Opinion
NOT TO BE PUBLISHED.
Super. Ct. No. CM018068.
ROBIE, J.
A jury found defendant Teng Yang guilty of firing a nine-millimeter semiautomatic handgun into a crowd of young people outside a dance. Defendant contends the trial court erred in denying his motions to have the jacket he was wearing that night tested for gunshot residue or, alternatively, to appoint new counsel to investigate whether his attorney’s failure to have done that before or during trial constituted ineffective assistance of counsel. Further, he argues: (1) the court erred in admitting statements detectives elicited from him in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] and in admitting evidence obtained in a warrantless search; (2) substantial evidence does not support the jury’s gang enhancement finding; (3) the court erred in denying his motion to bifurcate the trial of the gang enhancement allegation from the trial on the assault charge; (4) one of the jury instructions proposed by the People should not have been given; and (5) imposition of the upper terms for assault and a firearm enhancement violated his Sixth Amendment rights. We conclude the expert opinion testimony proffered in support of the gang enhancement does not rise to the level of substantial evidence and we shall reverse that finding. We also conclude the upper terms were not properly imposed here. In all other respects, we shall affirm the judgment.
FACTUAL BACKGROUND
At about 11:00 p.m. on October 12, 2002, a shooting took place at a dance at Bidwell Junior High School in Chico. The shooter shot into a group of people with a nine-millimeter semiautomatic weapon and hit Fue Yang. The bullet entered Fue Yang’s back, broke his scapula, exited his back, and then lodged in his head. When officers responded to the scene, they found 10 spent nine-millimeter shell casings near the entrance to the parking lot and several holes in the cement along the gymnasium wall where the victim was found.
The testimony of the eyewitnesses was riddled with inconsistencies; however, each witness identified defendant as the shooter and identified the clothing he was wearing.
Johnson Yang is Fue Yang’s 16-year-old cousin. The night of the shooting, Johnson Yang, Fue Yang, and a friend went to Chico to attend a dance party to celebrate the Hmong new year. Johnson Yang testified he recognized several gang members from the gang known as Menace Boys Crew (MBC) at the party. The reason he believed these people were members of MBC was that he saw them beat people up at school. The culprits claimed they were part of the gang, wore blue clothing, and used gang hand signs.
Johnson Yang knew defendant from school and saw him at the dance wearing a hat and a blue jacket. Defendant was in the company of John Yang, Yong Lor, Jay Lee, Paul Xiong, Fong Xiong, and Tong Xiong. Johnson Yang believed these latter people were members of MBC.
At the end of the dance, Johnson Yang was concerned there would be trouble. Members of MBC were “mad dogging” Johnson Yang and his friends during the dance. Members of MBC left the dance first, then Johnson’s group left, and then another group of MBC members followed. As they were walking in the parking lot, Johnson Yang heard seven or eight gunshots and then hit the ground. He caught a glimpse of the shooter before he went down.
Johnson Yang defined “mad dogging” as giving “bad looks.”
Johnson claimed the shooter was an Asian male wearing a hat, a rag over his mouth, a New York Yankees jacket, and baby blue clothing. Johnson Yang also testified the shooter had a long ponytail. At trial, Johnson Yang identified defendant as the shooter.
Johnson Yang also testified about a fight Fue Yang was involved in during the eighth grade with the gang members who accompanied defendant. This was suggested as the possible source of the animosity that provoked the shooting.
Johnson Yang provided the police with a list of names of people he recognized at the dance. He did not include defendant’s name on that list. The night of the shooting, Johnson Yang told the police he could not identify the shooter or provide any description of him. He was scared at the time. After that conversation, Johnson Yang spoke with his friends about the shooting. Later when he went to the police station, he told the officers defendant was the shooter.
Ian Hamlin also testified about the events of the night. Hamlin attended the dance with Fue and Johnson Yang. The three stayed at the dance until the end. When they left, someone walked up to the group and fired a gun.
Hamlin could not see the shooter’s face, but testified the shooter was wearing a black New York City jacket and hat. Hamlin believed the shooter was an Asian male. Hamlin saw defendant wearing the same clothes during the dance before he left the building.
In court, Hamlin identified defendant as the shooter. The night of the dance, however, Hamlin admitted he identified two other people as potential shooters and told officers he could not see the shooter’s face. The officer who took his statement testified Hamlin said he did not see the person who shot the gun. On cross-examination, Hamlin admitted he was not certain defendant was the shooter. He further admitted that he spoke with his friends about who the shooter was after he initially spoke with the police.
Fue Yang was a junior in high school when he testified. He has known defendant for about four years. Fue Yang testified about the fight he had with members of the MBC in the eighth grade. Fue Yang identified the MBC members involved in that fight as John Yang, Kou Yang, Fong Xiong, and Jerry Hang.
On the night of the shooting, Fue Yang recognized many of the same members of MBC at the dance. Fue Yang believed these people were gang members because he heard them claim their membership in MBC and saw them wearing gang clothing at school.
As Fue Yang’s group of friends left the building, the MBC members followed them. Other members of MBC flanked Fue Yang’s group to the side. Fue Yang suspected a fight might break out. Next, Fue Yang heard eight or nine gunshots. He ducked but was hit by a bullet. Fue Yang looked for the shooter and saw him about 50 feet away.
Fue Yang described the shooter as a tall male with hair coming out from under his hat. Fue Yang further testified the shooter was wearing a navy blue hat, a baby blue or navy blue New York jacket, and had a blue rag covering his face. Fue Yang remembered seeing defendant wearing that same jacket inside the dance before the shooting. Fue Yang identified defendant’s jacket as the one worn by the shooter the night of the shooting. Fue Yang testified that during the prior school year, defendant’s hair style was consistent with that of the shooter. At trial, Fue Yang identified defendant as the shooter.
Detective Greg Keeney testified he obtained this jacket from defendant’s home.
On cross-examination, Fue Yang first said he did not tell the officer who interviewed him defendant was the shooter, but then said he did tell the officer the shooter was defendant. Fue Yang also admitted to having spoken with his friends about what the shooter looked like after he got out of the hospital but before his final interview with the police.
In his case, defendant called the officer who interviewed Fue Yang at the hospital, Melody Davidson. She confirmed Fue Yang did not identify defendant as the shooter or anything about the shooter. The list of names Fue Yang gave that officer did not include defendant.
Eric Blair also attended the dance that night. He observed a number of young men he believed to be associated with MBC at the dance, including defendant. Blair echoed the previous testimony that when his group left the dance, someone shot at the group.
Blair saw the shooter and testified he was wearing a backwards hat, a New York City jacket, and tan pants. Further, the shooter covered his face with a blue rag and his hair was long and came out in a ponytail from under his hat. Blair observed defendant wearing these same clothes during the dance. Blair identified defendant as the shooter to police from a photographic line up and again in court at trial.
On cross-examination, Blair testified he was speculating that the person he saw inside the dance and the shooter was the same person. Further, he admitted he did not identify defendant as the shooter in his original statement, but only identified defendant to the police after having spoken with his friends.
Detectives Greg Keeney and Matthew Madden responded to the shooting. Detective Keeney asked the witnesses to the shooting to meet him at the Chico police station. The witnesses appeared to be visibly shaken and quite nervous.
Detective Keeney spoke with Johnson Yang two days after the shooting and showed him a photograph of defendant. Johnson Yang identified defendant as the shooter. Nine days after the shooting, Fue Yang picked defendant out of a photographic lineup as the shooter. Blair and Hamlin also separately identified defendant as the shooter from a photographic lineup with Detective Madden.
Blair was unable to identify defendant in the first photographic lineup shown to him. Detective Madden testified he believed the photograph of defendant in the initial lineup was not an accurate depiction of defendant.
Detective Keeney interviewed defendant. In that interview, defendant admitted he was at the dance the night of the shooting and that he had arrived at 9:30 p.m. and left around 11:00 p.m. Defendant told the detective he went to the dance with Jefferson Lee. Defendant said he was wearing a New York Yankees jacket, a black shirt, and a black hat that night. Further, defendant originally stated nothing happened at the dance, but then admitted there had been a shooting.
Detective Keeney testified defendant originally denied being in a gang, but then admitted he was a former member of the MBC. Defendant claimed he quit his membership in the gang about six months before the interview. Defendant claimed not to associate with MBC members. However, when Detective Keeney confronted defendant about Jefferson Lee’s documented gang membership, defendant asserted both that Lee was not a gang member and that defendant did not associate with Lee after the shooting.
Detective Kenney went to defendant’s home and found a baby blue New York Yankees jacket and two hats in his bedroom. He also found a collage of six photographs on the wall of defendant’s bedroom. The photographs in the collage depicted several people in various stances throwing gang signs. The words “Menace Boys Crew 2000” was written on the back of the collage in blue ink. Deputy Probation Officers Taska Wilson-Davis and Henry Vue reviewed the photographic collage and identified the people in those photographs as defendant, Jefferson Lee, Tu Xiong, Lee Tu Xiong, Fong Xiong, John Yang, Charlie Vue, Kong Vue, Kou Yang, Abraham Her, Chou Lor, and Hamazao Xzong. Those photographs further showed the participants throwing gang signs used by MBC and wearing clothing consistent with that gang.
Deputy Sheriff Daniel Harris took defendant’s photograph on September 16, 2002 -- a month before the shooting. On that date, defendant claimed he was associated with the MBC gang. Deputy Harris testified that at that time, defendant’s head was shaved but he had a ponytail on the back of his head.
Don Finkbiner is a gang enforcement officer for the City of Chico Police Department. He has taken training classes on gangs, reviewed reports of gang activities, discussed gangs with officers from other jurisdictions, and had contacts with about 700 people who have associated with or claimed membership in gangs. He has investigated over 100 gang-related crimes. Officer Finkbiner testified as an expert witness on gangs at trial. He is familiar with the MBC gang, its colors, and hand signs.
Officer Finkbiner testified about the definition of a criminal street gang under Penal Code section 186.22. He further informed the jury that MBC members have been found in Butte County, Yuba County, Sacramento, and Rancho Cordova. The gang’s primary color is blue and they use hand signs for the letters “M,” “B,” and “C.” Finkbiner testified that approximately 30 members of the MBC have been documented. Finkbiner opined that one of the primary purposes of the gang is to commit crimes, including attempted murder, assault with a deadly weapon, shooting at dwellings, and car theft.
Finkbiner testified that in January of 2001, one member of MBC, Se Yao Xiong, committed the crimes of attempted murder, attempted homicide, and shooting at an inhabited dwelling. In answer to a hypothetical posed by the prosecutor outlining the facts of this shooting, Officer Finkbiner testified it was his opinion this crime was committed for the benefit of MBC, a criminal street gang, and the shooter was a member of that gang.
Defendant called his boss at Dairy Queen, Bruce Crisp to testify. Crisp testified that he required defendant to cut his ponytail off in July 2002. Crisp testified defendant’s head was shaved in September 2002. Further, an interpreter who saw defendant on September 19, 2002, claimed he was bald at that time. Francisco Garcia similarly testified defendant shaved his head entirely bald before September 2002.
James Xiong is defendant’s second cousin. He attended the dance and saw defendant there. James Xiong claimed the shots came from about 300 feet away from the building. Further, at the same time, defendant was just leaving the building.
Thing Her also testified on defendant’s behalf. Her claimed he also attended the dance. Her saw defendant leave the dance, and then a couple seconds later, the gunshots started. Defendant was in front of Her, and the shooter was behind him.
The jury found defendant guilty of assault with a semi-automatic firearm and found several enhancements to be true: defendant used a firearm, caused great bodily injury, and committed the crime for the benefit of a criminal street gang. The trial court sentenced defendant to 32 years in state prison. Defendant appeals.
DISCUSSION
I
Defendant Waived His Right To Remain Silent
Defendant argues the trial court erred in admitting evidence obtained during his interrogation because he never confirmed that he understood his rights under Miranda, nor did he waive them. Defendant argues “[n]othing which followed the advisement [of defendant’s Miranda rights] can be construed as a waiver of those rights, save his response to questioning. Defendant’s ‘MmMumm’ reply to whether he understood the advisement of rights is equivocal; it is not an affirmative response. Further, his immediate request to have his father present is another indication that he either did not understand his rights or that he was not willing to talk to the police without a counselor present.” Defendant is wrong.
Defendant’s interrogation started out as follows:
“Det[ective Keeney]: The first thing I want to do is get some information about you.
“Def[endant]: Uh-huh.
“Det[ective Keeney]: Your full name?
“Def[endant]: Teng Yang. [Break in videotape.]
“Det[ective Keeney]: Okay. No middle name?
“Def[endant]: Nope.
“Det[ective Keeney]: Okay. What’s your address?
“Def[endant]: 1719 (unintelligible).
“Det[ective Keeney]: And that’s here in Marysville?
“Def[endant]: Uh, yes sir.
“Det[ective Keeney]: Uh, where do you go to school?
“Def[endant]: Right now, I’m enrolled in (unintelligible).
“Det[ective Keeney]: Okay.
“Def[endant]: . . . but I went to a meeting today.
“Det[ective Keeney]: Okay. So you don’t know where you’re going to school right now?
“Def[endant]: Uh, I’m enrolled in (unintelligible).
“Det[ective Keeney]: Okay. What grade?
“Def[endant]: Uh, senior.
“Det[ective Keeney]: How old are you?
“Def[endant]: Seventeen.
“Det[ective Keeney]: What’s your date of birth?
“Def[endant]: 12-07-84
“Det[ective Keeney]: Phone number?
“Def[endant]: 749-, wait, 742-4229.
“Det[ective Keeney]: Okay. Okay, Teng.
“Def[endant]: Yeah.
“Det[ective Keeney]: As you probably know, we’re investigating a shooting that occurred in our jurisdiction.
“Def[endant]: MmMumm.
“Det[ective Keeney]: Mmm, after a dance, the celebration of Mong [sic] New Year, okay. [Videotape picks up again.] Mmm, what we would like to know is what happened, what you saw and what went on there.
“Def[endant]: I was there. . .
“Det[ective Keeney]: You were there.
“Det[ective Keeney]: Okay.
“Def[endant]: . . . at a party.
“Def[endant]: . . . yes I was, sir.
“Det[ective Keeney]: Okay. Tell me about . . . Okay, you have been arrested and brought here.
“Def[endant]: MmMumm.
“Det[ective Keeney]: Mmm, and for us to talk to you, okay, um, we have to read you your rights. You understand that.
“Def[endant]: Al lright [sic].
“Det[ective Keeney]: Okay. Mmm, I don’t know if its been done. Have you ever had that done to you before?
“Def[endant]: What.
“Det[ective Keeney]: Your rights read to you?
“Def[endant]: Yeah.
“Det[ective Keeney]: Okay, you have.
“Def[endant]: MmMumm.
“Det[ective Keeney]: Okay, mmm, you have the right to remain silent. . . .
“Def[endant]: MmMumm.
“Det[ective Keeney]: [A]nything you say can and will be used against you in a court of law. You have the right to an attorney, if you cannot afford an attorney, an attorney will be appointed to you by the court. Okay. Understand that.
“Def[endant]: MmMumm.
“Det[ective Keeney]: Okay. Mumm.
“Def[endant]: Can I have my dad here?
“Det[ective Keeney]: Can you have your dad here?
“Def[endant]: Yeah.
“Det[ective Madden]: Mmm, Teng, i [sic] . . . you know we might be able to facilitate that and have him come here, but I think it’s important for us to just kind of get an idea of, you know, we know you were there, we just need to kind of know what was goin’ on. You know, and what happened. Mumm, we came all the way down from Chico, and you know, at some point I can probably get this deputy to call your dad and see if he wants to come down, but mumm . . . .
“Def[endant]: Well, can you do that?
“Det[ective Keeney]: . . . we’d like to talk to you about it though.
“Def[endant]: MmMumm.
“Det[ective Keeney]: Okay. Mumm. . .
“Def[endant]: Well, I just want him here when you’re talking to me. Is it possible, ‘cause I’m a minor?
“Det[ective Keeney]: Well, that really has nothing to do with it.
“Def[endant]: Okay.
“Det[ective Keeney]: Okay.”
During the remainder of the interview, before he was informed he was under arrest, defendant did not repeat his request for his father, nor did he indicate any unwillingness to speak to the detectives about the events of the shooting. Only after the detectives told defendant to stand up and put his hands behind his back did he reiterate his request to speak with his father. When the detectives told defendant they would tell his father he had been arrested, defendant asked if he could speak to his father himself. The detectives told him he could not. Defendant asked the detectives a fourth time if he could speak with his father. At this point in time, the detectives told him, not right now, but maybe later. When the detectives asked defendant why he wanted his father at the interview, defendant replied, “So he could tell him . . . take [sic] to him.” Defendant said he would have told his father that he was not the shooter.
Defendant moved to exclude statements he made to detectives when he was arrested because those statements were taken in violation of Miranda. Defendant argued only that he did not waive his rights under Miranda, not that he affirmatively invoked them. The trial court reviewed the videotape of the interrogation and the transcript and denied this motion. The court concluded defendant did not expressly waive his right, but did so by implication when he indicated he understood his rights and willingly answered the detectives’ questions.
A defendant’s waiver of his rights under Miranda need not be express “where a defendant’s actions make clear that a waiver is intended.” (People v. Whitson (1998) 17 Cal.4th 229, 250.) The People have the burden of demonstrating waiver by a preponderance of the evidence. (Id. at p. 248.) To determine whether a defendant has waived his or her rights, the trial court must examine two distinct components: “‘First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.] [¶] . . . [¶] . . . Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.’” (Id. at p. 247.)
In People v. Hector (2000) 83 Cal.App.4th 228, 234 (Hector), the defendant argued his “‘request to speak to his mother for advice was a clear invocation of his right to remain silent which required questioning to immediately cease and made his subsequently given confession inadmissible.’” The appellate court disagreed. The court started by examining People v. Burton (1971) 6 Cal.3d 375, where our Supreme Court concluded that a minor’s request to see his parents, “‘must, in the absence of evidence demanding a contrary conclusion, be construed to indicate that the minor suspect desires to invoke his Fifth Amendment privilege. The police must cease custodial interrogation immediately upon exercise of the privilege. [If the police do not cease], the confession obtained by the subsequent questioning [is] inadmissible, and, therefore, the admission of such confession [is] prejudicial per se and compels reversal of the judgment. . . . [Citation.]’” (Hector, at p. 234.)
The Hector court noted that subsequent to Burton, the United States Supreme Court decided Fare v. Michael C. (1979) 442 U.S. 707 [61 L.Ed.2d 197]. There, the court concluded that a minor’s request for his probation officer during the interrogation did not constitute a per se invocation of the juvenile’s Fifth Amendment rights. (Hector, supra,83 Cal.App.4th at pp. 234-235.) Rather, the United States Supreme Court concluded, “‘the determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel. [Citation.]’ [Citation.] When determining whether a juvenile’s waiver is voluntary, courts should consider the juvenile’s ‘age, experience, education, background, and intelligence, and . . . whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. [Citation.]’ [Citation.]” (Hector,at p. 235.)
The Hector court concluded, whether a minor’s request for a parent is an invocation of his Miranda rights depends on the totality-of-the-circumstances test set forth in Fare v. Michael C. (1979) 442 U.S. 707 [61 L.Ed. 2d 197]. (Hector, supra, 83 Cal.App.4th at p. 235.) Our Supreme Court has reaffirmed the application of this test to waivers of rights by minors. (People v. Lewis (2001) 26 Cal.4th 334, 383.)
“In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant’s rights under Miranda v. Arizona, supra, 384 U.S. 436, we accept the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we ‘“give great weight to the considered conclusions” of a lower court that has previously reviewed the same evidence.’ [Citations.]” (People v. Wash (1993) 6 Cal.4th 215, 235-236.)
Here, the trial court did not err in concluding defendant’s statements were admissible. We have reviewed the videotape of the interrogation. We reject defendant’s first argument that no evidence shows he affirmatively acknowledged he understood his Miranda rights. The officers provided full and adequate admonitions to defendant. Defendant’s manner, posture, and statements of “MmMumm” both during and after the admonitions demonstrates he affirmatively understood his rights and conveyed that fact to the interrogating officers. Contrary to defendant’s argument, we conclude defendant’s use of the colloquialism “MmMumm” was a statement in the affirmative, not an unintelligible or equivocal grunt.
While defendant did not expressly waive his rights, his subsequent statement, when analyzed under the totality of the circumstances, demonstrates waiver. Defendant’s responses to the officers’ questions were given voluntarily. His willingness to speak to the officers is readily apparent from the interview. Nothing about the interrogation suggests the police resorted to any physical or psychological pressure to elicit statements from him. (See People v. Whitson, supra,17 Cal.4th at pp. 248-249.) He was not worn down by “improper interrogation tactics, lengthy questioning, or trickery or deceit.” (Id. at p. 249.)
On the second question of defendant’s awareness of the rights he was abandoning and of the consequences of his decision to do so, defendant acknowledged that he had been advised of his Miranda rights prior to this interrogation. Further, he listened intently as his rights were read to him, nodded his head showing his understanding, and affirmatively indicated he understood those rights at the end of the admonishments. At the time of his interrogation, defendant was two months shy of his 18th birthday. Nothing in the videotape suggests defendant did not understand those rights, or that his judgment was clouded or impaired in any way. Nothing suggested that defendant was of low intelligence. Defendant’s answers were clear and responsive to the detectives’ questions and without any further objections. Defendant’s request to speak with his father in these circumstances did not demonstrate an intent to invoke his rights. As defendant later explained, his request to speak with his father was to explain to him “that it wasn’t me.”
On this record, the trial court did not err in concluding defendant knowingly and intelligently waived his rights under Miranda. The statements were admissible.
II
The Search Of Defendant’s Bedroom Was Consensual
Defendant argues that the seizure of the jacket and photographs in his bedroom without a warrant required the trial court to exclude those items from evidence at trial. We disagree.
During defendant’s interrogation, Detective Keeney offered to make a deal with him. The detective stated, “So, I’ll make a deal with you. Take you over to your house. You can talk to your dad as long as he goes in and gets us that hat and jacket.” Defendant agreed. Defendant further told the detective he shares his bedroom with his sister. Subsequently, Detective Madden further confirmed the agreement with defendant: “Um you don’t have a problem with having your parent’s [sic] or somebody grab that hat and jacket?” (Italics added.) Defendant responded, “Yeah. No, I don’t have a problem.” The detective went a step further and stated, “Okay. I just want to . . . you to understand that you don’t have to do that. That’s merely on your own free will. Okay.” Defendant agreed again.
At the hearing on the suppression motion, Detective Keeney testified about his conversation with defendant during the interrogation. Detective Keeney testified it was his impression defendant granted him permission to enter his room to obtain the jacket when he agreed to allow “somebody to grab that hat and jacket.”
Detective Keeney further testified that he and Detective Madden drove defendant to defendant’s home. When they arrived, the officers allowed defendant to speak with his father.
Detective Keeney spoke with defendant’s sister and informed her that defendant had given the detective permission to obtain the jacket and hat. The detective confirmed that defendant’s sister shared the room with defendant and asked her if she would retrieve the items or would let him inside to retrieve the items. She escorted Detective Keeney to their room.
Once inside the bedroom, the detective noticed a collage of photographs on the wall of the room that depicted gang members in gang poses. Detective Keeney stated that he seized this photograph because this was a “gang-related case.” This photograph, according to Detective Keeney, also contradicted defendant’s claim he had not been involved with a gang in the past six months or so. On cross-examination, Detective Keeney admitted that nothing about the photographs demonstrated they had been taken in the prior six months. Defendant’s sister voiced no objection when the detective seized the collage.
When the detective left the home with the jacket, hat, and the photographs, defendant told his sister she should not have let the detective into the house.
The trial court denied defendant’s motion to exclude the jacket, hat, and photographs from trial. The court ruled defendant’s consent, as well as his sister’s consent, was sufficient to allow the detective to enter defendant’s bedroom to obtain the jacket and hat. Further, the trial court concluded that the photographs were in plain view, or alternatively, exigent circumstances justified the seizure.
A
Defendant Consented To Detective Keeney’s Entry
Defendant first argues Detective Keeney exceeded the consent granted by defendant when the detective entered the home and retrieved defendant’s jacket. We reject this claim.
“In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to that court’s factual findings, express or implied, if they are supported by substantial evidence. [Citation.] We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. [Citation.]” (People v. Lenart (2004) 32 Cal.4th 1107, 1119.)
“‘“An illegal search or seizure violates the federal constitutional rights only of those who have a legitimate expectation of privacy in the invaded place or seized thing.” [Citation.]’ [Citation.] ‘A valid consent to search eliminates the need for either a warrant or probable cause. . . . [¶] The person in control of the premises may consent to a search thereof.’ [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 747-748.)
However, “‘[a] consensual search may not legally exceed the scope of the consent supporting it. [Citation.]’ [Citation.] ‘The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of “objective” reasonableness--what would the typical reasonable person have understood by the exchange between the officer and the suspect?’ [Citation.]” (People v. Bell (1996) 43 Cal.App.4th 754, 770.)
Here, the facts demonstrated that Detective Keeney’s entry into defendant’s room was within the scope of defendant’s consent to search. The initial agreement was that the officers would allow defendant to speak with his father if his father would provide them with his hat and jacket. Upon further confirmation of the agreement, the officers asked, “you don’t have a problem with having your parent’s [sic] or somebody grab that hat and jacket?” (Italics added.) Defendant did not have a problem with that. Defendant agreed he was doing this of his own free will. Defendant did not object when the detective went into the house, but raised that objection only after the detective left.
Under these circumstances, the scope of the consent given by defendant was largely an issue of credibility for the trial court in the first instance. (People v. Weaver (2001) 26 Cal.4th 876, 924.) We conclude the trial court did not err when it concluded defendant’s agreement to allow “somebody” to go into the house included Detective Keeney.
B
The Gang Photographs Were In Plain View
Defendant further argues Detective Keeney exceeded the scope of defendant’s consent when he seized the collage of photographs showing defendant and others in gang colors and flashing gang signs. We disagree.
Items in plain view of a consensual search also fall within the scope of that consent. (People v. Bell, supra,43 Cal.App.4th at p. 769.) In Bell the defendant consented to the search of his trunk and when the officers opened the trunk, their drug-sniffing K-9 alerted to cocaine under the front seat of the car. (Id. at p. 760.) Assuming the opening of the trunk was the start of the search, the appellate court concluded, “once the trunk was open, [the officer] did not ‘search’ the trunk beyond what was in plain view. This was within the scope of defendant’s consent.” (Id. at p. 770.)
Items in plain view “may be seized when their incriminating character is immediately apparent. [Citation.] The incriminating character of evidence in plain view is not immediately apparent if ‘some further search of the object’ is required. [Citation.]” (People v. Lenart, supra, 32 Cal.4th at pp. 1118-1119.) Thus, in Lenart, the Supreme Court concluded the officer’s seizure of a crinkled up coin wrapper and fragments of a burnt check found in a grocery bag located in plain view in the defendant’s apartment was proper. (Ibid.) Those fragments were later identified as a check that was located in the cashbox stolen from a bar and the subject of the officer’s investigation. (Id. at pp. 1115-1116.) The Supreme Court concluded the incriminating character of these items was readily apparent to the officer given his knowledge that the bar was missing currency, coin wrappers, accounts, and items related to the transaction of business at the bar that would be located in a cashbox. (Id. at p. 1119.)
As stated in People v. Stokes (1990) 224 Cal.App.3d 715, 719-720, “In the context of the plain view doctrine, probable cause is a flexible, commonsense standard, which requires only that the facts available to the officer would warrant a person of reasonable caution in believing that the item may be contraband or stolen property or evidence of a crime. No showing is required that such a belief is correct or more likely true than false. ‘A “practical, nontechnical” probability that incriminating evidence is involved is all that is required. [Citation.]’ [Citation.] The determination whether there is probable cause to believe property in plain view has been stolen depends on the totality of the circumstances known to the officer which reasonably bear on the question; the officer’s determination is not limited to an examination of the property itself.”
That standard has been met here. We have already concluded that Detective Kenney’s entry into the house was within the scope of defendant’s consent. The photographs displayed on the wall of that room were in plain view of Detective Kenney when he entered defendant’s bedroom. They depicted defendant in various poses as a gang member and with other gang members. Detective Kenney testified that he was investigating what he believed to be a gang-related crime and defendant had claimed he had quit the gang months earlier. Under these circumstances, the incriminating nature of this photographic collage was immediately apparent to the detective. The trial court did not err in refusing to suppress this item.
III
Substantial Evidence Does Not Support The Gang Enhancement Finding
Defendant argues substantial evidence did not exist to support the gang enhancement finding under Penal Code section 186.22. We agree.
“When the sufficiency of the evidence is challenged on appeal, we apply the familiar substantial evidence rule. We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 859.)
Under Penal Code section 186.22, subdivision (b)(1), “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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [¶] . . . [¶] (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years.” To prove a gang is a “criminal street gang,” “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. [Citations.]” (People v. Gardeley (1996) 14 Cal.4th 605, 617; see Pen. Code, § 186.22, subds. (e), (f).)
Defendant argues “there is not substantial evidence that the predicate offense, required to show a ‘pattern of criminal activity,’ was committed by a member of [MBC]” or that “one of the ‘primary activities’ of the gang is the commission of the crimes listed in [Penal Code] section 186.22.”
“The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group’s members.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).) Evidence of past or present criminal acts is not necessarily sufficient. (Ibid.) “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.” (Id. at p. 324.)
A gang’s primary criminal activities is not the relevant inquiry. As explained by our Supreme Court when discussing this element of the gang enhancement: “‘Though members of the Los Angeles Police Department may commit an enumerated offense while on duty, the commission of crime is not a primary activity of the department. [Penal Code] Section 186.22 . . . requires that one of the primary activities of the group or association itself be the commission of [specified] crime[s]. . . . Similarly, environmental activists or any other group engaged in civil disobedience could not be considered a criminal street gang under the statutory definition unless one of the primary activities of the group was the commission of one of the [25] enumerated crimes found within the statute.’” (Sengpadychith, supra, 26 Cal.4th at pp. 323-324.)
To establish the required elements of the gang enhancement, the People may rely on expert testimony. (Sengpadychith, supra, 26 Cal.4th at p. 322.) Expert testimony concerning the culture, habits, and psychology of gangs is permissible because these subjects are “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a); People v. Gardeley, supra, 14 Cal.4th at p. 617.) The expert may further testify concerning whether the defendant acted for the benefit of a gang, even though it is an ultimate factual issue for the jury to decide, because these are matters far beyond the common experience of the jury. (People v. Valdez (1997) 58 Cal.App.4th 494, 507-509.) Expert testimony is admissible to describe the requisite primary activities and predicate offenses, and the gang’s past criminal conduct and ongoing criminal nature. (People v. Gardeley, supra, 14 Cal.4th at pp. 617-620.) An expert’s testimony is also admissible about the existence, size, or composition of a gang; an individual’s membership in, or association with, a gang; the primary activities of a specific gang; the motivation for a particular crime; whether and how a crime was committed to benefit or promote a gang; rivalries between gangs; gang-related tattoos; and gang colors or attire. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657.)
Expert testimony may be premised on material that is not admitted into evidence -- or on material that is not ordinarily admissible, such as hearsay -- as long as that material is reliable and of a type that is reasonably relied upon by experts in the particular field in forming opinions. (People v. Gardeley, supra, 14 Cal.4th at p. 618, see People v. Valdez, supra, 58 Cal.App.4th at pp. 510-511.) An expert witness whose opinion is based on such inadmissible matter can further testify as to the material that forms the basis of his or her opinion subject to the trial court’s discretion to restrict that otherwise inadmissible testimony to ensure a fair trial for the defendant. (Gardeley,at p. 618.)
However, the expert’s opinion may not be based solely on “nonspecific hearsay and arrest information.” (In re Leland D. (1990) 223 Cal.App.3d 251, 259; see In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1003.) “Conclusional testimony that gang members have previously engaged in the enumerated offenses, based on nonspecific hearsay and arrest information which does not specify exactly who, when, where and under what circumstances gang crimes were committed” does not amount to substantial evidence. (In re Jose T. (1991) 230 Cal.App.3d 1455, 1462, italics added.)
In In re Leland D., the court held that the expert testimony was insufficient to prove a gang enhancement because the expert did not provide any details of the crimes he attributed to the gang and based his opinion solely on “hearsay statements from unidentified gang members and information pertaining to arrests of purported gang members . . . .” (In re Leland D., supra, 223 Cal.App.3d at p. 259.) The expert’s testimony was the only evidence offered to prove the gang enhancement, and the evidence did not specify “[e]xactly who, when, where and under what circumstances” the gang crimes were committed. (Id. at pp. 259-260.) Because this testimony provided no more than conclusory and general pronouncements about the gang’s primary purpose of committing “gang crimes,” the appellate court found the expert’s testimony insufficient as a matter of law to prove the gang enhancement. (Ibid.)
Similarly, the court in In re Nathaniel C., supra, 228 Cal.App.3d found the expert’s testimony with regard to the predicate offenses insufficient. There, “the [expert] learned about the . . . assault from talking with San Bruno police officers. . . . The incident involved the shooting of a person the San Bruno police believed to be a member of the [gang], according to the [expert]. The [expert] said the San Bruno police believed the person [who] did the shooting also was a [gang] member, and that the shooting was gang-related.” (Id. at p. 998.) The court concluded the expert “offered only nonspecific hearsay of a suspected shooting of one [gang] member by another. The [expert] witness, a South San Francisco police officer, had no personal knowledge of the incident and only repeated what San Bruno police told him they believed about the shooting. Such vague, secondhand testimony cannot constitute substantial evidence that the required predicate offense by a gang member occurred.” (Id. at p. 1003.) Further, the expert’s statement that “the primary activity of all gangs in his area is criminal” was insufficient to establish the primary activity element of the enhancement. (Id. at pp. 998, 1004.) The expert failed to tie this statement directly to the gang at issue in that case. (Ibid.)
By contrast, in In re I. M. (2005) 125 Cal.App.4th 1195, the expert’s testimony based upon police reports was held sufficient to support the gang enhancement. The expert testified that “one police report described the December 25, 2002 shooting of a man driving down a street in central Richmond looking for his dog. [The expert] testified that ‘it appears’ that a member of the Sureño 13 gang, with a street name of ‘Monstro,’ ‘was in fact the shooter.’ [The expert] believed that Monstro was in custody and that the case ‘is being prosecuted still. I’m not one hundred percent certain.’ [The expert] testified that a second [police] report described an altercation between Monstro and his girlfriend’s father during which Monstro struck the victim with a shotgun. A third [police] report concerned a vehicle found in the driveway of another individual who [the expert] believed to be a member of the Sureño 13 street gang. The vehicle had been stolen out of El Cerrito. Monstro ‘subsequently was driving the vehicle, was pulled over by San Pablo police department. A firearm was located in the vehicle. . . . [Monstro] was aware it was stolen, and he admitted the firearm was his because he needed it for protection.’ [The expert] stated, further, that he believed that Monstro had been convicted in that case. ‘I know he’s just getting out of custody on that case.’” (Id. at p. 1206.) The I. M. court concluded this evidence was more compelling than that in In re Nathaniel C. or In re Leland D. and adequately established at least one predicate offense. (In re I. M., supra, 125 Cal.App.4th at p. 1207.) The court stated that, unlike the expert witness in In re Nathaniel C., the expert had personal knowledge that Monstro was a member of the gang. (In re I. M.,at p. 1207.) The police reports were admissible to show that the police were investigating Monstro in connection with the specified crimes. (Ibid.) The expert’s testimony reasonably demonstrated his personal knowledge that Monstro was being prosecuted for shooting the man looking for his dog, and the fact that Monstro was being prosecuted allowed the conclusion that there was significant evidence he had in fact committed the offense. (Id. at pp. 1207-1208.) The evidence, therefore, adequately established that Monstro was a member of the gang that had committed a predicate offense. (Id. at pp. 1207-1208.)
Here, in addition to the instant offense and its obvious gang implication, Officer Finkbiner was the sole source of evidence as to the pattern of criminal activities and the claim that the predicate crimes were a primary activity of MBC. Officer Finkbiner has taken training classes on gangs, reviewed reports of gang activities, discussed gangs with officers from other jurisdictions, and had contacts with about 700 people who have associated with or claimed membership in gangs. He has investigated over 100 gang-related crimes. He further has spoken with 10 of the 30 members of MBC. Officer Finkbiner testified that he was familiar with MBC and its operations.
As to the question of the pattern of criminal activities, Officer Finkbiner testified that he was “familiar with a person by the name of Se Yao Xiong” and with the fact that he committed crimes. Officer Finkbiner further testified Se Yao Xiong committed the crimes of attempted murder, attempted homicide, and shooting at an inhabited dwelling. The abstract of judgment for these convictions was admitted into evidence. Officer Finkbiner spoke with “officers in Yuba County about that case” and it was his opinion Se Yao Xiong “was a [MBC] member at the times those crimes were committed.” The record of conviction conclusively establishes Se Yao Xiong committed the required predicate crimes. The record, however, is silent on how Officer Finkbiner was familiar with Se Yao Xiong or how he knew that he was a MBC member when he committed the crimes. Officer Finkbiner did not affirmatively testify that he personally knew Se Yao Xiong or whether his familiarity was based on unknown third-party hearsay. He did not affirmatively identify the underlying facts of the crime or the source of any information about it. Officer Finkbiner’s conclusory and unsupported testimony that Se Yao Xiong committed the crime while he was a member of MBC does not constitute substantial evidence.
Because of this conclusion, we express no opinion on the question of whether substantial evidence existed to link the current offense to MBC.
On the second element of the primary activities of MBC, Finkbiner testified he was familiar with MBC. He testified to the geographic location of the members of this gang, their colors, the numbers they use for identification, and their hand signs. Finkbiner testified that he had seen documentation of 30 members of MBC and spoken with at least 10 MBC members. Based on his experience and contacts with other unidentified police officers, Finkbiner testified he did not believe MBC limited its criminal activities to its rival gang, Hmong Nation Society. Next, Finkbiner testified it was his opinion that one of the primary purposes of MBC is to commit crimes, including attempted murder, assault with a deadly weapon, shooting at dwellings, and car theft. While Officer Finkbiner testified that he had significant background, training, and knowledge with gangs in general and some interactions with 10 members of MBC, he provided no specific basis for his “expert opinion” other than this general background.
“Like a house built on sand, an expert’s opinion is no better than the facts on which it is based.’ [Citation.]” (People v. Gardeley, supra,14 Cal.4th at p. 618.) Officer Finkbiner did not identify the sources of his information or their reliability on the key questions here. Thus, his testimony that Se Yao Xiong was a MBC member and that MBC’s primary activities are the crimes enumerated in Penal Code section 186.22, based on unknown facts and unsubstantiated hearsay, does not rise to the level of substantial evidence. We must reverse the true finding of the gang enhancement finding under Penal Code section 186.22.
IV
The Court Did Not Err In Refusing To Bifurcate The Gang Enhancement Allegations
Defendant argues the trial court abused its discretion in refusing to bifurcate the gang enhancement allegations from the trial of the underlying crime. We disagree.
In limine, defendant moved to bifurcate the gang enhancement allegations. The trial court denied the motion. The court concluded that the gang allegations were relevant as to the nature of the underlying crime and were also probative on the issues of defendant’s motive and intent. Thus, the court concluded the gang evidence was “inextricably connected to those issues of identification, motive, [and] intent.”
In People v. Hernandez (2004) 33 Cal.4th 1040, 1046, 1051, our Supreme Court determined that the trial court did not abuse its discretion in denying defendant’s motion to bifurcate the gang enhancement charges from the underlying charges of robbery. The court noted that a trial court has the discretion to bifurcate certain issues such as prior convictions from the determination of the defendant’s guilt of the charged offense. (Id. at p. 1048.) The Hernandez court, however, distinguished the prior conviction -- which relates to the defendant’s status and is often not connected to the instant crime -- from the criminal street gang enhancement allegations -- which is, by definition, inextricably linked to the defendant’s crime. (Ibid.) On this latter point, the Hernandez court explained, “Evidence of the defendant’s gang affiliation--including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like--can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (Id. at p. 1049.) Bifurcation is thus warranted only when the other evidence of the predicate acts required to establish the gang enhancement is unduly prejudicial, or when gang evidence about the defendant is “so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant’s actual guilt.” (Id. at p. 1049.)
Drawing from cases discussing the standard for severance of charged offenses, the Hernandez court stated, “when the evidence sought to be severed relates to a charged offense, the ‘burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. [Citations.] When the offenses are joined for trial the defendant’s guilt of all the offenses is at issue and the problem of confusing the jury with collateral matters does not arise. The other-crimes evidence does not relate to [an] offense for which the defendant may have escaped punishment. That the evidence would otherwise be inadmissible may be considered as a factor suggesting possible prejudice, but countervailing considerations that are not present when evidence of uncharged offenses is offered must be weighed in ruling on a severance motion. The burden is on the defendant therefore to persuade the court that these countervailing considerations are outweighed by a substantial danger of undue prejudice.” (People v. Hernandez, supra, 33 Cal.4th at p. 1050.) We review the trial court’s decision under the deferential abuse of discretion standard of review. (Id. at pp. 1050-1051.)
Here, we detect no abuse of discretion by the trial court in denying the motion for bifurcation. Defendant’s connection to the gang was relevant to his identity as the shooter and the motive for the crime. The MBC gang “mad dogged” the shooting victim’s group throughout the dance. Then, MBC left both in front of and behind the group, surrounding it in a menacing fashion. As is evident from our recital of the facts in this case, the question of the identity of the shooter was central in this case. Defendant was wearing gang colors. Further, a prior gang-related fight was suggested as the possible motive for this shooting. The gang’s involvement may have also had some relevance to some of the witnesses’ reluctance to name the shooter right after the dance. Defendant’s admissions of gang membership, and his possession of photographs of gang members, further tied him to this crime. Under these circumstances, the gang evidence admitted about defendant was relevant to his guilt and not unduly prejudicial.
The evidence of the other predicate crime committed by Se Yao Xiong was not unduly prejudicial. The fact that another gang member had been convicted of attempted murder, assault with a deadly weapon, shooting at dwellings, and car theft was not particularly inflammatory. It took up very little trial time. This evidence was offered to prove the charged gang enhancement, so no problem of confusion with collateral matters arose and there was no question of whether defendant escaped punishment in that other case that would cause the jury to be swayed to convict him here. The trial court did not err.
V
The Court Properly Refused Defendant’s New Trial Motion And Request For Appointment Of Counsel
Defendant argues the trial court erred in denying his motion for a new trial based on newly discovered evidence and also in failing to appoint him counsel to investigate whether his attorney failed to provide him with competent assistance in this case. We reject both arguments.
After the jury rendered its verdict, defendant filed an ex parte application to request money to have an expert test defendant’s jacket for gunpowder residue. In support of this motion, defendant’s counsel declared, “It is imperative that a gunshot residue expert be employed to assist in [sic] the defendant in the prosecution of his petition for a new trial. It is undisputed that the defendant was wearing the jacket seized by the Chico Police department and admitted into evidence at the jury trial at the time of the shooting. It is also undisputed that the person who shot the victim in this case fired a minimum of 10 rounds from a semi-automatic pistol. Clearly, the shooters [sic] clothing would be covered by gunshot residue. We believe a [sic] examination of the defendant’s jacket would show the lack of gunshot residue. Such evidence would justify the granting of a new trial as a different result at a new trial would surely occur.” The trial court denied this motion.
Defendant followed up this motion with a motion to have the jacket released to him, citing the same facts in his attorney’s declaration. The trial court took this motion as a motion for a new trial based on the claim the results of the gunshot residue test constituted new evidence. During oral argument, defendant’s counsel invited the court to appoint counsel to examine whether he failed to provide competent assistance to his client by failing to have the jacket tested before or during trial. The court rejected the new trial motion finding the decision not to test the jacket appeared to be a deliberate tactical decision by counsel. The court also refused to appoint counsel for defendant to investigate the ineffectiveness of defense counsel, concluding that counsel’s decision not to test the jacket did not fall to the level of inadequate or incompetent assistance.
A
Motion For New Trial
As the trial court did, we shall assume a test of the jacket would have uncovered an absence of gunshot residue. The question then becomes would the absence of gunshot residue constitute new evidence such that a new trial should have been ordered.
Under Penal Code section 1181, “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶] . . . [¶] 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable.”
“‘In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: “‘1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.’”’ [Citation.] ‘[U]nless a clear abuse of discretion is shown, a denial of the motion will not be interfered with on appeal.’ [Citation.]” (People v. Beeler (1995) 9 Cal.4th 953, 1004.)
In People v. Martinez (1984) 36 Cal.3d 816, 819, the jury convicted defendant of a commercial burglary. The prosecution’s case “rested entirely on” the fact that the defendant’s palm print was found on a drill press located on the property the morning after the burglary. (Id. at p. 822.) The evidence presented at trial was that the press had been cleaned, dried, and freshly painted the afternoon of the burglary, and there was thus no legitimate explanation for the presence of the defendant’s palm print on the item. (Id. at pp. 819-820.) In support of his motion for a new trial, the defendant presented the affidavit of the shop foreman that the drill press had been painted at least a couple days prior to the burglary, at a time when the defendant had innocent explanations for having touched the press. (Id. at pp. 820-821.) Further, the witness averred that the drill press could not have been painted the day of the burglary because the paint used takes at least 10 to 12 hours to dry. (Id. at p. 821.) The trial court denied the motion concluding defendant’s counsel failed to use due diligence to locate the foreman and the evidence would not render a different result probable on retrial. (Ibid.) The Supreme Court reversed. (Id. at p. 827.) The court concluded that the new evidence was central to this case and “exposed a serious gap in the prosecution’s proof.” (Id. at p. 822) The court concluded, “Numerous cases hold that a motion for a new trial should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant. [Citations.]” (Id. at p. 823.) This newly discovered evidence fit this criterion. (Ibid.)
The court then turned to the question of diligence. (People v. Martinez, supra, 36 Cal.3d at p. 824.) The court concluded that it should have been apparent to the defense that the foreman might have evidence relevant to the case. (Id. at p. 824.) However, the court continued, “We do not believe, however, that this lack of diligence is a sufficient basis for denial of defendant’s motion. The requirement of diligence serves ‘a public policy which demands that a litigant exhaust every reasonable effort to produce at his trial all existing evidence in his own behalf, to the end that the litigation may be concluded.’ [Citations.] That policy, however, itself serves a more fundamental purpose--the determination of guilt and innocence. Loyal to that higher purpose, some California cases suggest that the standard of diligence may be relaxed when the newly discovered evidence would probably lead to a different result on retrial.[fn.] [Citations.] On the other hand, we have found none which declare that although newly discovered evidence shows the defendant was probably innocent, he must remain convicted because counsel failed to use diligence to discover the evidence.” (Id. at p. 825.) “Once a trial court determines that a ‘defendant did not have a “fair trial on the merits, and that by reason of the newly discovered evidence the result could reasonably and probably be different on a retrial,”’ [citation], it should not seek to sustain an erroneous judgment imposing criminal penalties on the defendant as a way of punishing defense counsel’s lack of diligence.” (Ibid.) “The focus of the trial court, however, should be on the significance and impact of the newly discovered evidence, not upon the failings of counsel or whether counsel’s lack of diligence was so unjustifiable that it fell below constitutional standards.” (Id. at p. 826.)
As explained in People v. Dyer (1988) 45 Cal.3d 26, 52, the holding in Martinez, does not mean “a defendant is entitled to a new trial whenever evidence that was not presented at a previous trial is sought to be offered on retrial. The evidence generally must be newly discovered.” Further, the Dyer court explained the rule in Martinez,comes into play only when the prosecution’s case is extremely weak. (Dyer, at p. 52.)
Here, the trial court did not abuse its discretion in concluding the absence of gunshot residue on defendant’s jacket could not be considered newly discovered evidence. First, defendant was on notice of the potential importance of this fact from his initial interview by the detectives, where they agreed the absence of gunshot residue might clear his name. Further, this jacket was admitted into evidence in this case, as was the fact that the shooter fired many shots from a semiautomatic handgun.
Further, in this case, unlike in Martinez,the entire case did not hinge on a single piece of circumstantial evidence, whose existence was directly contradicted by the “new” evidence. Here, the evidence defendant was the shooter was elicited from four separate eyewitnesses. This evidence was countered by vigorous cross-examination and the testimony two different eyewitnesses claiming defendant was not the shooter.
On the other hand, the new evidence of the lack of gunshot residue may or may not have demonstrated defendant was the shooter. The residue could have been washed off or destroyed by defendant or dissipated through the passage of time.
In short, this is not a case where defendant was denied a fair trial on the merits, and that by reason of newly discovered evidence the result could reasonably and probably be different on retrial. (People v. Martinez, supra,36 Cal.3d at p. 825.) Rather, this evidence was known to defendant, readily available to him through the exercise of reasonable diligence before and during trial, and would not render a different result probable on the retrial of this case. The trial court thus did not err in denying defendant’s motion.
B
Request For Counsel
We turn to defendant’s request for independent counsel to examine whether his attorney was ineffective for not testing the jacket.
Our Supreme Court has stated: “‘When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request. [Citations.] If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. [Citation.] If, on the other hand, the defendant’s claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a “colorable claim” of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial.’” (People v. Smith (1993) 6 Cal.4th 684, 692-693.) The defendant must establish “trial counsel failed to perform with reasonable diligence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel’s failings.” (Id. at p. 691.) The court held, “substitute counsel should be appointed when, and only when, . . . in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].” (Id. at p. 696.) The decision to appoint new counsel lies in the sound discretion of the trial court and “will not be overturned on appeal absent a clear abuse of that discretion.” (Ibid.)
Here, the trial court did not abuse its discretion in concluding defendant failed to present a colorable claim of inadequacy of defense counsel in deciding not to test the jacket for gunshot residue. The issue of the decision to test or not test the jacket relates to courtroom events observed by the trial court. The trial centered on the testimony of four eyewitnesses who testified defendant was the shooter. Defendant’s counsel ably cross-examined those witnesses and pointed out many inconsistencies in their testimony and their prior statements as we have detailed above. Furthermore, defendant presented the testimony of two witnesses who claimed defendant was not the shooter. As the case was submitted to the jury, no physical evidence tied defendant to the crime.
In this case, the absence of gunshot residue on the jacket would have little or no probative value. First, there was no evidence presented to the trial court that gunpowder residue would or would not be deposited on defendant’s jacket if he fired the gun. It was only the unsubstantiated surmise of counsel that this would occur. Further, no evidence established that any gunshot residue that was deposited on the jacket would or would not have dissipated on its own, or might have been removed by actions of defendant or others during the nine days between the shooting and the date the jacket was seized. Given this, the absence of residue would have proved very little.
On the other hand, a positive test of the jacket for gunshot residue would have presented the only physical evidence tending to connect defendant with the shooting. Under the discovery statutes, defendant would have been faced with a decision as to what to do with that damning physical evidence. Further, the mere fact that defendant obtained the jacket to inspect it would have alerted the prosecution to the possibility of this damning evidence.
Thus, faced with the potential the jacket did have gunshot residue on it, and the limited probative value of a negative test, it was a prudent tactical decision for the defense to forego testing of the jacket. The trial court did not err in this conclusion.
VI
The People’s Special Instruction Was Not Given
In supplemental briefing, defendant argues a special instruction proffered by the People should not have been given because a portion of it instructed the jury it could consider gang evidence for its “effect” on the testimony of witnesses in the case. According to defendant, there was no evidence the witnesses knew defendant was a gang member or of the fact that he effected their testimony. We reject this argument.
The instruction read, “Evidence has been introduced for the purpose of showing gang membership and association and information on the gang’s culture.
“We must indulge in every presumption to uphold a judgment, and it is defendant’s burden on appeal to affirmatively demonstrate error--it will not be presumed.” (People v. Garcia (1987) 195 Cal.App.3d 191, 198.) It was thus defendant’s burden to present a record that affirmatively demonstrated error. He has failed to meet that burden.
Although the special instruction was included in the clerk’s transcript as part of the “Instructions Given,” the trial court did not read this instruction to the jury. Further, this instruction was one of only two instructions proffered by the People contained in the package of “Instructions Given” that do not have the trial judge’s signature and notation that they were given. While the instructions indicate that a copy of the written instructions would be provided to the jury, the record does not affirmatively demonstrate the special instruction defendant complains about was presented to the jurors in the package of instructions they received. Defendant could have moved to augment the record to provide this court with a copy of the instructions physically handed to the jurors (Cal. Rules of Court, rule 12(a)), but he did not do so. Having failed to demonstrate this jury instruction was given to the jury, defendant’s claim this instruction was erroneous fails.
VII
Upper Term Sentences
Lastly, defendant contends the trial court violated his right to a jury trial by imposing the upper terms on the assault charge and the firearm enhancement based on facts not admitted by him or found by a jury. We agree.
Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d at p. 455], italics added.) Under this rule, the “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413].)
In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court rejected a claim of Blakely error, concluding “that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Black I, at p. 1244.)
In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856], however, the United States Supreme Court held that under Blakely and other decisions, California’s determinate sentencing law does “violate[] a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent the law allows a judge to impose an upper term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, at p. ___ [166 L.Ed.2d at p. 864].)
Here, the trial court imposed the upper term of nine years on the assault charge based on its finding by a preponderance of the evidence that “the crime involved acts disclosing a high degree of callousness; the victim was vulnerable; [and] the execution of the crime indicated sophistication or professionalism.” The court also imposed the upper term of 10 years on the firearm enhancement based on its finding by a preponderance of the evidence that “the enhancement involved acts of great violence and acts disclosing a high degree of callousness[,] . . . the victim was vulnerable, [and] the execution of the enhancement indicated sophistication or professionalism.” This judicial fact finding violated defendant’s constitutional right to a jury trial. (Cunningham v. California, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864]; see also People v. Sandoval (July 19, 2007, S148917) ___ Cal.4th ___, ___ [p. 10] [imposition of upper term sentence violated Sixth Amendment where “[a]ll of the aggravating circumstances cited by the trial court were based upon the facts underlying the crime” and “none were admitted by defendant or established by the jury’s verdict”].)
The People contend the trial court’s error was harmless beyond a reasonable doubt because the jury unquestionably would have found true “all, or at least most,” of the aggravating factors upon which the trial court relied to impose the upper terms. We are not persuaded. Each of the aggravating circumstances on which the trial court relied involved a qualitative assessment of the nature of defendant’s actions or of the victim’s status. However “uncontested or overwhelming” the evidence may have been of defendant’s guilt, we cannot say beyond a reasonable doubt that the jury would have made the same qualitative assessments the trial court did on any of the aggravating circumstances based on that evidence. Thus, we must remand this case for resentencing.
Our Supreme Court recently directed that “sentencing proceedings to be held in cases that are remanded because the sentence imposed was determined to be erroneous under Cunningham . . . are to be conducted in a manner consistent with the amendments to the [determinate sentencing law] adopted by the Legislature.” (People v. Sandoval, supra, ___ Cal.4th at p. ___ [p. 22].) Accordingly, we will remand this case for resentencing under Sandoval.
DISPOSITION
The gang enhancement is reversed, and the case is remanded with directions to the trial court to strike the 10-year term for the gang enhancement and resentence defendant under Sandoval. In all other respects, the judgment is affirmed.
We concur: BLEASE, Acting P.J., HULL, J.
“Such evidence, if believed, was not received and may not be considered by you to prove the defendant is a person of bad character or that he has a disposition to commit crimes.
“Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to sho[w]:
“1. The existence of the specific intent and knowledge which are necessary elements of the gang crimes and enhancements charged,
“2. A motive for the commission of the crimes charged,
“3. Its effect, if any, on a witness’ testimony.
“For the limited purposes for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case.
“You are not permitted to consider such evidence for any other purpose.”