Opinion
G052759
04-19-2017
THE PEOPLE, Plaintiff and Respondent, v. HERIBERTO VELASQUEZ, Defendant and Appellant.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison Hawley and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13ZF0170) OPINION Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison Hawley and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Heriberto Velasquez of assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4); all further statutory references are to this code) with a gang enhancement (§ 186.22, subd. (b)(1); hereafter § 186.22(b)(1)) for participating in a group beating of a fellow inmate at Theo Lacy jail. Velasquez challenges the sufficiency of the evidence to support the jury's conclusion he was one of the attackers depicted in a videotaped recording of the beating. He also challenges the sufficiency of the evidence to support the gang enhancement, and he contends he received ineffective assistance of counsel when his trial attorney failed to object to the prosecutor's closing argument that treated the gang expert's reliance on a nonhearsay statement as if it had been admitted for its truth. These contentions are without merit, and we therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Around 11:00 p.m. on April 13, 2012, a jail inmate contacted Deputy Skylar Matson at his guard station in F barracks to report an assault. Matson found the victim, Harvey Acosta, noticed the right side of Acosta's face was red and swollen, and escorted him from the barracks to receive medical attention. Matson then returned to the guard station to review footage from the 11 security cameras in F barracks, which consists of dormitory cubes of eight to twelve bunk beds grouped together in a large community housing area, rather than individual jail cells. Each inmate is assigned to a particular bunk.
Using the video footage, Matson identified five inmates who participated in the beating. The prosecutor played an excerpt from one camera angle at Velasquez's trial. The footage showed several inmates run to a darkened area by some bunk beds in a back left corner of the barracks. Because of the distance from the camera and darkness in that spot, the action depicted on the video is indistinct at first, but then Acosta breaks free and runs toward the camera in the lighted area of the barracks by a broad staircase, pursued by three attackers who grapple with him and strike him. In quick succession, one attacker retreats, two others throw Acosta to the ground, another retreats, and then the third attacker moves around Acosta's prone body (and closer to the camera) to deliver a solid kick with his left leg to Acosta's head. Acosta's arm, however, appears to partially deflect the blow. The attacker runs a step or two closer to the camera, slows his gait to a walk as he crosses in front of the staircase, continues to the right side of the room while looking back at Acosta, who stands up, and then the attacker proceeds to the back right area of the barracks, where he removes his shirt and throws it onto a top bunk.
As Matson later explained, that bunk belonged to Velasquez. It is difficult to discern from the security footage particular details in the third attacker's face due to the average quality of the recording. We have reviewed the DVD submitted in evidence, and the video footage is not a high-definition recording. But the footage clearly depicts the third attacker's physical features, including height, size and shape of his face, his shaved head, and the size, shape, approximate weight, posture, bearing and movement of his body, head, and limbs.
The prosecutor called Matson to testify at trial, but failed to ask him to identify Velasquez from the video or to testify that he was the third attacker depicted in the video. Instead, the prosecutor asked, while pointing to a frame from the video, "Okay. Deputy Matson, you saw this individual right here, okay, and you saw him go back to that bunk. Were you able to identify that individual — were you able to identify this person right here that I'm pointing to on People's [Exhibit] 3 by his bunk assignment." (Italics added.) Matson answered affirmatively, stating it was Velasquez.
Earlier in his testimony, answering a question not specifically tethered to the video evidence, Matson identified Velasquez in court. In reviewing jail records showing Velasquez's assigned bunk in F barracks, the prosecutor asked Matson, "Are you familiar with Mr. Velasquez?" Matson answered yes, and pointed to Velasquez in the courtroom. Matson also authenticated Velasquez's booking photo taken two months before the assault. The photo showed Velasquez's shaved head, which was "[d]ifferent from his appearance in court today" because Velasquez had grown out his hair. Acosta, the victim, did not testify, nor did Velasquez.
II
DISCUSSION
A. Identity
Velasquez challenges the sufficiency of the evidence to support the jury's conclusion he participated in assaulting Acosta. His claim fails under the standard of review. An appellate court must review the record in the light most favorable to the judgment below. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 576-578.) The test is whether substantial evidence supports the jury's verdict, not whether the appellate panel would reach the same conclusion beyond a reasonable doubt. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) It is the jury's exclusive province to weigh the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) The fact the circumstances could be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Accordingly, a defendant "bears an enormous burden" when challenging the sufficiency of the evidence. (Sanchez, at p. 330.)
In particular, for "'a reviewing court to set aside a jury's finding of guilt[,] the evidence of identity must be so weak as to constitute practically no evidence at all.'" (People v. Prado (1982) 130 Cal.App.3d 669, 674 (Prado), abrogated on other grounds by People v. Howard (1992) 1 Cal.4th 1132, 1175, fn. 17; accord, People v. Mohamed (2011) 201 Cal.App.4th 515, 521 (Mohamed).) Consequently, "'it is not essential that a witness be free from doubt as to one's identity'" to sustain a conviction. (Prado, at p. 674.) Rather, a conviction may stand where an eyewitness fails to select the defendant's photograph from a photographic display; or an eyewitness provides a description of the assailants inconsistent with that of the defendant. (Ibid.) Such failures and inconsistencies impact only the weight of the evidence, not its sufficiency. (Ibid.)
Here, the jury did not have to sort through possible inconsistencies in eyewitness testimony, and instead was able to view the assault as it was captured on the jail security footage. The video showing Velasquez kick Acosta was well-lit, in full color near the center of the camera's view, and appears from the size of the individuals depicted on the video to be taken from an effective distance of 20 or 30 feet. Velasquez relies on the fact that in denying his midtrial motion to dismiss the assault charge (§ 1118.1), the trial court observed, "It's true that you can't know for sure who it is just by looking at the video." Velasquez also relies on the fact Matson was not asked to identify him based on the attacker's physical appearance in the video, but instead based his identification on the person throwing his shirt on Velasquez's bunk. Velasquez argues, as he did to the jury, that a savvy actor might do just that "to mislead any subsequent investigation."
It is not clear whether the camera used a zoom lens or not.
But these were considerations for the jury to weigh. Where, as here, the circumstances surrounding the perpetrator's identity and the weight to be afforded that evidence has been exhaustively investigated at trial, the trier of fact's evaluation of the evidence — reflected in the verdict — is binding on the reviewing court. (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) In particular, the full color, well-lit security footage was powerful evidence of the attacker's identity, in conjunction with the circumstantial evidence showing Velasquez's bunk location and that, like the attacker, he had shaved his head near the time of the assault, contrary to his appearance at trial.
Through the video, the jurors in effect witnessed the assault, but they also personally observed Velasquez through three days of trial. Consequently, they had ample opportunity to decide whether he was the person shown in the video. That person looked up in the direction of the camera after kicking Acosta, and while his exact facial features were indistinct because of the quality of the recording, he remained on screen for several seconds as he moved toward the bunk area, with a clear view of the size and shape of his face, his height, the size and shape of his body, his gait, and other physical characteristics. The jury presumably was able to replay this footage in the jury room, if needed. "'[I]t is not necessary that any of the witnesses called to identify the accused should have seen his face.' [Citation.]" (Mohamed, supra, 201 Cal.App.4th at p. 521.) The video, the jury's courtroom observations, and the circumstantial evidence including Velasquez's bunk assignment and booking photo, constitute substantial evidence supporting the jury's conclusion Velasquez was one of the inmates who assaulted Acosta. His challenge on appeal therefore fails. B. Gang Evidence
Velasquez also challenges the sufficiency of the evidence to support the gang enhancement. The same standard of review applies. Specifically, "[w]e presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 60.)
Velasquez contends we must reverse the gang enhancement for lack of evidence in three respects: (1) that he participated in the assault for the benefit of, at the direction of, or in association with the Mexican Mafia prison gang; (2) that he harbored the specific intent to promote, further, or assist in criminal conduct by the Mexican Mafia; and (3) the nature of the Mexican Mafia's primary activities qualifying it as a criminal street gang. Of particular importance, Velasquez notes without contradiction by the Attorney General that there was no evidence showing he was a gang member or that before assaulting Acosta he associated with the Mexican Mafia, a prison gang. We address each of his evidentiary contentions in turn.
The gang enhancement provides for increased punishment for "any person who is convicted of a felony 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 . . . ." (§ 186.22(b)(1).) Belonging to a criminal street gang bolsters the conclusion that a defendant acted with the intent to benefit his or her gang (People v. Sanchez (2016) 63 Cal.4th 665, 698), but proof of "that fact [i]s neither necessary nor sufficient to establish any element of the gang enhancement." (People v. Valdez (2012) 55 Cal.4th 82, 132.) To the contrary, by its terms, the enhancement applies when a defendant commits an offense at the direction of a criminal street gang (§ 186.22(b)(1)), as the prosecutor argued below.
Ample evidence supports the conclusion the Mexican Mafia ordered Acosta's beating and, while less than overwhelming, the evidence also supports the jury's finding Velasquez participated in the group beating because of the order. The prosecution's gang expert, Orange County Sheriff's Deputy Robert Blackburn, explained that multiple "kites" had been found throughout the jail placing Acosta on a Mexican Mafia "hard candy" list. As Blackburn explained, such lists identify individuals who are in "bad standing" with the gang and therefore subject to assault at the gang's behest solely because they are on the list. A listed individual may be continuously assaulted on sight "up to and including possible death" or intervention by jail or law enforcement personnel, while "[a]t the bottom of a hard candy list is the green light list," under which the person would "take a beating once a week." An "HC" by the person's name expressly authorized attempts to kill the individual, while a "GL" for green light marked the person for the weekly beatings.
Blackburn also explained that kites are written messages passed by jail inmates to communicate information, including pending assaults, drug trafficking, who is in custody, and activities in other facilities or outside the jail. Mexican Mafia kites often included a Mayan symbol used by the gang, the kanpol, consisting of two bars and three dots, or they might include the Spanish term "llaves" (keys) indicating authority under the gang's hierarchy to issue the message.
Blackburn's testimony was not particularly clear in all respects, but he explained that the Mexican Mafia emerged in California prisons in the late 1950's to protect Hispanic inmates from "getting bullied," presumably by inmates of other races. Its purpose and domain therefore extended to protecting, controlling, and exerting influence and authority over Hispanics of Southern California origin in California prisons, while another prison gang, the Nortenos, did the same for Northern California Hispanics. In other words, by default a "southern Hispanic inmate" falls under the Mexican Mafia's protection and asserted authority as a "Southsider."
But Blackburn also explained the Mexican Mafia held out opportunities for upward mobility within the gang, if desired. One could "cross the line" from a default Southsider to a "Sureno," or associate, by "actually . . . putting in work" for the gang, "whether it be passing one of those kites that I explained, [or] hit[ting] someone on the hard candy list." In Blackburn's words, "That's when you cross that line from just a southern Hispanic inmate doing his time in jail following the rules that the Mexican Mafia says we got to do to actually trying to be an associate of the Mexican Mafia." Associates, in turn, could advance further up the hierarchy by serving as "key holders" or authority figures in particular areas of the jail, and three Surenos or other trusted associates constituted another level of Mafia authority called a "mesa." These key holders and mesas were spread throughout the jail to help the three or four leaders at the top of the Mexican Mafia's Orange County power structure run the gang within the jail.
Officers at the jail found, and booked into evidence, five kites that included Acosta's name on hard candy lists. The first kite was intercepted the day before Acosta's assault, and four more were recovered after. One in particular specified Acosta's housing location and included the "llaves" authorization term. It contained the kanpol symbol and was marked "hot," which Blackburn explained meant it was not to be shared with anyone other than southern Hispanic inmates.
After the assault, Blackburn listened to recordings of Acosta's phone calls from jail and learned Acosta and his girlfriend arranged for his girlfriend's mother to bring flat screen TV's "to Mexican Mafia members on the street to get him removed from the hard candy list." It is not clear whether these phone calls took place before or after Acosta was beaten, but as Blackburn explained, often inmates "have paid two or three times" for delisting, but the gang "continue[s] to just leave them on the list." No evidence, however, connected anyone associated with Velasquez to the actual TV transfers.
Based on its racial origins in the prison system, the Mexican Mafia closely controlled assaults involving multiple Hispanic inmates and even fighting between individual Hispanics. Blackburn explained that the gang hierarchy viewed intraracial fights as a sign of weakness, and therefore required prior approval from the gang representative in the barracks. Repercussions for unauthorized fighting or breaking other gang rules could be "severe," including beatings or other "taxation" methods, such as losing commissary money, 200 or 300 more squats in the jail workout room, or payments by family and friends outside the jail. But jail authorities found no evidence of any reprisals after Acosta's beating.
When the prosecutor posed a hypothetical to Blackburn mirroring the facts of the case, he gave his opinion that such an assault would be directed by and committed for the Mexican Mafia's benefit. He explained that when southern Hispanic inmates assault someone on a hard candy list, particularly in a communal setting — and here the video showed dozens of inmates milling about — it benefits the Mexican Mafia because it instills fear and intimidation in the jail population and shows others they also could be assaulted if they cross the gang. He explained that an inmate who is not a gang member may still participate in assaulting someone on the gang's hard candy list, and such an assault both "aid[s] and abet[s]" the Mexican Mafia and takes place at the gang's direction.
The foregoing evidence supports the conclusion that an inmate who learned of the kites would understand the Mexican Mafia ordered Acosta's beating, but it is less clear from the evidence recited in the Attorney General's brief that Velasquez had that knowledge. Bancroft acknowledged none of the kites had been found in Velasquez's possession, nor was he sure whether Velasquez "ever saw any of these [hard candy] lists." The Attorney General's brief states that "[i]f a person is placed on a hard candy list, inmates in the F barracks are expected to assault that person," citing Bancroft's testimony to that effect. That is a thin, rather conclusory reed.
But our review of the record shows there was much more to support Bancroft's opinion. He explained that he worked in "general housing" among the jail inmates for three years and personally observed that "[w]henever a hard candy list is dropped into a housing area, all of the inmates that are southern Hispanics, I saw it probably 20, 30 times, would go over and they would pass that list around amongst each other. And I would watch them step up and agree to who was going to go [m]ake that hit."
Blackburn acknowledged he did not see Velasquez "read a list," but he further explained that southern Hispanic inmates generally know "about the policies of the Mexican Mafia" because "we watch them everyday on camera and watch their politics and how . . . they beat the people on the hard candy list" in view of other inmates, who therefore come to know of and submit to "the structures that have been set in place by the California Mexican Mafia." Of critical importance, Bancroft also explained the role of a barracks "key holder," including in F barracks: "It's his duty to make sure that the southern Hispanics know the add-ons to the hard candy list." (Italics added.) He explained that when names are added to the list, the key holders disseminate that information "so when that person [on the list] comes into their housing location, everyone knows who that guy is and what he has coming."
The jury reasonably could conclude based on this information that Velasquez knowingly participated in an assault the Mexican Mafia ordered. His conduct therefore falls within the terms of the two prongs of the gang enhancement, requiring (1) that the defendant committed a felony "for the benefit of, at the direction of, or in association with any criminal street gang," and (2) that he did so "with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (§ 186.22(b)(1).)
Specifically, under the first prong, the gang enhancement applies only if the defendant's offense "is 'gang related.'" (People v. Gardeley (1996) 14 Cal.4th 605, 622 (Gardeley), disapproved on another ground in People v. Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) It therefore follows that if Velasquez did not know of and intend a gang purpose in inflicting the blows he landed on Acosta, either for the Mexican Mafia's benefit or at its direction, the enhancement would not apply to the assault he committed. Even if others in a group assault harbor a gang purpose, it is possible one individual may have nursed solely personal reasons unrelated to the gang to strike the victim, particularly if he or she did not know it was a gang assault.
But because the terms of the enhancement's first prong are disjunctive, the enhancement applies "without evidence of any benefit to the gang so long as the crime was committed . . . at the [gang's] direction." (People v. Weddington (2016) 246 Cal.App.4th 468, 484.) Based on the evidence the Mexican Mafia ordered the beating and that Velasquez knew this, the jury reasonably could conclude he knowingly participated in an assault at the gang's direction. That is enough. (Ibid.; § 186.22(b)(1).) Although unnecessary, the jury also could conclude Velasquez intended to benefit the gang, either because he sought by participating in the assault to advance to associate or Sureno status, or simply that aiding the gang would benefit him even if he remained a common Southsider, based on the Mexican Mafia's influence in the jail.
The second prong of the gang enhancement is similarly satisfied. The requisite specific intent is to "promote, further, or assist in 'any criminal conduct by gang members'" (People v. Romero (2006) 140 Cal.App.4th 15, 19, original italics.) With the evidence that the Mexican Mafia ordered Acosta's beating, and that Velasquez knew this, the jury reasonably could conclude he specifically intended to promote, further, and assist in the gang's criminal conduct by participating in the beating. There was no evidence Velasquez participated unwillingly, under duress, or otherwise without specifically intending to promote, further, or assist a gang assault. To the contrary, the video showed that even after the other participants fled, Velasquez moved into position so that he could inflict a final kick to Acosta's head.
Velasquez argues it was mere speculation to conclude an unnamed, unknown barracks key holder told him Acosta was on the hard candy list, as Blackburn suggested. But the jury reasonably could conclude based on Blackburn's personal observations in the jail that the names on the hard candy list are routinely disseminated among southern Hispanic inmates, even if not every inmate personally reads or carries a particular kite. Moreover, it was the jury's prerogative to credit Blackburn's testimony, again based on his ample experience with the Mexican Mafia, that it is a key holder's duty in each barracks to promulgate the hard candy list. The jury reasonably could conclude a key holder would fulfill this duty based on Blackburn's testimony explaining that departing from gang policy often resulted in severe consequences and that the gang's hierarchy was well organized and pervasive, extending into every part of the jail. The jury also could infer from Blackburn's testimony that constant competition in the gang hierarchy created an incentive to fulfill one's duties. In sum, ample evidence supported the gang enhancement based on Velasquez's knowing participation in a gang assault.
Blackburn's testimony similarly resolves Velasquez's challenge to the predicate "primary activities" finding necessary to show the Mexican Mafia constituted a criminal street gang. The "criminal street gang" component of the gang enhancement requires proof of three elements: (1) an ongoing association involving three or more participants, having a common name or common identifying sign or symbol; (2) that the group has as one of its "primary activities" the commission of one or more specified crimes; and (3) the group's members either separately or as a group have engaged in a "pattern of criminal gang activity." (§ 186.22, subd. (f), italics added; Gardeley, supra, 14 Cal.4th at p. 617.)
Velasquez disputes the sufficiency of the evidence concerning the second element. He observes that the prosecution presented certified court documents concerning convictions for only two Mexican Mafia members, Vincent Acosta and Kevin McCarthy, and that the offenses each committed did not overlap and coalesce to suggest the gang's primary activities. Instead, they showed Acosta committed some proscribed predicate offenses (§ 186.22, subd. (e)) such as narcotics trafficking and illegal firearm possession, and McCarthy committed extortion, another predicate offense. This challenge is misplaced, however, because the prosecutor introduced the certified convictions to prove the "pattern" of convictions necessary under the third element to designate a group as a criminal street gang (§ 186.22, subd. (f)), which requires proof of "two or more" predicate offenses committed "on separate occasions" or "by two or more persons" within certain time frames. (§ 186.22, subd. (e) [detailing statutory requirements to constitute a "'pattern of criminal gang activity'"].)
In contrast, the second element concerning the gang's primary activities may be shown by expert testimony. In People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324 (Sengpadychith), the Supreme Court explained: "Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in Gardeley, supra, 14 Cal.4th 605. There, a police gang expert testified that [Gardeley's] gang . . . was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. [Citation.] The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on 'his personal investigations of hundreds of crimes committed by gang members,' together with information from colleagues in his own police department and other law enforcement agencies. [Citation.]" (Second italics added.)
So it is here. Blackburn identified extortion, illegal narcotics trafficking, assault with a deadly weapon, and weapons trafficking as the Mexican Mafia's primary activities. Velasquez did not challenge Blackburn's qualifications as an expert on the Mexican Mafia and, in any event, Blackburn was well qualified to explain the gang's primary activities. In addition to 196 hours in formal gang training, including identifying gang trends and Mexican Mafia gang operations, he personally investigated over 500 gang crimes, interviewed over 1,000 gang members in the Orange County jail system as to their gang affiliations, and monitored over 2,000 inmate phone calls. He spent more than two years in the jail's special handling unit for gang members and was familiar with the criminal backgrounds of Mexican Mafia members in the jail, including maximum security inmates and the gang's jail leadership. He also personally participated in two "multi-agency takedowns" of the Mexican Mafia, which led to the indictment of 200 Mexican Mafia members and associates.
This background distinguishes Velasquez's reliance on People v. Perez (2004) 118 Cal.App.4th 151 (Perez) and In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander). In Perez, there was "[n]o expert testimony such as that provided in People v. Gardeley" (Perez, at p. 160), and in Alexander, a panel of this court explained it was not enough for the expert to state, without any background how he "obtained the information," that he "kn[e]w" the gang was "'involved in murders'" and "'involved with auto thefts'" and other crimes. (Alexander, at p. 611.) Indeed, the expert in Alexander did not testify those offenses constituted the gang's primary activities, but instead admitted on cross-examination "that the vast majority of cases connected to [the gang] that he had run across were graffiti related." (Id. at pp. 611-12.) In contrast, Blackburn provided ample support in the form of his extensive experience with the Mexican Mafia to support his testimony concerning their primary activities. (Sengpadychith, supra, 26 Cal.4th at pp. 322, 324; Gardeley, supra, 14 Cal.4th at p. 612, 620.) Velasquez's challenge therefore fails. C. Ineffective Assistance of Counsel
Velasquez contends he received ineffective assistance of counsel (IAC) when his trial attorney failed to object to the prosecutor's multiple references during closing arguments to the kites as proof that the Mexican Mafia ordered Acosta's beating. During trial, counsel had objected to admission of the kites on "foundation" and "hearsay" grounds. Counsel's foundation objection concerned establishing the "chain of custody and the method by which this kite was located, how it was located," and similar issues, but it appears counsel abandoned the objection when the prosecutor offered to "bring in the deputy [who had booked the kites into evidence] tomorrow." In any event, the trial court also observed that any gaps in the chain of custody would go only to the weight of the evidence, rather than a basis to exclude reference to the kites, and Velasquez does not challenge that ruling on appeal.
The trial court resolved the hearsay objection by observing that the kites were "not being offered for the truth [of] the matter asserted as I understand it," which the prosecutor confirmed, stating, "No. It's being offered to — for — basis for this Deputy Blackburn's opinion that . . . Acosta was on the hard candy list. So he'll look at the kite. He'll review it and incorporate that hearsay into his opinion." On that basis, the trial court overruled the hearsay objection, and Velasquez does not argue the trial court erred. Because the prosecutor referred to the kites several times during his closing argument as if they, rather than Blackburn's opinion based on the kites, showed the Mexican Mafia directed Acosta's assault, Velasquez now argues his attorney's failure to object deprived him of his constitutional right to effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 693-694 (Strickland).)
To prevail on an IAC claim, the defendant must show that counsel's performance was deficient under an objective standard of professional responsibility, and that it is reasonably probable the defendant would have received a more favorable result at trial if counsel had not erred. (Strickland, supra, 466 U.S. at pp. 687, 694, 697 [the alleged misstep must have affected the verdict, undermining confidence in the outcome].) If no prejudice is shown, the reviewing court need not scrutinize counsel's failure to object for any deficiency. (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) Here, we conclude an objection would not have made a difference because Velasquez does not dispute that Blackburn was entitled to rely on the kites in forming his opinion that a southern Hispanic inmate participating in such an assault would do so at the direction of the Mexican Mafia and for its benefit. Consequently, an objection or series of objections during closing argument only would have resulted in an admonishment or reinstruction directing the jury to Blackburn's opinion, rather than the kites. We presume jurors follow the court's instructions. (People v. Houston (2005) 130 Cal.App.4th 279, 312.) As discussed, Blackburn's testimony provided ample support for the verdict. Velasquez does not argue the trial court erred in permitting Blackburn to rely on the kites and disclose them to the jury as part of the basis for his opinions. Consequently, we discern no prejudice.
III
DISPOSITION
The judgment is affirmed.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.