(Super. Ct. No. SF113131A)
The opinion of the court was delivered by: Duarte , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Michael Mau, a member of the South Side Tracy subset of the Norteno street gang, was thrown out of a nightclub for fighting. Moments later, he fired a handgun through the door of the nightclub, killing one person and injuring six.
A jury convicted defendant of second degree murder, six counts of attempted murder, and shooting into an occupied building, all with enhancements for benefitting a gang and personal use of a firearm causing death or great bodily injury. Defendant was also convicted of various firearm offenses and being an active gang participant. He was sentenced to 254 years and 8 months to life in prison.
On appeal, defendant does not challenge his convictions on the substantive offenses, but limits his contentions to issues involving the gang allegations. He contends there is insufficient evidence to support the gang enhancements, and also that he received ineffective assistance of counsel based on trial counsel's failure to object to the gang expert (1) offering an opinion on the ultimate fact or (2) recounting 29 incidents of defendant's contact with law enforcement.
Defendant also raises three sentencing errors--the People concede error on two. Defendant and the People agree that it was error to impose a 10-year gang enhancement on his murder count and on the charge of shooting at an occupied building. Defendant further contends the trial court erred in calculating his sentence on count VIII--shooting at an occupied building.
We shall modify defendant's sentence and otherwise affirm. As we will explain, sufficient evidence supports the gang enhancements and defendant did not receive ineffective assistance of counsel. We agree with the parties regarding the two sentencing errors and shall affirm the calculation of defendant's sentence on count VIII.
Defendant and Others at the Shooting
Defendant is a member of the South Side Tracy Norteno criminal street gang. On the night of October 9, 2009, defendant gathered at a gang member's house with several friends, including fellow gang members Mark Garcia and Johnny Martinez. Defendant lifted his shirt and showed Garcia the gun in his waistband. Defendant said, "I got something for somebody, they get crazy." Garcia interpreted this statement to mean, "If something happens, this is what's gonna protect us tonight." Unbeknownst to defendant, Garcia was working as a police informant.
After 10:00 p.m., defendant, Garcia, and Martinez went to Amore's, a restaurant that turned into a nightclub with a DJ after dinner. Amore's was the scene of the shooting.
There was a group at Amore's celebrating a birthday. That group included Naim Bey, who was killed in the shooting, Raul Barajas, who was shot in the ankle, and Diocelina Morales, who was shot in the buttocks.
Also at Amore's that night was a group associated with the city of Hayward.*fn1 This group included Jeffrey Manglona and Antonio Cabral. Although Manglona and Cabral were directly involved in the fight that preceded the shooting, no one in the Hayward group was injured in the shooting.
Several of defendant's friends and acquaintances were gathered at Amore's that night. Isaac Gonzalez arrived with Hector Virgen. Virgen was involved in the initial confrontation and Gonzalez was shot in his little finger. Carlos Santana was with his brother Alfred; they both knew defendant, Garcia and Martinez. Carlos was shot in the leg.*fn2 Kenny Thomas, who knew defendant, came with Steven Castro. Thomas was shot in the ankle. Castro was shot in the thigh and suffered nerve damage as a result.
The Fights and the Shooting
A surveillance camera at Amore's showed defendant raising his shirt to show Thomas something. Although Thomas denied it was a gun, during the trial he told someone that it was a gun. Asked why he did not say anything, Thomas explained that he could not say anything because he knew "all these cats, they all know where I live." The camera also caught defendant talking to Garcia and making a hand gesture like a gun after Manglona walked by.
Upstairs at Amore's, Manglona and Virgen got into an argument and punched each other. Security broke up the fight.
The altercation restarted on the stairs and downstairs on the dance floor. Words were exchanged and punches were thrown. On one side, Manglona and Cabral, of the Hayward group, threw punches, some of which struck defendant. Several witnesses described at least one punch to defendant as a "sucker punch" or "cheap shot." Defendant, Garcia, and Martinez were all fighting.
Security broke up the fight and escorted defendant, Garcia, and Martinez out the side door. As defendant was being ejected, he made a hand motion to the Hayward group to come out. Moments later, while outside, defendant pulled out a gun and fired multiple times through the door.
A nearby police officer heard the shots. The police arrived at a chaotic scene; people were screaming and running in all directions. There was blood "everywhere" inside Amore's. Bey was unresponsive on the floor with a fatal gunshot wound to his head. The police found more victims. There were bullet holes in the door and casings from a nine-millimeter handgun in the parking lot.
Garcia called his handler, Detective Ramirez, and told him about the shooting. Ramirez instructed Garcia to find the gun. Later, Garcia called the police and told them that defendant was in a motel in Manteca. Defendant was arrested in Manteca when he went out for breakfast the next morning. When Garcia visited defendant in jail and asked where the gun was, defendant said someone had gotten rid of it.*fn3
Michael Richards, a detective in the gang unit of the Tracy Police Department, testified for the People as a gang expert. He testified that South Side Tracy was a subset of the Norteno criminal street gang. There were about 400 Nortenos in Tracy and about 50 South Side Tracy Nortenos. South Side Tracy Nortenos associated with the color red, the number 14, and the "huelga bird," a symbol of the United Farm Workers. The principal activities of South Side Tracy Nortenos were murder, assault with a deadly weapon, possession of firearms, sales of narcotics, robberies, carjackings, and theft. To show the gang embraced a pattern of criminal activity, Richards testified about two Nortenos in Tracy that had recent gang-related felony convictions.
Richards opined that defendant was an active South Side Tracy Norteno. His opinion was based on defendant's prior contacts with law enforcement, his associating with gang members, his past pattern of activity, his clothing, and his admissions. In addition, defendant had gang ...