Filed 11/26/13 P. v. Torres CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047492

         v.                                                            (Super. Ct. No. 10CF0604)

FERNANDO NANDA TORRES,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, William
R. Froeberg, Judge. Affirmed as modified.
                   Kurt David Hermansen, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Senior Assistant Attorney General, Eric A. Swenson,
Elizabeth M. Carino, and Paige Hazard, Deputy Attorneys General, for Plaintiff and
Respondent.
               Fernando Nanda Torres was convicted by a jury of first degree murder
(Penal Code, § 187 (count 1))1 and active participation in a criminal street gang (§
186.22, subd. (a) (count 2)). The jury also found true sentencing enhancements for
murder committed for the benefit of, at the direction of, and in association with a criminal
street gang (§ 186.22, subd. (b)(1)), and personal discharge of a firearm causing death.
               The trial court sentenced Torres to a total term of 50 years to life,
consisting of an indeterminate term of 25 years to life for first degree murder, plus a
consecutive 25 years to life for discharging a firearm during the commission of the crime.
Pursuant to section 186.22, subdivision (b)(1) and (5), Torres’s minimum parole
eligibility is 15 years. The trial court stayed sentence on count 2 pursuant to section 654.
               Torres challenges the sufficiency of the evidence to support the conviction
on count 2 for active participation in a criminal street gang (§ 186.22, subd. (a)) on
constitutional grounds and under People v. Rodriguez (2012) 55 Cal.4th 1125
(Rodriguez). He further contends the trial court erred by instructing the jury that it could
find him guilty of active participation in a criminal street gang “whether or not he acted
in concert with another gang member.” (Boldface omitted.) The Attorney General
conceded Rodriguez bars a conviction on this count because Torres acted alone and that
concession is well-taken. Because count 2 is reversed on these grounds, we need not
address Torres’s related claim of instructional error.
               Torres also claims his trial attorney rendered ineffective assistance of
counsel by failing to object on Evidence Code section 352 grounds to “unduly prejudicial
gang evidence.” We conclude counsel provided competent representation
notwithstanding his failure to object on Evidence Code section 352 grounds to parts of
the gang expert’s testimony. The judgment is affirmed as modified.



       1   All further statutory references are to the Penal Code.


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                                          FACTS


              In March 2010, 50 to 80 people attended a party at a vacant house in Santa
Ana. Michael Barragon-Ramirez (Michael) attended the party with several friends and
realtives. Torres, a member of the F-Troop criminal street gang, went to the party with
fellow F-Troop members Patrick Palomino and Miguel Contreras.
              During the party, Torres and Michael got into a fistfight. When Michael’s
brother tried to intervene, Torres drew a gun. Michael and his group left the party,
walking through the front yard and into the street. Torres followed them into the front
yard. Once there, he drew his gun and shot Michael in the head. Michael died at the
hospital a few days later. Witnesses heard Torres yell “F-Troop” during the fist fight and
right before the shooting. Other witnesses said they begged Torres to put away the gun,
but he refused.
              At trial, Santa Ana Police Detective Matthew McLeod testified as the
prosecution’s gang expert. An eight-year veteran of the Santa Ana Police Department’s
gang unit, McLeod detailed his experiences investigating gang-related crimes,
particularly crimes committed by members of traditional Hispanic street gangs like F-
Troop, the methods he used to obtain information about those gangs, and the culture and
behavior of those members. According to McLeod, large part of intelligence gathering
occurs by talking to gang members, their families and friends, and other individuals who
live in the area. However, McLeod stated most community members are reluctant to
speak to him because they fear reprisals from the gang.
              McLeod also testified about the origins of the F-Troop gang, the area of
Santa Ana the gang claims as its turf, and the size of the gang at the time the crime
occurred. At the time of the shooting, he estimated F-Troop had around 150 to 200 active
members, the gang’s primary activities were possession of firearms and assaults with
firearms, and some of these assaults proved to be fatal. To establish a pattern of criminal

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gang activity, McLeod testified about two specific crimes committed by F-Troop gang
members, a 2008 conviction for carrying a loaded firearm, and a 2009 conviction for
firearm possession.
              In McLeod’s opinion, Torres was an active participant in F-Troop, and the
murder was committed for the benefit of F-Troop. McLeod based his opinion on
Torres’s criminal history, a review of field interview cards, crime reports, and the
statements of witnesses at the crime scene. In particular, McLeod found the fact that
Torres yelled out F-Troop before the shooting indicative of gang-related conduct. He
stated Torres engaged in a classic method of garnering respect for the gang and himself.


                                       DISCUSSION


Sufficiency of the Evidence and Section 186.22, subdivision (a)
              The substantive offense defined in section 186.22, subdivision (a) has three
elements: (1) participation in a street gang that is more than nominal or passive; (2)
knowledge the gang’s members engage in, or have engaged in, a pattern of criminal gang
activity; and (3) willfully promoting, furthering, or assisting in any felonious criminal
conduct by members of that gang. (People v. Lamas (2007) 42 Cal.4th 516, 523.)
              Torres challenges the sufficiency of the evidence to prove the third element
of the offense. He claims there is no evidence he willfully promoted, furthered, or
assisted the felonious criminal conduct of any other F-Troop member. The Attorney
General concedes the issue and we agree with this concession.
              The California Supreme Court recently held evidence of a lone gang
member committing a felony does not prove the third element of the offense. (Rodriguez,
supra, 55 Cal.4th 1125.) As the court explained, the word “members” is a plural noun.
(Id. at p. 1132.) “Therefore, to satisfy the third element, a defendant must willfully
advance, encourage, contribute to, or help members of his gang commit felonious

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criminal conduct. The plain meaning of section 186.22[, subdivision](a) requires that
felonious criminal conduct be committed by at least two gang members, one of whom
can include the defendant if he is a gang member.” (Ibid.) The felonious criminal
conduct referred to in the statute must be committed “‘by members of that gang.’” (Id. at
p. 1131.)
              Here, there is no evidence Torres assisted any other F-Troop gang member
in the commission of a felony. To the contrary, the evidence demonstrates Torres acted
alone when he shot Michael. As indicated in Rodriguez, “section 186.22[, subdivision]
(a) reflects the Legislature’s carefully structured endeavor to punish active participants
for commission of criminal acts done collectively with gang members.” (Rodriguez,
supra, 55 Cal.4th at p. 1139.) While there is sufficient evidence Torres killed Michael
with the specific intent to benefit F-Troop, and thus support the gang enhancement
attached to the murder, this is not sufficient to prove the substantive gang crime.2
Consequently, the conviction on count 2 must be reversed.


Instructional Error
              Torres also challenges the jury instruction given for count 2. (CALCRIM
No. 1400) As given by the court, the instruction told the jury he could be convicted of
active participation in a criminal street gang based on evidence he promoted felonious
criminal conduct by members of his gang “by directly and actively” committing murder.
(Boldface omitted.) Torres claims the court should have instructed the jury that section
186.22, subdivision (a) “requires proof that ‘felonious criminal conduct [was] committed
by at least two gang members . . . .’” In light of our disposition on count 2, we need not

       2  Section 186.22, subdivision (b)(1) contains two prongs: proof that a felony was
committed (1) “for the benefit of, at the direction of, or in association with any criminal
street gang,” and (2) “with the specific intent to promote, further, or assist in any criminal
conduct by gang members[.]” (§ 186.22, subd. (b)(1); see also People v. Albillar (2010)
51 Cal.4th 47, 59.)

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address Torres’s claim of instructional error by the trial court. Nor do we pass judgment
on his related claim CALCRIM No. 1400 should be amended.


Ineffective Assistance of Counsel
              As part of the foundation for his expert opinion, McLeod testified, “I would
number total gang members [in Santa Ana] I’d say definitely exceeding five, 600 at least,
possibly up to 800.” He also testified the F-Troop gang had “no less than a hundred fifty,
200. Once again, with the numbers growing every day, I don’t think I could give you an
upper umbrella.” McLeod also stated that one basis for his expert opinions was his
discussions with family members and gang-crime victims, which included “how they’ve
been threatened, their knowledge of the patterns of criminal street gang members, the
territories they control. And this information comes from individuals as young as six,
seven years old to, you know, individuals probably in their sixties or seventies.” McLeod
also estimated he had talked to hundreds, if not thousands of witnesses to gang crimes.
              Torres asserts the only reason for these three particular bits of McLeod’s
testimony was to “scare the jurors.” Specifically, he argues a reasonably competent
attorney would have objected to McLeod’s testimony about the number of gang members
in Santa Ana, and the number and ages of witnesses and victims of gang crimes he has
interviewed.3 We disagree.
              “To establish ineffective assistance, defendant bears the burden of showing,
first, that counsel’s performance was deficient, falling below an objective standard of
reasonableness under prevailing professional norms. Second, a defendant must establish
that, absent counsel’s error, it is reasonably probable that the verdict would have been


       3 Torres expressly limits his ineffective assistance of counsel claim to the gang
conviction on count 2 and the true finding on the gang enhancement on count 1 because,
as he admits, overwhelming evidence supports the murder conviction on count 1 and the
gun enhancement.

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more favorable to him. [Citations.]” (People v. Hawkins (1995) 10 Cal.4th 920, 940,
overruled on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110 and People v.
Blakeley (2000) 23 Cal.4th 82, 89.) Torres has not met his burden of showing either
prong of his ineffective assistance of counsel claim.
              “It is well settled that a trier of fact may rely on expert testimony about
gang culture and habits to reach a finding on a gang allegation. [Citation.]” (In re Frank
S. (2006) 141 Cal.App.4th 1192, 1196.) Irrespective of our disposition of count 2,
McLeod’s expert testimony was relevant to the gang enhancement attached to count 1.
Rodriguez stated the substantive offense of active participation in a criminal street gang
and the gang sentencing enhancement “strike at different things.” (Rodriguez, supra, 55
Cal.4th at p. 1138.) In particular, section 186.22, subdivision (b)(1) punishes felonies
committed with the specific intent to benefit the gang, while section 186.22, subdivision
(a) punishes action in concert between gang members regardless of whether the felony
was gang related. (Ibid.) The gang evidence here provided a necessary foundation for
McLeod’s expert opinion defendant intended to benefit F-Troop by shooting Michael.
(See People v. Gardeley (1996) 14 Cal.4th 605, 618.) In short, any objection here to
foundational information was not likely to prevail and wholly unnecessary. (See People
v. Montoya (2007) 149 Cal.App.4th 1139, 1147-1148 [“‘Competent counsel is not
required to make all conceivable motions or to leave an exhaustive paper trail for the sake
of the record.’”].)
              Moreover, while Evidence Code section 352 gives the trial court discretion
to determine if otherwise relevant evidence should be excluded because its probative
value is substantially outweighed by its prejudicial effect, the evidence Torres’s claims
prejudiced his case is not the type which would evoke a unique, emotional bias against
him without regard to its relevance on material issues. (People v. Kipp (2001) 26
Cal.4th 1100, 1121.) To the contrary, McLeod’s observations on the size of gang
population in Santa Ana, the number of members in the F-Troop gang, and the number of

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witnesses and victims of gang crimes he has talked in forming his opinion were probative
to the basis for his expert opinion and necessary to the jury’s understanding of the
pertinent issues. Thus, trial counsel adequately represented Torres at trial.
              However, even assuming deficient performance, Torres has not
demonstrated there is a reasonable probability of a more favorable result absent the
objectionable portions of McLeod’s expert testimony. As noted, the gang enhancement
required the prosecution to prove Torres committed murder with the specific intent to
promote his gang. Here, Torres and another F-Troop gang member got into a fist fight
with Michael. When Torres escalated the violence by drawing a gun he yelled, “F-
Troop.” Michael attempted to withdraw from the conflict by leaving the scene, but
Torres followed him, yelled “F-Troop” again, and then fired the lethal shot. McLeod
testified to the importance of respect to gangs and their individual members, and that the
more violent crimes garner more respect. In light of the overwhelming evidence
supporting the jury’s true finding on the gang enhancement, McLeod’s observations
about the total number of gang members in Santa Ana, the approximate number of F-
Troop gang members in Santa Ana, and the numbers and types of people he uses for
intelligence gathering, did not prejudice Torres’s case.




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                                      DISPOSITION


              The conviction on count 2, active participation in a criminal street gang, is
reversed. The clerk of the superior court is directed to correct the abstract of judgment
and forward a copy to the Department of Corrections and Rehabilitation. As modified,
the judgment is affirmed.



                                                 THOMPSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



MOORE, J.




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