P. v. Valdez CA4/2

• Court: California Court of Appeal
• Decided: April 25, 2013
• Docket: E053309
• Status: Unpublished

Opinion

Filed 4/25/13 P. v. Valdez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E053309

v. (Super.Ct.No. RIF127749)

MARTIN LEYVA VALDEZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach and

Helios (Joe) Hernandez, Judges.* Affirmed with directions.

Patricia Ihara, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, and Peter Quon, Jr., and

Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

* Judge Zellerbach presided over the first trial, which resulted in guilty verdicts on charges of assault with a firearm (count 5) and robbery (count 6). Judge Hernandez presided over the second trial, which resulted in guilty verdicts on charges of murder (count 1) and attempted murder (counts 2-4).

1 On Christmas Day 2005, defendant Martin Leyva Valdez fired four slug rounds

from a shotgun through the front door of a house. He killed an 11-year-old boy. He

missed the boy‟s parents and brother, who watched the boy die.

Defendant was a member of the Casa Blanca gang. The night before — on

Christmas Eve — a member of the Hillside gang had shot and injured several members of

Casa Blanca. Defendant evidently intended to retaliate by firing into the house of the

Hillside shooter. By mistake, however, he fired into a very similar house just three doors

away down the street.

While making his getaway, defendant used the shotgun to menace a potential

witness. There was also evidence that defendant forcibly stole a carton of beer from a

stranger.

Defendant was charged with:

Count 1: Murder (Pen. Code, § 187, subd. (a)), with a gang special circumstance

(Pen. Code, § 190.2, subd. (a)(22)) and with gang (Pen. Code, § 186.22, subd. (b)) and

firearm (Pen. Code, § 12022.53, subd. (d)) enhancements.

Counts 2, 3, and 4: Attempted murder (Pen. Code, §§ 187, subd. (a), 664), with

gang and firearm enhancements.

Count 5: Assault with a firearm (Pen. Code, § 245, subd. (a)(2)), with a gang

enhancement.

Count 6: Robbery. (Pen. Code, § 211.)

2 In the first guilt trial, the jury was unable to reach a verdict on counts 1-4 (murder

and attempted murder). However, it found defendant guilty on counts 5-6 (assault with a

firearm and robbery), and it found the gang enhancement on count 5 true.

In the second guilt trial, the jury found defendant guilty on counts 1-4; it found that

the murder was first degree, and that the attempted murders were willful, deliberate, and

premeditated. It found all related special circumstances and enhancements true.

In the penalty phase, the jury returned a verdict of life without parole.

Defendant was sentenced to life without parole, plus 70 years to life, plus 9 years,

along with the usual fines and fees.

Defendant now contends:

1. There was insufficient evidence of intent to kill to support the murder and

attempted murder convictions.

2. There was insufficient evidence to support the gang enhancement on count 5

(assault with a firearm).

3. The trial court violated Miranda2 by admitting evidence that, in a booking

interview, defendant claimed a gang.

4. The prosecutor violated due process by taking conflicting positions and

presenting contradictory evidence concerning the booking interview.

2 Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].

3 5. In the first trial, the trial court erred by admitting photos found on MySpace,

because they were not properly authenticated.

6. In the second trial, defense counsel rendered ineffective assistance by failing to

object to the MySpace photos.

7. Defense counsel rendered ineffective assistance by failing to object to evidence

of certain crimes committed by and against other members of Casa Blanca.

8. Defense counsel rendered ineffective assistance by failing to request

CALCRIM No. 375, regarding evidence of uncharged crimes, and CALCRIM No. 1403,

regarding the limited purpose of gang evidence.

9. The abstract of judgment erroneously reflects a parole revocation restitution

fine.

Aside from the error in the abstract of judgment — which the People concede —

we find no error. Hence, we will affirm the judgment, but we will direct the trial court

clerk to correct the abstract.

I

FACTUAL BACKGROUND

A. Prosecution Evidence.

1. Gang evidence.

Casa Blanca is a gang that claims the Casa Blanca neighborhood of Riverside,

including Villegas Park. It is also known as “Casa Blanca Rifa” or “Riva.” Evans Street

4 and Fern Street are cliques within Casa Blanca; even though they are part of the same

gang, there is a feud between them.

The primary activities of Casa Blanca are violent assaults, including murders and

attempted murders. A pattern of gang activity was shown by the following predicate

offenses:

1. In April 2001, Carlos Deharo, a member of Evans Street, shot a member of

Fern Street. He was convicted of assault with a deadly weapon.

2. In March 2002, Abacuc Guevera, a member of Fern Street, shot and killed two

people, including a member of Evans Street. He was convicted of murder.

3. In August 2003, Michael Robles, a member of Evans Street, fired shots at

people leaving a party. He was convicted on multiple counts of attempted murder.

In April 2002, a police officer encountered defendant in Villegas Park. He

admitted to her that he belonged to Casa Blanca.

Around December 2002, defendant got Casa Blanca tattoos on his arms.

In June 2003, defendant told his probation officer that he “claimed” Casa Blanca.

He added that he did not claim any particular clique because he had family members on

both sides.

Starting sometime in 2004, defendant was out of the area — first in Butte County,

and then in South Dakota — training to become a firefighter. In August 2005, he

returned to Riverside.

5 In December 2005, when defendant was booked for the current crimes, he was

asked about his gang affiliation; he replied that he was an affiliate of Casa Blanca.

A gang expert concluded that defendant was a member of Casa Blanca.

2. Christmas Eve: the prior shooting in Hillside.

Casa Blanca was at war with another gang called Hillside.

On December 24, 2005, there was party in the backyard of a home in the Hillside

neighborhood. The guests included Alejandro (or Alex) Moreno, a member of Hillside.

They also included Michael Rangel, a member of Casa Blanca.

When Rangel arrived, Moreno asked him, “Where are you from?” Rangel

answered, “Casa Blanca.” Moreno yelled, “Hillside.” They started fistfighting. Then

Moreno pulled out a gun and started shooting.3 Rangel was shot in the leg and scrotum.

Rangel‟s friends, Francisco (or Frank) Gonzales, Gabriel Halcon, and Randy Lozano,

were also hit. In the opinion of a gang expert, Gonzales, Halcon, and Lozano were all

members or associates of Casa Blanca. Moreno was eventually convicted on four counts

of attempted murder.

Defendant and Rangel were very close friends. Defendant went to the hospital and

talked to Rangel‟s family to find out how he was. On Christmas Day, in the wee hours,

Rangel was discharged.

3 At the second trial, there was evidence that there was another shooter in addition to Moreno.

6 3. Christmas day: the robbery at the market.

On December 25, 2005, around 4:40 p.m., one Jorge (or George) Perez bought a

carton of beer at a market in the Casa Blanca neighborhood. Outside, in the parking lot, a

man punched him, took the beer, and drove off in a black car.4

The owner of the store recognized the robber as a regular customer. He wrote

down the license number of the black car. Defendant owned a black Lincoln with tinted

windows. The number the store owner wrote down was only one number off from

defendant‟s license number. In a photo lineup, the store owner identified defendant as the

robber. An employee of the store likewise identified defendant.

4. Christmas night: the shooting at the Miranda house.

Moreno lived at 6276 Antioch Avenue. Meanwhile, the Miranda family — Oscar,

Jacqueline, 11-year old Max, and 10-year-old Joban — lived at 6330 Antioch. Both

houses appeared similar, from the outside, and they were separated by just two other

houses.

A person approaching the Miranda house would have seen, from left to right: the

window of the front bedroom; the two high windows of a bathroom; roughly in the

middle of the house, the front door; and then the window of the kitchen and dining area.

The garage, on the far right, projected out from the rest of the house, blocking most of the

dining area.

4 In the first trial, witnesses specified that the black car was a Lincoln.

7 On December 25, 2005, around 8:00 p.m., someone armed with a 12-gauge

shotgun fired four slug rounds through the closed front door.

Inside the front door was a hallway that ran to the rear of the house. When the

shooting started, Max was in the front bathroom, on the left; the rest of the family was in

the living room, on the right, behind the kitchen. Max ran toward his parents. As he was

crossing the hallway, another shot hit him in the chest. He died within seconds.

Slug rounds will penetrate walls and keep going. Two rounds were recovered

from the walls of the house. The other two rounds exited through a rear window and

could not be found. From top to bottom, the entrance holes in the door were only about a

foot and a half apart.

Meanwhile, at the house across the street, three children were out in the garage; the

garage door was open. They saw a black car stopped in the middle of the street. It had

tinted windows, and its headlights were off. The children heard shots. Then the car

drove away. They could see that, over at the Miranda house, the bathroom and kitchen

lights were on.

Defendant‟s cell phone records showed that, at 7:58 p.m., he was near his own

home. At 8:07 p.m., he was near the Miranda home but headed back toward his own

home.

In the opinion of a gang expert, the shooting was committed in retaliation for

Moreno‟s Christmas Eve shooting of Rangel and other Casa Blanca members and thus for

the benefit of Casa Blanca.

8 5. Christmas night: the postshooting assault.

Jesse (or Jess) Valenciano lived on Antioch. On December 25, 2005, as he and his

wife were in their pickup truck nearing their home, he heard gunshots. To turn left onto

Antioch, he had to go around a black Lincoln sedan with tinted windows that was stopped

on Antioch, at the stop sign. The driver of the black Lincoln rolled down his window and

said, “[W]here you from, homeboy?” Valenciano just smirked, because he “d[id]n‟t

relate to anything like that.”

The driver sat up, however, and Valenciano could see the barrel of a shotgun that

he was holding. Next, Valenciano heard the sound of the shotgun being racked.

Valenciano “hit the gas”; looking back, he saw the black sedan turn and leave the scene.

He went home and called 911.

In a photo lineup, Valenciano identified defendant as the driver with the shotgun.

Later, he also identified defendant‟s car. At trial, he once again identified defendant as

the driver.

6. Christmas night: the postshooting gathering.

On Christmas night, a number of Rangel‟s friends gathered at his house. One was

Albert Magallon, the godson of Rangel‟s father.

According to Magallon, sometime around 9:00 or 9:30 p.m., defendant arrived.

Meanwhile, Magallon noticed a black car parked outside, which had not been there

earlier.

9 Defendant indicated that he had gone up to a door or a house and committed a

shooting. He made a gesture of holding “a shotgun or some kind of rifle.” He spoke with

“bravado . . . , like he was proud of what he had just done.” He appeared to be drunk.5

Magallon got the impression that defendant was from the Casa Blanca gang.6

On December 29, 2005, gunshot residue was found on the gearshift of defendant‟s

black Lincoln. It could have been transferred there from the driver‟s hand.

B. Defense Evidence.

1. Evidence introduced in both trials.

At least until 2002 or 2003, defendant and Moreno were friends. Thus, defendant

had been to Moreno‟s house many times.

The defense called its own gang expert.7 He testified that Casa Blanca was not a

gang; it was a merely a neighborhood in which there were several gangs, including Evans

Street and Fern Street. Moreover, in his opinion, the shooting was not committed for the

benefit of a gang.8 Killing an 11-year-old boy would actually make a gang lose respect.

5 Earlier, at 8:08 p.m., defendant had talked to a cousin on the phone; he sounded “[n]ormal,” not drunk. 6 After Magallon learned that an 11-year-old boy had been killed, he called the police anonymously and reported what he had observed. Based on the anonymous caller‟s voice, Rangel‟s mother identified him as Magallon; in exchange, Rangel received a reduced sentence on pending robbery and other charges. 7 In the first trial, the defense gang expert was Enrique Tira. In the second trial, it was Randal Hecht. 8 In the first trial, the expert added that the shooting was a drive-by shooting, which would reflect negatively on a gang. [footnote continued on next page]

10 2. Defendant’s testimony in the first trial.

In the first trial, defendant took the stand. He testified that, on Christmas day, he

was drinking; thus, there were gaps in his memory. He admitted taking the beer from the

customer at the market. He also admitted firing a shotgun at what he thought was

Moreno‟s house. He testified, however, that he only intended to scare Moreno.

Just the day before, an acquaintance had insisted that defendant take the shotgun as

“protection,” because defendant was going to Moreno Valley. Defendant claimed he did

not know what type of ammunition was in it.

Defendant denied being a gang member. He testified that he got a “Casa Blanca”

tattoo to show pride in his neighborhood.

When he was booked, defendant testified, the booking officer did not ask him if he

was affiliated with a gang. Rather, the booking officer asked, “Do you want me to put

you . . . with the people from Hillside or the people from Casa Blanca?” Because he was

accused of a shooting in Hillside, he asked to be put with the people from Casa Blanca.

3. Additional evidence in the first trial.

As of December 2005, Angelica Galceran was defendant‟s girlfriend. She testified

that she saw no indication that defendant was in a gang. However, she added that, as far

as she knew, he had no friends.

[footnote continued from previous page]

In the second trial, the expert added that the shooting could have been a “personal vendetta,” because defendant and Rangel were close friends.

11 Leah Hernandez, another one of defendant‟s girlfriends and the mother of his

child, similarly saw no indication that defendant was a gang member. She agreed,

however, that if he was a gang member, he would not necessarily tell her, because she

was “against gang membership.”

II

EVIDENCE OF INTENT TO KILL

Defendant contends that, at the second trial, there was insufficient evidence of

intent to kill to support his murder and attempted murder convictions.

“In reviewing a criminal conviction challenged as lacking evidentiary support,

„“the court must review the whole record in the light most favorable to the judgment

below to determine whether it discloses substantial evidence — that is, evidence which is

reasonable, credible, and of solid value — such that a reasonable trier of fact could find

the defendant guilty beyond a reasonable doubt.” [Citation.]‟ [Citation.]” (People v.

Streeter (2012) 54 Cal.4th 205, 241.)

“We „“„presume in support of the judgment the existence of every fact the trier

could reasonably deduce from the evidence.‟” [Citation.]‟ [Citation.]” (People v. Clark

(2011) 52 Cal.4th 856, 943.) “„Conflicts and even testimony which is subject to

justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive

province of the trial judge or jury to determine the credibility of a witness and the truth or

falsity of the facts upon which a determination depends.‟ [Citation.] Unless it describes

facts or events that are physically impossible or inherently improbable, the testimony of a

12 single witness is sufficient to support a conviction. [Citation.]” (People v. Elliott (2012)

53 Cal.4th 535, 585.)

“When the circumstances reasonably justify the jury‟s findings, a reviewing court‟s

opinion that the circumstances might also be reasonably reconciled with contrary findings

does not warrant reversal of the judgment. [Citation.]” (People v. Mendoza (2011) 52

Cal.4th 1056, 1069.)

Subject to exceptions that do not apply here, first degree murder requires the intent

to kill. (Pen. Code, § 189; People v. Whisenhunt (2008) 44 Cal.4th 174, 201.) Likewise,

“„“[t]he crime of attempted murder requires a specific intent to kill . . . [.]” [Citation.]‟

[Citation.]” (People v. Gonzalez (2012) 54 Cal.4th 643, 664.) And finally, the gang

special circumstance also required the intent to kill. (Pen. Code, § 190.2, subd. (a)(22).)

An intent to kill exists when “the assailant either desires the victim‟s death, or

knows to a substantial certainty that the victim‟s death will occur. [Citation.]” (People v.

Booker (2011) 51 Cal.4th 141, 178.) “[I]ntent to kill . . . may in many cases be inferred

from the defendant‟s acts and the circumstances of the crime. [Citation.]” (People v.

Smith (2005) 37 Cal.4th 733, 741.) “[E]vidence of motive is often probative of intent to

kill.” (Ibid.)

There was ample evidence that defendant intended to kill at least one person. His

obvious motivation was to retaliate against Moreno for the Christmas Eve shooting. It

was Christmas night, when people are extremely likely to be at home. A van was parked

in the driveway, and lights in the house were on, confirming that someone was inside.

13 Defendant used slug rounds, which can penetrate walls. An expert testified that slug

rounds create a “horrendous wound channel” and thus increase the chances of death by

blood loss, even when they hit an otherwise nonvital area.

Defendant cites the prosecution gang expert‟s testimony that gang retaliation may

involve either the same amount of force or greater force; defendant then argues that, as no

one had been killed in the Christmas Eve shooting, “retaliation did not necessarily require

that anyone be killed in return.” This misapplies the standard of review, which requires

us to draw all reasonable inferences in favor of the judgment. In the Christmas Eve

shooting, Moreno had fired multiple shots, hitting Rangel in the scrotum and the leg.

Defendant could reasonably believe that Moreno was attempting to kill, but missed. If so,

retaliation with equal force would mean attempting to kill.

Alternatively, the jury could infer that defendant actually chose to retaliate with

greater force. Unlike Moreno, who engaged with his enemies in a fistfight before

shooting at them, defendant snuck up on his victims. Also, unlike Moreno, who used a

handgun, defendant used a shotgun, with powerful ammunition.

Defendant also argues that intent to kill requires a “„substantial certainty‟ that a

person would be killed . . . .” Not so. As already mentioned (and as defendant himself

notes elsewhere in his brief), it requires that “the assailant either desires the victim‟s

death, or knows to a substantial certainty that the victim‟s death will occur. [Citation.]”

(People v. Booker, supra, 51 Cal.4th at p. 178, italics added.) Here, if defendant just

wanted to scare Moreno, he could have fired up toward the ceiling or down toward the

14 floor; he could also have fired into the garage, to his right. Instead, he fired straight

through the door, into the living area, roughly at level height. Admittedly, there was no

way he could be substantially certain that he would kill someone. At the same time,

however, there was no way he could be substantially certain that he would not kill

someone. Thus, the jury could reasonably conclude that he did not merely want to scare

someone; he hoped and desired to kill someone.

Defendant therefore also argues that, even if there was sufficient evidence that he

intended to kill one person, there was insufficient evidence that he intended to kill four

people. However, he chose to fire four separate rounds. This was evidence that he hoped

and desired to kill four people.

As the People argue, this case resembles People v. Vang (2001) 87 Cal.App.4th

554. There, two shooters in a car, one armed with an assault rifle and one armed with a

shotgun, fired at a duplex at least 50 times, leaving one injured victim and one dead

victim. An occupant who had been standing out in front of the duplex was miraculously

unhurt; two other occupants were likewise uninjured. (Id. at p. 558.) The shooters had

mistaken the duplex for the one next door, where a rival gang member had lived until

recently. (Id. at pp. 559-560, 562.)

On appeal, the two defendants conceded that the evidence showed that they

intended to kill the uninjured occupant who was outside, but they argued that it did not

support attempted murder convictions with respect to the two uninjured occupants who

were inside. (People v. Vang, supra, 87 Cal.App.4th at p. 563.) The appellate court

15 noted, “Defendants‟ argument might have more force if only a single shot had been fired

in the direction of [the occupant who was outside].” (Id. at p. 564, fn. omitted.) It held,

however: “The jury drew a reasonable inference, in light of the placement of the shots,

the number of shots, and the use of high-powered, wall-piercing weapons, that defendants

harbored a specific intent to kill every living being within the residences they shot up.

[Citations.] . . . [D]efendants manifested a deliberate intention to unlawfully take the

lives of others when they fired high-powered, wall-piercing, firearms at [an] inhabited

dwelling[]. The fact they could not see all of their victims did not somehow negate their

express malice or intent to kill as to those victims who were present and in harm‟s way,

but fortuitously were not killed.” (Id. at pp. 563-564.)

Defendant tries to distinguish Vang, arguing that he fired slugs — not shot — and

all in roughly the same direction. Nevertheless, as in Vang, it is significant that he fired

more than once, which supports an inference that he desired to kill more than one person.

(See People v. McCloud (2012) 211 Cal.App.4th 788, 805-807 [defendant who fired 10

shots into group of over 400 people, killing two, could be convicted on two counts of

murder and not more than eight counts of attempted murder]; cf. People v. Perez (2010)

50 Cal.4th 222, 224-225 [defendant who fired one shot into group of eight people, hitting

one, could not be convicted of more than one count of attempted murder].) Also as in

Vang, he fired high-powered, wall-piercing ammunition at an inhabited dwelling.

Defendant claims that the evidence showed that he was a “skilled” shooter who

aimed “at a single spot on the front door [citation], and placed his shots close together in

16 the targeted area.” He argues that this “refuted any inference that [he] intended to kill

everyone in the house.” (Fn. omitted.) This assumes that he believed that the occupants

were spread out, rather than near each other. However, it was just as likely that they were

collected together somewhere (particularly on Christmas night); indeed, until moments

earlier, all four of them had in fact been together in the living room. At oral argument,

defendant‟s counsel conceded that, if four people had been hit, there would be sufficient

evidence of intent to kill four people. However, as defendant could not know for certain

whether he would or would not hit anybody, his intent necessarily was the same no matter

how many people were hit. Defendant fired at the door, in the middle of the house; as the

People note, this is symbolically the “heart” of the house.

More generally, this argument assumes that defendant actually thought about

where exactly the occupants might be. The jury, however, was not required to assume

this. Defendant repeatedly uses the example of a shooter who fires into a glass house and

who carefully avoids targeting individuals he can see inside. At the risk of stating the

obvious, however, the house was not glass, and defendant could not see inside. He did

not necessarily even have a mental picture of the inside. While there was evidence that

the exterior of Moreno‟s house resembled the exterior of the victims‟ house, there was no

evidence that the interiors of the two houses were similar.

We therefore conclude that there was sufficient evidence that defendant fired each

shot with the intent to kill a person, and we reject defendant‟s arguments to the contrary.

17 III

EVIDENCE THAT THE ASSAULT WITH A FIREARM WAS GANG RELATED

Defendant contends that, at the first trial, there was insufficient evidence to

support the gang enhancement on count 5 (assault with a firearm).

A. Additional Factual and Procedural Background.

At the first trial, the prosecution gang expert testified that the assault on

Valenciano benefited Casa Blanca. He explained that “that type of conduct instills fear

into the community, and therefore, the community is apprehensive to assist law

enforcement or maybe even call the police . . . .”

Valenciano was, in fact, intimidated. He hit the gas and “[s]ped off.” Instead of

going home, however, he stopped in the middle of the block; he explained that

defendant‟s car “was still stopped at the stop sign, and I did not want him or anybody else

to know where I turned into . . . to go to my house.” He did not actually go home until he

saw defendant‟s car turn and leave.

He then called 911; however, he refused to give his name, because he was still

concerned about the safety of his family. The police were able to contact him only

because a witness who had seen the confrontation described his Silverado. Even then, he

was reluctant to give his name or to get involved, because he was concerned about his

family‟s safety. He changed his mind only after the police told him “that an 11-year-old

boy was shot.”

18 B. Analysis.

A gang enhancement requires that the defendant commit the underlying felony

both (1) “for the benefit of, at the direction of, or in association with any criminal street

gang” and (2) “with the specific intent to promote, further, or assist in any criminal

conduct by gang members . . . .” (Pen. Code, § 186.22, subd. (b)(1).) “[E]xpert

testimony is admissible on the issue of „“whether and how a crime was committed to

benefit or promote a gang.”‟ [Citations.]” (People v. Williams (2009) 170 Cal.App.4th

587, 621 [Fourth Dist., Div. Two].)

Here, defendant had just committed a shooting and potential multiple murder.

There was massive evidence that the shooting was gang motivated, to retaliate for the

Christmas Eve shooting. Successfully completing the retaliatory shooting — which

meant not only committing it, but also getting away with it — would benefit defendant‟s

gang. Moreover, it is almost tautological that getting away with it would “promote,

further, or assist in” the shooting itself. (See People v. Galvez (2011) 195 Cal.App.4th

1253, 1261 [stealing cell phone benefited gang where it prevented witness from reporting

earlier crime to police].)

Defendant notes that, when he said, “[W]here you from, homeboy?,” Valenciano

smirked; defendant argues that, at that point, Valenciano was not intimidated. The crime,

however, was not asking Valenciano where he was from; it was assaulting Valenciano

with a shotgun. As noted, the assault intimidated Valenciano very effectively.

19 Defendant also notes that he did not call out any gang name, throw any gang signs,

or display any gang clothing; thus, Valenciano had no way of knowing what gang

defendant was from. Indeed, as the assault took place in Hillside territory, Valenciano

might well have assumed that defendant was from Hillside. Certainly this is not a case in

which defendant was trying to intimidate a random passerby to gain fear and respect for a

particular gang. However, a jury could reasonably conclude that he was trying to

intimidate a witness. Moreover, by asking “[W]here you from, homeboy?,” defendant did

indicate that he was affiliated with some gang. Under these circumstances, it does not

matter that the witness did not know what gang. All that mattered was that defendant had

committed the shooting for the benefit of his gang, and thus, witness intimidation by

means of assault also benefited his gang.

Finally, defendant argues that Valenciano “likely” initiated the confrontation, by

“mak[ing] a rude gesture . . . or yell[ing] at him for taking up the left half of the street.”

This is sheer speculation. It is purportedly based on two facts: (1) Valenciano had to

drive slowly to make the tight turn around defendant‟s car, and (2) a witness who saw the

confrontation reported hearing “angry, like yelling” voices coming from the two vehicles.

Valenciano‟s account, however, did not include any yelling. The jury could reasonably

conclude that he was not rude or angry.

Separately and alternatively, even assuming that Valenciano did initiate the

confrontation, the jury could still find that defendant assaulted him to benefit his gang.

After committing the shooting, and while still at the scene, the last thing defendant

20 needed was to get involved in a road-rage incident. The jury could reasonably conclude

that he assaulted Valenciano to cut the confrontation short while simultaneously

intimidating Valenciano, the better to make a successful getaway.

Finally, defendant argues that “substantial evidence must undergird the expert‟s

opinion . . . .” However, there was “an underlying evidentiary foundation” for the

expert‟s testimony. (People v. Ochoa (2009) 179 Cal.App.4th 650, 659.)

We therefore conclude that there was sufficient evidence to support the gang

enhancement to count 5.

IV

EVIDENCE THAT, IN A BOOKING INTERVIEW,

DEFENDANT ADMITTED BEING A GANG MEMBER

Defendant contends that the trial court erred in both trials by overruling his

Miranda objection to evidence that he claimed a gang during a booking interview.

Defendant also contends that the prosecutor violated due process by taking

conflicting positions and presenting contradictory evidence concerning the booking

interview.

A. First Trial: Motion to Suppress.

1. Additional factual and procedural background.

Before the first trial, defendant filed a written motion on Miranda grounds to

suppress his statement, made in the booking interview, that he was a member of Casa

Blanca. The prosecution filed a written opposition, arguing that the statement was within

21 the booking question exception to Miranda. Accordingly, the trial court held a hearing

pursuant to Evidence Code section 402.

The only witness at the hearing was Deputy Donald Byrd. Deputy Byrd testified

that he interviewed arrestees at the Riverside County jail, including defendant, for

classification purposes. Pursuant to the standard classification questionnaire, all arrestees

were asked about their gang affiliation. That question was included so fellow gang

members could be housed together and rival gang members could be housed separately,

for their own protection. Deputy Byrd admitted, however, that arresting officers can get

access to a classification questionnaire and can use it to identify an arrestee as a gang

member.

Deputy Byrd would have had a copy of defendant‟s “receiving sheet,” which

would have indicated the “type of arrest.” Defendant‟s receiving sheet indicated that he

was charged with murder and assault with a deadly weapon; however, it did not mention

any gang charges or allegations.

But Deputy Byrd also would have had — and would have read — defendant‟s

“[p]robable [c]ause [s]tatement,” which is “a synopsis of what happened or why [he] got

arrested.” Defendant‟s probable cause statement included an anonymous tip that the

shooting had been carried out to retaliate for a shooting of Casa Blanca gang members.

After hearing argument, the trial court ruled that defendant‟s statement was

admissible.

22 2. Analysis.

The controlling case is a recent case decided by this court, People v. Gomez (2011)

192 Cal.App.4th 609. In Gomez, much as in this case, the trial court denied the

defendant‟s motion to suppress his statement during his booking interview, in which he

admitted being an active member of a particular gang and gave his moniker. (Id. at

pp. 615, 625.) The prosecutor asserted that every arrestee was routinely asked about gang

affiliation, for safety reasons. (Id. at p. 625.) At trial, the officer who had interviewed the

defendant confirmed that he asked such questions routinely, for housing and safety

purposes, and that he did not investigate the incident that led to any inmate‟s arrest. (Id.

at pp. 626-627.)

We began by stating the applicable standard of review: “When a defendant

challenges the admissibility of defendant‟s postarrest statements on the ground they were

elicited in violation of Miranda, the People have the burden of proving by a

preponderance of the evidence that the statements were not the product of a Miranda

violation. [Citations.] In reviewing a trial court‟s ruling on a motion to suppress based

upon a violation of Miranda, „“we accept the trial court‟s resolution of disputed facts and

inferences, and its evaluations of credibility, if supported by substantial evidence. We

independently determine from the undisputed facts and the facts properly found by the

trial court whether the challenged statement was illegally obtained.” [Citation.]‟

[Citation.]” (People v. Gomez, supra, 192 Cal.App.4th at p. 627.)

23 We noted that the United States Supreme Court had recognized a “routine booking

question exception to Miranda” (People v. Gomez, supra, 192 Cal.App.4th at p. 630),

which applies to responses “to questions „reasonably related to the police‟s administrative

concerns.‟” (Id. at p. 634, italics omitted; see also id. at p. 629.) “The fact that the

information gathered from routine booking questions turns out to be incriminating does

not, by itself, affect the applicability of the exception. [Citations.]” (Id. at p. 629.) We

cautioned, however: “„“Without obtaining a waiver of the suspect‟s Miranda rights, the

police may not ask questions, even during booking, that are designed to elicit

incriminatory admissions.”‟ [Citation.]” (Ibid., fn. omitted.)

We added: “In determining whether a question is within the booking question

exception, courts should carefully scrutinize the facts surrounding the encounter to

determine whether the questions are legitimate booking questions or a pretext for eliciting

incriminating information. [Citation.] Courts have considered several factors, including

the nature of the questions, such as whether they seek merely identifying data necessary

for booking [citations]; the context of the interrogation, such as whether the questions

were asked during a noninvestigative clerical booking process and pursuant to a standard

booking form or questionnaire [citations]; the knowledge and intent of the government

agent asking the questions [citations]; the relationship between the question asked and the

crime the defendant was suspected of committing [citations]; the administrative need for

the information sought [citations]; and any other indications that the questions were

designed, at least in part, to elicit incriminating evidence and merely asked under the

24 guise or pretext of seeking routine biographical information [citations].” (People v.

Gomez, supra, 192 Cal.App.4th at pp. 630-631.)

In the case before us, we concluded: “Whether the administrative purpose is a

mere guise or pretext for questions actually designed to elicit incriminating responses is a

close question. Given the prevalence of gang-related offenses, questions about an

arrestee‟s gang affiliation are, by their nature, more likely to be incriminating than basic

identifying questions about one‟s name, address, and age. . . .

“[However,] we cannot say on this record that the gang-related questions asked of

defendant are outside the booking question exception. The questions appear to have been

asked in a legitimate booking context, by a booking officer uninvolved with the arrest or

investigation of the crimes, pursuant to a standard booking form. . . . [T]he questions

were asked for legitimate, noninvestigatory purposes related to the administration of the

jail and concerns for the security of the inmates and staff. Significantly, there is no

evidence that [the interviewing officer] had any knowledge of the crimes for which

defendant was arrested or was suspected of committing.” (People v. Gomez, supra, 192

Cal.App.4th at pp. 634-635.)

Here, the record before the trial court when it ruled on the motion to suppress

demonstrated that the question about defendant‟s gang affiliation was a legitimate

booking question, rather than a pretext for eliciting incriminating information. Just as in

Gomez itself, the question was asked in a legitimate booking context, pursuant to a

standard booking form, and by a booking officer who was not involved in the

25 investigation of crimes. It was reasonably related to administrative concerns about inmate

housing and safety. Admittedly, unlike in Gomez, there was some question as to whether

the booking officer knew that defendant was suspected of committing a gang-related

crime. Defendant‟s receiving sheet indicated that there were no gang charges or

allegations; however, his probable cause statement included an anonymous tip that the

crime was gang related. In either case, however, Deputy Byrd would have asked the same

question of defendant, just as he did of all arrestees. Thus, in the first trial, the trial court

properly admitted defendant‟s statement.

Separately and alternatively, we also note that, even if the trial court‟s ruling on

the motion in limine was erroneous, the error was harmless. Ultimately, in the first trial,

defendant took the stand and denied being a gang member. Thus, as defendant concedes,

even if his otherwise voluntary statement was obtained in violation of Miranda, it became

admissible for impeachment. (Oregon v. Elstad (1985) 470 U.S. 298, 307-308 [105 S.Ct.

1285, 84 L.Ed.2d 222]; Harris v. New York (1971) 401 U.S. 222, 224-226 [91 S.Ct. 643,

28 L.Ed.2d 1].)

B. Conflicting Positions.

a. Deputy Byrd’s trial testimony.

At the first trial, Deputy Byrd testified (as he had at the section 402 hearing) that

the questions on the classification questionnaire are asked for inmate safety, to make sure

26 that inmates are housed “with people that they‟re compatible with.” He then testified

that, at booking, defendant had admitted being affiliated with Casa Blanca.

b. The defense gang expert’s trial testimony.

The defense gang expert, Enrique Tira, agreed that “jail classification is a housing

safety issue.” “[T]he reason they do the jail classification is so they can keep the . . . rival

gangs[] apart from each other.”

However, Tira added that, in his opinion, when defendant said he was affiliated

with Casa Blanca, he meant he was from the neighborhood Casa Blanca, not the gang

Casa Blanca. Tira explained that there are rival gangs within Casa Blanca, such as Fern

Street and Evans Street. Thus, if defendant was a gang member, for housing purposes, it

would have made more sense to identify him by clique.

On cross-examination, the prosecutor tried to shake Tira‟s opinion on this point.

She asked if Tira would be surprised if the jail housed Fern Street members with Evans

Street members; Tira said he would. The prosecutor also asked whether gang members in

jail would put aside their rivalries and unite by race; Tira said they would not.

c. Deputy Dawley’s trial testimony.

In rebuttal, the prosecution called Deputy Kenneth Dawley. Like Deputy Byrd,

Deputy Dawley worked in the classification unit of the Riverside County jail.

Deputy Dawley agreed that classification questions are asked for purposes of

housing. Contradicting Tira, however, he also testified that there was no jail policy

27 against housing a member of Fern Street with a member of Evans Street. In his opinion,

gang members in jail did put aside their rivalries and unite by race.

Deputy Dawley then testified:

“Q. . . . [Y]ou usually tend to house the Hispanics together, is that right,

regardless of their gang?

“A. Yes.[9]

“Q. Then why do you have them fill out a questionnaire to house them and ask

them about their gang affiliation?

“A. The sheet has a bunch of information on it; like their background, their

experience.

“Q. But . . . if it doesn‟t matter and you house them by their race, then why ask

them all the other questions?

“A. Their experience matters.

“Q. . . . Experience as far as having been in jail before, their charges or what?

“A. Yes, sir.

“Q. Then why not just house them . . . based on that and not by race?

“A. We house them on both issues.

“Q. So which is prioritized? Is it the race or the experience? [¶] . . . [¶]

“[A.] Their experience.” (Italics added.)

9 Deputy Dawley also testified, however, that there is no “policy that . . . inmates of the same race have to be housed together[.]”

28 2. Analysis.

In defendant‟s view, Deputy Dawley contradicted not only the defense gang

expert, Tira, but also the prosecution‟s own witness, Deputy Byrd: “Either [Deputy] Byrd

or [Deputy] Dawley gave false testimony.” Moreover, the prosecutor violated due

process by introducing false testimony and by taking inconsistent positions.

Basically, defendant argues that the prosecution took the position that jail housing

was based on gang affiliation — and introduced Deputy Byrd‟s testimony to that effect —

so it could take advantage of the booking question exception. It then took the position

that jail housing was not based on gang affiliation — and introduced Deputy Dawley‟s

testimony to that effect — to undermine Tira. Finally, in the second trial, it reverted to

the position that jail housing was based on gang affiliation.

Defense counsel never objected below based on either prosecutorial misconduct or

due process. Accordingly, these particular contentions have been forfeited. (People v.

Thomas (2012) 54 Cal.4th 908, 937 [prosecutorial misconduct]; People v. Abilez (2007)

41 Cal.4th 472, 521, fn. 12 [due process].)

Defendant therefore also argues that defense counsel‟s failure to object constituted

ineffective assistance. “ . . . „“„In order to demonstrate ineffective assistance of counsel, a

defendant must first show counsel‟s performance was “deficient” because his

“representation fell below an objective standard of reasonableness . . . under prevailing

professional norms.” [Citations.] Second, he must also show prejudice flowing from

counsel‟s performance or lack thereof. [Citation.] Prejudice is shown when there is a

29 “reasonable probability that, but for counsel‟s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.”‟” [Citation.] [¶] Reviewing courts defer to

counsel‟s reasonable tactical decisions in examining a claim of ineffective assistance of

counsel [citation], and there is a “strong presumption that counsel‟s conduct falls within

the wide range of reasonable professional assistance.” [Citation.] Defendant‟s burden is

difficult to carry on direct appeal, as we have observed: “„Reviewing courts will reverse

convictions [on direct appeal] on the ground of inadequate counsel only if the record on

appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her]

act or omission.‟” [Citation.]‟ [Citation.] If 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,‟ the claim on appeal must be rejected,”‟ and the „claim of

ineffective assistance in such a case is more appropriately decided in a habeas corpus

proceeding.‟ [Citation.]” (People v. Vines (2011) 51 Cal.4th 830, 875-876.)

We reject this contention because we do not agree with defendant‟s strained

interpretation of Deputy Dawley‟s testimony. Actually, all three witnesses — Deputy

Byrd, Deputy Dawley, and Tira — agreed that the purpose of the questions on the

classification questionnaire was to determine housing. The only disagreement was as to

whether gang affiliation was more important than race. Deputy Byrd was not asked to

express an opinion on this, and he did not.

30 Tira opined that gang affiliation was controlling, and hence he would be surprised

if Fern Street members were housed with Evans Street members. Deputy Dawley, on the

other hand, took a more nuanced approach. He testified that there was no policy that

absolutely prohibited housing inmates of different races together. At the same time,

however, there was no policy that absolutely prohibited housing members of rival gangs

together. This was because, in general, inmates from rival gangs could get along, as long

as they were members of the same race.

Defendant claims that Deputy Dawley testified “that the jail does not house

inmates by gang affiliation, it houses them by race.” Not so. Quite the contrary, he

testified that the questionnaire did ask about gang affiliation because this was one of a

number of questions about background and experience, and “experience matters.” “We

house them on both issues.” Indeed, as between experience and race, experience mattered

more.

Defendant also claims that when Deputy Dawley said “experience,” he meant only

prior incarceration history, not gang affiliation. It is true that, at one point, Deputy

Dawley testified:

“Q. . . . And now, just so we know what you mean by experience, what do you

mean by experience? The amount of time they have been in jail or what?

“A. Yes. Their experience would go by . . . how long they have been in jail, like

throughout their life, their total time. If they have ever been to state prison, what level

they were at.” (Italics added.)

31 It seems clear, however, that Deputy Dawley was merely agreeing with the

suggestion in the question that experience included “[t]he amount of time they have been

in jail,” along with other factors, such as “[i]f they have ever been to state prison [and]

what level they were at.” He was not testifying that experience meant only prior

incarceration history. And even assuming the answer was ambiguous, he had already

testified that — as defendant puts it himself in his brief — “all the questions on the

questionnaire related to the individual‟s background and experience . . . .” That would

necessarily include the gang affiliation question.

In sum, then, Deputy Dawley never contradicted Deputy Byrd. He never testified

that gang affiliation was irrelevant to housing. There was no “false testimony”; the

prosecution never took “inconsistent positions.” Thus, defense counsel did not render

ineffective assistance by failing to raise these issues.

D. Second Trial: Motion to Suppress.

Before the second trial, defendant filed another written motion to suppress his

statement during his booking interview that he was a member of Casa Blanca.

The motion asserted: “Mr. Valdez was asked by Deputy Byrd during his

classification what his gang affiliations were. Mr. Valdez testified at the prior trial that

Deputy Byrd‟s inquiry was co[erc]ive. [Citation.] Deputy Byrd could clearly see the

tattoos on Mr. Valdez‟s arms. His inquiry RE: classification, and threatening to put him

with Hillside was designed solely and specifically to intimidate Mr. Valdez and get him to

32 admit his gang affiliation. It is a coerced and non[-]voluntary statement.” It cited

defendant‟s testimony at the first trial.

The motion also asserted that the statement was inadmissible under Miranda.

However, it did not cite or discuss either Deputy Byrd or Deputy Dawley‟s testimony at

the first trial. It did not discuss the booking question exception; a fortiori, it did not argue

that the booking question here was pretextual.

The prosecution filed a written opposition, arguing that the booking process was

not coercive and that the booking question exception applied. Among other things, it

noted that defendant‟s receiving sheet did not mention any gang charges or allegations; it

concluded that Deputy Byrd “could not reasonably have known that the question would

elicit an incriminating response . . . .” Neither the prosecution nor the defense asked the

court to consider defendant‟s probable cause statement, which Deputy Byrd had also read

and which noted that the shooting might have been gang motivated. (See part IV.A.1,

ante.)

At the argument on the motion, the prosecutor asked the trial court to review

Deputy Byrd‟s testimony at the section 402 hearing in the first trial or, alternatively, to

accept her representation that Deputy Byrd had not corroborated defendant‟s claim of

coercion.

The trial court ruled that, even if it were to accept defendant‟s version of the facts,

defendant‟s statement was not coerced. It then added, “[T]he cases say that this kind of

booking question is acceptable.”

33 2. Analysis.

Defendant now argues that the booking question was pretextual. He forfeited this

contention, however, by failing to raise it in the second trial. (Evid. Code, § 353, subd.

(a).)

In the first trial, the trial court had already decided that the booking question

exception applied. Presumably for this reason, in the second trial, defendant raised a

somewhat different contention. He asserted that Deputy Byrd noticed his Casa Blanca

tattoos and threatened to house him with rival Hillside gang members, unless he admitted

that he was, in fact, affiliated with Casa Blanca; thus, his statement was coerced. The

trial court found, however, that this would not constitute coercion. Defendant does not

challenge that ruling.

Admittedly, defendant‟s motion did assert that there was a Miranda violation, but

only in boilerplate, cut-and-paste fashion. For example, it discussed the standards for

whether a Miranda waiver is voluntary, even though defendant had not waived his

Miranda rights, voluntarily or involuntarily. Likewise, it discussed how to determine

whether a motorist is in custody for purposes of Miranda, an issue that was completely

irrelevant to this case.

Judging by her argument at the hearing, the prosecutor seems to have believed that

the only issue was coercion. Likewise, as defendant concedes, “[t]he [trial] court based

its decision on whether appellant was coerced . . . .”

34 We recognize that defendant did not have the burden of producing evidence.

“When a defendant challenges the admissibility of defendant‟s postarrest statements on

the ground they were elicited in violation of Miranda, the People have the burden of

proving by a preponderance of the evidence that the statements were not the product of a

Miranda violation. [Citations.]” (People v. Gomez, supra, 192 Cal.App.4th at p. 627.)

However, defendant did have the burden of at least alerting the court to the fact that one

of the issues he intended to raise was whether the booking question was pretextual. He

fell short of doing so.

Separately and alternatively, even assuming this issue was adequately raised, the

People met their burden by asking the trial court to review Deputy Byrd‟s testimony in the

first trial. As discussed in part IV.A, ante, that testimony showed that the booking

question exception did apply. Defendant now argues that Deputy Dawley‟s rebuttal

testimony showed that the booking question was pretextual. However, he did not offer

that testimony into evidence to support his motion. In any event, as we held in part IV.B,

ante, Deputy Dawley did not actually contradict Deputy Byrd.

Finally, defendant argues that, to the extent that his defense counsel forfeited his

present contention, either (1) by failing to make the same arguments as in the first trial, or

(2) by failing to introduce the same evidence as in the first trial, they rendered ineffective

assistance. As we discussed in part IV.B, however, Deputy Dawley‟s testimony fell short

of showing that the booking question was, in fact, pretextual. Accordingly, defendant

cannot show that these asserted failures were either unreasonable or prejudicial.

35 3. Prosecutorial misconduct.

In a related contention, defendant also argues that the prosecutor committed

misconduct by citing the receiving sheet, which did not indicate that there were any gang

issues in the case, rather than the probable cause form, which (at least arguably) did.

Defense counsel forfeited this contention by failing to object on this ground at trial.

Defendant argues that this failure to object constituted ineffective assistance.

Again, however, the thrust of defendant‟s motion to suppress was that his statement was

coerced; it was not that the booking question exception did not apply or that the booking

question was pretextual. Accordingly, whether Deputy Byrd had the probable cause

statement, and whether it indicated that there were gang issues in the case, were largely

irrelevant. This was reason enough for defense counsel not to object.

And finally, there was no misconduct. “„A prosecutor commits misconduct when

his or her conduct either infects the trial with such unfairness as to render the subsequent

conviction a denial of due process, or involves deceptive or reprehensible methods

employed to persuade the trier of fact.‟ [Citation.]” (People v. Houston (2012) 54

Cal.4th 1186, 1222.) The prosecutor did not conceal the probable cause statement.

Although her written opposition mentioned only the receiving sheet, in the argument on

the motion, she also asked the trial court to review all of Deputy Byrd‟s testimony from

the section 402 hearing in the first trial. If it had done so, it would have become aware of

the probable cause statement. In the end, however, as already discussed, it resolved the

motion on other grounds.

36 V

PHOTOS FOUND ON MYSPACE

Defendant contends that, in the first trial, the trial court erred by admitting photos

found on MySpace, because they had not been properly authenticated.

Defendant also contends that, in the second trial, defense counsel rendered

ineffective assistance by failing to object to the MySpace photos.

In the first trial, while one Detective Stamps was on the stand, the prosecution

started to question him about a MySpace page. Defense counsel objected based on

hearsay. As a result, the trial court heard argument outside the presence of the jury.

The prosecution proffered the following photos:

1. Ex. 149A: A group photo of five men and two women, including Gonzales (a

victim of the Christmas Eve shoooting); three of them were wearing Evans Street

T-shirts.

2. Ex. 149B: A group photo of four men, including Gonzales. Gonzales was

throwing a Casa Blanca gang sign; another man was throwing the gang sign of a Casa

Blanca clique. Three of them were wearing Evans Street T-shirts.

3. Ex. 149E: A photo of two men. One of them was throwing the gang sign of a

Casa Blanca clique.

4. Ex. 150: A group photo of 17 men, including Rangel, Lozano, and Gonzales

(victims of the Christmas Eve shooting).

37 5. Ex. 152: A group photo of 12 men, including Rangel and Gonzales; one of

them was throwing the gang sign of a Casa Blanca clique.

Several of the photos included gang-related captions and other writing. Defendant

was not in any of the photos.

The photos were offered to show that victims of the Christmas Eve shooting were

members of Casa Blanca and, hence, to show that defendant‟s motive was gang

retaliation.

The prosecutor made an offer of proof that Detective Stamps (using an alias) had

“friended” one of the people in one of the photos; that that person was a member of Casa

Blanca; and that Detective Stamps had downloaded the photos from that person‟s

MySpace pages.10

Defense counsel objected: “[I]f an officer or someone who can authenticate or

talk about who is depicted in the pictures, that‟s fine. My objection came when the

People started pointing out different words, and things of that nature, and attributing it to

a particular person. Because we don‟t have a representative of MySpace to show who the

10 In her offer of proof, the prosecutor indicated that the last name of the owner of the MySpace account was Cornejo, but she admitted that she was having trouble remembering his first name. Detective Stamps then testified that one of the photos came from the MySpace account of Robert Corrales; defense counsel objected, however, and the trial court sustained the objection. In the second trial, Detective Stamps testified that two of the photos came from the MySpace account of Robert Carrillo, while a third came from the account of either Carrillo or Michael Aguilar.

38 site was registered to. We don‟t have any verification or authentication as to who placed

the photos up there and actually typed in the language . . . .”

The trial court redacted most of the gang-related writing (though not the words,

“the homies from big bad casa blanca evans st. gang” on Exhibit 150A). Otherwise, it

admitted the photos.

B. Analysis.

Defense counsel did not raise defendant‟s present contention below. He

specifically agreed that an officer could testify about who was in the photos. He objected

only to the “words” accompanying the photos on the MySpace pages, because there was

no evidence “as to who placed the photos up there and actually typed in the

language . . . .” The trial court largely obviated this objection by redacting most of the

writing. It did allow the words “the homies from big bad casa blanca evans st. gang” to

remain. However, defendant is not arguing that this was error. Rather, his present

contention is that the photos themselves were not shown to be accurate. This particular

contention has been forfeited. (Evid. Code, § 353, subd. (a).)

Admittedly, if not forfeited, it would have merit. A writing must be authenticated

before it can be received in evidence. (Evid. Code, § 1401.) This means the proponent

must demonstrate that the writing is what “the proponent of the evidence claims it

is . . . .” (Evid. Code, § 1400.) A photo is a “writing” (Evid. Code, § 250) and hence

must be authenticated.

39 People v. Beckley (2010) 185 Cal.App.4th 509 is on all fours, as it dealt with a

photo downloaded from MySpace. There, the girlfriend of one of the defendants testified

that, when she began dating him, she insisted that he stop associating with his gang. (Id.

at pp. 513-514.) To impeach her, the prosecution introduced a photo showing her

flashing a gang sign. A police officer testified that he had downloaded it from the

boyfriend‟s MySpace page. The defendants objected based on lack of authentication.

(Id. at p. 514.)

The appellate court held that the trial court erred by admitting the photo: “„It is

well settled . . . that the testimony of a person who was present at the time a film was

made that it accurately depicts what it purports to show is a legally sufficient foundation

for its admission into evidence.‟ [Citation.] In addition, . . . authentication of a

photograph „may be provided by the aid of expert testimony . . . .‟ [Citation.] . . .

“Although defendants conceded that the face in the MySpace photograph was [the

girlfriend]‟s, the record does not contain . . . evidence sufficient to sustain a finding that it

is the photograph that the prosecution claims it is, namely, an accurate depiction of [the

girlfriend] actually flashing a gang sign. [The police officer] could not testify from his

personal knowledge that the photograph truthfully portrayed [the girlfriend] flashing the

gang sign and . . . no expert testified that the picture was not a „“composite” or “faked”‟

photograph. Such expert testimony is . . . critical today to prevent the admission of

manipulated images . . . .” (People v. Beckley, supra, 185 Cal.App.4th at pp. 514-515.)

40 Here, identically, no witness with personal knowledge testified that the photos

accurately depicted what they purported to show, and no expert testified that the photos

were not faked. Accordingly, if defense counsel had objected based on lack of

authentication, in either the first or the second trial, the MySpace photos should have been

excluded.

Defendant cannot show, however, that the failure to object was either unreasonable

or prejudicial. Even if the photos themselves had been excluded, the jury most likely

would have learned what was in them, because they formed part of the basis for the

prosecution gang expert‟s opinions.

In the first trial, a gang expert testified that he relied, in part, on the MySpace

photos. Similarly, in the second trial, a gang expert testified that he relied, in part, on

photos, evidently including the MySpace photos.

“[A]ny material that forms the basis of an expert‟s opinion testimony must be

reliable. [Citation.]” (People v. Gardeley (1996) 14 Cal.4th 605, 618.) However, “[s]o

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. [Citations.]

And . . . an expert witness whose opinion is based on such inadmissible matter can, when

testifying, describe the material that forms the basis of the opinion. [Citations.]” (Id. at

pp. 618-619.)

Although these principles are most often applied to hearsay, we see no reason why

they should not also apply an unauthenticated writing. A writing that has not been

41 authenticated in accordance with the standards of the Evidence Code is not necessarily

unreliable. An expert could reasonably rely on photos displayed on a gang member‟s

MySpace page.

Admittedly, if photos are relevant solely as the basis for an expert‟s opinion, the

photos themselves should not be admitted into evidence. The expert, however, could

describe the photos and could explain how they factored into his or her opinion. Thus, it

does not appear that the fact that the photos were actually admitted into evidence was

prejudicial in either trial.

Moreover, defense counsel could reason that, if he objected to the admission of the

photos themselves, the prosecution would spend even more time questioning the expert

about their contents and having the expert explain their significance as a basis for his

opinion. For this reason, defendant cannot show that his counsel had no rational tactical

purpose for choosing not to object on authentication grounds.

VI

FAILURE TO OBJECT TO EVIDENCE OF CRIMES COMMITTED

BY AND AGAINST OTHER CASA BLANCA MEMBERS

Defendant contends that, in the second trial, defense counsel rendered ineffective

assistance by failing to object to evidence of certain crimes committed by and against

other members of Casa Blanca.

In the second trial, the prosecution introduced the following evidence.

42 As already noted, Francisco Gonzales was a member of Casa Blanca. Like

Rangel, he was one of the victims of the Christmas Eve shooting. In February 2006,

Gonzales was involved in a drive-by shooting targeting a rival gang member‟s house. As

a result, he was convicted of assault with a deadly weapon, with a gang enhancement.

Daniel “Pops” Avila was also a member of Casa Blanca. In June 2007, Avila

confronted a Black man, called him a “nigger,” and stabbed him. As a result, Avila was

convicted of attempted murder, with a gang enhancement.

Jesse Lopez, too, was a member of Casa Blanca. He stole money and a skateboard

from a child. As a result, he was convicted of robbery, with a gang allegation.

Defense counsel did not object to any of this evidence (except, in one instance, as

nonresponsive).

Defendant argues that defense counsel should have objected to the foregoing

evidence as more prejudicial than probative.

These crimes committed by members of Casa Blanca were directly relevant to

prove the gang enhancements and the gang special circumstance. One element of these is

that the gang‟s primary activities include the commission of specified crimes, such as

assault with a deadly weapon, attempted murder, and robbery. (Pen. Code, §§ 186.22,

43 subds. (b), (e)(1)-(3), (f), 190.2, subd. (a)(22).) The evidence supported the gang expert‟s

opinion that the primary activities of Casa Blanca included violent assaults.11

We also note that this evidence was not particularly prejudicial. We recognize that

“[e]ven if gang evidence is relevant, it may have a highly inflammatory impact on the

jury. Thus, „trial courts should carefully scrutinize such evidence before admitting it.

[Citation.]‟ [Citations.]” (People v. Avitia (2005) 127 Cal.App.4th 185, 192-193.) Here,

however, there was strong evidence that defendant had murdered an 11-year-old child and

had attempted to murder that child‟s entire family. There was also extensive evidence

that gangs in general, and Casa Blanca in particular, were devoted to violent crime. In

this context, the evidence of these three particular crimes was extremely brief and not

inflammatory in the least.

Defendant points out that, in the first trial, a different trial judge limited, sua

sponte, the evidence of crimes committed by other members of Casa Blanca. Thus, for

example, that judge excluded evidence that Avila had committed a stabbing. This does

tend to suggest that, in the second trial, defense counsel should have at least tried to

exclude the evidence. However, it does not mean the second trial judge had to exclude it.

“To say that . . . decisions are discretionary is to say that different reasonable decision

makers . . . could arrive at different decisions, even on the same facts.” (People v. Garcia

11 These crimes could not be used as predicate offenses, however, because they were committed after the charged offenses. (People v. Duran (2002) 97 Cal.App.4th 1448, 1458; People v. Godinez (1993) 17 Cal.App.4th 1363, 1368-1370.)

44 (1995) 32 Cal.App.4th 1756, 1771-1772 [Fourth Dist., Div. Two].) Given the substantial

probative value and minimal prejudicial effect of the evidence, we cannot say that the

failure to object to it undermines our confidence in the outcome.

Defendant also argues that defense counsel was ineffective in failing to object to

evidence of two crimes committed against members of Casa Blanca.

First, Gonzales had actually been shot twice — not only in the Christmas Eve

shooting, but also on an unspecified previous occasion. Evidence of the previous

shooting, however, was relevant to explain why one photo of Gonzales showed him in a

wheelchair. The prosecutor had the witness clarify that Gonzales was in the wheelchair

due to the earlier shooting, not the Christmas Eve shooting. The witness also clarified

that Gonzales was in the wheelchair only temporarily; he recovered and was able to walk,

though with a limp.

Second, in 2006, Peter Herrera, a member of Casa Blanca, was shot and killed by

an unknown person. This evidence, however, was relevant to show that certain tattoos

and graffiti saying “RIP Peter” were indicative of membership in Casa Blanca.

In addition, this evidence that two members of Casa Blanca had been victims of

crimes was not particularly inflammatory, especially in the context of all of the other gang

evidence.

Next, defendant contends that defense counsel rendered ineffective assistance by

failing to object to evidence of gang graffiti found on a picnic table at Villegas Park as

more prejudicial than probative.

45 The graffiti were probative to show that Villegas Park was in Casa Blanca

territory. This, in turn, was relevant to show that defendant was a member of Casa

Blanca, for two reasons. First, in 2001, defendant fired a .22 rifle into the air at Villegas

Park. According to the gang expert, this incident showed that defendant was a member of

Casa Blanca, in part because it took place in Villegas Park. Second, in April 2002,

defendant admitted to a police officer that he was a member of Casa Blanca. According

to the gang expert, it was significant that this contact took place in Villegas Park.

Separately and alternatively, the graffiti were not particularly prejudicial. As

defense counsel brought out, defendant‟s name did not appear in the graffiti. Moreover,

defacing a picnic table was not exactly the most heinous gang conduct that the jury heard

about.

Finally, defendant contends that defense counsel rendered ineffective assistance by

failing to object to a set of photos seized in a search of Gonzales‟s house, again, as more

prejudicial than probative. The photos showed Peter Herrera, Daniel Rangel (Michael

Rangel‟s brother), and Eric Lozano (Randy Lozano‟s brother) posing with people who

were throwing Casa Blanca gang signs.12 These photos were relevant to show that the

victims of the Christmas Eve shooting were members of Casa Blanca. Also, again, the

photos were not particularly prejudicial. They did not show defendant. They also did not

12 An unredacted version of the exhibit has been transmitted to us. However, it appears that a redacted version was actually admitted.

46 show any illegal conduct (except possibly underage drinking). Thus, the failure to object

to them was neither unreasonable nor prejudicial.

VII

FAILURE TO REQUEST A LIMITING INSTRUCTION

REGARDING THE GANG EVIDENCE

Defendant contends that, in both trials, his defense counsel rendered ineffective

assistance by failing to request CALCRIM No. 1403.

CALCRIM No. 1403 may be given, on request, when evidence of “gang activity”

has been admitted. (Bench Notes to CALCRIM No. 1403 (2012 ed.), p. 1172.) It would

have stated, among other things, “You may not conclude from this evidence that the

defendant is a person of bad character or that [he] has a disposition to commit crime.”

Reasonable defense counsel could have decided not to request such an instruction

to avoid calling the jury‟s attention to the gang evidence. (People v. Hernandez (2004) 33

Cal.4th 1040, 1053; People v. Ferraez (2003) 112 Cal.App.4th 925, 934.) Hence,

defendant has not shown that defense counsel was ineffective.

VIII

CUMULATIVE PREJUDICE FROM

ASSERTEDLY INADMISSIBLE GANG EVIDENCE

We have already held that defense counsel was not ineffective in failing to object

to (1) the MySpace photos (see part V, ante); (2) evidence of other crimes committed by

and against other Casa Blanca members (see part VI, ante); (3) evidence of gang graffiti

47 on a picnic table at Villegas Park (ibid.); and (4) photos seized at Gonzales‟s house

(ibid.).

Here, we consider, separately and independently, whether these asserted instances

of ineffective assistance were cumulatively prejudicial. We conclude that they were not,

because, in the context of all of the other gang evidence in the case, these particular items

of evidence were trivial.

In arguing prejudice, defendant relies on People v. Albarran (2007) 149

Cal.App.4th 214. There, however, despite the fact that the defendant was a gang member,

there was insufficient evidence that the crime was, in fact, gang related. (Id. at p. 227.)

Accordingly, the evidence typically used to prove a gang allegation — crimes committed

by other gang members, threats against the police, contacts between other gang members,

and references to the Mexican Mafia — was irrelevant as well as prejudicial. (Id. at

pp. 227-228.) Here, by contrast, there was overwhelming evidence that the crime was

gang related. Thus, quite appropriately, the juries in both trials heard about other assaults

and murders committed by members of Casa Blanca. They heard how gang rivalries can

escalate due to the spiral of retaliation. They heard how gang members intimidate

witnesses.

By contrast, the MySpace photos, the photos from Gonzales‟s house, and the gang

graffiti did not depict any violent or felonious conduct. Admittedly, the evidence of the

crimes committed by Gonzales, Avila, and Lopez did relate to such conduct; however, as

already discussed (see part VI.B, ante), it did not take up much time and did not go into

48 much detail. Significantly, none of this evidence directly implicated defendant as a

member of Casa Blanca. Thus, it did not make the jury any more likely to find that he

was a gang member.

We also have already held that defense counsel was not ineffective in failing to

request an instruction on the limited purpose of the gang evidence (see part VII, ante).

Alternatively, we now conclude that this asserted instance of ineffective assistance was

not prejudicial, even cumulatively. Precisely because the gang evidence tended strongly

to establish a gang motivation for the crime, unlike in Albarran, the purpose of the

evidence would have been apparent. “The evidence was so obviously admissible for

multiple relevant purposes, and was so obviously not introduced merely to prove bad

character, that an instruction on limited admissibility was not essential to the jury‟s

understanding of the case.” (People v. Haylock (1980) 113 Cal.App.3d 146, 150.)

IX

FAILURE TO REQUEST AN INSTRUCTION ON UNCHARGED CRIMES

Defendant contends that, in both trials, his defense counsel rendered ineffective

assistance by failing to request CALCRIM No. 375, regarding evidence of uncharged

crimes.

In the first trial, defendant took the stand. Anticipating impeachment, he admitted

the following two juvenile adjudications:

49 1. In 2001, while at Villegas Park, defendant fired a .22 rifle into the air. He was

arrested and spent time in juvenile hall. When he violated his probation by failing a drug

test, he was sent to a different juvenile facility.

2. Defendant escaped from the latter juvenile facility. He was arrested and sent

back to juvenile hall.

In the second trial, the prosecution once again introduced evidence of the 2001

incident in which defendant fired a .22 rifle into the air at Villegas Park, this time as part

of the basis for the gang expert‟s opinion that defendant was a gang member.

The gang expert also testified that in 2003, while in juvenile hall, defendant and

another Casa Blanca member had beaten up someone who disrespected Casa Blanca.

Finally, in the second trial, the prosecution introduced evidence of the assault on

Valenciano with a firearm and of the robbery of beer from Perez, even though defendant

had already been found guilty of these crimes in the first trial.

CALCRIM No. 375 should be given, on request, when evidence of an uncharged

offense or other “bad act” has been introduced under Evidence Code section 1101,

subdivision (b). (Bench Notes to CALCRIM No. 375 (2012 ed.), p. 155.) This

instruction would have stated, among other things, “Do not conclude from this evidence

that the defendant has a bad character or is disposed to commit crime.”

The People point out that CALCRIM No. 375 did not apply, because none of the

uncharged crimes evidence was admitted under Evidence Code section 1101, subdivision

50 (b). In his reply brief, defendant does not disagree; rather, he argues, for the first time,

that defense counsel rendered ineffective assistance by failing to request an appropriately

modified version of CALCRIM No. 375. He forfeited this contention, however, by

failing to raise it in his opening brief. (People v. Lynch (2012) 209 Cal.App.4th 353, 362,

fn. 6.)

Separately and alternatively, we also reject this contention on the merits. Defense

counsel could reasonably have decided not to request such an instruction to avoid calling

the jury‟s attention to the uncharged crimes evidence. (People v. Hinton (2006) 37

Cal.4th 839, 878.) Thus, defendant has not shown that defense counsel was ineffective.

X

ABSTRACT OF JUDGMENT

Defendant contends that the abstract of judgment erroneously reflects a parole

revocation restitution fine. The People concede the error.

The trial court correctly ruled that, because it was sentencing defendant to life

without the possibility of parole, it would not impose a parole revocation restitution fine.

Nevertheless, the abstract of judgment recites that a revocation restitution fine was

imposed.

In our disposition, we will direct the trial court to correct the abstract.

51 XI

DISPOSITION

The judgment is affirmed. The clerk of the superior court is directed to file an

amended abstract of judgment that does not include a parole revocation restitution fine

(see part X, ante) and to forward a copy of the amended abstract of judgment to the

Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI Acting P. J.

We concur:

KING J.

MILLER J.