Opinion
C072642
11-16-2016
THE PEOPLE, Plaintiff and Respondent, v. JOSE ANTONIO VEGA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SF115481A) OPINION ON REMAND
Following a mistrial where the jury was unable to reach a verdict on any count, a second jury convicted defendant Jose Antonio Vega of the offenses of first degree murder and premeditated attempted murder (finding he committed both while personally firing a gun in gang-related activity), being a felon in possession of a gun, and engaging in gang-related activity. The trial court sentenced him to state prison for a determinate term on the two nonhomicide offenses, with consecutive indeterminate sentences for the murder and attempted murder (and their firearm enhancements) of 82 years to life. It stayed the two enhancements for gang-related activity because the underlying offenses carried longer minimum sentences. (People v. Valenzuela (2011) 199 Cal.App.4th 1214, 1238.)
On appeal, defendant raised the issues of whether sufficient evidence of gang-related activity supported the substantive gang offense (count 4) and the stayed gang enhancements. He also argued the hearsay evidence on which a gang expert based opinions violated his right to confrontation. He further contended (for the first time on appeal) that the prosecutor committed misconduct while cross-examining him and during closing arguments (alternately asserting trial counsel did not provide effective assistance in failing to object). He claimed trial counsel was also ineffective in failing to move to limit the scope of the gang evidence. The People properly conceded the first point (the insufficiency of the evidence to support the substantive gang offense).
We reversed the conviction for the gang offense with direction to dismiss the count, and otherwise affirmed as modified. (People v. Vega (Apr. 23, 2015, C072642) [nonpub. opn.].) The Supreme Court subsequently granted review (Aug. 19, 2015, S226812), and now has remanded the case for our reconsideration in light of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and People v. Prunty (2015) 62 Cal.4th 59 (Prunty), a directive that presumes the retroactive application of these decisions. On reconsideration, we shall additionally strike the gang enhancements, and again affirm as modified.
FACTUAL AND PROCEDURAL BACKGROUND
The two teenaged victims spent July 26, 2010, barbequing, drinking, and taking controlled substances throughout the afternoon and evening. In the early evening, they heard a group of people in front of an apartment complex down the block shouting and making hand signals in promotion of a particular gang. The surviving victim later recalled that one of the group was wearing a blue-and-white plaid shirt. From what he could see of their faces at this distance, he did not recognize anyone. Although he did not participate in gang activities, the surviving victim was aware of the hand signal associated with a rival of this gang, and "stupid[ly]" made the gesture and shouted the name of the rival gang in the direction of the group. This was the extent of the interaction at that time.
In the small hours of the following morning, the victims decided to walk to a nearby convenience store after returning from a friend's home in order to get a cigar to use as a marijuana smoking device. As they approached the store, a man came out from between two buildings and abruptly began to shoot at them without any provocation. The surviving victim, 18-year-old Jeffrey A., noticed the man was wearing a blue-and-white plaid shirt, but could not remember anything about the shooter's face. He ran to the convenience store for help; his friend, 19-year-old Derrick Gann, fell in the street, gravely wounded. The police arrived shortly after 4:00 a.m. A bullet had severed two major arteries in Gann's abdomen, causing massive bleeding. Almost half of his blood supply poured into his abdominal cavity, his heart stopped and he died within an hour. Jeffrey A. was hospitalized for a week with an abdominal bullet wound.
A resident living close to the convenience store had been outside helping a friend change the oil in his car. He heard shots from the direction of the store. Suddenly a man (whom he identified at trial as defendant) ran into the yard of the neighboring apartment complex and tried to push through the fence into the yard of the resident's apartment complex. The resident told him to stay out. Defendant was wearing the blue-and-white plaid shirt that was an exhibit at trial. He claimed someone was shooting at him. The resident could hear approaching police sirens. Defendant eventually entered the neighboring apartment complex.
A unit in this apartment complex was a "flophouse," open to anyone who would share controlled substances with the tenants. Everyone in the apartment was busy packing in anticipation of an eviction later that day. There were a number of people present. One of the people who had been staying with the tenants was outside smoking marijuana when he heard the gunfire. He saw a man in a blue-and-white plaid shirt run toward the rear of the apartment complex from the vicinity of the shots, but lost sight of him. The man (whom the witness identified as defendant) ultimately came into the apartment where everyone was gathered, and introduced himself as "Spanky" from Salinas. He told them that he had shot someone and needed to run. Defendant took a shirt from the witness and offered him the blue-and-white plaid shirt in exchange. In the process, the witness thought he saw a gun on defendant's person. The witness later gave the shirt to a detective.
Before he died, Gann spoke with his grandmother about the shooting shortly after surgery but he was still groggy. She told detectives that he said there had been two unknown attackers; she did not mention anything about the clothing. At trial, she was not sure whether or not her grandson had in fact described the color of the shirt one of the men was wearing.
On July 29, a detective went to the hospital and showed Jeffrey A. a single photograph, which was defendant's driver's license picture. Jeffrey A. did not know the identity of the person, but apparently said he had been among the group of people down the block making gang references. Jeffrey A. did not initially identify the person as also being the shooter. However, toward the end of the interview Jeffrey A. apparently said that the person was also the shooter. In an August 1 interview, Jeffrey A. mentioned only that defendant had been part of the group down the block. The detective brought a photo array to Jeffrey A. on August 3 that apparently included defendant's picture. Jeffrey A. did not identify anyone, and said he did not know if he would be able to identify anyone from the earlier confrontation or the shooting. However, when shown the shirt that the witness had given to detectives, Jeffrey A. remembered the shooter wearing it. At this point in time, Jeffrey A. was uncertain whether anyone in the group down the block had been wearing it.
Having already heard from "numerous" sources that the suspected shooter was a man called "Spanky" from Salinas, who was a gang member and recently paroled, detectives had determined from their databases that this information matched defendant. They provided photo lineups to occupants of the flophouse, who identified defendant, and obtained an arrest warrant for defendant on July 30.
At trial, Jeffrey A. did not have any recollection of his statements to the police. The prosecutor attempted to refresh his memory with the detective's report of his statements, a copy of which we have not located in the record.
DNA retrieved from the shirt was consistent with defendant's. Gunshot residue on the shirt indicated it had been within two to 15 feet of a discharged firearm.
On his arrest, defendant confirmed being a member of a subset of the umbrella gang that the group down the block had been venerating, but he lived in Ripon. His daughter lived in Manteca with her mother, and he had been staying in various places near them. He denied having any knowledge of any shootings or being at the scene. He had spent July 26 drinking and smoking marijuana with various vaguely described individuals at various vaguely described locations, winding up at a construction site in the small hours of Tuesday morning, where he waited for his child's mother (now his wife) to pick him up. Defendant acknowledged wearing the blue-and-white shirt earlier on Monday, but it was gone when he woke up after passing out in a park. He claimed the people from the flophouse who had identified him were setting him up.
Defendant testified at trial. He had been a member of a subset of the gang since his youth in Salinas and Hayward. He has an abundance of gang-referencing tattoos. He was not part of the group of gang devotees with whom the victims had interacted earlier in the evening; he had left Manteca about 6:00 p.m. and received a call from his now wife around 7:30 p.m. while he was in Ripon. He returned to Manteca in the company of a friend about 9:00 p.m. He was wearing the shirt Jeffrey A. had described.
Defendant eventually parted ways with his companions; it was too late to call his wife, so he decided to go to a different apartment in the flophouse building to meet with his supplier and buy methamphetamine; he did not know anyone else in the building. The supplier told defendant to go wait on the corner near the convenience store for one of the supplier's sellers (whom the supplier had pointed out to defendant in the past); defendant decided to wait in an alley between buildings rather than out in the open. The seller arrived, and handed defendant the drugs. Just then, the victims walked past the alley. As defendant stood close by, the seller abruptly turned and started firing at the victims. The seller moved toward the victims. Defendant ran off in the other direction and heard additional shots fired as he headed to the flophouse building. He thought the seller might be shooting at him for running off without paying.
He tried to jump over the fence, at which point he had the exchange to which the oil-changing neighbor had testified. The flophouse occupants then invited him into their apartment. He abandoned his shirt to avoid detection; he was wearing another underneath. He did not have a gun with him, and did not have one at home. The witness had observed his metal marijuana pipe. Eventually, he left the apartment and went to the home of a friend in order to call his wife, who came to pick him up and take him back to Ripon.
He had not told the truth in the police interview because he feared retaliation from other gang members. In point of fact, after previously testifying about the drug seller (in his first trial), gang members beat him up in jail.
DISCUSSION
1.0 The Conviction and Enhancements for Gang-related Activity
1.1 The Evidence Is Insufficient to Support the Conviction
The offense of active participation in a criminal gang (Pen. Code, § 186.22 subd. (a)) requires as an element "that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1132 (plur. opn. of Corrigan, J.); id. at pp. 1139-1140 (conc. opn. of Baxter, J.).) The People concede that this decision, rendered after entry of judgment in the present case, applies retroactively because it established the meaning of a statutory enactment and did not overrule controlling authority or a uniform body of law. (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1023.)
Undesignated statutory references are to the Penal Code.
There is an absence of any evidence of the participation of any additional gang members in the murder and attempted murder. While defendant testified he experienced retaliation from gang members for naming the actual shooter in his previous trial, he did not testify that his purported supplier's seller was in fact a member of his gang. The People properly concede that we must as a result reverse the conviction and direct dismissal of count 4, resulting in an eight-month reduction of the determinate term. We also will direct the trial court to issue an amended determinate abstract of judgment.
1.2 The Evidence Is Insufficient to Support the Enhancements
As noted, the trial court stayed the gang enhancements, which the minimum terms for defendant's indeterminate sentences exceed. Defendant asserts the enhancements are material in any event because they could have adverse consequences at a parole hearing. (See People v. Johnson (2003) 109 Cal.App.4th 1230, 1238.) As slight a possibility as that may be, we will address his claim.
The principle that a lone actor cannot commit the substantive offense of gang participation does not apply to the enhancement provision for gang-related activity. (People v. Rios (2013) 222 Cal.App.4th 542, 546, 564.) Therefore, the insufficiency of the evidence to support the substantive gang offense does not have any import in this context.
The first element of a gang enhancement requires evidence that a defendant committed an offense for the "benefit" of (or in "association with") a criminal gang. (§ 186.22, subd. (b)(1).) This necessarily requires proof of the existence of the criminal gang, which involves evidence of three or more persons associating under a common name or insignia with a primary activity of committing at least one criminal act specified in the statute, and proof that members of this association engage (alone or together) in a "pattern" of gang activity involving two or more of the specified criminal acts. (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley); § 186.22, subds. (e) & (f).)
Although the statute has been amended since defendant's commission of his offenses, the material provisions are unchanged and thus we cite to the currently effective statute.
Defendant argues the evidence is insufficient because it did not establish that he committed the offenses for the benefit of (or in association with) the particular subset of the umbrella gang organization to which he belongs. Departing from the majority view previously prevailing (including our decision in Prunty), the Supreme Court concluded that "where the prosecution's case positing the existence of a single 'criminal street gang' for purposes of section 186.22[, subdivision ](f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Prunty, supra, 62 Cal.4th at p. 71.)
As defendant summarizes in his brief (without contradiction from the People as to his accuracy, and as confirmed in our review of the record), the gang expert described the relationship between a particular prison gang and its affiliated members outside of prison, asserting generally that the members were required to take actions on behalf of the gang and offer financial tribute to it. The gang expert did not describe any particular connections between the prison gang and any particular subsets, or between subsets. He did not testify about any predicate offenses that defendant's particular subset (originating in a small housing project in Salinas) had committed. Instead, he testified about offenses that the members of two other subsets had committed. Analogizing to professional football, he contended the various subsets were different teams, but all of them pledged allegiance to the overall structure flowing from the prison gang. While in Southern California there is some conflict among different subsets, this is less common in Northern California and it is mostly nonexistent in the city where defendant committed these offenses.
We need to be clear about the ratio decidendi of Prunty. The opinion described our opinion as upholding a gang enhancement based solely on evidence that a defendant (who declared his "identification" with the larger association) espoused being part of a particular subset, and shouted the name of the larger association in a confrontation with rival gang members (as well as slurs for the rivals commonly used among those affiliated with the larger association); different subsets were responsible for the predicate offenses at issue, and the only evidence of the connection among subsets was shared gang signs, symbols, colors and names. (Prunty, supra, 62 Cal.4th at pp. 67, 68-69, 72, 76, 83-84.) "[T]he Court of Appeal reasoned [that] evidence of 'a common name . . . and common identifying signs and symbols . . . ' coupled with the existence of 'a common enemy . . . ' is sufficient to show that a criminal street gang exists." (Id. at p. 70.)
Prunty concluded this was not sufficient. There must be proof of more than merely "a common ideology that appears to be present among otherwise disconnected people." (Prunty, supra, 62 Cal.4th at p. 76, italics added.) Prunty offered "illustrative examples" of the manner in which to prove that disparate subsets are in fact connected such that the actions of one can be attributed to another. (Id. at pp. 76-78.) Even absent a formal hierarchy, different subsets can be connected if controlled by the same "hub" entity through leaders in the subset who answer to it, if the subsets provide financial support to it, or if they are subject to similar rules of conduct that the larger organization prescribes. (Id. at p. 77.) Acting in concert with other subsets, professing loyalty to one another, intermingling socially, expressly recognizing mutual affiliation, or having interchangeable membership also permits a rational inference of at least an informal connection. (Id. at pp. 77-79.) Prunty seems to have also suggested that it would be a sufficient connection if the other subset "self-identi[fies]" with the same larger organization with which a defendant and his subset self-identify (although finding an absence of any direct or circumstantial evidence on this point in the expert's testimony regarding the other subset). (Id. at pp. 79, 83.) Prunty also observed that " 'internecine warfare' " among subsets does not of itself prevent a finding of an associational connection. (Id. at p. 80.)
A number of cases have found equally deficient evidence in light of Prunty. (People v. Cornejo (2016) 3 Cal.App.5th 36, 49-50 [mere ideological connection with larger organization insufficient absent particular evidence of behavior or practices demonstrating connection]; People v. Franklin (2016) 248 Cal.App.4th 938, 950-951 ["no evidence whatsoever" of associational connections other than generalized testimony about link between larger organization and subsets not tied to predicate offense subset]; People v. Nicholes (2016) 246 Cal.App.4th 836, 845, 846-848 [general control over subsets insufficient; "At a minimum, Prunty requires that the prosecution, in a case involving . . . testimony that [a larger organization] operate[s] through subsets, introduce evidence specific to the subsets at issue" (Nicholes, at p. 848, italics added)]; People v. Ramirez (2016) 244 Cal.App.4th 800, 815-816 [evidence that subsets "aligned" with larger organization insufficient absent evidence of specific control over subsets].)
Three petitions for review were filed with our Supreme Court in Cornejo in October 2016 and review is pending, S237640.
Cases which have been able to affirm prosecutions litigated without the benefit of the criteria that Prunty would impose involve testimony of particular facts of organizational connection. (People v. Miranda (2016) 2 Cal.App.5th 829, 841-842 [detailed evidence of pyramid structure of larger organization and subsets, the rules imposed on subsets, leaders of subsets acting under direction, working in concert in commission of crimes]; People v. Vasquez (2016) 247 Cal.App.4th 909, 924-926 [testimony and photos on social media that show associations between subsets at issue; evidence of fluid membership, joint commission of crimes]; People v. Ewing (2016) 244 Cal.App.4th 359, 372 [Prunty does not apply because only one subset at issue], 374-376 [in any event, evidence that subset acted at direction of larger organization, which issued rules, required contributions, and controlled leaders; members also socialized together].)
Three petitions for review were filed with our Supreme Court in Miranda during September and October 2016 and review is pending, S237452.
Having read through the entirety of the gang expert's testimony in this matter, it is clear to us that it does not fall within the type of case in which we can find sufficient evidence of associational connections post-Prunty. At best, the expert offered testimony that simply explained generally the connection with the larger prison organization and members on the outside, which included a "tax" paid to the larger organization. He did not describe any structural connections between the larger organization and the particular subsets, or among these subsets; any rules imposed on these subsets; any control that the larger organization exercised on these subsets through their leaders; social connections among these subsets; fluidity of membership (beyond defendant associating with Bay Area gangs in addition to his home gang); or how financial contributions flowed to the larger organization. Rather, like the cases finding insufficient evidence, his testimony focused on ideological affinity and the common use of a name with identifying signs and symbols. We thus find the evidence is insufficient to support the enhancements and will strike them.
2.0 The Admission of Evidence for the Basis of the Gang Expert's Opinion
Defendant maintains that while the gang expert "did not always specify the source of his information, the only reasonable inference to be drawn from his testimony is that many of the 'facts' he was relaying came from police reports or other testimonial statements," thereafter specifying over the course of three pages particular portions of the testimony. He then acknowledges Gardeley, supra, 14 Cal.4th 605, which held that the basis for an expert's opinion is not subject to the hearsay rule (on the theory that it is not admitted for the truth of any assertions), and People v. Hill (2011) 191 Cal.App.4th 1104, 1127-1131, which was critical of applying this holding in the context of the right of confrontation but concluded it was obligated to do so under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. He contends, however, that the concurring and dissenting opinions in Williams v. Illinois (2012) 567 U.S. ___ combine to create a holding contrary to Gardeley, which this court should follow to reverse the judgment for the admission of this prejudicial hearsay in violation of his right to confrontation.
We disagree that this combination of concurring and dissenting opinions has any effect as a holding allowing us to disregard a holding of the California Supreme Court. (People v. Whitfield (1996) 46 Cal.App.4th 947, 956-957 [federal high court's "clearly decided" premise must be followed over contrary state holding]; People v. Rooney (1985) 175 Cal.App.3d 634, 644 [must follow California Supreme Court if federal high court "has never squarely ruled on the issue"]; see Seminole Tribe of Florida v. Florida (1996) 517 U.S. 44, 67 [only the portions of a United States Supreme Court opinion necessary to the result constitute holding].)
However, Sanchez has recently refuted Gardeley and all cases that followed it. "[C]ase-specific statements related by [a] prosecution expert concerning [a] defendant's gang membership constitute[] inadmissible hearsay under California law," and erroneous admission of this evidence, if it constitutes testimonial hearsay, must be harmless beyond a reasonable doubt to uphold a conviction. (Sanchez, supra, 63 Cal.4th at pp. 670-671, 680, 684, 686 & fn. 13.)
Given the uniformity of the precedent that Sanchez overturned, the People's claim that defendant forfeited this argument because he did not object on this basis in the trial court is not well taken.
Given that we are reversing the substantive gang offense and striking the gang enhancements, the only way in which defendant can claim prejudice is if there is any reasonable doubt that admission of this evidence contributed to his other convictions. If we assume for the sake of argument that all of this evidence was testimonial, we do not entertain any such reasonable doubt.
Defendant admitted being present for the shootings, but attributed them to a mysterious third party. It is thus a question of whether this evidence made defendant any less credible. As noted above, he freely attested to his gang membership, and in his statement to the police, he noted even his fellow gang members were wary of his aggressive propensity for physical violence. Thus, evidence of gang participation and a violent nature were before the jury anyway. The present jury was, of course, instructed not to use gang evidence as proof of propensity, and the previous jury was obviously not inflamed by the same gang evidence into convicting him. The testimony defendant challenges in his brief is not particularly more egregious than the crimes of which he was accused, or being a self-admitted aggressor. We therefore are convinced beyond a reasonable doubt that the admission of this evidence did not affect the jury assessment of his credibility in rejecting his implausible defense.
We provide a brief précis of the testimony defendant identifies: the predicate offenses and their underlying facts, as well as an allusion to the murder of an inmate who had tried to reconcile two rival prison gangs; information about the subset to which defendant belonged; and details of defendant's gang-related activity (fighting in public with a knife, being a passenger in a car with a shotgun in the trunk, stealing car stereos, firing gun at rival, possession of methamphetamine, driving a stolen car, and participation in a gang fight).
3.0 Defendant Has Forfeited His Claims of Misconduct
Over the course of five pages, defendant identifies what he calls instances of the prosecutor's argumentative cross-examination of him. He also contends that in closing arguments, the prosecutor (1) impermissibly asserted that if the supplier existed, the defense would have subpoenaed him, that it was his personal decision to prosecute defendant, and that his office did not prosecute victims; (2) misstated evidence, and referenced extrajudicial evidence regarding police protocols; and (3) urged jurors to use gang evidence for purposes of propensity. He admits that "[e]xcept for trial counsel's objection to the prosecutor asking [him] whether a [member of his gang] committing torture would thereby gain respect, trial counsel failed to object to the prosecutor's [questioning and argument]." However, in cursory fashion, he asks us to exercise our discretion to address forfeited contentions, suggests the relentless nature of the misconduct forced trial counsel to accede without objection, and baldly asserts "there [does not] appear to be [any] viable reason for defense counsel" not to object (without giving any further analysis of this assertion).
The objection was to the form of this hypothetical question. Following an unreported sidebar conference, the trial court asked the prosecutor to rephrase, and defense counsel did not renew his objection.
Failure to lodge a contemporaneous objection and a request for an admonition forfeits any claim of prosecutorial misconduct, except where a defendant affirmatively establishes on appeal that it was irremediable or it was futile to object, with more than a "ritual[ized] incantation" to this effect. (People v. Panah (2005) 35 Cal.4th 395, 462.) Defendant has not established futility on the present record. People v. Jones (1997) 15 Cal.4th 119, 181 observed that objecting at the outset could cut off any subsequent misconduct, and therefore having numerous instances of unchallenged purported misconduct is not a basis for excusing forfeiture. People v. Pitts (1990) 223 Cal.App.3d 606, 692 is inapposite: "[E]arly on in trial, it became abundantly clear that any objections by defense counsel on the grounds of prosecutorial misconduct would be overruled and requests for admonitions denied or ignored." Defendant has failed to identify similar circumstances in his trial. Defendant also fails to particularize the manner in which the prosecutor's conduct could not have been the subject of an effective admonition.
Defendant's attempt to reach the issue under the guise of ineffective assistance of trial counsel fails in two regards. In the first place, direct appeal is almost inevitably the inappropriate forum for establishing that the inherently tactical choice of failing to raise an objection to misconduct fell below reasonable professional standards. (People v. Lopez (2008) 42 Cal.4th 960, 966, 972.) In the second place, defendant does not provide anything more than a perfunctory analysis of how the failure to object in each instance did not meet objective professional standards; "[t]his will not suffice" (People v. Mitchell (2008) 164 Cal.App.4th 442, 466-467 [rejecting claim of ineffective assistance on this basis]). This is particularly true where trial counsel was in a position to observe the manner in which this trial unfolded in comparison with the first trial, and calculate whether any of the instances defendant identifies on appeal were of any moment. As a result, we will not countenance this exercise in frivolous second-guessing of trial counsel. If in fact trial counsel did not have any strategic basis for allowing the prosecutor's actions, defendant has a remedy in habeas corpus, if he can establish resulting prejudice.
Finally, although we have discretion to consider an issue regardless of forfeiture, this applies where it raises a question of law on such undisputed facts as appear in the record on appeal. (Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 73; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 415, pp. 473-474.) However, this is a disfavored course of action; it is unjust to the opposing party, unfair to the trial court, and contrary to judicial economy (i.e., a waste of the time of the parties and the judicial branch) since it encourages the embedding of reversible error through silence in the trial court. (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 873.) As a result, we ordinarily exercise our discretion to excuse forfeiture "rarely and only in cases presenting an important legal issue." (In re S.B. (2004) 32 Cal.4th 1287, 1293.) The circumstances of the present case hardly satisfy this stringent criterion. As a result, the claim of prosecutorial misconduct is not cognizable in this appeal.
4.0 Trial Counsel Was Not Ineffective in Failing to Limit Gang Evidence
In general, defendant faults trial counsel for not filing any "motions in limine seeking exclusion or limitation of the gang affiliation evidence." In particular, he (1) asserts defense counsel should have objected to much of the expert's testimony as "violat[ing] the basic limitations on expert witness testimony"; (2) reiterates his earlier argument that the "extensive testimonial [hearsay] materials" conveyed to the jury that defense counsel approved of such statements (recast in the guise of allowing "highly prejudicial" hearsay evidence); and (3) contends trial counsel allowed the expert to "paint all . . . gang members as uniformly violent sociopaths," give other opinions about gangs lacking any factual basis that the trial court would have excluded, and give unsupported testimony about defendant's gang participation. Finally, he asserts trial counsel should have prevented any references to the prison gang from which defendant's gang derives.
For the reasons we have just expressed above, we may plausibly posit on direct appeal that a reasonable defense attorney who had obtained a hung jury despite similar evidence in the previous trial (defendant not having articulated any distinction between the scope of the gang evidence in the two trials) would not have felt compelled to make an objection in the second trial. Defendant's claim of ineffective assistance thus fails.
DISPOSITION
The conviction for the substantive gang offense is reversed with directions to dismiss the count (count 4). The judgment is modified to strike the determinate term for that offense, and to strike the two gang enhancements. The trial court shall file amended abstracts of judgment and forward certified copies to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
BUTZ, J. We concur: BLEASE, Acting P. J. DUARTE, J.