People v. Hill CA4/1

Filed 8/11/15 People v. Hill CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D067415

Plaintiff and Respondent,

v. (Super. Ct. No. FVI1200219)

BRYAN ROMERO HILL, JR.

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino, John B.

Gibson, Judge. Affirmed.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney

General, William M. Wood and Brendon W. Marshall, Deputy Attorneys General, for

Plaintiff and Respondent.

Bryan Hill, Jr., was charged and tried as an adult for his role in a home-invasion

robbery. A jury convicted him of first degree robbery, first degree burglary, and street
terrorism, and made true findings on several special allegations, including a gang

enhancement. The trial court sentenced defendant to prison for 25 years to life.

Defendant contends the trial court erred by admitting a statement he made to

sheriff's deputies because it was obtained in violation of his Miranda1 rights and was

otherwise involuntary. We reject this contention of reversible error. Defendant also

contends the trial court erred by admitting a gang expert's opinion testimony elicited in

response to questions that were not hypothetical, but rather, referred specifically to

defendant's "mindset." We hold he forfeited this challenge by failing to object at trial,

and this failure does not constitute ineffective assistance of counsel. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Prosecution's Case

1. The Crime

In 2012, defendant's father (Bryan Hill, Sr.)2 and his father's girlfriend (Marina

Valdez) lived in a house in Victorville with their four children, then ages two to 12.

Defendant, then 16 years old, did not live with them.

Valdez testified that about 9:00 p.m. on January 23, 2012, she was home with her

four children when defendant rang the doorbell. When Valdez let defendant into the

house, he asked, "Where's my dad?" Valdez told defendant his father was not home.

Defendant followed Valdez into the kitchen and offered to take out the trash, but Valdez

1 Miranda v. Arizona (1966) 384 U.S. 436.

2 Because defendant and his father are both named Bryan, we will refer to defendant
as "defendant" and to his father as "Hill."
2
said no. Defendant then told Valdez he needed to go outside to tell his aunt she could

leave. When defendant went outside, Valdez locked the door behind him and called Hill,

who asked to speak to defendant. Valdez let defendant back into the house and put him

on the phone with his father. Defendant and his father "had words," and defendant left

the house. Valdez locked the door behind him and turned on the alarm.

Less than five minutes later, defendant rang the doorbell again. After Valdez

unlocked and opened the door, defendant asked if he could use the phone again to call his

aunt because she had left. Valdez handed him the phone, and when he appeared to be

using it outside the front door, several other men rushed into the house. One of them

grabbed Valdez and pushed her down into a sitting position. The man holding down

Valdez wrapped duct tape around her head, covering her mouth and eyes, while another

man held a gun to the back of her head. Valdez was able to push the tape from her eyes

so she could see what was happening. Defendant told Valdez to give him "the keys."

Valdez asked defendant why he would do this to her and to his siblings. He responded,

"Shut the fuck up. Shut up, Bitch."

Valdez's 12-year-old daughter and 10-year-old son locked themselves in an

upstairs bedroom. Valdez heard a person banging on the bedroom door and instructing

the children to unlock it. The daughter screamed out the window for help. Neighbors

heard the screaming, came outside, and called 911. Defendant and the other men began

running out the front door. As defendant fled, he told the man holding the gun to

Valdez's head to "[k]ill that bitch." The man fled without killing Valdez. One of the

neighbors chased the men until sheriff's deputies arrived.

3
 After the men left, Valdez removed the duct tape from her face and ran upstairs to

call Hill and check on their children. Sheriff's deputies arrived soon after that. At first,

Valdez did not tell the deputies defendant was one of the intruders because she regarded

him as a son and did not want him to get in trouble. She eventually revealed his

involvement and identified him in a field lineup.

Hill arrived and searched the house to determine if anything was missing. He

brought to Valdez's attention that a safe containing over $4,000 cash was missing from

under a bed.

Jose Valdivia was one of the neighbors who called 911 and chased the suspects.

He initially saw three or four men run out of the house. As he pursued them and

described their route to the 911 operator, he saw two more men walking. When the two

men heard Valdivia describing them to the operator, they ran in the same direction the

other group had run earlier. Valdivia described the men as thin and African American.

Sheriff's deputies encountered five men that matched the descriptions Valdivia

provided. The deputies identified four of them as defendant, Milton Harris, Dante

Washington, and Je'Vaughn Hall.3 The deputies produced the men for field lineups and

transported them to the Victorville sheriff's station. Valdivia identified all the men in the

field lineups, including defendant.

Along the route the fleeing suspects had taken, sheriff's deputies recovered a safe

containing a large amount of cash, and a backpack containing a 14-pound "brick" of

3 A detective later identified the fifth as Walter Macon.
4
marijuana.4 Deputies also found two loaded handguns (one with the hammer cocked), a

loaded submachine gun (with a dent in the round in the chamber, indicating someone

attempted to fire the weapon, but the round was defective), a glove, bandanas, a beanie,

sweatshirts, and a backpack.

2. Defendant's Statements to Sheriff's Deputies

Defendant underwent two custodial interrogations at the sheriff's station the night

of his arrest. We briefly summarize them here, and discuss them in greater detail in our

discussion section.

Deputies David Negron and William Hogan conducted the first interview in the

station's briefing room. Negron advised defendant of his Miranda rights, and defendant

waived them. The interview lasted 20 to 30 minutes and was recorded.

A few hours later, Deputy Travis Randolph interviewed defendant in the

conference room at the station. Deputy Hogan was also present. Randolph testified

Negron and Hogan informed him they had already advised defendant of his Miranda

rights, so Randolph did not readvise defendant. Randolph recorded the interview, which

lasted approximately 30 minutes.

Jurors listened to the recording of Randolph's interview of defendant.5 Defendant

admitted his involvement in the robbery and described it as having occurred in

4 The record suggests Hill was a marijuana dealer. Valdez denied any knowledge of
this.

5 The recording is not part of the appellate record and it was not transcribed in the
reporter's transcript. A pretrial transcript of the recording is included in the clerk's
5
substantially the same way as Valdez testified. Defendant admitted the submachine gun

had been in his backpack. He admitted his accomplices were "gangbang[ers]" from the

"Projects" in San Bernardino and claimed (apparently falsely) they were Samoan.

Defendant denied being a gang member himself.

3. The Gang Expert's Testimony

The prosecution's gang expert (Officer Raymond Bonshire) testified about the

Little Zion Manor Bloods (Little Zion) criminal street gang, its history, culture, territory,

colors and symbols, predicate offenses, and primary criminal activities. Bonshire stated

he personally knew four of defendant's accomplices were Little Zion members, and three

of them had already been convicted of robbery and gang-related offenses for their roles in

the subject robbery.

Bonshire opined defendant was an "associate" of Little Zion—not a "full-fledged

member," but someone who is "trusted by the gang" and "[t]ypically" works his way up

to full member status by committing crimes and "doing gang business." Bonshire

believed defendant aspired to be a full-fledged member. By admitting his role in the

robbery to Deputy Randolph, and falsely claiming his accomplices were of Samoan

heritage, defendant showed his dedication to the gang and his willingness to do what it

takes to become a member. Bonshire stated defendant's willingness to take members of

Little Zion to rob his family's home "speaks volumes as to his mindset as far as the gang

transcript, and the parties cite to it in their briefs. Our citations to defendant's statement
are to the pretrial transcript.

6
culture applies," as it shows "he's willing to do whatever it takes to become a member of

the gang."

Bonshire testified the gang and its members earn respect by committing violent

crimes, which instills fear in the community and increases their ability to operate without

hindrance due to fear of retaliation. Because the robbery was violent, occurred outside

Little Zion turf, provided the gang with financial gain, and served as a recruitment tool, it

benefited the gang and increased its reputation. Bonshire also opined the offense was

committed in association with the gang because five members of the gang committed a

typical gang-related crime together with defendant.

B. Jury Verdict and Sentencing

Defendant was charged and tried as an adult. (Welf. & Inst. Code, § 707, subd.

(d)(1).) The jury convicted him of first degree residential robbery while acting in concert

with two or more other people (Pen. Code, §§ 211, 213, subd. (a)(1)(A))6, first degree

burglary with a person present (§ 459), and street terrorism (§ 186.22). The jury found

true the special allegations that a principal personally used a firearm during the

commission of the robbery (§ 12022.53, subds. (b), (e)(1)), and that defendant committed

the robbery and burglary for the benefit of, at the direction of, or in association with a

criminal street gang with the specific intent to promote, further or assist in criminal

6 All further statutory references are to the Penal Code.

7
conduct by gang members (§ 186.22, subd. (b)).7 The trial court sentenced defendant to

prison for 25 years to life.

DISCUSSION

I. ADMISSION OF DEFENDANT'S STATEMENT

Defendant contends the trial court erred by admitting his second interview because

his Miranda rights were violated and the statement was otherwise involuntary.

A. Suppression Hearing

At the suppression hearing regarding defendant's second interview, Deputy

Negron testified he first encountered defendant in the field about 9:30 or 10:00 p.m.

Over an hour later, Negron interviewed defendant in the sheriff's station's briefing room.

The briefing room was an open area that other deputies may have been passing through

during the interview. Negron was wearing his patrol uniform, which included his badge,

duty belt, duty weapon, and handcuffs. Negron's partner, Deputy Hogan, was also

present during the interview.

Negron testified he began the interview by reading defendant his Miranda rights

from a department-issued Miranda card. After doing so, Negron asked, "Do you

understand the rights I just explained to you?" Defendant responded, "Yes." Negron

then asked, "With these rights in mind, are you willing to talk to me?" Defendant

answered, "Yes." Negron recorded the 20- to 30-minute interview on his belt recorder.

7 The trial court had previously granted defendant's motion to strike the allegation
that defendant personally used a firearm during the commission of all three counts.
8
 Defendant used a false name throughout his interview with Negron. Nevertheless,

Negron was aware defendant was a minor and complied with department protocol for

handling minors in custody, which includes not leaving defendant alone (or logging any

times he is left alone) and allowing him to have a parent present if requested. Negron did

not advise defendant he had the right to have a parent present. Negron's interview of

defendant was not presented to the jury.

A few hours after Negron finished interviewing defendant, Deputy Randolph (also

wearing his patrol uniform) escorted defendant from the briefing room to a conference

room. Deputy Hogan was also present. Defendant was not handcuffed when Randolph

transported him. Randolph interviewed defendant in the conference room for about 30

minutes and recorded the interview. Randolph relied on Negron and Hogan's

representation that they had previously advised defendant of his Miranda rights, so

Randolph did not readvise him. Randolph did not ask defendant if he wanted an adult

present.

Defendant gave Randolph his true name and date of birth. He admitted planning

the robbery with his accomplices, who he said were Samoans from the "Projects" in San

Bernardino. Defendant said his father was a "crazy person" who "would kill you."

Knowing they would have to shoot his father if he was home, defendant planned the

robbery for when his father would not be there. Defendant admitted traveling with his

accomplices from San Bernardino to Victorville with the submachine gun in his

backpack.

9
 When defendant began discussing the crime's impact on Valdez, he asked

Randolph not to write down anything about it:

"[Defendant]: Oh. Anyways. I didn't wanna do my stepmom
like that, 'cause like- I (unintelligible) I'll tell
you the story."

"Dep. Randolph: What do you mean you didn't wanna do her like
that?"

"[Defendant]: I'll tell you. The- oh. I didn't really wanna like-
like- like have her like scared and shit. How
she was scared and sh-"

"Dep. Randolph: You didn't wanna hurt her."

"[Defendant]: Yea. She didn't get hurt though. I made sure of
that. But uh I did say some crafty shit, though."

"Dep. Randolph: What did you say?"

"[Defendant]: I did say some shit that was fucked up."

"Dep. Randolph: What'd you say?"

"[Defendant]: No, I ain't about to tell you. (Unintelligible)-"

"Dep. Randolph: If- if you don't tell me straight-"

"[Defendant]: (Unintelligible) gonna be for murder
(unintelligible). All right, look."

" Dep. Randolph: How is it for murder if nobody died?"

"[Defendant]: All right, look, if I tell you this, could you not
write it down? Just what I told- just don't put
that part (unintelligible)"

"Dep. Randolph: I haven't written anything down but your
name."

"[Defendant]: I'm saying- I'm saying, but please don't write
that part down."

10
 "Dep. Randolph: You're gonna tell me the truth, the whole truth,
remember? That was the deal?"

"[Defendant]: Yeah. Yeah. Yeah, but- but don't write that
part down, though."

"Dep. Randolph: I haven't written anything down."

Randolph did not stop recording the interview. Defendant then described the

robbery in substantially the same way as Valdez testified at trial.

Randolph testified it appeared to him defendant understood the questions asked of

him and his answers made sense. Defendant never asked to stop talking and never asked

for an attorney. Defendant was always awake and during the interview was given water

and a cupcake.

Defendant presented no evidence at the suppression hearing.

The trial court found defendant made a knowing, intelligent, and voluntary

Miranda waiver and ruled defendant's second interview was admissible.

Defendant contends the trial court erred in admitting his statement in light of his

age, his "highly unstable childhood," the lack of a Miranda readvisement, the lack of any

advisement of his right to have a parent present during questioning, and trickery by

Deputy Randolph.8

8 The People contend defendant forfeited all but the challenge based on the lack of a
second Miranda advisement by failing to raise them with the trial court. We disagree.
Defendant's combined trial brief and motions in limine sufficiently preserved the other
issues by arguing "children and adolescents are different than adults in fundamental—and
constitutionally relevant—ways."
11
B. Legal Framework

" ' "[U]nder the familiar requirements of Miranda, . . . a suspect may not be

subjected to custodial interrogation unless he or she knowingly and intelligently has

waived the right to remain silent, to the presence of an attorney, and to appointed counsel

in the event the suspect is indigent." ' [Citations.]" (People v. Samayoa (1997) 15

Cal.4th 795, 829.) "To establish a valid waiver of Miranda rights, the prosecution must

show by a preponderance of the evidence that the waiver was knowing, intelligent, and

voluntary." (People v. Nelson (2012) 53 Cal.4th 367, 374-375 (Nelson).)

"Determining the validity of a Miranda rights waiver requires 'an evaluation of the

defendant's state of mind' [citation] and 'inquiry into all the circumstances surrounding

the interrogation' [citation]." (Nelson, supra, 53 Cal.4th at p. 375.) "When a juvenile's

waiver is at issue, consideration must be given to factors such as 'the juvenile's age,

experience, education, background, and intelligence, and . . . whether he has the capacity

to understand the warnings given him, the nature of his Fifth Amendment rights, and the

consequences of waiving those rights.' " (Ibid.) "This is not to say that a child's age will

be a determinative, or even a significant, factor in every case." (J.D.B. v. North Carolina

(2011) 131 S.Ct. 2394, 2406.)

"Although a juvenile's request to speak with his parent will normally be construed

as an invocation of his Fifth Amendment rights [citation], police interviewers are not

obliged to advise a juvenile suspect of a right to speak with parents or have them present

during questioning [citations]." (In re Aven S. (1991) 1 Cal.App.4th 69, 76.)

12
 When a suspect is interrogated on more than one occasion and was advised of, and

validly waived, his Miranda rights in an earlier interrogation, " '[r]eadvisement is

unnecessary where the subsequent interrogation is "reasonably contemporaneous" with

the prior knowing and intelligent waiver. [Citations.] The courts examine the totality of

the circumstances, including the amount of time that has passed since the waiver, any

change in the identity of the interrogator or the location of the interview, any official

reminder of the prior advisement, the suspect's sophistication or past experience with law

enforcement, and any indicia that he subjectively understands and waives his rights.' "

(People v. Pearson (2012) 53 Cal.4th 306, 316-317.)

In addition to the prophylactic Miranda advisement requirements, a confession

must be voluntary under all the circumstances. "The test for determining whether a

confession was voluntary is whether the questioned suspect's will was overborne at the

time he confessed. [Citation.] A confession is involuntary under the federal and state

guaranties of due process when it has been extracted by any sort of threats or violence, or

obtained by any direct or implied promises, however slight, or by the exertion of any

improper influence. [Citations.] Coercive police activity is a necessary predicate to a

finding that a confession was involuntary under both the federal and state Constitutions."

(In re Joseph H. (2015) 237 Cal.App.4th 517, 534.)

When a court's decision to admit a confession is challenged on appeal, we accept

the trial court's determination of disputed facts if supported by substantial evidence, but

we independently decide whether the challenged statements were obtained in violation of

13
Miranda or were involuntary or coerced. (People v. Lessie (2010) 47 Cal.4th 1152, 1169

(Lessie); In re Joseph H., supra, 237 Cal.App.4th at p. 534.)

C. Analysis

The record shows defendant made a knowing, intelligent, and voluntary waiver of

his Miranda rights. During the first interview, Deputy Negron advised defendant of his

rights. Defendant said he understood them and expressly waived them.

While defendant's youth is an important consideration, we do not find him so

young as to conclude he was incapable of making a knowing and intelligent waiver of his

Miranda rights. At 16 years old, he was old enough to be issued a driver's license,

reflecting society's recognition that 16-year-old minors are mature enough to understand

the responsibilities associated with driving. Also, this was not defendant's first clash with

the law. His probation report indicates he admitted to criminal offenses on seven

separate occasions between 2008 and 2011, and thus, he "was no stranger to the justice

system." (Lessie, supra, 47 Cal.4th at p. 1169.) Moreover, here defendant was charged

and tried as an adult, and the record does not indicate he ever challenged that treatment.

The California Supreme Court has upheld Miranda waivers by minors the same age as—

and even younger than—defendant. (Nelson, supra, 53 Cal.4th at p. 375 [15 years old];

Lessie, supra, 47 Cal.4th at p. 1169 [16 years old].)

Nor does defendant's claimed "highly unstable childhood" render his Miranda

waiver unknowing and unintelligent. First, the evidence defendant cites in support of this

argument is not properly before us because it was not before the trial court at the

suppression hearing; it was introduced only at trial. (In re Arturo D. (2002) 27 Cal.4th

14
60, 77-78, fn. 18 [we examine only the evidence presented at the suppression hearing and

ignore additional or contrary evidence adduced at trial].) Second, even if we were to

consider the evidence defendant now cites, much of it is unsupported by the record, or

involves speculation. For example, while defendant's opening brief on appeal asserts "his

father kicked [him] out of the house" when he was in seventh grade, the record citation is

to Valdez's testimony that defendant merely "stopped living with" her and Hill.

Defendant's assertion that he then "lived in approximately six placement homes in five

years" is similarly unsupported. Likewise, defendant asserts his "educational background

is unclear, but his grammar in the transcript of his confession shows him to be ill-

educated." Defendant's grammar aside, we are satisfied from our independent review of

the transcript that defendant appeared to understand the questions and provided

contextually appropriate responses. Defendant also asserts his father was a drug dealer,

but does not explain how that undermines defendant's ability to make a knowing and

intelligent waiver of his Miranda rights. In fact, a child raised by a drug dealer may be

more informed on how to avoid incriminating himself when dealing with law

enforcement.

Defendant concedes he was not entitled to an advisement of his right to have a

parent present during questioning and there is no indication he would have exercised this

option had he been specifically informed of this right. Given the totality of the

circumstances of defendant's Miranda waiver, the lack of this advisement did not render

his waiver during the first interview legally inadequate.

15
 For these reasons, we conclude defendant's Miranda waiver during the first

interview was knowing and intelligent. We further conclude the totality of circumstances

show readvisement during the second interview was not necessary. The second interview

occurred within a few hours of the advisement and waiver, a period far shorter than our

Supreme Court has deemed "reasonably contemporaneous." (People v. Pearson, supra,

53 Cal.4th at pp. 316-317 [readvisement not required after 27 hours].) The continuity in

the identity of one of the interrogators (Deputy Hogan) present during both interviews,

the fact both interviews took place in the same facility, and defendant's considerable prior

experience with law enforcement procedures satisfies us readvisement was not required.

The record also supports the finding that defendant's statement was voluntary and

not the product of coercion. Defendant was not mistreated. His interviews were no

longer than 30 minutes each, he was given water and a cupcake, and at times was

unrestrained. Nothing in the record suggests any of the deputies threatened defendant in

any way, coerced him, or were overbearing.

Defendant's claim his statement was involuntary because Deputy Randolph tricked

him by continuing to record the interview after he agreed "not to write anything down" is

unpersuasive. As shown by the quoted passage above, the only thing defendant asked

Randolph not to write down was the "fucked up" "shit" defendant said to Valdez during

the robbery. It was not a blanket request not to document defendant's other admissions.

Furthermore, even if Randolph engaged in improper trickery at this point in the

interview, any error by the trial court in admitting defendant's second interview was

16
harmless because defendant had by then already largely confessed his role in the robbery

to Randolph.

Alternatively, even if the trial court erred by admitting defendant's second

interview, the error was harmless beyond a reasonable doubt as there was other

overwhelming evidence of defendant's guilt. (People v. Hensley (2014) 59 Cal.4th 788,

811 [no prejudice where other evidence independently established facts also established

by improperly admitted admission].) Valdez, who had known defendant for 15 years,

testified in detail about his role in the robbery. Valdivia, a neighbor who personally

knew defendant, also independently identified defendant as being involved. Evidence

discovered by sheriff's deputies also supported the credibility of Valdez's description of

the robbery. For example, Valdez said one of her assailants wrapped duct tape around

her head, and Deputy Randolph found pieces of duct tape with hair matching Valdez's in

her home's entryway; Valdez said one of the robbers wore a red bandana over his face,

and sheriff's deputies recovered one nearby; and Valdez said a safe was missing from the

house, and deputies found it nearby. Further, defendant's gang involvement was

independently established by Officer Bonshire's testimony that he personally knew the

accomplices were members of Little Zion.

Defendant's claim "[t]here were many problems with [Valdez's] credibility as a

witness" does not undermine Valdez's testimony in any important manner. Any such

alleged inconsistencies relate only to her denials that there had been a 14-pound brick of

marijuana in the house and that Hill was a drug dealer. (See fn. 4, ante.) Even giving

17
defendant the benefit of the doubt, these credibility issues have no bearing on whether

defendant was involved in the robbery, they relate only to what he stole.

II. CHALLENGE TO THE GANG EXPERT'S TESTIMONY

Defendant contends the trial court erred by admitting improper expert opinion on

the gang enhancement. He does not challenge the expert testimony with respect to the

street terrorism count.

To prove a gang enhancement under section 186.22, subdivision (b)(1), the People

must prove the defendant committed the crime "for the benefit of, at the direction of, or

in association with any criminal street gang, with the specific intent to promote, further,

or assist in any criminal conduct by gang members . . . ." (§ 186.22, subds. (b)(1) &

(e)(2), (11).) This enhancement "requires both [1] that the felony be gang related and [2]

that the defendant act with a specific intent to promote, further, or assist the gang."

(People v. Rodriguez (2012) 55 Cal.4th 1125, 1139.)

Defendant contends Officer Bonshire's expert testimony was improper because it

addressed both prongs of the gang enhancement by referring specifically to defendant's

conduct and intent rather than to some hypothetical gang member's.

A. Details of Officer Bonshire's Testimony

In addition to his general testimony about the Little Zion gang, Officer Bonshire

provided the following defendant-specific testimony regarding the first prong of the gang

enhancement without any objection from defendant's counsel:

"Q: So what significance does it have to you if your opinion is
that the defendant Bryan Hill was an associate of Little Zion?

18
 What would be the significance that he committed the crimes
in this case with members of Little Zion?"

"A: After reviewing the reports and conducting investigation, I
have an opinion that he's aspiring to be a member of the
gang, and his association with the other gang members and
willingness to commit crimes with them shows his allegiance
to the gang."

"Q: So it is also your opinion that as an associate, he was an
individual that, at least at some level, was trusted by
members of Little Zion?"

"A: Yes."

"Q: And based on that status of being trusted and other members
of Little Zion being willing to commit the crimes with Mr.
Hill, would you say that he was allowed to participate in
those crimes with Little Zion?"

"A: Yes."

[¶] . . . [¶]

"Q: And how would the defendant benefit by admitting his
involvement [in the charged offenses]?"

"A: Well, it would benefit him as an associate to the gang in
respect to his willingness and his involvement to be with the
gang. He's willing to, you know, 'I committed the crime.'
His kind of proud sense of being able to commit the crimes
on behalf of the gang to show other gang members, you
know, that he's doing what he needs to do to be a member of
the gang."

[¶] . . . [¶]

"Q: Based on your knowledge of the individuals involved in this
case, your training and experience, your prior contacts with
the individuals involved, the portion of the testimony that
you sat through during this trial, do you have an opinion as to
whether the crimes in this case were committed for the
benefit of, at the direction of, or in association with a
criminal street gang?"
19
 "A: Yes, I do."

"Q: What is your opinion?"

"A: It's my opinion that they were in the benefit of — the crimes
of association, benefit and direction of the gang."

Officer Bonshire concluded his testimony on direct examination with the

following defendant-specific opinion regarding the second prong of the gang

enhancement:

"Q: What about the fact that based on the defendant's own
statements, he was willing to take members of Little Zion
Manor Bloods and commit this robbery in the home where
his stepmom and four siblings were present at the time?
Does that have significance to you?"

"A: Yes."

"Q: What is that significance?"

"A: It would be — the significance would be in my opinion that
he's willing to commit crimes against his family on behalf of
the gang. His willingness to be a part of this organization or
gang so much, that he's willing to commit these crimes
against his own family. That speaks volumes as to his
mindset as far as the gang culture applies, that he's willing to
do whatever it takes to became a member of the gang."

Picking up where Bonshire's direct left off, defense counsel's first question on

cross-examination was: "Well, let's start right there, mindset of [defendant] on January

23rd, 2012. That's what you just testified to. You have some opinions and insight into

mindset; correct?" After Bonshire answered "Yes," defendant's counsel cross-examined

Bonshire extensively—and exclusively—on the bases for his opinions regarding

defendant's mindset.

20
B. Legal Framework Regarding Gang Expert Testimony

"It is well settled that expert testimony about gang culture and habits is the type of

evidence a jury may rely on to reach a verdict on a gang-related offense or a finding on a

gang allegation." (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) In the context of

gang experts, the California Supreme Court has recognized "a difference between

testifying about specific persons and about hypothetical persons." (People v. Vang

(2011) 52 Cal.4th 1038, 1047 (Vang).) The court has expressly approved of opinion

testimony about "hypothetical persons," so long as the hypothetical questions are "rooted

in the evidence of the case being tried." (Id. at pp. 1046-1047.) The court has suggested

that the more "rooted in the evidence" the hypothetical is, the more likely it is to be

helpful to the jury. (Id. at pp. 1046, 1051.) The court has not yet addressed the propriety

of opinion testimony about "specific persons," but it has stated in dicta that "[i]t appears

that in some circumstances, expert testimony regarding the specific defendants might be

proper." (Id. at pp. 1047, 1048, fn. 4, citing People v. Valdez (1997) 58 Cal.App.4th 494,

507 (Valdez).)

Failing to object to a gang expert's opinion testimony forfeits the issue on appeal.

(People v. Gutierrez (2009) 45 Cal.4th 789, 819; Valdez, supra, 58 Cal.App.4th at p.

505.) " 'In requiring an objection at trial, the forfeiture rule ensures that the opposing

party is given an opportunity to address the objection, and it prevents a party from

engaging in gamesmanship by choosing not to object, awaiting the outcome, and then

claiming error.' " (People v. Williams (2008) 43 Cal.4th 584, 624.) Appellate courts

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have the discretion not to treat an issue as forfeited when it presents a pure question of

law based on undisputed facts. (Ibid.)

C. Analysis

As defendant acknowledges on appeal, his "counsel failed to object to the

admission of the improper expert testimony." Because the alleged error could have been

remedied by an objection at trial, defendant has forfeited the issue. (People v. Williams,

supra, 43 Cal.4th at p. 624; People v. Partida (2005) 37 Cal.4th 428, 434.)

Defendant argues his trial counsel's failure to object constitutes ineffective

assistance of counsel. We are not persuaded.

To establish a claim of ineffective assistance of counsel, a defendant must show:

(1) trial counsel's performance fell below an objective standard of reasonableness under

prevailing professional norms; and (2) the defendant suffered prejudice, that is, "there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668,

687-688, 692-694 (Strickland); People v. Hinton (2006) 37 Cal.4th 839, 876.)

In examining whether a defendant met his burden on the first prong, courts "must

indulge a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance." (Strickland, supra, 466 U.S. at p. 689; see People v.

Hinton, supra, 37 Cal.4th at p. 876.) We will not find ineffective representation "unless

there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver

(2001) 26 Cal.4th 876, 926.) " 'Whether to object to inadmissible evidence is a tactical

decision; because trial counsel's tactical decisions are accorded substantial deference

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[citations], failure to object seldom establishes counsel's incompetence.' " (People v.

Williams (1997) 16 Cal.4th 153, 215.)

This is not a case where counsel's failure to object could not have been supported

by a reasonable tactical decision. First, defense counsel could reasonably have assessed

that an objection would merely have required the prosecutor to rephrase the questions as

hypotheticals that did not refer specifically to defendant. Because those hypotheticals

would still have to be "rooted in the evidence of the case being tried" (Vang, supra, 52

Cal.4th at p. 1046), counsel could have concluded that requiring the prosecutor to reframe

the questions would have had little or no favorable effect on the defense and merely

focused the jurors' attention on the testimony. (See, e.g., People v. Williams, supra, 16

Cal.4th at p. 215 ["trial counsel may have decided not to object to [informant's] testimony

about defendant's fear of gang retaliation because an objection would have highlighted

the testimony and made it seem more significant"].)

Second, defense counsel's extensive and exclusive cross-examination of Bonshire

regarding the bases for his opinions regarding defendant's mindset suggests counsel may

have intentionally refrained from objecting to Bonshire's testimony on direct

examination. Defense counsel appears to have made a tactical decision to focus on

defendant's mindset to advance the defense theory that defendant was motivated by

animus toward his father, not a desire to promote gang activity.

Third, it is not certain that an objection based on the ground that the prosecutor did

not use hypothetical questions would have been sustained. Although the Vang court did

not address the issue, it recognized, citing Valdez, that "in some circumstances, expert

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testimony regarding the specific defendants might be proper." (Vang, supra, 52 Cal.4th

at p. 1048, fn. 4.) Defendant's counsel may have believed this case, like Valdez, was the

kind in which expert testimony regarding the specific defendant would be proper and,

thus, any objection would have been futile.

Alternatively, even if his counsel's failure to object was deficient, defendant has

not met "his burden of proving prejudice as a 'demonstrable reality,' not simply

speculation as to the effect of the errors or omissions of counsel." (People v. Williams

(1988) 44 Cal.3d 883, 937.) Defendant's appellate briefing essentially concedes one

predicate of the first prong of the gang enhancement—that he committed the charged

offenses "in association with a criminal street gang." (§ 186.22, subd. (b).) Defendant

acknowledges he "admitted in his statement to the police that he participated in the

robbery," and he "has no quarrel with the admission of" Officer Bonshire's opinions that

defendant and his accomplices "were members of Little Zion or associated with the

gang." Defendant also admitted in his statement to Deputy Randolph that he knew his

accomplices were "gangbang[ers]." Thus, we do not doubt the jury would have reached

the same conclusion on the first prong of the gang enhancement.

Defendant focuses on the second prong of the gang enhancement, his "specific

intent to promote, further, or assist in criminal conduct by gang members." (§ 186.22,

subd. (b).) He contends that without Officer Bonshire's opinion testimony regarding his

specific intent—that his willingness to take members of Little Zion to rob his family's

home "speaks volumes as to his mindset"—it is reasonably probable the jury would have

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returned a more favorable verdict based on defendant's theory he was motivated by

animus toward his father. This argument is unpersuasive for at least two reasons.

First, as discussed above, the practical effect of an objection to the form of the

questions would have been to require the prosecutor to rephrase them as hypothetical

questions that avoided the use of defendant's actual name. Although Officer Bonshire

would have then testified to his opinion of a hypothetical gang member's intent instead of

defendant's, we do not believe it is reasonably probable this would have led any juror to

arrive at a different result.

Second, there is no reasonable probability the use of hypothetical questions would

have caused the jury to accept defendant's family-dynamic theory as his sole motive for

the crime. Defendant cites his statement to Deputy Randolph that he had second thoughts

about going through with the robbery after he saw his siblings in the house, but decided

to go through with it after arguing with his father on the phone: "My dad was like, what

the fuck is you doing at my house? You on—you on a warrant and everything. And I

was getting mad. And it made me—that made me want to do it." Defendant also said he

hated his father for beating him when he was little.

However, defendant seriously contradicted himself during his second interview.

He told Randolph he wanted to back out of the robbery after talking to his father, but his

accomplices—who defendant described as "dangerous" and willing to "kill you, quick"—

convinced him otherwise. Defendant also told Randolph he planned the robbery ahead of

time so his father would not be home because he knew his accomplices were willing to

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kill his father. This is why defendant went into the home first, to "test the waters."

Defendant also told Randolph he was concerned about Valdez's safety.

Given defendant's statements reflecting concern for his father and family, plus the

strong independent evidence of gang involvement, there is no reasonable probability that

hypothetical questions would have persuaded a jury to find defendant's sole motivation

was animus toward his father and that he had no desire to "promote, further, or assist"

gang members. We reject defendant's claim of ineffective assistance of counsel.

DISPOSITION

The judgment is affirmed.

HALLER, Acting P. J.

WE CONCUR:

MCINTYRE, J.

O'ROURKE, J.

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