P. v. Muratalla
Filed 1/27/14 P. v. Muratalla CA5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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.
RICHARD JAMES
MURATALLA,
Defendant and Appellant.
F063394
(Super. Ct. No. BF131824A)
APPEAL
from a judgment of the Superior Court of
Kern County. John S. Somers, Judge.
Ann
Hopkins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Michael
P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jennevee H.
deGuzman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Richard James Muratalla shot
Fernando Delarosa in the buttocks after driving up to Delarosa in a stolen
car. He was convicted of attempted
murder, assault with a firearm, carrying a loaded firearm in a public place
while an active gang member, being a felon in possession of a firearm, and
unlawful taking of a vehicle. Gang allegations,
among other sentence enhancement allegations, were found true.
Muratalla
correctly argues that under the California
Supreme Court’s recent decision in People
v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez),
the evidence does not support the conviction of carrying a loaded firearm in a
public place while an active gang member.
Rodriguez held that a person
cannot be found to be an active gang member without proof that he committed a
crime in concert with another gang member.
Because the facts here did not involve perpetration of an offense with
any other gang member, we reduce the offense to carrying a loaded firearm in a
public place, a misdemeanor, and remand for resentencing on that count.
Muratalla
also makes the following arguments: reliance
by the prosecution’s gang expert on hearsay violated Muratalla’s rights under
the confrontation clause of the Sixth Amendment; there was insufficient
findings; and defense counsel rendered ineffective assistance by conducting
deficient voir dire during jury selection, choosing not to make an opening
statement, not objecting to evidence of prior crimes, making an inadequate
closing argument, and not objecting to the prosecutor’s closing argument. We reject these contentions.
FACTUAL AND PROCEDURAL HISTORY
As
Fernando Delarosa walked on a street near his home in Bakersfield on the
afternoon of March 31, 2010, an off-white Chevrolet Camaro pulled up beside
him. Muratalla got out and asked if he
was Fernando Delarosa from Southside.
Delarosa recognized Muratalla as Oso from Loma Bakers. Southside and Loma Bakers are both subsets of
the Sureño criminal street gang, and are not rivals of one another. Among members of non-rival subsets there are
sometimes conflicts between individuals, however. Delarosa said he was from Southside. Muratalla announced that he was from Loma
Bakers and that he was going to follow Delarosa. Delarosa understood Muratalla’s gang-oriented
comments as a challenge to fight. He did
not want to fight and told Muratalla to leave.
Muratalla said “fuck this,†drew a pistol from his pants and fired four
shots. One hit Delarosa in the buttocks
as he fled. The bullet exited his left
thigh and came to rest in his right thigh.
He ran into a barbershop and called 911.
Delarosa
told officers he knew Muratalla from jail.
He described the car and the gun.
A week later, police found the Camaro.
It had been reported stolen on the day of the shooting. Inside was a .22-caliber handgun with four
spent shell casings and two live rounds in the cylinder. The car also contained a green canvas bag
with more live ammunition inside.
Muratalla’s palm print was found on the inside of the driver’s
door. DNA on the green bag matched
Muratalla’s DNA profile and he was a possible contributor of
The
district attorney filed an information
charging Muratalla with five counts: (1) attempted murder (Pen. Code,
§§ 187, 664)
name="_ftnref1" title="">[1]; (2)
assault with a firearm (§ 245, subd. (a)(2)); (3) carrying a loaded
firearm in a public place while an active member of a criminal street gang
(former § 12031, subd. (a)(2)(C), now § 25850, subd. (c)(3)); (4)
being a felon in possession of a firearm (former § 12021, subd. (a)(1),
now § 29800, subd. (a)(1)); and (5) unlawfully taking or driving a vehicle
(Veh. Code, § 10851, subd. (a)).
For count 1, the information alleged that Muratalla attempted to kill
Delarosa with premeditation and deliberation (§ 189). For counts 1 and 2, it alleged that Muratalla
personally used a firearm and caused great bodily injury. (§§ 12022.53, subd. (d), 12022.5, subd.
(a), 12022.7.) For counts 1, 2, 3 and 5,
it alleged that Muratalla committed the offenses in association with a criminal
street gang (§ 186.22, subd. (b)(1)).
The gang enhancements for counts 3 and 5 were later dismissed at the
People’s request.
Muratalla’s
defense at trial was that the shooting was not attempted murder because it was
not proved that he was trying to kill Delarosa.
He also claimed the shooting arose from a dispute between him and
Delarosa over a woman, so it was not proved that the shooting was gang-related.
The
jury found Muratalla guilty on all counts and found the enhancement allegations
true. On count 1, the court sentenced
him to 15 years to life plus 25 years to life for the firearm enhancement. Sentences for counts 2, 3 and 4 were imposed
and stayed under section 654. The court
imposed a concurrent sentence of four years for count 5.
DISCUSSION
I.
CARRYING A LOADED
GUN IN A PUBLIC PLACE WHILE AN ACTIVE PARTICIPANT IN A CRIMINAL STREET GANG
As
we will explain, the conviction on count 3 must be reduced to a
misdemeanor. To establish the offense of
carrying a loaded firearm in a public place as a felony, the People were
required to prove that Muratalla was a gang member within the meaning of section
186.22, subdivision (a). The Supreme
Court’s holding in Rodriguez shows
that the People did not prove this.
In
count 3, Muratalla was found guilty of violating former section 12031. Subdivision (a)(1) of that section provides
that a person is guilty of an offense if “he or she carries a loaded firearm on
his or her person or in a vehicle while in any public place .…†Under subdivision (a)(2)(C), this offense is
a felony if the defendant “is an active participant in a criminal street gang
as defined in subdivision (a) of Section 186.22 .…†A violator of section 186.22, subdivision (a),
is “[a]ny person who actively participates 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 ….†Where the defendant is not a gang member and
none of the other enumerated conditions are met, a violation of section 12031
is a misdemeanor. (Former § 12031,
subd. (a)(2)(G).)
requirement that, to be a gang member under section 186.22, subdivision (a), a
person must promote, further or assist in criminal conduct “by members of that
gang.†Specifically, the case answers
the question whether this language means the prosecution must prove the
defendant committed a predicate offense, either as a principal or an
aider-and-abettor, in concert with another person who was a gang member. (Rodriguez,
supra, 55 Cal.4th at pp. 1128, 1131.)
Some courts, including this one, have held that this was not required,
and that a person could be proved to be a gang member based on a predicate
offense in which he or she acted alone.
(See People v. Salcido (2007)
149 Cal.App.4th 356, 368, overruled by Rodriguez,
supra, 55 Cal.4th at p. 1137, fn. 8.)
Concluding that the predicate offense must be committed in concert with
another, the Supreme Court explained its reasoning as follows:
“Section 186.22(a) speaks of ‘criminal conduct by
the verbs describing the defendant’s acts, which must be performed willfully. The phrase ‘any felonious criminal conduct’
is the direct object of these verbs. The
prepositional phrase ‘by members of that gang’ indicates who performs the
felonious criminal conduct. Therefore,
to satisfy the third element, a defendant must willfully advance, encourage,
contribute to, or help members of his
gang commit felonious criminal conduct.
The plain meaning of section 186.22(a) requires that felonious criminal
conduct be committed by at least two gang members, one of whom can include the
defendant if he is a gang member.†(
Since
former section 12031, subdivision (a)(2)(C), incorporates the definition of a
gang member from section 186.22, subdivision (a), the Rodriguez holding applies here.
not attempt to prove that Muratalla possessed the gun in concert with anyone,
or that he committed any other predicate offense in concert with anyone. It follows that Muratalla cannot be guilty of
possessing a loaded firearm in a public place while a gang member within the
meaning of former section 12031, subdivision (a)(2)(C), and that the possession
offense is not a felony in this case.
We
have authority under section 1181, subdivision (6),
lesser included offense. (
480, 487; People v. Bechler (1998) 61
Cal.App.4th 373, 378-379.) Here, the
error means Muratalla is not guilty of a felony under former section 12031,
subdivision (a)(2)(C), but guilty of a misdemeanor under former section 12031,
subdivision (a)(2)(G). We modify the
judgment accordingly and remand for resentencing on count 3.
II.
DID THE TRIAL
COURT VIOLATE THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT BY ADMITTING
TESTIMONIAL HEARSAY EVIDENCE?
Muratalla
argues that the People’s gang expert relied on hearsay evidence and that this
reliance violated the confrontation clause of the Sixth Amendment. This argument is based on
36, 53-54 (Crawford), in which the
United States Supreme Court held that admission of “testimonial†hearsay
violates the confrontation clause unless the declarant is unavailable and the
defendant had a prior opportunity to cross-examine him or her. The court did not provide a definitive
statement of the meaning of “testimonial†hearsay, but one definition it
mentioned with approval was: “‘statements
that were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later
trial.’†(Id. at p. 52.)
The
People contend that this issue has been forfeited because Muratalla did not
object to the gang expert’s testimony on these grounds in the trial court. We agree with Muratalla, however, that
objection was unnecessary because it would have been futile. In People
v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas),
which the trial court was bound to follow, the Court of Appeal held that the
admission of similar hearsay did not contravene Crawford.
In
Thomas, a prosecution gang expert
testified to establish the elements of the offense of gang participation under
section 186.22, subdivision (a). (
1205, 1207.) The expert testified that
much of his expertise came from statements made by other officers and by gang
members. (Id. at p. 1207.) His opinion
that the defendant was a gang member was based in part on information he found
in police reports and statements of gang members who said the defendant was a
member. (Id. at p. 1206.) The
defendant argued that the admission of the gang expert’s testimony about the
statements of other gang members violated the confrontation clause as
interpreted in Crawford. (Thomas,
supra, at p. 1208.)
The
Court of Appeal rejected this argument.
It cited People v. Gardeley
(1996) 14 Cal.4th 605, 618-619, which held that under Evidence Code sections 801
and 802, an expert’s opinion can be based on otherwise inadmissible evidence
and the expert can testify about that basis if questioned. The Thomas
court explained that this holding survived Crawford:
“Crawford
does not undermine the established rule that experts can testify to their
opinions on relevant matters, and relate the information and sources upon which
they rely in forming those opinions.
This is so because an expert is subject to cross-examination about his
or her opinions and additionally, the materials on which the expert bases his
or her opinion are not elicited for the truth of their contents; they are
examined to assess the weight of the expert’s opinion. Crawford
itself states that the confrontation clause ‘does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter
asserted.’ [Citation.]†(Thomas,
supra, 130 Cal.App.4th at p. 1210.)
This
holding controlled the hearsay issue in this case. A futile objection is not necessary to preserve
an issue for appellate review. (
825, 837, fn. 4.) We proceed to consider
the merits of the issue.
Bakersfield
Police Officer Travis Harless testified for the prosecution as an expert on
gangs to establish the gang-relatedness of the shooting. To prove the elements of gang-relatedness
under section 186.22, subdivision (b), Harless described to the jury, and
relied upon, all of the following: records of the 16 times Muratalla had been
booked into the county jail; 19 offense reports involving Muratalla, three of
which Harless discussed in detail; police reports and probation reports
describing crimes committed by four other Loma Bakers members; and oral
statements by various Loma Bakers and other gang members about the customs and
activities of Sureño gangs in Bakersfield.
In
contending that Crawford means the
evidence the expert relied on and testified about should have been excluded,
and that we should not follow Thomas,
Muratalla cites Williams v. Illinois
(June 18, 2012) 567 U.S. ___ [132 S.Ct. 2221] (Williams). As we will
explain, there was no majority opinion in that case, and Muratalla does not
rely on the case’s outcome (finding no constitutional violation). He relies instead on statements in Justice
Kagan’s dissenting opinion (joined by three other justices) and in Justice
Thomas’s opinion concurring in the judgment.
Williams
underwent a bench trial for rape. A
technician from a state laboratory testified that she analyzed a blood sample
taken from Williams after his arrest and developed a DNA profile. (Williams,
supra, 132 S.Ct. at p. 2229.)
Another prosecution expert testified that she compared that profile with
a profile developed by a commercial laboratory from semen found on the
victim. (Id. at pp. 2229-2230.) The
expert testified that the profile from Williams’s blood and the profile from
the semen on the victim’s body matched.
(Id. at p. 2230.) No one from the commercial laboratory
testified, and the expert’s implication that the data received from the
commercial laboratory constituted an accurate profile developed from the semen
found on the victim was based on a hearsay statement, namely, the commercial
laboratory’s report. (
There was also chain-of-custody evidence tending to show that the state
laboratory sent the semen samples taken from the victim’s body to the
commercial laboratory. (
Williams
argued that the expert’s implicit affirmation that the results received from
the commercial laboratory were a profile of the DNA found on the victim was
based on testimonial hearsay and should have been excluded under
supra, 132 S.Ct. at pp. 2235-2236.)
Justice Alito, in a plurality opinion that announced the judgment of the
court but was joined only by Chief Justice Roberts and Justices Kennedy and
Breyer (id. at p. 2227), rejected
this argument on the grounds like those relied on in Thomas, i.e., that the hearsay was not admitted to prove the truth
of the matter it asserted. (
2236.) That the profile from the
commercial laboratory was developed from the semen on the victim was “a mere
premise of the prosecutor’s question†which the expert “simply assumed … to be
true when she gave her answer indicating that there was a match between the two
DNA profiles.†The import of the
expert’s statement was only that the two samples she compared matched each
other. She was not testifying about
where the samples came from, a matter that was established by other
evidence. (Ibid.) Since it was a bench
trial, there was no danger of the trier of fact failing to understand
this. (Id. at pp. 2236-2237.)
As
an alternative theory, Justice Alito’s opinion also stated that the commercial
laboratory’s report, even if statements about it were admitted for the truth of the matter asserted, was not
testimonial because it “was not prepared for the primary purpose of accusing a
targeted individual.†(
2243.) Instead, when the state laboratory
sent the semen sample to the commercial laboratory, “its primary purpose was to
catch a dangerous rapist who was still at large .…†(Ibid.)
Justice
Thomas concurred in the judgment, adding the fifth vote necessary to affirm the
lower courts’ conclusion. (
(conc. opn. of Thomas, J.).) He
rejected, however, the plurality’s view that statements from the commercial
laboratory’s report were not admitted for the truth of the matter they
asserted. (Id. at p. 2256.)
“[S]tatements introduced to explain the basis of an expert’s opinion are
not introduced for a plausible nonhearsay purpose. There is no meaningful distinction between
disclosing an out-of-court statement so that the factfinder may evaluate the
expert’s opinion and disclosing that statement for its truth,†since the
factfinder must decide whether the statement is true before evaluating the
expert’s opinion. (Id. at p. 2257.) That other
evidence might have established the same fact is not relevant to the
constitutional analysis: “The existence
of other evidence corroborating the [facts forming the basis of the expert’s
opinion] may render any Confrontation Clause violation harmless, but it does
not change the purpose of such testimony and thereby place it outside the reach
of the Confrontation Clause.†(
Justice
Thomas agreed with the plurality’s result for a different reason: the hearsay was not testimonial, but not for
the same reason the plurality thought it was not testimonial. In Justice Thomas’s view, “the Confrontation
Clause reaches ‘“formalized testimonial materials,â€â€™ such as depositions,
affidavits, and prior testimony, or statements resulting from ‘“formalized
dialogue,â€â€™ such as custodial interrogation.â€
(Williams, supra, 132 S.Ct. at
p. 2260.) The commercial laboratory’s
report “lacks the solemnity†of these types of materials and therefore was not
testimonial. (Ibid.)
Justice
Kagan wrote a dissenting opinion joined by Justices Scalia, Ginsburg and
Sotomayor. (Williams, supra, 132 S.Ct. at p. 2264 (dis. opn. of Kagan,
J.).) Like Justice Thomas, the
dissenters concluded that information from the commercial laboratory’s report
was admitted through the expert for the truth of the matter it asserted. “[W]hen a witness, expert or otherwise,
repeats an out-of-court statement as the basis of a conclusion … the
statement’s utility is then dependent on its truth.†(Id.
at p. 2268.) Further, the hearsay was
testimonial because the commercial laboratory’s report was “in every
conceivable respect, a statement meant to serve as evidence in a potential
criminal trial.†(Id. at p. 2275.)
Muratalla
argues that we should combine Justice Thomas’s opinion with Justice Kagan’s
opinion to create Supreme Court authority for the view that the evidence here
at issue is testimonial hearsay, the admission of which violated the
confrontation clause. Those opinions,
however, do not add up to that view.
They might add up to five votes for the conclusion that the evidence
challenged here was admitted for the truth of the matter asserted, since
Justice Thomas and the dissenters agree that the evidence disclosed as the
basis of an expert’s opinion must be true to support that opinion. But there were not five votes for any view of when statements are
testimonial. The plurality thought the
evidence at issue was not testimonial for one reason, Justice Thomas thought it
was not testimonial for a different reason, and the dissenters thought it was
testimonial under yet a third rationale.
The five justices withholding their votes from the plurality’s position
might not agree that the evidence on which Officer Harless relied was
testimonial hearsay. In light of this,
the various opinions in Williams do
not amount to authority for Muratalla’s position.
In
any event, it is not our practice to piece together various non-majority
opinions by Supreme Court justices for the purpose of anticipating what that
court’s conclusions might be in a case it has not considered. All we can say about Williams is that it upheld the admission of the testimony at issue
and that there was no majority rationale.
Williams fails to support
Muratalla’s position for this reason as well.
We
see no adequate reason to depart from the analysis in Thomas, and the proper approach, in our view, is to follow
authority to do otherwise. To hold that
the gang expert’s testimony in this case violated the confrontation clause
would imply that section 186.22 prosecutions as currently practiced are unconstitutional
in general, and alternative methods would be hard to find. The expert here was typical in his reliance
on myriad items of hearsay from numerous police officers, probation officers
and gang informants. Presenting all
those witnesses at trial would be an obstacle all but insuperable. We will not impose that obstacle absent clear
authority requiring it.
III.
WAS THERE
SUFFICIENT EVIDENCE TO SUPPORT THE FINDING THAT THE SHOOTING WAS GANG-RELATED?
Muratalla
argues that the evidence was insufficient to support the jury’s finding on the
gang enhancement allegations pursuant to section 186.22, subdivision (b).
there is insufficient evidence to support the judgment, our review is
circumscribed. [Citation.] We review the whole record most favorably to
the judgment to determine whether there is substantial evidence—that is,
evidence that is reasonable, credible and of solid value—from which a
reasonable trier of fact could have made the requisite finding under the
governing standard of proof.†(In re
Jerry M. (1997) 59 Cal.App.4th 289, 298.)
To
prove a section 186.22, subdivision (b) gang enhancement, the prosecution must
show that the defendant committed the charged offense “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.†(§ 186.22, subd.
(b)(1).) To prove that the group in
association with which the defendant committed the offense is a criminal street
gang, the prosecution must establish that it is a group “of three or more
persons, whether formal or informal, having as one of its primary activities
the commission of one or more of the criminal acts enumerated [elsewhere in the
statute], 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).)
In
People v. Sengpadychith (2001) 26
Cal.4th 316 (Sengpadychith), our
Supreme Court discussed the types of evidence that can establish the primary
activities prong. Expert testimony can
be sufficient to prove this prong. As an
example, the court described a case in which a police expert testified that the
defendant “had for nine years been a member … primarily engaged in the sale of
narcotics and witness intimidation .…
The gang expert based his opinion on conversations he had with [the
defendant] and fellow gang members, and on ‘his personal investigations of
hundreds of crimes committed by gang members,’ together with information from
colleagues in his own police department and other law enforcement
agencies.†(Id. at p. 324.) Specific
instances of past or current enumerated criminal acts by gang members are also relevant
to the primary activities issue. (
prosecution establishes only occasional commission of enumerated criminal acts
by members of the defendant’s gang, then the primary activities element is not
proven. (Id. at pp. 323-324.)
Officer
Harless testified that he had been a member of the police department’s gang
unit for just over a year and went to the Loma Bakers’ territory almost every
day while on duty. He spoke to gang
members daily and often arrested them for gang-related crimes. From these contacts, he learned the
boundaries of the Loma Bakers’ territory, their rivalries and alliances, and
their primary activities. Asked about
the Loma Bakers’ primary activities, he testified: “[T]hey commit property
crimes, different kinds of thefts. They
commit assaults on rivals. They commit
assaults with firearms, illegal firearm possession, things like that.â€
Harless
also testified about specific instances of criminal acts by Loma Bakers members. Rene Cazares possessed methamphetamine for sale
in 2003. Mario Gomez and Michael Soto
committed an assault with a deadly weapon (a baseball bat) in 2005. Andres Ibarra was a felon in possession of a
firearm in 2008.
Muratalla
first argues that Harless’s testimony was insufficient evidence to support the
primary activities element because some of his remarks showed that he did not
have a proper understanding of the meaning of primary activities. Harless testified that illegal firearm
possession was a primary activity of the Loma Bakers, but he later gave an
affirmative answer when asked if it was “actually rare that you’ll contact with
a Loma Baker who has a gun.†Muratalla argues
that because a primary activity cannot be one that a gang’s members engage in
only occasionally, Harless must have misunderstood what a primary activity is
and therefore his testimony about the Loma Bakers’ primary activities cannot
establish that element.
As
the People point out, however, other testimony given by Harless explains how he
could consistently say both that firearm possession is a primary activity of
the Loma Bakers and that members of the Loma Bakers are not often found with
firearms. Explaining how Bakersfield
gangs manage their stocks of firearms to avoid detection, Harless said that
gangs often “keep them in a central location, maybe a vacant house or at a
person’s house where they know there’s nobody on probation or parole so it’s
less likely law enforcement is going to go to that location .…†Members wanting a gun to commit a crime then
know where to go to obtain one. This
testimony shows how illegal firearm possession can be a primary activity of a
gang even though most of the gang’s members carry a gun only infrequently. Harless therefore did not exhibit any
misunderstanding of the term “primary activities†and there is no reason for us
to hold that his testimony using that term should be disregarded in the
sufficiency-of-evidence analysis.
Muratalla
points out Harless never said the Loma Bakers
keep guns in a central location, but that is beside the point. Muratalla’s argument is that Harless’s
statements about the Loma Bakers’ possession of guns were inconsistent, and therefore cannot be substantial evidence. The fact that a gang—any gang—can have guns
in a central location, available to members at all times even though most
members usually are not in actual possession, shows that Harless’s statements
were not inconsistent.
Muratalla
next argues that the People did not show a large enough number of specific
criminal acts by Loma Bakers members.
The three prior crimes by four members, plus the current offense, make
only four incidents over a period of seven years. This, Muratalla contends, proves no more than
occasional commission of enumerated offenses by Loma Bakers members.
There
is, however, no rule that any particular number of offenses over any particular
time period must be shown to establish that committing enumerated crimes is a
primary activity of a gang. As we have
said, expert testimony based on field experience can be evidence sufficient to
prove the primary activities element.
Muratalla cites cases in which small sets of specific instances of
criminal conduct were held to be insufficient to show a gang’s primary activities,
but in each of those cases there was no expert testimony stating that the gang
committed enumerated crimes as a primary activity, or else the expert testimony
lacked foundation. (People v. Perez (2004) 118 Cal.App.4th 151, 160;
Cal.App.4th 605, 614.)
We
conclude that Officer Harless’s opinion testimony and his testimony about
specific offenses committed by Loma Bakers members constituted substantial
evidence that the Loma Bakers’ primary activities included the commission of
crimes enumerated in section 186.22.
Muratalla’s arguments that Harless contradicted himself and did not
discuss a sufficient number of specific instances are without merit.
IV.
EFFECTIVE
ASSISTANCE OF COUNSEL
Muratalla argues that several
aspects of his trial counsel’s performance amounted to a deprivation of the
effective assistance of counsel guaranteed by the Sixth Amendment. To establish ineffective assistance of
counsel, a defendant must show that counsel’s performance “fell below an
objective standard of reasonableness,†and that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.†(Strickland
v. Washington (1984) 466 U.S. 668, 688, 694; see also People v. Hester (2000) 22 Cal.4th 290, 296.) Our review of trial counsel’s actions is
deferential. To establish that counsel’s
actions were objectively unreasonable, the appellate record must affirmatively
show that counsel had inadequate reasons for taking those actions, or else that
there simply could not possibly be any good reason for them. (People
v. Kipp (1998) 18 Cal.4th 349, 367.)
Further, it is not necessary to determine whether counsel’s challenged
action was professionally unreasonable in every case. If the reviewing court can resolve the
ineffective assistance claim by proceeding directly to the issue of
prejudice—i.e., the issue of whether there is a reasonable probability that the
outcome would have been different absent counsel’s challenged actions or
omissions—it may do so. (Strickland
v. Washington, supra, at p. 697.)
Muratalla has not established that his counsel’s alleged errors amounted
to ineffective assistance either separately or cumulatively.
A. Voir Dire
Muratalla
contends that his counsel acted unreasonably in conducting voir dire during
jury selection. Specifically, he did not
challenge for cause or excuse via peremptory challenge (though he left many of
his peremptory challenges unused) two prospective jurors who were employed in
law enforcement. One juror was a
juvenile correctional officer who had received some gang-related training and
who had a brother who was a California Highway Patrol officer. The other wrote reports and petitions at the
Kern County Probation Department and also had received gang-related
training. Both served on the jury. Another prospective juror was a nurse
employed by the California Department of Corrections and Rehabilitation. Muratalla’s counsel did not challenge her and
she became an alternate, and ultimately served as a juror when a seated juror
was excused before opening statements.
More generally, Muratalla says counsel unreasonably failed to question
jurors to find indications of bias. He
says counsel did not ask any prospective jurors whether they had an inclination
to favor testimony by law enforcement personnel, did not follow up when a
prospective juror, who ultimately served on the jury, said her daughter had
been a victim of a violent crime but her ability to serve would not be
affected, and did not ask the prospective alternates any questions. The jury foreperson was not asked whether
anyone close to her worked in law enforcement or had been a victim of a violent
crime.
The
record does not disclose trial counsel’s reasons for allowing the correctional
officer, the probation department employee and the prison nurse to serve. As we have said, counsel’s actions cannot be
found unreasonable based on a silent record unless there simply could be no
valid reason for them. The exercise of
peremptory challenges is “‘“inherently subjective and intuitive [and] an
appellate record will rarely disclose reversible incompetence in this
process.â€â€™â€ (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 48.) There could have been other reasons why
counsel found these three jurors acceptable or even desirable compared with
others who might have served had these three been excused.
Similarly,
the record does not show that there were no sound tactical reasons for
counsel’s decision to refrain from asking certain questions about bias in favor
of law enforcement personnel. It has
been held that even asking no
questions can be a sound tactical approach.
“For example, questioning by other parties may convince counsel that the
juror would be favorable for the defense, and that further questions might only
antagonize the juror or give the prosecution a reason to use a peremptory
challenge or even grounds for a challenge for cause.†(People
v. Freeman (1994) 8 Cal.4th 450, 485; see also People v. Horton (1995) 11 Cal.4th 1068, 1123 [professionally
unreasonable conduct not shown where counsel’s decision not to ask prospective
jurors about racial bias could have been result of sound tactical
decision].)
Muratalla
also has not shown prejudice arising from counsel’s actions during jury
selection. “Nothing in the record
suggests the actual jury was biased, or that it is reasonably probable a
different jury would have been more favorably disposed towards defendant.†(Freeman,
supra, 8 Cal.4th at p. 487.)
For
these reasons, we conclude that Muratalla has not established ineffective
assistance of counsel based on his counsel’s conduct during jury selection.
persuade us otherwise. In
756, 763, the appellate court concluded that defense counsel’s performance in
not asking certain questions “demonstrates a lack of preparation.†The record in this case, by contrast, does
rather, it simply fails to disclose the reasons for counsel’s actions, fails to
prove that they were not based on sound tactical considerations, and fails to
establish prejudice. In
250, 256-257, a prosecution for resisting arrest, six prospective jurors identified
themselves as working or having close relatives who worked in law
enforcement. When the prosecutor asked
them whether this background would affect them as jurors, one said it depended
on the situation, and several others told stories about officers being injured
or killed by suspects resisting arrest.
Defense counsel asked no questions at all. Three of the people with law enforcement
connections served as jurors. In a
hearing on a new trial motion, defense counsel said it never occurred to him to
ask whether the prospective jurors would be inclined to find law enforcement
witnesses more credible and said that since he had been a law enforcement
officer himself, he was certain they would not be biased. There is nothing similar in this case. Muratalla’s defense counsel never stated any
reasons for his tactical decisions, let alone obviously inadequate ones like
these.
Finally, in People v. Wagner
(N.Y.App. 1984) 104 A.D.2d 457, 459, among numerous other problems (e.g., he
“displayed a forgetfulness of basic principles of criminal law and procedureâ€
and his “opening statement was essentially irrelevant and incoherentâ€), defense
counsel did not challenge any prospective juror peremptorily or for cause, and
the result was a jury that “resembled ‘a miniature police force,’ in that 9 of
the 12 jurors had friends or relatives on various police forces, and one juror
had two sons who were police officers .…â€
This case is not similar.
B. Opening Statement
Next,
Muratalla contends that his trial counsel rendered ineffective assistance by
not making an opening statement. This
argument is without merit. As Muratalla
concedes, trial counsel’s decision “whether to waive opening statement†is a
matter “of trial tactics and strategy which a reviewing court generally may not
second-guess.†(People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) Muratalla contends that his trial counsel
could not have had a strategic reason for presenting no opening statement
because he had already indicated at a prior hearing that his strategy would be
to challenge the prosecution’s proof of intent and gang-relatedness, and there
was no reason not to call the jury’s attention to these points in an opening
statement. Even under these circumstances,
however, it could be a sound tactic to wait until after the prosecution
presented its evidence to make a final decision about how best to defend the
case. The record shows neither that it
was professionally unreasonable not to make an opening statement, nor that
there is a reasonable probability that making one would have led to a different
outcome.
C. Prior Crimes Evidence
Muratalla
argues that several items of evidence revealed prior crimes of which Muratalla
had been suspected or accused, and that this evidence was inadmissible and prejudicial. He says his trial counsel rendered
ineffective assistance by not objecting to it.
As
part of his expert testimony, Officer Harless testified that he reviewed 16
records of Muratalla being booked in to jail.
These records supported Harless’s opinion that Muratalla was a gang
member because, in each booking, Muratalla “claimed South, Southside, Bakers or
something to that effect†so that he would be housed away from Norteños. Muratalla says the booking records were
irrelevant, and Harless should not have been permitted to mention them, because
they showed only that Muratalla was a Sureño—not a Loma Baker—and the
prosecution’s theory was specifically that he was a Loma Baker. We disagree.
The Loma Bakers are a subset of the Sureños. Evidence that someone is a Sureño has a
tendency in reason to support the proposition that he is a member of a
particular subset since, logically, he could not be a member of the subset
unless he were also a Sureño. For this
reason, each booking record was admissible.
Further, all were probative. A
current denial of gang membership is more effectively undermined by many past
instances of membership affirmance, spanning a significant period of time, than
by a few past instances. The fact that
evidence tends to strongly prove a charged allegation, rather than weakly, does
not show that it is substantially more prejudicial than probative under
Evidence Code section 352. We do not
think that statute entitled Muratalla to hide most of his many admissions of
gang membership in order to avoid revealing his many arrests to the jury. Trial counsel’s failure to object was not
professionally unreasonable because the evidence was relevant and admissible as
a basis for Harless’s opinion.
A
similar analysis applies to Muratalla’s argument that the booking records
should have been objected to as cumulative because Harless testified that he
also knew Muratalla was a Sureño gang member from Bakersfield from his
tattoos. The tattoos were comparable to
admissions on Muratalla’s part that he was a gang member. A larger number of admissions adds weight to
the prosecution’s contentions, and does so fairly. Evidence that a gang member has frequently
made a point of declaring to the world that he is a gang member is not
of gang allegations.
Muratalla discusses seven other
points on which he believes his trial counsel should have raised the objections
that evidence was irrelevant, was inadmissible hearsay, was substantially more
prejudicial than probative under Evidence Code section 352, or all three:
1.
Harless mentioned
the 19 offense reports he reviewed, but said only four of these were
significant for purposes of his expert testimony. Muratalla maintains that the existence of the
other 15 was irrelevant and prejudicial.
2.
Harless discussed
Muratalla’s contact with police on August 21, 2009, saying it was significant
because police found Muratalla in the company of a Loma Baker member. Harless went on, however, to reveal other
details of that contact: Muratalla put
something in his mouth which the officers believed was heroin; his companion
was in possession of a counterfeit check; and Muratalla and his companion were
both arrested for parole violations at that time. Muratalla says that all these details were
irrelevant because Harless said the contact was significant only because
Muratalla was found with another gang member; and they were prejudicial because
they were evidence of Muratalla’s bad character.
3.
Harless said
Muratalla’s April 1, 2005, contact with police was significant for purposes of
his expert opinion because Muratalla was arrested for vehicle theft, which
Harless said was a primary activity of the Loma Bakers. But Harless went on to say that Muratalla had
been disturbing the peace before the officers arrived, that he discarded a
methamphetamine pipe when they arrived and was arrested for possession of drug
paraphernalia, and that he was in possession of counterfeit money. Again, Muratalla argues that this additional
information was irrelevant and prejudicial.
4.
Further,
Muratalla was never charged with vehicle theft as a result of the April 1, 2005,
contact, so the evidence of that contact was not even relevant to show he
committed a vehicle theft.
5.
Even if Muratalla
did commit a vehicle theft, he argues, that would not show he is a member of a
gang that commits vehicle thefts. Many
people commit vehicle thefts without being gang members.
6.
Harless said the
report of Muratalla’s contact with police on April 14, 2004, was significant
for purposes of his expert opinion because Muratalla was found in possession of
a knife and arrested for carrying a concealed weapon, weapon possession being a
primary activity of the Loma Bakers.
Again, Muratalla argues that the evidence did not support Harless’s
opinion. Offenses that form the primary
activities of gangs are often committed by people who are not gang
members.
7.
In a recorded
statement, the victim, Delarosa, said he participated in a beating administered
to Muratalla as gang discipline on the orders of gang leaders who were
dissatisfied with Muratalla’s performance as a gang member. Muratalla had been “beating people up too
much.†The recording was hearsay
admissible as a prior inconsistent statement, because Delarosa testified that
he did not remember the incident.
Muratalla argues, however, that the reason for the gang discipline—that
Muratalla was beating people up too much—was not part of the prior inconsistent
statement, and was prejudicial.
Assuming
meritorious objections existed on each of these points, we conclude that
Muratalla has not shown he was prejudiced by counsel’s failure to make
them. He says he was prejudiced because
evidence that should have been excluded was admitted and tended to show he had
a bad character, making the jury more likely to find him guilty as charged,
more likely to find him to be a gang member and more likely to find the offense
to be gang-related. By arguing for a
lesser offense, however, Muratalla effectively conceded that he shot Delarosa and
argued only that he had no intent to kill him.
There was nothing about Muratalla’s prior arrests and offenses that
tended to show he was the kind of person who intended to kill others. As for the gang allegations, there was very
powerful admissible evidence in support of them. Muratalla had gang tattoos, admitted he was a
gang member to booking officers 16 times, was identified by Delarosa as a Loma
Baker, and received gang discipline in jail.
He initiated the confrontation with Delarosa using the language of a
gang challenge.
name="_ftnref6" title="">[6] Harless’s expert testimony
supported the conclusion that it was a gang-related confrontation. And there was no reasonable doubt that the
Loma Bakers are a criminal street gang.
There is no reasonable probability that Muratalla would have obtained a
better outcome if his counsel had made objections on these issues.
D. Defense Counsel’s Closing Argument
Defense
counsel’s closing argument developed two themes: the evidence did not show that Muratalla had
an intent to kill Delarosa and the conflict between the two men was over a
woman and was not gang-related.
Muratalla
now argues that this closing argument was constitutionally inadequate because
counsel could have done a better job of developing these themes. He presents a list of details he feels trial
counsel should have focused on:
1.
Defense counsel
did not emphasize the elements necessary for a finding of premeditation and
deliberation; he should have done so in response to the prosecutor’s argument
that premeditation and deliberation are like deciding whether to proceed
through a yellow light.
2.
Defense counsel
did not reiterate the jury instruction stating that if Muratalla’s intent were
subject to two reasonable interpretations, the jury was required to adopt the
interpretation under which Muratalla was less culpable.
3.
Defense counsel
did not point out certain facts arguably undermining the claim that he intended
to kill and supporting the view that he acted thoughtlessly and
impulsively: Muratalla left the scene
with bullets left in his gun and Delarosa still standing; there was no evidence
that Muratalla expected to encounter Delarosa that day and brought a gun with a
plan to shoot Delarosa in mind; Muratalla could have been carrying the gun for
protection; Delarosa said Muratalla looked “tweaked out†this was not
suggestive of a cold and calculating mood; Delarosa told Muratalla to leave and
Muratalla responded by saying “fuck this†and drawing the gun.
4.
Defense counsel
did not emphasize facts that could undermine the theory that the shooting was
gang-related: When Muratalla approached
Delarosa and asked if he was Fernando Delarosa from the south side, he could
have simply been trying to ascertain Delarosa’s identity, not challenging him
to engage in a gang conflict; Delarosa had never had a conflict with a Loma
Baker before and while he had seen Loma Bakers members “trying to gang bang onâ€
Southside Bakers, he classified these as personal conflicts, not gang
conflicts; although Delarosa knew Muratalla as “Oso from Loma Bakers,†it
remained possible that (unknown, somehow, to Delarosa) Muratalla and Delarosa
were actually both members of Southside Bakers.
Muratalla’s
critique of the fine-grained details of counsel’s closing argument does not establish
ineffective assistance of counsel. Our
review of the professional reasonableness of counsel’s tactical choices is
deferential, and in the absence of record evidence of the reasons for counsel’s
approach, we do not find reversible error unless there simply could be no good
reason for it. The record does not
reveal counsel’s reasons, and it is not the case that there could be no good
reason for presenting the defense themes in a briefer manner that Muratalla now
wishes his counsel had done. Further,
Muratalla’s critique does not demonstrate prejudice. We cannot say it is reasonably probable that
the jury would have reached a different verdict if defense counsel’s closing
argument had focused on the details Muratalla now lists.
E. Failure to Object to Prosecutor’s
Closing Argument
An
eyewitness, Sergio Merino, testified that he saw Muratalla pointing the gun
“[d]irectly at him,†i.e., at Delarosa.
In his summation, defense counsel made remarks that appeared to be
intended to undermine this testimony. He
said that because the police searched for and did not find evidence of bullet
strikes on buildings downrange from Delarosa, the barrel of Muratalla’s gun
must not have been pointed “in the direction of the person running away,†i.e.,
must not have been pointed toward Delarosa.
In his rebuttal argument, the prosecutor made the following remarks,
apparently in response to these comments by defense counsel:
“Now, in
this case, you’re only allowed to rely upon the evidence. You’re not allowed to rely upon
conjecture—oh, he must have [been] shooting in the air. No.
“Sergio
Moreno got on the stand. He was asked
where was the gun pointed. Directly at
the person running away. You have an
eyewitness to the event telling you exactly where the gun was pointed.
“Okay. Whether a tiny little .22 shell was found in
a wall, that’s—you can’t get the inference from that that he was shooting
wildly into the air.
“The direct
evidence of an eyewitness tells you where Mr. Muratalla was shooting. That is what you can rely upon.
“There’s no
evidence that he was shooting in the air, none whatsoever. You cannot rely upon that.
“You can
rely upon the evidence, the documents, the photos, the testimony—not
conjecture, not stuff that’s just made up.â€
Muratalla
now argues that these remarks misstated the law by implying that the jury could
not rely upon a lack of evidence in
concluding that there was a reasonable doubt of his guilt. (See People
v. Simpson (1954) 43 Cal.2d 553, 566 [“[R]easonable doubt … may well grow
out of the lack of evidence in the case as well as the evidence
adduced.â€].) He says his counsel
rendered ineffective assistance by not making an objection to that effect.
We
do not see how an objection on this point could have made any difference to the
jury. It is undisputed that a bullet
from Muratalla’s gun struck Delarosa.
Muratalla does not suggest that the bullet ricocheted. This means the gun necessarily was fired
directly at Delarosa at least once. If
all four shots had missed, Muratalla could rationally have made an argument
that he never pointed the gun directly at Delarosa, and then used that argument
to support a further argument that he had no intent to kill. As it was, however, the eyewitness’s
testimony that the gun was pointed “directly at†Delarosa only stated what was
already obvious from the undisputed facts.
An objection to the prosecutor’s comments about evidence versus
conjecture, even if sustained, therefore could not rationally have had any
impact on the jury’s conclusions about whether the gun was fired directly at
Delarosa. It follows that there is no
reasonable probability that Muratalla would have obtained a better outcome if
his counsel had objected.
Muratalla
also briefly mentions that during his rebuttal argument, the prosecutor implied
that any shooting in which a victim is injured is always attempted murder and
never assault with a firearm. He does
not present any arguments or cite any authorities on this subject. He also does not mention that the prosecutor
made similar comments during his initial closing argument, that defense counsel
objected, that the objection was sustained, or that defense counsel explicitly
criticized the prosecutor on this point in his closing statement. Because Muratalla does not present any
arguments or cite any authorities to support this subject, we conclude that he
has forfeited this issue. (Associated Builders & Contractors, Inc. v. San Francisco Airports
Com. (1999) 21 Cal.4th 352, 366
fn. 2. [Points
that are not supported by analysis of the facts and citation of legal authority
are deemed forfeited.].)
DISPOSITION
On
count three, the felony of carrying a loaded firearm in public while being an
active gang member (former § 12031, subd. (a)(2)(C)), the judgment is modified
to reduce the offense to the misdemeanor of carrying a loaded firearm in public
(former § 12031, subd. (a)(2)(G)).
The case is remanded to the trial court for resentencing on that
count. The judgment is otherwise
affirmed.
_____________________
Franson,
J.
WE CONCUR:
_____________________
Levy, Acting P.J.
_____________________
Kane, J.
name="_ftn1" title="">[1] Subsequent
statutory references are to the Penal Code unless otherwise noted.
name="_ftn2" title="">[2] The
Rodriguez holding does
enhancement findings under section 186.22, subdivision (b). The Rodriguez
court explicitly denied that its reasoning applied to enhancements imposed
under section 186.22, subdivision (b). (
1138-1139.)
