P. v. Avila

Filed 4/17/07 P. v. Avila CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Mario Avila, a Norteo gang member since 1997, was found guilty at jury trial of assault, street terrorism, robbery, and firearms offenses with gang and firearm enhancements, arising from three separate incidents against the same victims in Salinas in 2003. The trial court imposed a determinate sentence of 17 years, four months followed by an indeterminate term of 30 years to life. On appeal, defendant challenges the admissibility of the evidence, the competence of counsel, and the courts selection of the upper term sentence.

FACTS

May 22, 2003 (counts 3, 4, and 5)

Around 8:30 p.m. on May 22, 2003, Jorge Soto, his wife, Rene Martinez, their teenage daughter, Kelli, and a friend were walking down North Sanborn Street when a gold car with black tinted windows approached. Soto recognized two of the four occupants: defendant, a back seat passenger, and the driver, gang member Juan Chucky Ortiz, who lived on the same street as Soto used to. Defendant, Ortiz, and the two women passengers yelled gang slogans like Norte and threw four-fingered gang signs at the Soto group as they passed. The car made a u-turn and, when it caught up with the Soto group, stopped. The occupants got out and, as they approached, kept shouting Norte and throwing the hand signs. Ortiz was wearing all red. Soto testified that defendant said one of these days they were going to get a hold of me, and he showed me the gun he had on his waistband. The gun had a chrome handle. The two women kept repeating bitch, Norte to Martinez and showed her the hand signs. At some point, defendant became worried someone would call the police and said, Lets go. Were going to get him later.

Soto and his family reported the incident to the police. Kelli recognized both defendant and Ortiz from other incidents around the neighborhood. Kelli testified that Ortiz had threatened her father on more than one occasion and that they had even fought in the past. She also testified she had seen defendant driving around town with his friends in a Lexus.

The report of this incident led to a parole revocation hearing for Ortiz. Soto did not testify because he was afraid that even reporting the incident would cause future problems with the gang. Ortizs parole officer subpoenaed Martinez to testify at the hearing. She testified despite the parole officers warning that it would be best for her to simply leave.

Defendant was charged in count 3, which was not presented to the jury for a verdict, with threats of violence against Soto, Martinez, and Kelli (Pen. Code, 422)[1] with the allegations that defendant used a handgun in the commission of the crime ( 12022.5, subd. (a)) and that he committed the crime for the benefit of a criminal street gang with the intent to promote its criminal conduct. ( 186.22, subd. (b)(1).) Count 4 alleged street terrorism (id., subd. (a)) with the personal use of a firearm ( 12022.5) by actively participating in a criminal street gang with knowledge that the members engaged in a pattern of criminal activity and promoted felonious conduct by gang members. Count 5 alleged that defendant exhibited a firearm ( 417, subd. (a)(2)) in the presence of Soto, Martinez, and Kelli for the benefit of and with the intent to promote criminal conduct by gang members. ( 186.22, subd. (d).)

July 2003 (counts 6, 7, and 8)

At approximately 5:00 p.m. near the end of July, Francisco Medina walked from his house on Fremont Street down to the Azteca Market. He had to pass by 501 Fremont Street, the house at the corner which was the center of Norteo gang activity. The market was also on Norteo turf. Medina purchased two sodas that came in glass bottles.

As Medina left the market, he saw defendant and Manuel Baeza, who lived four houses down the street from 501 Fremont Street. They were both gang members Medina recognized from the neighborhood. Medina had seen their tattoos (defendant had a tattoo in red of womens lips on his neck, and Baeza had the abbreviation of Fremont Street and an x and a 4). They were with another man in the market parking lot.

Baeza demanded Medinas wallet. When Medina refused, Baeza hit him in the face, knocking him to the ground, where the three men started kicking him. The assault continued for about a minute. As Medina stood up, defendant grabbed and held Medina and Baeza stabbed him in the back with a glass shard from one of the soda bottles. When people came out of the market to investigate, the three assailants fled, taking Medinas wallet with them.

The piece of glass cut through Medinas jacket, shirt, and skin, and the wound bled so much that Medina later discarded the shirt. The wound healed by the time of the trial, but the scar was still visible. Medina did not seek treatment or report the matter to the police for fear of retaliation from defendant. He was afraid that if defendant and his friends saw a police car near his house, they would do something more against my family.

Medina believed the attack was in retaliation for his report of a prior incident involving his father, who was robbed and injured by the Norteos. When Medina reported that incident to the police, they told us it was a bad neighborhood, that we have to move out of the neighborhood. Medina subsequently moved away from the area with assistance from the district attorneys office.

Defendant was charged in count 6 with a serious felony within the meaning of section 1192.7, subdivision (c)(19), and the second degree robbery of Medina ( 211), with the allegation that defendant committed the crime for the benefit of and to promote criminal conduct by a criminal street gang. ( 186.22, subd. (b)(1).)

September 1, 2003 (counts 1 and 2)

Around 7:30 p.m. on September 1, Soto, Martinez, their friend Mario, Kelli, and her friend Paige picked up Medina at his house to go to a movie. As they drove past 501 Fremont Street, they saw several persons dressed in red drinking beer out in front, and recognized defendant and Baeza. Defendant was dressed in a white football jersey with the number 5 or 05 on it in red.

As the Soto car passed by the house, either defendant or Baeza threw a beer bottle at the back of the car. The bottle smashed on the trunk. Baeza, standing next to defendant, motioned for him to hurry up and go inside the house. At that moment, a white Lexus drove down Fremont Street and pulled in front of them blocking their path. Medina recognized the driver as Oscar Porquero, a known Norteo associate of defendant. Soto wanted to get away as fast as possible and drove his car around the Lexus. He got a little way down the street but was stopped by a line of traffic waiting at a red light.

The occupants of the car looked back and saw defendant running down the street towards them with a gun in his hand. Martinez shouted to Kelli to get down, and Soto said something about a gun. When defendant reached the Azteca Market parking lot, he crouched down, pointed the gun at Sotos car, and fired two shots. One of the bullets went through the cars right rear fender and into the wheel well, coming to rest in the trunk between the back seat and the gas tank. Soto testified that if the path of the bullet veered a little bit more, it would have hit the gas tank, and [defendant] could have killed the whole family.

Soto immediately drove to the nearest police station for help. However, no one was stationed at the front desk, so Martinez used the phone in the lobby with a direct line to the police 911 operator while everyone else waited outside. The tape of the 911 call was played for the jury over defendants objection. During the call, Martinez described the shooting, the assailants, and the fact that she had previously testified against one of the gang members about an incident at which defendant--the shooter in this case--was also present. She spoke of Medinas stabbing and robbery, and Medinas fathers robbery a few months earlier. Its that little store. They hang out and they rob people. And then I had to take him [Medinas 56-year-old father] to the hospital with a busted head and hes got a heart problem. And now they stabbed the son with a beer bottle, and now theyre shooting at us! Martinez repeatedly expressed fear for her family and explained that defendant and the gang were partying at a house only four doors away from her home.

Responding Officer Dagoberto Zubiate testified that he met the group in the police department lobby. Martinez was upset, to the point she became hysterical; she was crying and pacing back and forth, and repeatedly told me that, you know, she was afraid for her safety, that she was afraid to testify, and she feared retaliation from the gang members.

Only Medina was willing to return to the scene with officers on the night of the shooting. Soto was concerned about giving his real name because of problems his family might face from defendant and the gang. However, all the victims gave statements to the officers and Soto, Medina, and Kelli identified defendant as the shooter.

Defendant was charged in count 1 with shooting at an occupied vehicle ( 246) for the benefit of and with the intent to promote a criminal street gang ( 186.22, subd. (b)(1)). Count 2 charged street terrorism (id., subd. (a)) with the personal use of a firearm ( 12022.5, subd. (a)) which caused the offense to become a serious felony ( 1192.7, subd. (c)(8)).

As to the latter count, the defense presented a single witness who suggested that defendant might not have been at the scene during the incident, and that if he was, he was incorrectly identified. However, Medina had walked by 501 Fremont Street less than an hour before the shooting, and had seen defendant standing out front along with eight or nine other Norteos drinking beer. Defendants presence at the scene was also noted by several officers who observed him wearing the same football jersey minutes before the shooting when they drove to a nearby house to conduct a probation search of another Norteo gang member.

Gang evidence

The prosecution presented uncontested evidence that defendant was an active Norteo gang member. He and his associates had gang tattoos. Police searches of various gang hideouts yielded gang-related pictures, posters, CDs, clothing, weapons and ammunition. Lyrics from one of the CDs suggested the importance of keeping their territory clean.

Gang expert Officer Vicky Burnett described the Norteos as an organization with a constitution that has 14 tenets, a set of instructions stating how members are expected to behave in and out of custody, and a structured leadership that collects tributes and extends all the way from the streets to the prison gangs. The gang finances its operations through drug sales and robberies. Members commit offenses, even petty crimes, for the benefit of the gang on an almost daily basis. In fact, virtually all crimes committed by members are for the benefit of the gang. Money from the robberies and other offenses was commonly funneled back to incarcerated members of the Nuestra Familia prison gang.

Burnett stated that gang culture lives on intimidation and fear. She listed a number of predicate crimes involving Norteos that were not committed against rival gang members, but were still specifically committed for the Norteo gang. Gang members use violence and intimidation against innocent civilians not just to enhance their status in the gang, or their gangs status among other gangs in a particular area, but to intimidate residents on their turf so they can commit other crimes without the fear that the citizens will report them to the police or testify against them. If the victim and citizens of the community, and rival gang members fear them, they wont report these crimes and, therefore, they avoid prosecution. The gang will specifically target those individuals that have testified against them in the past, or who have reported their actions to the police. Burnett mentioned one incident in which a hospitalized gang member lunged at a witness in an effort to intimidate him when police brought the witness in to identify the suspect.

In Burnetts opinion, defendant, who had been shot weeks before the September shooting, would be expected to retaliate violently. Burnett thought defendant would not necessarily retaliate against the rivals who injured him but would uphold his--and the gangs reputation--by inflicting seemingly random violence on virtually anyone, regardless of whether he or she was affiliated with a rival gang. Eighty-five percent of gang-related shootings in Salinas are committed without regard for whether the victim is a gang member. Burnett stated, [The gang members] just dont care who it is. They are just out to shoot somebody.

Shooting at a car that is on gang turf, even if the driver is not a member of a rival gang, benefits the shooters gang because it is seen as an act of controlling their territory. Moreover, a shooting committed in front of fellow gang members enhances the shooters reputation and status within the gang, regardless of whether the victim is a rival gang member, because it shows that the shooter is not afraid to commit a violent act for the gangs benefit.

Moreover, the gang acts as a unit. Thus, if one gang member is suspected of criminal behavior, other gang members will attempt to intimidate witnesses to prevent further statements to the police or testimony in court.

The victims in this case each testified about tremendous fear of retaliation from the gang. Their statements were backed up by testimony from the officers who investigated the case. Furthermore, both Medina and Soto testified that as they were testifying, defendant was flashing gang signs at them from his chair in court. Numerous gang members were present at the courthouse roaming the halls and taking pictures of witnesses. A high ranking member of the Nuestra Familia was also seen in the halls at the courthouse.

The jury convicted defendant of all counts and found true all the enhancements. The information also alleged that defendant had a strike prior robbery adjudication as a juvenile which would double any state prison commitment he received. ( 1170.12, subd. (c)(1).) Defendant admitted the prior before the jury returned to the courtroom to render its verdict. When the trial court sentenced defendant, it used the robbery charge in count 6 as the base term. The court selected the three-year midterm, doubled to six years for the strike prior, plus 10 years for the street terrorism enhancement. The court added an eight-month consecutive term (doubled to 16 months for the strike) for the street terrorism conviction in count 4. The court imposed an indeterminate term of 15 years to life (doubled to 30 years because of the strike) for count 1, shooting at an occupied vehicle. The court selected the upper term for the sentences on counts 2, 7, and 8 and stayed them and the sentence on count 5 under section 654. This appeal ensued.

ISSUES ON APPEAL

Defendant contends: (1) the enhancement for street terrorism charged in connection with count 6, the robbery of Medina, is not supported by substantial evidence; (2) the trial court erred in admitting the tape of Martinezs 911 call from the police lobby; (3) trial counsel was ineffective because he failed to: (a) object to testimony that gang members were outside the courtroom, (b) request an evidentiary hearing whether jurors were biased by their own observations of gang members inside or outside the courtroom, and (c) object to the use of defendants juvenile adjudication as a strike prior; finally, (4) the trial courts imposition of an upper term sentence violated Blakely v. Washington[2] and defendants constitutional right to a jury trial.

SUFFICIENCY OF THE EVIDENCE

Defendant claims the evidence is insufficient to support a true finding on the enhancement that the robbery of Medina was for the benefit of a criminal street gang because Medina did not testify that the assailants wore gang colors, threw gang signs, uttered any gang words or threats, or in any other way identified themselves as gang members, and witnesses, who came out of the store after the attack before the assailants fled, also gave no such testimony. Defendant concludes that [b]ased on the percipient witness testimony, therefore, nothing distinguishes this event from a non-gang-related street mugging. (Italics removed.)

In assessing a sufficiency of the evidence argument, the test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) The court must view the evidence in light of the whole record, drawing all inferences in favor of the judgment and must presume the existence of every fact in support of the judgment that could reasonably be deduced from the evidence. To uphold a conviction, the record must contain evidence that is reasonable, credible, and of solid value such that any rational trier of fact could have been persuaded of the defendants guilt. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382 (Olguin); In re Jose P. (2003) 106 Cal.App.4th 458, 465 (Jose P.); Jackson v. Virginia (1979) 443 U.S. 307, 319.)

[A]ny 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 receive additional punishment]. ( 186.22, subd. (b)(1).) Sufficient evidence supporting this enhancement can be found in expert testimony showing that the crime (in our case, robbery) enhances a gangs reputation coupled with other relatively insignificant evidence. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930 (Ferraez).) The events leading up to, and circumstances surrounding, an assault can be crucial to determining that conduct that may not otherwise have been associated with gangs, was in fact gang-related. (People v. Manriquez (1999) 72 Cal.App.4th 1486, 1491.) For example, where a defendant has admitted kicking back with gang members and knowing of a rivalry between particular gangs, knowledge of the gangs likely actions in a certain future situation may be attributed to him, even where there is no evidence of gang membership, nor evidence that the defendant had ever committed another crime with the gang. (Ibid. [evidence of defendants knowledge that a drive-by shooting would occur in the car in which he was riding even though he had been denied membership in the gang and had not participated in any prior gang offenses sufficient].)

There is no requirement that gang colors be worn or gang slogans be shouted for an assault to be gang related. Circumstantial evidence discovered after the crime which connected the victim to the defendant and the defendant to the gang is relevant. (Jose P., supra, 106 Cal.App.4th at pp. 464-466, 468 [pictures found in the defendants bedroom after the robbery, references to Norteos in a diary kept by defendants ex-girlfriend and one of the robbery victims who may have colluded with the robbers, a note authored by the Norteos attempting to dissuade the family from testifying].) Furthermore, expert testimony may help the jury understand the significance of particular acts in light of gang culture and habits. (Ferraez, supra, 112 Cal.App.4th at p. 930.)

In the instant case, there was ample testimony that defendant was a gang member. The defense conceded the matter in jury voir dire. Officer Eulalio Villegas, assigned to the violence suppression unit, testified that he had contacted defendant several times in the past, and saw defendant wearing red, a color associated with Norteos, associating with several other gang members. Defendant had a tattoo of a kiss (a pair of lips) in red ink on his neck. Villegas had seen other tattoos on defendants person but had not taken notes or pictures of them. Villegas thought the lips were a gang-related tattoo because he had seen two other individuals whom he knew to be gang members who had the tattooed lips on the same place on the neck and he had not seen the tattoo on persons who were not gang members. Also, defendant admitted to Villegas that he was a member of the Norteos.

In addition, Soto, Martinez, Kelli, and Medina knew defendant, Ortiz, and Baeza as gang members. Medina had seen defendants kiss tattoo and the Fremont Street abbreviation, the x and the 4, on Ortiz. Ortiz on occasion dressed all in red, the gang color, and the number 5 or 05 on the football jersey defendant was wearing on the night of the shooting was red. The victims knew the house at 501 Fremont, where defendant was seen drinking beer in the front yard with other gang members before the shooting, was the heart of gang activity. Medina knew the Azteca Market was on gang turf. When he was knocked down, kicked, stabbed, and robbed after buying his sodas, he did not report the matter to the police in case defendant and his gang would do something more against [his] family. (Italics added.) Medina believed the robbery was in retaliation because he had reported a gang-related assault and robbery of his father in the past.

Martinez knew about both Medinas and his fathers assault and robbery; she had taken Medinas father to the hospital. Martinez had testified at Ortizs parole violation hearing despite the parole officers warning not to. Soto, Martinez, Kelli, and Medina had been the target of intimidating activity by defendant in the past.

As for the robbery, defendant and Baeza acted together in knocking down, kicking, stabbing and robbing Medina. The gang members, drinking beer with defendant before the shooting, and the gang member driving the Lexus to cut off Sotos car to enable the shooting, and defendant, who shot into Sotos car, acted together to benefit the gang. The shooting enhanced defendants and the gangs prestige and intimidated innocent residents of the area. Even if the robbery of Medina did not yield much money, expert Burnett testified that money that was taken during robberies is shared with the gang, used to support the gang, [and] in many endeavors. In addition, Burnett testified that the robbery allowed the gang to control, or clean[] its territory. She had talked to employees of the store who were reluctant to report the gangs numerous transgressions against them out of fear of retaliation and to numerous residents of the area who had had similar experiences. According to Burnett, the robbery of Medina benefited the Norteos gang by causing that fear that they need so much to allow them to commit their crimes without fear of prosecution. If the victim and citizens [sic] of the community, and rival gang members fear them, they wont report these crimes and, . . . they avoid prosecution.

Finally, Burnett testified to other incidents of intimidation of witnesses who testify against gang members including at defendants trial. Burnett observed unusual activity outside the courtroom, the fact that numerous Norteos had been seen in and around the courthouse, and that Norteos were taking pictures of potential witnesses, including Martinez, with their camera phones in an effort to intimidate them. Indeed, defendant himself was throwing four-fingered gang signs at Medina and Soto as they testified at the trial. There was substantial evidence to support the enhancement.

ADMISSION OF THE 911 TAPE

Next, defendant contends that the trial court abused its discretion in admitting Martinezs statement via the 911 tape. He asserts the statement was not admissible under the spontaneous utterance exception (Evid. Code, 1240) because of the opportunity for collusion during the 10-minute time lapse between the shooting and the making of the statement; certain portions of the statement (such as Martinezs recollection of the robberies of Medina and his father) did not relate to the shooting itself; and finally, even if the statement satisfied the spontaneous utterance exception, its admission violated his rights under the Sixth Amendment Confrontation Clause because Martinez did not testify at trial and was not subject to cross-examination.

Evidence of a statement is not made inadmissible by the hearsay rule of the statement: [] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception. (Evid. Code, 1240.) (1) [T]here must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it. [Citation.] (People v. Poggi (1988) 45 Cal.3d 306, 318.) The basis for this circumstantial probability of trustworthiness is that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of ones actual impressions and belief. Whether a statement was made spontaneously is a question of fact in which the trial court is vested with its broadest discretion. (Ibid.)

Courts look to the totality of the circumstances in determining whether a statement was spontaneous. [T]he mere lapse of time between the event and the declarations [will not] deprive[] the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance. (People v. Smith (2005) 135 Cal.App.4th 914, 923.) The crucial element is the mental state of the speaker at the time the statement was made. (People v. Raley (1992) 2 Cal.4th 870, 892-893.)

Defendant asserts Martinezs statements on the tape were not made spontaneously since they were made 10 to 15 minutes after the shooting occurred and that period gave her more than adequate opportunity to recover her reflective powers, and, perhaps, to contrive and misrepresent her testimony. In addition, Martinezs opportunity to develop a conscious narrative of the events was greatly enhanced by the fact that she spent those 10-15 minutes in a car with her husband, daughter, and friends, all of whom had just witnessed the same event and discussed and compared their observations.

The evidence for defendants conclusion there was collu[sion] (despite the denials of Medina and Soto in court) was that all the witnesses--Medina, Soto, and Kelli in court and Martinez on the tape--claimed the car that obstructed their path was a Lexus while police testimony stated it was a Mazda 626. Second, Martinez knew of and spoke about the robbery perpetrated by defendant and Baeza on Medina a few weeks earlier. Third, Kelli admitted that she discussed the identity of the shooter in the car with Martinez and that the others in the car talked about what they would say. However, she testified that no names were said and no one said the name Manuel although her friend Paige thought she recognized someone.

In addition, the tape included several damaging statements that were not based on [Martinezs] observations and did not relate to the circumstance of the occurrence preceding it as required by Evidence Code section 1240 and Poggi. Martinez said on the tape that the same people involved in the shooting had robbed Medina a few weeks earlier, that she had to take Medinas 56-year-old father to the hospital with a busted head and hes got a heart problem. And now they stabbed the son with a beer bottle, and now theyre shooting at us! These statements, and that they hang out and . . . rob people--do not relate to the circumstance of the occurrence preceding it, namely the shooting . . . [and] they do not narrate, describe, or explain . . . an event perceived by Martinez. Defendant says the only way Martinez could have had the information about Medinas being robbed was by discussing the matter with Medina during the ride to the police station. However, examination of Martinezs remarks as a whole shows that defendants last inference is unfounded.

The trial court reasonably found Martinezs 911 call to have been made under the stress and excitement of the shooting just 10 minutes before the call. After listening to the tape, the court noted that Martinez was audibly upset and excited by the episode. The responding officer described her as upset, to the point she became hysterical; she was crying and pacing back and forth, and repeatedly told [him] . . . she was afraid for her safety, that she was afraid to testify, and she feared retaliation from the gang members. The 911 operator repeatedly attempted to calm Martinez down and repeatedly reminded her she was inside a police station, but Martinez kept focusing on the children in the car. The language Martinez employed during the call shows a lack of reflection. Not only are her recollections of the incident and her beliefs as to the motivation for it presented chaotically, but Martinez was unable to calm herself sufficiently to listen to and respond to the operators questions. Martinezs statements were apparently generated from her own internal responses to a life-threatening, frightening attack.

Even the statements defendant claims referred to actions beyond the shooting itself were relevant to narrate, describe, or explain the incident. (Evid. Code, 1240, subd. (a), italics added.) Martinezs statement of belief in the motivations of the attackers assists in identifying the perpetrators and gives a possible explanation for the attack. (People v. Farmer (1989) 47 Cal.3d 888, 905.) These statements of Martinez explained the incident both by providing further details about the identity of the others involved in blocking the car earlier and in the shooting, and by showing that the motive for the shooting was potentially gang related. [W]hile they do not describe the attack, [they] do help to explain an event perceived by the declarant and are, therefore, admissible. (Ibid.)

Finally, defendant claims admission of the tape violated his Sixth Amendment right to confrontation. Martinez did not testify at either the preliminary hearing or the trial and was not cross-examined. Defendant claims that the taped statement was testimonial (that is, it was made to a government official under circumstances in which any reasonable person would reasonably . . . believe that the statement would be available for use at a later trial. (Crawford [v. Washington(2004)] 541 U.S. [36], 52 [(Crawford)]), and that the government did not carry its burden of showing that the witness was unavailable. Indeed, the prosecution made no effort to prove her unavailability because it maintained that Crawford was inapplicable since the 911 tape was admissible under a hearsay exception.

The statement at issue in Crawford was made to police by Crawfords wife, Sylvia, after Crawford was arrested for stabbing Kenneth Lee. Police gave the Miranda[3] warnings to Sylvia as well as to Crawford and interrogated each of them twice. Sylvia generally corroborated her husbands story about the events leading up to the fight, but her account of the fight itself was arguably different--particularly with respect to whether the victim had drawn a weapon before Crawford assaulted him. Crawford was tried for assault and attempted murder and claimed self-defense at trial. Sylvia did not testify because of the Washington State marital privilege. However, the Washington privilege does not extend to a spouses out-of-court statements admissible under a hearsay exception, so the state sought to and did introduce Sylvias tape-recorded statements to the police as statements against penal interest and evidence that the stabbing was not in self-defense. The defense objected unsuccessfully that admission of the statements violated the confrontation clause. (Crawford, supra, 541 U.S. at pp. 38-40.) The United States Supreme Court granted certiorari to determine that issue. (Id. at p. 42.)

The Sixth Amendment Confrontation Clause provides that [i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. (Crawford, supra, 541 U.S. at p. 42.) This guarantee applies not only to in-court testimony, but also to out-of-court statements introduced at trial, regardless of admissibility of statements under the law of evidence. (Id. at p. 51.) The Clause applies to witnesses against the accused--in other words, those who bear testimony. [Citation.] Testimony, in turn, is typically [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact. [Citation.] An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. . . . [] Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially [citations] . . . ; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, [citation]. These formulations all share a common nucleus and then define the Clauses coverage at various levels of abstraction around it. Regardless of the precise articulation, some statements qualify under any definition--for example, ex parte testimony at a preliminary hearing. [] Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. (Id. at pp. 51-52.)

The court concluded that Sylvias recorded statement, knowingly given in response to structured police questioning, qualifies [as testimonial] under any conceivable definition. (Crawford, supra, 541 U.S. at p. 53, fn. 4.)

In our case, the trial court, after listening to the tape and hearing arguments, found that the statement was within the purview of [Evidence Code section 1240]. This lady had just been a victim of a shooting, and she was aware of that. She was audibly upset and excited by the episode. And the content of her statement is a description generally of what happened. She does not identify anybody, namely, the defendant. And there is other evidence that the same shooting did occur. [] . . . Its close in time to the event of the upset or urgency of the statement. It is reflected in its tone and content. And there does not appear to have been a significant amount of intervening time between the event itself, which was an extremely exciting event, and the statement . . . thats being made.

We agree. Martinezs statements were excited utterances not made in response to structured police questioning despite the operators attempts to calm Martinez.[4] The statements were made shortly after the time of the incident. Martinez and the other occupants of the car drove immediately to the police station. Soto and Medina testified at trial that the occupants of the car did not talk to each other about the shooting because they were nervous, upset, and frightened. Soto said Martinez was very nervous and . . . we were all scared.

It is clear even from a transcript of the tape how excitable and upset Martinez was. In addition, Officer Zubiate, who was called in to the police department to take a report from the victims, stated, [a]ll six individuals were upset. I believe the females had been crying, and they were pacing back and forth in the lobby. And they kept looking out the front doors of the lobby, and they repeatedly stated that they were afraid. [] . . . [] All of them expressed that they feared for their safety, they feared retaliation because of past threats from gang members.

There was nothing in the statements or in the transcript to suggest that Martinez gave her statements with the thought that they would be used in court for evidence or that the police questioners asking her what happened were seeking her statements for use in court. It would be unreasonable to prohibit evidence concerning spontaneous declarations in every case where they are promoted by a simple inquiry as to what happened. (People v. Solomon (1969) 1 Cal.App.3d 907, 911.) Clearly, Martinez was reporting a crime and seeking help, and the operator was trying to get enough information from her for police to conduct an investigation. The evidence fully supported the courts ruling. The use of Martinezs spontaneous statement as a firmly rooted exception to the hearsay rule did not violate defendants right of confrontation of witnesses. (People v. Alvarez (1996) 14 Cal.4th 155, 187.)

INEFFECTIVE ASSISTANCE OF COUNSEL

Next, defendant claims trial counsel was ineffective in failing (1) to object to testimony that gang members were outside the courtroom, (2) to request an evidentiary hearing on whether any jurors were biased by their own observations of gang members inside and outside the courtroom, and (3) to object to the use of defendants juvenile adjudication as a strike prior.

Defendant states that [t]he government made the threat posed to the community by Norteos [sic] gang members a dominant theme at [defendants] trial. Jurors[, who had been told they would be known only by number during the trial and that their names would be kept under seal in the clerks office and not released to anyone,] were given the message by both the court and the prosecution that [defendant] and his associates were dangerous individuals who represented a direct threat to them and their families simply because they served on the jury. This message of intimidation continued throughout the trial, from the moment the jurors were told during voir dire that they would remain anonymous and be called upon by juror number only, and during their deliberations when they were escorted from the courthouse to their cars. [] The prosecution inflamed the matter by introducing irrelevant and prejudicial testimony from its expert witness that gang members were lurking outside the courtroom with cell-phone cameras in order to intimidate others. This fear-mongering was so effective that it prompted the jurors to send a note to the trial court seeking law enforcement protection. One juror even sought--and obtained--a court order to be excused from the jury based due to [sic] her fear engendered by the experts testimony. Trial counsel, however, did not contemporaneously object to admission of the testimony that gang members were roaming the courthouse and did not seek an instruction not to consider the evidence. Trial counsel also failed to move for a mistrial or request an evidentiary hearing to require the government to rebut the heavy presumption of prejudice after the court learned from jurors that they had seen gang members in the courtroom and courthouse, were concerned for their safety, and had conversed with the bailiff about gang members.

The People counter that although some of the jurors in the case expressed legitimate concerns regarding safety, [defendants] trial counsel used the evidence [in closing argument] to play upon the jurys fear and convey a message that [the] prosecution was attempting to use scare tactics to bolster an otherwise weak case. In light of the ample evidence of gang activity in the case, and the overwhelming evidence of [defendants] guilt of all three offenses, counsels decision to turn the jurors fears back upon the prosecutions case was reasonable. Furthermore, for the same reasons, counsels failure to act could not have been prejudicial, even it if was not done for strategic reasons.

To prevail on a claim of ineffective assistance of counsel, a defendant must show not only (1) that counsels performance fell below an objective standard of reasonableness under prevailing professional norms, but also (2) that, as a result, the defendant was prejudiced, i.e., there is a reasonable probability that, but for counsels errors, the result of the proceeding would have been different. (People v. Benavides (2005) 35 Cal.4th 69, 92-93.) [I]n order to establish ineffective assistance of counsel, a defendant must show that counsel committed errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. (Morris v. State of Cal. (9th Cir. 1991) 966 F.2d 448, 456, cert. den. 113 S.Ct. 96 (1992).)

Prevailing norms of practice are guides to determining what is reasonable, but they are only guides. There is a wide range of reasonable professional conduct and a strong presumption that counsels conduct fell within that range. (Strickland v. Washington (1984) 466 U.S. 668, 688-689 (Strickland).) In evaluating a defendants claim of deficient performance by counsel, there is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance [citations], and we accord great deference to counsels tactical decisions. [Citation.] Were it otherwise, appellate courts would be required to engage in the perilous process of second-guessing counsels trial strategy. [Citation.] Accordingly, a reviewing court will reverse a conviction on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. (People v. Frye (1998) 18 Cal.4th 894, 979-980.)

When the reason for counsels action or inaction is apparent on the record, the court will determine whether that reason reflects reasonably competent performance by an attorney acting as a conscientious and diligent advocate. If no explanation appears, an ineffective assistance of counsel claim will be rejected unless the attorney was asked for and did not offer an explanation, or there can be no satisfactory explanation. (People v. Coddington (2000) 23 Cal.4th 529, 652.) If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed. (Strickland, supra, 466 U.S. at p. 697.)

Here, it is clear that gang evidence, both of specific crimes performed by gang members and expert testimony to explain the significance of certain other facts (the color red, for example) and acts (taking cell-phone pictures) had a legitimate bearing on the offenses and enhancements charged. The gang connection between defendants conduct and associates permeated the trial. As the People state, [T]he breadth of gang evidence was entirely necessary to show the extent to which [defendant] and his Norteo cohorts would go to retaliate against past witnesses, intimidate future witnesses, and control their turf. Not only did the expert explain how each of the crimes was gang related, but each of the lay witnesses described their own fears of retaliation that were caused by the gangs prior actions. . . . Thus, when Officer Burnett testified that numerous Norteo members, as well as a high ranking member of the Nuestra Familia, were lurking outside the courtroom and that some were taking pictures of witnesses in an effort to intimidate them, this evidence was admissible both to corroborate Officer Burnetts opinions about the extent to which the gang would go to help its members, as well as to assist the jury in determining the credibility of the various witnesses who braved the Norteo gauntlet to testify.

The basis for defendants first complaint, counsels failure to object to testimony about gang members outside the courtroom, arose after Officer Burnett testified about the origin, history, inner workings, and techniques of the gangs. After explaining how the gang members try to intimidate local residents and store owners from reporting crimes, and to keep witnesses from testifying, [i]mmediately thereafter, Officer Burnett, prompted by prosecuting counsel, strongly suggested to the jurors that Norteo[] gang members were systematically engaged in intimidation in this very trial. Burnett testified to observing unusual activity outside the courtroom and named a number of admitted Norteo[] gang members and a high in status Nuestra Familia gang member who were watching the courtroom. She also observed defendants family and others whom she had named with picture phones and contacted one of the females and asked her if she was taking my picture.

Defendant claims that this testimony had no legitimate bearing on the offenses charged and it tended to evoke an emotional bias against defendant and would have excluded it if counsel objected. Defendant is wrong.

Evidence of a defendants gang affiliation--including evidence of the gangs territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like--is relevant and admissible regarding a charged offense, as evidence can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Furthermore, Burnetts testimony about the goings-on at the courthouse was that of a percipient witness to the roaming, gang member surveillance of the courtroom, and taking pictures of witnesses. Her observations were probably more informed than those of most witnesses to the activity because she knew or knew of the persons involved and because of her specialized training and knowledge in Salinas street gangs and the Norteos in particular. The evidence was relevant to a factual issue before the jury because defendant was charged not only with the underlying crimes, but also with gang enhancements. Burnetts testimony was especially relevant on the latter.

It was also relevant to witness credibility. (Evid. Code, 780.) Evidence of threats by gang members against witnesses is admissible to assist the jury in assessing the credibility of the witnesses (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449 (Sanchez)) as is evidence a witness is afraid to testify and testimony a witness is fearful of retaliation. (Id. at pp. 1449-1450.)

Second, defendant complains that trial counsel should have asked the court for an evidentiary hearing to require the government to rebut the heavy presumption of prejudice caused by the jurors concern for their safety after seeing gang members in the courtroom and courthouse, and speaking to the bailiff about gang members.

Defendant states that after Burnetts testimony, the jurors then sent the court a message (apparently written by the bailiff)[5] stating that they had observed gang members within the building and in the court room, expressing concerns about potentially being photographed by gang members with cell phones, and telling the court that they park far away from the court house and might be harassed by gang members as [they] go to and from their vehicles. In response, the court ordered the bus that goes to the train station to take the jurors to their cars and to have a bailiff on the bus.

The next morning, after a note from a juror and a hearing in chambers, during which the juror described her fear to the court and said it would prevent her from being able to reach a decision in the case, the court excused the juror for cause. Defense counsel stated it was becoming more clear that with the testimony of Burnett the day before and the transportation issue that this juror just described . . . , it seems it has increased a sense of fear among the jurors. Trial counsel stated he thought other jurors might also be thinking that the Court or the sheriff believes that they are in danger and he asked the court to address that directly, because I feel like were getting increasingly to the point where this jury cannot maintain objectively what were hoping for them to do. The court declined to solicit information from the jurors but addressed the jurors thusly:

I wanted to tell you that in response to some concerns that a couple of jurors expressed yesterday, we made arrangements to bring a bus in--actually the bus that transports county employees and jurors from the courthouse to the parking lot over by the train station on a routine basis everyday. We had them come and take you as a group out to your cars. In doing that, I certainly did not mean to create an impression that I have any concern about your safety. . . . [W]ell, let me state that differently. Of course, I have concern about your safety, but I have no reason to believe that theres any problem in that area with respect to any of you. [] Ive been doing this for 33 years. Weve all been involved in countless jury trials involving charges of violence in gang violence [sic], and weve never had an episode in this county where a juror has been in any way harmed as a result of this court connection. So I have no specific reason to feel that theres any problem. We took some action to assuage some of the concerns some jurors had, and I dont want to make it appear that--that those concerns have any actual basis. But at the same time where people have those concerns, I dont want to just leave them worrying about them either. Thats why we did what we did.

A criminal defendant has a right under both the state and federal Constitutions to an unbiased, impartial jury. (People v. Nesler (1997) 16 Cal.4th 561, 578 (Nesler); U.S. Const., 6th Amend.; Cal. Const., art. I, 16.) A juror is considered biased if he or she has been improperly influenced by something that was not received as evidence at the trial. (Nesler, supra, 16 Cal.4th at p. 578.) Juror misconduct includes the receipt of information about a party or a pending case that was not part of the evidence at trial, even if the information was received inadvertently. (Id. at pp. 578-579.) However, it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. (People v. Danks (2004) 32 Cal.4th 269, 303 (Danks).)

[T]he introduction of much of what might strictly be labeled extraneous law cannot be deemed misconduct. The jury system is an institution that is legally fundamental but also fundamentally human. Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience. That they do so is one of the strengths of the jury system. It is also one of its weaknesses; it has the potential to undermine determinations that should be made exclusively on the evidence introduced by the parties and the instructions given by the court. Such a weakness, however, must be tolerated. [I]t is an impossible standard to require . . . [the jury] to be a laboratory, completely sterilized and freed from any external factors. [Citation.] Moreover, under that standard few verdicts would be proof against challenge. (Danks, supra, 32 Cal.4th at pp. 302-303.)

Here, there was no juror misconduct, that is, the jurors observations of who else was in and around the court house was not the receipt of information about a party that was not part of the evidence at trial. (Nesler, supra, 16 Cal.4th at pp. 578-579.) The percipient witnesses at trial--Soto, Medina, and Kelli--plus Burnett, had testified and had been cross-examined about intimidation. In addition to intimidation in the abstract, Burnett described intimidating behavior at the courthouse that she personally observed, whose significance corroborated her expert testimony on gang operations. The jurors could not help but observe examples of that behavior while they were about their lawful business coming and going to the courtroom.

Consequently, there was no juror misconduct for defense counsel to seek inquiry into. In a case of even more egregious intimidation, it was held that a juror did not commit misconduct, even inadvertently, where the juror, who was already fearful of defendants family, observed defendants family members parked outside her home, even if the persons were arguably there to intimidate her into changing her vote in favor of the defendant, since there was no communication, no gestures, and no display of weapons. (In re Hamilton (1999) 20 Cal.4th 273, 306.) In our case, there were similarly no complaints by the jurors that gang members attempted communication, gestured, or displayed weapons to them. The jurors did not even complain that photographs had been taken of them or that they had been harassed going to and from their cars. The photos were a potential concern and harassment was a possibility that might happen. We are satisfied there was no substantial likelihood that the jurors were actually biased in the sense that they were unable to render a verdict based solely on the evidence received at trial. (Nesler, supra, 16 Cal.4th at pp. 583-585.)

Defendant complains that jurors spoke to the bailiff about the gang members and sent a note (written by that bailiff) to the court. First, the bailiff was the jurors conduit to the court. Via the note, the jurors properly brought their concerns before the court. The one juror who asked to be released from jury service because of her fears properly had a hearing outside the presence of the other jurors and the court made an individualized decision based on the evidence she presented. The other jurors had not brought any matters to the courts attention that required inquiry on an individualized basis, and the court properly acted to assuage the general concerns of the remaining jurors without suggesting fears that had not originated with the jurors. Furthermore, the jurors did not discuss the facts of the case with the bailiff; they discussed their observations and the stress it caused them for the purpose of having their concerns communicated to the court. A juror does not commit misconduct simply by discussing the stress caused by jury service with a nonjuror. (Danks, supra, 32 Cal.4th at p. 304.)

In light of our discussion, there was no ineffective assistance of defense counsel in failing to request an evidentiary hearing or a mistrial as defendant complains. Nor would this evidence have been excluded with a proper objection. Defense counsel, realizing that gang testimony was inevitable given the facts of the case and the charges, tried to turn the jurors concerns to his advantage. As the People say, the entire trial was about the reign of terror brought on by [defendant] and his gang. Even [defendants] trial counsel recognized, and attempted to utilize, this.

During his closing argument, defense counsel reminded the jurors that when they were selected, they were told there would be gang evidence, and that it was important that each of you felt as though you could acknowledge that aspect of the case, but still be able to maintain your objectivity. Counsel stated he felt that theres a character assassination that goes on here. Its not a coincidence how much, how heavy the gang evidence is here. [] Now, there is no question that the government has a burden to prove elements in this case. But theres a fanning of the flames; there is--theres an attempt to try to make you feel fear, okay. And, again, you need to be able to step back and not be affected by what is the fear thats being pushed upon you. . . . Its . . . what I call sort of a scare marker . . . and if we make the jury afraid enough, then theyre going to have trouble recognizing that theres problems with the proof in the case. So, again, I caution you, watch out for that, as you are analyzing things, and discussing it, when youre deliberating. Think about the extent to which fear is playing a part in your thinking. This is made even more serious by some of the testimony of Vicky Burnet [sic]. She . . . testified and really speculated about what she believed was going on outside of this courthouse, which she believed was going on by at least one person in my clients family, pure speculation.

Counsel then raised questions in great detail about the ability of the percipient witnesses to make the observations they claimed to have made or their motives for testifying to facts that they did (including questioning whether Soto and another witness had moved on from a possible earlier rival gang affiliation) before going on to other aspects of the case.

Counsel made a reasonable tactical decision under the circumstances of this case. Gang evidence is admissible to show gang presence of activity at or near a courthouse (People v. Carter (2003) 30 Cal.4th 1166, 1201), motive (People v. Frausto (1982) 135 Cal.App.3d 129, 141), whether harassment and graffiti should be taken seriously as witness intimidation or whether they constituted nothing more than empty threats (Olguin, supra, 31 Cal.App.4th at p. 1368), to assist the jury in assessing the credibility of witnesses who were threatened by gang members (Sanchez, supra, 58 Cal.App.4th at p. 1449), to assist in determining credibility where a witness testifies he or she is afraid to testify (People v. Warren (1988) 45 Cal