P. v. Whitlow

Filed 6/26/08 P. v. Whitlow CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Jesse I. Rodriguez, Judge. Affirmed as modified.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Jason Whitlow (defendant) appeals from the judgment entered following a jury trial resulting in his convictions of two counts of first degree murder with the finding of a multiple murder special circumstance. (Pen. Code, 187, subd. (a), 190.2, subd. (a)(3).)[1] The jury also made findings in count 1 of the personal and intentional use of a firearm and the personal and intentional discharge of a firearm proximately causing death ( 12022.53, subds. (b), (c) & (d)); and in count 2, that a principal personally and intentionally used a firearm and personally and intentionally discharged a firearm proximately causing death ( 12022.53, subds. (b) & (e)(1), (c) & (e)(1), & (d) & (e)(1)). The trial court imposed two terms of life without the possibility of parole (LWOP), enhanced by consecutive terms of 25 years to life for the firearm enhancements.

He contends: (1) the trial court committed prejudicial error . . . in receiving evidence that purported coperpetrator [Ray] Ruvalcaba was murdered about a month after the charged crimes in retaliation for his alleged role in those crimes; (2) the prosecutor committed misconduct as he improperly injected into the trial irrelevant gang evidence to prove guilt, or in the alternative, his trial counsel was constitutionally ineffective as he failed to move for a mistrial when the prosecutor claimed in an early proffer that gang evidence proved motive and then later failed to offer evidence conforming to the proffer; (3) his trial counsel was constitutionally ineffective as he failed to object when the prosecutor urged during final argument that the presumption of innocence expires at the moment the jury begins deliberations; (4) that cumulative error requires a reversal; (5) there was insufficient evidence that defendant aided and abetted the Gonzalez murder; (6) the firearm enhancement for count 2 was not properly pled and proved, and there was insufficient evidence to support the finding of firearm use and discharge for count 2; and (7) the trial court erred in sentencing defendant.

The People assert that the judgment must be modified to impose a $20 security fee for each conviction pursuant to section 1465.8, subdivision (a)(1), or a $40 court security fee, in lieu of the single $20 court security fee imposed.

We find merit in some of defendants sentencing contentions and the Peoples one contention and will order the judgment modified by striking the firearm enhancements as to count 2 and by imposing a $40 court security fee. Also, we will order a remand for the trial court to calculate the presentence custody to which defendant is entitled, and the trial court will be directed to make certain corrections in the minute orders and abstract of judgment to conform to the oral proceedings of judgment. In all other respects, the judgment will be affirmed.

FACTS

The evidence at trial established that on August 28, 2002, about 1:45 a.m., Rogelio Roy Boy Quintana (age 33) and a younger man, possibly Quintanas cousin, Robert Gonzalez, bought beer and then, stereo blaring and tires squealing, parked Quintanas Camaro convertible southbound in the alley north of 22nd Street near Pacific Avenue in San Pedro. Quintana was kind of a shot-caller in the San Pedro Stoner (SPS) gang. Witness, B.W.s apartment was located in the territory claimed by the Rancho San Pedro (RSP) criminal street gang. Quintana had been at B.W.s apartment and had parked his Camaro under B.W.s second floor window, which overlooked the alley.

A police gang expert testified that Quintana and defendant were gang members and their respective gangs, SPS and RSP, generally got along. The expert opined that notwithstanding their compatibility, when issues arose between gang members it was likely to result in violence. The officer added that B.W.s apartment was in an area of high narcotic activity and that Theres a heavy Mexican Mafia influence there along with the street gangs.

After Quintana parked his car, he was approached by defendant, a shot-caller from the Santa Cruz clique of RSP, who was known as Largo. Defendant was accompanied by another youth. Before the shooting, B.W. heard defendants voice downstairs in the alley. Defendant was speaking to Quintana. B.W. heard yelling, and then suddenly, shots rang out.

Just prior to the shooting, a person who lived across the street in an upstairs apartment saw two men approach Quintana and his passenger as they were seated in the Camaro.

A local methamphetamine user, V., was driving northbound in the alley south of 22nd Street and saw the shooting. V. knew defendant and identified defendant as the person he observed discharging a handgun at Quintana.

A probation officer driving westbound on 22nd Street also saw the shooting, but only saw the gunmans back. He could give the police only a general physical description of the gunman. He did not know defendant. The probation officer saw Quintanas assailant run northbound in the alley.

Within seconds, following the sound of the gunfire, one of defendants neighbors, R.Z., heard defendant and Ruvalcaba, neighborhood youths whom she had known since they were children, and possibly a third male, in the alley. R.Z. indicated that the T-shaped alley intersected 22nd Street and then ran eastbound south of 21st Street. The youths were laughing and running eastbound toward the residence of defendants cousin, Darren Dog Collis, who was an RSP gang member.

Los Angeles police officers arrived. The crime scene evidence, the ballistics and autopsy evidence supported the testimony that two assailants had approached the Camaro convertible, one on each side. One assailant had fatally wounded the driver, Quintana, by shooting him twice in the head. One shot was from short range and wounded Quintana in the temple. After the shooting, Quintana was found with his hands in his pants pockets; in one hand, he was clutching a wad of money. He had a knife in a sheath inside his belt, and he had a screwdriver in a rear pants pocket. Quintanas watch was still on his wrist. Gonzalez, who was approximately 23 or 24 years old, was shot six to seven times from the back and side while sitting in the Camaros passenger seat. The physical evidence at the scene suggested that Gonzalezs assailant shot Gonzalez while moving north away from the Camaro in the alley. Quintana was found dead at the scene lying on the ground near the open door of his Camaro; Gonzalez died shortly after being transported to the hospital.

A criminalist recovered defendants right palm print on the window on the front drivers door of the Camaro; Ruvalcabas left thumb print was found on the window of the front passenger door of the Camaro. Toxicology tests completed during the autopsy indicated that Quintana had phencyclidine and well-metabolized methamphetamine, as well as a 0.06 blood alcohol level in his system, and Gonzalez had recently used methamphetamine and had a blood alcohol level of 0.09 percent.

B.W. and V. both testified that Quintana was a drug dealer. B.W. claimed that on the night of the shooting, she had a birthday party for Quintana or one of his friends. She said that she had never done drugs with defendant or purchased drugs from him, but she acknowledged that defendant, Ruvalcaba, and the Quintana family were all into drugs. B.W. said that she did not know whether defendant sold drugs. She also acknowledged using a considerable amount of drugs herself near the time of the shooting.

V., also an admitted methamphetamine user and local bar bouncer, testified that Quintana was a devil, and that he avoided Quintana. V. made conflicting claims about whether or not, at one point earlier in his life, he had purchased methamphetamine from Quintana.

During the trial, R.Z. and B.W. recanted the statements they had made to police. Their observations regarding defendants identity as the gunman were established by the out-of-court statements they had made to police detectives several months after the shooting. At trial, R.Z., B.W., and V. testified that they were afraid to testify. Each had told detectives out of court, or testified during the trial, that they had been instructed by others not to testify, or they had been threatened.

V. testified that he knew Collis well, and Collis had told him that if V. testified against Collis or defendant, V. would pay for it. V. acknowledged that in the gang environment that existed in the area, you knew that if you testified or snitched, it was probable that you would be killed. V. also testified that during the period in which he was in custody and going to court for the instant case and for Colliss preliminary hearing, he was beaten and stabbed with a pencil by a group of inmates as he was being returned from court. He said that these inmates had mentioned RSP during the attack, but if they were RSP gang members, he did not recognize them. B.W. testified that locals had broken into her apartment trying to kill her, and she acknowledged that the threats to her life had finally led her to contact the police several months after the shooting to obtain witness relocation.

DISCUSSION

I. The Witness Credibility Evidence

Defendant contends that the trial court committed prejudicial error . . . in receiving evidence that purported coperpetrator Ruvalcaba was murdered about a month after the charged crimes, in retaliation for his alleged role in those crimes.

There is no merit to this contention.

A. Background

On October 1, 2002, approximately one month after the instant shooting, Ray Ruvalcaba was murdered. The prosecution believed that the persons responsible were two of Quintanas brothers and two of Quintanas associates, Mark Pirante and Vincent Soqui. The prosecutor claimed that Ruvalcaba had been executed in retaliation for his role in the instant murders. According to the respondents brief in this appeal, Soqui pled guilty to that charge pursuant to a plea bargain. The Quintana brothers and Pirante were convicted of Ruvalcabas murder.

On the same day that Ruvalcaba was murdered, a woman named Maria Ortiz, a friend of Quintana, was also murdered. Evidentially, Ortiz had been investigating the instant murder on her own and had been cooperating with the police. Collis, defendants cousin, was convicted of Ortizs murder.

At trial, the prosecutor said that he wanted to use the Ruvalcaba and Ortiz murders to establish that there was a climate of fear in the community. He claimed that such evidence was relevant to explain why R.Z. and B.W. had recanted their out-of-court statements to detectives and why V. had waited so long to reveal to the police what he had seen. The evidence was also relevant to further bolster the credibility of witnesses, R.Z., B.W., and V., by demonstrating that they had testified despite threats to their personal safety.

Prior to trial, neither the defense nor the prosecution asked for an Evidence Code section 402 hearing on the admissibility of this evidence. During his opening statement, the prosecutor referred to the murders of Ruvalcaba and Ortiz. Defendants objections to the comments were sustained. After opening statements, out of the presence of the jury, defendant moved for a mistrial. At that time, defendant objected that the Ruvalcaba and Ortiz murders were irrelevant and prejudicial. The trial court denied the motion for a mistrial. It commented that before commencing trial, it had instructed the jury that the attorneys statements and any insinuations in their questions were not evidence.

The trial court rebuked the prosecutor and defendants trial counsel for having failed to raise the issue pretrial. In response to the courts inquiry of whether it was necessary to have an Evidence Code section 402 hearing before the afternoons testimony, the prosecutor said that such a hearing could be postponed as he would not be eliciting any evidence in dispute until B.W. testified. Defendant explained that he had not anticipated reference to the Ruvalcaba or Ortiz murders.

The trial court instructed the parties not to get into any of these areas, and that as soon as the parties informed him it was necessary, they would stop and have a hearing out of the presence of the jury. Trial counsel asked that the prosecutor admonish the witnesses not to blurt out any of the disputed information, and the trial court made that order.

That afternoon, during R.Z.s testimony, the following colloquy occurred: [The prosecutor:] Q. How well did you know Ray Ruvalcaba?

[R.Z.:] A. Just a kid on the block that lived down the street. He used to come up and visit our dog and my father [when her father was] was working on his truck outside in the front yard.

Q. Have you seen Ray in the last couple of years?

A. No.

Q. How come? A. Because I have been in the hospital.

Q. Maam, you know where Ray is, dont you?

A. Yes, I do. He was killed. (Italics added.)

Defendant objected to the testimony and complained during a bench conference that it was part of the evidence in dispute. The prosecutor explained that he had elicited that Ruvalcaba was dead, and that R.Z. could not have spoken to Ruvalcaba recently because he was dead. The prosecutor urged that this was relevant to R.Z.s knowledge. The trial court ruled that the testimony was admissible, but the prosecutor was to refrain from questioning the witnesses about how Ruvalcaba died.

V., during direct examination, testified, as follows:

[The prosecutor:] Q. Did--you testified in a case where Vincent Soqui, where he was a defendant?

[V.:] A. Yes.

Q. Okay. The person that he was charged with accused of murdering, Ray Ruvalcaba, do you know him or did you know him back then before he was murdered?

A. Oh, gosh, to tell you the truth, I dont remember really too much. But, yes. Yes. Im trying to get it all together here. (Italics added.)[2]

After R.Z, B.W. and V. had testified, the trial court held an Evidence Code section 402 hearing. The prosecutor wanted to introduce testimony from Detective Daniel Ornelas about the two other murders in the same terms summarized in the proffer, above. The prosecutor said that he was not seeking to admit the fact of the convictions, simply the identity of the three or four persons prosecuted for the Ruvalcaba and Ortiz murders.

Defendant objected that the evidence was irrelevant to any issue in the case and time-consuming as well as unduly prejudicial, and cumulative. He urged, So what the district attorney is doing is basically trying to give some kind of credibility or credence to his case based on subsequent events.

The trial court pointed out that the murder of Ruvalcaba had already been introduced into evidence, and defendant had failed to object. It explained that the evidence was relevant to explain why the two neighbors, R.Z. and B.W., had recanted: the witnesses were aware of these subsequent murders and were afraid to testify. Defendant repeated his argument that the evidence was cumulative and that he had no ready means to rebut the evidence of the murders.

The trial court repeated that when the evidence Ruvalcaba had been murdered was elicited, defendant had failed to object. Trial counsel said that if he had failed to object, he was neglectful. He asserted that he had raised this issue initially during opening remarks, he had consistently objected to the use of this evidence, and he continued to object to evidence of these unrelated murders.

The trial court concluded that the Ruvalcaba and Ortiz murders were relevant to witness credibility, and the evidences probity outweighed any complaint that it was cumulative. It admitted Ruvalcabas retaliatory murder and the identity of those prosecuted for the murder. It mentioned that there would be evidence that one or two of Ruvalcabas assailants were present in B.W.s apartment at the time of Quintanas murder. The trial court also admitted Ortizs murder. However, it exercised its discretion pursuant to Evidence Code section 352 to exclude any testimony about Colliss identity as the person charged with or convicted of that murder. It reasoned that to admit Colliss identity risked that the jury might conclude that defendant had some hand in Ortizs murder when there was no such evidence. It also conditioned the use of Ortizs murder on the prosecutor laying a foundation that R.Z. and B.W. were aware of the Ortiz murder and the reasons for its commission.

After the trial courts ruling, trial counsel made another motion for a mistrial, which was denied.

Ultimately, the prosecutor did not lay the foundation to demonstrate the Ortiz murders admissibility, and declined to present evidence of the two other murders. During the remainder of the trial, the prosecutor elicited no further evidence on this issue and made no further comment on the two other murders.

With its final instructions to the jury, the trial court instructed with CALCRIM No. 373.[3]

B. The Relevant Legal Principles

Only relevant evidence is admissible [citations], and all relevant evidence is admissible, unless excluded under the federal or California Constitution or by statute. (Evid. Code, 351; see also Cal. Const., art. I, 28, subd. (d).) Relevant evidence is defined in Evidence Code section 210 as evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. The test of relevance is whether the evidence tends logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive. [Citations.] [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence. [Citations.] (People v. Scheid (1997) 16 Cal.4th 1, 13-14.)

Evidence a witness is afraid to testify is relevant to the credibility of that witness and is therefore admissible. (Evid. Code, 780; People v. Warren (1988) 45 Cal.3d 471, 481.) Testimony a witness is fearful of retaliation similarly relates to that witnesss credibility and is also admissible. (People v. Malone (1988) 47 Cal.3d 1, 30.) It is not necessary to show threats against the witness were made by the defendant personally, or the witnesss fear of retaliation is directly linked to the defendant for the evidence to be admissible. (People v. Green (1980) 27 Cal.3d 1, 19-20 [testimony witness was afraid to go to jail because defendant had friends there relevant to witnesss credibility].) (People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587-1588.) (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368 (Olguin); accord, People v. Gonzalez (2006) 38 Cal.4th 932, 945-946.)

The court in the Olguin decision explained the following: A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony. Just as the fact a witness expects to receive something in exchange for testimony may be considered in evaluating his or her credibility [citation], the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility. For this purpose, it matters not the source of the threat. . . .  [] Regardless of its source, the jury would be entitled to evaluate the witnesss testimony knowing it was given under such circumstances. And they would be entitled to know not just that the witness was afraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witnesss fear. A witness who expresses fear of testifying because he is afraid of being shunned by a rich uncle who disapproves of lawyers would have to be evaluated quite differently than one whose fear of testifying is based upon bullets having been fired into her house the night before the trial. (Olguin, supra, 31 Cal.App.4th at pp. 1368-1369.)

We review the trial courts rulings admitting such witness credibility evidence for an abuse of discretion. (People v. Martinez (2003) 113 Cal.App.4th 400, 413.)

When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidences probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers substantially outweigh probative value, the objection must be overruled. (See People v. Babbitt (1988) 45 Cal.3d 660, 688.) On appeal, the ruling is reviewed for abuse of discretion. [Citation.] (People v. Cudjo (1993) 6 Cal.4th 585, 609.)

C. The Analysis

The prosecutor sought to introduce evidence of the two subsequent retaliatory and gang-related murders to explain Ruvalcabas absence from the trial and for purposes of explaining to the jury why the prosecution witnesses had recanted their out-of-court statements and were afraid to testify. However, during the trial, the only testimony on this subject was testimony from R.Z., in which she said that Ruvalcaba had been killed. That testimony failed to establish that Ruvalcaba was murdered by Quintanas family members or Quintanas gang cohorts a month after the current murders in retaliation for the Quintana/Gonzalez murders.

Also, without an objection, the prosecutor interjected in a question addressed to V. that Ruvalcaba had been murdered. However, V.s reply to the prosecutors inquiry was vague and confused, and V. failed to acknowledge that there was any murder. If any damaging confirmation of the murder was established, it was only through trial counsels later cross-examination.

Ultimately, the prosecutor declined to present the complained of evidence, and such evidence is not part of the record.

Defendants contention lacks merit because it is predicated upon the prosecutions use in evidence of a retaliatory murder by close associates of Quintana or his family. However, the jury never heard any such testimony. Because the factual predicate for the contention lacks support in the record, the contention necessarily fails. The trial evidence here--that Ruvalcaba had been killed or was murdered subsequent to the Quintana/Gonzalez murders--merely explains why Ruvalcaba was not present with defendant at the counsel table and charged with the same murders. That evidence was relevant to explain the coperpetrators absence from the trial, and the mere evidence of Ruvalcabas subsequent killing or murder did not risk that the jury would draw any improper conclusion of guilt by association. (See, e.g., People v. Chambers (1964) 231 Cal.App.2d 23, 28 [guilt by association is a thoroughly discredited doctrine; personal guilt, on the other hand, is a fundamental principle of American jurisprudence, inhabiting a central place in the concept of due process]; U.S. v. Modena (6th Cir. 2002) 302 F.3d 626, 631-632 [Evidence that a coconspirator has been convicted of conspiring with a criminal defendant is generally inadmissible, because it might lead the jury to regard the issue of the remaining defendants guilt as settled and [conclude that] the trial is a mere formality].)

Insofar as defendant is complaining of prosecutorial misconduct, remarks made in an opening statement cannot be charged as misconduct unless the evidence referred to by the prosecutor was so patently inadmissible as to charge the prosecutor with knowledge that it could never be admitted. [Citation.] (People v. Davenport (1995) 11 Cal.4th 1171, 1212-1213.) That is not the case here. Ultimately, despite a favorable evidentiary ruling, the prosecutor declined to present testimony about the retaliatory murders, rendering moot the issue of the propriety of that particular trial court ruling. We presume that the jury followed the trial courts instructions that the attorneys comments and any insinuations in the attorneys questions did not constitute evidence, and we find no evidentiary error that will serve as the predicate for the claim of prosecutorial misconduct. (People v. Boyette (2002) 29 Cal.4th 381, 436; People v. Vu (2006) 143 Cal.App.4th 1009, 1032; see Boyde v. California (1990) 494 U.S. 370, 385-386.)

The record also fails to support a conclusion that the prosecutor deliberately ignored a trial court order not to question witnesses about the evidence in these areas until the trial court was able to hold the Evidence Code section 402 hearing. The trial courts order about what was excluded pending the Evidence Code section 402 hearing was vague. The prosecutor explained that he only wanted to elicit evidence that Ruvalcaba was now dead to explain Ruvalcabas absence from the hearing, a topic that was not within the scope of the trial courts order. The trial court exercised its discretion and admitted that testimony. We conclude that the trial court properly ruled that no harm had been caused by eliciting that evidence and that explaining Ruvalcabas absence from the trial was relevant and not unduly inflammatory.

As we find no evidentiary error or prosecutorial misconduct, we decline to not reach defendants constitutional claim that the trial was irrevocably tainted by the use of irrelevant or unduly inflammatory evidence that denied defendant due process. (People v. Abilez (2007) 41 Cal.4th 472, 503; see Estelle v. McGuire (1991) 502 U.S. 62, 69; People v. Fitch (1997) 55 Cal.App.4th 172, 180-181; McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1384-1386.)

II. Prosecutorial Misconduct

Defendant contends that the prosecutor committed misconduct by representing that gang evidence would be relevant during the trial to show a gang-related motive for the murders and then failed to fulfill the proffer. In the alternative, defendant contends that his trial counsel was constitutionally ineffective because he failed to move for a mistrial or for a new trial on the same ground.

Again, the contention is meritless.

A. Background

During voir dire, the prosecutor asked the trial court to question the prospective jurors generally about gangs. The prosecutor explained that though there was no gang allegation, he would introduce some limited gang evidence to explain the relationship between defendant and the victims. The prosecution claimed that the murders were the result of a drug turf war, and that Quintana had been murdered because he was selling drugs in a certain area. The crime scene was in the territory claimed by RSP. Also, the prosecutor noted that the witnesses lived in a particular area and knew one another only by their gang monikers.

In his opening statement, the prosecutor told the jury that Detective Ornelas would testify about defendants gang affiliation, who the victims were, and what the motive was in this case regarding drug sales.

During the trial, without an objection, Sergeant Pasanti testified that Quintana was kind of a shot-caller in SPS. The sergeant explained that Quintana was a UCLA graduate and an engineer who got involved in drugs and was one of the local kind of thugs in the . . . neighborhood.

Also, without an objection, the sergeant testified that defendant was a shot-caller in the Santa Cruz clique of RSP. The prosecutor elicited the following testimony from Sergeant Pasanti:

[The prosecutor:] Q. As far as [defendant] and his reputation in the community from what you know or from your observations, was he somebody that was--you could look at similarly to . . . Quintana?

[Sergeant Pasanti:] A. Yes.

Q. When you say hes similar, like in what fashion?

A. He was also a gang member.

The sergeant explained the details about the cliques and gangs in San Pedro. He then testified, as follows:

[By the prosecutor:] Q. Now, normally those particular Rancho San Pedro whether its the Stoners clique or Santa Cruz Street, those folks normally get along fine, dont they?

[Sergeant Pasanti:] A. Well, Stoners are not Rancho San Pedro. Theyre another gang. But normally they do get along.

Q. And do gangs, whether theyre from the same gang or these gangs that normally, historically have gotten along, would drug trafficking or the drug trade change that?

A. Yes, it can very much so.

Q. At that time, was there--that particular area that were talking about, if youre familiar with it, was that a heavily--a narcotics area?

A. Very much so. Theres a lot of methamphetamine, cocaine, heroin. Theres a heavy Mexican Mafia influence there along with street gangs.

Without an objection, in the rebuttal portion of his final argument, the prosecutor urged: [Defendants counsel] even tried to maybe insinuate that, well, theyre drug dealers. They all deal together. But, you know, there is no motive that I have to pro[ve], nor will I attempt to prove. Because, you know, you dont need a motive to make your decision and find whether or not this case is proved beyond a reasonable doubt. Youll hear an instruction that it is something to consider, and I think the evidence is pretty clear and all the cast of characters that were dealing with, its pretty clear about the drug trade that was going on. And was the execution of Mr. Quintana due to the fight over the drug turf? Perhaps. Thats--if thats something you want to look at, thats up to you. But thats not something that I need to prove, nor would I ever try to prove because I cant get into the head of that man sitting here on trial.

The prosecutor also argued in rebuttal: And by bringing up the environment and bring up who he is and trying to let you know as much as possible, thats what thats about. Thats what that tattoo is about. Not to try to dirty anybody up. Theres no gang allegation. Youre simply to decide did he shoot two people on August 28th? Did he use a gun to do it? And was it a special circumstance in the sense that it was a double homicide?

B. The Relevant Legal Principles

A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such unfairness as to make the resulting conviction a denial of due process. [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citations.] (People v. Lopez (2008) 42 Cal.4th 960, 965-966.) As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] [Citation.] (People v. Hill (1998)17 Cal.4th 800, 820.)

A prosecutor may not use the opening statement as a means of informing the jury about inadmissible evidence. (People v. Hurst (1957) 151 Cal.App.2d 239, 242; see People v. Davenport (1995) 11 Cal.4th 1171, 1212-1213.)

A defendants failure to make a timely and specific objection on the ground asserted on appeal makes that ground not cognizable. (People v. Partida (2005) 37 Cal.4th 428, 434.) [I]t is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. [Citation.] The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . . [Citation.] (People v. Saunders (1993) 5 Cal.4th 580, 589-590, italics omitted.)

[I]n a gang-related case, gang evidence is admissible if relevant to motive or identity, so long as its probative value is not outweighed by its prejudicial effect. [Citation.] (People v. Williams (1997) 16 Cal.4th 153, 193.) In a particular case, gang evidence may be relevant to establishing motive and specific intent. (Ibid.) Also, [g]ang evidence should not be admitted at trial where its sole relevance is to show a defendants criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citation.] (People v. Albarran (2007) 149 Cal.App.4th 214, 223; accord, People v. Carter (2003) 30 Cal.4th 1166, 1194.)

C. The Analysis

Defendant argues that evidence defendant was a gang member or a gang enforcer is inherently inflammatory, and such evidence should be excluded unless it is probative. He faults the trial court for receiving such evidence and asserts that the evidence of motive was inadmissible as it lacked support in the record, apart from Sergeant Pasantis claims supporting motive. Defendant argues that there was prosecutorial misconduct because the prosecutor smuggled unfairly prejudicial evidence into the case under a false offer of proof. And, in the meantime during the trial, the prosecutor elicited Sergeant Pasantis testimony that defendant was a gang member and evidence that improperly implied that defendant was an enforcer for the gang. He claims that the prosecutor also elicited from the sergeant highly inflammatory testimony that the Mexican Mafia was involved in the neighborhood drug trade.

1. The Trial Courts Ruling

Applying the appropriate legal principles to the trial evidence, we conclude the trial court did not abuse its discretion by admitting inadmissible gang evidence. There is no trial court error because the trial court was not asked to exclude gang evidence generally, and thus never made a ruling on the admissibility of the gang evidence used at trial. Also, the prosecutor had the obligation to prove the specific intent necessary for murder, as well as to prove deliberation, premeditation, and aiding and abetting. To prove such elements of the offense, police officer opinion evidence on gang membership and the psychology, culture, and sociology of a gang was properly admissible. (See People v. Gonzalez (2006) 38 Cal.4th 932, 944-946; People v. Ward (2005) 36 Cal.4th 186, 210-211; People v. Gardeley (1996) 14 Cal.4th 605, 617.)

As the prosecutor had the burden of proof on the mental elements required to prove murder and its degree and aiding and abetting, it properly used the motive evidence to persuade the jury that these murders were cold-blooded, gang-related, execution-style murders, probably related to transgressions involving the local drug trade, which is controlled by the local gangs. (See, e.g., People v. Gardeley, supra, 14 Cal.4th at p. 619 [gang testimony may serve to prove that what was done presents a classic example of gang-related activity.) As the motive evidence was probative of defendants mental state and a fact so central to guilt, the evidence of motive was properly admitted despite its potential to inflame the jury. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [while gang evidence should not be admitted if its probative value is minimal, where it is relevant to motive or identity, it is properly admitted]; see People v. Steele (2002) 27 Cal.4th 1230, 1243-1244 [highly probative other crimes evidence may be admitted despite its prejudicial effect to prove a defendants mental state during a murder].)

This case is distinguishable from People v. Cardenas (1982) 31 Cal.3d 897, 904, where the trial court improperly allowed the prosecutor to use gang evidence of minimal probative value to demonstrate witness bias where such evidence was cumulative of other properly admissible evidence.

The decision in People v. Albarran, supra, 149 Cal.App.4th 214 is also distinguishable. In Albarran, the reviewing court concluded that the motive for the underlying crimes, in particular the shooting, was not apparent from the circumstances of the crime. There was no other evidence suggesting that the shooting constituted gang activity. The Albarran court concluded that evidence of gang affiliation alone is an improper basis for admitting police officer expert testimony attributing a gang motive to the defendant. (Id. at p. 227.) The court held that on that record, the extraneous gang evidence admitted, which included a reference to the Mexican Mafia, had so little or no bearing on guilt and was so inflammatory and prejudicial that it raised the distinct potential to sway the jury to convict regardless of the defendants actual guilt. (Id. at pp. 227-228.) It observed that the paramount function of the gang evidence was to show criminal disposition, a fact that was emphasized in the prosecutors closing remarks: defendant is all about being a gang member day in and day out, every day, every night, despite the efforts of the deputies . . . .  Hes all about it. (Id. at p. 228.)

Here, the gang evidence was relevant to the central issues in the case. Sergeant Pasanti testified about the character of the area, the likelihood of violence where a drug dealer transgresses on another gangs territory without permission, and the parties gang affiliations. B.W. testified that she was using a lot of methamphetamine, that Quintana, a known drug dealer, was selling her methamphetamine, and that Quintana, his cousin, and other of Quintanas associates were gathering in RSP territory that night at B.W.s apartment. Such evidence was sufficient to support the prosecutors theory that the shooting may have been gang- and drug-motivated and to overcome any objection on grounds of relevancy and undue prejudice.

2. Prosecutorial Misconduct

Finally, there was no prosecutorial misconduct. The legal principle that applies in this instance is not the proposition that defendant cites from a well-known criminal law treatise, but rather that remarks made in an opening statement cannot be charged as misconduct unless the evidence referred to by the prosecutor was so patently inadmissible as to charge the prosecutor with knowledge that it could never be admitted. (People v. Davenport, supra, 11 Cal.4th at pp. 1212-1213; People v. Wrest (1992) 3 Cal.4th 1088, 1108; see also People v. Romero (2007) 149 Cal.App.4th 29, 44; see also People v. Boyette, supra, 29 Cal.4th at pp. 446-447 [during his opening remarks, a prosecutor may refer to evidence that he anticipates he will produce at trial].) As we discuss above, Sergeant Pasantis testimony was admissible, and accordingly, the prosecutor committed no misconduct by mentioning gang evidence during his opening comments and by using evidence of a drug-related motive to explain to the jury that issues of territory and drug dealing might explain the murders.

We recognize that the prosecutor in this case may have opted not to fully exploit the evidence that was potentially available to him as to motive. If asked, Sergeant Pasanti may have been able to expand his motive testimony by explaining the following concepts: gangs claim territory which they sometimes control and in which they intimidate community members to avoid apprehension by the authorities; those who sell drugs in a gang territory are required to pay taxes to the local gang, who in turn, if connected to the Mexican Mafia, pay that organization a portion of those drug profits; and that encroachment on gang turf without permission is likely to lead to violence. However, even the meager motive evidence produced here by the prosecutor was sufficient to explain to the jury that there was some reason for what otherwise might appear to be a senseless murder. Sergeant Pasantis lack of knowledge or lack of skill in testifying or the prosecutors failure to elicit the best evidence available as to motive does not amount to prosecutorial misconduct.

Sergeant Pasantis testimony about the Mexican Mafia was irrelevant as the testimony stands as the prosecutor failed to tie the possible role of the Mexican Mafia to Quintanas drug selling in another gangs territory. However, we conclude that this one isolated reference to the Mexican Mafia alone is insufficient to demonstrate evidentiary error or prosecutorial misconduct under the federal or state standards.

Also, there was no misconduct during the opening remarks when the prosecutor attributed the upcoming gang opinion testimony to Detective Ornelas. The error appears to be innocent, and during the trial, the potential testimony attributed to Detective Ornelas was elicited from Sergeant Pasanti. The prosecutors remark that defendant and Collis were gang enforcers was not made in front of the jury, and such evidence was never admitted.

There was no misconduct during the prosecutors final argument in rebuttal. It is well settled that rebuttal argument must permit the prosecutor to fairly respond to arguments by defense counsel (see People v. McDaniel (1976) 16 Cal.3d 156, 177), and that is all the prosecutor did here.

Moreover, as trial counsel failed to object on grounds of misconduct to the complained of remarks during the prosecutors opening and closing statements or to the gang evidence admitted at trial, these issues are forfeited and not cognizable on appeal. (People v. Partida, supra, 37 Cal.4th at pp. 434, 436 [evidentiary claims not cognizable on appeal in the absence of a timely and specific objection directed at a discrete item of evidence]; People v. Hill, supra, 17 Cal.4th at p. 820 [prosecutorial misconduct is waived in the absence of an objection and a request for an appropriate admonition that would dissipate any harm done by the improper remark].)

In an effort to overcome the forfeiture, defendant argues that he made a specific and timely objection to the gang evidence, and that in any event, an objection would have been futile or would not have cured the harm caused by the remarks. The one objection defendant claims was made was not an objection to gang evidence generally, but an objection to a discrete item of potential gang evidence that was never introduced at trial. (People v. Partida, supra, 37 Cal. 4th at p. 436 [when a trial court rules on an objection to evidence, it decides only whether that particular evidence should be excluded].) The other objections defendant refers to were directed at the murders of Ruvalcaba and Ortiz, not to the complained of gang evidence.

An objection and a request for an appropriate admonition would not have been futile. An appropriate admonition would have cured the prejudicial effect of any misconduct. If defendant had objected to the use of gang evidence generally, the trial court could have evaluated his various objections. If appropriate, the trial court could have excluded some of the evidence, ordered some or all of the comments or evidence stricken, or given curative or limiting instructions. As defendant never gave the trial court that opportunity, he has forfeited his contention.

D. Ineffective Trial Counsel

As there is a forfeiture, defendant makes an alternate claim of constitutionally ineffective trial counsel. He argues that his trial counsel was constitutionally ineffective because he failed to move for a mistrial or seek a new trial after the prosecutor failed to fulfill his promise to tie the gang evidence to his theory of motive.

Defendant argues that although the gang evidence may have been relevant to show motive, once the prosecutor abandoned his attempt to prove motive, the gang evidence became irrelevant to any legitimate trial issue. All that was left after the prosecutor abandoned his effort to prove motive was the prejudice remaining from the gang evidence, which, at that point, amounted to evidence of bad character. Accordingly, trial counsel should have moved for a mistrial at the close of the prosecutors case or for a new trial after the verdicts, and trial counsels failure to so move constituted ineffectiveness. Defendant argues that there would have been no tactical risk to moving for a new trial after the verdicts.

A defendant may address prejudicial remarks that irrevocably infected the jury panel during trial in a motion for new trial. (People v. Silva (2001) 25 Cal.4th 345, 372-373.) A trial court is vested with considerable discretion in ruling on motions for mistrial because the issue of whether a particular incident is incurably prejudicial is by its nature a speculative matter. (People v. Avila (2006) 38 Cal.4th 491, 573.) A motion for a mistrial should be granted only where a defendants chance for a fair trial has been irreparably damaged, that is, the trial court is aware of prejudice to the defendant which would not have been cured by admonition or instruction. (Ibid.; People v. Lucero (2000) 23 Cal.4th 692, 713-714.)

To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show both that his counsels performance was deficient when measured against the standard of a reasonably competent attorney and that counsels deficient performance resulted in prejudice to defendant in the sense that it so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (Strickland v. Washington (1984) 466 U.S. 668, 686.) (People v. Kipp (1998) 18 Cal.4th 349, 366.) If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. (People v. MendozaTello (1997) 15 Cal.4th 264, 266.)

Here, we have no doubt that trial counsel failed to move for a mistrial or make a motion for a new trial because to do so would have been futile. Evidence of gang membership was admissible to illuminate the central points of the elements of the offenses in order to demonstrate that defendant was guilty. The record suggests that the omission was based upon a reasonable strategic decision. (People v. Ledesma (2006) 39 Cal.4th 641, 746.) In any event, there is no prejudice as the gang evidence was admissible. (Strickland v. Washington, supra, 466 U.S. at p. 694.)

III. Ineffective Trial Counsel

Defendant contends that trial counsel was constitutionally ineffective as he failed to object on grounds of prosecutorial misconduct to the following italicized argument that the prosecutor made during his final argument to the jury.

Youre going to get an instruction about the presumption of innocence, but the [trial] court already read that to you because we went through that voir dire process, and that presumption of innocence is a theory. Now that youve heard all the evidence, that presumption of innocence still applies. Even though, you heard the evidence, well, how so? Its theory, and you have to carry that theory with you until and up until you start to talk together and deliberate. Thats called deliberations. So even though youve heard all the evidence, we want you to keep an open mind because people look at things differently. And we want you to go back . . . .  And youre going to go back there, and youre going to . . . deliberate soon. And once you do, that presumption of innocence disappears, Ladies and Gentlemen. Then its based on the evidence that you heard. How did we prove this case? Well, we proved it with evidence. (Italics added.)

Defendant complains that contrary to the prosecutors claim above, the presumption of innocence does not expire upon deliberations, but remains in place until the jury concludes that the prosecution has proved its case beyond a reasonable doubt.

The issue is not cognizable on appeal. Furthermore, even if it was considered, it would lack merit.

A. The Relevant Legal Principles

The presumption of innocence is a basic component of a fair trial, and under the presumption, a defendant is presumed innocent until proven guilty. (Coffin v. United States (1895) 156 U.S. 432, 453; Taylor v. Kentucky (1978) 436 U.S. 478, 483-487.) Section 1096 states that a criminal defendant is presumed to be innocent until the contrary is proved. It is well established that the presumption of innocence remains with the accused throughout every stage of the trial, including the jury deliberations, and it is extinguished only upon the jurys determination that guilt has been established beyond a reasonable doubt. (Mahorney v. Wallman (10th Cir. 1990) 917 F.2d 469, 471, fn. 2; see also People v. Rogers (2006) 39 Cal.4th 826, 888-889; People v. Mayo (2006) 140 Cal.App.4th 535, 542-543; U.S. v. Perlaza (9th Cir. 2006) 439 F.3d 1149, 1169-1172.)

We have previously set out in our opinion the controlling legal principles with respect to constitutionally ineffective trial counsel and to prosecutorial misconduct.

B. The Analysis

Defendants counsel was not remiss in failing to object to this one instance of misstating the law. Here, the trial court preinstructed the jury as to the presumption of evidence and the requirement that the prosecution prove their case beyond a reasonable doubt. During preinstruction, the trial court charged the jury that statements by counsel were not evidence and that the jury was to follow its instructions with respect to the law. After the evidentiary part of the trial came to a close, the trial court again charged the jury with the appropriate jury instructions, repeating and elaborating on these basic principles.[4] The parties argued reasonable doubt during their closing argument, each making claims that the prosecutor had or had not proved the prosecution case beyond a reasonable doubt.

After jury deliberations commenced, the jury sent the trial court a note asking the trial court to define reasonable doubt as it pertained to their deliberations. The trial court directed the jury to the pertinent CALCRIM instruction on reasonable doubt, which included the trial courts statement of law with respect to the presumption of innocence.

With claims of ineffective trial counsel, where the record sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citations.] (People v. Ledesma, supra, 39 Cal.4th at p. 746.) An attorney may choose not to object during final argument for many reasons, and the failure to object rarely establishes the ineffectiveness of trial counsel. (People v. Avena (1996) 13 Cal.4th 394, 421.)

In this case, the claim fails because the record does not preclude the possibility that trial counsels actions were based upon a reasonable strategic decision. The record supports a conclusion that trial counsel may have regarded the misstatement of the law as insignificant. Also, no matter when the presumption of innocence expired, the trial courts instructions and counsels comments during final argument were explicit: a defendant cannot be convicted unless the jury finds that the prosecution has proved its case beyond a reasonable doubt. The jury presumably followed that instruction. (See People v. Goldberg (1984) 161 Cal.App.3d 170, 189-190.) Further, trial counsel may not have objected because he did not want to draw the jurys attention to the misstatement of law when it would otherwise have been overlooked. Moreover, trial counsel probably was confident that the trial courts instructions would prevent the jury from being misled by the erroneous remarks. (People v. Samayoa (1997) 15 Cal.4th 795, 841 [when the claim of prosecutorial misconduct focuses on the remarks made before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied the complained of remarks in an objectionable fashion].)

We will affirm the judgment as the record demonstrates any number of conceivable tactical purposes that explain the failure to object. (People v. Lopez, supra, 42 Cal.4th at p. 972; People v. Ledesma, supra, 39 Cal.4th at p. 746; People v. Mendoza Tello,supra, 15 Cal.4th at pp. 266-267.)

IV. Cumulative Error Requires a Reversal

Defendant contends that there are cumulative errors in this record which individually may not require a reversal, but collectively are prejudicial under the Chapman standard (Chapman v. California (1967) 386 U.S. 18, 24) or deny defendant a fair trial (see Chambers v. Mississippi (1973) 410 U.S. 284, 302-303).

Having determined that no error occurred, this contention lacks merit. (People v. Heard (2003) 31 Cal.4th 946, 982.) Also, even if we concluded that the use of Sergeant Pasantis testimony about the Mexican Mafia was error, the use of this evidence alone was insufficient to deny defendant a fair trial. The admission of evidence, even if erroneous under state law, results in a due process violation only if it renders the trial fundamentally unfair. (People v. Partida, supra, 37 Cal.4th at p. 439.)

V. Insufficient Evidence of Aiding and Abetting

Defendant contends the evidence is insufficient to support defendants conviction of the first degree murder of Gonzalez on a theory of aiding and abetting.

We disagree.

A. Background

The jury was instructed with CALCRIM No. 400, concerning the general principles of aiding and abetting, and with CALCRIM No. 401, concerning aiding and abetting: intended crimes, which set out the requirements for a conviction under a theory that a person aided and abetted the perpetrator of a crime.

B. The Standard of Review

In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ([People v.] Rowland [(1992)] 4 Cal.4th [238,] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319.) We apply an identical standard under the California Constitution. (Ibid.) In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576.) The same standard also appli