Filed 8/2/13 In re Eduardo A. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re EDUARDO A., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,                                                                                F066346

         Plaintiff and Respondent,                                            (Super. Ct. No. JJD065539)

                   v.
                                                                                         OPINION
EDUARDO A.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Juliet L.
Boccone, Judge.
         Rex A. Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari
Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Gomes, Acting P.J., Kane, J. and Detjen, J.
       An amended juvenile delinquency petition charged minor, Eduardo A., with
carrying a concealed dirk or dagger (count 1; Pen. Code, § 213101), discharging a firearm
at an inhabited dwelling (count 2; § 246), discharging a firearm at an occupied vehicle
(count 3; § 246) and assault with a firearm (counts 4-7; § 245, subd. (a)(2)). Counts 2 to
7 alleged the offenses were committed for the benefit of a criminal street gang (§ 186.22,
subds. (b)(1)(B), (b)(4)(B)) and counts 4 to 7 alleged minor personally used a firearm in
the commission of the offenses (§ 12022.5, subd. (a)). The court later found counts 1, 4,
5, 6 and the special allegations to be true. The court found counts 2, 3 and 7 not proved
and dismissed the petition as to those counts. At the disposition hearing, the court found
minor not suitable for deferred entry of judgment, determined all of the offenses were
felonies, calculated a maximum period of confinement of 25 years 4 months, declared
minor a ward, removed him from his parents‟ custody, and placed him on probation
under the supervision of the probation officer for out of home placement in the Youth
Correctional Center Unit for 240 to 365 days. Minor filed a timely notice of appeal.
       The sole issue raised on appeal is minor‟s contention that the section 186.22 gang
enhancement should be reversed because inadmissible expert testimony on minor‟s intent
was received and minor was denied effective assistance of counsel because trial counsel
did not object to or seek to exclude that expert testimony. We conclude that if there was
any error in admitting the expert testimony, it was harmless and therefore affirm.
       Penal Code section 186.22, subd. (b)(1) provides, in relevant part, as follows:

       “[a]ny person who is convicted of a felony committed for the benefit of, at
       the direction of, or in association with any criminal street gang, with the
       specific intent to promote, further, or assist in any criminal conduct by gang
       members, shall, upon conviction of that felony, in addition and consecutive
       to the punishment prescribed for the felony or attempted felony of which he
       or she has been convicted, be punished as follows .…”


1      Unless otherwise indicated, all further statutory references are to the Penal Code.



                                             2.
This criminal street gang enhancement was found true by the trial court.
       Visalia Police Officer Shane Logan testified as a gang expert. He familiarized
himself with the incident of August 1, 2012, that occurred on the 1500 block of
North Giddings by pulling the police reports and reviewing them. The two suspects were
Sebastian B. and minor. Logan was then asked if he had an opinion after reviewing the
matter as to whether the crime was committed for the benefit of or at the direction of or in
association with a criminal street gang with the intent to promote, further or assist in
criminal conduct by the gang. Logan answered affirmatively that he believed that “the
crime was, in fact, to—well, did benefit the Norteno criminal street gang as a whole
within the city of Visalia.” He was asked if he thought it was a gang-related crime that
Sebastian B. committed, to which he answered “Yes, I do.” He was then asked whether
his opinion was the same as to minor, to which he answered “Correct.” Later, Logan was
again asked the question as to whether he had an opinion as to whether “the crime was
committed for the benefit of, at the direction of, or in association with [a] criminal street
gang, with the specific intent to promote, further, or assist in criminal conduct by the
gang.” His answer was “Yes.” He was then asked “Is your answer yes to that specific
question as to [minor]?” to which he answered “Yes.” He was then asked if his answer
was yes as to Sebastian B., to which he also answered “Yes.” Trial counsel for minor did
not object to this line of questioning or seek to strike any of the expert‟s opinions.
       Relying on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), minor
argues that expert opinion testimony is not permitted to comment on whether a particular
defendant actually had the specific intent to promote, further or assist criminal conduct.
In Killebrew, the defendant was convicted of conspiracy to possess a handgun. The
People‟s gang expert testified that each of the individuals in a caravan of three cars knew
there was a gun in the Chevrolet and a gun in the Mazda, and jointly possessed the gun
with everyone else in the three cars for mutual protection. (People v. Gonzalez (2005)
126 Cal.App.4th 1539, 1551 (Gonzalez), cited with approval in People v. Vang (2011) 52

                                              3.
Cal.4th 1038, 1047, fn. 2 (Vang).) Killebrew found the expert‟s testimony on the intent
and knowledge of the gang members inadmissible because such opinions did nothing
more than inform the jury how the expert believed the case should be decided and was
not like the generalized expert testimony on gang culture and habits sufficiently beyond
common experience, which had been found admissible in other cases. (Killebrew, supra,
103 Cal.App.4th at pp. 652-659.) Killebrew does not preclude expert testimony from
which a jury may infer the motive for a crime or the perpetrator‟s intent. Killebrew
prohibits an expert from testifying to his or her own opinion of the knowledge or intent of
a defendant on trial. (Gonzalez, supra, at p. 1551.)
       In Vang, supra, 52 Cal.4th 1038, our California Supreme Court disapproved
Killebrew to the extent that it condemned the use of hypothetical questions, because it
“overlooked the critical difference between an expert‟s expressing an opinion in response
to a hypothetical question and the expert‟s expressing an opinion about the defendants
themselves.” (Id. at p. 1049.) The Vang court acknowledged that, as a general rule,
expert testimony should not be allowed regarding whether the specific defendants acted
for a gang reason. (Id. at p. 1048.) However, the court also acknowledged that in some
circumstances, expert testimony regarding specific defendants might be proper, although
the question was not before the court in that case. (Ibid., fn. 4.) Significantly, in Vang,
the court upheld the admissibility of the expert opinion, because the expert gave an
opinion that an assault committed in the manner described in a hypothetical would be
gang-related and did not give an opinion on whether the defendants did commit an assault
in that way and thus did not give an opinion on how the jury should decide the case. (Id.
at p. 1049.) The court went on to approve the trial court‟s ruling and rationale as follows:

              “The trial court understood precisely the distinction between (1) not
       permitting the expert to opine that the particular defendants committed a
       crime for a gang purpose, and (2) permitting the expert to express his
       opinion in response to hypothetical questions. The court sustained an
       objection to a question regarding whether a particular defendant had


                                             4.
       knowledge of the gang activities. In sustaining the objection, it explained
       to the jury that „the law doesn't allow the expert to come in and say exactly
       what somebody else's mind—what was in their mind. All of the evidence is
       presented to you for you to make that decision.‟ It only permitted the
       expert to give an opinion whether an assault would have had a gang
       purpose in response to hypothetical questions. The court acted correctly in
       this regard.” (Ibid.)
       In the instant case, Officer Logan‟s testimony was not given in response to a
hypothetical. He testified that he reviewed the police reports about the subject crime and
that in his opinion, Sebastian B. and minor committed the crime for the benefit of or at
the direction of or in association with a criminal street gang with the intent to promote,
further or assist in criminal conduct by the gang. He affirmed more than once that this
was his opinion specifically as to each of the two suspects, and later he confirmed those
opinions that both suspects committed the crimes for the benefit of the gang and with the
specific intent to promote, further or assist in criminal conduct by the gang. The officer‟s
opinions, inasmuch as they were directed specifically at minor and not couched in
response to a hypothetical, violate the holdings and reasoning in Killebrew and Vang.
       The People argue that the focus of the gang expert‟s testimony was based on
explaining the basis for his opinion concerning general interactions between rival gangs
and not based on minor‟s objective knowledge and intent at the time of the shooting. The
expert‟s testimony belies this assertion. First, Officer Logan was not asked for these
opinions in hypothetical questions that otherwise would be proper as explained in Vang,
supra, 52 Cal.4th 1038. Second, the questions posed to Officer Logan specifically
referenced the instant crime as described in the police reports and specifically identified
minor and Sebastian B. as the two suspects. The prosecutor followed up by asking, “So
you think it was a gang-related crime that Sebastian [B.] committed?” He answered
affirmatively and the prosecutor then asked, “And your opinion is the same as to
[minor]?” to which he answered “Correct.” Thus, the questions and answers were
specifically directed to the instant crime and to the two suspects, including minor, by


                                             5.
name. Officer Logan testified that it was his opinion that the underlying crime was
committed by both suspects for the benefit of the gang and with the specific intent to
promote, further or assist in criminal conduct by the gang. This clearly violated the
principle that opinions on guilt or innocence are inadmissible because they are of no
assistance to the trier of fact, since the trier of fact is as competent as the witness to weigh
the evidence and draw a conclusion on the issue of guilt. (Vang, supra, at p. 1048.)
       Trial counsel for minor did not object to this opinion testimony. Failure to object
to the erroneous admission of evidence results in forfeiture. (Evid. Code, § 353; People
v. Demetrulias (2006) 39 Cal.4th 1, 22.)
       Minor concedes that trial counsel did not preserve the objection below, but
contends that this failure denied him his Sixth Amendment right to effective assistance of
counsel. (U.S. Const., 6th Amend.) It is the defendant‟s burden to establish ineffective
assistance of counsel by a preponderance of the evidence. (People v. Ledesma (1987) 43
Cal.3d 171, 218.) To prevail on such a claim, an appellant must show two things. First,
that counsel‟s representation fell below an objective standard of reasonableness and,
second, that but for counsel‟s deficient performance, it is reasonably probable the result
of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S.
668, 687-689, 693-694.) A reviewing court is not required to first determine whether
counsel‟s performance was deficient before examining prejudice. If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course
should be followed. (Id. at p. 697.)
       We find that it is not reasonably probable that minor would have obtained a more
favorable result had the improper expert testimony been timely objected to and ruled
inadmissible.
       The gang expert was qualified to and offered proper expert testimony that minor
and Sebastian B. were active members of the Norteño street gang at the time of the
shooting. There was considerable evidence about both suspects‟ prior contacts with law

                                               6.
enforcement. Witnesses testified that one of the suspects attempted to fire the gun before
handing it to the other suspect, who fired several shots at Sureño gang members and
bystanders. Witnesses identified Sebastian B. as the attempted shooter and minor as the
actual shooter. One witness testified that minor would walk by his house “mugging” and
“talking a lot of stuff,” including calling the witness a “scrap,” which is a derogatory term
for a rival gang member. At the time of his arrest, Sebastian B. was wearing a gray T-
shirt and a Boston Red Sox hat with a red “B.” Officer Logan testified that members of
the subset “North Side Visa Boys” of the Norteño street gang often wear sports attire for
the Boston Red Sox, and that Norteños refer to Sureños as “scraps.” Moreover, Officer
Logan testified, based on his review of law enforcement and probation department
records and his own interaction with Sebastian B., that Sebastian was active with the
North Side Visa Boys subset of the Norteño criminal street gang. As to minor, Officer
Logan explained that he had prior personal contact with him and he reviewed and
testified about minor‟s prior contacts with other law enforcement officers. While minor
never admitted membership in the Norteño gang, he committed several crimes and often
was found in the company of other documented Norteño members and associates.
Officer Logan opined that minor was an active Norteño gang member based on his
association with gang members, wearing gang-related clothing or attire, involvement in a
gang-related crime and the fact that his mother identified him as a gang member.
       A review of all of the evidence leads us to conclude that the failure of minor‟s trial
counsel to object to the gang expert‟s opinion about minor‟s motives and intent in
committing the underlying crime was not prejudicial.2

2       We acknowledge the People‟s argument that had trial counsel objected to the form
of the prosecution‟s questions of the gang expert, the prosecutor likely would have been
able to reframe the questions in the form of acceptable and proper hypotheticals with the
same general opinion being offered. The People posit that “[C]ounsel may have
concluded that the risk of misuse of the expert‟s opinion was de minimus given the fact
that this was a juvenile adjudication where the court served as the trier of fact. For these


                                             7.
                                     DISPOSITION
       The judgment is affirmed.




reasons, counsel could have had a tactical reason not to object to the form of questioning
or the expert‟s opinion testimony.” Although somewhat speculative, this argument may
have merit, but we find it unnecessary to decide it.



                                            8.
