NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
A jury convicted defendant and appellant James Rogers Smith of the attempted murder of a rival gang member, evading an officer with willful disregard, and possession of a firearm by a felon. Smith filed an appeal and a petition for writ of habeas corpus, which we consolidated with the appeal. Smith raises these claims on appeal: (1) the trial court violated his due process rights by failing to read a note from a prospective juror to him and his trial counsel; (2) dog scent identification evidence was inadmissible; (3) firearms evidence violated his Sixth Amendment rights; (4) the gang expert relied on inadmissible hearsay and the jury was not properly instructed on how to treat the expert's reliance on hearsay; (5) Smith's incriminating statements were improperly admitted; (6) the prosecutor introduced misleading evidence; and (7) the trial court misinstructed the jury on the gang enhancement. In addition to these numerous contentions, Smith argues, both on appeal and in his writ petition, that his trial counsel provided ineffective assistance of counsel.
We hold that the trial court's misinstruction on the gang enhancement requires reversal and remand on that ground only. As to Smith's remaining contentions raised on appeal and in the writ petition, we hold that there was no error or harmless error. The judgment is therefore otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. Prosecution's case.
1. The shooting of Ruben Wardlaw.
On July 13, 2007, around 4:00 a.m., Ruben Wardlaw was outside Community Arms Apartments on Orange Grove in Pasadena. A member of the Pasadena Denver Lane Bloods, Wardlaw wore burgundy colored shoes and a red belt, although a white shirt covered the belt. A white Chevy Impala passed Wardlaw and then turned around. Fearing that something was going to happen, Wardlaw hid behind a gate, and the Impala's driver shot at Wardlaw. Wardlaw was not injured, but bullets tore his shoe and jeans. A metal pole that Wardlaw had been standing in front of had a bullet strike mark, and bullet fragments were below the pole. Shell casings were also recovered from the scene.
At the scene, Officer Carlo Montiglio asked Wardlaw if he'd heard gunshots, and Wardlaw said that he saw who had shot at him. Wardlaw described the shooter as a Black man with a bald head wearing a blue shirt. The man drove a newer model white Chevy Impala without tinted windows, and he was the car's sole occupant.
While talking to Wardlaw, Officer Montiglio saw a white Chevy Impala going eastbound on Orange Grove. The car slowed and the driver, who wore a blue shirt, looked directly at the officer. Officer Montiglio identified Smith as the driver. Smith "gunned" it and left. Wardlaw said, "that's the car, that's the car that shot at me." After a freeway car chase on the 210 East Freeway during which Smith drove over 100 miles per hour and was pursued by black and white police cars with sirens on, the police found the car, parked. Smith was walking away, and he had the keys to the Impala on him. A bullet casing was recovered from the floor in front of the driver's seat. A rental car contract was also in the car.
Around 4:25 a.m. that same day, Mike Statt was asleep in his truck, which was parked on the side of the road on the 210 eastbound side of the freeway. He heard a big bang as if something hit his truck and police cars go by with their sirens on. Outside, Statt found a gun, a gun clip and spring, and a bullet, all of which he gave to the police. The police discovered a spent casing in the gun's ejector port.
2. Witness statements.
(a) Donnie Shay.
Donnie ("Don Don") Shay had known Wardlaw for about 10 years, and people often told him that they look alike; officers always got them mixed up. Shay denied being a gang member, although he also said he wasn't active anymore. When Wardlaw came home on parole, Shay told him to watch his back because things had changed in the neighborhood. He denied telling Wardlaw to be careful because people might think Wardlaw was him, and people were looking for him (Shay). On two separate occasions, Shay had been shot, once in the arm and once, in February 2007, in the head. Shay picked Smith out of a six-pack as the person who shot him in the head.
Saying he wasn't a snitch, Wardlaw refused to go to a field showup. He did, however, give a recorded statement to the police on August 4, 2007.
Wardlaw also told Detective Grant Curry, the investigating officer, that he had been placed in a cell with Smith, who asked Wardlaw if he'd hit him. Wardlaw said he hadn't been hit, but that his clothes had been.
(c) Smith's incriminating statements.
The following jailhouse telephone conversations between Smith and another person were introduced:
3. Firearms and dog scent evidence.
Edmund Anderson, a firearms identification expert, examined the gun, a Hi-Point semiautomatic pistol (People 25) recovered from the 210 Freeway, two shell casings found at the scene of the shooting, and the casing found in the Impala. Anderson's tests showed that the casings were fired from the Hi-Point gun. Fingerprints, however, were not recovered from the gun.
While at the station, Smith had to be forced to submit to a gunshot residue test. The test, performed almost three hours after Wardlaw was shot at, found no gunshot residue on Smith's hands. But about 90 percent of whatever is on a person's hands falls off within an hour.
Ted Hamm, a scent hound handler for the Los Angeles County Sheriff's Department, and his dog, Bojangles, a trained scent hound, went to the station where Smith was being held. Using a Scent Transfer Unit, which is like a modified dust buster, Hamm transferred scent from a nine-millimeter handgun given to him to a gauze pad, which he had Bojangles smell. Bojangles then led Hamm through the third floor of the station to the room in which Smith was being held and "alerted" to Smith.
4. Gang evidence.
The Pasadena Denver Lanes (PDL) and the Altadena Block Crips were rivals. The PDL hang out at Community Arms, where Wardlaw was shot at. Officer Todd McDonald, a gang investigator, met Wardlaw, whose moniker is Red or Little Red, over a dozen times. Wardlaw and Shay were PDL members, and they admitted their membership to Detective Keith Gomez, a gang investigator. From what other gang members have told him, Detective Gomez knew that Smith was a gang member, although he'd never personally had contact with him.
Detective Richard Pippin agreed that Smith was an Altadena Block Crip. The primary activities of the Altadena Block Crips are drug trafficking (cocaine, marijuana and ecstasy), thefts, vehicle thefts, burglaries, and assaults on other gang members. The detective based his opinion that Smith was a gang member on several factors, including that when Smith was arrested, he had in his possession the prison address of the most notorious Altadena Block Crip member and a photo of a dead Altadena Block Crip. Other detectives who had personally spoken to Smith told Detective Pippin that Smith admitted his gang membership to them. Detective Sica also had a conversation with Rufas Williams, a witness to a gang-related murder, in which Williams identified Smith from photographic lineup as "Junior," with whom he'd been in a gang fight. When Smith was shot in 2006, he was uncooperative with the investigation, although Smith's girlfriend, Annette McDaniels, told an officer that Smith was an Altadena Block Crip. The detective thought that the shooting of Smith was gang-related based on Smith's behavior and based on what other detectives and Smith's friends said about him. A confidential informant told the detective that Smith is an Altadena Block Crip. After given a hypothetical based on the facts of this case, the detective said it was his opinion that shooting at Wardlaw benefitted the Altadena Block Crips, because the crime created fear in the community, and shooting at a rival showed a willingness to retaliate.
B. Defense case.
Annette McDaniels had been Smith's girlfriend for about three years. At the time of the shooting, Smith was working at Hollywood Park in the early evenings. He was not in a gang, and she didn't tell a sheriff's deputy that he was a member of the Altadena Block Crips known as Junior.
Valerie Robinson, Smith's close friend, testified that when their cars broke down, she and Smith rented a car, a white Impala. Smith was not a gang member, although she knew Altadena Block Crip members.
II. Procedural background.
On August 7, 2008, a jury found Smith guilty of, count 1, the willful, deliberate, and premeditated attempted murder of Wardlaw (Pen. Code, §§ 187, subd. (a), 664, subd. (a)).
On June 18, 2009, after Smith admitted he suffered prior convictions, the trial court sentenced him to 15 years to life for attempted murder, plus 20 years for the gun enhancement under section 12022.53, subdivision (c). On count 3, he was sentenced to two years plus an additional two 1-year terms under section 667.5, subdivision (b). The sentence on count 2 was stayed under section 654.
III. The trial court's failure to read the entire note from Juror No. 5 did not deprive Smith of any rights.
In a note to the trial court, a prospective juror expressed concern about defense counsel. The court told counsel and Smith about the note but neglected to read it verbatim to them. Smith now contends that the court deprived him of various rights, including his right to counsel and to be present during the proceedings. We disagree.
During jury voir dire, the trial court received a note from Juror No. 5/6066, which the court read into the record outside the presence of all counsel, Smith, and the jury. The note said: "What if you don't think the defense attorney is going to do a good job based on their interview skills when questioning/addressing the jury panel? [¶] I was concerned that his questions didn't always make sense. He closed his eyes several times and appeared to really be searching for his words and his points were lost by the time he finally found the words. [¶] If I can't understand him I'm afraid I can't do an adequate job as a juror. Should I just hang [in] there and hope for the best?"
The next day, the trial court told defense counsel, in Smith's presence, that Juror No. 5 "expressed some concern that she was having some trouble understanding some of your questions. [¶] It seems to me that she's referring to the first day we started jury selection and you were inquiring of the entire group. [¶] . . . [¶] . . . And we weren't getting anything in terms of audible responses. Some of the people were just sort of sitting there, some were nodding. So she was saying she found some of your questions confusing and she was wondering, you know, if that was going to be a problem during the trial. [¶] She had written: [¶] [`]If I can't understand him I'm afraid I can't do an adequate job as a juror. Should I just hang on there and hope for the best?['] [¶] And she doesn't express any bias. She just was expressing a concern. My guess is that yesterday's questioning was more focused and everybody kind of has the idea of what's going on, but I wanted to bring that to your attention. [¶] And, you know, you've got lots of peremptories. If you decide you want to use one with her, fine, or you want to check her body language, whatever, but that's what she had said." The defense later excused Juror No. 5. The court did not, it appears, read the entire note to counsel.
By failing to read the entire note to him and his defense counsel, Smith contends that his rights to be present (Cal. Const., art. I, § 15), to effective assistance of counsel, and to due process of law under the Sixth and Fourteenth Amendments of the federal Constitution were violated. Had he known of the note's entire contents, he might have, he argues, moved to substitute counsel or to represent himself, and he wouldn't have been deprived of the ability to mount a meaningful defense.
To support his arguments, Smith contrasts what occurred here with People v. Hovey (1988) 44 Cal.3d 543. In Hovey, the trial court held, on its own motion, an in camera hearing to determine whether the defendant's counsel was providing effective assistance. (Id. at p. 574.) The court determined that he was. Although the defendant was not present at the hearing, his counsel was ordered to tell him what had happened, and the defendant evidently expressed no concern. Hovey held that it was not error to exclude the defendant from the hearing: "As a general rule, the accused is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his opportunity to defend the charges against him, and `[t]he burden is upon defendant to demonstrate that his absence prejudiced his case or denied him a fair and impartial trial.' [Citations.]" (Id. at pp. 573-574.)
Smith points out that, unlike in Hovey, neither he nor his counsel were present when the trial court read the entire note into the record and that information bearing on his attorney's competence was withheld from him. But had the trial court read the entire note to counsel and to Smith what likely would have happened is exactly what did happen: defense counsel exercised a peremptory challenge to prospective Juror No. 5. That prospective juror therefore was not on the jury. In any event, we cannot equate one juror's expression of dissatisfaction with counsel with a finding that said counsel was ineffective or incompetent. All it meant is one juror may not have liked defense counsel; it did not mean or otherwise show that defense counsel in fact was ineffective. Smith, moreover, was present during voir dire and expressed no concern at that time about his counsel's performance. Indeed, other than this one note, Smith does not point to anything in the record showing that defense counsel was ineffective during voir dire. Smith's after-the-fact ruminations about what he might have done had he known the full contents of the note are irrelevant in the absence of evidence that there were grounds for a Marsden or Faretta motion. We therefore see no prejudice resulting from the trial court's failure to disclose the entire contents of the note to Smith and his trial counsel.
IV. Dog scent evidence.
The trial court admitted evidence that a dog, after smelling evidence, identified Smith. Smith contends that the evidence failed to meet Kelly/Frye
A. Additional facts.
Just before the prosecution's last witness, Hamm, was to testify, the defense asked for an Evidence Code section 402 hearing (402 hearing) under Kelly/Frye. The defense argued that dog scent identification did not meet the scientific standard. When asked for a succinct statement of his position, defense counsel said that there was no "scientific evidence that dogs can identify one scent, if you want to call it a scent line, that they can distinctively say that's that person. They can't do that. That is not something that all dogs can do, even trained dogs. [¶] And there's—research has found that it's better than chance and that's it."
Although the trial court was concerned about the timeliness of the motion, and the prosecutor objected on that ground, Hamm then testified at a 402 hearing. Hamm used a vacuum device called the Scent Transfer Unit (STU), which is like a modified dust buster, to collect scent from evidence and put it on a sterile gauze pad. Hamm gave the scent pad to Bojangles, the dog, to smell while they were at the police station. Bojangles went down several hallways, made turns, and ended up in a small room where Smith was. Bojangles alerted to Smith.
After the 402 hearing, the prosecutor filed a motion to admit evidence of dog scent discrimination in which he cited a trial court case, People v. Salcido (Super. Ct. L.A. County, 2005, No. GA052057) (Salcido).
The trial court here adopted the findings in Salcido and found that all prongs of Kelly/Frye had been met, although foundation needed to be established as to Bojangles, namely, that he was certified and experienced. Defense counsel disagreed that that there "has been scientific evidence. Everything I've seen has been by dog handlers and people who are involved [in] dogs." The court overruled the objection and reiterated that the prosecution would have to lay a foundation as to Bojangles. Defense counsel said, "I join." The prosecutor then argued that this was a "trailing" case where the dog was given the scent and trailed it to the individual. The defense argued that it was a scent identification case. The trial court said it didn't need to make that determination, that it was a combination.
Hamm then testified before the jury that he was a civilian scent hound handler for the Los Angeles County Sheriff's Department, and he'd been training dogs to follow human scent for 20 years. Scent is made of numerous compounds bodies shed that give a person a unique scent to dogs. Scent can stay on the ground for a minimum of one week and as much as one month. Scent can stay on a sealed item for a minimum of five years. Hamm was familiar with one study regarding scent dilution where a drop of blood was diluted down to 50,000 drops of water, and the dogs in all cases were able to identify the scent.
Bojangles was a bluetick coonhound, a variety of hunting hound. He was part of a group of dogs that the American Kennel Club calls scent hounds, dogs trained to locate people or animals by scent. To train a dog to become a scent hound, Hamm goes through "hundreds of small steps." He tries to get the dogs when they're young, and he first spends about a week socializing with the dog. Early trainings involve having a person run from the dog and letting the dog chase that person, who, while running away, drops something, like a handkerchief. Hamm has the dog smell the handkerchief. Once the dog catches up to the person, the dog gets a reward. Hamm has participated in searches and rescues. Most frequently he is called to a crime scene, where the dog sniffs evidence and then tries to find the suspect.
Hamm has had Bojangles since he was 12 weeks old. During Bojangles's first year and a half of training, he was trained about four times a week, but he now gets trained about once a week. One training session involved Bojangles following a person's scent trail through Cal State Long Beach. Bojangles works better with fresher scents, 18 hours old or less. Bojangles has worked about 300 criminal investigations, and been proven correct in 30 cases that Hamm knows of. Although some of Hamm's other dogs have been wrong, Bojangles hasn't been yet.
The STU is "basically a modified dust buster." It's a vacuum device used by handlers across the country to collect scent from evidence. It collects scent off the item, which is then placed onto a sterile gauze pad and given to the dog to smell. To avoid contaminating the evidence, dogs are usually not allowed to sniff the actual item. Before each use, Hamm, wearing latex gloves, wipes with alcohol all of the STU's contact surfaces.
On July 13, 2007, Hamm and Bojangles went to the Pasadena Police Department, where he was asked to do a suspect identification, meaning matching scent from an item to a suspect. Hamm asked that the suspect, Smith, be taken to a part of the station the suspect had never before been to. Using a STU machine, Hamm extracted scent from a nine-millimeter gun onto a gauze pad.
B. Any error in admitting dog scent identification evidence was harmless.
The essence of Smith's contentions on appeal concerning this evidence is it failed to satisfy Kelly/Frye, and the prosecutor failed to lay a proper foundation for its admission. The People respond that Smith's trial counsel failed to object in the trial court on the specific grounds raised on appeal; therefore, the issues have been forfeited. To this, Smith responds that if his trial counsel failed to object, then his counsel was ineffective. Although we briefly discuss Kelly/Frye in the context of dog scent identification and the foundational requirements for admitting such evidence, it is unnecessary to address Smith's contentions, because we hold that any error in admitting the evidence was harmless.
California courts have held that evidence of dog tracking or trailing by scent (e.g., where a dog smells a crime scene and follows the path of the suspects) is not subject to a Kelly hearing. (See, e.g., People v. Craig (1978) 86 Cal.App.3d 905; People v. Malgren (1983) 139 Cal.App.3d 234.) Those tracking or trailing cases, however, are distinguishable from cases involving "scent identification lineups" where scents are transferred to pads so that the dog can discriminate between them. (People v. Mitchell (2003) 110 Cal.App.4th 772 (Mitchell).) Such lineups can involve, as here, the STU, which has been found to be a novel device subject to a hearing under Kelly.
The scent identification procedure in Mitchell was different than the one here. Hamm, who was also the dog handler in Mitchell, used the STU to collect scent from shell casings, and he put the scent in a "lineup" with scents collected from other people, including from the defendant's shirt. (Mitchell, supra, 110 Cal.App.4th at pp. 780-781.) The trial court refused to hold a Kelly/Frye hearing, and Mitchell held that Kelly did apply to scent identification evidence. Moreover, "[f]or scent identification to be relevant, there must be some basis for assumptions made about degradation and contamination of scent, both before and during collection, as well as the uniqueness of each person's odor, beyond the mere experiences of one trainer and one dog." (Mitchell, at pp. 793-794; accord, Willis, supra, 115 Cal.App.4th at p. 386 ["Instead, a foundation must be laid from academic or scientific sources regarding (a) how long scent remains on an object or at a location; (b) whether every person has a scent that is so unique that it provides an accurate basis for scent identification, such that it can be analogized to human DNA; (c) whether a particular breed of dog is characterized by acute powers of scent and discrimination; and (d) the adequacy of the certification procedures for scent identifications"].)
Mitchell and Willis are distinguishable because in those cases the trial courts did not hold a hearing under Kelly. Here, the trial court held a Kelly hearing, albeit a somewhat unusual one that relied on the extensive findings made in another case, Salcido. Still, neither Mitchell nor Willis involved the specific scent identification procedure used here, where scent from evidence was transferred to a pad using the STU and the dog smelled that pad in a police station and tracked down the suspect in the station.
We need not, however, decide whether the Kelly hearing held and the foundation as to Bojangles were sufficient. Under People v. Watson (1956) 46 Cal.2d 818, it is not reasonably probable Smith would have been acquitted absent admission of the scent identification evidence. (Mitchell, supra, 110 Cal.App.4th at p. 795 [applying Watson standard of review]; Willis, supra, 115 Cal.App.4th at p. 388 [same].) There was overwhelming evidence of Smith's guilt, even in the absence of the dog identification evidence; namely, there was an eyewitness, Wardlaw, who identified Smith as the shooter; there was physical evidence linking Smith to the shooting; and Smith made incriminating statements.
Specifically, Wardlaw, an admitted member of the PDL Bloods gang, was standing outside the Community Arms, where members of his gang were known to hang out. A white Chevy Impala drove by and shot at Wardlaw, who was wearing burgundy shoes. Wardlaw told the responding officer, Montiglio, that he saw the shooter, who was bald, wore a blue shirt, and was alone in the car. Just then, a white Chevy Impala came by, and Wardlaw immediately said that was the car that had "shot" at him. Officer Montiglio got a look at the driver. The driver was Smith, who was a member of the Altadena Block Crips, a rival of the PDL. Smith quickly drove away, leading officers on a high speed chase over the streets and the 210 Freeway.
Around the same time that Smith was trying to evade officers, a trucker, Statt, was asleep in his truck, which was parked on the 210 Freeway. When Statt heard something hit his truck, he went outside and found a gun and gun-related items, which he gave to the police. The police soon found the white Chevy Impala parked near the Colorado exit off the freeway. Smith was walking nearby, with the keys to the Impala on him. From the floor in front of the driver's seat in the Impala, the police recovered a bullet casing. Firearms testing showed that the casing from the Impala and casings found at the scene of the shooting were fired from the gun Statt found near his truck on the 210 Freeway. Also found in the Impala was a rental car contract, and Smith's close friend admitted that she and Smith had rented the car together.
Wardlaw refused to go to a field showup after Smith was arrested, but he did give a recorded statement to the police in which he identified Smith as the shooter, although he denied at trial making those statements and said he didn't know or recognize Smith.
Don Don, who was also member of the Altadena Block Crips, had been shot on two separate occasions, and he warned Wardlaw to be careful, because he and Wardlaw were often mistaken for each other.
Finally, Smith made recorded incriminating statements in phone calls from jail. He said he didn't know "who I attempted murder on"; that the trucker found the gun; that there was evidence against him; and that he was by himself.
Given this evidence, it is not reasonably probable the jury would have acquitted Smith even if the scent identification evidence had been excluded under Watson. Nor did the admission of this evidence violate Smith's due process rights. The scientific evidence admitted here is not like the unduly suggestive witness identification procedure in Manson v. Brathwaite (1977) 432 U.S. 98. Also, even if admitting the evidence was erroneous, its admission did not render the trial fundamentally unfair. (See, e.g., People v. Partida (2005) 37 Cal.4th 428.) In any event, any error in admitting the dog scent evidence was harmless, whether the standard in Watson or in Chapman v. California (1967) 386 U.S. 18, applies.
C. Smith was not prejudiced by any failure on the part of his trial counsel to object to the dog scent evidence.
Because we find that any error in admitting the dog scent identification evidence was harmless, we also reject Smith's alternative argument that his counsel was ineffective if he failed to preserve his objections for appeal.
"A meritorious claim of constitutionally ineffective assistance must establish both: `(1) that counsel's representation fell below an objective standard of reasonableness; and (2) . . . there is a reasonable probability that, but for counsel's unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.'" (People v. Holt (1997) 15 Cal.4th 619, 703, italics omitted; Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Lopez (2008) 42 Cal.4th 960, 966.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.) A reviewing court presumes that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. "`Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citations.]'" (People v. Gamache (2010) 48 Cal.4th 347, 391.)
"Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment `unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . .' [Citation.]" (People v. Bolin, supra, 18 Cal.4th at p. 333.) The "review of counsel's performance is to be highly deferential. . . . `Because of the difficulties inherent in making the evaluation [of counsel's tactical choices], a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." [Citation.] There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. . . .' [Citation.]" (People v. Duncan (1991) 53 Cal.3d 955, 966.)
"There are two components to an ineffective assistance of counsel claim: deficient performance of counsel and prejudice to the petitioner. Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.Ct. 2052, 2069, 80 L.Ed.2d 674], informs us that `there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.'" (In re Cox (2003) 30 Cal.4th 974, 1019-1020.) To show ineffective assistance of counsel, appellant must show that he "suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]" (People v. Gray (2005) 37 Cal.4th 168, 207.)
As we have said above, even if Smith's trial counsel's objections to the dog scent evidence were somehow deficient, Smith was not prejudiced by it. His ineffective assistance of counsel claim on this ground therefore fails.
V. Smith was not prejudiced by any error in admitting the firearms evidence.
Smith next contends that multiple errors occurred with respect to the testimony of the firearms expert, Anderson: A. Smith's Sixth Amendment confrontation rights were violated when Anderson testified that a colleague reviewed his work and reached the same opinion. B. His trial counsel provided ineffective assistance when he failed to question adequately Anderson's testimony that toolmarks on gun casings were unique.
A. Any failure to object to evidence that Anderson's work was peer reviewed was harmless.
Anderson fired test shots from the gun the trucker found on the freeway. He then compared "toolmarks" on those test shots to the casing found in the Impala and to casings found at the scene of crime. Anderson expressed his opinion that the casing in the Impala and casings found at the scene of the crime were fired from the gun found on the freeway. When cross-examined about his testing and opinion, Anderson added that a senior colleague, in a peer review process, agreed with him. Defense counsel didn't object or move to strike the testimony, and Smith argues that the testimony violated his confrontation right.
The Confrontation Clause guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) Under the Confrontation Clause, out-of-court statements that are testimonial in nature are inadmissible unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant. (Crawford v. Washington (2004) 541 U.S. 36, 68-69 (Crawford). The question Crawford left open was what statements (other than prior testimony at a preliminary hearing or testimony before a grand jury or at a former trial and statements made in police interrogations) were testimonial in nature.
Recently, the United States Supreme Court clarified that affidavits showing the results of a forensic analysis performed on seized substances were testimonial; therefore, the affidavits could not be admitted in lieu of in-court testimony unless the analyst was unavailable and had previously been subject to cross-examination. (Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527, 2535-2536] (Melendez-Diaz). But Melendez-Diaz did not hold that "anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case" or that "everyone who laid hands on the evidence must be called." (Id. at p. 2532, fn. 1.)
This exception for people who might have participated in some respect in the testing but are secondary to it applies here. In this case, Anderson conducted the examination and testing. His tests and results were then examined in what appears to be a standard peer review process. Anderson prepared the report, which bears a stamp notation, "Technical Review/PR" by Manual Munoz. (People Ex. 30A.) It was Anderson who directly analyzed the evidence, and Munoz merely reviewed the results. Because Anderson testified and was subject to cross-examination, the Confrontation Clause was not violated.
But even if Anderson's brief reference to peer review violated Smith's confrontation rights, the error was harmless. "Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24 . [Citation.] `Since Chapman, we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.' [Citation.] The harmless error inquiry asks: `Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?'" (People v. Geier (2007) 41 Cal.4th 555, 608.) We can say with confidence that any error was harmless beyond a reasonable doubt.
This is clear when the challenged testimony is placed in context. Anderson testified that his tests, based on imprints left on the bullets, showed that the bullets retrieved were fired from the gun found on the freeway. Defense counsel tried to cast doubt on the idea that not another gun in the world could make the same imprints, but Anderson responded that the likelihood of that was remote. Defense counsel then started to ask about guns made by the same manufacturer, and Anderson gave a long example about a test he'd done on 12 gun barrels from the same manufacturer, the result of which was he was able to match 12 different bullets to the 12 guns from which they'd been fired. Anderson added, "In this particular case here one of my jobs was to compare without a doubt that these particular fired cartridge casings had been fired from this particular firearm and the answer to that is they were." When defense counsel asked, "In your opinion?" Anderson answered: "Well, we have what we call peer review. Every time I do a case or any time that any examiner does a case down at the Sheriff's Crime Lab we take and we package all the evidence and we submit it to another examiner for a completely independent review. So, basically, two separate examiners are looking at the evidence. [¶] And my senior criminalist, Manny Munoz, did the peer review on this particular case and he also agreed with my finding." Anderson's testimony thus made it clear that he personally examined the evidence and tested it, and Munoz merely reviewed it. The reference to peer review was so brief, coming after Anderson's lengthy and clear explanation of his personal testing and opinion, that any error in admitting evidence that a peer review occurred was harmless beyond a reasonable doubt.
Alternatively, Smith argues on appeal that his trial counsel was ineffective for failing to object to the reference to peer review. "The defendant always has the burden of raising his Confrontation Clause objection" (Melendez-Diaz, supra, 129 S.Ct. at p. 2541, italics omitted) and "[t]he right to confrontation may . . . be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections. [Citation.]" (129 S.Ct. at p. 2534, fn. 3.) There may have been tactical reasons why Smith's trial counsel did not object to Anderson's testimony regarding peer review. Anderson had already testified in detail about the testing he had done and his opinion that the crime scene casings and the casing from the Impala were fired from the gun found on the freeway. Trial counsel might have decided that objecting to Anderson's brief reference to the peer review would have only highlighted it. In any event, Smith was not prejudiced by the passing mention to peer review, and, as we have said above, a defendant who complains that his counsel provided ineffective assistance of counsel must establish that he was prejudiced by it.
B. Trial counsel did not provide ineffective assistance by failing to raise the National Academy of Sciences Report.
Smith raises additional ineffective assistance of counsel arguments in his writ petition; namely, his trial counsel should have challenged Anderson's testimony under People v. Kelly, supra, 17 Cal.3d 24, apparently based on a then recent report released in February 2008 by the National Academy of Sciences, Strengthening Forensic Science in the United States. In his declaration in support of the writ petition, Smith's trial counsel declares he was unaware of the report and had no tactical reason for not raising it. We cannot fault defense counsel for failing to be aware of a report issued in February 2008 about the validity of forensic sciences, including ballistics evidence, at a trial conducted just months thereafter, in July and August 2008.
Also, based on what has been submitted in support of the writ petition—the report's Executive Summary and Preface rather than the entire report—a Kelly hearing would not have been warranted even if trial counsel had requested one. In Kelly, the California Supreme Court held that the admissibility of expert testimony based on "a new scientific technique" requires proof that the technique is reliable. (People v. Kelly, supra, 17 Cal.3d at p. 30.) Kelly applies to unproven techniques or procedures that appear "to provide some definitive truth which the expert need only accurately recognize and relay to the jury" such as "machines or procedures which analyze physical data" because "[l]ay minds might easily, but erroneously, assume that such procedures are objective and infallible." (People v. Stoll (1989) 49 Cal.3d 1136, 1156.) Proof of a technique's general acceptance in the relevant scientific community is no longer necessary once a published appellate decision affirms a trial court ruling admitting evidence obtained by that scientific technique, until there is new evidence of a change in the scientific community's attitude. (People v. Bolden (2002) 29 Cal.4th 515, 544-545.)
Here, the report's executive summary did not show that the report challenged the elements underlying Kelly with respect to toolmarks. Rather, the purpose of the report was to "`assess the feasibility, accuracy and reliability, and technical capability of developing and using a national ballistics database as an aid to criminal investigations.'" The summary, however, did acknowledge that underlying its specific task was "the question of whether firearms-related toolmarks are unique: that is, whether a particular set of toolmarks can be shown to come from one weapon to the exclusion of all others. Very early in its work the committee found that this question cannot now be definitively answered. [¶]
Thus, the report came to no conclusion regarding the uniqueness of toolmarks, saying that further research needed to be done. Moreover, although trial counsel here did not have the report and therefore did not ask Anderson about it, counsel did cross-examine Anderson about the validity of his conclusion that no other gun in the world could have fired the casings recovered from the scene of the shooting and from the Impala in an attempt to raise questions about the uniqueness of toolmarks. We therefore conclude that trial counsel did not provide ineffective assistance by failing to raise the report specifically or to cross-examine Anderson about it.
VI. Gang expert testimony.
Detective Richard Pippin testified that in his expert opinion Smith was a member of the Altadena Block Crips. He based his opinion on, among other things, statements made to him by other officers, detectives, and confidential informants about Smith's gang affiliation. Smith contends that allowing the detective to testify about what others told him violated his confrontation rights under Crawford v. Washington, supra, 541 U.S. 36. We disagree.
A. Additional facts.
Detective Pippin based his opinion that Smith was a member of the Altadena Block Crips on, in part, what other people told him about Smith:
Williams and Detectives Sica, Rodriguez, Long, Niebel, and Lewis repeated their conversations to Detective Pippin, who testified about them at Smith's trial. But neither Williams nor Detectives Sica, Rodriguez, Long, Niebel, and Lewis testified at Smith's trial.
B. Smith's confrontation rights were not violated by the admission of the gang expert's testimony about the basis for his opinion.
Crawford's applicability to hearsay relied on by an expert in rendering his opinion was examined in People v. Thomas (2005) 130 Cal.App.4th 1202.
Cooper said: "Hearsay relied upon by experts in formulating their opinions is not testimonial because it is not offered for the truth of the facts stated but merely as the basis for the expert's opinion. [Citations.] [¶] Crawford was concerned with the substantive use of hearsay evidence that was admitted within an exception to the hearsay rule. It did not suggest that the confrontation clause was implicated by admission of hearsay for nonhearsay purposes. In fact, Crawford expressly stated that the confrontation clause `does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.' (Crawford [v. Washington (2004)] 541 U.S. [36,] 59, fn. 9.) . . . [I]f hearsay is admitted for a nonhearsay purpose, it does not turn upon the credibility of the hearsay declarant, making cross-examination of that person less important. The hearsay relied upon by an expert in forming his or her opinion is `examined to assess the weight of the expert's opinion,' not the validity of their contents. (Ibid.)" (People v. Cooper, supra, 148 Cal.App.4th at p. 747; see also People v. Gardeley (1996) 14 Cal.4th 605, 618-619; Evid. Code, § 801, subd. (b) [an expert's opinion may be based on matter "whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, . . ."].)
The hearsay statements to Detective Pippin and repeated by him in court as a basis for his opinion that Smith was a gang member did not violate Smith's confrontation rights when they were admitted at trial. Such evidence is not "testimonial" within the meaning of Crawford. What other detectives, confidential informants, and witnesses told Detective Pippin about Smith was not admitted to establish the truth of what they were saying. It was admitted as a basis for his opinion that Smith was a gang member. Smith's confrontation rights under Crawford were therefore not violated.
C. Any instructional error regarding hearsay the expert relied on was harmless.
At the conclusion of Detective Pippin's testimony on direct examination, he stated that he was basing his opinion on, among other things, conversations with other gang members, detectives, and officers who had arrested him. Before cross-examination started, the trial court instructed the jury: "I should advise the jury also, Detective Pippin is testifying as an expert witness. And I know that probably from television and other things you've heard the expression hearsay. That just means an out-of-court statement offered to prove the truth of the matter. [¶] . . . If I said my daughter's name was—is Lisa to someone and then they go [on] and said, you know, Candace Beason's daughter's name is Lisa, that would be a hearsay statement. Something I said out of the courtroom and they're offering it to show that that's my daughter's name. [¶] But with an expert, an expert is allowed to rely on hearsay in formulating their opinion. And then there's [the] instruction that talks about how you should analyze whether or not—what you find—whether it's true or not what they base their opinion upon. [¶] Does that make sense at all? And I don't have a daughter named Lisa." Thereafter, at the conclusion of the case, the trial court instructed the jury with CALJIC Nos. 2.80
In giving these instructions, Smith contends that the trial court failed to tell the jury that hearsay statements could not be considered for the truth of the matter asserted and instead told them that they could be considered for their truth, in violation of his confrontation rights. "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) . . . .) On direct examination, the expert may explain the reasons for his [or her] opinions, including the matters he [or she] considered in forming them. However, prejudice may arise if, `"under the guise of reasons,"' the expert's detailed explanation `"[brings] before the jury incompetent hearsay evidence."' [Citations.]" (People v. Montiel (1993) 5 Cal.4th 877, 918-919.) "Because an expert's need to consider extrajudicial matters, and a jury's need for information sufficient to evaluate an expert opinion, may conflict with an accused's interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court's sound judgment. [Citations.] Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his [or her] opinion and should not be considered for their truth. [Citation.]" (Id. at p. 919.)
It is true that here the trial court did not instruct the jury that hearsay relied on by the gang expert as a basis for his opinions was not admitted for its truth. The trial court also gave a confusing instruction to the jury while Detective Pippin was on the stand. Any error, however, was harmless under Chapman v. California, supra, 386 U.S. 18, 24, that is, any constitutional error was harmless beyond a reasonable doubt. The court did instruct the jury that some evidence had been admitted for a limited purpose, and could not be considered for any other purpose (CALJIC No. 2.09), although the instruction was not tied to particular evidence. Moreover, aside from the hearsay evidence that other people told Detective Pippin that Smith was an Altadena Block Crip member, there was substantial other evidence of this allegation. Smith had been shot on a prior occasion, but he resisted helping the police with the investigation. After that shooting incident, Annette McDaniels, Smith's girlfriend, told an officer that Smith was a gang member; and McDaniels testified and was subject to cross-examination; and she denied that Smith was a gang member. Also, when Smith was arrested for this crime, he had a photograph of a dead Altadena Block Crip member and the jail address of another member on him, all of which was evidence that he associated with other gang members. Smith's own close friend admitted that she had ties to Altadena Block Crip members, although she said Smith wasn't one. Moreover, the victim, Wardlaw, was, in his words, "flamed up" when he was shot and standing in front of a known Blood hangout, making it likely that this was a gang-related crime. As to the substantive crime, we have detailed the overwhelming evidence showing that Smith attempted to kill Wardlaw. Any instructional error regarding an expert's reliance on hearsay was therefore harmless.
VII. Detective Grant Curry's testimony.
The victim, Wardlaw, testified about the shooting, but he was not asked about any conversations he had with Smith about the shooting. After Wardlaw testified, Detective Grant Curry, the investigating officer, testified. Detective Curry flew to New Orleans to bring a reluctant Wardlaw back to Los Angeles to testify. The prosecutor asked the detective what Wardlaw had said to him about whether he would come to court. Defense counsel asserted a hearsay objection, but the trial court overruled it, saying it went to a prior inconsistent statement. The detective then testified, without any further objection from defense counsel, that Wardlaw said he wouldn't come to court, but Wardlaw mentioned that he had been placed in lockup with Smith. Smith asked Wardlaw if he had hit him, and Wardlaw told him that his clothes got shot.
Smith now contends that the detective's testimony about the conversation between Wardlaw and Smith was inadmissible hearsay, and it violated his confrontation rights. Although the Attorney General points out that Smith's statements to Wardlaw were admissible as a party admission (Evid. Code, § 1220), the Attorney General concedes, and we agree, that there was no exception to admit Wardlaw's statements to the detective about what Smith said.
We therefore must address Smith's alternative contention that his counsel provided ineffective assistance of counsel by failing to object to this hearsay evidence. In support of the writ petition, Smith's trial counsel has declared that he had no strategic or tactical reason why he didn't object to the Curry's testimony about the conversation between Wardlaw and Smith in lockup. The Attorney General suggests, however, that had defense counsel objected to the evidence, the prosecution might have tried to recall Wardlaw to testify. If successful in getting Wardlaw back on the stand, then he might have confirmed that he had such a conversation with Smith or, in keeping with his prior performance on the stand, would have denied having the conversation. In either situation, Smith's confession would have been highlighted. His trial counsel therefore might have decided to limit any potential damage by quickly moving on.
In any event, the error was harmless under Chapman v. California, supra, 386 U.S. at page 24, or People v. Watson, supra, 46 Cal.2d at page 836. As we have discussed above, the victim said the shots were fired from the car Smith was driving, Officer Montiglio identified Smith as the driver, Smith evaded police, and ballistics connected a shell casing found in Smith's car to casings found at the scene of the crime. And although Detective Curry's testimony was arguably the most unambiguous evidence of a confession by Smith, other incriminating statements made by Smith were properly admitted; namely, the recorded jailhouse conversations in which Smith, among other things, admitted that he was "by himself" during the events, and he didn't know who he'd "attempted murder on." Counsel's failure to object to the inadmissible hearsay did not therefore prejudice Smith.
VIII. The prosecutor did not introduce "misleading" evidence about Smith's warrants.
Defense counsel was precluded from introducing evidence Smith told investigating officers he fled because he thought there was an outstanding warrant for his arrest, but the prosecution was allowed to introduce evidence that there were no warrants for Smith's arrest. Smith contends that the admission of this evidence was "misleading" and violated his due process rights. We disagree.
Before trial, defense counsel objected to the exclusion of statements Smith made to an officer about why he evaded the police. The trial court said it didn't see how those statements would come up, but the issue would be discussed later. The court also told the parties not to refer to such statements during the opening remarks. But defense counsel, during his opening statement, said he expected that there would be evidence that Smith told an officer he thought there was a warrant for his arrest.
Thereafter, the prosecutor said he intended to "bring out the fact [that] there were no warrants. That doesn't open any door as well as any statements made by the defendant [sic]." The trial court agreed and, before Detective Curry testified, admonished defense counsel not to ask about it. Defense counsel objected: "I think it's a denial of his due process not to be able to ask some part of that conversation" because there would be an instruction on consciousness of guilt. The court repeated that unless Smith testified, it wasn't coming in. Detective Curry then testified that he checked the want/warrant system when he was assigned the case in July 2007, and Smith did not have any warrants. Smith did not testify in his defense.
"`Under well-established principles of due process, the prosecution cannot present evidence it knows is false and must correct any falsity of which it is aware in the evidence it presents, even if the false evidence was not intentionally submitted.' [Citations.] Put another way, the prosecution has the duty to correct the testimony of its own witnesses that it knows, or should know, is false or misleading. [Citations.] This obligation applies to testimony whose false or misleading character would be evident in light of information known to the police involved in the criminal prosecution [citation], and applies even if the false or misleading testimony goes only to witness credibility [citations]. Due process also bars a prosecutor's knowing presentation of false or misleading argument. [Citations.] As we recently summarized, `a prosecutor's knowing use of false evidence or argument to obtain a criminal conviction or sentence deprives the defendant of due process.' [Citation.]" (People v. Morrison (2004) 34 Cal.4th 698, 716-717; see also In re Sakarias (2005) 35 Cal.4th 140, 155 [fundamental fairness does not permit a prosecutor to "attribute to two defendants, in separate trials, a criminal act only one defendant could have committed"].)
Here, Smith readily concedes that there was nothing false about the assertion he had no warrants. But it was misleading, he claims, because it implied he had no reason to evade police, when, in fact, he evaded the police because he mistakenly believed there were outstanding warrants. This, however, was simply not the type of "misleading" evidence Morrison was referring to. It was true that Smith had no warrants. The prosecutor was not responsible for introducing evidence of Smith's belief that he did have warrants. The trial court told defense counsel that he could put his client on the stand if he wanted that evidence in, but Smith, for tactical reasons, did not testify. Under these circumstances, Smith's due process rights were not violated.
IX. Sufficiency of the evidence to support the gang enhancement.
Smith was charged in count 1 with attempted murder and with a gang enhancement under section 186.22, subdivision (b)(1)(C). When instructing the jury on the enhancement, the trial court confused the offenses supporting the element of "primary activities of the gang" with the offenses showing a "pattern of criminal activity." This confusion, Smith now contends, requires a reversal of the true finding on the enhancement. We agree that a reversal and remand is necessary.
To establish the gang enhancement under section 186.22, subdivision (b)(1), the prosecution must prove, among other things, that the group is a criminal street gang. (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846 ["The existence of a criminal street gang is unquestionably an element of the street gang enhancement"].) To establish that a group is criminal street gang within the meaning of section 186.22, subdivision (b), the People must prove that the group "`(1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a "pattern of criminal gang activity" by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called "predicate offenses") during the statutorily defined period. (§ 186.22, subds. (e) and (f).)'" (People v. Hernandez (2004) 33 Cal.4th 1040, 1047, italics omitted.)
To establish the "primary activities" element, Detective Pippin testified that the primary activities of the Altadena Block Crips include "trafficking in illegal drugs, [mostly] cocaine, marijuana, and ecstasy. Thefts, vehicle thefts, burglaries, and assaults on other gang members." To establish the "pattern of criminal gang activity" element, two certified documents were introduced into evidence. The first showed that a petition alleging possession of a firearm by a minor, Derrick Dwayne Carter, was sustained in 2003. The second showed that Major James Freeman was convicted in 2005 of carrying a concealed weapon (§ 12025, subd. (a)(1)). Detective Pippin testified that in his opinion Carter and Freeman were Altadena Block Crip members.
The trial court thereafter instructed the jury with CALJIC No. 17.24.2, but it confused the crimes introduced to support the "primary activities" element with the crimes introduced to support the "pattern of criminal gang activity element":
The instruction was not in accord with the evidence. Detective Pippin testified that the primary activities of the Altadena Block Crips included trafficking in illegal drugs, mostly cocaine, marijuana, and ecstasy, and thefts, vehicle thefts, burglaries, and assaults on other gang members. But the trial court instructed that the "`primary activities'" alleged were possession of a firearm by a minor and carrying a concealed weapon. The court also mistakenly instructed the jury to find whether narcotics sales and witness intimidation comprised a "`pattern of criminal gang activity,'" although the detective had submitted evidence of the firearms crimes committed by Carter and Freeman to support that pattern. In other words, the evidence was that "narcotics sales and witness intimidation were the `primary activities of the gang' and that possession of a firearm by a minor and carrying a concealed weapon [comprised] the `pattern of criminal gang activity,' not the other way around as the trial court instructed." (Respondent's Brief at p. 50.)
The trial court partially addressed this error when it later told the jury that the firearm offenses Carter and Freeman committed were offered as the predicate acts to establish the "pattern of criminal activity." After the trial court finished reading the instructions, it told the jury it had "some additions and changes." The prosecutor commented, in front of the jury, that "as to the [section] 186.22, the pattern of gang history, the pattern of criminal conduct that the 12021—the [Penal Code section] 12021 allegation that is alleged and the predicate act, which is supplied to the jury, is covered under subsection 23, which is possession of a concealed firearm by a minor." The court then said: "Yes. I'm adopting that. [¶] And that all sounds like a lot of numbers strung at you without a lot of meaning. [¶] The [section] 186 allegations that he is referring to are—have to do with the gang enhancement, the gang allegation. And the way the information, the legal document, was filed the allegations concerning the gang enhancement apply only to count 1 or any lesser to count 1. [¶] So, for example, it would only go to the attempted murder or the assault with a semiautomatic firearm. It does not go to counts 2 and 3. But, also in order to prove the gang allegations, the People are required to prove what are referred to as the predicate acts. [¶] And so, for example, when Mr. Kim [the prosecutor] was inquiring of—I believe it was Detective Pippin of the Sheriff's Department he was asking about other individuals who were—who Detective Pippin rendered the opinion that those individuals were members of the Altadena Block Crips, and then there were documents that were submitted into evidence indicating that those two individuals—one had suffered a sustained petition as a juvenile, which is a finding of guilt of an offense as a juvenile. And the other was a conviction as an adult. [¶] So those are—in the instructions that I had read to you there were instructions talking about that the prosecution has to prove two different instances. So those are the references that Mr. Kim is making in that regard. So the one was a juvenile, a concealed weapon upon a juvenile, all right."
It is possible, as the prosecutor argues, that this clarified the original instruction; but it is equally possible that the trial court's additional instruction made a confusing instruction even more confusing. Even if the court's later instruction clarified what were the acts establishing a pattern of criminal activity, the court never clarified what were the gang's alleged "primary activities." We disagree with the Attorney General's suggestion that the jury would have deduced that the trial court mixed up what crimes went to what elements. Rather, a jury is presumed to follow instructions unless the record affirmatively indicates otherwise. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 83.) And the only instruction on the primary activities of the gang element was the wrong one; the trial court told the jury that the gang's "primary activities" were possession of a firearm by a minor and carrying a concealed weapon. The court should have instructed the jury that the gang's primary activities were, as Detective Pippin testified, drug trafficking, thefts, vehicle thefts, burglaries, and assaults on other gang members.
Smith thus argues that the problem is one of insufficient evidence or, alternatively, instruction on a factually inadequate theory. The general rule is that where evidence is insufficient to support a finding, retrial of that allegation is barred. (Burks v. United States (1978) 437 U.S. 1, 17-18; People v. Seel (2004) 34 Cal.4th 535, 550.) But if reversal is predicated on instructional error, then retrial is not barred. (People v. Hallock (1989) 208 Cal.App.3d 595, 607.)
Here, the evidence of the gang's primary activities and pattern of criminal conduct elements was not insufficient as a matter of law. It was merely insufficient under the theory instructed. Detective Pippin testified about the Altadena Block Crips's primary activities: thefts, assaults, and drug trafficking. He also testified about firearms crimes committed by two Altadena Block Crip members, Carter and Freeman. Those firearm crimes would support a pattern of criminal gang activity. Had the jury been instructed on the elements of the gang enhancement in accord with the detective's testimony, the jury could have rendered a true finding on the allegation. We therefore find that remand for retrial is the proper remedy.
X. Cumulative error.
Smith contends that the cumulative effect of the purported errors undermined the fundamental fairness of the trial. As we have "`either rejected on the merits defendant's claims of error or have found any assumed errors to be nonprejudicial,' "we reach the same conclusion with respect to the cumulative effect of any purported errors. (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236.)
The true finding on the gang enhancement under Penal Code section 186.22, subdivision (b)(1)(C), alleged in count 1 is reversed and remanded for further proceedings. The judgment is otherwise affirmed. The petition for writ of habeas corpus is denied.
KLEIN, P. J.
Before Detective Pippin testified in front of the jury, the trial court briefly asked him about his testimony, in particular on what he based his opinion that Smith was an Altadena Block Crip. After the detective confirmed that he would be testifying about what other detectives and witnesses told him about Smith, the trial court said, "Mr. White [defense counsel], your objection this is late information, that no discovery was provided previously on this, and that you should have had the opportunity to investigate and on hearsay, is that—?" Defense counsel replied, "On the hearsay—yes, Your Honor. [¶] On the hearsay there is some unnamed people which I don't think should come into this. If they're not named I don't think they should be down to the standard of some dude told me, that's what it is." The court said its tentative was to allow the detective to testify and witness availability would be checked over the weekend.
Because we have held that admitting the evidence did not violate Crawford, any issues arising out of any alleged forfeiture—namely, defense counsel provided ineffective assistance of counsel, for failing to object on that ground—similarly does not provide a ground for reversal of the judgment, because Smith suffered no prejudice by any deficiency in the objection.