(Super. Ct. No. 08F08188)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Robert Lee Lacy of assault with a firearm (Pen. Code, § 245, subd. (a)(2); count one; undesignated section references are to this code), discharging a firearm at an occupied vehicle (§ 246; count two), and being a felon in possession of a firearm (§ 12021, subd. (a)(1); count three). In connection with count one, the jury found the allegation that defendant personally used a firearm in the commission of the offense (§ 12022.5, subd. (a) & (d)) to be true. In connection with all counts, the jury found the allegation that defendant committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) to be true. In bifurcated proceedings, the court found a strike prior (§§ 667, subds. (b)-(i), 1170.12) to be true.
Sentenced to state prison, defendant appeals. He contends counsel rendered ineffective assistance by failing to object to the admission of evidence of defendant's prior gang-related crimes. We will affirm.
On September 13, 2008, defendant and another man rode their bicycles up to a home on Altos. Ricky Cabrera and several family members were outside in front of the home celebrating an aunt's birthday. Cabrera associates with and identifies himself with Nortenos. Defendant had certain tattoos which reflected his allegiance to the Sureno street gang. Defendant said, "What's up esse?" Interpreting defendant's question as a challenge to fight, Cabrera responded, "What's up home boy." Defendant got off his bicycle and Cabrera approached defendant who stood in the street. Cabrera's family members intervened before they could fight. Cabrera returned to the driveway of his aunt's house. Defendant and his companion rode their bicycles down the street to another house, two houses away. Cabrera's uncle followed them down the street and an argument started. Cabrera heard the argument and went down the street where he squared off with defendant to fight while Cabrera's uncle squared off with defendant's companion to fight. Profanity was used and derogatory terms were slung at one another ("scrap" - south sider or Sureno gang member; "buster" -north sider or Norteno gang member; "fuck south siders"). Defendant's female friend, Yesenia Lopez, waived a blue (a Sureno color) rag. Cabrera's uncle hit defendant's companion and then joined Cabrera in squaring off with defendant. Defendant jumped on his bicycle and stated as he rode away, "I'll be back." Cabrera returned to his aunt's house.
Ten minutes later, defendant returned. Cabrera stepped into the street and said, "what's up." Just as defendant pointed a black handgun at Cabrera, Cabrera's brother, who was arriving at the party, saw what was happening and backed his car towards defendant. Defendant fired several rounds at the car and then fled.
A GPS monitor which defendant was required to wear as a condition of parole reflected defendant's movements from the Altos home to his home and then back to Altos where the shooting occurred. After the shooting, defendant removed the GPS monitor which was found on the side of a freeway.
Detective Brian Kinney testified about the primary activities of the Sureno street gang and gave two examples of crimes committed by Sureno gang members. In June 2007, Lettie Flores was convicted of carjacking, for shooting at a man, who had a Norteno gang member hairstyle, and then stealing his car. In July 2006, Juan Reyes was convicted of carjacking, attempted murder, and discharging a firearm at an inhabited dwelling, for stealing a person's car at gunpoint and then shooting at several people who were standing outside a house, having driven there in the stolen car.
Detective Kinney identified defendant as a validated Sureno gang member based on his admission, association, gang tattoos, clothing, and gang-related crimes. Additional facts related to defendant's gang-related crimes will be recounted in the discussion of defendant's contention. Detective Kinney opined that the current offenses were committed for the benefit of the Sureno gang: by demonstrating his tattoos, provoking the incident, and returning with a gun visible to all, defendant believed he would garner respect, because he showed the Cabrera family that he was not afraid of them, and elevate his position in the Surenos.
Defendant's sole contention on appeal is that counsel rendered ineffective assistance in failing to object to the admission of evidence of defendant's prior ...