P. v.Cabrera

Filed 8/23/07 P. v.Cabrera CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Eduardo Cabrera appeals from the judgment below, arguing that the gang enhancement findings against him should be reversed and the case remanded for resentencing. We affirm the judgment.

BACKGROUND

In April 2005, the Napa County District Attorney charged appellant with two counts of preventing a correctional officer from performing a lawful duty in violation of Penal Code section 69,[1] and two counts of resisting, delaying, and obstructing a correctional officer in violation of section 148, subdivision (a)(1). All four counts included gang enhancements alleging defendant committed offenses for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members. Defendant subsequently was tried before a jury. He did not present any witnesses. The prosecution presented five witnesses, whose testimony we now review.

Skeltons Testimony

Skelton, a correctional officer at the Napa County Jail, testified that on January 1, 2005, he was working in the jails east module, which housed the jails Sureno gang members, as well as some general population inmates that the jail did not have room for elsewhere. That day, Skelton moved a Black inmate into the module. Another inmate, Gruzdiv, approached Skelton and said that either he or the Black inmate had to move because he could not be housed with a Black person. Gruzdiv said that he was getting pressure from a couple of inmates because he was in a room with a Black person, and that he could not say who they were. After talking with Skelton, Gruzdiv walked over and spoke with two other inmates, Gonzalez and Villalobos, who were seated at a table.

Skelton sent word to his supervisor, Wilson, and was subsequently told that Gruzdiv should be moved. As another correctional officer, Fernandez, arrived to assist him, Skelton approached Gruzdiv, who had come out of the modules TV room, and told him to pack up his things and that he was being moved. Gruzdiv became extremely agitated, very physical while asking why he was being moved. Gonzalez and Villalobos stood up where they were and got involved in the situation asking, Whats going on? Whats happening? Wheres he going?  Gonzalez appeared to be taking charge of the situation, but both were asking questions. They made comments that if we took Gruzdiv out of the module, there was going to be a lot of problems. We didnt run the module. They were in charge of the module.

Villalobos took a stance against Skelton and, according to Skelton, was warning me not to touch him. Skelton took Villaloboss stance as meaning he was ready to get physical if Skelton tried to carry out what he proposed to do. Approximately 12 or 13 of the modules 40 to 45 inmates started to surround Skelton and Fernandez, who tried to get control of the situation by ordering the inmates to lock down, i.e., return to their cells to be locked in, but they refused to do so.[2] Other officers arrived and started to lock down willing inmates. This left seven inmates confronting Skelton and Fernandez, including Cabrera, with Gonzalez and Villalobos in the lead. The group refused to do as told, and demanded that they were in charge and we were not, and they were going to run the jail. The shift supervisor came in and convinced the group to lock down after about 10 minutes.

Skelton did not have any direct dealings with defendant, other than defendants participation in the group. Nothing prevented defendant from walking away and going back to his cell. Skelton did not observe him specifically doing any physical thing, and could not remember any specific words he mentioned. He recalled defendant was in the group off there to the side a little bit.

Fernandezs Testimony

When Correctional Officer Fernandez came into the mens east module, he heard Skelton tell Gruzdiv to roll his stuff up, and saw Gruzdiv become aggressive, standing off and not moving. He was getting loud and demanding answers. Gonzalez and Villalobos were playing a game at a table nearby. One of them threw his chair back and said, He aint fucking going nowhere. He aint moving. Villalobos and Gonzalez stood back in an aggressive stance, as if they were ready to fight us basically, and moved closer to the officers.

Fernandez told them they needed to lock down, and they repeated that Gruzdiv was not going anywhere. Fernandez called on his radio for backup, at which point Villalobos put his hand in the air and said something in Spanish, and before we knew it there were approximately 10 to 12 inmates surrounding us, including defendant.

Fernandez called on his radio for all available officers and yelled that everybody in the module needed to lock down, but for the most part no one listened. Additional officers arrived and secured the area, but a group of five or six inmates, including defendant, still refused to lock down. Nothing prevented defendant from leaving this group, which kind of backed up into their own circle, so to speak, rather than being spread out like they were before. Fernandez recalled that during the incident there were inmates behind him, and to his left and right. Defendant stood behind the other inmates and off to the right, basically, in my mind, saying Im here to back their play, whatever. Fernandez did not recall defendant saying anything. At some point after all the inmates had been secured except for the group standing off, Gonzalez said, You guys dont run this mod, we do. Defendant remained after Gonzalez made this statement. He only walked away from the confrontation and moved towards his room when Gonzalez and Villalobos agreed to return to their cells.

Mopass Testimony

Correctional Officer Mopas testified about interviewing defendant the day after the incident. Defendant said that he did not lock down because he was helping out his friends, and that one reason he did not lock down is because an unidentified they said not to do so. Defendant also told Mopas that he was just waiting for my friends. When Mopas asked him if he was willing to get into more trouble for these guys, defendant responded, No. They are not that good of friends, and Im not a bad person. He could only recall the name of one inmate in the module that day.

Wilsons Testimony

Correctional Officer Wilson, the supervisor of the correctional officer team at the jail who ordered Gruzdivs move, went to the east module after receiving a call that officer assistance was needed. She saw officers and several individuals in a standoff. There was a lot of verbal, and it was clearly an aggressive stance, as far as the inmates, towards the officers[.] Approximately 12 to 15 inmates were standing in the area. She observed at least four inmates that were being verbally and physically aggressive towards the officers. She commanded certain inmates directly in front of the officers to lock down, including defendant. She observed that Gonzalez, who was yelling and making demands, seemed to be the ring leader, and she particularly recalled Villalobos and Gonzalez engaging in physical, aggressive actions towards the officers. Wilson spoke directly to Gonzalez, and recalled: [Gonzalez] indicated to me that in prison they do not get housed together, and that was why it was a problem, and that for us to house him in there we were disrespecting them as a gang. Surenos were not housed with Blacks were his particular words, and that we were disrespecting him and his boys by doing so.

At the time, the officers had approximately 12 to 15 inmates cornered. It was in a pie shape. The officers were standing in front. There were a few inmates. Wilson recalled Mr. Villalobos constantly making aggressive advances towards the officers. She spoke to Gonzalez for a few minutes, and [o]nce Mr. Gonzalez agreed to lock down, he basically gave a nod or order to the other inmates, and we began to lock them down. Prior to that, she saw no indication that any of the inmates in the group wanted to go to their cells.

Wilson, asked about a report she had written which stated that defendant was threatening the officers, said that she could not recall defendants exact words, but that she did recall him saying something.

Expert Witness Testimony

Gary E. James, an investigator with the Napa County District Attorneys Office, testified as an expert witness. Since 1999, his sole assignment was the investigation of gang-related activities in Napa County. He contacted local gang members, reviewed police reports, conducted criminal investigations on major gang cases in Napa County, and met weekly with law enforcement, correctional personnel and probation personnel to share information related to gangs.

James opined that a criminal street gang calling themselves Surenos existed in Napa County which engaged in a pattern of criminal gang activity, establishing this in part by identifying certain convicted criminals as Surenos, a matter which we discuss further, post, in the discussion portion of this opinion.James further testified that a member of the gang was expected to support other gang members and their activities, and to be ready to back up his fellow gang members, and that the same code of conduct was expected of those who associate and do things with gang members.

James opined, based on information and materials he had reviewed, that Gruzdiv, Gonzalez, and Villalobos each was a self-admitted Sureno gang member, and that a fourth inmate, Barajas, was also a Sureno gang member. Based on reports filed by the correctional officers in this case, he further opined that Gonzalez and Villalobos were in Sureno leadership roles, and were preparing other inmates in this wing for the rules of prison and proper decorum, in housing rules and regulations on the prison setting, who they can be housed with and who they cannot be housed with. He stated that Surenos absolutely cannot be housed with Black inmates due to ongoing friction inside the prison system between those two groups.

James stated that he was able to gather information from [defendants] custodial status and housing, his prior activities, and other information, and his housing status inside Napa County Department of Corrections. James opined that defendant regularly and routinely associates with Sureno gang members, but was not a Sureno gang member.

James was also asked for his opinion based on certain hypotheticals. He answered affirmatively when asked, assuming that two gang leaders had taken a confrontational stance against correctional officers and were telling the officers that they ran the module, if this group was saying that their gang ran the module; assuming one of those Sureno leaders puts out some type of call in Spanish and a group of inmates responds, if this would be consistent with people responding to this person in a leadership role; and, assuming a known Sureno associate were to join that group and to stand firm with the Sureno leaders insisting that theyre not going to lock down and that they rule the mod, if that would be consistent with the behavior of a gang associate.

James was also asked for his understanding of what this gang associate would be trying to communicate by providing his presence to these gang[] members or gang leaders. James stated, Hes providing support to them, and, additionally, hes taking part in intimidating the correctional staff from doing their job. He further testified that if a close associate were to ignore that call and stay away, the group would not look upon [the associate] with favor, and that the group may not provide support to [the associate] when [he] needed it in a confrontational-type setting.

James further opined that the inmate stand off on January 1 was related to the Sureno criminal street gang: You had leadership of the group instigating the confrontation with the correctional staff. You had them escalating it by calling additional people in to assist, and it goes toward the whole intimidation factor of intimidating the staff and intimidating the other inmates and demonstrating that near control, and theyre running the module on those factors is what I base the opinion. It is the benefit of, direction of, and association with the group.

DISCUSSION

I. Section 186.22, Subdivision (b) is Not Unconstitutional

Defendant argues that section 186.22, subdivision (b) is unconstitutional on its face because it imposes punishment without a requirement that the defendant know the persons he is assisting are street gang members, or know that he is benefiting a criminal street gang. He suggests that the statute is void for vagueness and argues it is unconstitutional because it applied a gang enhancement to his sentencing without requiring evidence of his personal guilt. This argument is without merit.

Section 186.22, subdivision (a), provides for criminal sanctions against [a]ny person who actively participates in any criminal street gang with knowledge that its members engage in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang[.] ( 186.22, subd. (a).)[3]

Section 186.22, subdivision (b) provides for sentence enhancements, except in certain cases not applicable here, for any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members[.] ( 186.22, subd. (b)(1).)

The due process concept of fair warning is the underpinning of the vagueness doctrine, which bars enforcement of a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its implications. (People v. Castenada (2000) 23 Cal.4th 743, 751; see also United States v. Lanier (1997) 520 U.S. 259, 266.) The United States Supreme Court has long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea. (Colautti v. Franklin (1979) 439 U.S. 379, 395.) A statute will not be held void for vagueness if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources. [Citation.] [] The fact a word or phrase is somewhat imprecise does not per se violate due process requirements. [Citation.] All the Constitution requires is that the words convey[] sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. [Citation.] (In re Alberto R. (1991) 235 Cal.App.3d 1309, 1317.)

Defendant argues that section 186.22, subdivision (b) does not incorporate a mens rea element requiring him to know that he was benefiting, or acting at the direction of or in association with, a criminal street gang. Section 186.22 does not require that he knew the persons whose criminal conduct he intended to promote, further, or assist were in fact gang members, thereby failing to require the requisite personal guilt. (See People v. Castenada, supra, 23 Cal.4th at p. 751.)

As the Attorney General points out, this argument already has been rejected. In In re Alberto R., supra, 235 Cal.App.3d 1309, the Fourth District rejected the argument that section 186.22, subdivision (b) was facially constitutional. (Id. at p. 1313.) The court specifically held, among other things, that [t]he plain language of the statute reflects the specific intent necessary is to promote, further, or assist in any criminal conduct by gang members. . . .

( 186.22, subd. (b).) Such is adequate notice of what conduct is proscribed. As Alberto concedes, the inclusion of a specific intent in the terms of a statute will generally overcome any potential vagueness problem; persons of ordinary intelligence will not have to guess at the applicability of the statute. (Id. at p. 1323.) The court also rejected the argument that the statute does not contain a  scienter requirement (ibid.), as well as that section 186.22 was overbroad, holding that [t]he requirements a person know of the groups criminal activity and intentionally further the groups illegal conduct limit the Acts application to those gang members who actually engage in criminal activity. (In re Alberto R., at p. 1324, italics added.) We agree with the Fourth Districts analysis.

Defendant argues that In re Alberto R., supra, 235 Cal.App.3d 1309, is not relevant because the Fourth District addressed various provisions in section 186.22 not at issue here, and did not specifically address his argument that the statute does not require that defendant know the person he is helping is a gang member. The Fourth District made clear that the person must have the specific intent to engage in some fashion in criminal conduct by gang members. This necessarily requires knowledge of gang participation in the criminal conduct. Defendants argument that neither In re Alberto R. nor the statute are sufficiently clear on this point is unpersuasive. As our Supreme Court has stated, the STEP Act satisfies the requirements of due process by impos[ing] increased criminal penalties only when the criminal conduct is felonious and committed not only for the benefit of, at the direction of, or in association with a group that meets the specific statutory conditions of a criminal street gang, but also with the specific intent to promote, further, or assist in any criminal conduct by gang members. ([Former]  186.22, subd. (b)(1).) [Citation] We do not understand the due process clause to impose requirements of knowledge or specific intent beyond these, and defendant cites nothing to convince us otherwise. (People v. Loeun (1997)

17 Cal.4th 1, 11, quoting People v. Gardeley (1996) 14 Cal.4th 605, 623-624.)

II. Substantial Evidence of Knowledge of Gang Members

Defendant next argues no substantial evidence exists that he knew the persons in his jail cell were gang members, or that his acting benefited their gang, since the expert, James, did not give any testimony from which it could be reasonably inferred that appellant knew any of the inmates in the jail cell. The Attorney General argues to the contrary. Both ignore the clear and undisputed evidence, other than Jamess testimony, which established that defendant acted in concert with Sureno gang members.

The undisputed evidence plainly indicates that defendant actively confronted the officers in concert with inmates he knew. Mopas testified that defendant said he acted to help his friends, and did not return to his cell is because they indicated he should not lock down. Other officers testified that defendant responded immediately to Villaloboss signal for help and joined the group confronting the officers. Defendant refused to lock down despite being ordered to do so, made statements to the officers during the confrontation, remained a part of the smallest group of resisting inmates, and agreed to lock down upon Gonzalezs indicating his approval. Defendant was neither a passive bystander nor stranger to the group.

The evidence also clearly shows defendant knew he was participating in a Sureno gang confrontation, if only because Wilson testified that during the confrontation the groups ring leader, Gonzalez, said that Surenos were not housed with Blacks, that the officers were disrespecting them as a gang, and referred to his boys. Given the circumstances described by the correctional officers, which included that the inmates gathered together around the officers and that Gonzalez and others were acting and talking aggressively, it is imminently reasonable to conclude that defendant heard Gonzalezs statements.[4]

III. The Jury Was Properly Instructed

Defendant claims he was deprived of due process of law under the Fourteenth Amendment because the jury was not instructed that in order to convict him of gang enhancements they must find that he knew that his acts were being committed for the benefit of, or were committed at the direction of, or in association with, a criminal street gang, and that he intended to promote, further or assist in criminal conduct by gang members. This is incorrect.

The court made the relevant instruction to the jury using CALJIC No. 17.24.2. This instruction states that [t]he essential elements of this allegation are:

1. The crime[s] charged [was] [were] committed for the benefit of, at the direction of, or in association with a criminal street gang; and

2. [These] [This] crime[s] [was] [were] committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. (Italics added.)

Defendant stands by his argument despite the presence in the instructions of the very requirements he contends were missing. He argues, as he does regarding section 186.22s constitutionality, that the words of the statute do not require that a defendant know the person he is assisting is a gang member and, therefore, the jury instruction is defective. He further argues that the words of the statute reference abstract principles of law that are insufficient for instructing the jury. His arguments are unpersuasive. Putting aside the fact that defendant does not indicate that trial counsel sought any clarifying instruction (see People v. Daya (1994) 29 Cal.App.4th 697, 714 [defendant is not entitled to remain mute at trial and scream foul on appeal for the courts failure to expand, modify, and refine standardized jury instructions]), the subject jury instruction, like section 186.22, subdivision (b), included reference to scienter, and satisfied the due process requirements of the Fourteenth Amendment.^[5]

IV. Expert Testimony Regarding Specific Intent

Defendant argues that it was reversible error to allow James to testify that a hypothetical gang associate in a crowd of inmates facing off against correctional officers had the subjective specific intent to promote or assist the criminal conduct of gang members.

Defendant does not identify any offensive question in the argument section of his opening brief, but in his statement of facts he refers to a hypothetical given to James in which two gang leaders are facing off correctional officers with a group of five or six, including a Sureno gang associate who is not saying anything, and form a kind of defensive position, so still indicating their willingness to fight the correctional officers, and you still have the gang leader saying . . . well fight you. We run this mod. James was asked, Given that set of circumstances, do you have an opinion as to whether or not that gang associate . . . was acting with the specific intent to promote or further assist the . . . criminal conduct of the gang members? James responded: I believe he would be acting with the specific intent, when he stepped up and began assisting this group, and took a role in the confrontation with the correctional staff and continued to become involved in a confrontation with the correctional staff until the situation was finally quelled and everybody was re-housed.[6]

Defendant argues, relying largely on People v. Killebrew (2002)

103 Cal.App.4th 644, 657-658 (Killebrew), that Jamess testimony, although about a hypothetical, improperly addressed a specific individuals specific intent, and was also unnecessary expert testimony. We reject his argument because, as the Attorney General points out, defendant has forfeited the issue by his failure to object to Jamess testimony below. (Evid. Code, 353, subd. (a); People v. Zapien (1993) 4 Cal.4th 929, 979-980.) However, we note, without deciding, that Jamess testimony may well have been improper, but not for the reason defendant asserts.

Generally, an expert may provide opinion testimony on the basis of facts assumed to be true that are given in the form of a hypothetical question. (People v. Gardeley, supra, 14 Cal.4th at p. 618.) Such a hypothetical question must be rooted in facts shown by the evidence[.] (Ibid.) There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case. (People v. Valdez (1997) 58 Cal.App.4th 494, 507.) Thus, in People v. Gardeley, supra, 14 Cal.4th at p. 619, the trial court properly allowed expert opinion concerning whether a particular incident was gang-related activity and whether the primary purpose of a particular gang was to commit specific offenses. (People v. Valdez, supra, 58 Cal.App.4th at p. 508.) The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. (Evid. Code, 801; [citation].) Such evidence is admissible even though it encompasses the ultimate issue of the case. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.) Indeed, the case defendant primarily relies upon, Killebrew, supra, 103 Cal.App.4th 644, states that a gang expert may testify to an opinion concerning the motivation for a crime and whether and how a crime was committed to benefit or promote a gang. (Id. at p. 657; accord People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)

In Killebrew, supra, 103 Cal.App.4th 644, the court found that the experts testimony regarding the minors specific intent to promote, further or assist in criminal conduct by gang members ( 186.22, subd. (b)(1)) exceeded the type of culture and habit testimony found in the reported cases. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1197, quoting Killebrew, supra, at p. 654.) Defendant argues the case prohibits expert testimony about the specific intent of a specific individual in a hypothetical that mirrors the actual facts of the case. We do not necessarily agree with this proposition. As our Supreme Court has explained, Killebrew merely prohibit[ed] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial. (People v. Gonzalez (2006)38 Cal.4th 932, 946, italics added.)[7]

However, James appears to have confused the hypothetical with the real facts of the case in his response. The prosecutor asked him to consider whether or not a hypothetical silent gang associate huddled in a defensive stance with several other Sureno gang members had the specific intent to further these gang members criminal conduct. James, however, responded that this associate acted with specific intent because he took a role until the situation was finally quelled and everybody was re-housed. (Italics added.) These facts were not in the hypothetical question. James appears to have been addressing defendants actual conduct. Under People v. Gonzalez, supra, 38 Cal.4th at p. 946, this may have been improper.[8]

We also conclude that, even if an objection had been made to this testimony, and if the court had allowed the testimony to stand, it would have been harmless error in any event under either the federal or statestandards of prejudice. As we have already discussed, there was clear and undisputed evidence that defendant had deliberately and knowingly participated in a Sureno gang confrontation with the jails correctional staff. Any error in admitting that small portion of the experts testimony about specific intent over proper objection would have been harmless beyond a reasonable doubt, and it is not reasonably probable that a more favorable result would have been achieved in the absence of the error. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)

V. Expert Testimony Identifying Certain Persons as Sureno Gang Members

Defendant also argues that reversible error was committed when James testified that certain named persons were Sureno gang members.

In the course of establishing a pattern of criminal gang activity by Sureno gang members, the prosecutor showed James conviction sheets for certain persons named Eduardo Montez, Eduardo Ramos, Jesus Fernandez, Umberto Veloz, and Jacob Wayne Hutchins, asked James whether he was familiar with each person, and whether that person was a Sureno gang member. James responded affirmatively in each case and, in Montezs case, stated he was a self-admitted gang member. James did not identify the information he relied upon, nor did defendant object to this line of questioning.

On appeal, defendant argues that this testimony was improper[9] because

 [a]n expert may not testify to incompetent hearsay under the ruse of stating reasons for an opinion, quoting Killebrew, supra, 103 Cal.App.4th 644, 659, and that the testimony, particularly in the case of the self-admitted Sureno gang member, referred to out of court statements that were testimonial in nature and offered for their truth, thereby violating his rights under the confrontation clause of the Sixth Amendment of the United States Constitution, pursuant to Crawford v. Washington (2004) 541 U.S. 36.

Once more, we agree with the Attorney General that defendant has forfeited any right to raise these issues on appeal by failing to first raise them in the trial court below. (Evid. Code, 353, subd. (a); People v. Zapien, supra, 4 Cal.4th at pp. 979-980; People v. Burgener (2003) 29 Cal.4th 833, 869 [defendant waived due process and confrontation clause claims based on admission of hearsay evidence by failing to raise the claim before the trial court].)[10] In light of this forfeiture, we do not determine the merits of defendants arguments.

We do note, however, that Jamess testimony was particularly sparse. For example, in contrast to his conclusory, three-page testimony about the gang membership of five men, the gang expert in Killebrew, testifying about a dozen men,spent over 100 pages of transcript explaining in detail why he believed each man was a gang member.[11] (Killebrew, supra, 103 Cal.App.4th at p. 659.) Also, neither the prosecutor nor James referred in this portion of his examination to his opinion about the individuals membership.[12] Certainly, a more thorough and careful examination of a gang expert is the better practice.

VI. Ineffective Assistance of Counsel

Finally, defendant argues that his trial counsels failure to object to the evidence constituted ineffective assistance of counsel. This too is incorrect.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsels conduct fell below a standard of objective reasonableness and that he was prejudiced by counsels acts or omissions. (Strickland v. Washington (1984) 466 U.S. 668, 687.) The defendant must show 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. (Id. at p. 694.)

When considering an ineffective assistance of counsel claim, the reviewing court presume[s] that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions.

(People v. Holt (1997) 15 Cal.4th 619, 703.) As a general rule, a trial attorneys failure to make objections is a matter involving tactical determinations on counsels part, and seldom establishes incompetence or deficient representation. (People v. Lanphear (1980) 26 Cal.3d 814, 828, vacated by California v. Lanphear (1980) 449 U.S. 810, reiterated in its entirety as stated in

People v. Lanphear (1980) 28 Cal.3d 463, 464;People v. Jenkins (1975) 13 Cal.3d 749, 755.)

Defendant does not establish that his trial counsels failure to object to the evidence discussed herein was objectively unreasonable, nor that there is a reasonable probability that, but for any error of counsel, the result of the proceeding would have been different. As we have already discussed, there was clear and undisputed evidence, beyond the expert testimony defendant argues was improper, that defendant had the requisite specific intent here. Regarding the identification of gang membership issues defendant raises, the record indicates that the jail module in which the incident occurred was used to house Sureno gang members and that one of the leaders of the confrontation, Gonzalez, identified the groups resistance as due to a Sureno gang issue. Under these circumstances we have no doubt that the prosecution would have easily established all matters required regarding a Sureno criminal street gang if trial counsel had made objections and the trial court had sustained them. It appears that trial counsel chose the wiser course of remaining silent so that a minimum of testimony on the relevant subjects was presented to the jury.

DISPOSITION

The judgment is affirmed.

_________________________

Lambden, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.

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Analysis and review provided by Chula Vista Property line attorney.

[1] All statutory references herein are to the Penal Code unless otherwise stated.

[2] On cross-examination, Skelton indicated that the group was on his sides and in front of him.

[3] Section 186.22 was enacted in 1988 as part of the California Street Terrorism Enforcement and Prevention Act (STEP Act), section 186.20 et seq. (People v. Lopez (2005) 84 Cal.4th 1002, 1005.)

[4] Furthermore, defendants actions were in keeping with those of the hypothetical gang associate that James discussed. Like the hypothetical gang associate, defendant responded immediately to a verbal call from a leader, and stood stalwart behind that leader against the correctional officers, in violation of the officers orders to lock down. This portion of Jamess testimony, while unnecessary to conclude that defendant deliberately and knowingly assisted a Sureno gang confrontation, provides further support for our conclusion.

[5] In light of our holding, we do not address the Attorney Generals further contention that any instructional error was harmless.

[6] James was then asked if a hypothetical gang associate intended to promote gang members criminal conduct by his sudden willingness to lock down after the gang leader indicated it was okay to do so. We do not examine this testimony further because defendant does not specifically refer to it in his papers.

[7] The court also noted that Killebrew is somewhat unclear as to whether the expert spoke of the defendants knowledge, or that of a hypothetical person, (People v. Gonzalez, supra, 38 Cal.4th at p. 946, fn. 3) stated that [o]bviously, there is a difference between testifying about specific persons and about hypothetical questions. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons. As explained in People v. Gonzalez, supra, 126 Cal.App.4th at page 1551, footnote 4, use of hypothetical questions is proper. (Ibid.)

[8] We do not address defendants argument that the testimony was also unnecessary because the jury was equally equipped as James to decide the question of specific intent.

[9] As we have already discussed, ante, James later identified certain persons participating in the confrontation as Sureno gang members. Each party confuses the persons whose identifications defendant challenges on appeal, i.e., Montez, et al., with the persons who participated in the confrontation (defendant referring in his reply brief to persons in the cell and the Attorney General referring to the conduct of these inmates and citing its recitation of the confrontations facts). However, defendant does not actually challenge Jamess later identifications, and we do not consider them further.

[10] The California Supreme Court held in People v. Vera (1997) 15 Cal.4th 269, that a defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights. (Id. at p. 276.) However, Vera also heldthat not all constitutional rights are within this rule. (Id. at p. 277.)

[11] The defense counsel also made repeated objections to at least some aspects of the testimony. (Killebrew, supra, 103 Cal.App.4th at p. 659.)

[12] The jury was instructed, however, pursuant to CALJIC No. 2.80, that an expert witness has testified to certain opinions, and that the jury is not bound by an opinion and may disregard any opinion if you find it is unreasonable. As stated in Crawford v. Washington, supra, 541 U.S. 36, the confrontation clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. (Id. at pp. 59-60, fn. 9.) Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.)