P. v. Gutierrez

 

 

 

 

 

 

 

 

 

Filed 6/10/13  P. v. Gutierrez CA4/2

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 

 
>

THE PEOPLE,               Plaintiff and Appellant,   v.   CRUZ ALONZO GUTIERREZ et al.,               Defendants and Appellants.

E053552               (Super.Ct.No. RIF149458)               OPINION

 

            APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County.  Helios (Joe)
Hernandez, Judge.  Affirmed in part,
reversed in part.

            Edward
J. Haggerty, under appointment by the Court of Appeal, for Defendant and
Appellant Cruz Alonzo Gutierrez.

            Jennifer
Peabody, under appointment by the Court of Appeal, for Defendant and Appellant
Monique Yvonne Garcia.

            Paul
E. Zellerbach, District Attorney, and Matt Reilly, Deputy District Attorney,
for Plaintiff and Appellant.

            Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and William M. Wood and
Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.

            In
this case, defendants and appellants Monique Yvonne Garcia (hereafter,
Defendant Garcia) and Cruz Alonzo Gutierrez (hereafter, Defendant Gutierrez)
were convicted by separate juries of attempted murder, assault and active
participation in a criminal street gang. 
Both defendants and the People appeal the judgment.

            Defendant
Gutierrez contends:  (1) his statement
regarding gang affiliation during booking was admitted in violation of his
Fifth Amendment right against self-incrimination; (2) the trial court erred by
failing to instruct the jury on the meaning of the term “in association with
any criminal street gang”; (3) there
was insufficient evidence to support the gang enhancement; (4) there was
insufficient evidence to support his conviction of active gang participation;
(5) he was denied due process when the gang expert was allowed to testify that
his acts were committed for the benefit of, in association with, or at the
direction of a criminal street gang; (6) the prosecutor committed misconduct in
failing to properly prepare the witnesses; (7) CALCRIM No. 372 is
unconstitutional; and (8) the trial court abused its discretion in denying his
posttrial Marsdenhref="#_ftn1" name="_ftnref1" title="">^[1] motion.

            Defendant
Garcia contends:  (1) her convictions
must be reversed because the prosecutor presented the jury with a legally
incorrect theory of conviction; (2) the prosecutor committed misconduct,
violating her constitutional rights,
by eliciting evidence that the deputies conducted a probationary search of her
home, which was prohibited by the court’s pretrial rulings; (3) the gang expert
improperly opined that she was guilty of the attempted murder and felony
assault charges; and (4) the cumulative error doctrine applies.  Each defendant joins in the issues raised by
the other defendant.

            The
People appeal, contending the trial court’s postverdict dismissal of the gang
enhancements and gang offenses
constitutes error because there was legally sufficient evidence to support
those charges.

I.  STATEMENT OF FACTS

            On
March 27, 2009, D.H.
celebrated her 13th birthday with a party at her family’s home in Moreno
Valley.  Her adult sisters, Priscilla and Christina,
served as chaperones, along with Christina’s boyfriend, Ricardo Williams, also
called Scrappy.  More than 10 teenagers
attended the party, including 14-year-old J.G., who came as a friend of one of
the guests.  About 11:00 p.m., Christina and Williams left, and J.G. sent a
text message to her sister, Defendant Garcia, for a ride home.

            Defendant
Garcia arrived at the house and pounded on the back door.  When she walked in, she asked for J.G.,
acting “crazy, upset about something.” 
Although her sister was in the next room, Defendant Garcia yelled and
screamed, saying, “‘Where’s my sister?’” 
A 16-year-old “skinny guy” named Jonathan O. (also called “Fez”)
said something like, “‘The party’s in my pants,’” or “‘She’s in my
pants.’”  As Defendant Garcia became
angry and yelled and cursed at Jonathan, she told J.G., “‘Go to the car or I’m
going to slap you.’”

            Defendant
Garcia announced that she had friends from Edgemont and was going to have
“‘Tokes, Toker, . . . something to that effect’” come over, “‘bring a
strap’” and “take care of this kid’” and “‘hit up the house.’”  Defendant Gutierrez is known as “Tokes.”  Jonathan apologized; however, Defendant
Garcia said it did not matter, and that he needed to be “taken care of and
taught a lesson.”  She called someone and
told the person to “‘bring the homies,’” “‘bring guns,’” and “‘you need to get
over here and handle these people.’” 
Jonathan heard her say “Tokes” during the call.

            Concerned
that something bad would happen, Priscilla called Christina and told her
someone was threatening to shoot up the house, and asked if Williams would
return with help.  Christina could hear
someone yelling in the background that sounded like, “‘[b]ring a strap,’” or
“‘bring guns,’” and “‘[c]ome over [and] . . . shoot everybody
up,’” but she assumed the argument was among some of the kids at the party.  Christina sent Williams back to the party to
check on the situation.

            Meanwhile,
D.H.’s mother told Defendant Garcia to leave, and the two argued outside.  Defendant Garcia remained on the phone,
telling the person on the other end to hurry up.  When Williams arrived, he attempted to defuse
the situation.  He reminded Defendant
Garcia there were children in the house and that Jonathan was just a kid who
had made an offensive comment.  Defendant
Garcia said she did not care, that she was calling her “homies from Edgemont,”
and that something was going to happen. 
She added, “‘No one disrespects me.’”

            A
red car pulled up and three men wearing black hoodies and gloves got out.  Williams thought the men were dressed in all
black, as if “on a mission.”  Defendant
Garcia pointed to D.H.’s mother and told the men, “‘Hey, that’s the bitch right
there.’”  After asking Defendant Garcia
whether this was really necessary, Williams turned to D.H’s mother and said,
“‘This don’t look good.’”  Williams saw
that one of the men had a gun that he later recognized as a revolver.  He walked into the street to try to dissuade
the men, saying, “[T]his ain’t going down right here.”  Someone told him, “‘Step to the side, because
it is.’”  At some point, Williams
shouted, “‘Run,’” and D.H.’s mother ordered the kids into the house.

            As
Williams prepared to fight the man with the gun, another man “sliced”
Williams’s throat.  The man with the
knife said, “‘Blast that fool,’” and the gunman shot Williams in the arm.  Several more shots were fired as Williams ran
away.  During the attack, one or more of
the assailants said, “‘Edgemont, Edgemont.’”

            After
Williams left, Christina decided to drive back to the party.  As she turned onto Fay Avenue, she saw him
running toward the car “drenched in blood [and] holding his throat.”  Two or three men dressed in dark clothing
chased him and one was shooting at him.href="#_ftn2" name="_ftnref2" title="">^[2]  Williams got into Christina’s car and the men
turned around.  Christina saw the gunman
get into a white van, which sped off.

            That
same night, Jonea Garcia, who lived with her sisters, Defendant Garcia and
J.G., answered the door to find three men—Defendant Gutierrez, Alfredo Avila
(Vago) and an unknown man—looking for Defendant Garcia.  At trial, Jonea claimed that only two men,
not including Defendant Gutierrez, had come to the house.  The men said they would wait in the garage
for Defendant Garcia to return.  Jonea
did not know whether the men waited.

            About
4:00 a.m., Riverside County Sheriff’s deputies went to Defendant Garcia’s home
and found several people, including J.G. and both defendants.  During a search of the residence, deputies
discovered ammunition in the garage and a loaded revolver and speed loader
hidden in a couch cushion.  The revolver
previously had been reported stolen.

            Deputy
Gabriel Dennington of the Riverside County Sheriff’s Department also found a
cell phone and turned it on.  The phone
displayed a photograph of Defendant Gutierrez and an Edgemont Locos gang member
called “Listo” with their shirts off. 
Defendant Gutierrez claimed the phone did not belong to him.  Deputy Dennington used the phone to dial
Defendant Garcia’s cell phone number. 
Her phone identified “Tokes” as the incoming caller.  It was later learned that Defendant Garcia
had called Defendant Gutierrez on the night of the shooting at 11:43 and 11:45
p.m., and at 1:49 the following morning.

            During
her interview with Detective Lance Colmer of the Riverside County Sheriff’s
Department, J.G. initially refused to identify anyone involved in the
shooting.  She told Detective Colmer that
she did not “trust cops.”  She said,
“‘I’m glad that fool got blasted.’”  J.G.
ultimately identified Avila as one of the assailants and stated repeatedly and
with certainty that Defendant Gutierrez was the shooter.  She told the detective all three men were
from Edgemont, but she only knew Tokes. 
She had known Defendant Gutierrez for four years and thought of him as a
big brother.  She claimed Williams was
holding a knife when he walked up to Avila and Defendant Gutierrez that night.

            At
trial, J.G. again identified Avila and Defendant Gutierrez as two of the
assailants, but claimed that Defendant Gutierrez was not the shooter and that
she had been unable to see what happened because she had not been wearing
glasses or contacts.  J.G. admitted
telling Detective Colmer she was wearing contacts that night but claimed at
trial that she had lied to the detective and had no idea why.  She said it would not help to look at the
transcript, that she could not recall any of that year.

            Detective
Colmer opined that Edgemont Locos was a criminal
street gang with 75 to 100 active gang members at the time of the
shooting.  Edgemont Locos was also known
as “Edgemont,” “EML,” and “Lokos,” and included gang subsets “Night Owls,”
“Cholilos,” and “Spantos.”  Edgemont gang
members commonly used these symbols in graffiti, tattoos and on clothing.  Edgemont’s primary activities included
graffiti, narcotics sales, and violent felony assaults.  Detective Colmer outlined several cases
involving crimes committed by the gang’s members.

            Detective
Colmer opined that Defendant Gutierrez was a member of the Edgemont Locos gang
who went by the moniker “Tokes.”  He
based his opinion on a review of police reports and field interview cards where
the defendant wore gang clothing, admitted being an Edgemont gang member, and
was contacted on Edgemont gang territory in the company of other active
Edgemont gang members.  Detective Colmer
also relied on testimony in the instant case that Defendant Gutierrez said
“Edgemont” during the attack and that Defendant Garcia had stated she was
calling people from Edgemont.

            Detective
Colmer opined that Defendant Garcia was an associate of the Edgemont Locos gang
on the day of the shooting.  An associate
of a gang may be a girlfriend, relative, or someone else who has repeated
contact with members of a gang and assists that gang in various ways, i.e., by
providing meals, transportation, or a safe house, but has not gone through the
process of becoming a full-fledged gang member. 
Detective Colmer believed Defendant Garcia was an Edgemont associate
because she made references to Edgemont and said she was calling her “homies”
while arguing with people at the party. 
The detective explained that people unaffiliated with a gang generally
do not invoke that gang’s name in making threats, or call members of that gang
to carry out such threats.  Moreover, one
witness saw Defendant Gutierrez flee in Defendant Garcia’s white van; Defendant
Gutierrez was arrested at Defendant Garcia’s home; a gun consistent with the
crime weapon was discovered in Defendant Garcia’s home; two known Edgemont gang
members had come to Defendant Garcia’s home to see her after the shooting; and
there had been cell phone correspondence between Defendants Garcia and
Gutierrez just before and after the shooting. 
Finally, Defendant Garcia’s telephone contained contact information not
only for Defendant Gutierrez (“Tokes”) and Avila (“Vagos”) but for numerous other
individuals known to be Edgemont gang members.

            Detective
Colmer opined the attack on Williams was committed at the direction of and in
association with the Edgemont Locos criminal street gang.  The detective testified that Avila was known
to be a senior member of the Edgemont gang, and that the order to Defendant
Gutierrez to “Blast him,” indicates the crime was committed at the direction of
the Edgemont gang.  Defendant Garcia’s
telephone call also indicated planning and direction by causing Edgemont gang
members to respond to the house in a violent manner.  Defendant Gutierrez acted in association with
his gang not only by committing the crime with at least one other Edgemont gang
member and at the behest of Defendant Garcia, an associate, but also by
verbally announcing his association with Edgemont just before shooting
Williams.  Detective Colmer added that
the gang would also benefit by providing “experience” for its members and by
increasing its street reputation for committing violent acts.

            During
a routine jail admission interview on March 29, 2009, a Riverside County
sheriff’s classification deputy asked Defendant Gutierrez if he had any gang
affiliation.  Defendant Gutierrez denied
any gang affiliation but gave the impression he was associated with the
Edgemont Locos gang and that his nickname with the gang was “Junior.”

            Both
defendants were charged with attempted, deliberate and premeditated murder with
a firearm use allegation, (Pen. Code,href="#_ftn3" name="_ftnref3" title="">^[3] §§ 664, 187, subd. (a), and 12022.53,
subds. (d) and (e); count 1); assault with a firearm (§ 245, subd. (a)(2);
count 2); assault with a deadly weapon, a knife, (§ 245, subd. (a)(1);
count 3); and actively participating in a criminal street gang (§ 186.22,
subd. (a); count 4).  As to counts 1, 2
and 3, it was further alleged as to Defendant Gutierrez that he personally
inflicted great bodily injury (§ 12022.7, subd. (a)), and as to both
defendants that the offenses were committed for the benefit of, at the
direction of, and in association with a criminal
street gang (§ 186.22, subd. (b)).

II.  ADMISSION ANSWERS TO BOOKING QUESTIONS

            Defendant
Gutierrez contends the trial court violated his Fifth Amendment right against
self-incrimination by admitting statements he made about his association with
the Edgemont Locos while being processed for admission to jail.

A.  Further Background
Information

            As
part of the routine booking process, deputies assigned to the Riverside County
sheriff’s classification department ask inmates about their gang affiliation
for jail classification, housing, and security purposes.  During a booking interview, Correctional
Deputy Kristen Morris of the Riverside County Sheriff’s Department asked
Defendant Gutierrez whether he was “gang-affiliated” and whether he “h[ung]
out” with any gang members.  The
questions were taken from a standardized form. 
Defendant Gutierrez denied any gang affiliation but said he “h[ung] out”
with members of the Edgemont Locos gang and that his nickname with them is
“Junior.”

            Prior
to trial, Defendant Gutierrez moved to exclude his booking statements to Deputy
Morris on the grounds such admission would violate his rights under >Miranda v. Arizona (1966) 384 U.S. 436 (>Miranda).  According to defense counsel, Deputy Morris
was aware that gang charges were pending against Defendant Gutierrez during the
interview and that she should have realized gang questions would elicit
incriminating responses.  Observing that
booking officers ask about gang status in every case regardless of pending gang
charges, the trial court ruled that the statements were admissible under the
routine booking question exception. 
However, regarding Defendant Gutierrez’s statements made during an
unrelated 2008 drug arrest when he admitted he was an Edgemont gang member, the
trial court excluded them pursuant to Evidence Code section 352.

B.  Legal Principles and Analysis

            California
and federal courts have long applied the booking question exception to >Miranda. 
(See, e.g., People v. Rucker
(1980) 26 Cal.3d 368, 387, superseded by statute as stated in >People v. Gomez (2011) 192 Cal.App.4th
609, 630, fn. 11 (Gomez); >Presley v. City of Benbrook (5th Cir.
1993) 4 F.3d 405, 408, fn. 2; United
States v. Booth (9th Cir. 1981) 669 F.2d 1231, 1238; United States ex rel. Hines v. LaVallee (2d Cir. 1975) 521 F.2d
1109, 1112-1113.)  “The fact that the
information gathered from routine booking questions turns out to be
incriminating does not, by itself, affect the applicability of the exception.  [Citations.] 
In United States ex rel. Hines v.
LaVallee[, supra,] 521 F.2d 1109,
for example, an assailant told his robbery and rape victim during the
commission of the crimes that he had been married 11 years and had two
children.  [Citation.]  After the defendant was arrested and before
being Mirandized, he was asked
‘background data (i.e., his name, address, age, marital
status) . . . .’ 
[Citation.]  He told the officer
that he had been married for 11 years and had two children.  [Citation.] 
Although the response was incriminating, the Second Circuit held that it
was admissible because it ‘constituted merely basic identification required for
booking purposes . . . .’ 
[Citation.]”  (>Gomez, supra, at pp. 629-630.)

            “‘“[R]ecognizing
a ‘booking exception’ to Miranda does
not mean, of course, that any question asked during the booking process falls
within that exception.  Without obtaining
a waiver of the suspect’s Miranda
rights, the police may not ask questions, even during the booking, that are
designed to elicit incriminatory admissions.”’ 
[Citation.]  The use of the phrase
‘designed to elicit incriminatory
admissions,’ instead of the more objective ‘reasonably
likely to elicit an incriminating response’ language . . .
suggests that the intent of the interrogating officer is more important in
evaluating the applicability of the booking question exception than in
establishing interrogation generally.”  (>Gomez, supra, 192 Cal.App.4th at p. 629, fn. omitted.)  Thus, “the booking question issue requires
careful scrutiny of the facts and circumstances in each case,” because
“[w]hether the administrative purpose is a mere guise or pretext for questions
actually designed to elicit incriminating responses is a close question.”  (Id.
at pp. 634, 635; U.S. v. Washington
(9th Cir. 2006) 462 F.3d 1124, 1132-1133 [question eliciting the defendant’s
gang moniker was a “routine booking question” despite the fact his moniker
ultimately provided a link in the evidentiary chain of evidence].)

            In
Gomez, the defendant was asked
questions about his gang affiliation for jail security purposes.  (Gomez,
supra, 192 Cal.App.4th at p.
632.)  Finding such questions within the >Miranda exception, this court observed,
“The classification of inmates by gang affiliation for jail security purposes
can be a legitimate administrative concern. . . .  Thus, there does appear to be a legitimate
administrative purpose for the question.” 
(Gomez, supra, at p. 634.) 
Similarly, in this case Defendant Gutierrez was asked legitimate booking
questions pursuant to a standard booking form, which allowed Deputy Morris, who
was uninvolved with the investigation of the crimes, to classify him by gang
affiliation.  Defendant disagrees with
this court’s opinion in Gomez,
asserting that “gang affiliation questions inherently are designed to elicit
incriminating information” because of the “frequency of gang charges and
enhancements, as well as the admissibility of gang evidence
generally . . . .” 
Thus, Defendant Gutierrez argues that such questioning “should not be
deemed to fall within the booking exception to Miranda.”  We disagree.

            To
begin with, we decline Defendant Gutierrez’s invitation to reverse our decision
in Gomez.  More importantly, on the record before this
court, we cannot say that the gang-related questions asked are outside the
booking question exception.  The
questions appear to have been asked in a legitimate booking context, by a
booking deputy who was not involved with the arrest or investigation of the
crimes, pursuant to a standard booking form. 
Thus, the questions were asked for legitimate, noninvestigatory purposes
related to the administration of the jail and concerns for the security of the
inmates and staff.  Significantly, there
is no evidence Deputy Morris had any knowledge of the crimes for which Defendant
Gutierrez was arrested or was suspected of committing.  The interview took place on March 29,
2009, less than 48 hours after the commission of the crimes.  Although Defendant Gutierrez was ultimately
charged on August 13, 2009, with certain gang enhancements, our record
does not indicate whether the arresting deputies indicated it was a
gang-related crime in any pre-booking report or, if they had, whether Deputy
Morris had seen such a report or talked to the deputies.href="#_ftn4" name="_ftnref4" title="">^[4]  Rather, the initial felony complaint filed on
April 2, 2009, does not charge Defendant Gutierrez with any gang
enhancements or gang-related crimes. 
Thus, there is a strong inference there was no indication this was a
gang-related crime in any prebooking report.

            For
the above reasons, we hold that the prosecution satisfied its burden of showing
by a preponderance of the evidence that the questions about Defendant
Gutierrez’s gang affiliation were booking questions not designed to elicit an
incriminating response.  Thus, his
responses were admissible notwithstanding the absence of Miranda warnings.

III.  FAILURE TO INSTRUCT ON THE TERM “IN
ASSOCIATION

WITH
ANY CRIMINAL STREET GANG”

            The
jury was instructed on the elements of the criminal street gang enhancement
pursuant to CALCRIM No. 1401 as follows: 
“To prove this allegation, the People must prove that:  [¶] 
1.  The defendant committed the
crimes charged for the benefit of, at the direction of or in association with a criminal street gang;  [¶] 
AND  [¶]  2.  The
defendant intended to assist, further, or promote criminal conduct by the gang
members.”  (Italics added.)  Defendant Gutierrez faults the trial court
for failing, sua sponte, to provide the jury with a clarifying instruction on
the meaning of the term “in association with a criminal street gang.”  He claims that “[u]nder the holding of the
California Supreme Court in the case of People
v. Albillar (2010) 51 Cal.4th 47, 60-62 [(Albillar)], ‘in association with a criminal street gang’ is a legal
term with a specific definition that needed to be provided to the jury.”  In response, the People argue the pattern
jury instruction in CALCRIM No. 1401 sufficiently instructed the jury on the
law and that no further instruction was required absent a request.

            “The
trial court has a sua sponte duty to give correct instructions on the basic
principles of the law applicable to the case that are necessary to the jury’s
understanding of the case. 
[Citation.]  That duty requires
the trial court to instruct on all the elements of the charged offenses and
enhancements.  [Citation.]”  (People
v. Williams (2009) 170 Cal.App.4th 587, 638-639 [Fourth Dist., Div.
Two].)  When the terms are used as
commonly understood, the court has no obligation to define them absent a
request for amplification or explanation.

            Citing
Albillar, supra, 51 Cal.4th at pages 60 and 73, Defendant Gutierrez asserts
that the term “‘in association with any criminal street gang’ requires a
showing that [he] ‘relied on . . . common gang membership and the
apparatus of the gang in committing’ the charged crimes.”  We disagree.

            In
Albillar, three fellow gang members
were convicted, inter alia, of forcible rape in concert and forcible sexual
penetration in concert.  In rejecting the
defendants’ contention that there was insufficient evidence to support the
jury’s implied finding that the sexual offenses were committed in association
with their gang, the Supreme Court pointed out the gang expert’s testimony
regarding elements of gang membership and reasons for gang members committing
crimes.  (Albillar, supra, 51 Cal.4th
at pp. 60-61.)  Tying in the facts of the
case with the expert’s testimony, the court concluded, “Defendants not only
actively assisted each other in committing these crimes, but their common gang
membership ensured that they could rely on each other’s cooperation in
committing these crimes and that they would benefit from committing them
together.  They relied on the gang’s
internal code to ensure that none of them would cooperate with the police, and
on the gang’s reputation to ensure that the victim did not contact the
police.  We therefore find substantial
evidence that defendants came together as gang
members to attack [the victim] and, thus, that they committed these crimes
in association with the gang. [Citations.]” 
(Id. at pp. 61-62.)

            At
this point in the opinion, the California Supreme Court cited, inter alia, >People v. Ochoa (2009) 179 Cal.App.4th
650, 661, fn. 7 [Fourth Dist., Div. Two] (“the fact that . . . the
defendant had a fellow gang member in the stolen vehicle with him would support
a finding that he acted in association with the gang.  [Citation.]”); People v. Morales (2003) 112 Cal.App.4th 1176, 1179, 1198 [Fourth
Dist., Div. Two] (“it is conceivable that several gang members could commit a
crime together, yet be on a frolic and detour unrelated to the gang.  Here, however, there was no evidence of
this.  Thus, the jury could reasonably
infer the requisite association from the very fact that defendant committed the
charged crimes in association with fellow gang members”); and >People v. Martinez (2008) 158
Cal.App.4th 1324, 1332 (“Defendant, [an admitted gang member], committed the
crimes with . . . another admitted member. . . .  [The gang expert] testified this evidence
showed defendant committed the robbery in association with the gang.  The elements of the gang enhancement may be
proven by expert testimony. 
[Citation.]”).  As the People
aptly observe, the Albillar court did
not provide a new definition for the phrase “in association with any criminal
street gang,” which must be used in future cases.  Rather, our state’s highest court simply
described how the evidence was sufficient in the case before it to support the
true findings on the elements of the criminal street gang enhancement.  Accordingly, Albillar did not create any duty on the trial courts to define, sua
sponte, this term for the jury.  Here,
absent defense counsel’s request for further instruction on the term “in
association with a criminal street gang,” the trial court’s failure to define
the term did not amount to instructional error.

IV.  EVIDENCE TO SUPPORT GANG ENHANCEMENT

            Defendant
Gutierrez argues there was insufficient evidence the crime was committed “for
the benefit [of], at the direction of, or in association with” any criminal
street gang.  We disagree.

            “In
considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.  [Citation.]  We presume every fact in support of the judgment
the trier of fact could have reasonably deduced from the evidence.  [Citation.] 
If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding.  [Citation.]” 
(Albillar, >supra, 51 Cal.4th at pp. 59-60.)

            A
gang enhancement applies when the defendant committed the underlying felony (1)
“for the benefit of, at the direction of, or in association with any criminal
street gang,” and (2) “with the specific intent to promote, further, or assist
in any criminal conduct by gang members . . . .”  (§ 186.22, subd. (b)(1).)

            Here,
the evidence supports the conclusion that Defendant Gutierrez committed the
offenses for the benefit of, at the direction of, or in association with the
Edgemont Locos criminal street gang.href="#_ftn5" name="_ftnref5" title="">^[5]  To begin with, Defendant Garcia called her
“homies” after she believed that she had been disrespected.  She announced that she had friends from
Edgemont and was going to have them come over and “hit up the house.”  Witnesses heard Defendant Garcia yelling,
“Bring a strap [or] bring guns,” and “Come over [and] . . . [s]hoot
everybody up.”  This call indicates
planning and direction, supporting the conclusion that the attack on Williams
was at the direction of the Edgemont Locos gang.  In response, three gang members, including
Defendant Gutierrez and Avila, showed up armed and dressed as if they were on a
gang mission.  Avila stabbed Williams and
then ordered Defendant Gutierrez to shoot Williams.  J.G. confirmed that all three men were from
Edgemont.  Both defendants specifically
referenced Edgemont during the incident. 
Defendant Garcia referred to the gang when she threatened Jonathan and
called Defendant Gutierrez to respond to Jonathan disrespecting her, and
Defendant Gutierrez announced “Edgemont” just before shooting Williams.  Clearly, Defendant Gutierrez acted in
association with Edgemont gang members during the attack.

            Finally,
the attack benefitted the Edgemont Locos gang by providing “experience” for its
members and by increasing the gang’s street reputation for committing violent
acts.  Again, the gang members announced
“Edgemont” before the attack.  Such
announcement supports a finding that the attack was committed to benefit the
gang.

V.  EVIDENCE OF GANG OFFENSE

            Defendant
Gutierrez challenges the evidence supporting his conviction for actively
participating in a criminal street gang. 
(§ 186.22, subd. (a).) 
Section 186.22, subdivision (a), has three elements:  (1) “Active participation in a criminal
street gang, in the sense of participation that is more than nominal or
passive”; (2) “‘knowledge that [the gang’s] members engage in or have engaged
in a pattern of criminal gang activity’”; and (3) â€œâ€˜â€œwillfully
promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by
members of that gang.”  [Citation.]’  [Citation.]” 
(People v. Lamas (2007) 42
Cal.4th 516, 523.)  Defendant Gutierrez
argues the evidence was insufficient to show that he had actual knowledge the
Edgemont Locos gang engaged in a pattern of criminal gang activity.  We disagree.

            According
to the record before this court, Defendant Gutierrez previously told police
that he was a member of the Edgemont gang. 
On one occasion, he was arrested with three Edgemont gang members while
on Edgemont gang “turf” and while wearing gang clothing.  The People argue that Defendant Gutierrez’s
previous admission of being an Edgemont gang member, wearing gang clothing, and
being arrested with other members, “supports a reasonable inference he was
fully aware of the gang’s criminal acts, including the predicate offenses
described by the gang expert.”  Moreover,
his attack on Williams further establishes knowledge.  One of Edgemont gang’s primary activities is
violent felony assaults.  That is what
happened in this case.  Defendant
Gutierrez arrived at the scene armed with a gun, with two other Edgemont gang
members, one of whom possessed a knife. 
Thus, prior to his arrival, he had already committed the crime of
carrying a loaded firearm. 
(§ 186.22, subd. (e)(33).)

            Given
the above, the evidence is sufficient to support the knowledge element of the
substantive gang offense.  Likewise,
there is sufficient evidence to support the knowledge element as to Defendant
Garcia.  Upon feeling “disrespected,” she
immediately called her “homies” and requested that they “shoot up the place.”

VI.  GANG EXPERT’S TESTIMONY

            Both
defendants challenge the admission of certain portions of Detective Colmer’s
gang expert opinion testimony.  Defendant
Gutierrez argues that the expert’s opinions “regarding [his] conduct being for
the benefit of and in association with the gang were inappropriate and usurped
the essential fact-finding role of the jury.” 
Likewise, Defendant Gutierrez criticizes Detective Colmer’s opinion
regarding the “at the direction of” and “to promote a criminal street gang”
prongs.  Defendant Garcia faults the
trial court for allowing Detective Colmer to opine that she was guilty of
attempted murder and assault in violation of her Fifth, Sixth and Fourteenth
Amendment rights.

A.  Further Background
Information

            Prior
to trial, counsel for Defendant Gutierrez moved to prohibit certain expert
opinion testimony regarding gangs. 
Specifically, counsel objected to any opinion testimony regarding
whether Defendant Gutierrez was an “‘active participant’” of a gang in March
2009, and whether he committed any of the offenses for the benefit of the
gang.  Counsel argued that a gang expert
is not qualified to testify as to whether a defendant’s conduct was accompanied
by a particular intent, including gang motivation.  A hearing was held on the defense motion, and
after hearing the arguments of counsel, the trial court ruled that the gang
expert’s opinion testimony was admissible.

B.  Legal Principles and Analysis

            To
be admissible, expert opinion testimony must be “[r]elated to a subject that is
sufficiently beyond common experience that the opinion . . . would
assist the trier of fact . . . .”  (Evid. Code, § 801, subd. (a).)  “The jury need not be wholly ignorant of the
subject matter of the opinion in order to justify its admission;
. . . even if the jury has some knowledge of the matter, expert
opinion may be admitted whenever it would ‘assist’ the jury.”  (People
v. McDonald (1984) 37 Cal.3d 351, 367, overruled on other grounds in >People v. Mendoza (2000) 23 Cal.4th 896,
914 (Mendoza).)

            “Testimony
in the form of an opinion that is otherwise admissible is not objectionable
because it embraces the ultimate issue to be decided by the trier of
fact.”  (Evid. Code, § 805.)  The admissibility of expert opinion testimony
that embraces the ultimate issue “‘“depends on the nature of the issue and the
circumstances of the case, there being a large element of judicial discretion
involved. . . .”’”  (>People v. Killebrew (2002) 103
Cal.App.4th 644, 652), disapproved on another point in People v. Vang (2011) 52 Cal.4th 1038, 1047, fn. 3 (>Vang).) 
It is well settled that in cases where gang offenses and enhancements
are alleged, expert testimony regarding the culture, habits, and psychology of
gangs is generally permissible because these subjects are “‘“sufficiently
beyond common experience that the opinion of an expert would assist the trier
of fact.  [Citations.]”  [Citation.]’ 
[Citation.]”  (>Killebrew, supra, at p. 656; see also People
v. Gardeley (1996) 14 Cal.4th 605, 617.) 
For example, an expert may properly testify concerning “the size,
composition or existence of a gang [citations], gang turf or territory
[citations], an individual defendant’s membership in, or association with, a
gang [citations], the primary activities of a specific gang [citations],
motivation for a particular crime, generally retaliation or intimidation
[citations], whether and how a crime was committed to benefit or promote a gang
[citations], rivalries between gangs [citation], gang-related tattoos, gang
graffiti and hand signs [citations], and gang colors or attire
[citations].”  (Killebrew, supra, at p.
657, fns. omitted.)  “A trial court’s
determination as to whether an expert should be allowed to opine about a particular
subject is reviewed on appeal for abuse of discretion.  [Citations.]” 
(People v. Sandoval (2008) 164
Cal.App.4th 994, 1001.)

            Here,
the People posed hypothetical questions to Detective Colmer.  Given the hypothetical scenario, the
detective opined that the shooter committed his offense in association with, at
the direction of, and possibly for the benefit of his gang.  Defendant Gutierrez argues the detective’s
earlier testimony about the importance of respect within the gang culture was
sufficient for the jury to conclude that the crimes were committed for the
benefit of the Edgemont Locos gang.  The
People respond that the earlier testimony did not prohibit further testimony on
how the commission of crimes benefits the gang by promoting respect.  (People
v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1513 [expert may properly
testify about whether and how a crime was committed to benefit or promote a
gang]; People v. Olguin (1994) 31
Cal.App.4th 1355, 1384) [“it is difficult to imagine a clearer need for expert
explication than that presented by a subculture in which this type of mindless
retaliation promotes ‘respect’”].) 
Likewise, the People argue that Detective Colmer’s opinion that the
shooting was committed in association with a criminal street gang was
necessary, because “without this testimony it is not apparent that association
could be based on more than ‘two guys from the same gang commit[ting] a crime
together,’” and his opinion that the crimes were committed at the direction of
the Edgemont Locos gang was necessary because such conclusion was “not readily
apparent without expert testimony regarding the difference between a senior
gang member and a subordinate one.”  We
agree with the People.

            Regarding
Defendant Garcia’s challenges, Detective Colmer’s opinion that she was an
active associate of the Edgemont Locos on the day of the charged crimes was
based on her conduct before, during, and after the charged crimes, along with
the fact that her cell phone contacts included several Edgemont gang members.  The detective relied on the hypothetical
scenario in opining that the crimes were committed at the direction of a
criminal street gang.  Contrary to
Defendant Garcia’s claim, the detective never commented on her intent or
guilt.  Rather, as the People assert, he
“properly stated the factors on which he relied in forming his opinions, which
included evidence adduced at trial concerning [Defendant] Garcia’s role in
those offenses.”

            “[N]o
statute prohibits an expert from expressing an opinion regarding whether a
crime was gang related.  Indeed, it is
settled that an expert may express such an opinion.  To the extent the expert may not express an
opinion regarding the actual defendants, that is because the jury can determine
what the defendants did as well as an expert, not because of a prohibition
against the expert opining on the entire subject.  Using hypothetical questions is just as
appropriate on this point as on other matters about which an expert may testify.”  (Vang,
supra, 52 Cal.4th at p. 1052.)  Moreover, at least one court has found the
admission of an expert witness’s opinion that the crimes of the particular
defendants in question were committed for the benefit of the respective
defendants’ gangs, without the use of a hypothetical, was within the trial
court’s discretion.  (>People v. Valdez (1997) 58 Cal.App.4th
494, 507, 509, cited with approval in People
v. Prince (2007) 40 Cal.4th 1179, 1227.) 
Likewise, the court in Vang,
albeit in dicta, expressed support for that holding:  “It appears that in some circumstances,
expert testimony regarding the specific defendants might be proper.  [Citations.]” 
(Vang, supra, 52 Cal.4th at p. 1048, fn. 4.)

            Nonetheless,
assuming error, we conclude on this record that it is not reasonably probable
an outcome more favorable to either defendant would have resulted in the
absence of Detective Colmer’s testimony. 
(People v. Clark (2011) 52
Cal.4th 856, 940- 941 [error in admission of prosecution’s expert witness
testimony subject to Watson standard
of harmless error]; People v. Watson
(1956) 46 Cal.2d 818, 836.)  The jury was
admonished regarding the use of the expert opinion testimony and that it was up
to them to establish if the opinion was accurate or true.  (CALCRIM No. 332.)  Even without the expert testimony, the words
and actions of both defendants, along with their friends, constituted
overwhelming evidence of the crimes they were convicted of having committed.

VII.  PROSECUTORIAL MISCONDUCT

            Both
defendants contend the prosecutor committed misconduct by failing to instruct
Deputy Joshua Rhodes not to disclose that the search of Defendant Garcia’s
apartment was a “probation search.” 
Defendant Gutierrez also claims misconduct based on the prosecutor’s
failure to instruct the gang expert not to mention Defendant Gutierrez’s prior
criminal conduct.

A.  Further Background
Information

            Prior
to trial, defense counsel moved to exclude evidence that the search of
Defendant Garcia’s residence was a Fourth Amendment waiver search.  The trial court granted the motion and told
the prosecutor, “Make sure your officer knows” that he should simply testify to
a search without providing the reason for the search.  On direct, Deputy Rhodes testified that he
assisted in the investigation of the instant offenses on March 27,
2009.  The prosecutor asked, “And what
were you specifically tasked with assisting?” 
The deputy replied, “We were—or they were doing a probation search at a
residence, and I was assigned to assist.” 
Defendant Garcia’s counsel requested a sidebar conference.  After counsel reminded the court of the in
limine order excluding any reference to the search of Defendant Garcia’s house
as being a probation search, the prosecutor accepted blame for Deputy Rhodes’s
reference:  “It’s my fault completely,
your Honor. . . .  I
advised Deputy Moreno and Deputy Colmer, and I completely forgot to advise
Deputy Rhodes.  It’s no one’s fault but
my own.  That’s all I can say is mea
culpa.  I’m sorry, it was a lapse of
memory.”  The parties considered their
options of correcting the situation and concluded that striking the deputy’s
entire testimony and starting over was the best option.  When the jurors returned to the courtroom,
the court instructed:  “[W]e’re going to
strike this deputy’s testimony, and you are to forget it.  I know that sounds hard.  How do you unring the bell?  But you’re going to do it because you’re
going to follow my orders.  Forget
everything he said, and we’re gonna start fresh.”

            In
a separate pretrial motion, Defendant Gutierrez moved for “an order barring the
admissibility of any prior bad acts evidence and that no reference be made to
any alleged criminal conduct including prior convictions or
arrests . . . .” 
Denying the motion, the trial court noted its ruling that Defendant
Gutierrez could be impeached with a prior drug conviction should he testify.

            On
direct examination, the prosecutor asked Detective Colmer for the basis of his
expert opinion that Defendant Gutierrez is a gang member.  The detective listed several factors,
including his “review of police reports, where [Defendant Gutierrez has]
committed crimes with other members of Edgemont
Locos . . . .”  After
the next unrelated question, defense counsel requested a sidebar wherein she
stated:  “We had a discussion with
respect to [Defendant] Gutierrez’s past criminal history and whether or not
those—either arrests or convictions could come in.  And I believe the Court’s ruling was that
those would come in for impeachment purposes only if [Defendant] Gutierrez
testified.  [¶]  But the witness just testified that
[Defendant] Gutierrez has been arrested previously for committing crimes with
other Edgemont Locos members.  I would
argue that the similarity with language, that . . . violates that 402
hearing. . . .”[RT 512} 
In response, the prosecutor argued there had been no mention of any
prior conviction, merely Defendant Gutierrez’s “FI cards where he was arrested
with another Edgemont gang member. 
That’s all that was said.” 
Defense counsel argued that the “existence of FI cards does not
necessarily indicate that he was arrested,” only that he “had contact with law
enforcement and he was with other people.” 
The prosecutor repeated the fact that he did not talk about Defendant
Gutierrez’s conviction, only his arrests with other Edgemont gang members.

            The
trial court overruled defense counsel’s objection, stating, “It’s permissible
for an expert, and an arrest doesn’t necessarily mean a conviction.”

B.  Legal Principles and Analysis

            “‘The
applicable federal and state standards regarding prosecutorial misconduct are
well established.  “‘A prosecutor’s
. . . intemperate behavior violates the federal Constitution when it
comprises a pattern of conduct “so egregious that it infects the trial with
such unfairness as to make the conviction a denial of due process.”’”  [Citations.] 
Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it involves
“‘“the use of deceptive or reprehensible methods to attempt to persuade either
the court or the jury.”’” 
[Citation.]’  [Citation.]”  (People
v. Smithey (1999) 20 Cal.4th 936, 960.) 


            “It
is, of course, misconduct for a prosecutor to ‘intentionally elicit
inadmissible testimony.’ 
[Citations.]”  (>People v. Bonin (1988) 46 Cal.3d 659,
689, overruled on other grounds in People
v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) 
Defendants rely on the principle that a prosecutor has a duty to guard
against statements by his own witnesses containing inadmissible evidence.  (See, e.g., People v. Warren (1988) 45 Cal.3d 471, 481-482.)  This is, of course, a corollary of the
principle that it is misconduct for a prosecutor to intentionally elicit
inadmissible testimony.  (>People v. Bonin, supra, at p. 689.)

            Here,
the prosecutor did not intentionally elicit any inadmissible testimony about
Defendant Garcia being subject to a probation search or Defendant Gutierrez’s
prior convictions.  Regarding Deputy
Rhodes’s testimony, we conclude the prosecutor’s forgetfulness in admonishing
the deputy not to refer to a probation search does not amount to prosecutorial
misconduct.  As the People point out, in
addition to being inadvertent, there was no purposeful attempt by the
prosecutor to elicit the inadmissible evidence. 
The record is void of any evidence from which to infer this prosecutor
acted from improper motives.  Even
defense counsel believed there was no intentional misconduct, observing that
“[i]n every aspect of this case, [the prosecutor’s] been upstanding.  I don’t think it was done intentionally.”  Similarly, we see nothing in the record from
which to infer this prosecutor acted from such improper motives.  To rule otherwise, without more evidence of
intent on the part of the prosecution, would put prosecutors at risk of charges
of prosecutorial misconduct any time a court sustains an evidentiary objection
by defense counsel, coupled with or without admonishing the jury or further
affirmative action.

            Likewise,
there was no prosecutorial misconduct involved in the gang expert’s reference
to Defendant Gutierrez having committed crimes with other members of Edgemont
Locos.  Detective Colmer’s testimony did
not violate the trial court’s early ruling involving Defendant Gutierrez’s
prior convictions.  As the trial court
observed in overruling defense counsel’s objection, “an arrest doesn’t
necessarily mean a conviction.”

VIII.  CALCRIM NO. 372 FLIGHT INSTRUCTION

            Defendant
Gutierrez contends that because CALCRIM No. 372, as “given in the present case
permitted the jury to draw irrational inferences of guilt, its use undermined
the reasonable doubt requirement and denied [him] his rights to a fair trial
and due process of law.”

A.  Additional Background
Information

            The
trial court instructed Defendant Gutierrez’s jury with CALCRIM No. 372, as follows:  “If the defendant fled immediately after the
crime was committed, that conduct may show that the defendant was aware of his
or her guilt.  If you conclude that the
defendant fled, it is up to you to decide the meaning and importance of that
conduct.  However, evidence that the
defendant fled cannot prove guilt by itself.”href="#_ftn6" name="_ftnref6" title="">^[6]  Defendant Gutierrez did not object to that
instruction.

B.  Legal Principles and Analysis

            The
People contend Defendant Gutierrez has forfeited his challenge to the flight
instruction because he did not make a timely and specific objection in the
trial court.  (People v. Bolin (1998) 18 Cal.4th 297, 326.)  The People have nonetheless addressed the
merits of the challenge, and to forestall any claim of ineffective assistance
of counsel, we will also address the merits. 
(See People v. Scaffidi (1992)
11 Cal.App.4th 145, 151 [Fourth Dist., Div. Two].)

            “On
review, we examine the jury instructions as a whole, in light of the trial
record, to determine whether it is reasonably likely the jury understood the
challenged instruction in a way that undermined the presumption of innocence or
tended to relieve the prosecution of the burden to prove defendant’s guilt
beyond a reasonable doubt.  [Citation.]”  (People
v. Paysinger (2009) 174 Cal.App.4th 26, 30.)

            The
giving of a flight instruction in an appropriate case is statutorily
required:  “In any criminal trial or
proceeding where evidence of flight of a defendant is relied upon as tending to
show guilt, the court shall instruct the jury substantially as follows:  [¶] 
The flight of a person immediately after the commission of a crime, or
after he is accused of a crime that has been committed, is not sufficient in itself
to establish his guilt, but is a fact which, if proved, the jury may consider
in deciding his guilt or innocence.  The
weight to which such circumstance is entitled is a matter for the jury to
determine.  [¶]  No further instruction on the subject of
flight need be given.”  (§ 1127c.)

            In >People v. Paysinger, >supra, 174 Cal.App.4th at pp. 30-32, the
court held that the language of CALCRIM No. 372 complies with that statutory
mandate and rejected the defendant’s argument that the instruction deprived the
defendant of the presumption of innocence and the requirement of proof beyond a
reasonable doubt.  Similarly, the court
in People v. Hernandez Rios (2007)
151 Cal.App.4th 1154, 1158-1159 (Hernandez
Rios), rejected a due process challenge to CALCRIM No. 372 identical to
Defendant Gutierrez’s challenge.href="#_ftn7"
name="_ftnref7" title="">^[7]  Although Defendant Gutierrez contends >Hernandez Rios was wrongly decided, we
find his argument unpersuasive.  Our
Supreme Court repeatedly rejected challenges to a substantially similar version
of the flight instruction in CALJIC No. 2.52. 
(See, e.g., People v. Lynch
(2010) 50 Cal.4th 693, 761, overruled on another ground by People v. McKinnon (2011) 52 Cal.4th 610, 636-643; >People v. Brady (2010) 50 Cal.4th 547,
567 and cases collected; People v. Kelly
(2007) 42 Cal.4th 763, 792 [finding that the flight instruction did not impermissibly
dilute the requirement of proof beyond a reasonable doubt].)  We agree with the reasoning and conclusion of
those courts and hold that CALCRIM No. 372 is href="http://www.mcmillanlaw.com/">constitutionally valid.  Clearly, the instruction creates a
permissible inference, rather than a mandatory presumption, and thus does not
impermissibly shift the burden of proof. 
Moreover, like CALJIC No. 2.52, CALCRIM No. 372 “‘adequately conveyed
the concept that if flight was found, the jury was permitted to consider
alternative explanations for that flight other than defendant’s consciousness
of guilt.’ 
[Citation.] . . . [A] flight instruction does
not create an unconstitutional permissive inference or lessen the prosecutor’s
burden of proof . . . .  [Citations.]”  (People
v. Avila (2009) 46 Cal.4th 680, 710, italics added.)

IX.  DEFENDANT GUTIERREZ’S POSTTRIAL >MARSDEN MOTION

            Defendant
Gutierrez contends the trial court abused its discretion in denying his
posttrial Marsden motion and thereby
denied him his constitutional right to counsel.

A.  Further Background
Information

            Following
the jury’s verdict, Defendant Gutierrez moved to substitute his appointed
counsel on the grounds she had failed to present relevant evidence, namely,
that he had a tattoo removed, that J.G. (the only person who identified him at
trial) could not have seen him given her eyesight and the lighting, and that
phone records showed that he did not answer Defendant Garcia’s telephone call
after the shooting.  At the >Marsden hearing, Defendant Gutierrez
stated that he wanted new counsel to file a motion for retrial based on
ineffective assistance of counsel for not introducing the above-mentioned
evidence.

            In
response, defense counsel informed the court that the case was assigned to her
in late December 2010, with trial set for early January 2011.  Defendant Gutierrez had been proceeding in
propria persona for about six to nine months. 
Defense counsel reviewed the file to determine what was missing and
contacted prior counsel and the investigator appointed to assist Defendant
Gutierrez.  She then spoke with Defendant
Gutierrez about “what the best possible theories were.”  Defense counsel noted that she prepared the
case based on her knowledge and experience, including nine and a half years of
practicing law.  Regarding Defendant
Gutierrez’s concerns, defense counsel opined that “he had a difference of
opinion with respect to which theory would be the best theory to proceed, which
would be misidentification or the fact that he wasn’t there.”  She explained that Defendant Gutierrez “had
the right to testify and chose not to, which meant that certain information
couldn’t come in.”  Regarding the tattoo,
defense counsel explained that the medical records failed to indicate what type
of tattoo was removed.

            The
trial court inquired about the tattoo, and Defendant Gutierrez replied that he
was in the process in 2009 of getting the letters “IE” removed.  Regarding the cell phone records, he
explained “I never answered the phone call. . . .  [T]he D.A. was stating that [Defendant Garcia]
called Toker Tokes to come shoot this guy up, but yet they called my phone
after the crime was committed and I never answered the phone call.  So how could I have spoke to her and been at
that crime when she spoke to me after the crime was committed.”

            The
trial court asked defense counsel how this evidence factored into her
thinking.  She replied that she
considered whether the jury would believe the removal of the tattoo showed that
Defendant Gutierrez was trying to separate himself from the gang
lifestyle.  However, because the medical
records did not indicate the type of tattoo being removed, and there was other
criminal information that the defense had already “402’d out,” she did not
think it was the best possible argument. 
The trial court noted that Defendant Gutierrez was in juvenile hall at
the time the removal process was started. 
He was supposed to go six times for removal but went only twice.  Regarding the phone records, counsel
explained that while one phone from Defendant Garcia was not answered, the
other ones were, and thus she “chose not to go further with that issue.”

            At
the conclusion of the Marsden
hearing, the trial court found the tattoo removal worked against Defendant
Gutierrez because he only went to two out of six removal treatments and the
tattoo remained.  Regarding J.G.’s
vision, the court (albeit erroneously) recalled there was more than one person
who saw Defendant Gutierrez.  And the
matter of phone records was merely a peripheral matter.  The court denied the Marsden motion, concluding that defense counsel had sound reasons
for dismissing the proffered evidence.

B.  Legal Principles and Analysis

            “‘Once
a defendant is afforded an opportunity to state his or her reasons for seeking
to discharge an appointed attorney, the decision whether or not to grant a
motion for substitution of counsel lies within the discretion of the trial
judge.  The court does not abuse its
discretion in denying a Marsden
motion “‘unless the defendant has shown that a failure to replace counsel would
substantially impair the defendant’s right to assistance of counsel.’”  [Citations.] 
Substantial impairment of the right to counsel can occur when the
appointed counsel is providing inadequate representation or when “the defendant
and the attorney have become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result [citation].”  [Citations.]’ 
[Citation.]”  (>People v. Myles (2012) 53 Cal.4th 1181,
1207.)

            Contrary
to Defendant Gutierrez’s claim, none of his various complaints concerning
counsel suggests an irreconcilable conflict between them.  His main grievance was that defense counsel
failed to follow up on the evidence which he deemed important, namely, the
tattoo removal, J.G.’s poor eyesight, and the cell phone record.  However, “‘[t]actical disagreements between
the defendant and his attorney do not by themselves constitute an
“irreconcilable conflict.”’”  (>People v. Roldan (2005) 35 Cal.4th 646,
682, overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)  As the trial court observed, the evidence
that Defendant Gutierrez went to only two of the six tattoo removal treatments
was at best problematic.  His cell phone
record was also problematic, given the evidence that only one of the calls from
Defendant Garcia to Defendant Gutierrez was not answered.  Regarding J.G.’s vision, defense counsel
elicited her testimony that she had poor eyesight and was not wearing glasses
or contacts on the night of the shooting. 
However, her trial testimony conflicted with her earlier statements to
the deputies that she was wearing her contacts on the night of the
shooting.  Moreover, numerous witnesses
he