P. v. Horne

Filed 4/13/07 P. v. Horne CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Statement of the Case

A jury convicted defendant Joseph Deonn Horne of eight offenses and found true a special circumstance allegation and numerous enhancement allegations. The convictions and enhancements are as follows: count 1, murder with a criminal street gang special circumstance and enhancements for discharging a firearm and causing great bodily injury and death and committing the offense for the benefit of a criminal street gang (Pen. Code, 187, 186.22, subd. (b)(1), 190.2, subd. (a)(22), 12022.53, subds. (c) and (d);[1] count 2, attempted murder with gang and firearm discharge enhancements ( 664, 187, 186.22, subd. (b)(1)); count 3, assault with a firearm with a gang enhancement ( 245, subd. (a)(2), 186.22, subd. (b)(1)); count 5, making criminal threats (422); count 6, shooting at an occupied vehicle with a gang enhancement ( 246, 186.22, subd. (b)(1)); count 7, sale or transportation of a controlled substance with a gang enhancement (Health & Saf. Code, 11352; 186.22, subd. (b)(1)); count 8, shooting at an inhabited dwelling with gang enhancements ( 246, 186.22, subds. (b)(1) & (b)(4)(B); count 9, assault with a firearm with a gang enhancement ( 245, subd. (a)(2), 186.22, subd. (b)(1)).[2]

For these crimes and enhancements, the court imposed a term of life without parole for the murder (count 1) plus a consecutive indeterminate life term for using a firearm; a consecutive indeterminate life term for the attempted murder (count 2) plus a 20-year firearm enhancement; a consecutive life term for shooting at an occupied vehicle (count 6); a consecutive life term for shooting at an occupied dwelling (count 8); a consecutive determinate term of three years for selling drugs (count 7) plus a four-year gang enhancement; and a consecutive eight-month term for making a criminal threat (count 5). The court imposed additional terms and enhancements but stayed them under section 654.

On appeal from the judgment, defendant raises the following claims: (1) the prosecutor was guilty of misconduct during cross-examination, the court abused its discretion in failing to curtail the misconduct, and defense counsel rendered ineffective assistance in failing to object; (2) the prosecutor improperly used defendants juvenile adjudications to impeach him; (3) there is insufficient evidence to support the gang special circumstance and the gang enhancements; (4) the court erred in failing to give a unanimity instruction concerning the pattern element of the gang enhancements; (5) the court erred in admitting hearsay concerning the alleged criminal threats; (6) the court misinstructed on the intent element of making a criminal threat; (7) the court erred in failing to give a unanimity instruction concerning the charge of making a criminal threat; (8) the court erred in admitting opinion evidence concerning the credibility of a prosecution witness; (9) the court erred in admitting hearsay concerning a codefendants guilty plea; (10) the indictment/information was defective in not alleging that the attempted murder was premeditated; and (11) the court erred in imposing a consecutive indeterminate term for the murder and a consecutive 20-year enhancement for the attempted murder.

We conclude that instructional error compels the reversal of defendants conviction for making a criminal threat and reverse the judgment.

Facts

Defendant committed the offenses between January 31 and November 11, 2002.

January 31, 2002 - Sale of a Controlled Substance (Count 7

In January 31, 2002, members of a police drug enforcement team in Seaside arranged for Beverly Jones, an addict and paid informant, to make a controlled buy of cocaine from a dealer on Flores Street, where drug dealing was suspected. After being searched and given money, Jones went to the area. The team observed defendant enter Joness vehicle. A short time later, he got out. Jones drove to a predetermined location, where she met a member of the team and produced some rock cocaine that she had purchased from defendant.

The Defense

Defendant testified that he had accepted rides from Jones in the past. He could not recall this particular incident very well but thought it was the time he had flagged her down for a ride. On that occasion she had bought drugs from someone called Muchee before defendant got into her car. Defendant admitted that he had sold drugs in the past but denied selling to Jones that day.

March 12, 2002 Shooting at an Occupied Vehicle (Count 6)

On March 12, 2002, Marcus Boykin, a drug user with prior convictions for robbery and possession of drugs, drove another man to Flores Street to buy some crack cocaine. Later, Boykin returned and was confronted by a group of men, including defendant, who were angry about a drug rip off. Four of them entered Boykins car, and one threatened him with a gun. Boykin got out, and defendant, who had a big gun in his hand, asked about some drugs that Boykins friend had not paid for. He punched Boykin, and then told him to leave. As Boykin drove away, someone fired shots at his car.

A short time later, Boykin told Officer Danny Martin of the Seaside Police Department that defendant had shot at him. He also told Officer Martin to get defendant off the street before he killed him. Officers Martin and Cruz Gonzalez located defendant at Latina Harriss home after the incident. Defendant denied having an altercation with anyone.

The Defense

Defendant denied shooting at Boykins car. He claimed that he saved Boykin from being shot. He said that when the men jumped into Boykins car, he told them to get out. Despite defendants intervention, Boykin cursed him. Defendant then punched Boykin and told him to leave. At that point, a man put a gun to Boykins head and demanded money before he left. Defendant snatched the gun away, and Boykin drove away. Defendant put the gun down, and the man retrieved it and shot at Boykins car.

July 22, 2002 Criminal Threats against the Welch Family (Count 5)

On July 22, 2002, Gay Lavern Rhone, and her cousin Jimmy, who are members of the Welch family, were at the Nations Market. As Rhone came out of the store, she heard someone say something like if I dont get my money, Im going to blow or smoke the whole Welch family and starting with Lisa and the baby.[3] She did not see the person, but when she turned, she saw defendant among others, and at trial she identified defendant as person who made the statement.

Rhone and Jimmy looked for and found Lisa and Lisas father Samuel Welch at a car lot and conveyed the threat. All of them went immediately to the police station and reported the threat to Officer Gonzalez.

Officer Gonzalez interviewed Lisa. She explained that defendant had put a down payment on a used vehicle, but later after she and defendant broke up, she returned the vehicle without getting a refund of defendants money. Lisa thought defendant had gone crazy. She urged his arrest, wanted a restraining order, and intended to leave town. The next day, however, Lisa asked that the charges be dropped. She told Officer Gonzalez that her family had made the threat seem more serious than it was and had pressured her to make a report.

At the station, Officer Gonzalez also interviewed Samuel Welch. Samuel said that he had recently overheard defendant threaten Lisa on the phone. He said he would kill Lisa, her baby, and the whole family if he did not get his money back on a vehicle. At the time, Samuel took the threat seriously. He too asked Officer Gonzalez to arrest defendant.

At trial, Lisa explained that she returned the vehicle that defendant had paid for without getting a refund. Later, she was looking for another vehicle, when Rhone and Jimmy showed up and told her about defendants threat. She said her family forced her to report the threat even thought she did not take it seriously. She also denied that defendant ever threatened her over the phone. However, she admitted that she had previously testified about the telephone threat before the Grand Jury. She explained that she had been confused by and misunderstood the question.

Samuel Welch testified that he overheard defendant threaten Lisa on the phone. He said he reported the threat to Officer Gonzalez.

The Defense

Defendant testified that he bought Lisa a vehicle, but then she threatened to take it back. He said she was angry because he was spending more time with the vehicle than with her. At the Nations Market, he and Jimmy Welch got into a loud argument. He had called Lisa a B because she was trying to take his vehicle back, her father was letting her do it, and he was losing his money. Defendant said he and Jimmy called each other names and threatened to kick each others A. However, he did not threaten to kill anyone.

Defendant admitted that he and Lisa had argued over the phone about the vehicle. When she told him she had returned it, he threatened to kick her A if he did not get his money back. She responded that he would never see his child. They continued to argue and curse each other, and then he hung up. A few hours later, she met defendant and told him she had returned the vehicle and gone to the police.

November 10, 2002 Shooting at an Occupied Dwelling & Assault (Counts 8 & 9)

On the evening of November 9, 2002, Gene Alton Stewart, Samantha Smith, and Ollie Mitchell were at Beverly Joness home in Seaside and then left. Stewart testified that around 1:00 a.m. the next morning, November 10, he, Smith, and Mitchell drove to Salinas to buy some crack cocaine.[4] Mitchell gave Stewart money, and Stewart bought the crack. Stewart then kept some it for himself and gave what remained to Mitchell. Mitchell was angry about being short-changed and said that Stewart would have to deal with defendant when they got back to Seaside.

Later that day, Stewart encountered defendant and others at the Del Monte Manor apartments. Defendant said, You must wanna die, messing with my cousin and tried to punch Stewart. They fought until Stewart got the upper hand and some people broke it up. Stewart then left for his motel room. Thirty minutes later, defendant and Mitchell arrived and assaulted Stewart with a gun and beer bottle.

That night, Stewart was at Joness house again smoking crack. At one point, he noticed defendant, Mitchell, and Samantha Smith approaching the house. Defendant appeared to have a gun. Stewart sneaked out through a side door when he heard someone ask for Geno.

Jones testified that there was a knock on her door, and when she asked who was there, Mitchell asked for Stewart. Jones said he was not there. Defendant then said he knew that Stewart was there. Jones said nothing and then three shots came through the house. Jones heard Smith say, [L]ets get out of here. Jones called the police, and later saw defendant, Mitchell, and Smith watching her from a nearby hill as she spoke to an officer.

Jerry Smith, the mayor of Seaside, was awakened by gunshots that night. He looked outside and saw two black men and a white woman walk from Joness residence, get into a small Nissan four-door silver/gray car, and drive away.

The Defense

Defendant testified that on November 9, 2002, he came home drunk, went to bed, and stayed in bed the next day. Later, he found out that someone named Geno had robbed his cousin. He admitted fighting Gene Stewart, but he said the reason was that Stewart had molested his 16-year-old cousin.

November 11, 2002 Murder, Attempted Murder, & Assault (Counts 1, 2 & 3)

The murder of Jason Ewing and attempted murder of Jaymes Lambert occurred early in the evening of November 11, 2002.

Sometime between 5:00 and 6:00 p.m. that day, Joy Price, her brother Jason Ewing, Jaymes Nutty Lambert, Charles Earle and some others were on the street outside the Ewing house on Darwin Street, which is known as D-Block. At one point, defendant walked by with some associates and said Mob. He then lifted both arms as if he were signaling a touchdown. Someone in Jasons group yelled back PJs. A short time later, Jason, Lambert, and Earle left for the Food Corner market on Noche Bueno Street and San Pablo Avenue.

Lakeylia Ross was outside the market. She testified that defendant and others were also there. At one point, Jason and Lambert walked by, and someone said, There goes that nigger right there. Defendant then said, About to go get my strap, which means about to go get his gun. He then left the market. Ross heard someone in the crowd say, Its about to go down.

Deborah Harris, defendants cousin, testified before the Grand Jury that she and her aunt were also at the food market. At one point, three men came up to them, and Harris warned them to get off the corner before [they] got shot. Although at trial she denied saying this, her high school math teacher, Dennis Alexander, testified that the day after the shooting, Harris told him that she had warned Jason to leave the market before he got shot.

Lakeylia Ross further testified that she left the market and walked up San Pablo Avenue. She saw Jason and Lambert talking to Carlette Wanton, Vantoinette Fraley, and a woman named Bianca. Ross heard someone warn Jason to leave the corner because something bad was going to happen. Suddenly, a silver car drove up. Defendant got out, walked over to Jason, announced, Seaside Mob, and then shot him in the chest, killing him. Ross later identified defendant as the shooter to Detective Barry Pasquarosa of the Seaside Police Department.

Gene Stewart, who had sneaked out of Joness house the night before, testified that around 6:00 p.m., he went to the corner of San Pablo Avenue and Luxton Street with a gun because he intended to confront defendant. He saw defendant and Jason arguing at the next corner. He heard Jason say that defendant owed him money. Defendant replied, Fuck that. He then pulled out a gun, which looked like a Glock, and shot Jason twice.[5]

Vantoinette Fraley testified that while she was talking to Lambert, she heard some shots. She did not recall telling her friend Carlette Wanton anything about the shooting. Nor did she recall telling Tracy Spencer, an investigator for the District Attorney, during a taped interview, that Wanton had said that a man pushed her out of the way before the shooting and later identified the man was J.D. However, Fraley said she had no reason to lie to Spencer and had been honest.

Fraley did not recall seeing a Lexus or telling Spencer that she had. She said she did not know defendant before the trial and did not see him during the incident. However, Spencer testified that during her interview, Fraley recognized a photograph of defendant and referred to him as J.D. She also told Spencer that moments before the shooting, she saw a silver Lexus and then heard a car door slam shut.

Carlette Wanton initially denied that she and Fraley witnessed the shooting. She admitted that shortly after the shooting, she told an officer that she and Fraley had been there. However, she said that was a lie. She denied getting gun powder burns, telling Spencer about the burns, or telling an officer she had seen fire from the gun. However, after hearing a tape of her interview, she acknowledged her presence at the scene and answered questions about who had been there and what she had seen. She testified that at one point, Jason came over to her, and then suddenly a dark-skinned man in dark clothing, a beanie hat, and hooded sweatshirt shot Jason. She saw fire and heard two shots. She did not know the shooter and said defendant was not there.

Wanton denied that defendant had pushed her out of the way or ever saying that he had done so. She acknowledged that that was what Fraley had told Spencer, and she admitted telling Spencer that [i]f thats what [Fraley] says happened, I guess thats what she saw. However, she explained that she was not admitting that defendant pushed her but only that that is what Fraley thought had happened.

Jaymes Lambert testified that on November 11, 2002, he and Jason were talking to some girls when he heard two loud booms behind him. He did not see the shooter. He ran and more shots were fired at him. Brandon Rubin and Andrew Gil, who were on the street at the time, saw a black man in a blue sports jersey chasing after and shooting at another black man.

Lambert testified that he knew defendant only by sight and did not see him that evening. However, Lambert identified himself in a photograph the included himself, defendant, Lisa, and Jasons brother Jared Ewing in a friendly pose.

Lambert opined that there are no longer gangs in Seaside known as PJC or the Mob. He said they had stopped being active years ago, and now everyone got along. However, he admitted that he told Detective William Clark of the Monterey Police Department that he had been in PJC since he was 14 or 15, but he said that was a lie. Lambert admitted that after the shooting, he got a bone tattoo of the letters H and T on his arms. He claimed it stood for Hard Times and not Hilltop.

Scot Armstrong, a senior criminalist and ballistics expert with the California Department of Justice, analyzed shell casings recovered from both Beverly Joness house and the murder scene. All were the same caliber and had been fired from the same gun, which, he opined was a Glock.

Defendants fiance Lisa Welch, Elizabeth Gadson, and her daughters Pasia and Alaina testified that on November 11, 2002, Lisa took Pasia and Alaina shopping for baby things and then returned to Lisas apartment. Pasia and Lisa testified that some other people were there.

Lisa testified that after they returned, defendant went outside to get some marijuana from his friends. Later, he assembled a baby stroller and bassinet in their bedroom. Lisa said that defendant did not leave the apartment, except to have a smoke out on the balcony. She said that around 6:45 p.m., Elizabeth Gadson arrived to get Alaina and Pasia. Gadson testified that she did not see anyone outside when she arrived. Lisa said that after Gadson left, she drove some friends home, shopped, and came home to find defendant watching a movie.

Detective Joseph Bertaina of the Seaside Police Department, who interviewed Lisa, testified that she told him that defendant was in and out of the apartment during an impromptu baby shower. At sunset, he came in and never left. However, Lisa later corrected herself when Detective Bertaina told her that Pasia had said that defendant was never in the apartment. Lisa then said that defendant was not actually in the apartment but rather outside smoking and talking to his friends. She knew he never left because she checked on him every 15 minutes.

At trial, Lisa acknowledged some of what she had said to Detective Bertaina. However, she denied hearing what Pasia had said or saying that defendant had been outside the apartment. She did not recall saying that she had checked on him every 15 minutes.

Pasia and Alaina testified that defendant was in and out of the apartment while they were there. However, Gary St. Clair, a defense investigator, testified that Pasia told him that she saw defendant only before she went shopping with Lisa and not when they returned later in the afternoon. He testified that Alaina told him she did not see defendant before her mother came to get her and Pasia. She also told St. Clair that there was no baby shower that day. At trial, Alaina said she may have said those things to St. Clair and admitted that her memory was better during that interview. Nevertheless, she was certain that she saw defendant at some point that day.

Detective Bertaina also interviewed Pasia. He asked her whether defendant had been at the apartment between 4:30 and 6:45 p.m. She said no. At trial, Pasia admitted saying that. However, she also testified that she saw defendant sometime somewhere that day.

Samuel Welch testified that he saw Pasia, Alaina, and defendant at the apartment. However, Detective Pasquarosa interviewed Samuel, who at that time said he saw Pasia, Alaina, and Lisa but not defendant during the day. Welch further said that defendant might have returned later that night, but he did not see him.

Trish Monta testified that on November 13, 2002, two days after the shooting, she drove Lisa and defendant to a hospital in San Jose to visit Montas daughter Amber. She said that Lisa got a call at the hospital and learned that defendant had been accused of killing Jason. Lisa became upset and said the accusation was not true. Monta advised Lisa and defendant to go to the police. Monta further testified that at home later that evening, she saw defendants picture on TV and called Lisa. Lisa became hysterical. Monta again advised her to go to the police.

Lisa testified that after they returned from visiting Amber, she and defendant drove back to San Jose and stayed overnight in a motel. She explained that she previously had talked to Amber about visiting her the next day, and she and defendant also and had plans to visit his mother in Barstow.[6] Lisa denied getting a call at the hospital about defendant. She also denied discussing the call with Monta either at the hospital or later that evening over the phone. Lisa testified that she did not learn that defendant was a suspect until November 14, 2002, when defendant was arrested.

On November 14, 2002, around 8:00 a.m., Officer David Lee of the San Jose Police Department drove by the California Motel in San Jose. He saw a man and a woman near a car that was sought in connection with Jasons murder. He broadcast a description of a man. When Officer Bill Wolf of the San Jose Police Department spotted a man who fit the description, the man ran. Police pursued and arrested the man, who was defendant.

Jeff Hass, an evidence technician for the Seaside Police Department, searched Lisas Nissan Sentra. Among other things, he found photographs of defendant and Lisa, one of which showed defendant sitting on a couch throwing a gang sign; a blue Cowboys sports jersey with the number eight and the name Aikman on it; and two cameras containing film. Pictures from one camera are dated November 4, 2002, and from the other November 11, 2002. One picture shows money and what appears to be a Glock on Lisas stomach. Pictures dated November 11, 2002, show defendant and a baby bassinet. Hass also found an invitation to a baby shower on October 11, 2002.

Detective Bertaina testified that during his interview with Lisa he showed her the photograph of the gun and money. He testified that she was stunned and stuttered. She said that a man had come to the apartment to sell it. At trial, Lisa testified that a man and a woman, whom she did not know, came by one night to sell defendant some marijuana. At one point, the man put a gun in her lap, said he was selling it, and then grabbed her camera and took the picture of it.

Detective Bertaina also interviewed defendant. During the interview defendant said he hung out at and was a main factor in the area of San Pablo Avenue at the Food Corner market, which he called the block. He said he was friendly with Jared Ewing but not Jareds brother Jason. He reported that Jared had recently shot at Stefan Poppa. Guest. Defendant said he had heard on the street that Poppa and Raishat Geno McGill were suspects in Jasons murder. He told Detective Bertaina that Gene Stewart was a base head, who had robbed Ollie Mitchell.

Defendant told Detective Bertaina that on November 11, 2002, he spent the entire time from 5:00 to 8:00 p.m. at Lisas baby shower along with his Aunt Marilyn Hall, Patience Davis, Peggy and Kathy Hunter, and Pasia Gadson.

On November 15, 2000, before defendant made his first court appearance, he called his cousin Angel and Gary Sweet Dunn from the Monterey County Jail. During the call, defendant said he was The famous MF on the block and advised, Hey, you need to talk to Vantoinette, man, and Carlette, and be up on them, which, Detective Bertaina understood to mean be close to them, get up on them, next to em.

The Defense

Defendant testified that on November 11, 2002, he was at the Food Corner market early in the afternoon, and then he and some associates walked passed a group of people outside the Ewing house. He said that as he passed, he said, what up, this is mob to reassure them and prevent a shooting.

Later, around 2:45 p.m., he went to Lisa and her fathers apartment. Lisa had just left to go shopping. He stayed there the rest of the day. Between 5:00 and 5:30 p.m., he assembled a stroller. Around 5:45 p.m., a friend came over with some marijuana for him. Around 6:00 p.m., he and Shantay Huntley went out on the balcony and had a smoke. Later, he and Alaina Gadson assembled a bassinet. Shortly after 6:30 p.m., Pasia and Alaina left with their mother, and Lisa left with Shantay and Christina Edwards.

Defendant further testified that on the morning of his arrest, Lisa made a call from their motel to find out what hospital Amber was in, and defendant went outside to call his mother from a pay phone. His mother told him that he was suspected of murder. Just then, a police car drove by. Defendant told Lisa to leave for the hospital, and he left to go to the store. He later ran and was eventually caught and arrested.

Concerning the photograph of the gun on Lisas stomach, defendant said that one night, a man named Mark was supposed to sell him some marijuana, but he could not deliver and sent someone else. The man came over with his wife and sold them a sack. Defendant went into another room with Lisas father, and Lisa handled the transaction by herself. After the couple left, Lisa told defendant that the man had tried to sell her a gun, and she had taken a picture of it.

Defendant testified that he had had a brief affair with Lakeylia Ross, and thereafter, she kept hounding him to be with her, saying she could love him better than Lisa could. However, he ditched her.

Defendant denied that he called Angel and Sweet from jail to have them influence Carlette Wanton and Vantoinette Fraley. He said he simply wanted his friends to find out what they had said. At the time, he had already heard that Stefan Poppa Guest was the perpetrator.

Defendant said there were no problems between him and Jason. However, he admitted that after the shooting, he was very angry that Jason had called Lisa in the past and that in the past, they had had sex. Defendant admitted that he told his sister to assault Lisa and had angrily threatened to assault her himself. He further admitted that when Lisa said she loved him, he repeatedly told herd that he was a boss, and everyone knew it. At trial, he explained that he was angry about a rumor that Jason had been sleeping with Lisa. He denied that he was angry because Jason was not a Mob member

Shantay Huntley testified that she is a very close friend of both defendant and Lisa. She said that she attended two baby showers for Lisa. The second one was at Lisa and her fathers apartment. She arrived between 2:00 and 3:00 p.m. Some associates of defendant were there, but she did not know their names. Defendant was in the bedroom assembling a stroller and a bassinet. Around 6:00 p.m., she and defendant went outside to have a smoke.

Gang Testimony

Detective William Clark of the Monterey Police Department testified that in Seaside, gang members are mostly Crips. Their rival, the Bloods, have only a small presence. He explained that there are different Crip factions or sets, some of which identify with Seaside locales, such as D-Block, which is the area around Darwin Street; the Projects, which is near the Del Monte Manor Apartments housing project; and Hilltop, which is just below apartments, in the area around Lucerne and the Nations Market. Hilltop is a set of Project Cripi.e., Hilltop Project Crip[s] or Hilltop PJC. In 2002, the two main Crip factions were Project Crip and the Mob or Seaside Mob.

Detective Clark opined that Project Crip and the Mob both qualified as criminal street gangs as defined by statute. He explained that that both claim the color blue and use hand signs to greet fellow members or intimidate and threaten rivals. The Mob uses hand signs for M and C; Project Crip uses signs for P and C. He identified a photograph of defendant making Mob had signs. In another photograph, he identified Jared Ewing and Lambert making Project Crip signs.

Detective Clark testified that a truce between the Mob and Hilltop PJC collapsed in August 2002 because of a shooting between Jared Ewing, who was PJC, and Stefan Poppa Guest, who was Mob. Thereafter, hostilities between the two gangs increased. He opined that the shooting of Jason benefited the Mob.

Detective Clark interviewed Lambert and listened to several of Lamberts tape-recorded telephone calls. He opined that Lambert was Hilltop PJC, and his H. T. tattoo signified Hilltop PJC. Although Lambert asserted that defendant had shot Jason for personal, not gang-related, reasons, Detective Clark noted that in the recorded calls, Lambert made a reference to the Mob, and before the murder, Lambert had warned Jason.

Sergeant Michael Kimball of the Seaside Police Department testified that Mob stood for both murder on Broadway and money over bitches. He explained that in the mid-1980s, Crips from Los Angeles came to Seaside to expand their criminal activities. They formed the Project Crips or PJC at the Del Monte Manor. Over time, infighting developed between the young Seaside members, who wanted independence, and the older members. The former members split off as the Mob; the latter became FAM, or original family gangsters. The two factions fought; but in 1998, they reached a truce concerning drug trafficking. In 2000, the truce fell apart, violence erupted between the factions, and both FAM and the Mob started recruiting new members. At that time, Project Hilltop or Hilltop and D-Block developed as subsets of FAM. Hilltop or Hilltop PJC was still an active gang in 2002 and friendly with D-Block, where Jason lived.

Sergeant Kimball concurred with Detective Clark that the Mob was a criminal street gang, whose primary activities included murder, robbery, burglary, assaults, car jacking, prostitution, witness intimidation, firearm brandishing, drugs trafficking, and gambling. He testified that defendant was an active member of the Mob gang. He based his testimony on contacts with defendant; defendants statements to police officers, including that he was the most famous MF out there on the block and a main factor; defendants writings and calligraphy, which include My book, J.D., the Life of ah Boss, and Names of People I know in Seaside, which appeared to be a roster of people and their individual status or relationship; defendants blue clothing and gang-related tattoos; photographs of defendant making gang signs; and information from other officers, police reports, and CYA records. He said that defendant had also been a member of the Village Park Crips in Barstow.[7]

Sergeant Kimball testified that defendant committed each of his crimes for the benefit of the Mob. He explained that the crimes helped perpetuate his reputation as a boss of his turf in Seaside, generate self-esteem among gang members, provide money to support the Mobs activities, and let members of the community and rival gangs know this is whats going to happen to you if you do not cooperate, if you testify against us, and if you mess with us. He also asserted that the crimes also help recruit new members and teach the younger Mob associates how things are done.

Sergeant Kimball opined that when defendant called Angel and Sweet from jail and said to be up on Vantoinette and Carlette, he meant to have a watchful eye on them and make sure they did and said what they were supposed to.

The parties stipulated that Tommy Clewis and Troy Caldwell had pleaded guilty to a robbery on March 9, 2000, on Darwin Street. At the time, Caldwell was wearing blue clothing, a cap with PJC Hilltop on it, and claimed he was PJ Crip. The parties also stipulated that Daniel Kidd, Jacoby Morales, and Leonard Hobson had robbed a Seaside merchant at gunpoint. Detective Clark testified that he has seen gang videos in which Kidd claimed Mob membership. He had also seen photographs of Kidd making Mob hand signs of an M. He further had heard reports from other officers concerning Kidds association with other Mob members. Detective Clark opined that both robberies were committed for the benefit of Seaside Crips.

The parties also stipulated that on March 26, 2002, five men from SeasideTrunell Butler, Chato Geronimo, Robert Daniels, Yohance Jones, and Paul Royrobbed a bank in San Jose and were later convicted of that crime. Daniels had a Seaside PJC tattoo on his arm. Sergeant Kimball opined that the crime was committed to benefit the Seaside Mob because at least four of the perpetrators were from Seaside and were part of the origination or the transformation between Project Crips and Mob [that] took place. They are all part of that. He also noted that they had gotten their vehicle from Sherray Pope, who was part of Project Crips, who [had] then split off and created his own gang called Bay Ocean Pimps, which maintained friendly ties to Project Crips.

The parties stipulated that Antonio Parker, Tobias Jones, and Michael Gruber possessed crack for sale and sold it on August 4, 1999, in the area near the Food Corner Market in Seaside and were convicted of that offense. Sergeant Kimball opined that the offense was committed for the benefit of Seaside Mob or Seaside Crips because Parker and Jones were known Seaside Crips, Jones associated with the Mob, they had a blue jacket in their car, they had been observed in Mob territory selling drugs, and they were caught doing so.

The parties also stipulated that Michael Dean Johnson had been convicted of transporting crack for sale. Sergeant Kimball opined that Johnson had committed the offense for the benefit of Seaside Mob or Seaside Crips because Johnson was part of Project Crips, part of the transformation when the Crips went from Project Crips to C-Town and the C-Side and Seaside Mob and . . . FAM. Moreover, Johnson wass still considered friendly with the Mob or claimed the Mob, even though he and defendant had sometimes fought each other. Sergeant Kimball also acknowledged that Johnson was associated with Bay Ocean Pimps, which claimed to be a set of the Bloods, the Crips traditional enemy.

Defendants Testimony about Gangs and his Background

Defendant testified that he joined the Seaside Mob in 1994 and was an active member along with Frank James, and Sheron C-Ron Tinsley. He denied that the Mob meant murder on Broadway. Although he agreed that the Mob was a criminal street gang, and gangs commit crimes, he could not say what crimes Mob members had committed, except for selling drugs, and even then, he could only speak for himself, admitting that he had sold crack cocaine. Before the joining the Mob, he had been a member of the Westside Village Park gang in Barstow.

Concerning the history of the Mob, defendant explained that initially there was only the Projects gang, and everyone in Seaside was a Crip. However, the Projects splintered after a drug dealer was killed. Two Crip gangs emerged: C-Town Mob, which later became Seaside Mob and the Seaside Family or FAM. The two gangs started going at it, and by the end of 1994 and 1995, you had murders, shootings everywhere, including the murder of his friend Michael Butler, who was only 15.

During that period, defendant was committed to the juvenile hall and then California Youth Authority (CYA), where he took victim awareness classes.[8] At CYA a woman named Charlotte helped broker a peace treaty between older Project Crip members and the Mob. Jared Ewing was at CYA with him, and they became friends.

In 2001, after his release from CYA, defendant went to Seaside, where he was friendly with Mob members and others, including Jared, who was from D-Block. His wide associations explained the pictures of him and Jared, in which they are together throwing up an M for Seaside Mob and C for Project Crip.

Defendant explained that Mob members traditionally habituate San Pablo Avenue and an area on Fremont called plaza. However, there are no exclusive Mob areas, although there are places where FAM people do not want to go because of the potential for violence. The Projects territory was around the Del Monte Manor projects, and Hilltop kicked it at Nations Market. Defendant personally spent time at Nations Market, D-Block, and Noche Buena Street, where many different people sell drugs.

Defendant testified that his tattooIts Nothing to a Bossis a line from a rap song and had no gang meaning. He said the phrase is inspirational and helped him keep in touch with his inner boss to overcome hardship. His tattoo of a disheveled bum throwing an M sign represented the hard circumstances he lived in, and the M represented the gang thats within my life, too.

Defendant testified that when he referred to himself as a main factor on the block to Detective Bertaina, he only meant that many people know him; he did not mean that he was a gang leader or boss. He said there are many main factors on the block.

Abusive Cross-Examination

Defendant contends that the prosecutor conducted abusive cross-examination that constituted prejudicial misconduct. He lists over 40 questions, each of which was objectionable, many on several grounds, including that the questions were irrelevant, compound, argumentative and speculative; and that they constituted improper impeachment, lacked foundation, and improperly asked for a legal conclusions. Defendant further contends that the trial courts failure to intercede to stop the abusive cross-examination and defense counsels failure to object to it denied him a fair trial and effective representation.

Background

At the close of the defense case, defense counsel informed the court that defendant had decided to testify against counsels advice. Defense counsel indicated that for ethical reasons, he could not participate by eliciting defendants direct testimony. The court advised defendant that defense counsel would not be asking him questions or referring to defendants testimony during his closing statement, and therefore defendant would have to present his own testimony. The court said he would be given free rein to testify except into areas that the Court feels just are inappropriate, and you will be cross-examined by the prosecutor who has prepared this case, as you can tell, very well. The court warned defendant that the jury might well think the procedure is odd. The court then asked whether defendants decision to testify without counsels participation was voluntary, and he said it was.

Thereafter, defendant testified, and the prosecutor cross-examined him. At one point, the jury asked, When [defendant] is on the stand being cross-examined, is [defense counsel] not allowed to speak? The court and counsel discussed the appropriate response, and all agreed that the jury should be advised that their question involved an issue that the jury is not to be concerned about.

During that discussion, defense counsel inquired about the procedure to be follwed after defendant finished testifying. He asked, When the officers are on the stand for rebuttal, am I still out of it? (Italics added.) The court said counsel had to decide for himself. The court continued, That comes back to the ethical aspects of this. Im not in a position to give you a legal opinion about that. . . . Counsel stated, From a technical standpoint, I think I would want to at least participate in that just to avoid . . . . The court, interrupted, saying it saw no reason why counsel could not participate concerning certain testimony. Counsel then continued, Im thinking more from the standpoint of objections to certain questions, especially those that are argumentative. The court saw no potential problem but again declined to provide legal advice. The court opined, You are not engaging in anything more than defending your client. As you were before [defendant] took the stand, you would be after [he] took the stand. Thats how this court sees it. Defense counsel agreed.

Prosecutorial Misconduct

Generally, if a defendant fails to object to prosecutorial misconduct and seek a curative admonition, he or she forfeits any appellate claim of misconduct. (See People v. Kennedy (2005) 36 Cal.4th 595, 629; People v. Lenart (2004) 32 Cal.4th 1107, 1129; e.g., People v. Sapp (2003) 31 Cal.4th 240, 278.) However, if the potential prejudice is so great that an admonition could not have cured it, then an objection would have served no purpose, and the failure to make one does not preclude an appellate claim of misconduct. (People v. Hill (1998) 17 Cal.4th 800, 820.) This futility exception, however, applies only in unusual circumstances. (Id. at p. 821; People v. Riel (2000) 22 Cal.4th 1153, 1212 (Riel).)

We have reviewed the allegedly improper questions and do not find any of them so patently inflammatory that the prejudice could not have been cured by an appropriate admonition. Moreover, most of the objections that defendant claims should have been raised involved matters of form and admissibility, which are easily dealt with by requiring that the questions be rephrased, barring inquiry into the subject matter, and/or directing jurors to disregard any answer that may have been elicited. Under the circumstances, we do not find that the circumstances here were so unusual that objections and would have been futile. Accordingly, defendant has forfeited his claim of prosecutorial midcoduct.

Judicial Abuse of Discretion

Defendant asserts that although he agreed to present his own direct testimony, he did not waive the assistance of counsel during cross-examination. He contends that the trial court improperly caused defense counsel to refrain from objecting during cross-examination, and doing so denied him the right to counsel. Defendant further claims that the court, having effectively silenced defense counsel, violated its duty under Evidence Code section 765, subdivision (a) to protect him from the abusive cross-examination.[9]

The record does not support defendants claim. The court did not expressly or implicitly bar defense counsel from objecting. Indeed, there was no discussion about whether or not counsel could object during defendants cross-examination. Rather, the record indicates that the court believed the decision concerning whether to participate was solely one defense counsel had to make based on an evaluation of his ethical obligations.

Defendant notes that counsel asked the court whether he would still be out of it during the examination of rebuttal witnesses and cites the courts response as evidence that the court caused defense counsel to believe he could not object. However, the exchange occurred after cross-examination had commenced and thus could not have prevented counsel from objecting before that time or induced a belief that counsel could not have done so. At most, the exchange suggests that from the start, counsel believed that his ethical obligation prevented him from participating in both direct and cross-examination. The exchange does not reasonably imply that the court caused, or was somehow responsible for, counsels belief. Accordingly, we reject defendants claim the court denied him the right to counsel during cross-examination.

We also reject defendants claim that the court abused its discretion.

Evidence Code section 765 authorizes a trial court to intercede during court proceedings, including the examination of a witness, on its own motion and without an objection from opposing counsel.[10] (E.g., People v. Bartley (1910) 12 Cal.App. 773, 777-778.) However, defendant cites no authority for the proposition that in the absence of an objection, the statute imposes an affirmative duty on the court to intercede whenever counsel poses questions that might be subject to a valid objection. Moreover, we reject such an interpretation because it is inconsistent with the general rule that claims that have not been properly preserved by objection, including evidentiary claims and claims of prosecutorial misconduct during cross-examination, are waived on appeal. (See Menefee v. County of Fresno (1985) 163 Cal.App.3d 1175, 1182.) This rule is rooted in the fundamental nature of our adversarial system: The parties must call the courts attention to issues they deem relevant.  In the hurry of the trial many things may be, and are, overlooked which could readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judges attention to any infringement of them.  [Citation.] (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29.)

Defendant reliance on People v. Alcala (1992) 4 Cal.4th 742 and Carlston v. Shenson (1941) 47 Cal.App.2d 52 is misplaced. Neither case suggests that the court has a sua sponte duty to intercede during cross-examination in the absence of an objection.

Certainly, a trial court must control trial proceedings, including the introduction and exclusion of evidence; maintain order and decorum; and safeguard both the rights of the defendant and the interests of the state so that fairness and justice prevail. (People v. Sturm (2006) 37 Cal.4th 1218, 1237.) Evidence Code section 765 and section 1044 authorize and require the court to do so. Thus, we do not mean to suggest that the court sits as an idle spectator during cross-examination. (See Gantner v. Gantner (1952) 39 Cal.2d 272, 278 [A trial judge is not a mere passive spectator at the trial]; e.g., People v. Ponce (1996) 44 Cal.App.4th 1380, 1388-1389; Smith v. Superior Court (1968) 68 Cal.2d 547, 559.) However, a court must be careful about interceding and not throw the weight of his judicial position into a case, either for or against the defendant. (People v. Mahoney (1927) 201 Cal. 618, 627.)

Here, the court was not idle. It interceded numerous times to bar questions by the prosecutor that it found to be argumentative. Under the circumstances, we do not find that the court abused its discretion by not interceding more often.

Ineffective Assistance of Counsel

To obtain reversal due to ineffective assistance, defendant must first show that defense counsels performance fell below an objective standard of reasonableness, i.e., that counsels performance did not meet the standard to be expected of a reasonably competent attorney . . . . (People v. Cunningham (2001) 25 Cal.4th 926, 1003; Strickland v. Washington (1984) 466 U.S. 668, 688.) Where the record on direct appeal does not show the reason for counsels challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. (People v. Anderson (2001) 25 Cal.4th 543, 569.) Second, defendants must show that there is a reasonable probability that defendant would have obtained a more favorable result absent counsels shortcomings. (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)

Here, counsel did not explain on the record why he raised no objections during cross-examination. The Attorney General claims that counsel had sound tactical reasons for not doing so. He argues that many of the challenged questions were within the scope of proper cross-examination on matters that defendant had raised during his direct testimony, and therefore defense counsel reasonably could have determined that an objection would have been overruled. The Attorney General further argues that counsel also may have declined to object also because he did not want to draw undue attention to defendants answers, make it appear that defendant had something to hide, or suggest that defendant was afraid or incapable of answering the various questions.

As a general proposition, competent counsel may often choose to forgo even a valid objection. [I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jurys apparent reaction to the proceedings. . . . . [Citation.] (Riel, supra, 22 Cal.4th at p. 1197, fn. omitted.) Consequently, [t]he decision of when to object is inherently tactical, and the failure to object will seldom establish incompetence. (People v. Scott (1997) 15 Cal.4th 1188, 1223.) Here, however, we find these generalizations inapposite.

Before defendant testified, defense counsel was very attentive during the examination of every other witness and regularly objected on grounds of hearsay, relevance, speculation, repetition, and argumentation. When defendant testified, counsel was mute, despite questions that could have been challenged as compound, argumentative, irrelevant, speculative, or lacking foundation.[11] Moreover, the Attorney General does not argue that every question was proper, and, as noted, the court blocked several argumentative questions. Finally, after defendant testified, defense counsel resumed making objections.

Under the circumstances, the record does not reasonably support a finding that counsel made a tactical decision to avoid any and all possible objections regardless of potential merit. Indeed, we consider such a tactical explanation to be implausible and unreasonable. Rather, we are satisfied that the reason counsel remained silent was the belief that his ethical obligation not to participate during defendants direct examination extended to cross-examination. Consequently, we shall evaluate the propriety of counsels decision not to participate during cross-examination. To do so, however, we shall first explain why defense counsel may properly decline to participate in a clients direct examination.

In People v. Guzman (1988) 45 Cal.3d 915 (Guzman), overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, footnote 13, the California Supreme Court implicitly approved letting a defendant testify with a free narrative when he or she takes the stand against the advice of counsel. There, the defendant claimed the procedure denied him effective assistance of counsel and forced him to waive his right to counsel and represent himself. (Guzman, supra, 45 Cal.4^th at pp. 942, 946.) The Supreme Court disagreed.

The court explained that a defendant has no constitutional right to give false testimony, and defense counsel has an ethical obligation as an officer of the court to refuse to suborn perjury. (Guzman, supra, 45 Cal.3d at p. 943, citing Nix v. Whiteside (1986) 475 U.S. 157.) Next, the court observed that the United States Supreme Court had not established what defense counsel should do when he or she believes his client is lying, or will do so on the stand, and the California Rules of Professional Conduct do not prohibit free narrative testimony without the assistance of counsel. Thus, the court analyzed whether that the use of that approach had denied the defendant effective assistance of counsel. (Guzman, supra, 45 Cal.3d at p. 944.)

The court found that counsels conduct closely followed that formerly prescribed by the American Bar Association (ABA) Project on Standards for Criminal Justice, Standards Relating to the Defense Function (Approved Draft 1971) standard 7.7. That standard recognize[d] that, although counsel need not elicit what he thinks will be perjured testimony, an accused has an absolute right to testify over counsels objection.[12] (Guzman, supra, 45 Cal.3d at p. 944, fn. omitted.) The court also noted that although the United States Supreme Court did not favor the free narrative approach, it had not condemned it as ineffective assistance. (Ibid.) The court further cited cases approving an attorneys  passive refusal to lend aid to what is believed to be perjury  which would include counsels accepting a free narrative approach. (Id. at pp. 945-946.) In short, the court opined that the approach represented defense counsels best effort to reconcile his duty to his client as defense counsel with his ethical obligation as an officer of the court. Accordingly, the court found no ineffective assistance. (Id. at p. 946.)

The court also concluded that defendant had not been forced to represent himself. Defendant was forced to represent himself only with respect to his own direct testimony. Counsel was available for and participated in all other stages of the trial. Therefore, it was not necessary that the trial courts warnings about the dangers of self-representation be as complete as would be necessary for a defendant who sought to conduct his entire defense. More important, the court expressly advised defendant of the dangers of the free narrative approach. Defendant understood the dangers and had time to consider them before he insisted on testifying. (Guzman, supra, 45 Cal.3d at p. 945.)

In People v. Gadson (1993) 19 Cal.App.4th 1700 (Guzman), the defendant testified using free narrative against counsels advice. (Id. at p. 1705-1708.) On appeal, he claimed ineffective assistance because counsel acceded to his request to testify. Moreover, he claimed he was denied the right to counsel because he had to represent himself during direct examination, even though he had not asked to do so. (Id. at p. 1709.)

The court found that defense counsel was required to allow the defendant to testify because the defendant had an absolute right to testify over the objection of counsel. The court further opined that defense counsels refusal to participate in the presentation of perjurious testimony from the accused does not deny the client effective assistance of counsel. (Gadson, supra, 19 Cal.App.4th at p. 1710.) Relying on the analysis in Guzman, the court concluded that the free narrative approach properly reconciled the competing interests which intersected in this situation. Defendant was able to testify on his own behalf; trial counsel refrained from actively participating in the presentation of false testimony; defendant was still afforded the assistance of trial counsel; and the integrity of the adversarial system of justice was not compromised. (Id. at p. 1711; see People v. Johnson (1998) 62 Cal.App.4th 608, 630 [following Guzman and Gadson]; People v. Jennings