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The People v. Zackery Prunty

March 26, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ZACKERY PRUNTY, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F07981) APPEAL from a judgment of the Superior Court of Sacramento County, Marjorie Koller, Judge.

The opinion of the court was delivered by: Robie , Acting P. J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Affirmed.

Confronted by a person he perceived to be a rival Sureno gang member, defendant Zackery Prunty, an admitted Norteno gang member, pulled a gun and fired six shots, striking and injuring his perceived rival and another person. A jury found defendant guilty of attempted voluntary manslaughter as a lesser included offense of attempted murder and of assault with a firearm and found true various enhancement allegations, including criminal street gang enhancement allegations under Penal Code*fn2 section 186.22.

On appeal, defendant contends there was insufficient evidence the Nortenos qualify as a criminal street gang for purposes of the gang enhancements.*fn3 In support of his argument, defendant relies on People v. Williams (2008) 167 Cal.App.4th 983 for the proposition that where a larger group -- like the Nortenos -- consists of different, smaller subsets, the larger group cannot be treated as a criminal street gang for purposes of section 186.22 unless there is evidence of collaborative activities or collective organizational structure between the subsets. As we explain, to the extent Williams can be understood to support this proposition, we disagree with Williams on this point because there is nothing in the statute that requires such evidence. Here, even if it could be found that defendant was a member of a smaller subset of the Nortenos affiliated with his neighborhood, the evidence was sufficient for the jury to find that the Nortenos as a whole qualify as a criminal street gang within the meaning of section 186.22, even without evidence of collaborative activities or collective organizational structure between the various Norteno subsets. Accordingly, we will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

One evening in November 2010, Gustavo Manzo went to a restaurant in midtown Sacramento with his girlfriend and her little brothers to get something to eat. He was wearing an L.A. Dodgers cap. As they were walking up to the restaurant, two guys approached them and "started talking like mess." One of the guys, later identified as defendant, was wearing a red checkered jacket. He asked Manzo where Manzo was from and said, "fuck a Skrap, 916." Skrap is a derogatory term Norteno gang members use for Sureno gang members. In return, Manzo called defendant a "Buster" -- a derogatory term for a Norteno gang member. Defendant's companion, later identified as Emilio Chacon, tried to get defendant to leave, but defendant kept saying, "this is Norte, fuck a Skrap, 916." As defendant and Chacon eventually started backing away, Manzo took a couple of steps toward them. Defendant drew a gun and fired six times. Manzo tried to run but was struck in the buttocks with a bullet. One of Manzo's girlfriend's brothers was hit in the leg.

Defendant was charged with the attempted murder of Manzo and assault with a firearm on Manzo's girlfriend's brother. Various enhancements were also charged, including criminal street gang enhancements under section 186.22, subdivision (b)(1). At trial, the People's gang expert testified that both defendant and Chacon were Norteno gang members and that the shooting would benefit the Nortenos by making them look stronger. Defendant's theory at trial was that he acted in self-defense.

The jury found defendant guilty of attempted voluntary manslaughter as a lesser included offense of attempted murder and of assault with a firearm and found the various enhancement allegations true. The trial court sentenced defendant to an aggregate prison term of 32 years. Defendant timely appealed.

DISCUSSION

I Ineffective Assistance Of Counsel

Defendant contends his trial attorney provided ineffective assistance of counsel because there was evidence defendant was drunk when he committed the shooting but his attorney did not request an instruction on how the jury could consider defendant's voluntary intoxication in determining whether he had the specific intent required for attempted murder or attempted voluntary manslaughter. We find no merit in this argument.

"To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (People v. Lewis (1990) 50 Cal.3d 262, 288.) When "the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged," "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal." (People v. Pope (1979) 23 Cal.3d 412, 426.)

Citing In re Cordero (1988) 46 Cal.3d 161, 189, defendant first asserts that "effective assistance includes a duty to prepare and request all instructions applicable to the case." In effect, defendant suggests that because a voluntary intoxication instruction would have been applicable here, his trial attorney rendered ineffective assistance by failing to prepare and request such an instruction. But Cordero held no such thing. What the court in Cordero held was that "[a]dequate representation requires an attorney to research ' "carefully all defenses of . . . law that may be available to the defendant," ' " and "counsel's duty 'includes careful preparation of and request for all instructions which in his judgment are necessary to explain all of the legal theories upon which his defense rests.' " (Ibid.) Contrary to ...


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