th 47, 56; see also People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294.)
Section 186.22, subdivision (b)(1) authorizes enhanced criminal punishment for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” A “‘criminal street gang’” is defined as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of [certain enumerated] criminal acts[,] ... having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.” (§ 186.22, subd. (f).) A “‘pattern of criminal gang activity’” means “the commission of ... or conviction of two or more of [certain enumerated offenses]” that “were committed on separate occasions, or by two or more persons.” (§ 186.22, subd. (e).)
In Prunty, 62 Cal.4th at page 67, our Supreme Court considered “what type of showing the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets.” The court concluded that “where the prosecution’s case positing the existence of a single ‘criminal street gang’ for purposes of section 186.22[, subdivision] (f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets.” (Id. at p. 71.) “Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same ‘group’ that meets the definition of section 186.22[, subdivision] (f)—i.e., that the group committed the predicate offenses and engaged in criminal primary activities—and that the defendant sought to benefit under 186.22[, subdivision] (b).” (Id. at p. 72.) A problem “arises only when the prosecution seeks to prove a street gang enhancement by showing the defendant committed a felony to benefit a broader umbrella gang, but seeks to prove the requisite pattern of criminal gang activity with evidence of felonies committed by members of subsets to the umbrella gang.” (Id. at p. 91 (conc. & dis opn. of Corrigan, J.)
In Prunty, the prosecution failed to prove the existence of a unified criminal street gang because the predicate offenses – committed by members of alleged Norteño subsets – were not shown to be sufficiently connected to either the subset claimed by the defendant, or to the overarching gang. (Prunty, supra, 62 Cal.4th at p. 82.) The court explained, “where the prosecution’s evidence fell short [was] with respect to the predicate offenses.” (Ibid.) The gang expert did not describe any evidence showing “collaboration, association, direct contact, or any other sort of relationship among any of the subsets … described.” (Ibid.) For example, the gang expert’s testimony did not show the alleged subsets “shared information, defended the same turf, had members commonly present in the same vicinity, or otherwise behaved in a manner that permitted the inference of an associational or organizational connection among the subsets.” (Ibid.)
The expert’s testimony in Prunty also failed to demonstrate “the subsets that committed the predicate offenses, or any of their members, self-identified as members of the larger Norteño association that defendant sought to benefit.” (Prunty, supra, 62 Cal.4th at p. 82.) Although there was ample evidence the defendant identified as both a member of a subset of the Norteños and the larger overarching Norteño gang, the expert offered no evidence showing the individuals who committed the predicate offenses exhibited behaviors showing their self-identification with the umbrella Norteño gang. (Id. at pp. 82-83.) As such, the evidence was insufficient to prove the relevant subsets were part of the same unified criminal street gang. (Id. at p. 85.)
Legal Analysis
While Mendez claimed he was South Side Delano, the evidence also established that he was Sureño. Specifically, Detective Strand testified that, when he made contact with Mendez in September of 2012, Mendez had observable Sureño gang tattoos and was in the presence of four other Sureños. When Strand had contact with Mendez a year later in September of 2013, Mendez was again with a Sureño gang member. A month later, in October 2013, officers including Strand investigated reports of vandalism, which included graffiti that said “187 smokey n hits,” which a Norteño explained he wrote because he did not like Smokie (Mendez) and Hits, Alexis Lara, as they were Sureños. Strand opined that the graffiti explained the importance Mendez had in the Sureño gang. Also in October 2013, a month prior to the current offenses, Strand participated in a probation search of Mendez’s address. Numerous gang indicia was found in the home, including Sureño graffiti, as well as Sureño gang filled rap lyrics.
The jury was also shown a photograph of Mendez, which showed him with various tattoos, including “661” which adds up to the number 13 and is the area code for Kern County. According to Strand, the tattoo was a “good indicator” of a Sureño gang member. Mendez also bore the tattoo “SSD” which was “commonly tattooed on Sureno gang members” and stood for “South Side Delano, a subset of the Sureño gang.”
The predicate offenses Detective Strand testified to show the offenses were committed by self-identified Sureños, who also had had previous contact with Mendez, and, in Strand’s opinion, committed a crime for the benefit of the Sureño gang.
Unlike in Prunty, the prosecution in this case did not rely on the conduct of subsets to show a broader criminal street gang existence. Instead, the prosecution proved Mendez and his associates were Sureños, and that Sureños meet the “primary activities” and “pattern of criminal conduct” elements of the gang enhancement, in compliance with Prunty. We reject Mendez’s claim to the contrary.
VIII. MUST MENDEZ’S CONVICTION FOR ACTIVE PARTICIPATION IN A CRIMINAL STREET GANG BE REVERSED BECAUSE IT IS A LESSER INCLUDED OFFENSE TO POSSESSION OF A LOADED FIREARM BY AN ACTIVE GANG MEMBER?
Mendez contends his conviction for active participation in a criminal street gang (count 5) must be set aside as it is a lesser included offense to his conviction for possession of a loaded firearm by an active gang member (count 4). Respondent concedes Mendez is correct. We agree and accept this concession.
Applicable Law and Analysis
“[D]espite the seemingly absolute language of section 954 (‘the defendant may be convicted of any number of the offenses charged’), there is an exception to the general rule permitting multiple convictions. ‘Although the reason for the rule is unclear, this court has long held that multiple convictions may not be based on necessarily included offenses. [Citations.]’ [Citation.] ‘“The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.”’” (People v. Ortega (1998) 19 Cal.4th 686, 692, original italics.)
Section 186.22, subdivision (a), makes it a crime to “actively participate[] in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.” The substantive gang offense is composed of three elements: (1) active participation in a criminal street gang; (2) knowledge the gang’s members have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance of any felonious criminal conduct by members of that gang. (People v. Lamas (2007) 42 Cal.4th 516, 523.) The substantive gang offense is directed at targeting “gang members who acted in concert with other gang members in committing a felony regardless of whether such felony was gang related.” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1138.)
A conviction for unlawfully carrying a loaded firearm in public as an active participant in a criminal street gang (§ 25850, subd. (c)(3), former § 12031, subd. (a)(2)(C)) requires the prosecutor to prove each element of the substantive gang offense (§ 186.22, subd. (a)). (People v. Robles (2000) 23 Cal.4th 1106, 1115.)
Mendez was convicted of street terrorism, in violation of section 186.22, subdivision (a) as charged in count 5, and carrying a firearm while he was an active participant in a criminal street gang, in violation of section 25850, subdivision (c)(3) as charged in count 4. He could not have committed count 4 without necessarily committing count 5 at the same time. He cannot be convicted of both crimes. Accordingly, we reverse his conviction on count 5. (People v. Flores (2005) 129 Cal.App.4th 174, 184 [cannot be convicted of both § 186.22, subd. (a) and former § 12031, subd. (a)(2)(C), continued without substantive change in § 25850, subd. (c)(3)].)
IX. DOES MENDEZ’S SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE VIOLATE THE EIGHTH AMENDMENT’S PROSCRIPTION AGAINST CRUEL AND UNUSUAL PUNISHMENT AND THE FOURTEENTH AMENDMENT’S GUARANTEES OF EQUAL PROTECTION AND DUE PROCESS OF LAW?
Mendez argues his sentence of life without the possibility of parole violates the Eighth Amendment’s proscription against cruel and unusual punishment and the Fourteenth Amendment’s guarantees of equal protection and due process of law. Mendez points to the fact that “he was not even 20 years old” (19 years, 8 months) at the time of the crime. Relying on Miller v. Alabama (2012) 567 U.S. 460 (Miller), he asserts the trial court was required to weigh the evidence of his youth and immaturity before imposing a life without the possibility of parole sentence. We disagree.
Applicable Law and Analysis
In Miller, the United States Supreme Court followed and built upon its prior holdings in Roper v. Simmons (2005) 543 U.S. 551 (Roper) (execution of offenders who were under 18 years of age when their crimes were committed violates the Eighth and Fourteenth Amendments) and Graham v. Florida (2010) 560 U.S. 48 (Graham) (sentences of life without possibility of parole for juveniles convicted of nonhomicide offenses is unconstitutional). The Miller court concluded, “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate the principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment.” (Miller, supra, 567 U.S. at p. 489.) Accordingly, before imposing a sentence of life without parole for a crime committed while the offender was a juvenile, a trial court must consider his or her “chronological age and its hallmark features – among them, immaturity, impetuosity, and failure to appreciate risks and consequences.” (Id. at p. 477.)
Mendez acknowledges the decisions in Roper, Graham and Miller, but contends there is no reason why their rules should cease to operate the moment a defendant turns 18. Our Supreme Court and the California Courts of Appeal have rejected such attempts to extend the rationale of Roper, Graham, and Miller to adult offenders. In People v. Gutierrez (2014) 58 Cal.4th 1354, our high court observed that “‘[d]rawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach.’ [Citation.] But ‘[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood’ [citation], and that is the line the [United States Supreme Court] has drawn in its Eighth Amendment jurisprudence.” (Id. at p. 1380, quoting Roper, supra, 543 U.S. at p. 574.)
Similarly, in People v. Argeta (2012) 210 Cal.App.4th 1478, 1482, the Court of Appeal rejected a claim that a defendant who had committed a murder when he was 18 years five months old was entitled to the same sentencing considerations as juveniles convicted of crimes committed when they were less than 18 years old. The court reasoned, “These arguments regarding sentencing have been made in the past .... Making an exception for a defendant who committed a crime just five months past his 18th birthday opens the door for the next defendant who is only six months into adulthood. Such arguments would have no logical end, and so a line must be drawn at some point. We respect the line our society has drawn and which the United States Supreme Court has relied on for sentencing purposes, and conclude Argenta’s sentence is not cruel and/or unusual under Graham, Miller, or [People v.] Caballero [(2012) 55 Cal.4th 262].” (Ibid.; see also People v. Perez (2016) 3 Cal.App.5th 612, 616-618; People v. Abundio (2013) 221 Cal.App.4th 1211, 1220-1221.)
We adhere to established precedent and therefore conclude Mendez’s sentence does not violate the Eighth Amendment’s proscription against cruel and unusual punishment. For the same reasons, we conclude Mendez, as an adult offender, is not similarly situated to minors convicted of the same crimes and, hence, reject his claim that his sentence violates the Fourteenth Amendment’s guarantees of equal protection and due process of law.
Finally, we reject Mendez’s related assertion that he is entitled to relief under section 3051, a new statute providing earlier parole consideration for certain youthful offenders who committed their crimes when they were 18 to 23 years of age. By its own terms, the new statute does not apply to, among others, offenders sentenced to life in prison without the possibility of parole. (Id., subd. (h).) Contrary to Mendez’s assertion, our Legislature’s decision to exclude such offenders does not violate his right to equal protection under the Fourteenth Amendment. Rather, the decision to exclude certain adult offenders from the statute’s reach falls squarely within “the broad discretion the Legislature traditionally has been understood to exercise in defining crimes and specifying punishment.” (People v. Wilkinson (2004) 33 Cal.4th 821, 828; see Johnson v. Department of Justice (2015) 60 Cal.4th 871, 888 [same].)
X. REMAND PURSUANT TO SENATE BILL 620
For counts 1 and 2, the jury found true, inter alia, the firearm enhancements under section 12022.53, subdivision (d). For counts 3, 4, and 5, the jury found true, inter alia, firearm enhancements under section 12022.5, subdivision (a). The trial court imposed the then-mandatory enhancements under subdivision (d) of section 12022.53 as to counts 1 and 2, adding 25 years to life, respectively, to Mendez’s sentence. It also imposed, but stayed, 10-year terms on counts 3, 4, and 5, pursuant to section 12022.5, subdivision (a).
In supplemental briefing, the parties addressed whether, as a result of the recent Senate Bill 620, this matter must be remanded to the trial court for resentencing to allow the trial court to exercise its newly-bestowed discretion regarding whether to strike the firearm enhancements on Mendez’s sentence.
On October 11, 2017, the Governor signed Senate Bill 620, which among other things amends sections 12022.53 and 12022.5 to make the firearm enhancements under those sections discretionary instead of mandatory, effective January 1, 2018. The new provision states as follows: “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (Stats. 2017, ch. 682, §§ 1-2.)
Senate Bill 620 does not go into effect until January 1, 2018, but the Attorney General concedes that, if Mendez’s conviction is not yet final as of January 1, 2018, Mendez would be eligible to have the matter remanded for resentencing because the amended statute granting discretion to the trial court has the potential to lead to a reduced sentence. (See In re Estrada (1965) 63 Cal.2d 740, 748 [for a non-final conviction, “where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed”]; People v. Francis (1969) 71 Cal.2d 66, 75-78 [where statute enacted during pending appeal gave trial court discretion to impose a lesser penalty, remand was required for resentencing].)
Even so, the respondent argues remand would not be appropriate in this particular case because, based on the record at sentencing, there is no reasonable probability that the trial court would strike the enhancements if given the opportunity on remand. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [remand not required where trial court’s comments at sentencing and sentence itself clearly indicate that the court would not have exercised its discretion to strike allegations and thus “no purpose” would be served by a remand].)
The new provision directs the trial court to exercise discretion as to whether to strike a firearm enhancement “in the interest of justice pursuant to Section 1385.” (Stats. 2017, ch. 682, § 2.) In turn, section 1385 provides that a court may, “in furtherance of justice, order an action to be dismissed.” (§ 1385, subd. (a).) A trial court’s discretion under section 1385 to dismiss “an action” extends to striking “factual allegations relevant to sentencing,” including striking prior felony conviction allegations in cases brought under the Three Strikes law and striking non-mandatory sentence enhancements. (People v. Hernandez (2000) 22 Cal.4th 512, 523, italics omitted; see People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero); People v. Jones (2007) 157 Cal.App.4th 1373, 1379-1381.)
In determining whether striking a prior felony strike allegation or a non-mandatory sentencing enhancement is “‘in furtherance of justice,’” the trial court must consider “both ... the constitutional rights of the defendant, and the interests of society represented by the People.” (Romero, supra, 13 Cal.4th at p. 530, italics omitted; see People v. Williams (1998) 17 Cal.4th 148, 161.) “[T]he court should consider the nature and circumstances of the defendant’s current crimes, the defendant’s prior convictions, and the particulars of his or her background, character, and prospects.” (People v. Orabuena (2004) 116 Cal.App.4th 84, 99.) This standard will guide a trial court’s decision whether to strike a firearms enhancement.
At sentencing in the present case, following the testimony of victim Harris’s father, the trial court stated the court could not bring Harris “back,” but it could “make sure that Mr. Mendez is punished to the maximum punishment that can be statutorily imposed, and the Court intends to do that.” The trial court then found no circumstances in mitigation, and multiple circumstances in aggravation: that Mendez had engaged in violent conduct and was a serious danger to society; that his prior convictions as an adult and sustained petitions as a minor were numerous and increasing in seriousness; that he was on juvenile probation and adult misdemeanor probation when the current crimes were committed; and his prior performance on juvenile and misdemeanor probation was unsatisfactory. The trial court stated that “with determinate sentencing terms, … the upper term is more than appropriate in this case and is also called for,” and, while he was eligible for probation if the court were to find unusual circumstances to overcome the statutory ineligibility, the trial court was “certainly not going to find any unusual circumstances that would allow Mr. Mendez an opportunity at probation.” In considering the sentence of life without the possibility of parole and concurrent and consecutive sentences, the trial court found it appropriate to grant consecutive sentences on counts 1 and 2, as it involved two separate acts of violence or threats of violence.
Even if the trial court did not specifically engage in an exercise of discretion under section 1385, given the sentence imposed and the comments made by the court at the sentencing hearing, it plainly would serve “no purpose” to remand the matter. (People v. Gutierrez, supra, 48 Cal.App.4th at p. 1896.) Because there is no reasonable likelihood that the trial court would choose to exercise its discretion to strike the firearm enhancements if the matter were remanded, we conclude that remand would be futile.
DISPOSITION
We reverse the judgment on count 5, the offense of active participation in a criminal street gang, and strike the stayed section 12022.5, subdivision (a) and section 12022.7, subdivision (a) enhancements attached to that count. As so modified, and in all other respects, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment to reflect the sentencing modifications and send a certified copy to the Department of Corrections and Rehabilitation.


FRANSON, Acting P.J.
WE CONCUR:



PEÑA, J.



SMITH, J.