P v. Parraz

Filed 9/10/08 P v. Parraz CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed as modified.

A jury convicted Steve Domingo Parraz and Richard Garcia (Buchanan)^[1]of kidnapping for extortion (Pen. Code,^[2] 209, subd. (a)), assault with a semi-automatic firearm ( 245, subd. (b)) and making a criminal threat ( 422); with respect to each defendant, the jury found these crimes were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). The jury also found in the commission of the kidnapping Buchanan personally used a firearm within the meaning of section 12022.53, subdivision (b), and Parraz personally used a firearm within the meaning of sections 12022.53, subdivision (b), and 12022.5, subdivision (a). The jury also convicted Buchanan of possession of a firearm by a felon ( 12021, subd. (a)(1)), transportation of a controlled substance (Health & Saf. Code,  11379, subd. (a)), possession of a controlled substance for sale (Health & Saf. Code,  11378) and possession of a controlled substance (Health & Saf. Code,  11377, subd. (a)).

In a bifurcated trial, the trial court found Buchanan had three prior serious/violent felony or strike convictions ( 667, subds. (b)-(i)).

The trial court sentenced Buchanan under the "Three Strikes" law to 45 years to life on the kidnapping count plus a consecutive 10 years for the firearm enhancement. The sentences on the remaining counts were imposed and stayed pursuant to section 654.

The trial court sentenced Parraz to an indeterminate term of 15 years to life on the kidnapping count plus a consecutive 10 years for the section 12022.53 firearm enhancement on that count. The sentences on the remaining counts were imposed and stayed pursuant to section 654.

Buchanan appeals, contending (1) the trial court should have limited the scope of the expert gang evidence, (2) the court erred by allowing lay opinion evidence on the Mexican Mafia prison gang, and (3) trial counsel rendered ineffective assistance of counsel by failing to challenge and/or object to, among other things, the admission of intercepted telephone conversations and irrelevant and inflammatory testimony.

Parraz appeals, contending (1) his conviction for making a criminal threat is not supported by substantial evidence, (2) his conviction for assault with a semi-automatic firearm is not supported by substantial evidence, (3) substitute counsel rendered ineffective assistance of counsel with respect to the motion for a new trial, and (4) the court erred by not setting a minimum parole eligibility date as required by section 186.22, subdivision (b)(5).

Parraz and Buchanan join in each other's appellate arguments. (Cal. Rules of Court, rule 8.200(a)(5).)

FACTS

During the summer of 2003, the San Diego Violent Crimes Task Force began an investigation of the Mexican Mafia, an Hispanic prison gang, and its operations in and out of California prisons. In July 2004 a cooperating witness with the FBI gave Buchanan a cell phone with a wiretap on it. Buchanan was validated by the California Department of Corrections and Rehabilitation in 1989 as a member of the Mexican Mafia. A common name for a member of the Mexican Mafia, such as Buchanan, is a "Big Homie."

Another cell phone with a wiretap on it was given to Rodney Brooks, who was an inmate at R. J. Donovan State Prison (Donovan) and an associate of the Mexican Mafia in a supervisorial role.

Jessica Chavez was a correctional officer at Donovan who was assigned to housing unit 1. Ernesto "Triste" Torres was an inmate who was housed in the Enhanced Outpatient Unit (EOP) of housing unit 1; most of the EOP inmates were classified as mentally ill. Chavez had daily contact with Torres while he was in the day room, and a friendship developed. When a Mexican Mafia "soldier" put a "hit" on Chavez, Torres arranged to have the "hit" neutralized; as a result, he and Chavez became closer. Chavez gave Torres her cell phone number in order to set up a meeting after he was released.

On May 15, 2004, Torres was released from prison and called Chavez. After spending the day together, they had sex that evening at her residence. For the following month, Chavez and Torres saw each other on a regular basis. However, when Chavez noticed changes in Torres's behavior and tried to distance herself from him, he threatened to expose their relationship to prison officials, which he said would result in her job termination and the removal of her children.

Meanwhile, Chavez started to have conversations at work with inmate Brooks, who knew Torres. Chavez told Brooks she was experiencing undue stress from her relationship with Torres and was considering transferring to another prison. Brooks replied he would call Torres; Chavez gave Brooks the telephone number of Torres's brother.

On August 21 Brooks telephoned Buchanan; the call was recorded by the task force investigating the Mexican Mafia. Brooks told Buchanan he had a "connection" at Donovan that helped him with business in the prison and she was considering transferring to another institution because "Triste" was threatening her and her children.^[3] Brooks gave Buchanan the telephone number to reach Torres, but asked permission to call Torres first to assess Torres's attitude and reaction before Buchanan called him and "got at him." Buchanan gave Brooks permission to call Torres.

Brooks called Torres on Chavez's behalf and told him to stay away from her. Torres, however, continued to see Chavez.

On August 22 Brooks called Buchanan and told him that although Torres said he no longer would bother Chavez, he was "disrespecting" them because he "turned around and banged on her ass again," telling her he was " 'a rider for life.' " Later that day, Brooks set up a three-way phone call between himself, Torres and Buchanan. After Torres answered, Brooks told him: "Like I told you the other day, I talked to the homie and he told me to let you know personally, just . . . don't get at her, dog. Don't threaten her, her kids, none of that shit, homie. You know what I mean?" Torres said he understood. Buchanan identified himself as "Richie, the big homie," and told Torres to leave Chavez alone and to respect the fact she was "there and it's there for a purpose . . . something that was worked out by other people." Torres indicated he would leave Chavez alone.

On the morning of August 25, Brooks called Buchanan and told him Torres was continuing to threaten Chavez. Chavez was present and she gave Buchanan the pass code

to her phone message machine so he could listen to a threatening message Torres left her on the machine. Chavez also gave Torres's phone number to Buchanan. Buchanan said he would "get on that right now."

Later that day, Chavez called Buchanan on her cell phone. Torres was on her house phone, and she wanted Buchanan to hear what Torres was saying to her. However, Buchanan could not hear what Torres was saying. Buchanan told Chavez to hang up on Torres and asked if he could come to her residence. Chavez gave Buchanan her address. Buchanan said he would go to Home Avenue to pick up somebody first.

Buchanan arrived at Chavez's house with Parraz. When Torres called Chavez's cell phone, she gave it to Buchanan, who told Torres: "This is the Big Homie. Man to man I want to talk to you." Torres gave Buchanan his brother's address.

When Buchanan and Parraz arrived at the residence of Torres's brother, Torres walked out to greet them. The three of them went inside and sat at the dining room table. Buchanan told Torres to leave Chavez alone and asked him if he knew what happened if a person gave his word to the Big Homie and did not keep it. Torres testified Parraz walked around the table "flashing a gun that he had in his right pocket, and said: " 'If your family wasn't here, I'd smoke you.' " Parraz flashed the gun six or seven times. Torres's brother and his family were upstairs during most of the discussion. At one point, Torres's brother Leobardo came downstairs, and Parraz told him Torres " 'really messed up,' " but that they were not going to " 'disrespect' " Leobardo's house as long as he did not call the police. Neither Leobardo nor his wife, who also came downstairs at least once, saw Parraz or Buchanan with a gun.

Buchanan telephoned Chavez and asked her what she wanted from Torres; she replied she wanted him to leave her alone. Buchanan handed the phone to Torres and told him to tell Chavez it was over and he would not have anything more to do with her; Torres complied. After Buchanan and Parraz learned Torres did not have any money, they asked if he had any connections they could tax.^[4] Torres called a drug dealer named Louie and made arrangements to meet him at a taco shop in Chula Vista for purposes of setting up a taxing situation.

Buchanan, Parraz and Torres left the house and drove away. Buchanan was the driver, Torres sat in the front passenger seat, and Parraz sat in the back seat. Officer Perry McIvor, a task force member, was concerned Torres's life could be in danger and contacted two patrol officers to make a traffic stop. When the officers pulled behind Buchanan's vehicle and activated the overhead lights on their car, one of the officers saw Parraz lean forward. Parraz extended a gun around the right side of the front passenger seat and told Torres to take the gun. As Buchanan pulled the car over and stopped, Torres opened the car door and ran. San Diego Police Officer John Beilstein chased Torres and saw him throw a silver gun against a building; the gun went off. The gun was a loaded semi-automatic firearm. While being handcuffed, Torres exclaimed: " 'The gun wasn't mine. The guy in the back seat gave it to me and told me to run. . . . I can't go back to prison. I'm dead. They are going to kill my family.' "

San Diego Police Officer Javier Nunez pulled Buchanan from the car and found a loaded .38 caliber semi-automatic firearm inside his pants. Police also seized a blue clip-on pouch from Buchanan; inside the pouch was 23.4 grams of methamphetamine (18.9 grams pure power), some marijuana and a wallet containing nine $100 bills. During the vehicle search, police found a shaving kit containing receipts, telephone numbers, a notebook and a digital scale. The outside pouch of the kit contained .24 grams of methamphetamine in a small bindle.

Chavez learned of the arrest from Brooks. When Chavez returned to work at Donovan on August 27, she had sex with Brooks in a restroom off the EOP housing unit's sally port. At trial, Chavez testified she had sex with Brooks because she was stressed and she was grateful for his effort to help her. For months Chavez withheld information from prison officials, the San Diego Police Department and the FBI. Ultimately, Chavez resigned from her job and pleaded guilty to making a criminal threat and admitted a street gang enhancement; charges of assault with a deadly weapon and kidnapping were dropped. As part of the plea bargain, Chavez agreed to testify truthfully in the prosecution cases against Buchanan, Parraz and Brooks; the People agreed to relocate her in a witness protection program.

Torres and his brother's family were relocated and placed in a witness protection program. They had to be moved again after committing crimes.

At Buchanan's and Parraz's trial, the jury heard 11 taped phone conversations between Brooks and Buchanan and other conversations the two had with Torres and Chavez. Additionally, the prosecution presented Torres, Chavez and two gang experts as witnesses.

Torres testified he believed the Mexican Mafia put a "green light" on him for disobeying a direct order and causing Buchanan's arrest. Torres also believed he had no choice but to tell law enforcement they had a Big Homie so he could go into protective custody and thus avoid being "smoked" by the Mexican Mafia.

Steve Contreras, a member of the gang intelligence unit of the Department of Corrections, testified about the history and structure of the Mexican Mafia, also known as La Eme.^[5] The Mexican Mafia is the "umbrella" for all Southern Californian Hispanic gang members in the state's prisons; those individuals are called Surenos and are basically the foot soldiers in the Mexican Mafia. The Mexican Mafia is one of the main prison gangs that control California prisons; the others are the Black Guerrilla Family, the Aryan Brotherhood and the Nuestra Famila (Northern Californian Hispanic gang members). As of December 2005, there were 1,789 Mexican Mafia members in California prisons, including 152 members validated by prison officials, 993 associates, 461 dropouts and 183 inactive members.

Contreras testified Hispanic gangs started the Mexican Mafia in the 1950's for self-protection. Later, the Mexican Mafia began operating as a crime syndicate and organized criminal activity both inside and outside of the prison system. Inside the

prisons, the Mexican Mafia controls drug trafficking by, among other things, "taxing"−collecting a third of the proceeds from inmates who deal drugs. The Mexican Mafia maintains its power through intimidation and control by arranging assaults and homicides. Contreras testified the Mexican Mafia sometimes used prison guards as "tools" to advance their operations.

Outside the prisons, the Mexican Mafia conducts the same activities plus extortion, kidnapping and torture. If a drug dealer refuses to pay the tax to a Big Homie−a member of the Mexican Mafia at the top of the gang's hierarchy−the dealer will be "taxed hard," which means he will be duct taped, beaten and robbed of his drugs and valuables so that he realizes he better voluntarily pay the tax the next time or be tortured, kidnapped or killed.

According to Contreras, prison officials validated Buchanan as a Big Homie for the Mexican Mafia in 1989. As a Big Homie, Buchanan had the authority to mediate disputes. Brooks was going to be classified as a validated associate in the Mexican Mafia as a result of this case. The Mexican Mafia often used people such as Parraz, who were not members or associates, to carry out its operations.

Contreras testified he was familiar with Buchanan, whom he said was involved in distributing drugs, extortion and ordering assaults. Contreras also testified about the consequences of disobeying an order from a Big Homie.

Contreras opined Buchanan became involved in a love triangle between Brooks, Torres and Chavez because as a prison guard Chavez was valuable to the Mexican Mafia.

San Diego Police Detective Mike Gutierrez, a member of the gang task force, opined the Mexican Mafia engages in a pattern of criminal activity. Gutierrez testified the instant offenses were committed for the benefit of the Mexican Mafia. According to Gutierrez, Torres was threatening to eliminate an invaluable tool for the Mexican Mafia by exposing a guard who potentially could pass drugs, sneak cell phones and help the Mexican Mafia with other illicit business inside the prison.

Buchanan stipulated at trial that he had been convicted of a felony within the meaning of section 12021, subdivision (a)(1).

DISCUSSION

I

Expert Gang Testimony Was Properly Admitted

Buchanan, joined by Parraz, contends the trial court erred by not limiting the scope of the expert gang evidence, by allowing the experts to give their opinions on ultimate facts to be decided by the jury and by allowing the experts to give incompetent hearsay testimony.

Preliminarily, we note the Attorney General argues Buchanan's assignments of error with respect to the gang evidence were forfeited because counsel did not object below.^[6] However, because Buchanan offers the alternative theory he received ineffective assistance of counsel because of the failure to object, we shall proceed to the substantive merits of Buchanan's gang expert contentions.

"A witness is qualified to testify as an expert if the witness has special knowledge, skill, experience, or education pertaining to the matter on which the testimony is offered." (People v. Mendoza (2000) 24 Cal.4th 130, 177.) Expert opinion testimony is admissible if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, 801, subd. (a); see also People v. Gardeley (1996) 14 Cal.4th 605, 617.) Further, " 'the admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would "assist" the jury. It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness." ' [Citation.]" (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300.)

"[T]he decision of a trial court to admit expert testimony 'will not be disturbed on appeal unless a manifest abuse of discretion is shown.' " (People v. McAlpin, supra, 53 Cal.3d at p. 1299.) "The exercise of discretion is not grounds for reversal unless ' "the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." ' [Citation.]" (People v. Ochoa (2001) 26 Cal.4th 398, 437-438, disapproved on other grounds in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.)

Matters beyond the common experience of jurors, such as the culture and habits of criminal street gangs, are properly the subject of expert testimony. (People v. Gardeley, supra, 14 Cal.4th at p. 617.) For example, our Supreme Court held "[w]hether members of a street gang would intimidate persons who testify against a member of that or a rival gang is sufficiently beyond common experience that a court could reasonably believe expert opinion would assist the jury." (People v. Gonzalez (2006) 38 Cal.4th 932, 945; see also People v. Duran (2002) 97 Cal.App.4th 1448, 1464 [expert testimony concerning individual's gang membership proper].) Expert testimony may address "the size, composition or existence of a gang [citations], gang turf or territory [citations], an individual defendant's membership in, or association with, a gang [citations], the primary activities of a specific gang [citations], motivation for a particular crime, generally retaliation or intimidation [citations], whether and how a crime was committed to benefit or promote a gang [citations], rivalries between gangs [citation], gang-related tattoos, gang graffiti and hand signs [citations], and gang colors or attire [citations]." (People v. Killebrew (2002) 103 Cal.App.4th 644, 657, fns. omitted.)

Buchanan argues the court should have limited the scope of the expert's testimony to basic gang-related information. We disagree. To say the workings of the Mexican Mafia in and out of California prisons was central to this case is−at the very least−an understatement. Contrary to Buchanan's characterization, this was a complex gang case, involving a major prison gang's activities and influence inside and outside penal institutions. This is a subject clearly beyond a juror's common knowledge. Expert evidence of the workings and motivations of the Mexican Mafia, Buchanan's long-time association with and stature within the gang and how the Mexican Mafia would find a prison guard a useful tool in its operations were essential to explain to lay jurors the motive and intent for the principal crimes charged against Buchanan and Parraz−making a terrorist threat, assault with a semi-automatic firearm and kidnapping for extortion. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1370 [gang expert's testimony explaining the defendants' need to discover identity of person who crossed out gang "tag" and their violent reaction to person calling out name of rival gang held admissible on issues of motive and intent].) Thus, the expert evidence was relevant because it explained why a prison gang would become involved with a prison guard under these circumstances; why, under gang culture, Torres's reneging on his promise to Buchanan, a Big Homie, was perceived as an extreme form of disrespect that justified his death; and why Parraz's status with the Mexican Mafia would benefit by assisting a Big Homie in dispensing this punishment. It is "difficult to imagine a clearer need for expert explication than that presented by a subculture in which this type of mindless retaliation promotes 'respect.' " (Id. at p. 1384.) "The law does not disfavor the admission of expert testimony that makes comprehensible and logical that which is otherwise inexplicable and incredible." (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551.)

Moreover, the testimony concerning the culture, habits, actions, membership, territorial claims and disputes involving the Mexican Mafia was unquestionably relevant to issues related to the gang enhancement. The gang enhancement under section 186.22, subdivision (b)(1), "imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang. To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the group's primary activities is the commission of one or more statutorily enumerated criminal offenses; and (3) the group's members must engage in, or have engaged in, a pattern of criminal gang activity." (People v. Duran, supra, 97 Cal.App.4th at p. 1457.)

It is well settled the prosecution may utilize expert testimony about gang culture and habits to establish the elements of a gang allegation. (People v. Hernandez (2004) 33 Cal.4th at pp. 1040, 1047-1048; People v. Valdez (1997) 58 Cal.App.4th 494, 506.) Among other things, the experts' testimony was relevant and admissible on such gang-enhancement issues as establishing the Mexican Mafia was a criminal street gang within the meaning of section 186.22, subdivision (f);^[7]Buchanan was a Big Homie of the Mexican Mafia; and these three crimes were "committed for the benefit of, at the direction of, or in association with any criminal street gang." ( 186.22, subd. (b)(1).)

As our high court has explained: "[T]he criminal street gang enhancement is

attached to the charged offense and is, by definition, inextricably intertwined with that offense." (People v. Hernandez, supra, 33 Cal.4th at p. 1048.) To the extent admission of evidence concerning the operation of the Mexican Mafia and the nature of its criminal activities was inflammatory, this aspect was a necessary byproduct of the evidence submitted to support a gang allegation. It does not make the evidence inadmissible. (But see People v. Avitia (2005) 127 Cal.App.4th 185, 192-193 [evidence of gang posters in the defendant's room erroneously admitted, where there was no allegation the crime was gang-related and no gang enhancement was alleged].)

Buchanan specifically complains the following expert testimony was unnecessary: details about irrelevant gang terms and gang activities, the Mexican Mafia's operations in and out of California prisons, the housing of Mexican Mafia members in segregation at the highest security prisons, the names of Big Homies active in San Diego County and the rarity of a woman involved in a supervisory capacity in the Mexican Mafia. However, to the extent any of this evidence was irrelevant, it was not unduly inflammatory or prejudicial in light of the other relevant gang evidence.

Buchanan also argues the expert opinions that the crimes were committed for the benefit of the Mexican Mafia were improper because the testimony went to an ultimate issue to be decided by the jury.

"There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case." (People v. Wison (1944) 25 Cal.2d 341, 349.) Our Supreme Court continued: " '[T]he true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved. . . . Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a person; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in.' " (Ibid.)

"Expert testimony repeatedly has been offered to show the 'motivation for a particular crime, generally retaliation or intimidation' and 'whether and how a crime was committed to benefit or promote a gang.' " (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1550; see also People v. Valdez, supra, 58 Cal.App.4th at pp. 507-508.)

The experts' opinion testimony here that Buchanan and Parraz committed the crimes against Torres for the benefit of the Mexican Mafia were rooted in the facts and evidence presented about the crime. The expert's opinions were permissible. (See People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1513.)

Buchanan's reliance on People v. Killebrew, supra, 103 Cal.App.4th 644 and People v. Torres (1995) 33 Cal.App.4th 37 is misplaced. In People v. Killebrew police officers searched three cars close to the site of a gang shooting and discovered a gun in one car and a second gun near the other two cars. (103 Cal.App.4th at p. 647.) The defendant, a gang member found standing in the vicinity of the car containing the gun, was convicted of conspiracy to possess a firearm based on the expert's testimony that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and constructively possesses it. (Id. at pp. 647-648, 652.) The Court of Appeal found that this was improper expert opinion on an ultimate issue: defendant's subjective intent and knowledge. The evidence should have been excluded because it was the only evidence connecting the defendant to the firearm he was charged with conspiring to possess. (Id. at p. 658.) Further, "[s]ince the erroneously admitted testimony provided the only evidence to support the conspiracy theory, reversal of the judgment is required." (Id. at p. 659.) In People v. Torres, supra, 33 Cal.App.4th at pages 45 to 48, the expert defined the robbery and extortion and opined defendant committed robberies. The court concluded that was impermissible expert testimony because the expert essentially opined defendant was guilty of robbery and first degree felony murder.

In contrast, neither Contreras's nor Gutierrez's testimony established an element of any crime, and they did not opine on whether Buchanan and Parraz committed the crimes against Torres.

" '[R]arely, if ever, does an expression of opinion by a so-called expert not amount to that which either the court or jury might adopt as a basis for the ultimate decision in the case. However, that does not mean that the witness is deciding the case or that in so testifying he is usurping the functions of the jury. He is merely giving an opinion based upon his technical training which the court may or may not accept as testimony that "was proper and necessary to an enlightened consideration and a correct disposition of the ultimate issue." ' " (Eger v. May Department Stores (1953) 120 Cal.App.2d 554, 559.)

Next, Buchanan complains Contreras was improperly allowed to testify Buchanan ran a gang crew and was involved in distributing drugs, extortions, taxing and ordering assaults with a deadly weapon. Buchanan asserts this testimony was based on incompetent hearsay. Experts, however, "may give opinion testimony that is based upon hearsay, including conversations with gang members as well as with the defendant. [Citations.] Such opinions may also be based upon the expert's personal investigation of past crimes by gang members and information about gangs learned from the expert's colleagues or from other law enforcement agencies." (People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9; see also People v. Duran, supra, 97 Cal.App.4th at p. 1465.) Further, the determination of whether to exclude extrajudicial matters relied upon by such experts in forming their opinions because they "conflict with an accused's interest in avoiding substantive use of unreliable hearsay . . . must generally be left to the trial court's sound judgment." (People v. Valdez, supra, 58 Cal.App.4th at p. 510.)

Moreover, in this case the hearsay testimony about Buchanan's criminal activities was elicited on re-direct examination after Buchanan's defense counsel opened the door about Contreras's knowledge on the subject during cross-examination. There was no error in admitting this testimony.

Inasmuch as we have rejected Buchanan's appellate arguments concerning the admission of the gang experts' testimony, we need not further address his alternative theory for relief−namely, that he received ineffective assistance of counsel because his trial counsel did not object to the disputed expert gang evidence when it was introduced. To establish ineffective assistance of counsel, a defendant must show he was prejudiced by counsel's deficient representation. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Buchanan cannot show he was prejudiced by the admission of the expert gang evidence or by his counsel's failure to object to it during trial.

II

Lay Opinion by Torres and Chavez Was Properly Admitted

Buchanan, joined by Parraz, contends the trial court prejudicially erred by admitting lay opinion testimony by Chavez and Torres concerning the Mexican Mafia.

Evidence is admissible only if it is relevant. (Evid. Code, 350 ["No evidence is admissible except relevant evidence"].) By the same token, "[e]xcept as otherwise provided by statute, all relevant evidence is admissible." (Evid. Code, 351.) Evidence Code section 210 defines "relevant evidence" as "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."

Witnesses must have personal knowledge of a subject for their testimony about it to be admissible unless they are experts. (Evid. Code, 702, subd. (a).) Generally, opinion testimony by non-experts is inadmissible. (People v. Torres, supra, 33 Cal.App.4th at p. 45.) Lay opinion testimony, however, is sometimes admissible. Evidence Code section 800 permits the admission of a lay non-expert witness's opinion so long as it is "[r]ationally based on the perception of the witness" and "[h]elpful to a clear understanding of his testimony." (Evid. Code,  800, subds. (a), (b).)

"Lay opinion testimony is admissible where no particular scientific knowledge is required, or as 'a matter of practical necessity when the matters . . . observed are too complex or too subtle to enable [the witness] accurately to convey them to court or jury in any other manner.' " (People v. Williams (1988) 44 Cal.3d 883, 915.) Courts have approved lay opinion testimony about such matters as whether a person appeared to be under the influence of alcohol or narcotics (see id. at p. 914), whether a person appeared to be "given to lewd conduct with children" (People v. McAlpin, supra, 53 Cal.3d at p. 1309) and whether a person appeared to understand a conversation (People v. Medina (1990) 51 Cal.3d 870, 886-887). A trial court's ruling on the admissibility of lay opinion testimony will not be disturbed on appeal unless a clear abuse of discretion appears. (People v. Mixon (1982) 129 Cal.App.3d 118, 127.)

With respect to Chavez's testimony, Buchanan specifically challenges her interpretation of some gang jargon in a recorded telephone conversation between Brooks and Buchanan, her explanation of various gang terms ("checked," "green light," "Big Homie," and "snitch" or "rat") and her discussion of Buchanan's status as a Big Homie.

With respect to Torres, Buchanan challenges his testimony the Mexican Mafia controls the inside of the prison, his explanation of various terms relating to the structure of the Mexican Mafia, his testimony about drug sales and taxing and his explanation of the consequences for a gang member who disobeys an order by a Big Homie. Torres explained a "green light" is issued against an individual who does not conform to the rules of the Mexican Mafia or is a snitch. Additionally, Torres acknowledged he was aware of Buchanan's status as a Big Homie.

The testimony of Chavez and Torres reflected their respective involvement with the Mexican Mafia−Chavez was a prison guard who on a daily basis had contact with Mexican Mafia members or associates at work, and Torres was a Suerno or foot soldier for the Mexican Mafia. Each had personal knowledge of the structure and operations of the Mexican Mafia. Moreover, the challenged testimony by Torres was highly relevant as tending to show his awareness of the danger he faced and subjective motivation for fleeing Buchanan's vehicle at the first opportunity. Similarly, the challenged testimony by Chavez was probative because it showed how familiar she was with the workings of the Mexican Mafia and helped explain why she sought the assistance of a Mexican Mafia associate to end her entanglement with Torres.

To the extent the challenged testimony was "lay opinion" evidence, it was clearly admissible as having been (1) rationally based on Chavez's and Torres's own perceptions and experiences and (2) helpful to a clear understanding of Chavez's and Torres' testimony. (Evid. Code,  800.) The court did not abuse its discretion by admitting the testimony.

To the extent portions of the challenged testimony were cumulative to the expert gang testimony, improper lay opinion or irrelevant, any such error was harmless under either the Watson (People v. Watson (1956) 46 Cal.2d 818, 836) standard or the Chapman (Chapman v. California (1967) 386 U.S. 18, 24) standard. The limited testimony by Chavez and Torres on the Mexican Mafia was dwarfed by the extensive gang expert testimony by Contreras and Gutierrez. We conclude any error was harmless beyond a reasonable doubt the result would have been the same had the challenged testimony by Chavez and Torres not been admitted. (Chapman v. California, supra, 386 U.S. at p. 24.)^[8]

III

Ineffective Assistance of Trial Counsel

Not Shown Regarding Taped Phone Calls

Buchanan, joined by Parraz, claims trial counsel rendered ineffective assistance of counsel by (1) not seeking to exclude and/or redact the 11 taped phone conversations played for the jury, (2) not objecting to Chavez's testimony regarding one of those phone calls and (3) not objecting to Chavez's testimony she was raped by Torres.

A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. In People v. Ledesma (1987) 43 Cal.3d 171, 215, our Supreme Court noted: "Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' [Citations.]"

The burden of proving a claim of ineffective assistance of counsel is on Buchanan. (People v. Pope (1979) 23 Cal.3d 412, 425.) To establish a prima facie case of ineffective assistance of counsel, a defendant must show (1) counsel performed at a level

below an objective standard of reasonableness under prevailing professional norms, and (2) the defense was subjected to prejudice flowing from the deficient performance of counsel. (People v. Hamilton (1988) 45 Cal.3d 351, 377.) Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Stricklandv. Washington, supra, 466 U.S. at p. 694.)

Since failure of either prong is fatal to establishing ineffective assistance of counsel, we need not address both prongs if we find Buchanan cannot prevail on one of them. (People v. Cox (1991) 53 Cal.3d 618, 656, quoting Strickland v. Washington, supra, 466 U.S. at p. 697 [" 'In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies' "].)

A. Failure to Object to Introduction of Taped Phone Conversations and/or Seek Redaction

Buchanan contends trial counsel should have sought full or partial exclusion of the taped intercepted phone calls on relevancy grounds. Buchanan argues the calls had no tendency in reason to prove any material fact at issue to the charged crimes but for one tape, which provided the basis for probable cause to support the police stop of Buchanan's vehicle.^[9] Buchanan is mistaken.

As a general rule, evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative, and is not cumulative. (People v. Avitia, supra, 127 Cal.App.4th at p. 192.) Consequently, gang evidence may be relevant to establish the defendant's motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193; see generally Evid. Code, 352.) "Evidence of the defendant's gang affiliation -- including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like -- can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (People v. Hernandez, supra, 33 Cal.4th at p. 1049; see e.g., People v. Jones (2003) 30 Cal.4th 1084, 1114-1116 [evidence of gang membership and formation of gang was admissible because it was relevant to show relationship between individuals involved in the robberies and the advance plan to kill victims and witnesses].)

The tapes revealed (1) how Brooks and Buchanan came to believe Torres had to be sanctioned or killed because he disrespected Buchanan by not keeping his word to leave Chavez alone and (2) why she was thought to be an asset of the Mexican Mafia. The intercepted calls were clearly relevant to show the motives of Buchanan and Parraz and their intent in making a terrorist threat, assaulting Torres with a semi-automatic firearm and kidnapping him. (Evid. Code,  210.) Accordingly, we reject Buchanan's argument the calls constituted impermissible propensity evidence under Evidence Code section 1101, subdivision (a), and find they were admissible under Evidence Code section 1101, subdivision (b), to show motive and intent.^[10]

Further, the intercepted calls constituted independent evidence of an uncharged conspiracy under the hearsay exception of Evidence Code section 1223 (the exception for statements made during the existence and in furtherance of a conspiracy) and showed an ongoing conspiracy existed before the kidnapping. (See People v. Herrera (2000) 83 Cal.App.4th 46, 60-61.) The taped phone conversations were clearly relevant. Counsel's failure to make meritless objections cannot be deemed deficient performance. (See People v. Coddington (2000) 23 Cal.4th 529, 625, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

Buchanan also claims trial counsel rendered deficient performance by not objecting to the tapes or seeking redaction under Evidence Code section 352. Because gang evidence can be inflammatory, the trial court must determine not only the evidence is relevant, but also it is not unduly prejudicial. However, it is important to realize the purpose of Evidence Code section 352 is to prevent undue prejudice, that is " ' "evidence which uniquely tends to evoke an emotional bias against the defendant as an individual

and which has very little effect on the issues," ' not the prejudice 'that naturally flows from relevant, highly probative evidence.' " (People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. l.) " ' "[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is 'prejudicial." . . . In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citation.]' "(People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) An objection under Evidence Code section 352 will not be sustained unless there is undue prejudice that substantially outweighs the relevance of the evidence. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.)

Given the facts in this case it was inescapable extensive evidence concerning the Mexican Mafia and its criminal activities would be presented at trial. In light of this, the evidence of the taped conversations was not so out of the ordinary or so particularly prejudicial that it would be an abuse of discretion to admit the tapes. The probative value of the taped calls outweighed their prejudicial effect. Also, most of the tapes were brief, with the longest tape running 31 minutes; they did not take up an excessive amount of time. Further, there was relatively little overlap or cumulative testimony, and it is clear an Evidence Code section 352 objection to any of this evidence would have been overruled, and properly so. (People v. Williams, supra, 16 Cal.4th at p. 673.) Counsel cannot be ineffective for failing to make a futile objection. (People v. Coddington, supra, 23 Cal.4th at p. 625.)

The claim of federal constitutional error also fails; the admission of the taped calls did not deprive appellants of a fair trial. "[G]enerally, violations of state evidentiary rules do not rise to the level of federal constitutional error." (People v. Benavides (2005) 35 Cal.4th 69, 91, fn. omitted.) In any event, here, the taped calls were properly admitted.

B. Failure to Object to Chavez's Testimony Regarding Taped Conversation

During Chavez's testimony, the prosecutor played the tape of an August 21, 2004, call between Brooks and Buchanan, which included the following terms: "black," "white," and "glass." The prosecutor asked Chavez if she was familiar with those terms as slang for drugs. Chavez said "black" meant black tar heroin, she was not sure what "white" meant and did not know what "glass" meant. The prosecutor also asked Chavez if she knew what a reference on the tape to someone having a "light on them" meant. Chavez replied: "Green light usually means that the person that has the light on [him] messed up somehow and they could touch [him] up, could assault him." During the call, there was an assertion Chavez assisted the Mexican Mafia. Chavez denied this.

The prosecutor also played a tape of an August 22, 2005, call between Brooks and Buchanan, in which Brooks said Chavez might transfer to another prison because of Torres and thereby interfere with the Mexican Mafia's plan to send items into Donovan through Chavez. Again, Chavez denied she was working with the Mexican Mafia. When asked what Brooks meant by saying "we've got . . . three or four working for us" during the call, Chavez testified Brooks meant three or four people inside Donovan were helping the Mexican Mafia. Chavez indicated she did not know this was true.

Buchanan contends counsel rendered ineffective assistance by not objecting to Chavez's testimony regarding the two calls because her lay opinion about the content of calls was irrelevant and she had no personal knowledge whether there were prison guards working for the Mexican Mafia at Donovan. Buchanan also claims counsel should have objected under Evidence Code section 352 to Chavez's testimony about prison guards working for the Mexican Mafia at Donovan because it was prejudicial. These contentions are without merit.

Chavez's testimony regarding the gang terms was relevant because it showed the extent of her knowledge and her perceptions of how the Mexican Mafia worked. This was the prison guard who was at the center of the violent crimes involved in this case−perhaps unwittingly−but who nonetheless set in motion the crimes by complaining to Brooks about Torres. The testimony was probative of Chavez's role in these crimes; counsel cannot be faulted for not lodging an objection. Also, there was nothing improper about Chavez's testimony denying assertions she assisted the Mexican Mafia.

As to Chavez's testimony about other prison guards assisting the Mexican Mafia, she made it clear she had no personal knowledge whether this was true or not; hence, any error was harmless. Chavez said her only source of information concerning guards assisting the Mexican Mafia was Brooks. The jury heard Brooks discuss this subject with Buchanan on the taped calls. Since there was no undue prejudice from Chavez's testimony, counsel was not deficient for not objecting to this aspect of Chavez's testimony under Evidence Code section 352. (Strickland v. Washington, supra, 466 U.S. at p. 697.)

C. Chavez's Testimony About Being Raped by Torres

Chavez waited until May 18, 2005, to inform the district attorney's office that Torres raped her at her house in August 2004.^[11] Chavez testified it was a forcible anal rape that caused bleeding. In his testimony, Torres denied raping Chavez.

Buchanan claims counsel rendered ineffective assistance by not moving to exclude the evidence about Torres's alleged rape of Chavez because the evidence was highly inflammatory and irrelevant. We disagree.

The evidence was probative of Chavez's credibility because of the tardiness of her report. This was another example of Chavez not being forthright with law enforcement authorities about the events that set off this case. It was a proper factor for jury consideration in evaluating her credibility. Evidence of the rape−if believed by the jury−also shed light on Torres's character.

Buchanan unpersuasively argues that the evidence of the sodomy by Torres "permitted the jury to engage in speculation and conjecture about gang members and the commission of rapes" and "could only serve to heighten the jury's fear of [Buchanan] and Brooks." Not only is Buchanan's argument based on speculation and conjecture, it fails to recognize Torres's rape of Chavez had nothing to do with Buchanan, and there was no evidence other Mexican Mafia members engaged in sex crimes. The rape evidence reflected poorly on Torres and Chavez (for not reporting it sooner); it was not prejudicial against Buchanan or Parraz. Counsel was not ineffective for failing to object to the rape evidence.

We find no cumulative error from counsels' failure to object to the tapes of the phone conversations, Chavez's testimony regarding the tapes and her testimony regarding the alleged rape. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.)

IV

Substantial Evidence Supports The Terrorist Threat

and Assault with Firearm Counts

Parraz contends there is insufficient evidence to support his convictions of making a terrorist threat and assault with a semi-automatic firearm.^[12] As proof of these counts, the prosecution relied on the testimony that Parraz walked around the table, "flashing a gun at [Torres]" and telling Torres: "If your family wasn't here, I'd smoke you."

In determining whether a conviction is supported by substantial evidence, an appellate court "must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the trial court's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding." (People v. Redmond (1969) 71 Cal.2d 745, 755.) Reversal is proper only if it appears " 'that upon no hypothesis whatever is there sufficient evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)

A. Making a Terrorist Threat

"In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat−which may be 'made verbally, in writing, or by means of an electronic communication device'−was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)

We look to all the surrounding circumstances to determine if there was substantial evidence to prove the elements of making a terrorist threat. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.)

Here, the only element at issue is whether the threat "on its face and under the circumstances in which it [was] made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat." ( 422, italics added.)

Such a determination "can be based on all the surrounding circumstances and not just on the words alone. The parties' history can also be considered as one of the relevant circumstances." (People v. Mendoza, supra, 59 Cal.App.4th at p. 1340.) Even though Parraz's threat was expressed in conditional terms, it was sufficiently immediate. The crime of making a terrorist threat "does not require an unconditional threat of death or great bodily injury." (People v. Bolin, supra, 18 Cal.4th at p. 338, fn. omitted.) Concurrent with the verbal threat to "smoke" Torres, Parraz flashed the gun six or seven times in a menacing manner as he circled Torres. Further, the purpose of the meeting was to discuss Torres's disrespect to Buchanan by not leaving Chavez alone after he said he would. Every one in that room−Torres, Parraz and Buchanan−was aware that under gang protocol, reneging on a promise to a Big Homie was punishable by death. To underscore that point, Buchanan even rhetorically asked Torres if he knew "what happened if you gave the Big Homie your word and . . . didn't keep it." Given these circumstances, there was substantial evidence Parraz's statement coupled with the multiple flashing of the gun constituted a terrorist threat under section 422.

Parraz argues his statement was not an unequivocal statement and the handgun gesture was made under circumstances in which no immediate threat existed. We disagree.

In section 422, "[t]he use of the word 'so' indicates that unequivocally, unconditionally, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim. The[se] four qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim." (People v. Stanfield (1995) 32 Cal.App.4th 1152, 1157-1158.) Moreover, an actual intent to carry out the threat is not necessary to establish a sufficient level of imminence. (In re David L. (1991) 234 Cal.App.3d 1655, 1659.)

Moreover, to determine if the words constitute a threat within the meaning of the statute, the focus is not on the precise words uttered but rather on the effect of the words on the victim as communicating a gravity of purpose and immediacy of execution. (People v. Stanfield, supra, 32 Cal.App.4th at p. 1158.) Section 422 does not require an absolutely unconditional threat but only one " 'so' unconditional as to convey gravity of purpose and immediate prospect of execution." (People v. Franz (2001) 88 Cal.App.4th 1426, 1448.) In the context of the statute, "immediate" has not been interpreted to mean the defendant must be capable of killing at the moment he says the words. Indeed, section 422 "does not require the showing of an immediate ability to carry out the stated threat." (In re David L., supra, 234 Cal.App.3d at p. 1660 [court sustained the minor's conviction for making a c