Filed 9/30/15 P. v. Duarte CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040925
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1103556)

         v.

GIOVANNI DUARTE,

         Defendant and Appellant.




                                           I.        INTRODUCTION
         Defendant Giovanni Duarte appeals after a jury convicted him of second degree
murder. (Pen. Code, § 187.1) The jury found true an allegation that defendant personally
and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53,
subd. (d)) and an allegation that defendant committed the murder for the benefit of a
criminal street gang (§ 186.22, subd. (b)(5)). The trial court sentenced defendant to a
prison term of 15 years to life for the murder, with a consecutive term of 25 years to life
for the firearm allegation. The trial court did not impose a separate term for the gang
enhancement, which provided for a minimum parole eligibility term of 15 years.
(§ 186.22, subd. (b)(5); see People v. Lopez (2005) 34 Cal.4th 1002, 1007 (Lopez).)


         1
             All further statutory references are to the Penal Code unless otherwise indicated.
       On appeal, defendant’s arguments concern testimony by the prosecution’s gang
expert regarding the ties between defendant’s gang, Varrio Mountain View (VMV) and
the Nuestra Familia prison gang. Defendant contends there was inadequate foundation
for the gang expert’s testimony and that the prosecution violated statutory discovery
requirements by failing to timely disclose that the gang expert would testify about
VMV’s ties to the Nuestra Familia. Defendant further contends he received ineffective
assistance of counsel if his trial counsel’s objections were not sufficient to preserve his
appellate challenges to the gang expert’s testimony, and that his trial counsel should have
objected to the gang expert’s testimony on the basis of Evidence Code section 352.
       For reasons that we will explain, we will affirm the judgment.

                                 II.     BACKGROUND
       A.     Gang Expert Testimony – Part I
       City of Mountain View Police Sergeant Kenneth Leal testified as the prosecution’s
gang expert. He testified twice at trial. At the beginning of defendant’s trial, Sergeant
Leal testified about gangs generally, including the VMV gang. Later in the trial, he
testified specifically about the elements of the gang allegation.
       Sergeant Leal had been a police officer for 25 years at the time of defendant’s
trial. He was working as the supervisor for the Gang Suppression Team and also as a
patrol supervisor. He had been working on the Gang Suppression Team since 2005 and
had been “working gangs” for his entire law enforcement career, which included a prior
assignment with the Street Intelligence Unit, in which he gathered gang intelligence.
Sergeant Leal had over 350 hours of formal gang training, which included education at
seminars and symposiums. Sergeant Leal also had over 500 hours of informal gang
training, which was based on conversations with gang members, gang rivals, gang
associates, police officers, and probation officers. He had investigated over 200 gang-



                                              2
related crimes. Sergeant Leal personally knew VMV gang members and had personally
investigated crimes committed by VMV gang members.
       Sergeant Leal made contact with gang members every day on the job. His goal
was to have nine out of every 10 contacts be “positive” contacts, during which he
checked in with gang members about things like school and jobs. He had over 500
personal contacts with gang members, about 150 of which occurred during arrests. From
conversations with gang members, Sergeant Leal learned how to join a gang, the reasons
for joining a gang, the dress and hairstyles of gangs, and the signs and colors of gangs.
He also learned the significance of gang tattoos and graffiti, and he learned about gang
rivalries and allegiances. Sergeant Leal regularly spoke with officers from his own
department and from other agencies in order to share information and keep up with “gang
trends.” He also regularly reviewed police reports and field identification cards.
       In Santa Clara County, Norteños and Sureños are the two main rival gangs.
Norteños associate with the color red, the number 14, and the letter “N,” which is the
fourteenth letter of the alphabet. Norteños, also known as “northerners,” are associated
with the Nuestra Familia, which is a northern California prison gang whose members are
usually serving life sentences. The Nuestra Familia has “soldiers in prison” called
Nuestra Raza or Northern Structure.
       The Norteño street gangs are “run by the prison gang.” When members of Nuestra
Familia or Nuestra Raza get out of prison, they run “street regiments,” giving orders to
street gangs “like VMV.” The Nuestra Familia has a “large influence” on Norteño gangs
in Santa Clara County. For instance, the Nuestra Familia instructs the street-level gang
members on “who’s in trouble, who’s not.” The street gangs are directed to sell drugs and
“funnel money back to the prisons.” None of the members of the street gangs are
members of Nuestra Familia.
       The Mexican Mafia is the “enemy” of Nuestra Familia. The Mexican Mafia is a
southern California prison gang whose street-level gang members are the Sureños. The
                                             3
Mexican Mafia and Sureños associate with the color blue, the number 13, and the letter
“M,” which is the 13th letter of the alphabet.
       The VMV is the only Norteño gang in Mountain View. The one Sureño gang in
Mountain View is called the Mountain View Sureños (MVS). The VMV had about 20 to
35 active members at the time of trial. VMV gang members belong to different
“generations.” In 2004, VMV gang members considered themselves the seventh
generation.
       B.     The Shooting of Alex Fernandez
       On September 24, 2004, Alex Fernandez was killed by two gunshot wounds to his
chest and abdomen. Fernandez was associated with the MVS gang. He was wearing a
belt buckle with an “S” on it at the time of his death, and he had blue tattoos of the
numbers one and three on his legs. Several witnesses told police that Norteños had done
the shooting. However, the police had no “solid leads” about the identity of the
perpetrators for several years.
       The police subsequently learned that defendant had been the shooter—a fact
defendant did not dispute at trial, where he claimed he acted in self-defense and
challenged the evidence introduced to support the gang allegation.
       The prosecution ultimately entered into immunity agreements with Anthony
Figueroa, Marlon Ruiz, George Oseida, and Jonathan Jenkins, all of whom were with
defendant at the time of the shooting. Each one had been a member or associate of VMV
at the time of the Fernandez shooting. Figueroa had not been jumped in to VMV, but his
father was a VMV member and the “outside perception” was that he himself was a VMV
member. Ruiz also had not been jumped in to VMV, but he was associated with VMV.
George Oseida was a VMV gang member. In addition to participating in the Fernandez
homicide, George Oseida had participated in other gang-related offenses: in 2008, he
was arrested for robbery and attempted murder of a rival gang member; in 2004, he was


                                              4
arrested for assaulting a rival gang member with a rock. Jonathan Jenkins associated
with VMV members, and he gave people gang-related tattoos.
        On September 24, 2004, Figueroa drove Ruiz and Brian Oseida (the brother of
George Oseida) to a movie theater, where they hung out outside with George Oseida,
Oscar Castillo, and others. Castillo and some of the others were talking about having
seen some Sureño gang members in a Sureño neighborhood nearby. Figueroa heard
Castillo and George Oseida refer to “scrap hunting,” which means “[t]o go out and look
for Surenos and either assault them or . . . shoot them.”
        Figueroa, Ruiz, and the Oseida brothers subsequently left the movie theater, with
Figueroa driving. George Oseida directed Figueroa to a residential neighborhood, then
made a phone call. George Oseida told the person on the phone to come outside. George
Oseida got out of the car and went to meet defendant and Jenkins, who came out of a
house. Jenkins appeared to be arguing; he subsequently threw up his hands and walked
away.
        Defendant and George Oseida got into Figueroa’s car. George Oseida sat in the
front passenger seat, Ruiz was in the back seat behind Figueroa, Brian Oseida was in the
middle of the back seat, and defendant was in the back seat behind George Oseida.
        George Oseida directed Figueroa into an MVS neighborhood, in which they saw a
group of about 10 to 15 MVS gang members. Someone in the car noted that Juan Luna
was in the group. While Figueroa’s car was stopped at a red light, Fernandez and Luna
started to run up to the car; the rest of the group of MVS gang members ran away towards
some apartments. Luna also subsequently ran towards the apartments, but Fernandez
continued to approach the passenger side of Figueroa’s car. When Fernandez reached
into the front of his pants, Figueroa and George Oseida both ducked, and there was a
“loud crack.”
        Fernandez continued to move towards George Oseida, looking like he was about
to strike George Oseida. Fernandez threw something at the car, causing a “loud crack”
                                             5
sound. George Oseida yelled, “Buck, buck,” meaning “shoot.” Some of the backseat
passengers yelled “Get him.” Figueroa heard two gunshots, then saw defendant holding a
gun. Figueroa drove away from the scene. During the drive, either Brian Oseida or Ruiz
said, “I hope we got him.”
       According to George Oseida, Oscar Castillo had told him that “scraps” were
“patrolling” in their neighborhood, which meant that Sureños were “available” to be
assaulted. George Oseida called defendant because he knew that defendant had a gun.
George Oseida told defendant that “scraps were patrolling,” and he asked if defendant
had his gun. Before getting into Figueroa’s car, defendant showed George Oseida that he
had a gun in his backpack. Defendant pulled back the slide on the gun when they entered
Sureño territory. At some point, George Oseida asked defendant to switch seats or give
him the gun, because the rear window of the car did not roll down, but defendant said no.
       According to George Oseida, defendant said, “That was Alex,” after the shooting,
and Figueroa said, “I hope he dies.” When they cleaned Figueroa’s car, they discovered
that Fernandez had thrown something greasy at the car. The day after the shooting,
defendant said he had “sand-papered” the barrel of the gun and hidden it. Defendant later
stated that Jenkins had thrown the gun into a creek, although Jenkins denied any
involvement in disposing of the gun.
       C.     Other Testimony From Coparticipants
       Figueroa testified that Ruiz was selling marijuana around the time of the
Fernandez shooting. According to Figueroa, some members of VMV were trying to
“tax[]” Ruiz for his marijuana sales. Figueroa explained that when a gang member sells
drugs, “taxing” means that the person pays some money to the gang in exchange for the
benefit of using the gang’s “brand,” which implicitly tells the buyers that the gang will
back up the seller if the buyer “screw[s]” him. Figueroa was aware that Nuestra Familia
regiments often sell drugs for the benefit of gangs. However, with respect to Ruiz, he did


                                             6
not believe the Nuestra Familia was involved. Rather, he thought “it was just
somebody’s idea to get some money off of somebody for free.”
       Figueroa spoke to defendant when they were in a holding cell together. Defendant
expressed anger that Jenkins had implicated him in a statement and at the preliminary
hearing. Defendant said he had “let the correct people know in the jail that [Jenkins] was
making statements against him.” According to Figueroa, this meant that defendant had
reported the snitching to the Northern Structure or the Nuestra Familia.
       George Oseida testified that in 2004, the VMV gang would hold meetings at
various locations to discuss jumping in new members or getting weapons for the gang.
He also testified that a Huelga bird tattoo had two meanings within the Norteño gang
culture: it can signify that someone is a member of the Northern Structure prison gang,
or it can simply signify that someone is a member of a Norteño gang. However, “outside
of the Nuestra Familia,” which is “the ultimate prison gang for the Norteños,” a Huelga
bird tattoo “should be earned.” A person could earn a Huelga bird tattoo by “putting in
work,” i.e., by committing a violent act on a rival gang member.
       According to George Oseida, a person who drops out of a Norteño gang while in
jail is placed in protective custody, because “the northerners within the jail” will do
something to a dropout. When he first went to jail, he was in the general population with
other northerners and thus “part of the more powerful gang within the jail.”
       On cross-examination, George Oseida clarified that none of the seventh generation
members of VMV had any interaction with the Nuestra Familia and that they were not
controlled by the Nuestra Familia. However, when asked if he had ever taken directions
from a prison gang, George Oseida referred to an order “that was handed down” on the
day his brother was jumped in to the VMV gang. An older gang member had said “there
was a green light” on someone, meaning that VMV gang members could not hang out
with that person, or that the person should be beaten up or killed.


                                              7
       D.     Gang Expert Testimony – Part II
       Sergeant Leal first learned about the VMV gang when, in 1990 or 1991, he lived
near five brothers who were VMV gang members. He talked to the five brothers and
their friends. Sergeant Leal reiterated that the VMV is a Norteño gang and that Norteños
are the “street level” of the Nuestra Familia. He testified that VMV is part of the Norteño
“organization” and that VMV had ties to Nuestra Familia.2
       Sergeant Leal identified Jose Soto as someone who was a VMV gang member in
the 1990’s. Soto had been to prison and was a documented member of the Northern
Structure and Nuestra Raza. Soto controlled a lot of the Bay Area’s Norteño gangs, and
he would send his brother into Mountain View. In the early 2000’s, Soto had been
released from prison with instructions from the Nuestra Familia. Soto’s influence then
progressed within “the organization.”3 Sergeant Leal also identified Chris Klipp as
someone who was a VMV member and who, like Soto, had “direct ties” to the Nuestra
Familia.
       According to Sergeant Leal, in September of 2004 the primary activities of the
VMV gang were vandalism, battery, robbery, and assault with a deadly weapon. He
knew this through his personal experience and through conversations with police officers,
gang members, and witnesses to crimes.
       To establish that VMV had engaged in a pattern of criminal gang activity
(§ 186.22, subds. (e) & (f)), Sergeant Leal testified about additional criminal acts
committed by VMV gang members. On September 18, 2004, VMV gang member
Cipriano Verales committed an assault with personal infliction of great bodily injury.
Along with an associate, Verales had beaten up a suspected Sureño gang member.
Sergeant Leal also testified about George Oseida’s 2004 gang-related assault with a rock.

       2
        Defendant objected to this testimony on the ground it had been “asked and
answered and covered in the first examination of this witness.”
      3
        Defendant objected to this testimony on the ground it lacked foundation.
                                             8
In addition, Sergeant Leal testified about an incident in 2000 involving VMV gang
members Gene Giron and Daniel Blodgett, who had confronted a Sureño gang member.
Giron was convicted of assault with a deadly weapon; Blodgett was convicted of criminal
threats; gang allegations were found true as to both defendants.
       Sergeant Leal testified that in 2004, defendant had some gang-related tattoos,
including four dots on his left wrist and one dot on his right wrist. After September of
2004, he had more gang-related tattoos, including “VMV” on his stomach and a Huelga
bird on his right arm with the words “Loyalty above all laws.”
       In Sergeant Leal’s opinion, defendant was an active gang member at the time of
the Fernandez homicide. His opinion was based on a number of factors, including
defendant’s 2006 admission to Sergeant Leal that he had been a member of VMV for
over three years. Sergeant Leal also believed that, at the time, George Oseida was an
active member of VMV, and that Brian Oseida, Figueroa, and Ruiz were all associates of
VMV.
       Given a hypothetical mirroring the facts of the case, Sergeant Leal was asked
whether the shooting would benefit the shooter’s gang, be done in association with the
gang, and be at the direction of the gang. (See § 186.22, subd. (b).4) Sergeant Leal
responded that the shooting would only benefit the gang and be done in association with
the gang.
       E.     Defense Testimony
       Gregorio Estevane testified as a gang expert for the defense. Much of his
knowledge came from talking to gang members, correctional officers, attorneys, and law




       4
        Section 186.22, subdivision (b) provides for an enhancement when a person 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.”
                                              9
enforcement officers. Estevane was not an expert on the VMV gang and had not
previously testified in a Norteño gang case.
       Estevane discussed the history of gangs in California, explaining that they began
when some communities pushed Latinos “off” into segregated areas. The gangs evolved
when some individuals went to prison, resulting in the creation of the Mexican Mafia, the
Aryan Brotherhood, and the Northern Structure. The Mexican Mafia controls most of the
Latino gangs in Southern California (the Sureños), while the Nuestra Familia controls the
Norteños. In Santa Clara County, the Nuestra Familia and the Norteños control the jails.
       There are several common features of California gangs. Their motive is usually to
“brand fear.” They have a structure, but it may be “loose,” and no formal organization is
required in order for a gang to qualify under section 186.22. Gangs are interested in
making money, so they are usually “heavily engaged in drug dealing” or other illicit
activities. Gang members desire to “put in work,” meaning they are ready to go to jail or
juvenile hall, where they will get more training. A gang member’s “career goal” is
usually to be in prison and be part of “some kind of a mafia.” Most criminal street gangs
have ties to “their parent organizations in the prison system.” There is typically a “direct
strong link” between “real street gangs” and prison gangs. Usually, the upper level of a
gang wants to give input before a gang crime is committed, although occasionally a
younger group of gang members may commit a crime without giving any notice to the
upper level. A typical gang mission includes “branding”—that is, claiming the act to get
a benefit for the gang.
       Given a hypothetical based on the facts of the instant case, Estevane did not
believe the crime was a “gang event.” The crime was not done in association with a
criminal street gang because the driver of the car and some of the passengers were not
part of the plan. The crime did not benefit the gang because there was no “branding.”
       Estevane initially testified that in his opinion, VMV was not a criminal street gang
within the meaning of section 186.22. While VMV has a common sign or signal,
                                               10
Estevane did not think that the “primary activities” requirement was satisfied.
(See § 186.22, subd. (f).) He would expect to see that members of VMV had been
convicted of murder, drug dealing, and extortion. However, he later admitted that under
section 186.22, crimes such as assault and vehicle theft could comprise the gang’s
primary activities. He also acknowledged that section 186.22 does not require evidence
of convictions for purposes of the primary activities element.
       Estevane also did not think that the predicate offenses supported a finding that
VMV was a criminal street gang. The Verales crime was not prosecuted as a gang crime
(i.e., there was no gang allegation), and Verales had denied being a gang member,
although the facts did show that Verales had issued a gang challenge during the incident.
The George Oseida crime also was questionable as a predicate, because although a gang
enhancement was alleged, it was not admitted as part of the plea bargain. Estevane later
acknowledged that predicate offenses do not need to have gang enhancements under
section 186.22.
       Estevane later clarified that he was not giving an opinion about whether VMV
meets the statutory definition of a criminal street gang, but that he believed that Sergeant
Leal’s opinion was not based upon sufficient facts provided in the prosecution’s
discovery materials. For instance, Sergeant Leal had described Soto as a “documented”
member of the Nuestra Familia or Nuestra Raza, which implied there were documents
available, such as prison classification records, but no such documents had been provided
in discovery.
       F.       Charges, Trial, and Sentence
       Defendant was charged with murder (§ 187), with an allegation that defendant
personally and intentionally discharged a firearm, causing great bodily injury or death
(§ 12022.53, subd. (d)), an allegation that defendant committed the murder for the benefit
of a criminal street gang (§ 186.22, subd. (b)(5)), and an allegation that defendant was a


                                             11
minor at the time of the commission of the offense (Welf. & Inst. Code, § 707, subd.
(b)(1)).
       The jury found defendant not guilty of first degree murder but guilty of second
degree murder, and it found true all of the special allegations. The trial court sentenced
defendant to a prison term of 15 years to life for the murder, with a consecutive term of
25 years to life for the firearm allegation. The trial court did not impose a separate term
for the gang enhancement, which provided for a minimum parole eligibility term of 15
years. (§ 186.22, subd. (b)(5); see Lopez, supra, 34 Cal.4th at p. 1007.)

                                   III.   DISCUSSION
       Defendant’s arguments on appeal all concern Sergeant Leal’s testimony about the
ties between VMV and the Nuestra Familia. Defendant contends there was inadequate
foundation for that testimony and that the prosecution violated statutory discovery
requirements by failing to timely disclose that Sergeant Leal would testify about VMV’s
ties to the Nuestra Familia. Defendant further contends he received ineffective assistance
of counsel if his trial counsel’s objections were not sufficient to preserve his appellate
challenges to the testimony, and that his trial counsel should have objected on the basis of
Evidence Code section 352.
       We begin our analysis of these issues by reviewing the trial proceedings related to
Sergeant Leal’s testimony about the ties between VMV and the Nuestra Familia.
              1.     Motion in Limine
       Defendant’s motions in limine included a motion to exclude any gang expert
testimony by Sergeant Leal. Defendant argued that Sergeant Leal’s opinion about
whether the Fernandez shooting was done for the benefit of a criminal street gang “would
be speculative, have no sound basis, and would unduly prejudice [defendant] and confuse
the jury with irrelevant and highly inflammatory allegations unsupported by either the
facts or the law.” Defendant argued that Sergeant Leal’s testimony could not establish


                                             12
that VMV was a criminal street gang within the meaning of section 186.22. Specifically,
the expert witness discovery materials did not contain evidence that VMV’s primary
activities were offenses enumerated in section 186.22, subdivision (e) or evidence that
VMV members had engaged in a pattern of criminal activity. Defendant requested the
trial court hold an evidentiary hearing to determine the admissibility of Sergeant Leal’s
expert opinion.
       During a hearing on motions in limine, defendant repeated the arguments in his
written motion. He indicated he had received, in discovery, “everything upon which this
expert was supposed to have based his opinion.” In response, the prosecutor explained
that there was not documentation supporting every aspect of Sergeant Leal’s expert
opinion. The prosecutor noted that Sergeant Leal had been in a gang unit since 1988 and
that some of his opinions were based on conversations he had, not all of which were
documented.
       The trial court ruled that Sergeant Leal could render an expert opinion about the
primary activities of VMV and that the jury could decide if the statutory requirements
were met. The trial court noted that defendant’s challenges to Sergeant Leal’s expert
opinion went to its weight, not its admissibility.
              2.     Gang Expert Testimony – Part 1
       After Sergeant Leal gave his initial testimony about the Nuestra Familia’s ties to
Norteño street gangs “like VMV,” defendant’s trial counsel expressed a “concern.”
Defendant’s trial counsel asserted that nothing in the discovery summary of Sergeant
Leal’s testimony contained “any evidence that the Nuestra Familia is directing [VMV].”
Defendant’s trial counsel indicated he was objecting to that testimony. The trial court
responded to the objection as follows: “Well, you can cross-examine him. I mean, I
think that’s within his expertise.”
       On cross-examination, Sergeant Leal specified that his formal training on gangs
had covered the Nuestra Familia and Mexican Mafia prison gangs. He also had formal
                                             13
training concerning the VMV gang from the gang detective who preceded him. This
information was not listed on his curriculum vitae. Defendant’s trial counsel asked
Sergeant Leal what evidence supported his testimony about the Nuestra Familia directing
the activities of VMV. Sergeant Leal responded, “I don’t have physical evidence that I
can show you. My opinion is based on my training and experience, conversations I’ve
had with other gang detectives, other police officers who work Norteno gangs, who’ve
worked [VMV]. It’s also based on conversations I’ve had with prior VMV gang
members and associates and VMV gang members.”
       Defendant’s trial counsel asked Sergeant Leal if he had any evidence, for instance,
that VMV had been “taxing local drug dealers” at the direction of the Nuestra Familia
and whether he had any evidence that in 2004, the Nuestra Familia had directed VMV
members to commit any specific crimes. Sergeant Leal did not have such evidence. He
also did not have any evidence that members of the Nuestra Familia even knew about
VMV.
             3.     Gang Expert Testimony – Part 2
       As noted above, when Sergeant Leal testified for the second time, he named Soto
and Klipp as VMV members who had direct ties to the Nuestra Familia. Sergeant Leal
testified that Soto had been to prison, that Soto was a documented member of the
Northern Structure and Nuestra Raza, that Soto controlled a lot of the Bay Area’s
Norteño gangs, and that in the early 2000’s, Soto had been released from prison with
instructions from the Nuestra Familia. Sergeant Leal testified that Klipp was a VMV
gang member with ties to the Nuestra Familia.
       During a subsequent break, defendant’s trial counsel objected. Defendant’s trial
counsel noted that Sergeant Leal had not previously provided any specific names when
testifying about the connection between VMV and the Nuestra Familia, and that Sergeant
Leal had previously testified that he had no evidence that the Nuestra Familia even knew
that VMV existed. Defendant’s trial counsel objected that Sergeant Leal had provided a
                                            14
“new basis” for his opinion without giving the defense any time to investigate those facts.
Defendant’s trial counsel argued that this violated the prosecution’s discovery
obligations. Defendant’s trial counsel moved for a mistrial on the basis of the discovery
violation and prosecutorial misconduct. Alternatively, he requested that the testimony
about Soto and Klipp be stricken.
       The prosecutor responded, asserting that she did not know Sergeant Leal would
mention Soto and Klipp. However, she was aware that Sergeant Leal had done additional
research after he was cross-examined regarding the ties between VMV and the Nuestra
Familia. The prosecutor herself knew that Soto was a member of both VMV and the
Nuestra Familia because she was prosecuting a case involving the Nuestra Familia and
Soto was on a chart in her office. After Sergeant Leal’s initial testimony and cross-
examination, he had asked the prosecutor “what was going to happen the next time he
testified.” The prosecutor said she would ask him about predicate offenses and primary
activities. Sergeant Leal mentioned that he had been cross-examined about the Nuestra
Familia’s ties to VMV. The prosecutor told him that her chart of Nuestra Familia
members included “a guy . . . , Soto.” Sergeant Leal said that he knew who Soto was.
       The trial court noted that defendant’s trial counsel had not objected to Sergeant
Leal’s testimony about Soto and Klipp. While acknowledging that an objection could
have highlighted the testimony, the trial court noted that defendant’s trial counsel could
have requested a sidebar, during which the trial court could have precluded the prosecutor
from further questioning Sergeant Leal on the topic of the Nuestra Familia. The court
further noted that Sergeant Leal had not testified that Soto had directed defendant or
George Oseida. The trial court declined to order a mistrial. The court indicated it
believed the prosecutor should have disclosed to the defense that Sergeant Leal had
information about Soto and Klipp. However, the prosecutor had not asked questions
concerning whether the Nuestra Familia had directed VMV, only whether there were ties
between the two groups. Additionally, the defense had not timely objected.
                                            15
       Defendant’s trial counsel argued that the jury would think that the Nuestra Familia
“ordered this hit.” He asked the trial court to instruct the jury that the prosecution had
violated its discovery obligations.
       The trial court pointed out that Sergeant Leal had testified that the crime would
benefit the shooter’s gang and was done in association with the gang, but not that the
crime was done at the direction of a gang. Further, there was no evidence that the
Nuestra Familia had ordered a “hit.” Thus, the jury was not likely to make such an
inference. The trial court ordered the prosecution not to argue such a theory. The trial
court declined to give a discovery violation instruction, finding that an instruction would
highlight the issue and imply there had been a discovery violation, which was not true.
The trial court also declined to instruct the jury that there was no evidence the Nuestra
Familia had ordered a “hit,” but it noted that the parties could enter into such a
stipulation.
               4.    Evidence Code Section 402 Hearing
       The trial court held an Evidence Code section 402 hearing shortly after the above
discussion. Sergeant Leal acknowledged that during the first part of his testimony, he
had testified that he had no evidence that the Northern Structure even knew VMV
existed. However, he had subsequently “remembered about them.” Sergeant Leal
testified that he had spoken with the prosecutor regarding Soto’s connection to the
Northern Structure; the prosecutor had indicated she would be asking him about that
information. Following the hearing, the trial court reiterated it was denying defendant’s
mistrial motion, and it also denied defendant’s motion to strike Sergeant Leal’s expert
testimony.
       The next day, defendant renewed his motion to strike Sergeant Leal’s testimony
about the relationship between the Nuestra Familia and VMV and specifically the
testimony regarding Soto and Klipp. Defendant’s trial counsel reiterated that he had not
received any discovery on the relationship between VMV and the Nuestra Familia, the
                                             16
Northern Structure, or Nuestra Raza. Defendant’s trial counsel indicated that he wanted
to investigate Soto and Klipp and that he needed a continuance to do so, unless the
testimony was stricken. Defendant’s trial counsel reiterated that his concern was that the
jury would be left with the impression that the Northern Structure or the Nuestra Familia
was directing VMV around the time of the Fernandez shooting. The trial court denied
defendant’s request, again noting that Sergeant Leal had testified that he could not say
that the shooting had been done at the direction of a criminal street gang.
              5.      Request for CALCRIM No. 306
       Defendant filed a written motion requesting the trial court instruct the jury on
untimely disclosure of evidence pursuant to CALCRIM No. 306.5 The trial court denied
the motion, making a number of findings. First, the prosecutor did not ask Sergeant Leal
to bring in further information about the Nuestra Familia’s ties to VMV; Sergeant Leal
“did it on his own initiative.” Second, the evidence was not exculpatory. Third, the
defense could have requested criminal records for Soto and Klipp on an expedited basis.
Fourth, the instruction relates to the prosecution’s pre-trial discovery obligations, and
thus it did not exactly apply to the situation. Fifth, there was no evidence that the late
disclosure had any effect on the defense. The trial court offered to consider giving an
alternative instruction drafted by counsel. Defendant’s trial counsel thereafter submitted
a proposed instruction, which is not in the record, but the trial court refused to give it.




       5
         CALCRIM No. 306 provides in part: “Both the People and the defense must
disclose their evidence to the other side before trial, within the time limits set by law.
Failure to follow this rule may deny the other side the chance to produce all relevant
evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the
(People/defense) failed to disclose: <describe evidence that was not disclosed> [within
the legal time period]. [¶] In evaluating the weight and significance of that evidence,
you may consider the effect, if any, of that late disclosure.”

                                              17
               6.    Foundation
       Defendant first contends there was inadequate foundation for Sergeant Leal’s
expert testimony about VMV’s ties to the Nuestra Familia and that the trial court abused
its discretion by failing to strike that testimony. (See People v. Fuiava (2012) 53 Cal.4th
622, 672 (Fuiava) [abuse of discretion standard applied to claim of inadequate foundation
for expert testimony].)
       An expert may generally base his or her opinion on any “matter” known to him or
her, including hearsay not otherwise admissible, which may reasonably be relied upon for
that purpose. (Evid. Code, § 801, subd. (b).) “Of course, any material that forms the
basis of an expert’s opinion testimony must be reliable. [Citation.] For ‘the law does not
accord to the expert’s opinion the same degree of credence or integrity as it does the data
underlying the opinion. Like a house built on sand, the expert’s opinion is no better than
the facts on which it is based.’ ” (People v. Gardeley (1996) 14 Cal.4th 605, 618
(Gardeley).)
       Defendant relies primarily on In re Alexander L. (2007) 149 Cal.App.4th 605
(Alexander L.), in which the appellate court found that a gang expert’s testimony lacked
adequate foundation “because information establishing reliability was never elicited from
him at trial.” (Id. at p. 612.) The issue in Alexander L. was whether the gang expert’s
testimony was sufficient to establish that the primary activities of the minor’s gang were
offenses enumerated in section 186.22, subdivision (e). The gang expert’s entire
testimony on the primary activities issue was as follows: “ ‘I know they’ve committed
quite a few assaults with a deadly weapon, several assaults. I know they’ve been
involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle
burglaries, felony graffiti, narcotic violations.’ ” (Alexander L., supra, at p. 611.) The
appellate court found that the testimony lacked foundation because the prosecution failed
to elicit any “specifics . . . as to the circumstances of these crimes, or where, when, or
how [the gang expert] had obtained the information.” (Id. at pp. 611-612.) Without such
                                              18
information, the court explained, it was impossible to know whether the basis of the gang
expert’s testimony was reliable. (Id. at p. 612.)
       The court in Alexander L. noted that Gardeley, supra, 14 Cal.4th 605, was a case
in which “a proper foundation was laid for the expert witness’s testimony.”
(Alexander L., 149 Cal.App.4th at p. 613.) In Gardeley, the gang expert’s opinion was
based on “investigations of hundreds of gang-related offenses, conversations with [the]
defendants and other [gang] members, as well as information from fellow officers and
various law enforcement agencies.” (Gardeley, supra, at p. 612.) The Alexander L. court
explained why Gardeley was distinguishable: “[U]nlike here, the court knew where the
information to which the expert was testifying originated and was able to assess its
reliability.” (Alexander L., supra, at p. 613.)
       Other cases have found that a gang expert’s testimony was based on adequate
foundation where the expert testified that his or her opinion was based on personal
investigation. For instance, in People v. Martinez (2008) 158 Cal.App.4th 1324
(Martinez), the gang expert’s testimony about the gang’s primary activities had a
sufficient foundation because the expert had spent “eight years dealing with the gang,
including investigations and personal conversations with members,” and had reviewed
reports about the gang. (Id. at p. 1330.) In People v. Olguin (1994) 31 Cal.App.4th 1355
(Olguin), the gang expert’s opinion “that gangs generally react violently to the crossing
out of their graffiti” had a sufficient foundation where it was “based on his investigation
of cases over several years, his interviews with gang members and others, and his review
of police reports.” (Id. at p. 1370.)
       Here, as in Gardeley, Martinez, and Olguin, the record shows that Sergeant Leal’s
testimony about the connections between VMV and the Nuestra Familia was based on his
experience and investigation. Sergeant Leal testified that when members of the Nuestra
Familia or Nuestra Raza get out of prison, they give orders to street gangs such as VMV,
and he explained that this testimony was based on his training and experience,
                                             19
conversations with other officers, and conversations with VMV gang members and
associates. When Sergeant Leal returned to the stand later in the trial and identified Soto
and Klipp as VMV gang members who had “direct ties” to the Nuestra Familia, he
explained that he had subsequently “remembered about” Soto and Klipp. In other words,
that testimony, too, was based on Sergeant Leal’s training and experience, conversations
with other officers, and conversations with VMV gang members and associates. Unlike
in Alexander L., here it was not “impossible to tell” whether the basis of the gang expert’s
testimony was reliable. (Alexander L., supra, 149 Cal.App.4th at p. 612.)
       We conclude the trial court did not abuse its discretion by refusing to strike
Sergeant Leal’s testimony about the ties between VMV and the Nuestra Familia on the
ground that it lacked adequate foundation. (See Fuiava, supra, 53 Cal.4th at p. 672.)
              7.     Discovery
       Defendant next contends that the prosecution violated statutory discovery
requirements by failing to timely disclose that Sergeant Leal would testify about VMV’s
ties to the Nuestra Familia. Defendant contends that the trial court should have granted a
mistrial, stricken the testimony, or instructed the jury regarding the untimely disclosure.
       The Attorney General contends that defendant failed to preserve this issue for
appellate review because his discovery objection was not “contemporaneous” with
Sergeant Leal’s challenged testimony. “The requirement that an objection to evidence be
timely made is important because it ‘allows the court to remedy the situation before any
prejudice accrues.’ [Citation.]” (People v. Boyette (2002) 29 Cal.4th 381, 424.) An
objection that is made during a later break, rather than contemporaneously with the
introduction of challenged evidence, may be found untimely. (See People v. Suff (2014)
58 Cal.4th 1013, 1076.) However, since defendant claims that he received ineffective
assistance of counsel if this claim was forfeited, we will reach the merits of the issue.
(See People v. Catlin (2001) 26 Cal.4th 81, 129.)


                                             20
       In order to establish that trial counsel was ineffective, defendant must show
(1) that counsel’s performance was deficient because it was not “the result of reasonable
professional judgment” and “outside the wide range of professionally competent
assistance” (Strickland v. Washington (1984) 466 U.S. 668, 690 (Strickland)) and (2)
prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different” (id. at p. 694).
       Pursuant to section 1054.1, subdivision (f), the prosecutor is required to disclose to
the defense “[r]elevant written or recorded statements of witnesses or reports of the
statements of witnesses whom the prosecutor intends to call at the trial, including any
reports or statements of experts made in conjunction with the case, including the results
of physical or mental examinations, scientific tests, experiments, or comparisons which
the prosecutor intends to offer in evidence at the trial.” The required disclosures “shall be
made at least 30 days prior to the trial,” but “[i]f the material and information becomes
known to, or comes into the possession of, a party within 30 days of trial, disclosure shall
be made immediately.” (§ 1054.7.)
       If a party has not complied with the discovery requirements of section 1054.1, the
trial court “may make any order necessary to enforce” those requirements “including, but
not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the
testimony of a witness or the presentation of real evidence, continuance of the matter, or
any other lawful order.” (§ 1054.5, subd. (b).) The trial court may also “advise the jury
of any failure or refusal to disclose and of any untimely disclosure.” (Ibid.)
       In this case, defendant first contends the prosecution should have disclosed that
Sergeant Leal would testify that there was a connection between the Nuestra Familia and
Norteño street gangs “like VMV.” However, nothing in the record establishes that this
testimony was based on any specific discoverable materials such as statements or reports.
(See § 1054.1, subd. (f).) In fact, on cross-examination, Sergeant Leal specified that he


                                             21
had no “physical evidence” and that his opinion was based on his “training and
experience” and conversations with officers and gang members.
       The Attorney General points out that in People v. Roberts (1992) 2 Cal.4th 271
(Roberts), the California Supreme Court held that the prosecution has no obligation to
produce the “vast array of materials” on which gang experts rely when explaining the
way gangs work. (Id. at p. 299.) The Roberts defendant had requested “discovery of all
documents and other sources from which the [gang experts] had derived their knowledge,
even if complying would mean producing everything one witness had seen for seven
years,” but the trial court had “rejected the request as too broad and burdensome.” (Id. at
p. 298.) The gang experts subsequently testified about the “practices and rules” of the
defendant’s gang. (Ibid.) The California Supreme Court upheld the trial court’s
discovery ruling, finding that the Sixth Amendment’s confrontation clause did not require
the prosecutor to disclose the information that the expert testimony was based on. (Id. at
p. 299.)
       We agree that here, as in Roberts, the prosecution’s discovery obligations did not
require disclosure of every conversation that the gang expert had or every facet of his
testimony about how gangs operate. Such an obligation would be “too broad and
burdensome.” (Roberts, supra, 2 Cal.4th at p. 298.) Thus, trial counsel was not
ineffective for failing to object at the time of Sergeant Leal’s initial testimony.
       Even if we were to find that reasonable trial counsel would have objected and
argued that the prosecution had an obligation to tell the defense that Sergeant Leal would
describe how the Nuestra Familia directs or controls Norteño street gangs such as VMV,
we would find no prejudice. The challenged testimony did not cause, as defendant
contends, “incurable prejudice,” nor did it impact defendant’s right to a fair trial.
Sergeant Leal did not testify that the Nuestra Familia controlled VMV specifically, nor
did he testify that the Nuestra Familia directed the commission of the charged offense.
None of Sergeant Leal’s testimony established a direct connection between the Nuestra
                                              22
Familia and defendant or defendant’s coparticipants, and George Oseida testified that the
seventh generation members of VMV were not controlled by the Nuestra Familia.
Further, the most prejudicial evidence of the connection between the Nuestra Familia and
VMV came from Figueroa, who testified that defendant had told the Nuestra Familia
about Jenkins snitching. Finally, the evidence was overwhelming as to both defendant’s
guilt of second degree murder and the gang allegation.6 On this record, there is no
“reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.)
       Defendant also contends the prosecution should have disclosed the mid-trial
conversation between the prosecutor and Sergeant Leal in which the prosecutor named
Soto as a member of both the Nuestra Familia and VMV. We agree with the trial court
that the prosecutor should have disclosed the conversation. As defendant points out, the
statutory disclosure requirements apply “to relevant oral statements of witnesses
communicated orally to defense counsel by third parties, such as an investigator.”
(Roland v. Superior Court (2004) 124 Cal.App.4th 154, 163.) However, trial counsel’s
failure to object to this testimony did not result in prejudice. The challenged testimony
was very general, and it was not inflammatory. Sergeant Leal stated that Soto and Klipp
were VMV members with direct ties to the Nuestra Familia. Sergeant Leal did not testify
that Soto or Klipp had any direct connection to defendant, to defendant’s coparticipants,
or to the charged offense. In fact, Sergeant Leal testified that he could not give the
opinion that the charged offense was committed at the “direction of” a criminal street

       6
         Defendant claims that the jury’s read-back requests and the length of
deliberations (approximately 7 hours over two days) suggest the case was close.
However, considering the length of the trial and number of witnesses, the deliberations
were not particularly lengthy, and the jury had to spend a portion of that time determining
whether defendant was guilty of first degree murder. Further, even if the deliberations
could be characterized as lengthy, this “could as easily be reconciled with the jury’s
conscientious performance of its civic duty, rather than its difficulty in reaching a
decision.” (People v. Walker (1995) 31 Cal.App.4th 432, 438-439.)
                                             23
gang. (§ 186.22, subd. (b).) Finally, as noted above, the evidence was overwhelming
both as to defendant’s guilt of second degree murder and as to the gang allegation. Even
if trial counsel had timely objected and moved to strike the challenged testimony, there is
no “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.)
              8.     Ineffective Assistance of Counsel/Evidence Code Section 352
       Defendant contends he received ineffective assistance of counsel because his trial
counsel did not object to the gang expert’s testimony about the Nuestra Familia on the
basis of Evidence Code section 352.7
       Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”
       Defendant first contends that the evidence concerning the Nuestra Familia prison
gang “had marginal, if any, relevance to the gang allegations.” “In general, where a gang
enhancement is alleged, expert testimony concerning the culture, habits, and psychology
of gangs is permissible because these subjects are ‘sufficiently beyond common
experience that the opinion of an expert would assist the trier of fact.’ [Citations.]”
(People v. Valdez (1997) 58 Cal.App.4th 494, 506.) “[E]vidence of gang membership is
[also] often relevant to, and admissible regarding, the charged offense.” (People v.
Hernandez (2004) 33 Cal.4th 1040, 1049.) “Evidence of the defendant’s gang
affiliation—including evidence of the gang’s territory, membership, signs, symbols,
beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity,


       7
        Defendant did bring a motion in limine to exclude Sergeant Leal’s entire
testimony as unduly prejudicial, which appears to have been intended as a reference to
Evidence Code section 352. However, this motion did not specifically pertain to
Sergeant Leal’s testimony about the Nuestra Familia.
                                              24
motive, modus operandi, specific intent, means of applying force or fear, or other issues
pertinent to guilt of the charged crime. [Citations.]” (Ibid.)
       Here, Sergeant Leal’s testimony about the development of Norteño gangs included
his description of the Nuestra Familia. His testimony about the history of Norteño gangs
was relevant to provide background and context for defendant’s offense, in which he and
a group of VMV members and associates went looking to shoot a member of a rival
Sureño gang without any specific provocation. The evidence was thus relevant to both
the gang enhancement and the charged offense.
       Defendant contends that any relevance of the challenged evidence was
outweighed by the risk of undue prejudice. As he points out, in the context of Evidence
Code section 352, “the concept of ‘undue prejudice’ ” refers to “evidence which uniquely
tends to evoke an emotional bias against the defendant as an individual and which has
very little effect on the issues.” (People v. Branch (2001) 91 Cal.App.4th 274, 286.) As
previously explained, the challenged evidence did not connect defendant directly to the
Nuestra Familia, Soto, or Klipp. Thus, the challenged evidence did not tend to evoke an
emotional bias against defendant as an individual.
       In arguing that Sergeant Leal’s testimony about the Nuestra Familia was unduly
prejudicial, defendant cites People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran).
In Albarran, the defendant was convicted of a number of offenses, with gang allegations
found true as to each offense, but the trial court found that insufficient evidence
supported the gang allegations and granted his motion for a new trial as to those
allegations. On appeal, the defendant argued that the trial court also should have granted
him a new trial on the substantive offenses because without the gang allegations, the gang
evidence was “irrelevant and unduly prejudicial.” (Id. at p. 223.) The Court of Appeal
agreed, finding that much of the gang evidence, including “threats to kill police officers
[made by the defendant’s gang], descriptions of the criminal activities of other gang
members, and reference to the Mexican Mafia” was irrelevant and presented a substantial
                                             25
risk of undue prejudice. (Id. at p. 228.) This case does not involve a motion for a new
trial and here there is no dispute that the gang allegations were supported by substantial
evidence. Thus, Albarran is distinguishable.
       Because Sergeant Leal’s testimony about the Nuestra Familia gang was relevant
and not unduly prejudicial, an objection based on Evidence Code section 352 would not
have been meritorious. Thus, even if reasonable trial counsel would have made such an
objection, there is no “reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at
p. 694.)

                                   IV.   DISPOSITION
       The judgment is affirmed.




                                             26
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P. J.




WE CONCUR:




__________________________
MIHARA, J.




__________________________
GROVER, J.




People v. Duarte
H040925
