IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
August 12, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ROBERT LEE LACY, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F08188)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. Lacy CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 gang-related crimes. We reject defendant's contention.
Prior to trial, the prosecutor sought to introduce gang evidence for purposes of the gang enhancement. In the boilerplate motion, the People sought to introduce predicate crimes of the Surenos but never specified what those crimes were despite stating, "see below." The People sought to introduce defendant's prior convictions for impeachment purposes should he testify, listing the convictions (Veh. Code, § 2800.3 in 2000; § 246 in 2000; Veh. Code, § 10851 in 2000; and Health & Saf. Code, § 11378 in 2005). In the motion, the People did not cite defendant's convictions as predicate crimes or for purposes of Evidence Code section 1101, subdivision (b), and did not mention a beating and stabbing incident.
At the hearing on the motion, the court referred to defendant's conviction for the drive-by shooting as a predicate offense and "appropriate evidence in support" of the gang enhancement. The trial court granted the prosecutor's request to present gang expert testimony. Defense counsel sought to bifurcate the gang enhancement so the jury would hear none of the gang expert's testimony. The trial court denied the request. Defendant then admitted that he had been convicted of violating section 246 (drive-by shooting) for purposes of the felon in possession of a firearm charge so that the jury would be instructed that defendant had previously suffered a prior felony conviction.
At trial, Detective Kinney testified about the predicate offenses committed by Flores and Reyes. Detective Kinney then opined that defendant was a documented Sureno gang member based in part on defendant's gang-related crimes. In 2000, defendant, in the company of other Sureno gang members, committed a drive-by shooting and was convicted of the same. Detective Kinney recounted the facts underlying the drive-by shooting conviction.*fn1 Defense counsel then asked to approach the bench. After an off-the-record discussion, Detective Kinney testified in detail about a subsequent crime report. In January 2005, defendant and several other Sureno gang members beat and stabbed a man wearing red.*fn2 Detective Kinney also recounted the facts from another crime report. In May 2005, defendant possessed nine bindles of methamphetamine and, at the time, was in the company of two Sureno gang members.*fn3
At a recess, outside the jury's presence, defense counsel insisted that he had secured a stipulation to prevent the jury from hearing about the drive-by conviction when defendant admitted the offense for purposes of the felon in possession of a firearm offense and requested a mistrial. The court denied the mistrial motion, noting that defense counsel had not moved to exclude or limit the gang evidence.
With respect to the stabbing incident, defense counsel queried and Detective Kinney confirmed that defendant was not charged or arrested for anything related to the incident but instead was arrested on an unrelated, outstanding warrant. With respect to the drug possession incident, although the jury was not told by Detective Kinney that defendant had been convicted, the jury had heard from defendant's parole agent that defendant was on parole for drugs and was wearing a GPS ankle monitor. Defense counsel started to ask Detective Kinney about the drug possession incident but there was a recess; thereafter, defense counsel did not ask.
The trial court instructed the jury that the gang evidence was admitted for the limited purpose of determining "whether the defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancements charged; or the defendant had a motive to commit the crime charged; or the defendant actually believed in the need to defend himself."
Defendant claims counsel's performance was deficient in that he should have objected to defendant's gang-related crimes since "[t]he relevance was slight, the prejudice great" and that a timely and specific objection would have been granted. He claims the other crimes evidence "had no relevance to the charged offenses and only slight probative value on the gang allegation," noting that his gang affiliation was "never seriously disputed and could have been established by other, less prejudicial evidence" such as the circumstances underlying the current offenses, his admission to his parole officer, his manner of dress (head to toe in blue) when meeting with the parole officer, and his numerous tattoos showing his allegiance to the Surenos. Even assuming the other crimes evidence was "critical to the gang enhancement," defendant argues counsel should have requested bifurcation of the gang enhancement. Defendant claims he suffered prejudice from counsel's failure to object, claiming "[t]he prejudice was especially strong" from his prior drive-by and stabbing offenses and arguing the evidence underlying the current offenses was "not free of doubt," noting the presence of his companion, who was struck and had a greater motive to retaliate, and the varied descriptions of the shooter.
To establish ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Defense counsel's determination whether to object to evidence, even if there is a basis for objection, is a tactical decision which is entitled to substantial deference; "'"failure to object seldom establishes counsel's incompetence."'" (People v. Majors (1998) 18 Cal.4th 385, 403.) "Counsel's failure to make a meritless objection does not constitute deficient performance." (People v. Mitcham (1992) 1 Cal.4th 1027, 1080.)
In connection with each count charged, a gang enhancement was alleged. (§ 186.22, subd. (b).) Section 186.22, subdivision (b)(1) provides for the enhancement of the prison sentence for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." To prove the existence of a criminal street gang, "the prosecution must 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 gang 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. [Citation]." (People v. Gardeley (1996) 14 Cal.4th 605, 617, (Gardeley); § 186.22, subds. (e), (f).) The prosecution must also prove that the defendant committed the charged offense with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1); People v. Loeun (1997) 17 Cal.4th 1, 11 (Loeun).) An enhancement under section 186.22, subdivision (b) does not require knowledge of prior crimes committed by fellow gang members. (Id. at p. 10.)
To prove the enhancement, the prosecution may present expert testimony on criminal street gangs. (Gardeley, supra, 14 Cal.4th at pp. 617-620). Gardeley upheld the admissibility of a gang expert's opinion, including his testimony recounting hearsay. "Expert testimony may also be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.] Of course, any material that forms the basis of an expert's opinion testimony must be reliable. [Citation.] For 'the law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based.' [Citation.] [¶] So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony." (Id. at p. 618.) Opinion testimony from a gang expert may 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. [Citations.]" (People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9.)
An expert may rely on hearsay information to provide opinion "testimony about 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.) "A trial court, however, 'has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.' [Citation.] A trial court also has discretion 'to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein.' [Citation.] This is because a witness's on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into 'independent proof' of any fact. [Citations.]" (Gardeley, supra, 14 Cal.4th at p. 619.)
Detective Kinney testified about the predicate crimes of the Surenos, that is, the crimes committed by Flores in 2007 and those committed by Reyes in 2006. But the challenge here is to defense counsel's failure to object to the admission of defendant's prior gang-related crimes which Detective Kinney relied on, in part, for his opinion that defendant is a Sureno gang member.
Contrary to defendant's claim, defense counsel did request bifurcation of the gang enhancement but the trial court denied the request. In arguing his mistrial motion, defense counsel stated his belief that he had objected to defendant's drive-by shooting conviction. Defense counsel made no mention of the beating and stabbing incident or the possession for sale offense. On cross-examination of Detective Kinney, defense counsel established that defendant had not been arrested for anything to do with the beating and stabbing incident but instead he had been arrested on an unrelated, outstanding warrant. On cross-examination of defendant's parole agent, defense counsel established that defendant was on parole for drugs.
The detective's detailed recitation of the underlying facts of the drive-by shooting and possession of methamphetamine for sale incidents which resulted in defendant's convictions revealed that defendant committed the offenses with other gang members. To prove the gang enhancement, that is, to demonstrate defendant's specific intent to promote, further, or assist in any criminal conduct by gang members, defendant's participation in gang-related crimes was highly relevant since his knowledge of the predicate offenses committed by Flores and Reyes was not required. (Loeun, supra, 17 Cal.4th at p. 10.) Thus, any objection would have been futile.
The beating and stabbing incident, however, was an unproven and uncharged allegation that defendant committed such offense with other gang members. The facts as recited by Detective Kinney reflect that the victim was approached by "three suspects" who ultimately beat and stabbed him. The suspects left in a car. The car was found "two hours later" parked in front of a residence. Defendant and four other gang members were found in the residence. The detective responded affirmatively to the prosecutor's question whether "those individuals match[ed] the descriptions of the person responsible for the assault." There is no indication that anyone was convicted.
The beating and stabbing incident was incompetent hearsay and irrelevant character evidence. Defense counsel did not object but instead elicited the detective's testimony that defendant was not arrested let alone charged for anything related to the beating and stabbing incident. Defense counsel's tactical decision not to object, even though there was a basis for objection, is entitled to substantial deference. Defense counsel demonstrated that the detective had based his opinion, in part, upon unreliable information. Defense counsel's performance was not deficient. We note an error in preparation of the abstract of judgment. Defendant was convicted of violating section 245, subdivision (a)(2), not subdivision (a)(1). We will order the abstract corrected.
The trial court is directed to prepare an amended abstract of judgment reflecting that defendant was convicted of violating section 245, subdivision (a)(2) and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is affirmed.
HULL , J.
MAURO , J.