P. v. De La Cruz

Filed 11/30/05 P. v. De La Cruz CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO DE LA CRUZ, Defendant and Appellant.

C047809 (Super. Ct. No. SF091085A)

A jury found defendant Francisco De La Cruz committed battery upon another ward in his juvenile detention unit (Pen. Code, § 242) and that he committed the battery to benefit a criminal gang in violation of Penal Code section 186.22, subdivision (d). On appeal, defendant claims ineffective assistance of counsel, because defense counsel failed to (1) object to testimony by the gang expert that the offense was committed to benefit a gang of which defendant was an active member or (2) request a limiting instruction directing the jury to consider the evidence of other crimes only for the purpose of considering defendant’s motivation in committing the attack.

We find no basis for reversal and affirm the judgment.

BACKGROUND

At the time of these events, defendant was a ward at a youth correctional facility. Two correctional officers testified at trial they saw defendant run up to another ward named Lalo Flores as Flores was leaving the chapel; defendant took off his jacket and began to punch Flores. After defendant landed a few punches, Flores began fighting back. The fight lasted about a minute before officers used a mace-like spray on the combatants.

Defendant was charged with misdemeanor battery (Pen. Code, § 242) and with having committed the battery to benefit a criminal gang, in violation of Penal Code section 186.22, subdivision (d). Evidence at trial chiefly concerned whether defendant’s fight with Flores was committed for the benefit of a criminal street gang, within the meaning of Penal Code section 186.22.

Lieutenant Eddie Jeffs, a gang expert who has previously served as gang information coordinator in two youth correctional facilities, testified that nearly 60 percent of the wards detained with defendant are active gang members. One such gang is the Nortenos^[1], who identify themselves by writing Norteno or “norte”, and are associated with the letter N and the number 14 (XIV). Inside the facility, Nortenos’ primary criminal activities include assault, extortion, and attempted murder.

Few members of the Sureno gang -- traditional enemies of the Nortenos -- are housed in the region’s youth facility, so the Nortenos’ rivals include members of the Fresno Bulldogs gang. Nortenos also attack former members of their own gang, referred to as ex-North or “dropouts”; a dropout who can be attacked on sight is said to have been “green-lighted.” A Norteno ward who has committed rape or child molestation will be treated as a dropout, ostracized and attacked on a regular basis.

Lieutenant Jeffs opined that defendant is an active Norteno member, and based his opinion on two factors. First, defendant bears tattoos representing the gang: the word “Norte” appears over his right eye, and is tattooed on his chest in big block letters. He has one dot tattooed on his right forefinger and four dots on his left hand (signifying 14), and “XIV” is tattooed on his back. Defendant’s right hand bears a tattoo of a Huelga bird; adopted from the symbol of migrant farm workers, the Huelga represents the struggle of Nortenos.

Second, defendant had participated while in custody in other skirmishes Jeffs described as “gang assaults” or “gang-related incidents.” Over defense counsel’s continuing Evidence Code section 352 objection, Jeffs testified from a review of incident reports that defendant had been involved in eight separate incidents:

July 24, 2000: Defendant engaged in a one-on-one fight with a Sureno gang member.

September 28, 2000: Defendant engaged in a one-on-one fight with a Fresno Bulldog member.

December 19, 2000: Defendant fought in an altercation between Nortenos and Fresno Bulldogs.

December 20, 2000: Defendant and 11 other Nortenos attacked a ward.

July 8, 2001: Lalo Flores (the same victim alleged in the instant action) was attacked by defendant and three other Norteno members.

Sometime in March 2002, defendant was seen throwing punches during an altercation between Nortenos and whites.

July 1, 2003: Defendant and four other Nortenos attacked some ex-Norteno (or dropout) students in a classroom.

November 24, 2003: Defendant was seen fighting in a group disturbance between the Nortenos and members of the Bloods or Bays.

Finally, Lieutenant Jeffs opined that defendant’s conduct in attacking Flores was gang-related and benefited the Nortenos because it was committed by an active gang member (defendant) against Flores, an ex-Norteno gang member whose committing offense was rape, and who had been “green-lighted.” Jeffs explained that Norteno gang culture thus obliged defendant to attack Flores on sight. Had defendant failed to do so, other Nortenos would have ostracized and attacked defendant. Defendant’s attack on Flores elevated the status of the group by reminding others that Nortenos will attack anybody, thereby engendering fear and respect. It also demonstrated defendant’s allegiance to the gang.

Defendant did not testify. His theory of defense was that the altercation with Flores was a simple, non-gang related fistfight. Witnesses to the fight agreed defendant said nothing to indicate he was motivated by gang loyalty.

DISCUSSION

Defendant contends his trial attorney was ineffective for failing to object to Lieutenant Jeffs’s testimony that he attacked Flores for the benefit of a criminal street gang, and for failing to request a limiting instruction directing the jury to consider evidence of defendant’s involvement in other gang-related assaults only to provide the basis for Jeffs’s opinion that defendant was a Norteno, and not as proof that he was a person of bad character who had the disposition to commit such crimes.

The burden of proving ineffective assistance of counsel is on the defendant. (People v. Dickey (2005) 35 Cal.4th 884, 925.)

He must first show counsel’s performance was deficient because his representation fell below an objective standard of reasonableness under prevailing professional norms. He also must show prejudice flowing from counsel’s performance. In this respect, prejudice means there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. (Ibid.; People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Dennis (1998) 17 Cal.4th 468, 540-541; see Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [80 L.Ed.2d 674].)

I.

We consider first defendant’s contention his trial counsel erred in failing to object to Lieutenant “Jeffs’s opinion on the ultimate fact that [defendant] committed the battery with the intent to benefit the Northerner gang.” He claims Jeffs’s testimony violated Penal Code section 29, which prohibits expert testimony as to “whether the defendant had or did not have the required mental states . . . for the crimes charged.” We find no cause for reversal.

Defendant was charged with a gang enhancement under the STEP Act (Pen. Code, § 186.20 et seq.). “[T]o subject a defendant to the penal consequences of the STEP Act, the prosecution must prove that the crime for which the defendant was convicted had been ‘committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.’ [Citation.] In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses’) during the statutorily defined period.” (People v. Gardeley (1996) 14 Cal.4th 605, 616-617; Pen. Code, § 186.22.)

As a general rule, a trial court has wide discretion to admit or exclude expert testimony, and an appellate court may not interfere with the exercise of that discretion unless it is clearly abused. (People v. Page (1991) 2 Cal.App.4th 161, 187.) “The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. [Citations.] Such evidence is admissible even though it encompasses the ultimate issue in the case. [Citations.]” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371; Evid. Code, § 801, subd. (a).) On the other hand, “[e]xpert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness.” (People v. Torres (1995) 33 Cal.App.4th 37, 45.)

Courts have held that a gang expert may testify on matters that are sufficiently beyond common experience, such as gang territories, culture, practices, and habits, if such testimony would assist the trier of fact. (People v. Gardeley, supra, 14 Cal.4th at p. 617; People v. Valdez (1997) 58 Cal.App.4th 494, 506.) This testimony, too, is admissible even if it encompasses ultimate issues in a case. (People v. Valdez, supra, at pp. 507-508.)

Moreover, “[t]he People are entitled to ‘introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.’ [Citation.] ‘[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.’ [Citations.]” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550; see also People v. Martin (1994) 23 Cal.App.4th 76, 81 [gang activity or membership admissible where “important to the motive . . . even if prejudicial”].)

Thus, “whether and how a crime was committed to benefit or promote a gang” is an appropriate subject for expert testimony. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657; e.g., People v. Gardeley, supra, 14 Cal.4th at p. 619 [gang expert testimony admissible to prove current offense was committed to benefit gang and with intent to promote gang interests]; People v. Valdez, supra, 58 Cal.App.4th at pp. 507-509 [same].)

Here, the expert testimony was admissible because it could help the jury understand how a one-on-one fistfight -- which lacked a “gang” of participants -- could nonetheless benefit defendant’s gang, the Nortenos. Lieutenant Jeffs explained why an active member of the Nortenos (such as defendant) would feel compelled to attack a Norteno dropout (such as Lalo Flores), and why he would do so partly to avoid being ostracized or attacked himself by other members of his gang. Jeffs’s testimony illuminated for the jurors how defendant’s actions benefited the gang by reinforcing gang discipline and helping to maintain its status as a force to be reckoned with and feared even inside the youth authority facility.^[2]

It is well settled that counsel is not ineffective in failing to make an objection when the objection would have likely been overruled by the trial court. (See People v. Sanchez (1997) 58 Cal.App.4th 1435, 1450 [counsel not ineffective in failing to object to introduction of the gang evidence likely to be admissible in any event].) Because the testimony elicited from Lieutenant Jeffs was within established parameters, it was admissible and trial counsel’s failure to object cannot be error.

II.

Gang-related evidence admissible to prove charges alleged under Penal Code section 186.22 is frequently admitted for a limited purpose only, but the parties must request a limiting instruction. (See People v. Ferraez (2003) 112 Cal.App.4th 925, 934.) The trial court indicated it planned to instruct the jury on the use of gang evidence at the appropriate time but failed to do so.^[3]

Defendant contends his trial attorney rendered ineffective assistance of counsel by failing to request a limiting instruction directing the jury to consider evidence of defendant’s involvement in other gang-related assaults only to provide the basis for Jeffs’s opinion that defendant was a Norteno, and not as proof that he was a person of bad character who had the disposition to commit such crimes.

As we noted above, to establish this claim, defendant must show “‘that counsel’s performance was deficient . . . [and] that, absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him.’” (People v. Hernandez, supra, 33 Cal.4th at pp. 1052-1053.) If the record does not disclose why counsel failed to act, we must reject the contention unless there could be no satisfactory explanation. (Id. at p. 1053; People v. Scott (1997) 15 Cal.4th 1188, 1212.)

Here, we do not linger over the question of whether trial counsel should have requested a limiting instruction because it is not reasonably probable that results more favorable to defendant would have resulted had a limiting instruction been given. (See People v. Ferraez, supra, 112 Cal.App.4th at p. 932.) The fact of the battery was conceded, so whether defendant’s having engaged in prior fights showed a propensity to fighting was hardly material to the jury’s determination. That defendant had engaged in other fights with members of rival gangs or dropouts was relevant to the question of whether his attack on Flores was committed for the benefit of the Norteno gang. According to Lieutenant Jeffs, defendant’s participation in prior gang-related fights was evidence he remained an active gang member which, in turn, helped establish his motivation for attacking the dropout victim Flores. And, as we have explained, evidence of defendant’s possible gang motivation was properly admitted.

Moreover, the prosecutor did not imply or argue that the other fights evidence could be used to establish bad character or criminal propensity. We conclude that a limiting instruction “would not have significantly aided defendants under these facts or weakened the strength of the evidence of guilt the jury properly could have considered.” (People v. Hernandez, supra, 33 Cal.4th at p. 1054.)

Having rejected defendant’s first claim of error, and having concluded that the lack of a limiting instruction did not prejudice defendant, we reject his claim that the cumulative impact of those asserted errors dictates reversal.

DISPOSITION

The judgment is affirmed.

BLEASE , J.

We concur:

SCOTLAND , P. J.

ROBIE , J.

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^[1] The prosecutor also referred to Nortenos as Northerners.

^[2] People v. Killebrew, supra, 103 Cal.App.4th 644, confirms that expert testimony is admissible to show the “motivation for a particular crime, generally retaliation or intimidation” and “whether and how a crime was committed to benefit or promote a gang . . . .” (Id. at p. 657.) Defendant’s reliance on Killebrew for a contrary conclusion is misplaced, because its facts are distinguishable. In Killebrew, in response to hypothetical questions, the People’s gang expert exceeded the permissible scope of expert testimony by opining on “the subjective knowledge and intent of each” of the gang members involved in the crime. (Id. at p. 658.) Specifically, he testified that each of the individuals in a caravan of three cars (including defendant) knew there was a gun in the Chevrolet and a gun in the Mazda and jointly possessed the gun with everyone else in the three cars for mutual protection. (Ibid.) Killebrew does not preclude the prosecution from eliciting expert testimony to provide the jury with information from which the jury may infer the motive for a crime; Killebrew prohibits an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial. (Ibid.)

^[3] When it granted, over defense counsel’s Evidence Code section 352 objection, the prosecution’s in limine motion to allow admission of evidence defendant was involved in other gang-related assaults while in juvenile custody as a basis for his opinion that defendant is a gang member for the purpose of establishing his attack on Flores was committed for the benefit of a criminal street gang (within the meaning of Pen. Code, § 186.22, subd. (d)), the court announced “I’m going to have to advise the jury that it’s not to be relied upon for the proof of the fact that the actual attack occurred, only for proof of the fact that it was done for -- can be considered for [in furtherance of a criminal] street gang activity.”