(Super. Ct. No. CRF09-3843)
The opinion of the court was delivered by: Butz ,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Steven Hector Martinez was convicted of battery with serious bodily injury. (Pen. Code, § 243, subd. (d).)*fn1 The trial court sustained allegations of two strikes, two serious felonies, and one prior prison term (§§ 667, subds. (a)(1), (d), (e)(2), 667.5, former subd. (b)) and sentenced defendant to 31 years to life in state prison.
On appeal, defendant contends: (1) there is insufficient evidence to support his conviction; (2) the admission of gang evidence violated his federal rights to due process and jury trial; (3) counsel was ineffective in failing to object to the gang evidence; (4) prosecutorial misconduct during closing argument; (5) ineffective assistance of counsel for failing to object to the alleged misconduct; (6) cumulative error; (7) it was an abuse of discretion to deny defendant's motion to dismiss one of the strikes; (8) the trial court miscalculated defendant's presentence conduct credits; and (9) the court should have struck one of the serious prior felony allegations. Agreeing with the last two contentions, we shall modify the award of custody credits, strike one of the serious felony allegations, and affirm the judgment as modified.
On the afternoon of April 18, 2009, Mario Tamayo was at Bistro 33 in Davis, celebrating UC Davis "Picnic Day" with friends. Tamayo was in the restaurant's patio, where he was "buzzing" after consuming three to four cocktails.
A fight broke out in the patio and progressed to outside the patio fence. Tamayo and his party moved out to the street to see the commotion. The fight broke up, and Tamayo asked one of the participants why they fought. As Tamayo walked back to the restaurant, a man came up from behind and punched him in the right eye, causing two orbital fractures. Tamayo could not describe his assailant at trial, but admitted telling the police the assailant was a Hispanic man with black baggy shorts or pants and a black Dickies brand shirt.
The assailant left the scene with three or four other men; Tamayo tried to follow but was bleeding very badly and never caught up. He later met police officers in a cul-de-sac with some people who looked like they were from his assailant's group. Tamayo, who was very upset, told an officer two of the people had been with his assailant, but testified he was not 100 percent sure at the time. Tamayo then identified defendant as the assailant in a show-up. Defendant was the only person in the police car when Tamayo identified him.
Brendan Goodman went to the Davis Picnic Day with his girlfriend and family on April 18, 2009. As he approached Bistro 33, Goodman heard a verbal altercation to his right, and then saw one man throw punches at another man. The incident took place during the afternoon on a sunny day. Goodman was about 25 feet away, and nothing obstructed his view of the attack.
According to Goodman, the assailant was a stocky Hispanic man with a lot of tattoos, a mustache, wearing a white tank top undershirt and darker pants. Goodman identified defendant as the assailant at trial.
Defendant was face-to-face with the victim when he struck the victim three times. The victim stumbled and grabbed his glasses after the assault, while defendant and three other men continued down G Street. Goodman then called the police and followed defendant's group, maintaining visual contact and describing their whereabouts to the police dispatcher.
Goodman did not break off the pursuit until a police officer contacted the men. He did not contact the officer because Goodman wanted to conceal his identity. Goodman later agreed to view the suspect at the police station, where he identified defendant as the assailant. He was absolutely certain when he made the identification at the police station, and remained certain about defendant's identity at trial.
On the day of the incident, Davis Police Officer Mike Munoz was dispatched to an assault at the intersection of Third and G Streets. Officer Davis received continuous updates from dispatch as he approached, and learned the assailant was part of a group of four Hispanic males. Dispatch told Officer Davis that one of the men wore a black tank top and white hat, another wore a gray hat, while a third man had a white tank top and tattoos.
Officer Davis saw one suspect entering a Goodwill store, and three other suspects exiting a car wash and crossing I Street. Defendant, who wore black shorts with a white tank top and was heavily tattooed, was in the group of three men exiting the car wash. Noting defendant closely fit a description given by dispatch, Officer Davis got out of his patrol car and asked the men to talk to him. They agreed, and Officer Davis eventually detained defendant and placed him in the back seat of the patrol car.
Tamayo soon came to the scene. Officer Davis observed that Tamayo was very upset, had cuts above and below his right eye, and smelled of alcohol. Tamayo told Officer Davis that two of the men were from his assailant's group. Officer Davis read a field admonishment to Tamayo and took him to the police car, where Tamayo identified defendant as his assailant. Tamayo said he was "real sure" that defendant was his assailant.
Officer Davis later talked to Goodman, who described the assailant as a Hispanic male with a white tank top and tattoos. Goodman agreed to participate at an identification through a one-way mirror at the police station. Officer Davis admonished Goodman regarding identifications, and Goodman identified defendant as the assailant. Officer Davis believed defendant was wearing handcuffs when Goodman identified him. Asked what he recognized about defendant, Goodman said that defendant ...