Filed 10/28/13 P. v. Gutierrez CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063498

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. RIF142787)

JOHNNY ALFARO GUTIERREZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Patrick F.

Magers, Judge. Affirmed in part; reversed in part with directions.



         Edward J. Haggerty, 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, Assistant Attorney General, Barry Carlton and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted Johnny Alfaro Gutierrez of assault with a firearm (Pen. Code,1

§ 245, subd. (a)(2)), intimidating a witness (§ 136.1, subd. (b)(1)), possession of a gun by

a felon (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1)) and active participation

in a criminal street gang (§ 186.22, subd. (a)). The jury also sustained allegations that the

assault, witness intimidation and gun possession counts were committed for the benefit of

a gang within the meaning of section 186.22, subdivision (b), and Gutierrez personally

used a firearm in committing the assault and witness intimidation counts within the

meaning of former section 12022.5, subdivision (a) and section 1192.7, subdivision

(c)(8). Additionally, the jury found Gutierrez committed the offenses while released

from custody pending trial on a felony case. (Former § 12022.1.)2 In a bifurcated

proceeding , the trial court found Gutierrez suffered a prior violent or serious felony or

"strike" conviction (§ 667, subds. (b)-(i)) and a prior serious felony conviction (§ 667,

subd. (a)).

       The trial court sentenced Gutierrez to an indeterminate term of seven years to life

on the witness intimidation count plus a determinate term of 12 years four months on the

other convictions and allegations.

       Gutierrez appeals, raising a multi-prong challenge to his conviction of actively

participating in a criminal street gang. Gutierrez also contends the trial court improperly



1      All further statutory references are to the Penal Code unless otherwise specified.

2     The jury acquitted Gutierrez of a second count of firearm possession by a felon,
one count of evading a police officer and one count of receiving stolen property.

                                              2
allowed testimony about the emotional impact of the assault on the victim's family and

erred by giving consciousness of guilt instructions. Further, Gutierrez claims the

prosecutor committed misconduct, the court abused its discretion by denying his new trial

motion and made various sentencing errors. In a supplemental brief, Gutierrez contends

the court erred by imposing the indeterminate sentence on the witness intimidation

conviction.

                                             I

                                         FACTS

       At about 3:00 a.m., on April 27, 2008, Fernando Meza, a resident of the

Casablanca area of Riverside, was awakened by the barking of his dog in the backyard.

When Meza went to investigate, he saw Gutierrez on the opposite side of the rear wall of

the yard spray painting the wall with graffiti; another man was watching him. The

graffiti included "Negro," which is Gutierrez's gang moniker.

       Meza told Gutierrez and his companion to go home. Gutierrez indicated to Meza

that he was a member of the Casablanca street gang and Meza should not be telling him

to go home. Gutierrez took out a gun, put it to Meza's forehead and told Meza he should

go to sleep if he did not want to be killed. Meza told Gutierrez to do what he had to do.

Gutierrez sprayed Meza's face and neck with the spray paint.

       By this time, Meza's wife had entered the backyard. Gutierrez told her to take

Meza away if she did not want to see him dead. Meza's wife told Meza, "Let's go." He

complied and the couple went inside. As Meza was walking to the house, Gutierrez said

if Meza called the police, he would come back and kill him.

                                             3
       Meza called 911. While on the phone, Meza and his wife heard gunfire.

       Riverside Police Officer Jerry Post was in the neighborhood when he heard four or

five gunshots. About 30 seconds later, Post was dispatched to Meza's residence. As Post

drove to Meza's residence, he saw a silver truck with several individuals inside; the

vehicle was driving away from the area. Post made a U-turn and started to follow the

truck. Post observed a gun being thrown from the vehicle. Post turned on his emergency

lights and sirens, but the truck continued. The driver ran a stop sign and the truck

subsequently struck a curb and wound up facing the wrong direction before stopping.

The truck occupants exited the vehicle and began to run. Four of them were detained

near the truck. Three others continued to flee. Police found Gutierrez in an RV parked

behind a house in the neighborhood. Another person who fled from the truck was hiding

under a trailer in the same yard. The third person who fled was not caught. Several of

the truck occupants were members of the Vagabundos street gang.

       Police brought Meza to the location where the truck occupants were detained.

Meza identified Gutierrez as the person who pointed a gun at him, threatened to kill him

and sprayed him with spray paint. Meza was unable to identify Gutierrez's companion at

the fence because Meza had not paid much attention to him.

       Gutierrez stipulated that he is a member of the Vagabundos street gang and was a

member on April 27, 2008. He also stipulated that Vagabundos is a criminal street gang

within the meaning of section 186.22.

       Detective Joe Miera of the Riverside Police Department's gang unit, testified the

Casablanca Rifa is a criminal street gang with approximately 250 identified members and

                                             4
it operates in the Casablanca neighborhood of Riverside, which is bisected by Madison

Avenue. East of Madison Avenue is controlled by the gang's Evans Street clique and

west of Madison is controlled by the Fern Street clique or Vagabundos. Gutierrez is an

admitted member of the Vagabundos clique. VBS is the common symbol and name of

the Vagabundos clique. Some Vagabundos members use a drawing of a vagabond or

homeless person as a symbol for the clique.

         Gutierrez has a tattoo on his head that reads "Vagabundos," a "VBS" tattoo on his

chest, and a tattoo of a vagabond cartoon character. Underneath his "VBS" tattoo, is

"Casablanca" and on top of it is "Doing it 'till death."

         In addition to Gutierrez's "Negro" moniker, the graffiti on Meza's wall included

"Dangs" and "Rich." Detective Miera testified "Dangs" stood for "Danger," which was

Juan Medina's moniker, and "Rich" probably referred to Richard Silva. Medina and Silva

are Vagabondos members who were in the silver truck that fled the scene of the assault

on Meza. Miera said that the appearance of a gang member's moniker on a wall indicates

the gang member was present when the graffiti was placed on the wall. Miera explained

to the jury that respect is an important concept within gang culture, and gang members

expect to be respected. By committing crimes and violent acts, gang members instill fear

in the community and discourage law-abiding citizens from testifying against them. The

primary activities of the Casablanca Rifa gang are assaults with a firearm and narcotics

sales.

         Miera opined that Gutierrez's assault on Meza and his threat to kill Meza were

committed for the benefit of, in association with or at the direction of the Casablanca

                                              5
Vagabundos clique because such violent activities instill fear in the community and deter

witnesses from testifying against gang members. Miera also opined Gutierrez was an

active participant in Casablanca Vagabundos clique in April 2008.

       At trial, both Meza and his wife identified Gutierrez as the individual who was

spray painting the wall and then pointed a gun at Meza.

                                               II

                                        DISCUSSION

A.     Active Participation in a Criminal Street Gang

       Gutierrez contends his conviction of actively participating in a criminal street gang

must be reversed because of insufficient evidence, an erroneous jury instruction and

improper expert testimony. The contention is without merit.

       Section 186.22, subdivision (a) provides in part: "Any person who actively

participates in any criminal street gang with knowledge that its members engage in or

have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers,

or assists in any felonious criminal conduct by members of that gang, shall be punished"

as a felony or misdemeanor. The substantive offense thus has three elements:

"[(1)] Active participation in a criminal street gang, in the sense of participation that is

more than nominal or passive' . . . [(2)] knowledge that [the gang's] members engage in

or have engaged in a pattern of criminal gang activity, and [(3)] willfully promot[ing],

further[ing], or assist[ing] in any felonious criminal conduct by members of that gang.'

(§ 186.22[, subd. ](a).)" (People v. Lamas (2007) 42 Cal.4th 516, 523; People v.

Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez).)

                                               6
       In Rodriguez, our Supreme Court considered whether a defendant violates section

186.22, subdivision (a) "if he commits a felony, but acts alone." (Rodriguez, supra, 55

Cal.4th at p. 1128.) The Supreme Court observed that in order "to satisfy the third

element [of the offense], a defendant must willfully advance, encourage, contribute to, or

help members of his gang commit felonious criminal conduct," and concluded "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." (Id. at p. 1132.) The court reasoned: "The Legislature . . . sought to avoid

punishing mere gang membership in section 186.22[, subdivision] (a) by requiring that a

person commit an underlying felony with at least one other gang member." (Id. at

p. 1134.) The court further explained "section 186.22[, subdivision] (a) reflects the

Legislature's carefully structured endeavor to punish active [gang] participants for

commission of criminal acts done collectively with gang members." (Id. at p. 1139.) A

defendant who acts alone does not violate section 186.22, subdivision (a). (Rodriguez, at

p. 1139.)

       Pursuant to Rodriguez, supra, 55 Cal.4th 1125, Gutierrez contends the evidence is

insufficient to support his conviction of the section 186.22, subdivision (a) substantive

gang offense. Rodriguez was decided after Gutierrez had filed his opening brief; he cited

it in his reply brief. At our request, the Attorney General filed a supplemental letter brief

discussing the impact of Rodriguez on this case.

       The standard of review for a sufficiency of the evidence claim is well established.

We review the entire record in the light most favorable to the judgment to determine

                                              7
whether it contains substantial evidence — that is, evidence that is reasonable, credible,

and of solid value — from which a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt. (People v. Steele (2002) 27 Cal.4th 1230, 1249.) "[T]he

substantial evidence rule does not require that the evidence supporting defendant's

conviction be direct evidence. For purposes of the rule, substantial evidence

encompasses circumstantial evidence and any reasonable inferences to be drawn from

such evidence." (People v. Lopez (2013) 56 Cal.4th 1028, 1069-1070.) We presume in

support of the judgment the existence of every fact that could reasonably be deduced

from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Unless it is clearly

demonstrated that "upon no hypothesis whatever is there sufficient substantial evidence

to support [the verdict of the jury]," we will not reverse. (People v. Redmond (1969) 71

Cal.2d 745, 755.)

       There was no direct evidence about the identity of the man standing next to

Gutierrez at the wall or whether he was a gang member; neither Meza nor his wife paid

much attention to him. Nonetheless, there was sufficient circumstantial evidence to

establish that Gutierrez's companion was a fellow gang member who aided and abetted

him. The jury could reasonably infer that the individual was either Vagabundos gang

member Medina or Vagabundos gang member Silva because (1) their monikers were on

the wall along with Gutierrez's moniker; (2) typically, a gang member is present when his

moniker is spray painted on a wall; and (3) Medina and Silva were in the getaway vehicle

that Officer Post followed. The jury also could reasonably conclude that Medina and/or

Silva aided and abetted Gutierrez in his assault and intimidation of Meza by providing

                                             8
"backup" by his supportive presence. Gang members often act in such a role or as

lookouts when a member of their gang commits a crime.

       Gutierrez contends CALCRIM No. 14003 allowed the jury to convict him of

section 186.22, subdivision (a) on a theory that he acted alone and thereby violated the

principle enunciated in Rodriguez, supra, 55 Cal.4th 1125. Assuming, without deciding,

that CALCRIM No. 1400 is infirm because it implies one can be guilty of the crime when

acting alone, we find the instructional error was not prejudicial.

       "[A]n erroneous instruction that omits an element of an offense is subject to

harmless error analysis under Chapman v. California (1967) 386 U.S. 18 [(Chapman)].

[Citations.] In general, the Chapman test probes 'whether it appears "beyond a

reasonable doubt that the error complained of did not contribute to the verdict

obtained." ' " (People v. Gonzalez (2012) 54 Cal.4th 643, 662-663.) Thus, "even when

jury instructions completely omit an element of a crime, and therefore deprive the jury of

the opportunity to make a finding on that element, a conviction may be upheld under

Chapman where there is no 'record . . . evidence that could rationally lead to a contrary

finding' with respect to that element." (People v. Davis (2005) 36 Cal.4th 510, 564.)



3       The jury was instructed pursuant to CALCRIM No. 1400 as follows: "The
defendant is charged in Count 7 with participating in a criminal street gang in violation of
Penal Code[, section] 186.22[, subdivision ](a). [¶] To prove that the defendant is guilty
of this crime, the People must prove that: [¶] 1. The defendant actively participated in a
criminal street gang; [¶] 2. When the defendant participated in the gang, he knew that
members of the gang engage in or have engaged in a pattern of criminal gang activity;
AND [¶] 3. The defendant willfully assisted, furthered, or promoted felonious criminal
conduct by members of the gang either by: a. directly and actively committing a felony
offense; OR b. aiding and abetting a felony offense. . . ."
                                              9
Here, there was ample evidence Gutierrez did not act alone in assaulting and intimidating

Meza. This issue was not contested. Moreover, counsel's arguments did not suggest to

the jury that Gutierrez could be convicted of active participation in a gang if he acted

alone. Therefore, we conclude " ' "beyond a reasonable doubt the error complained of did

not contribute to the verdict obtained." ' " (People v. Mayfield (1997) 14 Cal.4th 668,

774.)

        Gutierrez also attacks his conviction because Detective Miera was permitted to

give his expert opinion that Gutierrez was an active participant in Casablanca

Vagabundos. Gutierrez's trial counsel did not specifically object below and therefore the

claim of error was forfeited on appeal. (Evid. Code, § 353, subd. (a); People v. Bolin

(1998) 18 Cal.4th 297, 321; see also People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208

[defense counsel's general objection to entirety of gang expert testimony insufficient to

preserve objection to expert opinion on issue of defendant's intent to benefit gang].)

        In any event, Gutierrez was not prejudiced by this opinion testimony. Gutierrez

stipulated he was a member of the Vagabundos clique of the Casa Blanca Rifa street

gang. The jury also learned that Gutierrez has several tattoos celebrating his gang

membership, including the word "Vagabundos" on his head and a vagabond cartoon

character. As the prosecutor noted in argument, Gutierrez had made his body a

"billboard of gang membership." Furthermore, on April 27, 2008, when he committed

the instant crimes, Gutierrez was in the company of several fellow gang members. He

also had been in the company of gang members on other occasions when contacted by

police. Given this evidence, it is not reasonably probable that Gutierrez would have

                                             10
achieved a more favorable result if Miera had not been allowed to opine that Gutierrez

was an active participant in the gang.

B.     Admission of Testimony of Crime Impact on Victim

       On direct examination, the prosecutor asked Meza how the incident affected his

life. The court overruled defense counsel's relevancy objection. Meza answered:

       "Since that day my life changed totally, to my family. Even now we're
       traumatized. First, I lost my house. We had to leave the area. And since
       then we have been frightened and fear that something should [sic] happen
       to us. Really, we don't live in peace. And I think that's going to last the
       rest of our lives because it was something that was very, very hard for us in
       all aspects. . . . Nothing will be the same because we will always feel that
       fear that something is going to happen to us. It has affected our lives
       totally."

Meza also testified that the family moved after the incident because "we were in danger."

Gutierrez attributed the loss of the family home to his inability to keep up his house

payments while paying rent at another location.

       Gutierrez contends the trial court committed prejudicial error by allowing Meza to

testify about how the crimes had impacted his family and led to the loss of his home.

       Although Gutierrez is correct that it was improper to admit evidence of how the

crimes affected the victim as inconsistent with an objective determination of guilt, we

conclude the error did not prejudice him. Meza's victim impact testimony was relatively

brief, and the evidence of Gutierrez's guilt was strong. Both Meza and his wife identified

Gutierrez as the person who pointed a gun at Meza, sprayed paint at him and threatened

to kill him if he called the police. Gutierrez's moniker, "Negro," was sprayed painted on

the wall behind Meza's residence. Further, Gutierrez fled from a vehicle that was leaving


                                             11
the area after police chased the vehicle. During the police chase, two guns were thrown

from the vehicle.

       We find no reasonable probability that the sympathetic victim evidence

contributed to the jury's guilty verdicts in this case. (See People v. Watson (1956) 46

Cal.2d 818, 836 (Watson).)4 Improperly admitted victim-impact evidence should not be

treated any differently than the admission of other types of improperly admitted evidence.

(People v. Redd (2010) 48 Cal.4th 691, 731, fn. 20.) In other words, we evaluate the

prejudicial effect of improper victim-impact evidence as we would the prejudicial effect

of any other improperly admitted evidence.

C.     Consciousness of Guilt Instructions

       Gutierrez contends his due process rights were violated when the trial court gave

two consciousness of guilt instructions — CALCRIM Nos. 371 and 372 — because the

instructions created permissive inferences that lessened the prosecution's burden of proof.

The contention is without merit.

       Due process requires a rational relationship between a permissive inference and

the fact on which it is based. (People v. Mendoza (2000) 24 Cal.4th 130, 180

(Mendoza).) A defendant's due process rights are violated by a permissive inference

" 'only if the suggested conclusion is not one that reason and common sense justify in




4     We note the jury acquitted Gutierrez of three counts where the prosecution's
evidence was weaker. (See fn. 2, ante.)

                                             12
light of the proven facts before the jury.' " (Ibid., quoting Francis v. Franklin (1985) 471

U.S. 307, 314-315.)

       Our Supreme Court has upheld instructions that permit the jury to infer

"consciousness of guilt" from proven facts, such as making false statements regarding the

crime charged (CALJIC No. 2.03), attempts to dissuade a witness (CALJIC No. 2.04),

suppression of evidence (CALJIC No. 2.06) and flight (CALJIC No. 2.52) against

various challenges. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102;

Mendoza, supra, 24 Cal.4th at p. 180; People v. Jackson (1996) 13 Cal.4th 1164, 1222-

1226 (Jackson); People v. Turner (1994) 8 Cal.4th 137, 202 (Turner).)

       Here, pursuant to CALCRIM No. 371, the jury was instructed: "If the defendant

tried to hide evidence or discourage someone from testifying against him, that conduct

may show that he was aware of his guilt. If you conclude that the defendant made such

an attempt, it is up to you to decide its meaning and importance. However, evidence of

such an attempt cannot prove guilt by itself." (Italics added.)

       Also, pursuant to CALCRIM No. 372, the jury was instructed: "If the defendant

fled or tried to flee (immediately after the crime was committed/or after he was accused

of committing the crime), that conduct may show that he was aware of his guilt. If you

conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and

importance of that conduct. However evidence that defendant fled cannot prove guilt by

itself." (Italics added.)

       The predecessor to CALCRIM No. 371 was CALJIC No. 2.06, which read in

pertinent part: "If you find that a defendant attempted to suppress evidence . . . , this

                                             13
attempt may be considered by you as a circumstance tending to show a consciousness of

guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and

significance, if any, are for you to decide." (Italics added.) The constitutionality of

CALJIC No. 2.06 was upheld in Jackson, supra, 13 Cal.4th at page 1224.

       The predecessor to CALCRIM No. 372 was CALJIC No. 2.52, which read: "The

flight of a person immediately after the commission of a crime, or after he is accused of

the crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved,

may be considered by you in light of all other proved facts in deciding whether a

defendant is guilty or not guilty. The weight to which this circumstance is entitled is a

matter for you to decide." In upholding the constitutionality of CALJIC No. 2.52, the

Supreme Court noted the instruction permitted a jury to infer "that the flight of a

defendant immediately after the commission of a crime indicates a consciousness of

guilt." (Mendoza, supra, 24 Cal.4th at p. 180, italics added.) The high court noted that

allowing "a jury to infer, if it so chooses, that the flight of a defendant immediately after

the commission of a crime indicates a consciousness of guilt" does not violate due

process. (Ibid.)

       Gutierrez distinguishes the CALJIC instructions, which passed constitutional

muster, from the CALCRIM instructions given here based on the latter's use of the phrase

"aware of his guilt" rather than "consciousness of guilt." Gutierrez contends the

distinction is constitutionally significant because the newer instructions go beyond

merely allowing an inference of consciousness of guilt and permit an irrational inference

of guilt itself. Gutierrez argues an awareness of guilt can exist only if a defendant were

                                                14
in fact guilty, and therefore, the "awareness of guilt" language allows a jury to infer one

fact, guilt, from other facts, such as suppression of evidence or discouraging victim

testimony.

       Gutierrez's argument has been rejected in People v. Hernández Ríos (2007) 151

Cal.App.4th 1154 (Hernández Ríos), which addressed the difference in phraseology

between the CALJIC No. 2.06 and CALCRIM No. 372. We agree with the reasoning

and conclusion of Hernández Ríos:

       "Our short etymological analysis of Ríos's argument begins with a
       dictionary definition of the word 'aware': 'Having knowledge or
       cognizance.' (American Heritage Dict. (4th ed. 2000) p. 125.) In reliance
       on the dictionary's list of synonyms that include the word 'aware,' Ríos
       argues that the word 'implies knowledge gained through one's own
       perceptions or by means of information.' (Italics omitted; see ibid.)
       'Conscious,' another word on the list, 'emphasizes the recognition of
       something sensed or felt' (id., at p. 125, italics omitted), which, of course,
       focuses on the acquisition of knowledge not by 'information' but by
       'perceptions.' (Ibid.) Since the dictionary defines 'consciousness' as
       '[s]pecial awareness or sensitivity: class consciousness; race consciousness'
       (id. at p. 391; italics omitted), ipso facto the special awareness that
       Mendoza allows a jury to infer from a flight instruction is 'guilt
       consciousness' (in the syntax of the dictionary) or 'consciousness of guilt'
       (in the syntax of the California Supreme Court). (Compare American
       Heritage Dict., supra, at p. 391 (italics omitted) with Mendoza, supra, 24
       Cal.4th at p. 180.) As the inference in Mendoza passes constitutional
       muster, so does the inference here." (Hernández Ríos, supra, 151
       Cal.App.4th at pp. 1158-1159.)

In other words, the terms are synonymous.

       The use of "aware of his guilt" language in CALCRIM Nos. 371 and 372 does not

impermissibly suggest that the defendant is guilty. Instead, like CALJIC Nos. 2.06 and

2.52, the only reading of the instructions that would occur to any reasonable juror

familiar with the English language is that these CALCRIM instructions allow a juror to

                                             15
infer a defendant's consciousness of guilt from the defendant's suppression of evidence

and/or flight if the facts warrant such an inference. The instructions, read as a whole, do

not state that the defendant is guilty. Accordingly, like their CALJIC predecessors,

neither CALCRIM No. 371 nor CALCRIM No. 372 violates a defendant's right to due

process nor impermissibly lower's the prosecution's burden of proof.

       Furthermore, we note jury instructions are reviewed as a whole "to determine

whether it is reasonably likely the jury understood the challenged instruction in a way

that undermined the presumption of innocence or tended to relieve the prosecution of the

burden to prove the defendant's guilt beyond a reasonable doubt." (People v. Paysinger

(2009) 174 Cal.App.4th 26, 30.) It is not reasonably likely that the jury here understood

the instructions concerning an awareness of guilt as stating that, if Gutierrez fled or

threatened Meza, then he was guilty of the charged offenses. The jury was instructed that

if the defendant engaged in certain conduct, that "conduct may show that he was aware of

his guilt." (Italics added.) The jury was further instructed that it was "up to you [the

jurors] to decide [the] meaning and importance" of the conduct by defendant. Moreover,

the jury was explicitly instructed that evidence of such conduct "cannot prove guilt by

itself." Considering the entirety of the instruction, we do not believe it reasonably likely

that the jury would have understood the instruction as a mandatory or burden-shifting

presumption as Guterriez urges.

D.     Prosecutorial Misconduct

       Gutierrez contends the prosecutor committed misconduct by (1) suggesting the

reasonable doubt standard of proof did not apply and (2) denigrating defense counsel.

                                             16
       "The standards governing review of misconduct claims are settled. 'A prosecutor

who uses deceptive or reprehensible methods to persuade the jury commits misconduct,

and such actions require reversal under the federal Constitution when they infect the trial

with such " 'unfairness as to make the resulting conviction a denial of due process.' " . . .

Under state law, a prosecutor who uses such methods commits misconduct even when

those actions do not result in a fundamentally unfair trial.' " (People v. Friend (2009) 47

Cal.4th 1, 29, citations omitted.) Prosecutorial misconduct under the federal Constitution

requires reversal of a defendant's conviction unless a reviewing court finds it harmless

beyond a reasonable doubt. (People v. Cook (2006) 39 Cal.4th 566, 608.) This is the test

set forth in Chapman, supra, 386 U.S. 18, 24. Prosecutorial misconduct under state law

requires reversal when a reviewing court finds that it is reasonably probable the result of

a defendant's trial would have been more favorable without the misconduct. (Cook, at

p. 608.) This is the test set forth in Watson, supra, 46 Cal.2d at page 836.

       Generally, trial counsel's failure to object to prosecutorial misconduct results in a

forfeiture of the issue on appeal. (People v. Lopez (2008) 42 Cal.4th 960, 966.)

However, where, as here, counsel did not object at trial to alleged prosecutorial

misconduct, the defendant may argue on appeal that counsel's inaction violated his

constitutional right to effective assistance of counsel. (Ibid.) Accordingly, we will

address the merits of Gutierrez's claim despite the lack of an objection at trial.

       At issue are these comments by the prosecutor during his closing argument:

       "The defense talked about reasonable doubt. Reasonable doubt. I'll submit
       to you, folks, reasonable doubt is not a standard in our criminal justice
       system for those people who terrorize the community — it's not a standard

                                              17
       for those who terrorize the community to hide under and say you didn't take
       my fingerprints, I didn't do it. Because you didn't get my fingerprints, you
       can't prove I did it. Ladies and gentlemen, the best evidence in this case is
       the identification. That's the best evidence."

and

       "I did learn a few things when I was in law school also. I learned that if
       you're a defense attorney and you don't have a defense in your case, you
       attack the prosecutor, you attack the police, you attack everybody else, and
       you try to hide the truth."

       " 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury,

the defendant must show a reasonable likelihood the jury understood or applied the

complained-of comments in an improper or erroneous manner.' " (People v. Wilson

(2005) 36 Cal.4th 309, 337 (Wilson).) " '[W]e "do not lightly infer" that the jury drew the

most damaging rather than the least damaging meaning from the prosecutor's

statements.' " (Id. at p. 338.) "A prosecutor is given wide latitude during closing

argument. The argument may be vigorous as long as it is a fair comment on the

evidence, which can include reasonable inferences or deductions to be drawn therefrom."

(People v. Harrison (2005) 35 Cal.4th 208, 244.) Further, although a defendant may

single out certain comments made by the prosecutor during argument in order to

demonstrate misconduct, as the reviewing court we "must view the statements in the

context of the argument as a whole." (People v. Cole (2004) 33 Cal.4th 1158, 1203

(Cole).)

       To the extent the prosecutor's 'reasonable doubt comment suggested that the state

is not held to a reasonable doubt standard when gang members are tried for crimes, the

comment was a misstatement of the law and improper. It is improper for a prosecutor to

                                            18
misstate the law. (People v. Bell (1989) 49 Cal.3d 502, 539.) However, it is highly

unlikely the jury interpreted the comment in this manner. (Wilson, supra, 36 Cal.4th at

pp. 337-338.) To put the prosecutor's reasonable doubt comment in context (Cole, supra,

33 Cal.4th at p. 1203), we note defense counsel had argued that the prosecution had not

proven its case because the police had failed, among other things, to fingerprint the

recovered guns, and the identification evidence was questionable. In responding to

defense counsel's argument, the prosecutor was arguing the identification by Meza and

his wife trumped the proof questions raised by the defense and established guilt beyond a

reasonable doubt.

       More importantly, the jury was properly instructed on the definition of reasonable

doubt, admonished it must follow the law as stated by the court and told the statements of

the attorneys were not evidence. In particular, the jury was instructed: "If you believe

that the attorneys' comments on the law conflict with my instructions, you must follow

my instructions." " 'When argument runs counter to instructions given a jury, we will

ordinarily conclude that the jury followed the latter and disregarded the former, for "[w]e

presume that jurors treat the court's instructions as a statement of the law by a judge, and

the prosecutor's comments as words spoken by an advocate in an attempt to persuade." ' "

(People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1268 [addressing prosecutorial

misconduct through improper reasonable doubt argument]; People v. Stitely (2005) 35

Cal.4th 514, 559 ["we assume the jury abided by the court's admonitions and instructions,

and thereby avoided any prejudice"].) Given the context of the arguments and these jury

instructions, we conclude the prosecutor's reasonable doubt comment was harmless

                                             19
beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.) For lack of prejudice,

Gutierrez's first claim of prosecutorial misconduct is unavailing.

       Gutierrez's second claim of prosecutorial misconduct fails because there was no

misconduct. Although it is misconduct when a prosecutor in closing argument

"denigrat[es] counsel instead of the evidence" because "[p]ersonal attacks on opposing

counsel are improper and irrelevant to the issues . . ." (People v. Sandoval (1992) 4

Cal.4th 155, 184), the prosecutor's comment here cannot be considered as an improper

attack on defense counsel's integrity or as casting aspersions on him.

       For example, in People v. Breaux (1991) 1 Cal.4th 281, 305 (Breaux), the

prosecutor argued: " '[I]f you don't have the law on your side, argue the facts. If you

don't have the facts on your side, argue the law. If you don't have either one of those

things on your side, try to create some sort of a confusion with regard to the case because

any confusion at all is to the benefit of the defense.' " The Supreme Court found when the

prosecutor's remarks were taken in context, they "could only have been understood as

cautioning the jury to rely on the evidence introduced at trial and not as impugning the

integrity of defense counsel." (Id. at p. 306.) In People v. Medina (1995) 11 Cal.4th 694,

759 (Medina), our Supreme Court rejected a misconduct claim based on the prosecutor

arguing " 'any experienced defense attorney can twist a little, poke a little, try to draw

some speculation, try to get you to buy something . . . .' " The Supreme Court called these

comments "unobjectable. To observe that an experienced defense counsel will attempt to

'twist' and 'poke' at the prosecution's case does not amount to a personal attack on

counsel's integrity." (Ibid.)

                                              20
       The prosecutor's comment in this case falls in the same category as that in Breaux,

supra, 1 Cal.4th at page 305, and Medina, supra, 11 Cal.4th at page 759, and was not an

improper personal attack on defense counsel's integrity.

E.     Denial of New Trial Motion

       Gutierrez contends the trial court abused its discretion by denying his motion for a

new trial based on ineffective assistance of counsel. The contention is without merit.

       Following the verdict, Gutierrez's retained counsel, Stephen Sweigart, informed

the court that his client wanted to file a new trial motion alleging ineffective assistance of

counsel. The court appointed new counsel for purposes of such a motion. New counsel

reviewed the case, but determined there were no grounds for a new trial motion based on

ineffective assistance of counsel or other bases. Gutierrez, appearing in pro per,

proceeded with a new trial motion; his principal ground was ineffective assistance of

counsel.

       Ineffective assistance of counsel, if proven, is a valid, nonstatutory ground for a

new trial. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.)

       We review an order denying a motion for new trial for abuse of discretion. (See

Turner, supra, 8 Cal.4th at p. 212 [" ' "The determination of a motion for new trial rests so

completely within the court's discretion that its action will not be disturbed unless a

manifest and unmistakable abuse of discretion clearly appears." ' "].) Because the new

trial motion was based on ineffective assistance of counsel, the applicable standard is

whether Gutierrez "demonstrate[d] (1) counsel's performance was deficient in that it fell

below an objective standard of reasonableness under prevailing professional norms, and

                                             21
(2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable

probability' that, but for counsel's failings, defendant would have obtained a more

favorable result." (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other

cases, Strickland v. Washington (1984) 466 U.S. 668 (Strickland).)

         Gutierrez failed to meet his burden below as he does on appeal. His ineffective

assistance of counsel claim has been premised on Sweigart's purported failure to

investigate the case, find percipient witnesses, retain a qualified investigator, object to

hearsay statements by prosecution witnesses and challenge Meza's out-of-court

identification. However, Gutierrez has not demonstrated the investigation conducted by

Sweigart, who first appeared in the case in July 2010 was insufficient. Contrary to

Gutierrez's assertions, the record shows Sweigart brought out many of the shortcomings

of the prosecution's case, such as the lack of fingerprinting and gun residue testing,

evidentiary inconsistencies regarding Meza's curb-side identification, payment by law

enforcement of $2,000 to Meza for housing, and evidentiary discrepancies regarding the

description Meza provided to the 911 operator. Gutierrez's criticism of Sweigart for not

seeking an in-person lineup is unfounded; this was a strategic decision and one that

should not be second-guessed under the deferential review of counsel's trial tactics

articulated in Strickland, supra, 466 U.S. at page 689. Meza very well could have again

identified Gutierrez during an in-person lineup, which, of course, would have seriously

compromised the defense's strongest argument.

         The trial court did not abuse its discretion by denying Gutierrez's motion for a new

trial.

                                              22
F.     Refusal to Dismiss Prior Strike Conviction

       Gutierrez contends the trial court abused its discretion by denying his motion to

deny his prior strike conviction for assault with a firearm. We disagree.

       In the furtherance of justice, a trial court may strike or dismiss a prior conviction

allegation. (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504;

People v. Meloney (2003) 30 Cal.4th 1145, 1155.) A trial court's refusal to strike a prior

conviction allegation is reviewed under the highly deferential abuse of discretion

standard. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) A defendant

seeking reversal must " 'clearly show that the sentencing decision was irrational or

arbitrary.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) It is

not enough to show that reasonable people might disagree about whether to strike a prior

conviction. (Carmony, supra, at p. 378.) Only extraordinary circumstances justify a

finding that a career criminal is outside the three strikes law. (Ibid.) Therefore, "the

circumstances where no reasonable people could disagree that the criminal falls outside

the spirit of the three strikes scheme must be even more extraordinary." (Ibid.)

       When considering whether to strike prior convictions, the relevant factors a court

must consider are "whether, in light of the nature and circumstances of his present

felonies and prior serious and/or violent felony convictions, and the particulars of his

background, character, and prospects, the defendant may be deemed outside the scheme's

spirit, in whole or in part, and hence should be treated as though he had not previously

been convicted of one or more serious and/or violent felonies." (People v. Williams

(1998) 17 Cal.4th 148, 161.) The three strikes law "not only establishes a sentencing

                                             23
norm, it carefully circumscribes the trial court's power to depart from this norm. . . .

[T]he law creates a strong presumption that any sentence that conforms to these

sentencing norms is both rational and proper." (Carmony, supra, 33 Cal.4th at p. 378.)

When the record shows the trial court considered relevant factors and acted to achieve

legitimate sentencing objectives, the court's decision will not be disturbed on appeal.

(People v. Myers (1999) 69 Cal.App.4th 305, 310.)

       The record before us shows the trial court did not abuse its discretion in denying

the motion. Gutierrez's criminal record dates back to 1993 when he was a juvenile. In

1998, when he was 20 years old, he was convicted of felony assault with a firearm. In

2001 and 2003, he was convicted of felony drug offenses. Each time Gutierrez was

granted parole, he violated the parole and was returned to prison. He was on parole for

his 2003 drug sales conviction when he committed these offenses in 2008. Although

Gutierrez was 33 at the time of sentencing in 2012, he had continued to maintain a gang

lifestyle and a proclivity for guns. The court noted Gutierrez had a "continuing pattern of

criminality" and the record bears this out.

       Gutierrez argues the refusal to dismiss the strike conviction was an abuse of

discretion because the strike was more than a decade old and his other offenses were

nonviolent. We are not persuaded. Our task is not to reweigh the facts. (Carmony,

supra, 33 Cal.4th at p. 378.) The record supports the trial court's conclusion that

notwithstanding the age of the strike conviction, Gutierrez has maintained a criminal

lifestyle. Moreover, despite the nonviolent nature of some of Gutierrez's past crimes, this

case does not deserve such a label. Pointing a firearm at a citizen's face is a violent act.

                                              24
       The trial court's ruling affirmatively shows that it reviewed Guttierez's present

felonies, prior strike, background, character, and prospects. There is no indication that

the trial court failed to consider any relevant information before it. Accordingly,

Gutierrez has failed to overcome the " 'strong presumption' . . . that the trial judge

properly exercised his discretion." (In re Large (2007) 41 Cal.4th 538, 551, citations

omitted.)

G.     Section 654

       Gutierrez contends the court erroneously imposed a consecutive sentence for his

felon in possession of a firearm count (former § 12021, subd. (a)(1), now § 29800,

subd. (a)(1)) and the sentence should have been stayed under section 654. He contends

that because the court imposed an enhancement under section 12022.5 for personal use of

a firearm in connection with the witness intimidation count, the challenged sentence

constituted impermissible double punishment. The contention is without merit.

       Section 654 bars double punishment for multiple offenses that constitute one

indivisible transaction. (People v. Hicks (1993) 6 Cal.4th 784, 788-789.) However, a

defendant may be separately punished for offenses that share common acts and are part of

an indivisible course of conduct where the defendant entertained multiple criminal

objectives. (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268; People v. Green

(1996) 50 Cal.App.4th 1076, 1084-1085 (Green).) Whether a course of conduct is

indivisible depends on the defendant's intent and objective rather than the temporal

proximity of the offenses. (Hicks, at p. 789; People v. Jones (2002) 103 Cal.App.4th

1139, 1143 (Jones).)

                                              25
       In a section 654 analysis, the defendant's intent and objective are factual questions

to be determined by the trial court. (Green, supra, 50 Cal.App.4th at p. 1085.) We

affirm the court's findings if there is substantial evidence to support them. (People v.

Hutchins (2001) 90 Cal.App.4th 1308, 1312.) We review the trial court's findings " ' "in a

light most favorable to the respondent and presume in support of the [sentencing] order

the existence of every fact the trier could reasonably deduce from the evidence." ' " (Id. at

pp. 1312-1313; Green, at p. 1085.)

       Whether a violation of former section 12021, subdivision (a)(1) (now § 29800,

subd. (a)(1)) constitutes a transaction divisible from the offense in which the defendant

uses the firearm depends on the facts and evidence of each individual case. (People v.

Bradford (1976) 17 Cal.3d 8, 22.) Multiple punishment is improper where the evidence

shows "at most that fortuitous circumstances put the firearm in the defendant's hand only

at the instant of committing another offense." (People v. Ratcliff (1990) 223 Cal.App.3d

1401, 1412 (Ratcliff).) However, separate punishment for the firearm possession is

proper "when the evidence shows that the defendant arrived at the scene of his or her

primary crime already in possession of the firearm." (Jones, supra, 103 Cal.App.4th at

p. 1145.)

       Here, the evidence supports the conclusion Gutierrez possessed the gun before

arriving at the scene of the crime. There was no evidence presented to support a theory

that "fortuitous circumstances" placed the handgun in Gutierrez's possession while he

was applying graffiti to Meza's wall. Because the court could find Gutierrez possessed

the handgun before he arrived at the scene, his violation of former section 12021,

                                             26
subdivision (a)(1) (now § 29800, subd. (a)(1)) was complete before his arrival. (Jones,

supra, 103 Cal.App.4th at p. 1147.) Because his gun possession preceded the witness

intimidation, the court did not violate section 654 by imposing the gun enhancement on

the intimidation count and the sentence for the gun possession. (Ratcliff, supra, 223

Cal.App.3d at p. 1413; Jones, at p. 1147.)

H.     Indeterminate Sentence on Witness Intimidation Count

       Gutierrez contends the trial court erred by imposing an indeterminate term of

seven years to life on the witness intimidation count pursuant to section 186.22,

subdivision (b)(4)(C). As the Attorney General concedes, the contention has merit.

       Gutierrez was convicted of "attempt[ing] to prevent or dissuade" a victim or

witness from reporting a crime. (§ 136.1, subd. (b)(1).) The jury further found Gutierrez

committed the offense for the benefit of a criminal street gang. (§ 186.22, subd. (b).) For

certain enumerated crimes, the gang statute calls for an indeterminate enhancement.

(§ 186.22, subd. (b)(4)(A)-(C).) Among the enumerated crimes is making "threats to

victims and witnesses, as defined in Section 136.1." (§ 186.22, subd. (b)(4)(C).) The

gang enhancement for this crime is an indeterminate term of seven years to life. (Ibid.)

       In People v. Lopez (2012) 208 Cal.App.4th 1049, 1065, the Court of Appeal held

the indeterminate gang enhancement of section 186.22, subdivision (b)(4)(C) may be

imposed for victim or witness intimidation only if the defendant was convicted of section




                                             27
136.1, subdivision (c)(1) because that subdivision is the only provision in section 136.1

that refers to use of an implied or express threat.5

       People v. Lopez, supra, 208 Cal.App.4th 1049, is controlling. Gutierrez was

convicted of section 136.1, subdivision (b)(1), not subdivision (c)(1), of that statute.

Further, the jury did not make any factual finding that Gutierrez used threats; thus, under

Apprendi v. New Jersey (2000) 530 U.S. 466, 490, and its progeny, imposition of an

indeterminate enhancement under section 186.22, subdivision (b)(4)(C) violates

constitutional precepts.6

                                       DISPOSITION

       The seven-year-to-life sentence for intimidating a witness is reversed. The case is

remanded for resentencing and reduction of the $240 restitution fine and $240 parole

revocation restitution fine to $200 each. (See fn. 6, ante.) The trial court shall prepare an

amended abstract of judgment and forward it to the Department of Corrections and

Rehabilitation.



5       Subdivision (c)(1) of section 136.1 reads: "Every person doing any of the acts
described in subdivision (a) or (b) knowingly and maliciously under any one or more of
the following circumstances, is guilty of a felony punishable by imprisonment in the state
prison for two, three, or four years under any of the following circumstances: (1) Where
the act is accompanied by force or by an express or implied threat of force or violence,
upon a witness or victim or any third person or the property of any victim, witness, or any
third person."

6      The Attorney General also concedes under the prohibitions against ex post facto
laws, the $240 restitution fine under section 1202.4, subdivision (b)(1) should be reduced
to $200 to reflect the statutory amount at the time the crimes were committed. The same
principle calls for reducing the $240 parole revocation restitution fine under section
1202.45, subdivision (b) to $200.
                                             28
    In all other respects, the judgment is affirmed.



                                                       IRION, J.

WE CONCUR:



          BENKE, Acting P. J.



                     NARES, J.




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