Filed 3/27/18 P. v. Alvarez CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN CARLOS ALVAREZ,

Defendant and Appellant.

F072516

(Super. Ct. No. 14CMS7550)


OPINION

APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge.
Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Juan Carlos Alvarez stands convicted of multiple felony offenses including attempted murder, assault with a deadly weapon, and active participation in a criminal street gang. His claims on appeal allege ineffective assistance of counsel, evidentiary error, and sentencing error. He further contends that the trial court erred by denying a motion for the replacement of appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We reject all but one of his claims, and the exception concerns an inapplicable sentencing enhancement. The judgment will be modified to strike that enhancement. Subject to this modification, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Kings County District Attorney charged Alvarez with attempted premeditated murder (Pen. Code, §§ 187, 189, 664; count 1); assault with a deadly weapon (§ 245, subd. (a)(1); count 2); active participation in a criminal street gang (§ 186.22, subd. (a); count 3); misdemeanor resisting arrest (§ 148, subd. (a)(1); count 4); possession of a firearm by a convicted felon (§ 29800, subd. (a)(1); count 5); possession of a firearm by a former juvenile offender under the age of 30 (§ 29820, subd. (b); count 6); carrying a concealed firearm (§ 25400, subd. (a)(2); count 7); and felony possession of ammunition (§ 30305, subd. (a)(1); count 8). There were enhancement allegations of gang-related conduct (§ 186.22, subd. (b); counts 1 & 2) and personal infliction of great bodily injury (§ 12022.7, subd. (a); counts 1-3). It was further alleged that Alvarez had suffered a prior strike and serious felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)) and had served a prior prison term (§ 667.5, subd. (b)).
Alvarez pleaded no contest to counts 5-8, which pertained to events not at issue in this appeal. He also admitted as true the recidivist enhancement allegations. All remaining charges were tried before a jury in August 2015.
Prosecution Case
On November 23, 2014, the victim, John Doe, was attacked by two men outside of a community center in Corcoran. The incident occurred at approximately 8:00 p.m. as Doe was walking home from a nearby store. When he encountered the perpetrators, they asked if he was a gang member and also requested that he give them money toward the purchase of a “40,” i.e., beer/malt liquor. The victim ignored them and continued walking. He was struck from behind and then stabbed in the face, chest and torso. Afterwards, the assailants “took off running[,] yelling out ‘North Side’ [and] ‘Norte.’ ”
Although gravely injured, the victim was able to walk off in search of help. Someone called the police, and the officers who were dispatched to the community center found him shirtless and covered in blood. He had apparently removed some of his clothes and left them at the site of the attack. An investigating officer followed a trail of blood to the victim’s clothing, where he also found “a large Budweiser beer can” and a “40 ounce Hurricane beer bottle.” The bottle, which was located approximately 20 feet away from the clothes, was wrapped in a plastic bag and appeared to have been recently opened; “it still had an alcoholic beverage or liquid inside of it that was cool to the touch and still foaming and spilling out of the neck.” The items were collected for forensic testing.
The victim was hospitalized for treatment of a collapsed lung and multiple stab wounds. On or about November 25, 2014, while still in the intensive care unit, he discussed the incident with Officer Benjamin Beavers of the Corcoran Police Department. The victim recounted that he had purchased a can of Budweiser and was on his way home when he noticed two people in red hooded sweatshirts sitting on a bench drinking beer. During the subsequent attack, he observed that one of them was a light-skinned Hispanic male, approximately 21 years old, who was notably “small in stature” and had “pockmarks or craters on his face.”
Officer Beavers compiled a six-person photographic line-up of individuals who resembled the victim’s description of his attacker. The line-up included a picture of Alvarez. When shown the images, the victim pointed to Alvarez and said “That’s [him], he’s small, huh?” Acting on this information, a team of police officers soon made contact with Alvarez outside of his home. Alvarez attempted to flee and ignored Officer Beavers’s command to stop. He was apprehended following a chase. A search of his residence yielded “a red shirt, a textbook with some gang writing in it, … and two 40 ounce bottles [-] beer bottles of Hurricane brand beer empty in the trash can outside.”
At trial, the victim purported to recall that during the attack someone had said, “Juan, let’s go.” He made an in-court identification of Alvarez, testifying that he was “100 percent positive” it was Alvarez who had stabbed him. The victim also claimed to have seen Alvarez outside of the community center two nights prior to the subject incident, explaining that Alvarez had tried to engage him and his fiancée in conversation as they were walking through the area. The victim’s fiancée provided corroborating testimony and identified Alvarez in court as the person with whom they had spoken on the earlier occasion. Alvarez had allegedly told them that he was 21 years old, but the fiancée described him as looking like a “little boy.”
With regard to the crime scene evidence, investigators were able to pull latent prints off of the grocery bag that had been wrapped around the 40-ounce bottle of malt liquor. As explained by the criminalist who worked on the case, all humans have a unique set of hand prints. The prints on the bag matched those of Alvarez’s right palm, left palm, and left thumb.
Another Corcoran police officer, Refugio Aguirre, testified as the People’s gang expert. He opined that Alvarez had been an active member of a criminal street gang at the time of the incident and that the crimes were gang-related. A more detailed summary of the gang evidence is provided in our Discussion, post.
Defense Case
The defense rested without presenting evidence. The defense strategy, implemented through cross-examination, was to cast doubt on the reliability of the identifications of Alvarez that had been made by the victim and his fiancée. John Doe was shown to have originally told Officer Beavers that one of the perpetrators had said, “Jose, that’s enough.” Several days later, on December 1, 2014, Doe informed the officer that the name he had heard was Juan, not Jose, as he later testified at trial. It was further revealed that on or about November 27, 2014, after Alvarez had been arrested, Officer Beavers provided two pictures of Alvarez to the fiancée. Defense counsel theorized that the fiancée had discovered Alvarez’s name and relayed that information to the victim, thus prompting him to change his story with regard to the Jose/Juan discrepancy. The defense also insinuated that seeing the photographs had influenced the fiancée’s trial testimony. On cross-examination, she acknowledged that the person she and Doe had met two days prior to the attack had called himself “Downey” or “Donnie.”
Verdict and Sentencing
Alvarez was convicted as charged and all enhancement allegations were found to be true. The trial court sentenced him to 15 years to life for attempted murder, doubled to 30 years to life because of the prior strike and further enhanced by a consecutive three-year term for infliction of great bodily injury, a consecutive five-year term for the prior serious felony, and a consecutive one-year term for the prison prior. He also received consecutive 16-month terms for counts 5 and 8. A concurrent term was imposed for count 4, and punishment for counts 2, 3, 6, and 7 (including the enhancements) was stayed pursuant to section 654.
DISCUSSION
Ineffective Assistance of Counsel
Alvarez presents numerous theories of ineffective assistance of counsel. Most of his claims are based on a failure to object to evidence, and one alleges error in not eliciting certain testimony from a witness. For the reasons that follow, we find no grounds for reversal.
Standard of Review
To prevail on a claim of ineffective assistance of counsel, an appellant must show “(1) counsel’s performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficiencies resulted in prejudice.” (People v. Centeno (2014) 60 Cal.4th 659, 674.) The test for prejudice is whether there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 694.) An appellate court may forgo the analysis of counsel’s performance if it is easier to dispose of the claim for lack of prejudice. (Id. at p. 697; People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Failure to Move to Exclude Identification Evidence
Alvarez faults his trial attorney for not moving to exclude two pieces of evidence: (1) The victim’s testimony that he heard someone say, “Juan, let’s go” and (2) the fiancée’s in-court identification of Alvarez as the person she and the victim had encountered two nights prior to the attack. The claim stems from Officer Beavers having provided the fiancée with two photographs of Alvarez subsequent to his arrest, and is based on the principle that admission of unreliable identification evidence procured by overly suggestive police procedures is a violation of due process. (See People v. Alexander (2010) 49 Cal.4th 846, 901-902 (Alexander).) Such arguments must be raised at trial to avoid forfeiture on appeal (Evid. Code, § 353, subd. (a)), hence the allegation of ineffective assistance.
We do not reach the question of deficient performance, as the claim most certainly fails for lack of prejudice. The victim provided police with a detailed description of his attacker and picked Alvarez out of a photographic line-up well before Officer Beavers ever forwarded any pictures to the fiancée. The fiancée was not present at the time of the attack, and she only claimed to have seen the defendant on one prior occasion. At trial, the victim stated that he was “100 percent positive” of Alvarez’s involvement in the crime. His testimony on cross-examination addressed the insignificance of the name discrepancy: “Even if I said Jose, I’m still identifying him right here [in court]. I mean getting stabbed 25 times you probably don’t hear too good, but you hear some of it …. I just remember one of those names, Jose or Juan.” Moreover, Alvarez’s fingerprints were found at the crime scene. We thus conclude it is not reasonably probable that the outcome of the case would have been different but for the admission of the challenged evidence. (See In re Hardy (2007) 41 Cal.4th 977, 1021-1022 [prejudice from ineffective assistance of counsel is assessed by considering, among other factors, the strength of the evidence of guilt presented at trial].)
Failure to Move to Disqualify the Gang Expert
Alvarez next contends that his trial attorney should have moved to disqualify the People’s gang expert on grounds that he was biased and unqualified. The primary argument is that because the witness was employed by the Corcoran Police Department and had worked on the case, he “lacked the necessary objectivity to qualify as an expert.” Alvarez further submits that the witness “had no special expertise beyond that of a patrol officer and was thus not qualified to testify about street gangs in Corcoran.”
It is settled that police officers may testify as experts “based upon their ‘special knowledge, skill, experience, training [and] education’ (Evid. Code, § 720) related to gangs.” (People v. Williams (1997) 16 Cal.4th 153, 195 (Williams).) An officer’s personal observations and on-the-job experience, prior conversations with gang members, and training received at the police academy all provide an adequate foundation for expert testimony. (People v. Ochoa (2001) 26 Cal.4th 398, 438; People v. Olguin (1994) 31 Cal.App.4th 1355, 1370.) Here, Officer Aguirre had an estimated total of over 500 prior contacts with Norteno gang members during his 13-year career as a police officer, had received over 100 hours of formal training on gang culture and activities, had been a member of the Kings County Gang Task Force for over three years, and belonged to several professional organizations that focus on continuing education in his field of work (e.g., the California Gang Investigators Association). He was undoubtedly qualified to testify as a gang expert. (See, e.g., People v. Montes (2014) 58 Cal.4th 809, 861 [police officer with six years of experience, 20 to 30 hours of relevant training, and familiarity with the specific gang involved in the case deemed qualified to testify as an expert]; Williams, supra, 16 Cal.4th at p. 195 [qualified expert was “a member of a special Los Angeles Police Department gang unit, had been involved with gangs for seven years and had attended numerous professional seminars regarding gangs.”].)
As for the remaining argument, we are not aware of any legal authority for the disqualification of a gang expert based on lack of impartiality. A witness’s bias for or against a particular party speaks to their credibility, rather than their expert qualifications, and is a matter to be addressed via cross-examination (as opposed to a motion to strike or disqualify). (See People v. Shazier (2014) 60 Cal.4th 109, 136; see also, People v. Johnson (1993) 19 Cal.App.4th 778, 790 [observing that “there is only one neutral expert in the courtroom, [i.e.,] the trial judge”].) The cases upon which Alvarez purports to rely address a very specific and unrelated issue concerning experts who provide testimony on the general acceptance of new scientific techniques in a relevant scientific community. (People v. Kelly (1976) 17 Cal.3d 24, 38; People v. King (1968) 266 Cal.App.2d 437, 446-458.) Therefore, deficient performance has not been shown.
Failure to Elicit Testimony re: Injuries Sustained During Arrest
According to the probation report, Alvarez was injured while attempting to evade capture on the day of his arrest. The document states, in pertinent part: “The suspect gave chase on foot. [A Corcoran police officer] drove his patrol unit northbound to attempt to block the defendant’s exit and pressed the brakes, causing [the car] to skid and stopped the defendant. The defendant ran into the right side of the vehicle and as a result of the collision suffered abrasions to his left eye and the top left side of his head, a fractured left arm, and abrasions to his left ankle.”
Alvarez complains of defense counsel’s failure to elicit testimony regarding the above information during cross-examination of the arresting officer. We agree with the People that the evidence was not relevant to any issue in dispute. (Evid. Code, § 210.) Alvarez maintains he was entitled to refute the People’s argument that his flight reflected a consciousness of guilt. In his words: “The omitted evidence would show that appellant ran, not because he was guilty, but because he was afraid of the police, for good reason.” This is circular reasoning, and a competent defense attorney could have reasonably concluded that any such argument was destined to fail. (See People v. Price (1991) 1 Cal.4th 324, 387 [“Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile.”]; accord, People v. Anderson (2001) 25 Cal.4th 543, 587.) Furthermore, Alvarez makes no showing that the jury might have reached a different conclusion had it known of the injuries he sustained while resisting arrest.
Cumulative Error
Invoking the cumulative error doctrine (see People v. Hill (1998) 17 Cal.4th 800, 844-847), Alvarez contends that multiple instances of deficient performance collectively resulted in prejudice. We have already determined that most of his claims of deficient performance are meritless. Accordingly, and pursuant to the foregoing analyses regarding possible prejudice, we reject the claim of cumulative error.
Erroneous Admission of Hearsay
While this appeal was pending, the California Supreme Court issued its opinion in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which announced changes in the law governing the use of hearsay in expert testimony. Alvarez alleges Sanchez error, but his claim is presented as one of ineffective assistance of counsel, i.e., deficient performance in failing to object to hearsay that was proffered through expert testimony. There are two problems with that theory: (1) trial attorneys are not obligated to make futile objections and (2) successful ineffective assistance claims depend on a reasonable probability of a more favorable result but for an unprofessional error or omission. Had the necessary objections been made below, the trial court would have been obligated to overrule them in accordance with then-controlling case law. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
“Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.” (People v. Welch (1993) 5 Cal.4th 228, 237.) Since making hearsay objections would have been futile given the state of the law at the time of trial, it is appropriate to resolve the question of Sanchez error on the merits. (People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507-508.) As we explain, such error occurred but was harmless.
Additional Background
Officer Aguirre testified to the existence of a criminal street gang in Kings County called the Nortenos, which is allegedly comprised of approximately 2,200 to 2,500 members whose primary activities include felonious assaults, robbery, and attempted murder. The gang identifies with the color red and is essentially a collective of street-level “foot soldiers” for the Nuestra Familia prison gang. Nortenos are also known as “northerners,” and members will convey their affiliation with the gang by using words such as “norte,” e.g., “[I]f they’re from Corcoran they’ll say ‘Corcoran Norte’ ” or “Corco Norte” for short. Nortenos are enemies of a rival gang called the Surenos.
To establish the “pattern of criminal activity” required for the gang participation charge and related enhancements (§ 186.22, subd. (f); see further discussion, post), Officer Aguirre related information about two prior offenses committed by individuals who had no apparent connection to the current case. The first predicate offense involved Paqui Gonzalez, who pleaded no contest to a charge of assault with a deadly weapon and admitted the truth of a section 186.22 gang enhancement allegation. Officer Aguirre had participated in the underlying police investigation, which occurred in June 2013, and he testified that Gonzalez was an active Norteno gang member at the time of the offense.
The second predicate offense involved Jaimen Guzman, who was convicted of witness intimidation (§ 136.1) and active participation in a criminal street gang. Officer Aguirre testified to the surrounding events, alleging that Guzman was a Norteno gang member and that Alvarez had been present when the crime was committed: “Mr. Guzman was not in good standing with the Nortenos at the time, [so] he had to put in some work to get back into their good graces …. He was told to go and intimidate and dissuade this witness, this victim, and Mr. Alvarez was there to verify and validate that that threat was carried out.” The expert acquired knowledge of these facts during his preparation of a “STEP [Street Terrorism Enforcement and Prevention]-Act” report for Guzman’s case in 2014. According to his testimony, the process entailed compiling information from sources that included “[police] reports [and] field interview cards.”
Alvarez’s Sanchez claim focuses on Officer Aguirre’s testimony regarding both the Guzman case and Alvarez’s alleged involvement in other gang activity. Apparently relying on the contents of an unspecified “report,” which was not in evidence, the expert alleged the existence of a court order from May 2009 that had required Alvarez to register as a gang member. It was further alleged that Alvarez had admitted to being an active Norteno during a conversation with his probation officer in November 2009, and that a parole officer subsequently told Officer Aguirre that Alvarez had been “validated” as a Norteno gang member by the California Department of Corrections. The expert also accused Alvarez of participating in a January 2010 incident involving gang-related vandalism and assault, and of being arrested in August 2014 for unlawful possession of a firearm.
In addition to conducting external research, Officer Aguirre sat through the prosecution’s case in-chief and relied on the current trial evidence. For example, he opined that items seized during the search of Alvarez’s residence were indicative of his gang membership. Witness testimony and photographic exhibits confirmed that those items consisted of red clothing and a textbook in which someone had written “Corco Norte” and various derisive remarks about Surenos. The expert was familiar with the area where John Doe was attacked and testified that the “Nortenos have taken that property and have made it their territory, they’ve marked it, they’ve claimed it ….” He had also seen a tattoo on Alvarez’s body of the letters “NS,” which he believed stood for “northern structure,” referring to the relationship between Nortenos and the Nuestra Familia prison gang.
As mentioned, Officer Aguirre opined that Alvarez was an active member of the Nortenos at the time of the charged offenses. Responding to hypothetical questions intended to mirror the facts of the case, he offered additional opinions to support the People’s theory that Alvarez committed those offenses with another gang member for the purpose of promoting and/or benefitting the Nortenos. Such promotion or benefit would have been achieved by asserting control over the gang’s supposed turf or territory, and intimidating/instilling fear in both the general public and members of rival gangs.
Law and Analysis
Section 186.22 proscribes the substantive offense of active participation in a criminal street gang, as set forth in subdivision (a), and includes enhancement provisions, which are found in subdivision (b). (People v. Elizalde (2015) 61 Cal.4th 523, 538-539.) The elements of the substantive offense are: “First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang’s members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang.” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) The enhancement provisions apply when an offense is 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).)
A criminal street gang is defined as “any ongoing organization, association, or group of three or more persons … whose members individually or collectively engage in or have engaged in, a pattern of criminal gang activity.” (§ 186.22, subd. (f).) “A gang engages in a ‘pattern of criminal gang activity’ when its members participate in ‘two or more’ statutorily enumerated criminal offenses (the so-called ‘predicate offenses’) that are committed within a certain time frame and ‘on separate occasions, or by two or more persons.’ ” (People v. Zermeno (1999) 21 Cal.4th 927, 930.) The list of qualifying offenses is found in section 186.22, subdivision (e)(1)-(33).
“Expert testimony is admissible to establish the existence, composition, culture, habits, and activities of street gangs; a defendant’s membership in a gang; gang rivalries; the ‘motivation for a particular crime, generally retaliation or intimidation’; and ‘whether and how a crime was committed to benefit or promote a gang.’ ” (People v. Hill (2011) 191 Cal.App.4th 1104, 1120.) Until recently, experts could testify about out-of-court statements upon which they had relied in forming their opinions even if the statements were otherwise inadmissible under the hearsay rule. Case law held that such evidence was not offered for its truth, but only to identify the foundational basis for the expert’s testimony. (E.g., People v. Gardeley (1996) 14 Cal.4th 605, 618-620.) Pursuant to this rationale, appellate courts deemed the use of out-of-court statements in an expert’s “basis testimony” to be compliant with the hearsay rule and the requirements of Crawford v. Washington (2004) 541 U.S. 36 (Crawford). (People v. Valadez (2013) 220 Cal.App.4th 16, 30.)
In Sanchez, supra, the California Supreme Court determined that a trier of fact must necessarily consider expert basis testimony for its truth in order to evaluate the expert’s opinion, which in turn implicates the hearsay rule and the constitutional right of confrontation. (63 Cal.4th at p. 684.) “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay.... If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing.” (Id. at p. 686, fn. omitted.)
The upshot of the Sanchez decision is that a gang expert cannot testify to case-specific facts asserted in hearsay statements unless such facts are within the expert’s personal knowledge or independently supported by admissible evidence. Factual assertions are “case-specific” if they relate “to the particular events and participants alleged to have been involved in the case being tried.” (Sanchez, supra, 63 Cal.4th at 676.) Federal constitutional issues arise if case-specific facts are presented in the form of testimonial hearsay. (Id. at pp. 680-681, 685.) “Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony.” (Id. at p. 689.) Information contained in a police report is generally construed as testimonial hearsay because police reports “relate hearsay information gathered during an official investigation of a completed crime.” (Id. at p. 694.)
The erroneous admission of testimonial hearsay is reviewed for prejudice under the standard articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman). (See Sanchez, supra, 63 Cal.4th at pp. 670-671, 698.) The People must show, beyond a reasonable doubt, that the error did not contribute to the jury’s verdict. (Id. at p. 698.) The erroneous admission of non-testimonial hearsay is a state law error, which is assessed for prejudice under People v. Watson (1956) 46 Cal.2d 818. (Crawford, supra, 541 U.S. at p. 68; People v. Duarte (2000) 24 Cal.4th 603, 618-619.)
Officer Aguirre clearly related information to the jury that he had learned from, and believed to be true based upon, his review of police reports, field identification cards, and other hearsay sources. His testimony regarding the predicate offense involving Alvarez and Jaimen Guzman, as well as Alvarez’s purported admissions of gang membership and prior gang-related contacts with police, was inadmissible under Sanchez. A gang expert’s testimony about predicate offenses is generally viewed as being case-specific. (People v. Huynh (2018) 19 Cal.App.5th 680, 695.) As such, the inadmissible details about the Guzman case would be grounds for reversal if not for the People’s reliance on the currently charged offenses to further establish the “pattern of criminal activity” required under the gang statute. (§ 186.22, subds. (e), (f); see People v. Tran (2011) 51 Cal.4th 1040, 1046 [recognizing that “a predicate offense may be established by evidence of the charged offense”].) The jury below was instructed that “[i]f you find the defendant guilty of a crime in this case, you may consider that crime in deciding … whether a pattern of criminal gang activity has been proved.” The instructions further advised that the qualifying offenses included assault with a deadly weapon, witness intimidation, and attempted murder.
We note that Alvarez’s trial counsel conceded the gang issues during closing argument and asked the jury to focus on the question of identity, which weakens any argument of prejudice based on the erroneous admission of hearsay. Setting aside that concession and the testimony excludable under Sanchez, we are left to consider the following evidence. The victim was accosted by two men while walking through an area that was considered to be Norteno turf or territory. One or both of those individuals wore red clothing, and they asked the victim if he was a gang member. After attacking him for no apparent reason other than his failure to answer their questions, the assailants yelled out, “Norte” and “North Side.” The victim identified as one of his attackers a man who had tattoos of the letters “N” and “S” on his legs, which a qualified expert opined was indicative of a Norteno affiliation. A search of the suspect’s home yielded red clothing and a book with “gang writing” inside of it, which included the words “Corco Norte.” Given these circumstances, no reasonable juror could have concluded that this was anything but a gang crime. There is no other plausible explanation for the perpetrators’ behavior, especially since they questioned the victim about having gang connections and then yelled out Norteno gang jargon while fleeing the scene. Furthermore, the evidence of Alvarez’s involvement in the attack was overwhelming. It is thus apparent, beyond any reasonable doubt, that the verdicts would have been the same with or without the jury’s exposure to Officer Aguirre’s hearsay testimony.
Marsden Claim
Background
Alvarez’s Marsden motion was heard approximately three weeks before trial. When asked to state the grounds for relief, he responded as follows: “Um, well, multiple times I’ve spoken to [defense counsel] and the evidence he has brought up to me he says it’s new, and my previous attorneys have already brought it up. And he said there’s damaging evidence against me, which I know, and I know the facts, because I know what’s going on, and everything he says is just opposite of what – what I have to say. So we’re not – we’re not seeing eye to eye and I just feel like I’m not going to be properly defended because I’m going to trial.”
The trial court had difficulty understanding Alvarez’s concerns and repeatedly sought clarification of the problem. He replied with inarticulate statements that seemed to imply counsel was unfamiliar with the facts of his case, e.g., “Like – like, um, he – he says I have other co-defendants, [but] I have no co-defendants, [Your Honor].” The judge said, “Well, actually there are other co-participants in this case, correct?” Defense counsel interjected: “The co-defendant was convicted, and I explained to [Alvarez] that the alleged victim in the case did in fact show up and testify and the co-defendant was convicted, [so] he’s not a co-defendant anymore because he’s been convicted.” Alvarez later conceded that in previous meetings his attorney “seemed like he understood [the] case properly,” but alleged that he “couldn’t communicate with him because he would just shut me down and tell me ‘no, that’s not what’s going on.’ ” He added, “I would try to explain to him and he’s not hearing me out.”
Defense counsel offered his point of view: “I don’t stop him from explaining[.] [H]is story was that he was – you know, he didn’t do it, and I’ve explained to him [that] they found his fingerprints at the scene, there is blood on his clothing that was taken from his house. His mother said he was with Peter Vasquez that night, who was the co-defendant that was convicted. [Alvarez] tried to say that if there’s blood on his clothing that’s what he was wearing when he was caught because he was hit by a police car, and I explained to him that’s not the clothing they’re talking about, they’re talking about the clothing that they took from his house, which I’m concerned is going to have blood of the victim on it. We don’t have the results yet and I explained that to him, but I thought he needed to know that – what blood, what clothing they’re talking about. The fingerprints found at the scene on a bag or a particular brand of beer or malt liquor, which they also found at his house, he indicated that’s the kind he drinks. Two or three witnesses that [identified] him and - ”
The trial court interrupted defense counsel, indicating that his summary of the evidence was consistent with its recollection of information disclosed in earlier proceedings over which it had presided. The motion was denied on grounds that Alvarez had “not given the Court sufficient reason to replace [his] attorney.”
Law and Analysis
If a defendant believes he or she is receiving ineffective assistance from appointed counsel, the defendant may move to have counsel discharged and a new attorney appointed. (Marsden, supra, 2 Cal.3d at pp. 123, 125.) “Under Marsden and its progeny, a ‘ “defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” ’ ” (People v. Maciel (2013) 57 Cal.4th 482, 513.) “A trial court should grant a defendant’s Marsden motion only when the defendant has made ‘a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation.’ ” (People v. Hines (1997) 15 Cal.4th 997, 1025 (Hines), italics added.)
The denial of a Marsden motion is reviewed for abuse of discretion. (People v. Streeter (2012) 54 Cal.4th 205, 230.) In determining whether such an abuse occurred, we are mindful that Marsden hearings are informal proceedings that focus on whether the stated grievances have “sufficient substance.” (Hines, supra, 15 Cal.4th at p. 1025.) A defendant’s “vague, unsubstantiated allegations that he and his [counsel] had trouble communicating” do not suffice. (Id. at p. 1026.) The trial court must also make credibility determinations, and it may find a defendant’s complaint unfounded if it credits counsel’s explanations. (People v. Taylor (2010) 48 Cal.4th 574, 600.)
Alvarez claims defense counsel’s allegedly deficient performance at trial shows that his pretrial Marsden motion should have been granted. Those arguments are misguided. A Marsden inquiry “is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what has happened in the past.” (People v. Smith (1993) 6 Cal.4th 684, 695.)
Alvarez further contends that his claim is supported by People v. Munoz (1974) 41 Cal.App.3d 62, but that case is readily distinguishable. There, our district found procedural error under circumstances where a defendant’s complaint of negligent performance by appointed counsel was basically ignored. (Id. at p. 64-65.) “[D]espite the attorney’s silence in the face of such a serious accusation, the trial judge made no inquiry of any kind.” (Id. at p. 66.) The omission “was tantamount to a refusal on the part of the court to adjudicate a fundamental issue; the court’s failure to make the inquiry also resulted in a silent record, making intelligent appellate review impossible.” (Ibid.)
Here, the defendant was afforded a full opportunity to explain the basis for his motion, but he offered little more than vague allegations of a communication breakdown between him and defense counsel. His attorney pointedly refuted the contentions. The required showing of abuse has simply not been made. (Hines, supra, 15 Cal.4th at p. 1026; see People v. Silva (1988) 45 Cal.3d 604, 622 [superficial complaints about “the way in which one relates with his attorney [do] not sufficiently establish incompetence. Defendant was required to show more.”].)
Sentencing Issues
Dual Use of a Prior Conviction
The parties agree that the trial court made improper dual use of a prior conviction to impose a five-year prior serious felony enhancement (§ 667, subd. (a)) and a one-year prior prison term enhancement (§ 667.5, subd. (b)). The issue is governed by People v. Jones (1993) 5 Cal.4th 1142 (Jones), which holds that “when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply.” (Id. at p. 1150.) In the present matter, both enhancements were based on an October 2010 conviction of felonious assault in violation of section 245, subdivision (a)(1). Therefore, we accept the People’s concession of error and modify the judgment by striking the lesser enhancement, i.e., the one-year prison prior. (Jones, supra, 5 Cal.4th at pp. 1150, 1153.)
Cruel and Unusual Punishment/Equal Protection Claim
Section 3051 provides, in pertinent part, that a defendant convicted of a felony committed before his or her 25th birthday, when the sentence for the offense is a life term of less than 25 years to life, will become eligible for parole during their 20th year of incarceration. (§ 3051, subd. (b)(2).) If the sentence is a life term of 25 years to life, the defendant will become eligible for parole during their 25th year of incarceration. (Id., subd. (b)(3)). The legislative intent behind section 3051 “ ‘is to establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed [in their youth] the opportunity to obtain release when he or she has shown that he or she has been rehabilitated and gained maturity….’ ” (In re Trejo (2017) 10 Cal.App.5th 972, 980.)
Alvarez was 21 years old when he committed the underlying offenses. His aggregate prison sentence, which includes a life term, requires a minimum incarceration period of over 30 years. Section 3051 does not apply to defendants, like him, who have been sentenced under California’s Three Strikes law. (§ 3051, subd. (h).) Alvarez argues that his ineligibility for early parole under section 3051 is a violation of the constitutional right to equal protection of laws and also renders his sentence a form of cruel and unusual punishment. No such contentions were made at the time of sentencing, and the issue is being raised for the first time on appeal. Anticipating a forfeiture problem, Alvarez submits that “matters of constitutional dimension are never waived,” and he “has not forfeited appellate review because ‘the issue raised asserts a violation of substantial constitutional rights.’ ”
“Penal Code section 1259 provides: ‘Upon an appeal taken by the defendant, the appellate court may … review any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant.’ (Italics added.) Thus, as a general rule, ‘the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal.” [Citations.] This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights.” (In re Seaton (2004) 34 Cal.4th 193, 197-198.) The forfeiture doctrine specifically “applies in the context of sentencing ….” (In re Sheena K. (2007) 40 Cal.4th 875, 881.) For instance, “[a] defendant’s failure to contemporaneously object that his sentence constitutes cruel and unusual punishment forfeits the claim on appellate review.” (People v. Speight (2014) 227 Cal.App.4th 1229, 1247.) Case law also provides many examples of appellate courts finding equal protection claims to be untimely and thus forfeited. (See, e.g., Alexander, supra, 49 Cal.4th at p. 880, fn. 14; People v. Rogers (2006) 39 Cal.4th 826, 854; People v. Burgener (2003) 29 Cal.4th 833, 860, fn. 3; People v. Hall (2002) 101 Cal.App.4th 1009, 1024.) Accordingly, we deem Alvarez’s claim to be forfeited and decline to exercise discretion to consider it.
Incidentally, as noted in the parties’ briefs, the gravamen of Alvarez’s argument was considered and rejected in People v. Bell (2016) 3 Cal.App.5th 865, 876-880 (Bell). The Bell opinion holds that section 3051 does not violate equal protection principles because “the threat of recidivism gives rise to a rational basis for the Legislature’s decision to exclude one strike offenders ….” (Id. at p. 879.) Although the defendant in that case was a juvenile sex offender sentenced under section 667.61, the appellate court further observed that “three strikes offenders [are] also excluded from section 3051. Because the three strikes law is geared toward repeat offenders, we believe the statutory scheme suggests that the Legislature had recidivism in mind when it [drafted section 3051, subdivision (h)],” i.e., the ineligibility provision of which Alvarez complains. (Bell, supra, 3 Cal.App.5th at p. 879.) Were we inclined to consider Alvarez’s claim on the merits, we would follow Bell and reject it accordingly.
DISPOSITION
The judgment is modified to strike the one-year prior prison term enhancement that was imposed pursuant to section 667.5, subdivision (b). As so modified, and in all other respects, the judgment is affirmed. The trial court shall prepare an amended
 
abstract of judgment reflecting the modification and send a certified copy to the Department of Corrections and Rehabilitation.



HILL, P.J.
WE CONCUR:



LEVY, J.



FRANSON, J.