P. v. Orona

Filed 6/18/08 P. v. Orona CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Appeal from a judgment of the Superior Court of Orange County, William Lee Evans, Judge. Affirmed.

Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Anthony Salinas Orona of possession of a firearm by a felon, carrying a loaded firearm while a gang member, and street terrorism. It further found defendant had committed the firearm offenses for the benefit and direction of a criminal street gang. The trial court sentenced defendant to 15 years, 4 months in prison. Defendant appeals, contending his trial counsel was ineffective for not objecting to the gang experts testimony that gang members had identified defendant as their shot caller and that Penal Code section 654 (all further statutory references are to this code) precludes punishment for both possession of a firearm and street terrorism. We disagree and affirm.

FACTS

One day, defendant told Armando Avila, a member of the Orphans Gang, that he had a gun in the back of his truck. According to Avila, defendant was the gangs shot caller or leader. Avila was afraid of him because as the boss, defendant could beat for 30 seconds any member of the gang who disobeyed an order.

The next day at Liberty Park, which is Orphans Gang claimed territory, defendant gave Avila a key to the toolbox in the back of his truck. He told Avila to get the gun from the toolbox and fire at the enemies. As Avila pulled the gun out, he accidentally fired it into the air. Avila put the gun back in the toolbox, ran to his car, and left.

Police officers stopped a truck driven by defendant and found a loaded nine- millimeter handgun in the toolbox in the back of the truck. They also found a fast-food restaurant number 15 on the dashboard. A witness identified the truck as the one he saw at Liberty Park, but could not identify the driver. A single nine-millimeter casing was found near the park.

After defendant was arrested, an Orphans Gang associate told Avila to turn himself in and take the blame for defendant. Avila gave the police a statement about what happened at the park and was arrested. While in custody, Avila came into contact with defendant. Defendant told him if he said anything, they would go to prison and we were going to fix it while in there, which Avila took to mean he would be attacked if he testified.

Gang expert Matthew Edinger testified that defendant had previously admitted to him he was an Orphans Gang member. At the time of the shooting, the Orphans Gang controlled Liberty Park, which is in the middle of its claimed territory. The number 15 signifies 15th Street, which is right next to the park and is associated with the Orphans Gang. In his opinion, The number 15 is very significant, particularly [being found] in [defendants] vehicle, because it notified everyone the Orphans Gang had committed the shooting.

The person who runs the gang is a shot caller. When Edinger spoke with four Orphans Gang members as part of his investigation, each one told him defendant was the gangs shot caller.

The size of a gang members tattoos relates to his hierarchy within the gang and defendant had one of the largest Orphans tattoos Edinger had ever seen. Additionally, after defendant was placed into custody, criminal activity by the Orphans Gang essentially stopped and another gang had taken over Liberty Park. As Edinger put it, take the head off the snake and the rest dies.

Edinger reviewed several letters defendant had sent while in custody. A common theme was Mr. Scooby, X3, mention of the Orphans, communication with other gang members from different gangs. It was just a lot of gang member talking to gang member or finding out what other gang members were up to. Scooby is defendants moniker and the use of Mr. before it was his way of showing respect for himself . . ., being identified as the senior, and 13 for the southern alliance and the homage to the Mexican Mafia. X3 is an abbreviation for Orphans.

In one letter defendant stated, Your homeboy BB goes back to court today . . . . Im wondering what the piece of shit is going to say, you know. The letters BB were crossed out. The letter was signed Mr. Scooby 13. According to Edinger, BB referred to Avilas moniker Boo Boo and the fact it was crossed out meant he was labeled a rat and marked for attack. This showed defendant was continuing to call[] the shots while in custody.

Defendant wrote in another letter, Like a good Orphans, Tia, I want you to know my wife good. . . . [] . . . [] Try to see him this weekend. 113 percent for sure. Are you going to be able to go to court . . . ? Please let me know if you cant so I could send somebody else. I need to know what he has to say. Edinger explained defendant was giving instructions to find a person to go to court, hear what Boo Boo has to say and inform him so he knows what his next moves are going to be. If they themselves cannot go to court, let [him] know so he can arrange to have somebody else go, but he needs somebody there so he knows what Boo Boo is going to say. In Edingers opinion, defendant was [y]et again . . . calling the shots from jail.

Based on all of the information he had gathered, Edinger opined defendant was an active member and shot caller of the Orphans Gang.

DISCUSSION

1. Ineffective Assistance of Counsel

Defendant argues the admission of Edingers testimony that Orphans Gang members had told him he was the gangs shot caller violated his Sixth Amendment right to confront and cross-examine his accusers in light of Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford) and Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266, 165 L.Ed.2d 224] and that his counsel was ineffective for failing to object. We disagree.

To prevail on an ineffective assistance claim, defendant bears the burden of establishing both deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674.) He must show that counsels representation fell below an objective standard of reasonableness under prevailing professional standards and that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.] (People v. Anderson (2001) 25 Cal.4th 543, 569; see also Strickland v. Washington, supra, 466 U.S. at pp. 687-688.) Where an ineffective assistance claim can be resolved solely on lack of prejudice, it is unnecessary to determine whether counsels performance was objectively deficient. (In re Jackson (1992) 3 Cal.4th 578, 604, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6.)

Here, defendant asserts that without Edingers testimony recounting the hearsay from the other gang members, there was insufficient evidence to support his convictions because Avilas testimony that defendant was the gangs shot caller was not persuasive given that Avila was an accomplice and there was evidence defendant commuted back and forth to San Diego where he worked 10 to 12 hours a day. That may be but as the Attorney General notes, [a]side from the challenged statements [by Edinger], there was ample other evidence that [defendant] was an active member and shot caller of the Orphans Gang. In addition to the testimony from Avila, whom defendant had the opportunity to cross-examine, that defendant was the shot caller, defendants own letters demonstrated he was the one giving orders even from jail. Defendants Orphans tattooone of the largest Edinger has ever seenalso tends to show his place in the gangs hierarchy, as do the facts that following defendants incarceration, the Orphans Gang essentially halted their criminal activities in Orange County and lost control of Liberty Park to another gang.

Moreover, the trial court instructed the jury on the limited admissibility of the statements relied on by Edinger. Ordinarily, the use of a limiting instruction that matters on which an expert based his opinion are admitted only to show the basis of the opinion and not for the truth of the matter cures any hearsay problem involved, but in aggravated situations, where hearsay evidence is recited in detail, a limiting instruction may not remedy the problem. [Citations.] (People v. Coleman (1985) 38 Cal.3d 69, 92.) Defendant has not shown this is an aggravated situation or that the instruction did not cure any hearsay problem.

We conclude there is no reasonable probability the result would have been different had counsel objected to Edingers testimony. Any error in failing to object was harmless beyond a reasonable doubt. (People v. Cage (2007) 40 Cal.4th 965, 991-992 [Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] standard applies to review of Crawford error].)

2. Section 654

Defendant contends the trial court violated section 654 by imposing sentences for both possession of a firearm by a felon and street terrorism because both offenses were committed pursuant to one intent and objective, i.e., to assist the Orphans [G]ang exercise its control over Liberty Park.

Section 654 prohibits multiple punishments for an act or course of conduct facilitating a single criminal objective. (People v. Jones (2002) 103 Cal.App.4th 1139, 1142-1143.) [I]f the defendant harbored multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.] [Citations.] (Id. at p. 1143.)

[S]ection 654 is inapplicable when the evidence shows that the defendant arrived at the scene of his . . . primary crime already in possession of the firearm. (People v. Jones, supra, 103 Cal.App.4th at p. 1145.) Here, the evidence shows defendant possessed the gun the day before Avila fired it into the air. Additionally, his criminal objective in committing street terrorism, actively promoting his gang, was independent from his criminal objective in violating section 12021, possessing a firearm while a felon. He did not actively promote his gang by merely possessing the gun but by ordering Avila to fire at the enemies. As a rule, street terrorism requires a separate intent and objective from the underlying felony committed on behalf of the gang. (People v. Ferraez (2003) 112 Cal.App.4th 925, 935; see also People v. Garcia (2007) 153 Cal.App.4th 1499, 1514 [no section 654 violation where the defendant knew he was in possession of a firearm in public, and intended to commit that crime to promote or assist the gang because [w]hile he might have pursued these objectives simultaneously, they were independent of each other].) Thus, no sentencing error occurred.

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.

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