PEOPLE v. SPALDING

No. F070458.

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY SPALDING, Defendant and Appellant.

Court of Appeals of California, Fifth District.


Attorney(s) appearing for the Case

Janet J. Gray , under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris , Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Michael P. Farrell , Assistant Attorney General, Daniel B. Bernstein , Peter H. Smith and Alice Su , Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

POOCHIGIAN, Acting P.J.

The present case involves a jail fight in which defendant allegedly slashed the face of a fellow gang member who had fallen into disfavor with the gang. Defendant raises substantial evidence, instructional, and other challenges to the judgment. We affirm.

BACKGROUND

Defendant was charged with aggravated mayhem (count 1; Pen. Code, § 205),1 and assault with a deadly weapon (count 2; § 245, subd. (a)(1).) The information alleged defendant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)) as to both counts. The information also alleged that the two counts were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(5) [as to count 1] & § 186.22, subd. (b)(1)(C) [as to count 2]).

The jury convicted defendant on both counts and found true the special allegations.2 The court sentenced defendant to a prison term of 15 years to life on count 1 (aggravated mayhem) with the gang enhancement, plus a consecutive term of three years for the great bodily injury enhancement, plus a consecutive term of one year for the dangerous weapon use enhancement. The court sentenced defendant to a prison term of four years on count 2 (assault with a deadly weapon), plus 10 years for the gang enhancement, plus three years for the great bodily injury enhancement. The court stayed the sentence on count 2 and its enhancements pursuant to section 654.

FACTS

Testimony of Deputy Eddie Torres

Deputy Eddie Torres is a detentions deputy assigned to the Kings County Jail. At 9:55 p.m. on November 2, 2012, Torres heard a banging noise coming from one of the housing units. It sounded like someone was hitting a metal door. Torres identified the sound was coming from housing unit or "pod" B3. Torres looked into pod B3 through two windows in the front of the unit. He saw two inmates involved in a physical altercation. Inmate Rogelio Cuevas was on top of inmate Edgar Lopez. Cuevas was striking Lopez with both hands, while Lopez had his hands up in a protective manner. Defendant was in the bay room area of pod B3, but Torres did not personally observe him fighting. Torres ordered the inmates to stop fighting and they complied. Torres saw blood on Lopez's face and on Cuevas's jumpsuit.

Deputy Torres asked Lopez if anyone else had been involved in the fight. Lopez said, "My cellmate, person [sic] in black and white." Defendant was the only inmate in pod B3 wearing a black and white uniform that day.3 And cell assignment logs4 showed that defendant was assigned to be Lopez's cellmate at the time.

Deputy Torres asked what the fight was about, and Lopez responded, "This is over the Zamora's shit. I knew it." Lopez would not clarify his response when asked.

Deputy Torres never found any weapons on Cuevas or in the surrounding area.

Sergeant Tolbert's Testimony

Sergeant Dan Tolbert is a sergeant with the Kings County Sheriff's Office. Tolbert's job was to investigate crimes that occur inside the Kings County jail. Previously, Tolbert "ran" the gang classification unit at the jail for almost four years.

Sergeant Tolbert testified that the majority of inmates in pod B3 were Norteños, though some were classified as "Sophisticated Whites" and others were Hispanics not affiliated with a gang.

Sergeant Tolbert spoke with Lopez after the incident. Lopez said he was going to take a shower immediately before the assault. Lopez also said he had known for about a week that he would be assaulted because he had been seen with a gang dropout5 named Santiago Zamora. The prosecution's other gang expert, Sergeant Barsteceanu, testified Zamora was a suspect in a murder of a Norteño gang member.

Video

Deputy Torres described two cameras in the jail: one that covers the entire housing unit and another that swivels to view different locations. Sergeant Tolbert testified the video showed the assault began underneath a stairwell near a shower, and ended out of camera view near an exit/entry door. According to Tolbert, the video showed defendant lunging at Lopez, running to a bathroom, and then exiting the bathroom. However, Tolbert did not know precisely where Lopez sustained his injuries — it could have been in the pod, by the bathroom, by the shower, or at the point when the fight moved out of camera-view.

A recording from the jail's camera was admitted into evidence.

Injuries

Dr. David Nguyen, the physician who treated Lopez at the hospital, testified that he had a laceration on his left upper scalp, a laceration below the left eye, a couple bruises and a false laceration in the left cheek followed by a scratch. The laceration on Lopez's cheek was approximately four centimeters long. The laceration was more consistent with an injury from a sharp object rather than blunt force trauma.

Lopez told Dr. Nguyen that he had been assaulted by fists and a razor. Dr. Nguyen does not recall whether Lopez said he was attacked by more than one inmate,6 but Dr. Nguyen used the singular "inmate" when he made the following note at the time: "the patient presents with allegedly [sic] assaulted by fists and razor by other inmate." However, Dr. Nguyen explained that the medical community will sometimes use the singular version of a word when they mean plural, and vice-versa.

Sergeant Tolbert testified that the laceration injury to Lopez's cheek was a "puto mark." The purpose of a puto mark is to show other gang members that "you're no good" and cannot be trusted with gang information. Usually, inmates with a puto mark are placed in protective custody. After the assault on Lopez, he was moved to a protective custody area of the jail.

Lopez's Testimony

Lopez did not want to testify at trial. He claimed he did not remember the fight, did not know who Cuevas is, and did not remember if defendant was his cellmate in pod B3.7 Lopez said he could not recall knowing anybody in the courtroom from jail. Lopez said he did not want to talk about the injury to his head. However, at one point, Lopez was asked "about your cut, did you have to go to the hospital?" Lopez replied, "I think so."

Gang Expert Testimony

Sergeant Tolbert

Sergeant Dan Tolbert also testified as an expert on gangs in custodial settings.

Sergeant Tolbert had attended trainings with the California Gang Task Force, and is a member of the California Gang Investigators Association. Tolbert offered a "gues[s]timation" that he had attended "over two, three hundred hours of gang training."8 Tolbert also had experience interviewing Norteño gang members concerning crimes committed in the Kings County Jail; and debriefing Norteño gang members that desire to leave the gang.

The court designated Sergeant Tolbert as a gang expert in the custodial setting over defense objection. Tolbert had been designated such an expert on three prior occasions.

Sergeant Tolbert testified that the Norteño gang benefits when someone associating with a dropout is marked with a puto mark.

When asked if fights involving gang members differ from other fights, Sergeant Tolbert said "the difference can be as minor as watching — if a regular fight happens you have just on[-]lookers, when Norteno gang members fight you have what they call backup or a post covering — covering one of their backs."

Sergeant Marius Barsteceanu

The prosecution also tendered Sergeant Marius Barsteceanu as a gang expert. Barseteceanu testified that there are approximately 2,000 to 2,500 Norteños in Kings County. The symbols of the Norteño gang include the number 14, the letter "N," the color red, the California bear, and the Huelga9 bird. Their primary activities are homicides, drive-by shootings, assaults with deadly weapons, selling narcotics, and weapons possession.

To determine whether someone is a member of the Norteño gang, Sergeant Barsteceanu would look at the totality of the circumstances, including self-admission, associations, gang registrations, tattoos, and past and present criminal conduct. Barsteceanu was asked "if two Norteno inmates who are in good standing cut an inmate in the face who is hanging out with a dropout and housed in a pod that was classified as a Norteno pod would the assault benefit the Norteno criminal street gang?" Barsteceanu opined that it would benefit the gang because the violence of the act would elevate the gang's status. Additionally, the act would demonstrate the gang is willing and ready to stand by their rules. Barsteceanu later noted that such an act would intimidate people and cause them to fear the gang. Moreover, the act would mark the victim so that others would know not to trust the victim.

Predicate Offenses and Prior Gang Activity

Luis Solorio

Sergeant Barsteceanu researched prior gang contacts of one Luis Solorio. To conduct that research, Barsteceanu referred to field interview cards, police reports, and "police data that had been gathered and stored." Information from field interview cards, including the reason for contact with the subject and the date, are entered into a computerized system.

Based on information from the database, Sergeant Barsteceanu testified that on January 31, 2011, Solorio was contacted by police at Lemoore High School. During the contact, Solorio admitted being a Norteño gang member, and was wearing a red hat with the letter "N." Solorio also referenced a subset of the Norteño street gang: Vario Parkside Huron Norteño.

Sergeant Barsteceanu retrieved another contact involving Solorio from the database, which occurred on April 1, 2011. Solorio was again contacted at Lemoore High School where he admitted to being as associate of the Norteño street gang, and was observed wearing "gang clothing." Solorio had "gang paraphernalia" — i.e., a writing that referenced the "[P]arkside" subset of the Norteño gang.

Sergeant Barsteceanu also discussed a contact that occurred on June 16, 2012. During that contact, Solorio admitted he had been a "Huron [P]arkside Norteno" for over two years. He had a tattoo which read, "H.P.N."

Sergeant Barsteceanu testified about an October 14, 2012, contact wherein Solorio was seen at a Norteño gang member's party at which several rival gang members were assaulted.

Sergeant Barsteceanu also referenced an October 18, 2012, incident where Solorio was observed on surveillance footage committing a residential burglary.

Sergeant Barsteceanu did not expressly indicate that the June 16, October 14, and October 18, contacts were retrieved from the law enforcement database. But Barsteceanu's ultimate opinion on Solorio was stated as follows: "Based on the research that I've conducted, the reports and the field interview contacts that I have reviewed it's my opinion that Mr. Luis Donald Solorio is, in fact, a Norteño gang member."

The certified conviction of Luis Donald Solorio for residential burglary on October 18, 2012, was also entered into evidence.

Rodrigo Magdaleno

Sergeant Barsteceanu reviewed police reports and field interview cards concerning a Rodrigo Magdaleno through the law enforcement database.

On August 5, 2011, police officers contacted Magdaleno when he was with two admitted Norteño gang members. On August 30, 2011, Magdaleno was contacted alongside another person who claimed they had been "rushed" by rival Bulldog gang members and had fought back. On October 15, 2011, Magdaleno was stopped by police officers with three other individuals who said they had just been attacked and assaulted by rival Bulldog gang members.

On November 22, 2011, while Magdaleno was "housed" in the Fresno County Jail, he admitted to an officer that he was a Norteño gang member and had just been involved in a fight with a rival Bulldog gang member. The rival gang member had said, "F[**]k buster." "Buster" is a derogatory term used to describe a Norteño gang member by rival gang members. Magdaleno also told the officer that he had been assaulted by four Huron gang members for 14 seconds, which is how he was admitted to the gang.

The prosecutor then introduced certified documentation of Magdaleno's conviction for an incident that occurred on December 14, 2012. Sergeant Barsteceanu personally investigated the December 14, 2012, crime. During the investigation, Barsteceanu interviewed Magdaleno "under Miranda10 and he admitted committing the crime and he admitted being a Norteno gang member."

Rogelio Cuevas

Sergeant Barsteceanu also reviewed contacts concerning Rogelio Cuevas, specifically field interview cards and police reports. On December 1, 2010, Cuevas assaulted a Sureño11 while housed in Kings County Juvenile Center. On December 3, 2010, while housed in Kings County Juvenile Center, Cuevas yelled out, "1-8-7, I'm a Norteno."12

On March 9, 2011, Cuevas tackled a Sureño gang member in the Kings County Juvenile Center and asked other Norteño gang members to help. During the assault, Cuevas yelled out, "Puro nolte, can't stop, won't stop. Good job to the homies, they stood up and f**ked this scrap." "Puro nolte" means "Pure Norteno hundred percent." "Scrap" is a derogatory term for a Sureño gang member.

On March 13, 2011, while Cuevas was in the Kings County Juvenile Center, he referred to another inmate as "carnal" and used his hands to signal the number 13. "Carnal" is a word of respect that Sergeant Barsteceanu had only heard used between gang members. On November 18, 2011, Cuevas registered himself as a Norteño gang member with the Kings County Gang Task Force. On August 23, 2012, Cuevas admitted to police that he had been a Norteño gang member forever.

Sergeant Barsteceanu testified, "Based on my research and the reports I reviewed and field interview cards, it is my opinion that Mr. Cuevas is, in fact, a gang member." The criteria Barsteceanu used in arriving at that conclusion included self-admission, registration, assaults on rival gang members, and language used during Cuevas's contacts with law enforcement. Barsteceanu opined that Cuevas was still in good standing with the Norteño street gang on November 2, 2012.

The prosecution introduced exhibit No. 12 into evidence, which included court documents reflecting Cuevas pled guilty to assault by means of force likely to produce great bodily injury. (See § 245, subd. (a)(4).)

Defendant

Sergeant Barsteceanu also testified concerning prior gang contacts involving defendant. In preparation for his testimony concerning defendant, Barsteceanu reviewed field interview cards and police reports.

On April 25, 2009, defendant was on probation, which required him to avoid associating with known gang members. Officers attempted to contact him on that date, but defendant ran. Eventually, defendant surrendered and admitted to associating with Norteño gang members.

On October 14, 2012, defendant was seen attending a Norteño gang party. During the party, several Sureño gang members were assaulted. Defendant admitted "some responsibility in the assault itself," and that he had been a Norteño gang member since he was 16 years old. Defendant specified that he associated with the Huron Parkside and Brown Pride subsets of the Norteño gang. Sergeant Barsteceanu himself (along with another investigator) interviewed defendant on October 15, 2012, with respect to the incident. Defendant said he assaulted the rival gang members because they said, "What's up esse?" Barsteceanu explained that this is an offensive phrase to Norteños.

On October 14 or 15, 2012, a search warrant was executed at defendant's residence. The following items, among others, were recovered: a Styrofoam cup bearing the inscription "H.P.N.," handgun ammunition, and a red belt.

Sergeant Barsteceanu offered his opinion that the November 2, 2012, assault of Lopez showed defendant was willing and ready to do work for the gang.

Defendant has no tattoos.

Victim Lopez

Sergeant Barsteceanu also reviewed "contacts" involving the assault victim, Lopez. On May 30, 2008, Lopez admitted to law enforcement he was a Norteño gang member. On August 25, 2008, Lopez assaulted a rival Sureño gang member.

On June 13, 2012, Lopez admitted being a Norteño during his arrest for possession of a loaded weapon. Barsteceanu was involved in the June 13 arrest.

Sergeant Barsteceanu opined that Lopez "was" a Norteño gang member in June 2012.

DISCUSSION

I. THERE IS SUBSTANTIAL EVIDENCE DEFENDANT WAS INVOLVED IN THE ASSAULT ON LOPEZ

Defendant argues there is insufficient evidence he was involved in the assault on Lopez.

"`When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Covarrubias (2016) 1 Cal.5th 838, 890 (Covarrubias).)

First, defendant attempts to undermine the jail video as too pixilated to make out facial features. He argues that because the video was unclear, Sergeant Tolbert's testimony regarding what the video showed was also improper. However, while the video does have pixilation, it also clearly shows only one inmate in a jumpsuit with black and white stripes.13 After the incident, Lopez specifically identified his "cellmate, [the] person in black and white" as having assaulted him along with Cuevas. Defendant was the only inmate in pod B3 assigned to wear a black and white uniform that day. We cannot conclude that Tolbert's identification of defendant on the video was unfounded or improper.

Defendant also points to the fact that Sergeant Tolbert could not indicate where in the video defendant actually made contact with Lopez. But, at one point, the fight clearly moves out of view of the camera. Thus while the video alone may not establish defendant's participation in the assault on Lopez, neither does it negate participation. And other evidence does support an inference defendant personally participated in the assault: Lopez's own statement immediately after the incident that his cellmate in black and white assaulted him along with Cuevas.

Defendant claims that Lopez's identification of his cellmate could have been a reference to a former cellmate. But there is nothing in the statement that suggests it referred to a former cellmate. Moreover, Lopez actually identified the clothing of the person he referred to as his "cellmate" — i.e., "person in black and white." Given that defendant was the only inmate in the area wearing black and white, the jury was free to conclude Lopez was referring to his current cellmate, defendant. Finally, even if defendant's proposed inference was reasonable — that defendant could have been referring to a former cellmate — it would not warrant reversal. "`If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]'" (Covarrubias, supra, 1 Cal.5th at p. 890.)

Defendant also notes that Lopez did not identify defendant at trial. But there was substantial evidence Lopez did effectively identify defendant to Torres on the day of the incident. And "a testifying witness's out-of-court identification ... can, by itself, be sufficient evidence of the defendant's guilt even if the witness does not confirm it in court. [Citations.]" (People v. Boyer (2006) 38 Cal.4th 412, 480; see, e.g., People v. Cuevas (1995) 12 Cal.4th 252, 276-277.)

Defendant also seeks to undermine Lopez's credibility. But "`"[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence." [Citation.]' [Citation.]" (People v. Mary H. (2016) 5 Cal.App.5th 246, 262.)

We conclude substantial evidence supports the jury's conclusion defendant assaulted Lopez.

II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADMITTING EXHIBIT NO. 11, THE CELL ASSIGNMENT SHEET

Defendant contends the trial court erred in admitting exhibit No. 11, which was a jail cell assignment sheet.

A. Background

Since 1998, the Kings County Jail has used a computer system called "JLAN."14 JLAN allows jail staff to input changes to inmates' cell assignments. Sergeant Tolbert has used the system for 17 years, ever since the jail began using it. During that time, Tolbert entered new housing assignments into the JLAN system over one thousand times.

To change an inmate's housing assignment in the JLAN system, the user would "pull out the changing housing icon." Then, the user inputs the inmate's master I.D. number.15 A prompt will ask users if they want to change an inmate's cell. The user would then "put a question mark in, push enter, your cell locations come up that's available and you choose the cell accordingly."

Usually, cell change information is entered into JLAN within minutes of the cell change. There is some variability because of different scenarios that might occur. Sergeant Tolbert testified:

"If I'm working with my partner and we move an inmate he might move the inmate physically and I'll walk to the computer and change him in the computer. If I'm doing it myself of course I walk him to the cell, put him in what cell I'm putting him, and change him. Or, I might have him in the holding cell, change it in the computer, and then move him."

Other jail staff members have access to the JLAN system, including sergeants, commanders, senior deputies, floor staff, detention deputies, and detention clerks. But only jail staff may access the JLAN system.

A master form can be printed from the JLAN system, showing every inmate's location. At least twice per day, jail staff will use the master form and "physically walk around and check each and every body." Consequently, Sergeant Tolbert testified that any error in the JLAN system would be discovered at least one or twice in a day. Consequently, Tolbert viewed the information in the JLAN system to be accurate. However, Tolbert acknowledged mistakes concerning the JLAN system had been made in the past. Tolbert cannot recall any time that he personally forgot to record a cell change in the JLAN system.

Exhibit No. 11 was an "event log" Sergeant Tolbert personally printed from the JLAN system. The printout reflected what is shown on the screen of the JLAN system. The first page showed the cell assignments of Edgar Lopez, whose master I.D. was 48421. The second page showed the cell assignments defendant, whose master I.D. was 49298. Tolbert did not personally input the cell changes reflected in exhibit No. 11.

When the prosecutor first sought to admit exhibit No. 11, the trial court sustained defendant's objection on foundation grounds. The prosecutor asked additional questions, though they were largely repetitive of Sergeant Tolbert's testimony recounted above. The trial court then admitted exhibit No. 11 into evidence.

B. Analysis

Defendant claims the court should have excluded exhibit No. 11 as hearsay without adequate evidence of reliability.

The standard of review for a trial court's ruling on hearsay issues is abuse of discretion.16 (People v. Clark (2016) 63 Cal.4th 522, 590.)

Unless otherwise provided by law, "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated" is inadmissible hearsay. (§ 1200, subds. (a)-(b).)

"Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: (a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness." (§ 1271.)

Defendant argues that "Exhibit 11 appears to be very limited information extracted from the JLAN system concerning appellant and Lopez for the purposes of this trial. It was thus a document prepared for litigation and hence, does not qualify as a business record." Defendant is focused on the wrong "writing." Evidence Code section 1271 applies to "evidence of a writing...." (§ 1271, italics added.) Here, the "writings" were the data entries in the JLAN system,17 and the "evidence of" those writings was the printout (i.e., exhibit No. 11). Section 1271, subdivision (a) merely requires that the "writings" be made in the regular course of business. Here, the "writings" — i.e., the entries into the JLAN system — were made in the regular course of business. The evidence of those writings — i.e., the printout — was not made in the regular course of business, but that is not what section 1271, subdivision (a) requires. The fact that the writings were made in the regular course of business is what makes the evidence of those writings admissible.

Defendant also argues that there was insufficient evidence of trustworthiness. (See § 1271, subd. (d).) Specifically, he contends that the method of double-checking the JLAN master form against a physical inspection of the inmates was inadequate. Sergeant Tolbert testified that staff members look for each inmate at shift changes. Tolbert said, "We don't physically call their name. We count bodies and make sure each person or — there's a correct number of bodies in the cell or in the day room area." Defendant points out that simply counting the number of inmates in the cells and day room area does not actually verify that the master form correctly identifies which specific cell each inmate is assigned to. We agree. But subdivision (d) merely requires that "[t]he sources of information and method and time of preparation were such as to indicate its trustworthiness." Here, the "source[] of information" for cell change entries in the JLAN is the jail staff member who effected the cell change. That is a reliable source of information. As to the "method and time of preparation," Tolbert testified that usually, cell change information is entered into JLAN within minutes of the cell change. While a more thorough system for double-checking the JLAN entries might be beneficial, such a system is not a requisite for determining the entries were trustworthy in the first instance. In other words, the evidence that the entries are usually entered promptly and accurately the first time, constitutes sufficient of trustworthiness even though the procedures for double-checking the entries could have been better. The possibility that unusual mistakes could have occurred without correction goes to the weight of the evidence, not its admissibility. (See People v. Dorsey, supra, 43 Cal.App.3d at p. 961 ["While mistakes are often made in the entries on bank statements, such matters may be developed on cross-examination and should not affect the admissibility of the statement itself."]; cf. United States v. Catabran (9th Cir. 1988) 836 F.2d 453, 458 ["Any question as to the accuracy of the printouts, whether resulting from incorrect data entry or the operation of the computer program, as with inaccuracies in any other type of business records, would have affected only the weight of the printouts, not their admissibility."]

Defendant also contends that Sergeant Tolbert "had no familiarity with how the program actually worked, other than knowing that any number of people working at the jail could manipulate the information, and that there was no requirement that the inmate's cell assignment was actually posted at or near the time of placement within a particular cell." Not so. Tolbert testified that he had extensive familiarity with the program. He noted that he had entered cell changes over a thousand times, had used the JLAN system for 17 years (i.e., since its inception at the jail), and described in detail the process for entering a cell change into the system. A person who "generally understands" a computer system's operation and "possesses sufficient knowledge and skill to properly use the system and explain the resultant data ... is a `qualified witness' for purposes of Evidence Code section 1271[]" even if they do not know every detail about the system. (People v. Lugashi (1988) 205 Cal.App.3d 632, 640.) Given Tolbert's familiarity with the JLAN system, we cannot say the trial court abused its discretion in concluding he was a "qualified witness" under section 1271, subdivision (c).

III. THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT THE JURY'S FINDING DEFENDANT SPECIFICALLY INTENDED TO CAUSE A MAIMING INJURY

Defendant argues there was insufficient evidence that he had the intent required for an aggravated mayhem conviction.

To commit aggravated mayhem, the defendant must have acted with the specific intent of causing a maiming injury. (§ 205; People v. Assad (2010) 189 Cal.App.4th 187, 195.)

First, defendant contends there is no evidence he intended to act maliciously or with the intent to injure someone else.18 We disagree. Lopez testified defendant, by description, as a participant in the assault. The jury could quite reasonably conclude the assault was not accidental and that defendant intended to injure Lopez.

Defendant also argues there was no substantial evidence that he intended to permanently disfigure Lopez. We disagree. "[S]pecific intent may be inferred from the circumstances attending an act, the manner in which it is done, and the means used, among other factors. [Citation.]" (People v. Lee (1990) 220 Cal.App.3d 320, 325.) Here, Sergeant Tolbert explained that Norteño gang members will purposefully cut a person so that other gang members can see the injury (i.e., a "puto mark") and know the individual is untrustworthy. Additionally, Lopez told Tolbert he had known for about a week that he would be assaulted because he had been seen with a gang dropout named Santiago Zamora. Zamora was a suspect in the murder of a Norteño gang member. These circumstances support Tolbert's opinion that Lopez's injury was, in fact, a puto mark. If defendant assaulted Lopez trying to create a puto mark — i.e., an injury that would perpetually inform other gang members that Lopez was untrustworthy — then the jury could reasonably infer he had the intent to maim.

Defendant also attacks Dr. Nguyen's opinion, which he describes as follows: "that a four-centimeter laceration on [Lopez's] head was likely to have been caused by blunt force trauma, but that the five-centimeter laceration was consistent with a sharp object, in part because of its length." Defendant argues that Dr. Nguyen's opinion was speculation because it was "based on generalities in which he tried to distinguish a laceration length difference of one centimeter."

Defendant misstates the record. Defendant cites three pages of the reporter's transcript purportedly reflecting Dr. Nguyen's opinion that "a four-centimeter laceration on his head was likely to have been caused by blunt force trauma." But the record cited does not support this characterization. Dr. Nguyen actually testified, "Scalp lacerations can look exactly the same with either blunt force trauma or sharp object." The testimony cited by defendant does not indicate Dr. Nguyen thought the four-centimeter laceration was likely to have been caused by blunt force trauma.

Even if defendant's reading of the cited testimony had been correct, we would reject his contention. Defendant's argument boils down to a request that we reject Dr. Nguyen's purported opinion because a one-centimeter difference in laceration length does not matter in identifying the probable cause of an injury. But defendant points to no expert testimony to that effect. We are not free to reject an expert's testimony simply because a defendant contends it is improbable. Moreover, Dr. Nguyen's opinion concerning the five-centimeter laceration was also based on the type of skin tear involved. We cannot say that Dr. Nguyen's opinion that the five-centimeter laceration was more consistent with a sharp object was unsupported speculation.

IV. TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON SIMPLE MAYHEM, BUT THAT ERROR WAS HARMLESS

Defendant contends the trial court erred in failing to instruct the jury sua sponte on the elements of simple mayhem as a lesser included offense of aggravated mayhem.

A. Law

"`A trial court has a sua sponte duty to "instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." [Citation.] Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense....'" (People v. Landry (2016) 2 Cal.5th 52, 96, petn. for cert. pending, petn. filed May 1, 2017, original italics.) Simple mayhem is a lesser included offense of aggravated mayhem. (People v. Robinson (2014) 232 Cal.App.4th 69, 79.) Thus, in order to prevail, defendant must show there is substantial evidence from which a reasonable jury could conclude he committed simple mayhem, but not aggravated mayhem.

"`Mayhem is a general intent crime. [Citation.] ... [¶] Aggravated mayhem, on the other hand, requires the specific intent to cause the maiming injury. [Citation.]' [Citations.]" (People v. Newby (2008) 167 Cal.App.4th 1341, 1347.) The intent element of simple mayhem only requires that the defendant act with "a wish to vex, annoy or injure another person, or an intent to do a wrongful act." (§§ 7, 203; People v. Lopez (1986) 176 Cal.App.3d 545, 550; CALCRIM No. 801.) To commit aggravated mayhem, the defendant must have acted with the specific intent of causing a maiming injury. (§ 205; People v. Assad, supra, 189 Cal.App.4th at p. 195.)

B. Analysis

We conclude the court should have instructed the jury on simple mayhem. Lopez testified that his "cellmate, [the] person in black and white" had assaulted him (along with Cuevas). As explained above, there was substantial evidence that Lopez was referring to defendant. If the jury accepted this evidence and concluded that defendant assaulted Lopez, but rejected the prosecution's theory that defendant was trying to create a "puto mark," the jury could have reasonably inferred defendant had merely intended to injure Lopez in a jail fight, not necessarily maim him. Consequently, the court should have instructed the jury on simple mayhem sua sponte. However, we conclude the error was harmless.

C. Harmlessness

"[E]rror in failing sua sponte to instruct ... on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v.] Watson [(1956) 46 Cal.2d 818 (Watson)]. A conviction of the charged offense may be reversed in consequence of this form of error only if, `after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears `reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred [citation]."19 (People v. Breverman (1998) 19 Cal.4th 142, 178, fn. omitted.)

We conclude it is not reasonably probable defendant would have obtained a more favorable outcome if the court had instructed on simple mayhem. The jury was instructed on the lesser included offenses of battery causing serious bodily injury, battery, and assault. If the jury had rejected intent to maim, but accepted that defendant had intent to injure, it is reasonably probable they would have convicted only of a lesser included offense. The fact that the jurors convicted defendant of aggravated mayhem, with its specific intent requirement, even though they were presented with the option of convicting on lesser included offenses without the specific intent to maim requirement, shows that it is not reasonably probable defendant would have obtained a more favorable result if the jury had been instructed on yet another general intent, lesser included offense.

V. THE TRIAL COURT DID NOT PREJUDICIALLY ERR IN PERMITTING TOLBERT TO TESTIFY AS TO THE SURVEILLANCE VIDEO

Defendant argues that the trial court erred in permitting Sergeant Tolbert to testify as to what was depicted on the surveillance video, which he describes as "highly pix[i]lated."

A. Background

Sergeant Tolbert testified that he has watched 150 or more assaults on video. About 70 of those did not involve gang members. The rest did involve gang members but not all those assaults were gang-related. Tolbert opined that assaults involving gang members occur differently than other assaults. Tolbert testified, "the difference can be as minor as watching — if a regular fight happens you have just on[-]lookers, when Norteno gang members fight you have what they call backup or a post covering — covering one of their backs." A "post" is "somebody that's watching the aggressor's back to make sure he doesn't start [losing]. If he starts [losing] that person is suppose[d] to jump in and help because you're not suppose[d] to let a brother lose." Tolbert could tell when a videotaped assault involved a post because the post will "follow the fight fairly close to make sure everything is going the way it's suppose[d] to be going." Tolbert then offered his opinion concerning the assault depicted in the surveillance video for this case as follows:

"[Prosecutor:] Okay. Did you see any indication that there was a post involved in this assault that we saw on Exhibit 1A [the video recording of the assault]? "[Defense counsel]: I'm going to object, your Honor, that calls for speculation. I think the video speaks for itself. "THE COURT: It's a hypothetical question asked of a person qualified to answer a hypothetical question. Overruled. [¶] You can answer the question. "[Tolbert:] Yes. "[Prosecutor:] What did you see? "[Tolbert:] I saw [defendant] following the incident from it[]s beginning all the way to the end where — where it went out of camera view. And, at one point he actually looked like he was going to go in and attack Mr. Lopez."

B. Analysis

"A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert." (Evid. Code, § 720, subd. (a).)

Defendant argues Sergeant Tolbert's opinion went outside of any expertise he may have had. Not so. Tolbert's area of expertise is gangs in custodial settings. His "special ... experience" (Evid. Code, § 720, subd. (a)) included personally reviewing videos of around 150 assaults, over 70 of which involved gang members. From that personal experience, Tolbert formed the opinion that assaults involving gang members occur differently than other assaults. Specifically, they often involve a "post" who stands ready to assist one of the combatants. The post often follows the assault closely. Tolbert opined that he saw an indication defendant was acting as a post because he followed the fight closely from beginning to end.

Defendant also argues that all of the inmates were dressed similarly. Not so. The video depicts inmates in bright jumpsuits, except one inmate in a white jumpsuit with horizontal stripes. While all the nuances of the jumpsuit design may not be visible, the white jumpsuit with stripes is clearly distinguishable from those of other inmates. Defendant also claims that the facial features of inmates are not discernible on the video. But defendant was the only inmate in pod B3 assigned to a black and white jumpsuit that day.

Defendant observes that Sergeant Tolbert testified defendant "was following the incident from beginning to end in the manner of a post, and that it appeared that he went in and attacked Lopez."20 But defendant characterizes that testimony as equivalent to "testify[ing] that appellant had the specific intent to aid and abet Cuevas...." That characterization is inaccurate. Testifying that an individual was acting in a manner consistent with being a "post" is not equivalent to testifying that the individual had a particular specific intent.

VI. THE COURT SHOULD HAVE INSTRUCTED THE JURY ON THE DEFINITION OF "PATTERN OF CRIMINAL GANG ACTIVITY" BUT THE ERROR WAS HARMLESS

Defendant contends the trial court prejudicially erred in failing to fully instruct the jury on the definition of "primary activities" and "pattern of criminal gang activity."

A. Background

The court instructed the jury as follows:

"If you find the defendant guilty of the crimes charged in Counts 1 and 2 [or a lesser-included offense] you must then decide whether, for each crime, the people have proved the additional allegation that the defendant committed that crime for the benefit of, at the direction of, or in association with a criminal street gang. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. To prove this allegation the People must prove that: "1. The defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang. "And, "2. The defendant intended to assist, further, or promote criminal conduct by gang members. "A criminal street gang is any ongoing organization, association, or group of three or more persons, whether formal or informal that: "1. That has a common name or common identifying sign or symbol. "2. It has as one or more of it's [sic] primary activities the commission of residential burglary and assault with force likely to cause great bodily injury. "And, "1. Whose members, whether acting alone or together, engage in or are engaged in a pattern of criminal gang activity. "The People need not prove that the defendant is a [sic] active or current member of the alleged criminal street gang. "If you find the defendant guilty of a crime in this case you may consider that crime in deciding whether one of the group[']s primary activities was the commission of that crime and whether a pattern of criminal gang activity has been proved. "You may not find that there was a pattern of criminal gang activity unless all of you agree that two or more crimes that satisfy these requirements were committed. But you do not all have to agree on which crimes were committed. "[The] People have the burden of proving each allegation beyond a reasonable, doubt, if they have not met this burden you must find the allegation has not been proved."

As defendant notes, these instructions omit portions of CALCRIM No. 1401. First, the instructions given by the court omit the following explanation of "primary activity" given in CALCRIM No. 1401: "In order to qualify as a primary activity, the crime must be one of the group's chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the group." (CALCRIM No. 1401.) Second, the instruction omits CALCRIM No. 1401's definition of "pattern of criminal gang activity," which requires that (1) defendant have committed, attempted, conspired to commit, solicited, or was convicted for a qualifying crime; "2. At least one of those crimes was committed after September 26, 1988; 3. The most recent crime occurred within three years of one of the earlier crimes; AND 4. The crimes were committed on separate occasions or were personally committed by two or more persons." (CALCRIM No. 1401.)

The Attorney General argues that the trial court may not have had a duty to define "primary activities" because that phrase "does not have a technical, legal meaning." (See People v. Kimbrel (1981) 120 Cal.App.3d 869, 872 ["A trial court has no sua sponte duty to give amplifying or clarifying instructions in the absence of a request where the terms used in the instructions given are `commonly understood by those familiar with the English language ...'].) We agree. The omitted portion of CALCRIM No. 1401 concerning primary activities simply says that "[i]n order to qualify as a primary activity, the crime must be one of the group's chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the group." (CALCRIM No. 1401, italics added.) This sentence merely relates the common understanding of the word "primary."

But the Attorney General does not defend the omission of the definition of "pattern of criminal gang activity" on the same grounds.21 Understandably so, because the phrase "pattern of criminal gang activity" clearly does have a technical, legal meaning. That is, there is nothing inherent in the phrase "pattern of criminal gang activity" that would alert the jury qualifying crimes must have been committed after the effective date of Chapter 11 of Title 7 of Part 1 of the Penal Code; that the most recent crime occurred within three years of one of the earlier crimes; and that the crimes were committed on separate occasions or were personally committed by two or more persons. (§ 186.22, subd. (e).) Consequently, it was error to fail to instruct the jury on the requirements to finding a pattern of criminal gang activity.

To determine whether the error is harmless, we look to the record to see whether the omitted issue was (1) uncontested and (2) supported by overwhelming evidence. (See People v. Mil (2012) 53 Cal.4th 400, 417.)22 Defendant points to no evidence that he contested at trial the issue of whether the Norteño gang had engaged in a "pattern of criminal gang activity." And the evidence of the Norteños' pattern of criminal gang activity was overwhelming. Sergeant Barsteceanu testified as to crimes committed by Solorio, Magdaleno, and Cuevas. Magdaleno's qualifying crimes occurred on December 14, 2012, within three years of defendant's present crimes. Barsteceanu personally investigated Magdaleno's crime, and certified documents confirming the conviction were introduced. The crimes occurred after the effective date of Chapter 11 of Title 7 of Part 1 of the Penal Code.

Consequently, we conclude the instructional error was harmless.

VII. SUFFICIENCY OF EVIDENCE TO SUPPORT PRIMARY ACTIVITIES FINDING

Defendant argues there was insufficient evidence to support the primary activities finding regarding the Norteño gang.

Specifically, defendant claims that Sergeant Barsteceanu's testimony concerning the Norteño's primary activities was "based on an unknown source of information as to the primary activities of the gang." Defendant claims Barsteceanu's testimony "may have been based on reliable sources ... or on entirely unreliable hearsay." Not so. Barsteceanu was asked what are the primary activities of the Norteño gang and he responded, "Primary activities and crimes that myself have [sic]investigated have been homicides, drive-by shootings, assaults, assaults with likely force [sic] to create bodily injury, sales of narcotics, possession of weapons." (Italics added.)23 Moreover, Barsteceanu went on to describe specific crimes by Solorio, Magdaleno, and Cuevas. Documents confirming those convictions were introduced into evidence.24 Consequently, there was sufficient evidence that Norteño gang members committed qualifying crimes more than occasionally.

VIII. PEOPLE V. PRUNTY IS DISTINGUISHABLE

Defendant also raises a claim of error under People v. Prunty (2015) 62 Cal.4th 59 (Prunty). In Prunty, the Supreme Court held "that where the prosecution's case positing the existence of a single `criminal street gang' for purposes of section 186.22, subdivision (f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets." (Prunty, supra, at p. 71.)

Justice Corrigan described the Prunty holding as "narrow" and applying only "when the prosecution seeks to prove a street gang enhancement by showing the defendant committed a felony to benefit a broader umbrella gang, but seeks to prove the requisite pattern of criminal gang activity with evidence of felonies committed by members of subsets to the umbrella gang." (Prunty, supra, 62 Cal.4th at p. 91 (conc. & dis. opn. of Corrigan, J., italics added).)

Here, there was substantial evidence that defendant, Solorio, Magdaleno and Cuevas were members of the broader Norteño gang (and not just subsets thereof).25 Thus, the prosecution introduced evidence that defendant committed a felony to benefit a broader umbrella gang (i.e., the Norteños) and proved the requisite pattern of criminal gang activity with evidence of felonies committed by members of the same broader Norteño umbrella gang.26 (See People v. Williams (2008) 167 Cal.App.4th 983, 987 (Williams) ["Evidence of gang activity and culture need not necessarily be specific to a particular local street gang as opposed to the larger organization."].) In other words, the prosecution's case here did not "turn[] on" (Prunty, supra, 62 Cal.4th at p. 71) the existence of one of more gang subsets.

Prunty was not violated here.27

IX. DEFENDANT FAILED TO CARRY HIS BURDEN OF ESTABLISHING PREJUDICIAL ERROR UNDER CRAWFORD V. WASHINGTON

Defendant contends the court violated his rights under the confrontation clause as described in Crawford v. Washington (2004) 541 U.S. 36 (Crawford), by allowing admission of information from prior police contacts to establish that defendant and others were members of the Norteño gang.

A. Law

The confrontation clause affords criminal defendants the right "to be confronted with the witnesses against" them. (U.S. Const., 6th Amend.) The clause's term "witnesses" means "those who `bear testimony.' [Citation.]" (Crawford, supra, 541 U.S. at p. 51.) Consequently, whether a person is a "witness" under the confrontation clause turns on whether they "bore testimony" — i.e., whether their statements are "testimonial."

If a statement is testimonial hearsay, it is inadmissible unless "the declarant is unavailable, and ... the defendant has had a prior opportunity to cross-examine." (Crawford, supra, 541 U.S. at p. 59, fn. omitted.)

After defendant filed his opening brief, the California Supreme Court issued its opinion in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). There, the court held: "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth." (Id. at p. 686, fn. omitted.)

B. Analysis

Here, Sergeant Barsteceanu did "relate[] to the jury case-specific out-of-court statements, and treat[ed] the content of those statements as true and accurate to support [his] expert[] opinion" and therefore, "the statements are hearsay." (Sanchez, supra, 63 Cal.4th at p. 686.) For example, consider Barsteceanu's testimony concerning Solorio. Barsteceanu specifically testified that his research into Solorio's prior gang contacts consisted of looking at field interview cards, police reports, and "police data that had been gathered and stored." Barsteceanu testified that information from field interview cards, including the reason for contact with the subject and the date, are entered into a computerized system. Based on information from the database, Barsteceanu testified as to contacts involving Solorio occurring on January 31, 2011, and April 1, 2011. Barsteceanu also referenced contacts on June 16, 2012, October 14, 2012, and October 18, 2012, but did not expressly state that he retrieved the information for those contacts from the database. But Barsteceanu's ultimate opinion on Solorio was stated as follows: "Based on the research that I've conducted, the reports and the field interview contacts that I have reviewed it's my opinion that Mr. Luis Donald Solorio is, in fact, a Norteño gang member."

It is clear Sergeant Barsteceanu's opinion regarding Solorio was based, in part, on hearsay. But a confrontation clause violation only arises therefrom if the hearsay in question was testimonial. A statement is testimonial when it is made for the primary purpose of memorializing facts relating to past criminal activity, which could be used like trial testimony. (People v. Sanchez, supra, 63 Cal.4th at p. 689.) Consequently, field interview cards are testimonial when produced in the course of an ongoing criminal investigation. (Id. at p. 697.) But, alternatively, some field interview cards might be created for a different primary purpose, such as "gatherin[ing] information for `community policing efforts' and `potential civil injunctions.'" (Id. at p. 697.) We cannot determine which context applies to the majority of the field interview cards at issue here because no testimony was elicited to that effect.28 "Had defendant lodged contemporaneous objections during trial, the People, as the proponent of the evidence, would have had the burden to show the challenged testimony did not relate testimonial hearsay. [Citations.]" (People v. Ochoa (2017) 7 Cal.App.5th 575, 584.) But defendant "failed to object to the expert's testimony on the ground it violated his right to confrontation, resulting in an underdeveloped record." (Ibid.) "[D]ue to defendant's failure to object, the record is not clear enough for this court to conclude which portions of the expert's testimony involved testimonial hearsay. Accordingly, defendant has not demonstrated a violation of the confrontation clause."29 (Id. at p. 586.)

Moreover, there was additional evidence of the crimes committed by Solorio, Magdaleno and Cuevas that was not testimonial hearsay at all: the certified records of conviction, which were admitted at trial.

And, while one officer is often unable to testify as to facts recorded by another officer (see Sanchez, supra, 63 Cal.4th at p. 695, citing Bullcoming v. New Mexico (2011) 564 U.S. 647, 660), here there is evidence that Sergeant Barsteceanu had personal knowledge of some of the prior events. For one, Barsteceanu personally investigated the crimes committed by Magdaleno on December 14, 2012. During that investigation, Barsteceanu himself interviewed Magdaleno "under Miranda and he admitted committing the crime and he admitted being a Norteno gang member." Because of his personal involvement with the investigation, it is far from clear that Barsteceanu relied on field cards or police reports authored by other officers to convey this testimony.

On June 13, 2012, Lopez admitted being a Norteño during his arrest for possession of a loaded weapon. Sergeant Barsteceanu was personally involved in the arrest.

Sergeant Barsteceanu also personally investigated the assault during a party on October 14, 2012. Defendant was seen attending the Norteño gang party. During the party, several Sureño gang members were assaulted. Defendant admitted "some responsibility in the assault itself," and that he had been a Norteño gang member since he was 16 years old. Defendant specified that he associated with the Huron Parkside and Brown Pride subsets of the Norteño gang. Barsteceanu himself (along with another investigator) interviewed defendant on October 15, 2012, with respect to the incident. Defendant said he assaulted the rival gang members because they said, "What's up esse?" Barsteceanu explained that this is an offensive phrase to Norteños.

Consequently, we conclude that defendant failed to establish a prejudicial confrontation clause violation.

X. THE TRIAL COURT DID NOT PREJUDICIALLY ERR DURING DEFENSE COUNSEL'S CLOSING ARGUMENT

A. Background

1. Reasonable Doubt Chart and Argument

At the beginning of defense counsel's closing argument, the prosecutor objected to a chart he was planning to use. The prosecutor described the chart as "includ[ing] standards ... that are not even legal standards that have been included to make the tiers more — more numerous than even the legal standards that do exist. And, the top is red so it makes it appear that ... beyond a reasonable doubt is bad." The prosecutor argued that the "lower tiers" of the chart did not articulate proper legal standards. Defense counsel argued that the chart was "just demonstrative to show that [the reasonable doubt standard] stands by itself. And that all the other things underneath are just to demonstrate that if you feel that way about the case that your obligation is to vote not guilty." Defense counsel claimed he had used the chart in every criminal case he had handled for 25 years.

The court ruled that defense counsel could use the chart but could not "redefine the definition of burden of proof in one word different than what is contained in Cal Crim 220 while you're arguing." Defense counsel responded, "I won't."

The jury then returned to the courtroom. Defense counsel then argued as follows:

"Welcome back. I'm going to start off by talking about reasonable doubt. And, you've heard that word — those words a lot in the last four days. Reasonable doubt does not subscribe [sic] itself to an easy definition. The Court did read you an instruction on reasonable doubt, I advise you that if you have some questions about it go back and look at that instruction. But, in my opinion, it's a little bit more complicated and I have a chart over here, which is only demonstrative. "And, it's just my way of explaining that in — in a criminal case where you have proof beyond a reasonable doubt it's a very, very high standard and — it sits all alone. You might have remembered during the jury selection, when we were all questioning all jurors, that there was some discussion about civil cases. In a civil case, you know — when you think of the scales of justice in a civil case, you know, the winning party only have to slightly tip the scale in their favor. And, if you were putting it in percentages you would say that all they have to do is get 51 percent; if they get 51 percent in their favor then it's a victory for that side. "Whereas reasonable doubt stands — is so different than every other standard of care that we have, every other standard of proof that we have in law cases and sits all alone, sits all by itself. So this chart just demonstrates that it sits all alone by itself."

At that point, the prosecutor objected on "improper argument" grounds. The court did not sustain or overrule the objection, but instead said, "[Defense counsel], as I explained to you, you can explain reasonable doubt as it's in the instruction but you need to — this is your time to argue the facts and the law to the jury." Defense counsel responded,

"Thank you. [¶] And if — when you're deciding and thinking about this case and you have any other thoughts about the level of guilt that don't get up to the level of reasonable doubt then your obligation is to return a verdict of not guilty. That's all that chart demonstrates."

Defense counsel then transitioned to discussing the specific crimes charged.

2. Purported Vouching

a. First Instance

Later during argument, the following exchange occurred:

"[Defense counsel:] I would assert to you that the prosecution in this case has not proven that the figure wearing the black and white is [defendant]. I think that's just pure speculation. And, [defendant] cannot be convicted on speculation, there has to be hard evidence and you have to be convinced that there's hard evidence before you can find [defendant] guilty of anything. Remember when Mr. Lopez was in here he was asked, by counsel, "Do you see anybody in this room that you know?" And, he looked around the room and did not see anybody, did not. If he knew [defendant] he didn't identify [defendant] when he was in court here. There's — also, when I say I don't think that, you know, I don't think we have solid proof as to who — "[Prosecutor:] Objection, counsel is vouching — THE COURT: That is correct. And, that's the second time. [Defense counsel], I have to caution you, you can't personally vouch for the evidence or anyone else involved in the case." "[Defense counsel:] There's not solid proof here as to who in this video here is wearing black and white. We've heard testimony that [defendant] was the only inmate in that cell block that was wearing black and white but we have no proof of that...."

b. Second Instance

Later, the following exchange occurred:

"[Defense counsel:] Another important fact, and I think this is critical, is that no sharp instrument was found. Apparently they searched for it but no sharp instrument was found. And, I don't believe there is anything on the video that shows anyone trying to hide or get rid of anything. [¶] Another thing I think is interesting for you to take into consideration — "[Prosecutor:] Objection, vouching. "[Defense counsel:] I'm not vouching for anything. "THE COURT: [defense counsel], you keep saying you believe. "[Defense counsel:] I'm sorry. "THE COURT: You can comment on what the evidence might show. "[Defense counsel:] Right. "THE COURT: Not what you believe."30

B. Analysis

Defendant argues the trial court's rulings described above abridged his constitutional right to effective assistance of counsel. We disagree.

"The right to the assistance of counsel has ... been given a meaning that ensures to the defense in a criminal trial the opportunity to participate fully and fairly in the adversary factfinding process." (Herring v. New York (1975) 422 U.S. 853, 858.) "There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial. Accordingly, it has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge." (Id. at pp. 858-859, fns. omitted.) But when the trial court's ruling curtailing argument does not "significantly limit the defense's opportunity to participate in the adversary process" there is no infringement of defendant's right to assistance of counsel. (People v. Bonin (1988) 46 Cal.3d 659, 695, fn. omitted, overruled on another point by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

The trial court's comment that defense counsel could "explain reasonable doubt as it's in the instruction but you need to — this is your time to argue the facts and the law to the jury" is hardly a significant limitation on counsel's opportunity to participate in the adversary process.31 Defense counsel was not precluded from explaining that reasonable doubt was a higher standard compared to others, which he proceeded to do even after the court's comment.

As for the vouching objections, we find no prejudice. Even though the court agreed with the prosecutor's first vouching objection, defense counsel still proceeded to say, "There's not solid proof here as to who in this video here is wearing black and white." In other words, counsel was merely forced to take out the phrase, "I don't think." Defendant was not prejudiced.

As for the second vouching objection, defense counsel had already moved on to another point when the objection was lodged. No motion to strike the prior comment was made or granted. We cannot conclude defendant was prejudiced.

DISPOSITION

The judgment is affirmed.

FRANSON, J. and SMITH, J., concurs.

FootNotes


1. All further statutory references are to the Penal Code unless otherwise stated.
2. Except that the jury did not return a finding on the deadly weapon enhancement to count 2 because it was stricken pretrial on request of the prosecution.
3. An inmate wearing a green and white jumpsuit is either a gang dropout, informant, or sex offender. A black and white jumpsuit means jail staff should be cautious with the inmate (for example, the inmate may be subject to a "Three Strikes" sentence).
4. These logs are discussed more thoroughly below.
5. Though not stated explicitly, context suggests Zamora had "dropped out" of the Norteño street gang.
6. Indeed, Dr. Nguyen testified he did not remember specific patients at all.
7. Lopez was asked if he saw his cellmate from pod B3 in the court room and he replied, "I don't remember."
8. Sergeant Tolbert later testified that he had "[a]t least" two or three hundred hours of training.
9. The reporter's transcript says "welga bird," but context shows Sergeant Barsteceanu likely said "Huelga bird," which is a symbol of the farm workers' movement that the Norteño gang has adopted as their own. (People v. Rios (2013) 222 Cal.App.4th 542, 552.) Defendant also spells the word as "Huelga" in his briefing.
10. Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
11. In several instances, the reporter's transcript says "Surano." Both parties understand these references to mean "Sureño," and we will do the same.
12. Section 187 refers to the crime of murder. (§ 187.)
13. The others have bright colored jumpsuits without visible stripes.
14. A few months before trial, the jail changed computer systems.
15. Each inmate is given a master I.D. number at booking. Inmates' master I.D. number follows them through any subsequent incarcerations.
16. Defendant urges we apply a de novo standard of review. We decline to do so because it is clear that the abuse of discretion standard applies here. (See People v. Hovarter (2008) 44 Cal.4th 983, 1011; Trans World Airlines, Inc. v. Alitalia-Linee Aeree Airlines (1978) 85 Cal.App.3d 185, 192; People v. Dorsey (1974) 43 Cal.App.3d 953, 961.)
17. Data entries can constitute "writings" under the Evidence Code. (See Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769, 798.)
18. Intent to act maliciously or with the intent to injure someone else is actually the intent requirement for simple mayhem, not aggravated mayhem. (See CALCRIM No. 801.)
19. Defendant argues for a less forgiving standard of harmlessness. Because the California Supreme Court's view is clear, we are unable to stray from the Watson standard here.
20. Defendant contends this testimony was improper because the question posed was not a hypothetical.

Experts are not permitted to testify that a particular individual had a particular intent, and often hypothetical questions are used to avoid that situation. But it does not follow that every question posed to an expert must be a hypothetical. (See Gillett v. Gillett (1959) 168 Cal.App.2d 102, 107.)

21. Indeed, the Attorney General does not defend that omission at all, but instead argues the omission was harmless.
22. Defendant urges that we review this purported error for prejudice under Chapman v. California (1967) 386 U.S. 18 rather than Watson. Defendant acknowledges language in the Supreme Court's decision in People v. Sengpadychith (2001) 26 Cal.4th 316 indicating that the Watson standard applies, but urges that we "revisit" the holding. We are unable to revisit a holding of the Supreme Court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
23. In his reply brief, defendant notes that Sergeant Barsteceanu did not specify how many investigations he had been involved in. But, as the quoted testimony shows, Barsteceanu did testify that he personally investigated Norteño homicides, drive-by shootings, assaults, sales of narcotics, and possession of weapons.
24. Defendant argues that the Attorney General conflates evidence of predicate crimes and primary activities. But evidence of prior crimes can be probative on both issues simultaneously. (See People v. Vy (2004) 122 Cal.App.4th 1209, 1227-1228.)
25. In his reply brief, defendant asserts without citation that it is "apparent" the prosecution referred to the "Parkside Norteños" and "Brown Pride Norteños" "interchangeably" with the "the generic Norteños designation." However, "Norteños" is not just a "generic designation," it is an actual gang, the existence of which was testified to by the prosecution's gang experts. We do not agree that it is "apparent" that Norteños and Parkside Norteños or Brown Pride Norteños are interchangeable.
26. There was also evidence they were members of a Norteño subset in addition to their membership in the broader Norteño gang.
27. Williams, supra, 167 Cal.App.4th 983, is distinguishable. In that case, the defendant argued "that the group relevant to [the court's] determination is the Small Town Peckerwoods, not other groups calling themselves Peckerwoods or some overall Peckerwoods gang. He says there was no evidence he was an active participant in any group other than the Small Town Peckerwoods...." (Id. at p. 987.) Here, there was evidence defendant was a member of, and intended to benefit, the Norteño gang (not just a subset thereof). Williams recognized that "[e]vidence of gang activity and culture need not necessarily be specific to a particular local street gang as opposed to the larger organization. [Citations.]" (Ibid.)
28. Except, for example, the October 14, contact, which appears to have occurred in the course of an ongoing criminal investigation. However, Sergeant Barsteceanu personally investigated that crime. Therefore, it is not clear that Barsteceanu was relying on hearsay at all when he testified as to that incident. Moreover, even assuming defendant carried his burden of establishing a confrontation clause violation with respect to this single prior contact, we would conclude it was harmless in light of the other prior gang contacts for which he has not met his burden in establishing a constitutional violation.
29. Note that we accept defendant's contention that he did not forfeit the issue by failing to object below. Therefore, defendant's claim his "counsel failed to preserve the confrontation claim" is moot. But the failure to object on confrontation clause grounds has prevented defendant from being able to prevail on the merits of the preserved issue because he is unable to establish a violation on this record.

To the extent defendant would now modify his ineffective assistance claim to argue counsel was ineffective for failing to develop the record as to the context in which the prior contacts occurred, we would reject that claim. "[I]f the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance `unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation....' [Citation.]" (People v. Cudjo (1993) 6 Cal.4th 585, 623.) Here, we cannot say there could be no satisfactory explanation for a failure to develop the record further. If defense counsel objected or otherwise requested the prosecution to establish the context of the gang contacts the result would have been more evidence of the gang contacts. Reasonable counsel could conclude that the harm of exposing the jury to even more gang evidence was not worth it, especially if a confrontation clause objection likely would have simply led the prosecution to use different predicate offenses. Defense counsel could have reasonably concluded that it would not have been difficult for the prosecution to find other predicate offenses committed by Norteños supported by evidence other than testimonial hearsay.

Indeed, in closing argument, defense counsel sought to downplay the gang evidence concerning Solorio, Magdaleno and Cuevas. He argued, "I say to you so what, who cares if [Solorio, Magdaleno, and Cuevas] were gang members. They have nothing to do with this case." If defense counsel had prompted the prosecution to admit additional information concerning the context of the prior contacts with Solorio, Magdaleno, and Cuevas, it may have undermined this argument to the jury. We cannot say there can be no satisfactory explanation for counsel's conduct.

30. In his factual summary of this issue, defendant cites another exchange concerning counsel's argument that Lopez would have told Dr. Nguyen if more than one person had assaulted him. The argument was stricken by the court as speculation. After describing the exchange, defendant does not proceed to offer any argument as to why the court's ruling was erroneous. We therefore consider any claim of error as to this specific ruling forfeited. (See People v. Stanley (1995) 10 Cal.4th 764, 793.)
31. And the court's earlier ruling, outside the presence of the jury, precluding defense counsel from "redefin[ing]" the reasonable doubt standard was proper.

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