P. v. Pineda

Filed 12/11/08 P. v. Pineda 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Tulare County. David Minier, Judge.

Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez, Deputy Attorney General, for Defendant and Respondent.

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A jury convicted appellant Eric Pineda of carjacking (Pen. Code,^[1] 215, subd. (a); count 1), robbery ( 211, count 2), assault with a firearm ( 245, subd. (a)(2), count 3), and unlawful taking of a vehicle ( 10851, subd. (a), count 4). With respect to counts 1, 2, and 4, the jury found true allegations appellant personally used a firearm in the commission of the crimes ( 12022.53, subd. (b), 12022.5, subd. (a)). With respect to all counts, the jury found true allegations that appellant committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang ( 186.22, subd. (b)(1)). In a bifurcated proceeding, the trial court found appellant had one prior strike conviction ( 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). The court sentenced appellant to prison for a total of 30 years. On appeal, appellant contends: (1) he received ineffective assistance of counsel, and (2) insufficient evidence supports the gang enhancements. We reject appellants contentions and affirm the judgment.

FACTS

On September 26, 2006, Stephen Bistrow drove to work in Visalia. He arrived around 5:30 a.m., parked his 1997 Lincoln Town Car in front of the gate to his business, and got out of the car to open the gate. The sun was just beginning to come up and it was still a little dark. There was some extra light from neighboring businesses and street lights. As Bistrow was opening the gate, an early-model Cadillac pulled up behind his car and three men jumped out. Two of the men were carrying guns.

Bistrow was approached by one of the men, who he later identified as appellant. Appellant was carrying an automatic pistol and wearing a hooded sweatshirt. Appellant had the hood up on his head but nothing was obstructing his face. Appellant stood approximately three feet from Bistrow and pointed the gun at the center of Bistrows forehead. Appellant was holding the gun in his left hand. The other man with a gun stood next to Bistrows open car door. This man also pointed his gun at Bistrow, shouted profanities, and demanded the keys to Bistrows car.

Bistrow gave appellant his car keys. Appellant used his right hand to grab Bistrows cell phone out of his pocket. Appellant then got into the passengers side of Bistrows car, and the other man with a gun got into the drivers side. The third man got back into the Cadillac and sped away. Bistrows car followed. Bistrow estimated the entire incident lasted two to three minutes.

Bistrow testified on cross-examination that when he first saw appellants gun, he thought he was going to die and was extremely scared. As to other thoughts going through his mind, Bistrow testified, I just wanted to make sure I got a good look at the guy who was putting the gun in my face in case he didnt kill me so I can identify him. Bistrow confirmed he was able to get a good look at both the gun and the individual pointing it at him.

On September 30, 2006, around 1:30 a.m., a police officer on patrol in Tulare observed Bistrows car. Noticing the car had no rear license plate, the officer attempted to make a traffic stop. A chase ensued. It began as a low-speed chase but increased in speed as other officers joined the pursuit. The car eventually crashed. The five occupants, including appellant, fled on foot but were shortly apprehended by the police.

A couple weeks after his car was taken, police contacted Bistrow. He went to an impound lot in Visalia to identify his car. Bistrow observed the car was altered. His handicap license plate was missing, a number of items were stripped from the interior of the car, and there were stains on the carpet. Bistrow also identified appellant in a photographic lineup as the assailant that took his car keys and cell phone at gunpoint.

During a police interview following his arrest, appellant waived his Miranda^[2]rights and claimed he did not know how he came to be in Bistrows car on the night of September 30, 2006. Appellant agreed with the detective interviewing him that he had a memory lapse.

Gang Evidence

Visalia Police Officer Luma Fahoum testified as an expert witness regarding the Loco Park criminal street gang in Visalia. Officer Fahoum was personally familiar with appellant, whose street name was Silly, and identified him as a member of the Loco Park gang. She was also personally familiar with the other four men that fled from Bistrows vehicle on September 30, 2006, and identified them as Loco Park gang members.

Officer Fahoum opined that the crimes under the circumstances here would be committed to benefit a criminal street gang. She explained that the use of guns makes them a more feared gang and is a good way of providing fear and intimidation. It also benefits the gang to have a vehicle to commit further crimes thats not registered to them and not be identified by law enforcement should someone get the license plate or vehicle description.

Officer Fahoum further testified that the vicious act of putting a gun to somebodys head and ordering property benefits the individual gang member who commits the crime whether they say theyre a gang member or not at the time of the crime. She explained: Information is passed along. Other gang members know they have put in this work. Its read in the newspapers, and oftentimes they have to answer to it in court like we are today. They have to go to jail custody for it where they can boast and brag about their actions, their work they put in. It benefits the individuals status. It helps promote their status in the gang. [] Like we said in the beginning, they start at a low level and advance and escalate in this gang. This is one good way to do that.

The Defense

Appellants girlfriend and her mother testified that at 5:30 a.m. on September 26, 2006, appellant was at home asleep in bed.

Dr. Robert Shomer testified as an expert in the area of eyewitness identification, perception, and memory in stressful situations. Dr. Shomer testified that identification of strangers was unreliable, and that hats or objects that obscure the head or hairline or head shape [have] a massive [adverse] effect on accuracy. Dr. Shomer further testified that a person in a stressful situation was less likely to make an accurate identification and research consistently showed that accuracy rates were far lower when a weapon [was] present.

DISCUSSION

I. Ineffective Assistance of Counsel

On redirect examination, Officer Fahoum testified about appellants prior strike conviction in response to a question about what factors she considered in appellants history in concluding he was a validated gang member under the criteria used by her office.^[3] Defense counsel objected and moved to strike Officer Fahoums answer, invoking Evidence Code section 352. The trial court granted counsels motion and ordered the answer stricken, admonishing the jury to disregard the answer and to proceed as though it had never heard it. The subject was never touched on again during appellants jury trial.

Appellant now contends he received ineffective assistance of counsel because his counsel failed to move for a mistrial after Officer Fahoum testified about his prior conviction. Appellant also suggests his counsel was deficient for failing to move in limine to exclude evidence of his prior conviction, and for failing to challenge the prosecutors open ended question which elicited the stricken answer. We conclude that appellant cannot establish prejudice and thus his ineffective assistance claim fails.^[4]

To prevail on a claim of ineffective assistance of counsel, appellant must show counsels representation fell below an objective standard of reasonableness, and the deficient performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Further, a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. (Id. at p. 697.) Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.] (People v. Sanchez (1995) 12 Cal.4th 1, 41.)

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

Generally, improper evidence of a past crime does not cause reversal where there is heavy evidence of guilt. (People v. Cabrellis (1967) 251 Cal. App.2d 681, 688.) Where the record points convincingly to guilt, the error is consistently regarded as nonprejudicial. (People v. Stinson (1963) 214 Cal.App.2d 476, 482.) Improper evidence of prior offenses results in reversal only where the appellate courts review of the trial record reveals a closely balanced state of the evidence. (Ibid.)

A finding of incurable prejudice may be based on a witnesss volunteered statements. (People v. Williams (1997) 16 Cal.4th 153, 211.) A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. (People v. Wharton (1991) 53 Cal.3d 522, 565.)

A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith. [Citations.] It is only in the exceptional case that the improper subject matter is of such a character that its effect cannot be removed by the courts admonitions. [Citation.] (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.) The exceptional case is where the incompetent evidence goes to the main issue and where the proof of the defendants guilt is not clear and convincing. (People v. Hardy (1948) 33 Cal.2d 52, 61.)

Here, after Officer Fahoum testified regarding the circumstances of appellants prior conviction, defense counsel objected. The trial court sustained counsels objection, ordered the answer stricken, and expressly admonished the jury to disregard it. Further, at both the beginning and conclusion of trial, the court instructed the jury, If I ordered testimony stricken from the record, you must disregard that and not consider that testimony for any purpose. As indicated above, Officer Fahoums stricken answer was the only reference to appellants prior conviction during his jury trial. We disagree that the circumstance that appellants prior conviction involved appellants presence in a car with another gang member and two guns was so inflammatory that the jury would be unable to follow the courts instructions. Because of the gang allegations, the prosecution was entitled to and did present evidence of appellants gang affiliation. In this context, Officer Fahoums testimony, though cumulative and potentially prejudicial, would not have the shock value that appellant now attributes to it. We thus presume the trial courts admonitions were sufficient to cure any potential prejudice from Officer Fahoums volunteered statements about appellants prior conviction.

We also take into consideration that the evidence appellant complains of is somewhat removed from what appellant has deemed to be the main issue in this case; i.e., whether Bistrow accurately identified appellant as the assailant that assaulted him with a gun during the September 26, 2006, carjacking. The evidence of guilt was very strong. Bistrow indicated that, despite his fear during the carjacking, he intentionally focused on appellants face and gun so that he might to be able to identify appellant later if he survived the incident. Bistrows eyewitness testimony was corroborated by other circumstantial evidence linking appellant to the carjacking, including appellants presence in Bistrows car with other gang members four days later, and his rather incredible claim that he had a memory lapse and did not know how he came to be in Bistrows car.

As noted above, the determination whether an error in the admission of evidence is incurably prejudicial is, by nature, speculative. Hence, it [is] a rare case in which the merits of a mistrial motion [are] so clear that counsels failure to make the motion amount[s] to ineffective assistance. (People v. Jennings (1991) 53 Cal.3d 334, 380, quoting People v. Haskett (1982) 30 Cal.3d 841, 854.) This is not one of those rare cases. Following this reasoning, any failure of counsel to request a mistrial at this juncture of the trial did not prejudice appellant, and counsel cannot be deemed ineffective. (Strickland v. Washington, supra, 466 U.S. at p. 687.) Moreover, because it is not reasonably probable appellant would have received a more favorable result absent the evidence of his prior conviction, we reject appellants claims that his counsel was ineffective for failing to make an in limine motion to exclude the evidence or for failing to challenge the prosecutors question that elicited the evidence.

II. Sufficiency of the Evidence to Support the Gang Enhancements

Appellant contends insufficient evidence supports the gang enhancements. Specifically, appellant challenges the sufficiency of the evidence to show that the offenses and his specific intent were gang related.

We review the sufficiency of the evidence to support an enhancement using the same substantial evidence standard we apply to a conviction. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058.) In addressing a challenge to the sufficiency of the evidence supporting a conviction, the appellate court must determine whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citations.] (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) In making this determination, [the appellate court] must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- evidence that is reasonable, credible and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] (People v. Kraft (2000) 23 Cal.4th 978, 1053.)

To establish the gang enhancement, the prosecution had to prove that the crime was (1) for the benefit of, at the direction of, or in association with a criminal street gang, and (2) that the defendant had the specific intent to promote, further, or assist in any criminal conduct by gang members. ( 186.22, subd. (b)(1).)^[5] These elements essentially require that both the crime and the defendants specific intent be gang related. (People v. Gardeley (1996) 14 Cal.4th 605, 619, 621-622, 625, fn. 12.) A defendants mere membership in the gang does not suffice to establish the gang enhancement. (Id. at pp. 623-624; In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 (Frank S.).) Rather, [t]he crime itself must have some connection with the activities of a gang . . . . (Frank S., supra, at p. 1199.)

As indicated above, appellant claims there was insufficient evidence to show that the current offenses and his specific intent were gang related. He places strong reliance on the facts that there was no evidence that the other two individuals involved in the carjacking were also gang members, appellant did not advertise any gang involvement (such as yelling gang slogans or flashing gang signs) during the incident, and the victim was neither a gang member nor did he suspect the crimes committed against him were gang related. In appellants view, Officer Fahoums conclusions about the gang-related nature of the crimes were nothing but sheer speculation and conjecture.

We disagree with appellants assessment of Officer Fahoums testimony. It is entirely proper for a qualified expert as Officer Fahoum is here, when presented with hypothetical scenarios properly rooted in the evidence presented at trial (People v. Ferraez (2003) 112 Cal.App.4th 925, 930 (Ferraez); see also People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551, fn. 4), to testify how particular criminal conduct may enhance a gangs reputation or how a gang may use proceeds from a crime to further other criminal activity. (Accord, People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3; People v. Ward (2005) 36 Cal.4th 186, 209.) Such matters are sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (People v. Ferraez, supra, 112 Cal.App.4th at p. 931; e.g., People v. Gonzalez, supra, 38 Cal.4th at pp. 945-946.)

The court in Ferraez, supra, addressed an argument similar to that made by appellant here, that the evidence in that case showed his intent was not gang related but instead entirely personal: to quickly get $400 with which to buy himself a car. (112 Cal.App.4th at p. 930.) In rejecting that contention, the appellate court found testimony from a gang expert based upon hypothetical scenarios, combined with evidence that the defendant planned to sell the drugs in another gangs territory and earlier admissions that he was a member of different gang on friendly terms with the other gang, was sufficient for the jury to reasonably infer the crime was gang related. (Id. at p. 931.)

Here, there was additional evidence, besides the experts testimony, linking appellants crimes to gang activity. Four days after he committed the crimes in Visalia, appellant was observed enjoying the spoils of his crimes with other Loco Park gang members. First, they were observed driving the car late at night in Tulare. They then led police officers on a dangerous, high-speed chase. The jury could reasonably infer from these circumstances that the crimes appellant committed four days earlier were intended to, and did benefit, his gang. Officer Fahoum explained how the taking of a car would benefit the gang by providing the gang a means of committing further crimes while lowering the risk of identification. The aforementioned use of Bistrows car by appellant and his fellow gang members after the carjacking was consistent with the experts description of gang activity. Officer Fahoum also explained how the use of a gun to carry out the offenses would benefit the gang by increasing the gangs reputation as a feared gang and by enhancing the status of the individual gang member. Officer Fahoum explained that, even if a gang member did not identify himself as such during the commission of a crime, his status could still be enhanced by the news of his conduct getting passed along by other gang members. The presence of other gang members in the stolen car with appellant several days after he used a gun in a highly intimidating and threatening manner to take the car from Bistrow greatly increased the odds that appellants conduct during the offenses was communicated to other gang members and that his reputation and the reputation of his gang were thereby enhanced.

Based on these circumstances and the experts testimony, the jury could reasonably conclude the crimes appellant committed on September 26, 2006, were for the benefit of the gang and that appellant had the specific intent to promote, further, or assist, any criminal conduct by the gang. This case thus is clearly distinguishable from situations in which the defendants criminal history and gang affiliation constituted the only evidence a crime was gang related (see People v. Martinez (2004) 116 Cal.App.4th 753, 761-762), or the only crime consisted of passive conduct by a lone individual and the experts testimony did not merely give meaning to the defendants actions, but instead amounted to personal belief as to the defendants subjective intent (see Frank S., supra, 141 Cal.App.4th at pp. 1196-1199).

Finally, we reject appellants argument that the specific intent requirement of section 186.22, subdivision (b)(1) is governed by the holding in Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, which interpreted that section to require a finding that the gang conduct promoted by the gang member must be separate from the facts of the underlying conviction. This interpretation is at odds with the plain language of the statute and with the analysis by other California courts that have considered it. We reject it as well.^[6]By its plain language, the statute requires a showing of specific intent to promote, further, or assist in any criminal conduct by gang members, rather than other criminal conduct. ( 186.22, subd. (b)(1) .) (People v. Romero (2006) 140 Cal.App.4th 15, 19; see also People v. Hill (2006)142 Cal.App.4th 770, 774.)

DISPOSITION

The judgment is affirmed.

_____________________

Hill, J.

WE CONCUR:

_____________________

GOMES, Acting P.J.

_____________________

DAWSON, J.

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^[1] Further statutory references are to the Penal Code unless otherwise specified.

^[2]Miranda v. Arizona (1966) 384 U.S. 436.

^[3] Specifically, Officer Fahoum testified: Without going and dragging his whole laundry list out, I can think of one incident I was involved with [appellant] that meets the criteria by itself, a good number of them. That was an incident where I was undercover watching an area where there is heavy gang graffiti down by La Joya School. I observed [appellant] and another kid thats a member of Loco Park, Stephen [L.], drive by. Both subjects were on active probation. [] A car stop was made by my partners, and two guns were found in the car. He was later convicted of that crime and ordered by the Court to register as a gang member, but he was involved in a gang-related crime, he was with a gang member, he had gang tattoos, a blue bandana, and he admitted to being a Sureno when he was booked in jail that day.

^[4] In light of our conclusion that appellants ineffective assistance claim fails because he cannot show he was prejudiced by defense counsels actions, we do not address respondents claim that, because the record fails to disclose the reasons for counsels actions or failure to act, appellants claim would be more appropriately raised in a habeas proceeding.

^[5] The prosecution must also prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a pattern of criminal activity by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called predicate offenses) during the statutorily defined period. (People v. Gardeley (1996) 14 Cal.4th 605, 617, italics omitted.) Appellant does not challenge the evidence concerning these elements, and thus implicitly concedes the sufficiency of the evidence supporting them.

^[6] Federal court interpretation of state law is not binding. (People v. Burnett (2003) 110 Cal.App.4th 868, 882; Oxborrow v. Eikenberry (9th Cir. 1989) 877 F.2d 1395, 1399.)