Filed 1/27/21 P. v. Veliz CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B286376
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA434647)
v.
LUIS VELIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Edmund W. Clarke, Judge. Convictions
affirmed; remanded with directions.
Susan Wolk, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, and Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
INTRODUCTION
Luis Veliz appeals from a judgment after a jury convicted
him of attempted willful, deliberate, and premeditated murder
(Pen. Code,1 §§ 664, 187), assault with a firearm (§ 245, subd.
(a)(2)), and possession of a firearm by a felon (§ 29800, subd.
(a)(1)), with true findings on gang enhancements (§ 186.22,
subd. (b)(1)), firearm enhancements (§§ 12022.5, subd. (a),
12022.53, subd. (d)), and a great bodily injury enhancement
(§ 12022.7, subd. (a)). Veliz argues on appeal: (1) he received
ineffective assistance of counsel at trial and in his motion for new
trial; (2) the trial court erred in admitting hearsay evidence
concerning the alleged motive for the crimes; (3) the prosecutor
committed prejudicial misconduct in closing argument; (4) the
evidence was insufficient to support the convictions; (5) the
evidence was insufficient to support the gang enhancements;
(6) the trial court erred in failing to instruct the jury on the
organizational nexus requirement of the gang enhancements; and
(7) the matter must be remanded for resentencing to permit the
trial court to exercise its discretion under section 12022.53,
subdivision (h). We affirm the convictions and remand the
matter for resentencing.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. The Charges
In an amended information, the Los Angeles County
District Attorney charged Veliz with two counts of attempted
1 Undesignated statutory references are to the Penal Code.
2
willful, deliberate, and premeditated murder (§§ 664, 187),2 one
count of assault with a firearm (§ 245, subd. (a)(2)), and one count
of possession of a firearm by a felon (§ 29800, subd. (a)(1)). The
amended information also alleged gang enhancements (§ 186.22,
subd. (b)(1)); firearm enhancements (§§ 12022.5, subd. (a),
12022.53, subds. (b), (c), (d)); and a great bodily injury
enhancement (§ 12022.7, subd. (a)). In addition, the People
alleged Veliz had one prior serious felony conviction within the
meaning of section 667, subdivision (a)(1), and two or more
serious or violent felony convictions within the meaning of the
three strikes law (§§ 667, subds. (b)-(j), 1170.12), and had served
one prison term within the meaning of section 667.5, subdivision
(b).
B. Evidence At Trial
1. Veliz’s Prior Contacts with Various Witnesses
On November 26, 2014, a shooting occurred at a residence
on New England Street in Los Angeles. The residence where the
shooting took place consisted of a front house and a back house
with a patio area in between them. Cecilia Martinez, the owner
of the residence, lived in the back house with her boyfriend,
William Irdata. Daniel Monge and his friend Christopher Luna
each rented a room in the front house. Christian Lopez and his
brother, Walter Lopez,3 lived across the street and were friends
with Martinez and Monge. Martinez often held barbeques at the
residence for people in the neighborhood.
2 On the People’s motion, the trial court later dismissed one
of the attempted murder counts pursuant to section 1385.
3 We refer to the Lopez family members by their first names.
3
Monge was a member of a local gang known as the Drifters.
His gang moniker was “Jester.” Monge joined the Drifters when
he was 14 years old and belonged to the Bagos clique of the gang.
He previously had been the victim of a drive-by shooting by a
rival gang. Monge was aware that gang members who broke a
rule of their gang might be disciplined by getting “beat down” and
“their ass whooped.” Monge testified, however, that he “never
really followed” the leaders of his own gang, asserting “who gave
them the authority over me.”
Monge was familiar with Veliz, whom he knew as
“Dillinger.” Veliz was a fellow member of the Drifters and
belonged to the Pico Locos clique of the gang. While Monge
“never really associated with [Veliz],” he had known Veliz’s
girlfriend, Roxanne Rojas, for a number of years because they
resided in the same neighborhood. Rojas also was part of the
Drifters gang. Monge did not get along with Rojas because he
thought she had a “loud mouth” around other gangsters. Neither
Luna nor the Lopez brothers were Drifters gang members.
Martinez was friendly with Veliz and Rojas. Prior to the
shooting, Veliz and Rojas had visited the New England Street
residence four or five times, and Martinez had cooked food for
them. Each time, they stayed for about 30 minutes. Luna was
also familiar with Veliz and Rojas, and had observed them at the
residence on four prior occasions. They had mingled with other
people, and did not appear to have conflicts with anyone. The
Lopez brothers had not met Veliz or Rojas. However, Christian
had seen Rojas around the neighborhood a couple of times.
Approximately three months before the shooting, Walter saw
Veliz for a few minutes when Veliz arrived in a car with Rojas.
Veliz had long hair that he often wore in a ponytail.
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2. The Shooting of Monge and Christian
On the morning of November 26, 2014, Martinez held a
barbeque in the patio area of the residence. The guests included
Christian, Walter, Irdata, and a man named Cesar Soto. Walter
brought a 24-case of beer to the gathering. As Martinez prepared
the food, the men drank beer and socialized. Walter had about
five beers, and Christian had three or four beers.
At some point, Veliz, Rojas, and an older man with gray
hair and black clothing arrived at the residence. Veliz was
wearing a white t-shirt and a sweater, and wore his hair in a
ponytail. Monge and Luna were inside the front house when the
group arrived. Monge was with his girlfriend and young child.
Luna was in his room getting ready to join the gathering outside.
From his bedroom window facing the driveway, Luna observed
Rojas, Veliz, and the older man walking up the driveway toward
the patio.
Once in the patio, Rojas introduced Martinez to the older
man as her friend. While the older man sat down on a couch in
the patio, Veliz remained standing. Christian felt Veliz and his
companions were acting in an aggressive manner as soon as they
arrived. Veliz did not introduce himself to the group. Instead, he
grabbed a beer for himself and his male friend without asking
permission. Shortly after arriving, Rojas asked for Monge. In
response, Martinez went to the front house and told Monge that
Rojas was there and wanted to talk to him. When Monge did not
immediately come out to the patio, Rojas asked for him again.
Martinez assured Rojas that Monge would be there soon. With a
worried look on her face, Rojas asked for Monge a third time,
stating: “Where the fuck is Daniel?” While waiting for Monge,
Rojas also asked Martinez for pain pills for Veliz. As Martinez
5
went to the back house to retrieve the pills, Monge entered the
patio. Martinez saw Monge casually walk up to Rojas and ask
her, “What’s up?”
A short time later, Veliz left the gathering for a few
minutes. When Veliz returned, Martinez was in the back house
looking for the pain pills that Rojas had requested. Christian
was seated on the couch next to the older unidentified man.
Monge and Walter were standing near one another and facing
Christian. Veliz quickly approached Monge from behind, pointed
a gun directly to the back of his head, and fired at least two shots.
One shot hit Monge in the back of his head, causing him to fall
to the ground. The second shot hit Christian in his left leg. After
firing the shots, Veliz ran from the patio down the driveway
toward the street. He then continued running down the street
toward a nearby school.
Luna was in his bedroom in the front house when he heard
the gunshots. He immediately dropped to the floor. Monge’s
girlfriend ran into the room. She told Luna she thought “they
came to hurt” Monge and asked him what she should do. Luna
instructed her not to do anything at that time because it was not
safe. After about five seconds, Luna stood up and looked out his
bedroom window. He saw Veliz walking down the driveway
toward the street. Rojas and the older man followed about 30
seconds later. Luna tried to calm down Monge’s girlfriend and
daughter, both of whom were scared. Luna then walked toward
the front of the house and looked out the window facing the
street. He saw Veliz, Rojas, and the older man get into a green
vehicle and drive away.
Victor Begazo, an employee of the Los Angeles Unified
School District, was working in front of Magnolia Elementary
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School when he heard gunshots. A short time later, Begazo saw
a White or Hispanic man running nearby. The man stopped near
Begazo, pulled a gun from his waistband, and hid the gun under
a wooden fence. He then continued running. Begazo noticed the
man had a ponytail, but never saw his face.
The day after the shooting, Martinez searched Rojas’s
Facebook page and found a photo of Veliz. In the photo, Veliz
had a ponytail and was shirtless with tattoos on his upper chest.
Martinez showed the photo to Christian, Walter, and Luna. The
three men agreed that the person in the photo was the one who
had committed the shooting. Each of the men identified Veliz as
the shooter at trial.
3. The Police Investigation
Detective Maggie Sherman of the Los Angeles Police
Department (LAPD) was the lead investigating officer assigned
to the case. On December 9, 2014, she interviewed Monge at the
hospital. Detective Sherman had been unable to interview
Monge before that date because he was unconscious due to his
injury. Monge had no recollection of any events that occurred on
the day of the shooting. When asked about Veliz, Monge
responded that Veliz was a friendly guy and that there were no
problems between them. Monge also stated he did not think he
had been targeted by his own gang in the shooting. Monge told
Detective Sherman, however, that he previously received a call
from someone in prison who asked him to sell narcotics for the
gang. Monge said no to the request. While at the hospital,
Detective Sherman also spoke with Monge’s mother, who showed
the detective Facebook photos of Veliz and Rojas on her cell
phone.
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On January 13, 2015, Detective Sherman interviewed
Christian at the police station. Christian stated the shooter was
wearing both a shirt and sweater and had no visible tattoos.
During the interview, Detective Sherman showed Christian a
six-pack photographic lineup that included Rojas. Christian
made a positive identification of Rojas. Christian also showed
Detective Sherman the Facebook photo of Veliz that Martinez
had found, and indicated that the person in the photo was the
shooter.4
Detective Sherman later prepared a six-pack photographic
lineup that included Veliz. In March 2015, Detective Sherman
showed the photographic lineup to Martinez, Luna, and Walter
during separate interviews. Upon viewing the lineup, Martinez
and Luna quickly identified Veliz as the man from the barbeque.
Walter was unable to identify Veliz at that time, but he showed
Detective Sherman the same Facebook photo of Veliz that had
been shared by other witnesses. Walter also told the detective
the shooter wore a white t-shirt and had tattoos on his face
(which Veliz did not have). At the preliminary hearing held in
February 2016, Walter and Christian identified Veliz as the
shooter. The police did not locate Rojas.
On the day of the shooting, the police recovered 24 bottles
of beer from the patio of the residence. A forensic print specialist
with the LAPD obtained 15 latent prints from 11 of the bottles.
Seven of the latent prints matched those belonging to Walter,
4 At the time of Christian’s interview, Detective Sherman
had not yet created a photographic lineup for Veliz. Following
the interview, Detective Sherman arrested Christian for an
unrelated attempted murder charge. Christian was later
convicted of attempted murder.
8
Christian, and Cesar Soto. None of the prints matched those
belonging to Veliz. A criminalist in the LAPD’s serology DNA
unit tested the beer bottles for DNA evidence and obtained six
different male DNA samples. None of the samples matched
Veliz’s DNA. Eight of the bottles contained insufficient DNA to
identify or exclude Veliz as a contributor.
The police also recovered a .22-caliber revolver with two
spent cartridges from under a wooden fence, 200 to 300 feet from
the New England Street residence. The forensic print specialist
obtained one latent print from the frame of the revolver right
above the trigger. The print “was not of sufficient quality to run
through” the LAPD fingerprint identification databases. Based
on a manual comparison, however, the print did not belong to
Veliz. The LAPD tested the revolver for DNA, but recovered no
usable DNA.
At trial, the parties stipulated that, prior to the shooting,
Veliz had been convicted of a felony offense.
4. The Gang Expert Testimony
Officer Paolo Molina testified as a gang expert for the
People. He was a gang officer in the LAPD’s Olympic Division,
and investigated crimes committed by gangs in the area,
including the Drifters. According to Officer Molina, the Drifters
was a single gang with approximately 100 documented members.
The gang was comprised of several cliques, including the 12th
Street Bagos and the Picos Locos. All of the cliques got along
with one another and were enemies of the rival gangs that
bordered their territory. At the time of the shooting, the Drifters’
territory included the neighborhood where the shooting occurred.
The Drifters used the acronyms “DFS” and “X3” as common signs
or symbols in their graffiti and gang tattoos. The primary
9
activities of the Drifters gang were robbery, grand theft auto,
murder, and attempted murder. Monge was a member of the
Drifters and was convicted of taking a vehicle without the
owner’s consent (Veh. Code, § 10851) on May 5, 2013. Walter
Pereira also was a Drifters gang member and was convicted of
robbery (§ 211) on May 15, 2013.
Although Officer Molina had never met Veliz, based on his
review of photographs depicting Veliz’s various tattoos, he opined
Veliz was a Drifters gang member. Veliz’s tattoos included the
word “Drifters” on his stomach, the word “West” on his chest, and
the letters “DFS” on the back of his head. Officer Molina testified
he had never seen anyone with similar tattoos who was not a
Drifters gang member.
When presented with a hypothetical question based on the
facts of this case, Officer Molina opined the shooting would have
been committed for the benefit of a gang. Officer Molina testified:
“When you break a rule, that gang member is going to be
expected to be punished in a certain way, and it’s usually
[through] the use of violence, depending on . . . how serious the
allegation was that he made. In this instance he wasn’t following
the rules and he was disrespecting someone that’s higher up,
which is a pretty big allegation. So in order to keep the gang
member in check, . . . the gang has to resort to do something
about that. . . . He could get beat up by a group of other gang
members, or he could end up getting stabbed. He could end up
getting shot, or even possibly killed because he broke the rules.
This benefits the gang because it also puts the other members of
that gang in . . . check[.] It shows them that, hey, if you don’t
listen to what we’re telling you, then this is what’s going to
happen to you. So that way that gang [member] is going to be
10
more willing to partake in any other type of crimes that anybody
in the gang is telling him to be part of.”
At the close of the People’s case-in-chief, the defense rested
without presenting any evidence.
C. Jury Verdict and Sentencing
The jury found Veliz guilty of the attempted willful,
deliberate, and premeditated murder of Monge, assault with a
firearm on Christian, and possession of a firearm by a felon. The
jury also found true all enhancement allegations. The trial court
sentenced Veliz to life in state prison with a minimum parole
eligibility of 30 years, plus 25 years to life. Veliz timely appealed.
DISCUSSION
A. Veliz Has Not Met His Burden To Demonstrate
Ineffective Assistance of Counsel
Following the jury’s verdict, Veliz retained new private
counsel and filed a motion for new trial. In his motion, Veliz
argued his trial counsel provided ineffective assistance by failing
to call an eyewitness identification expert, a fingerprint or DNA
expert, and a gang expert to testify. He raises those same
ineffective assistance claims on appeal, and argues the trial court
erred in denying his new trial motion. Veliz also raises a number
of other ineffective assistance claims for the first time, and
asserts those claims further establish that his counsel was
constitutionally deficient. We conclude Veliz’s ineffective
assistance claims lack merit.
1. Relevant Background
a. The defense rests without calling any experts
Private counsel, Michael Becker, represented Veliz at trial.
Following several continuances, trial commenced on February 6,
11
2017. At the end of the day on Friday, February 10, the
prosecutor advised the trial court that the People likely would
rest the following Tuesday, February 14.5 When trial resumed on
February 14, Becker informed the trial court that he had spoken
with his eyewitness identification expert, Dr. Mitchell Eisen, on
Friday evening, and had learned Dr. Eisen would not be available
to testify until Tuesday, February 21. Becker explained that,
rather than request a week-long adjournment to allow for Dr.
Eisen’s testimony, the defense had decided not to call Dr. Eisen
as a witness “for a number of reasons.” Becker added that he had
prepared a “two-page” memorandum “detailing [the] tactical
reasons why [he] should or should not call Dr. Eisen,” and
reviewed the memorandum with Veliz over the past weekend.
Becker and Veliz also had discussed “at length” whether to call
their gang expert, Martin Flores, as a witness. Becker stated
that, at the conclusion of their meeting, Veliz had “agreed with
[him] and understood and supported the decision not to call Dr.
Eisen,” and that the “same was true” as to the decision not to call
gang expert Flores.
In response to the trial court’s question whether he had
listened to his counsel’s explanation as to the eyewitness
identification and gang expert witnesses, Veliz responded “Yes,
your honor.” The court then asked whether Veliz “understood”
and “agreed” with his counsel’s explanation. Veliz again
answered, “Yes, your honor.”
b. Veliz files a motion for new trial
Following the jury’s verdict, Veliz retained new private
counsel, Lonnie McDowell, to represent him in the post-trial
5 Monday, February 13, 2017 was a court holiday.
12
proceedings. Veliz thereafter filed a motion for new trial in which
he argued that Becker had provided ineffective assistance of
counsel at trial by failing to call necessary expert witnesses,
including an eyewitness identification expert, a DNA expert, a
fingerprint expert, and a gang expert. Veliz also argued that the
gang enhancement true findings should be reversed because they
were partially based on inadmissible hearsay evidence provided
by the prosecution’s gang expert.
In support of his motion, Veliz attached Becker’s two-page
memorandum regarding the decision not to call Dr. Eisen. In the
memorandum, Becker detailed the conversation he had with Dr.
Eisen about their respective views of the case and the reasons
why Becker believed Dr. Eisen’s testimony was not necessary. In
the memorandum, Becker quoted Dr. Eisen’s, remark that “ours
‘is a messy case on many levels.’” As set forth in the
memorandum, Dr. Eisen viewed the case “as having issues
involving ‘social media’ and ‘contamination of witnesses.’” He
wanted to focus his attention on the reasons Martinez “pulled
the picture of [Veliz] off Facebook.” Both Becker and Dr. Eisen
agreed that Martinez “showing everyone the picture of [Veliz]
was the fait accompli.” Unlike Becker, however, Dr. Eisen did
not think the discrepancies in the witnesses’ testimony about
the shooter’s clothing, tattoos, and method of fleeing would be
persuasive to the jury. Instead, Dr. Eisen thought “the jurors
will feel that if they (the witnesses) all think it’s [Veliz], it must
be him.” Dr. Eisen also thought the testimony about the man
who discarded the gun having a ponytail was “‘probably true’”
because “‘everything seems to fit.’” In response to Becker’s
assessment that Dr. Eisen was “not feeling what we’re trying to
sell,” Dr. Eisen stated: “‘[I]t doesn’t matter if I’m not feeling it,
13
I’d offer the best explanation to achieve due process.’” In
response to Becker’s statement that he could “effectively explain
the contamination issue during closing arguments,” Becker
quoted Dr. Eisen’s statement, “You should go with your feeling.’”
Veliz also supported his motion with a three-page
handwritten statement that he had prepared regarding his
conversation with Becker about expert witnesses. According to
Veliz, Becker visited him on February 11 to discuss trial strategy.
Becker explained the eyewitness identification expert was not
available to testify “due to a family accident,” and the
replacement that Becker had chosen “thought there was more
than enough proof to convict.” Becker advised Veliz that they did
not need any experts because the trial was “going so well.”
Becker also referred to the trial as a “night in the club” and the
jury as a “girl we wanted to have a one night stand with.” Becker
did not want to bring in an expert who was “not cooperating” and
was “already declaring [Veliz] guilty.” Becker also expressed
concern they would be “penalized” by the judge or the jury if they
were not ready to present any witnesses due to the People resting
earlier than Becker had anticipated. As a result, the defense
rested without presenting any evidence. According to Veliz,
Becker’s lack of preparation left “us with nothing to present to
the jury.”
c. The trial court hears evidence on the motion
The trial court held an evidentiary hearing on the motion
for new trial. The following witnesses testified at the hearing:
(i) Becker,6 (ii) Dr. Iris Blandon-Gitlin, the defense’s original
6 Prior to Becker’s testimony, the trial court confirmed that
Veliz had agreed to waive the attorney-client privilege regarding
14
eyewitness identification expert, (iii) Flores, the defense’s gang
expert, and (iv) Veliz.
(i) Becker
Becker had placed his co-counsel, Celia Cho, in charge of
seeking the appointment of an eyewitness identification expert.
Cho selected Dr. Blandon-Gitlin as the defense expert, and
provided her with case materials. Becker did not speak with Dr.
Blandon-Gitlin or receive a report of her anticipated testimony.
In late January 2017, Cho advised Becker that Dr. Blandon-
Gitlin would not be available to testify at a trial starting on
February 6. Becker did not know the reasons for Dr. Blandon-
Gitlin’s unavailability, and did not seek a continuance of the trial
based on her unavailability. Instead, Becker “scrambl[ed] . . . to
see if [he] could find another expert that would be available.” Dr.
Blandon-Gitlin suggested Dr. Eisen.
On February 3, 2017, Becker contacted Dr. Eisen about his
availability for trial. Becker explained the trial was estimated to
last two weeks, and gave Dr. Eisen a date range for when he
might be expected to testify. Dr. Eisen indicated he would be
available. After providing Dr. Eisen with the case file, Becker
spoke with him about his anticipated testimony. They discussed
how the witnesses had shared Veliz’s Facebook photo “framed in
what looked like a wanted poster.” Dr. Eisen shared Becker’s
concern about “suggestiveness and contamination in the
identification process.” Prior to the start of trial, Becker had not
decided whether he was going to call Dr. Eisen as a witness.
However, “Becker wanted to have the option” of calling Dr. Eisen
his communications with Becker for purposes of the new trial
motion.
15
“based on how the testimony comes out at trial.”
After the People indicated their intent to rest “way ahead of
schedule,” Becker immediately contacted Dr. Eisen to inform
him that he might need to testify the following week. At that
time, Dr. Eisen stated for the first time he would not be available.
In the same conversation, Becker discussed with Dr. Eisen the
state of the case and Dr. Eisen’s anticipated testimony. Dr. Eisen
explained the “truth of the narrative” was that the eyewitnesses
saw a man with a ponytail pull the trigger, and the details of
what that man wore and whether he had facial tattoos were
“noise.” Dr. Eisen “felt the jury would be able to see the truth of
the narrative.” When Becker commented that Dr. Eisen was “not
feeling [his] mojo,” Dr. Eisen stated he would “still testify in a
manner to assure [Veliz’s] due process rights are protected.”
Becker felt Dr. Eisen did not agree with how he intended to
argue the case. Instead, Dr. Eisen considered Becker’s
arguments about certain discrepancies in the witnesses’
testimony to be “noise” that the jury would not believe. After
weighing the potential negative impact of Dr. Eisen’s “noise”
statements, which the prosecutor could have brought out on
cross-examination, against Dr. Eisen’s “helpful” anticipated
testimony regarding suggestibility and contamination issues,
Becker decided not to call Dr. Eisen as a witness. Becker
explained: “So I felt, ultimately, that we were not on the same
wavelength, and I trusted my instinct at that point and decided
. . . that I didn’t think we should call him, and I tried to convey
to Mr. Veliz my reasoning.” Becker also realized that “this was
not a traditional identification case” because “some of the
witnesses in the case had had previous . . . multiple encounters,
with Mr. Veliz.”
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Because Becker believed his decision “might be considered
an “unorthodox decision,” he prepared the memorandum
explaining his reasoning. On February 11, 2017, Becker met
with Veliz to discuss his “thought process” and allow Veliz “to
weigh in” on the decision. Becker read the memorandum to Veliz
and shared Dr. Eisen’s anticipated testimony. Becker also
expressed his view that discrepancies in the witnesses’ testimony
about the shooter’s dress and appearance were “very helpful”
to the defense and that they were “in a good position at that point
to bring the case to the jury.” Becker did not recall discussing the
reasons for Dr. Blandon-Gitlin’s unavailability with Veliz, and he
was not aware of those reasons until he reviewed the new trial
motion. At the end of the meeting, Veliz agreed with the decision
not to call Dr. Eisen and did not express any concerns. Becker
also separately met with Veliz’ family, and they agreed with the
decision.
Prior to trial, Becker also consulted with a fingerprint
expert. The expert explained that fingerprints might not be
found on a cold beer bottle because the “condensation would
impede contact with the glass.” The expert also explained to
Becker that certain parts of a gun were not conducive to retaining
prints. Because Becker knew that information was not helpful to
the defense and that he could cross-examine the People’s
fingerprint expert “to flush out many of the favorable angles of
testimony,” Becker did not seek the appointment of a fingerprint
expert. Becker also felt he could effectively argue to the jury that
the single print recovered from the gun, which was not Veliz’s
print, must have belonged to the shooter.
Becker did not consult with a DNA expert because he did
not feel it was necessary. Becker knew that the People’s expert
17
would explain why Veliz’s DNA might not be found at the scene
of the shooting even if he was present. Becker felt he could
effectively cross-examine the People’s expert and draw out
favorable points for the defense. Becker also felt testimony from
a defense expert about the reasons why a person’s DNA might
not be found on a bottle or a gun would not be helpful because it
would offer the jury a “benign explanation” for why Veliz’s DNA
was not recovered from these items.
After discussing the case with Becker, gang expert Flores
attended the trial when the People’s gang expert testified.
Becker conferred with Flores before he cross-examined the
People’s expert. Becker also met with Flores after the cross-
examination. Becker decided not to call Flores as a witness
because Flores believed that the motive for the shooting was
“personal” rather than gang related. Becker was concerned
expert testimony about a personal motivation “might give the
jury an alternative mechanism to convict [Veliz] if they rejected
the gang motivation.” Becker also was aware that, based on the
sentence Veliz would receive if convicted of attempted murder,
“this was a life case no matter how you sliced it.” Because
“[w]inning the [gang] allegation was not going to save the day,”
Becker did not want to risk conceding Veliz might be guilty of the
underlying offense. Becker did not believe that “just trying to
save [Veliz] from the gang allegation . . . was a good strategy.”
(ii) Dr. Blandon-Gitlin
On June 28, 2016, the trial court appointed Dr. Blandon-
Gitlin as an eyewitness identification expert for the defense. In a
“huge” percentage of the cases in which she was appointed as an
expert, she was not called to testify. In the summer of 2016, Cho
sent Dr. Blandon-Gitlin materials related to the case. After they
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had a telephone conversation in September 2016 during which
Dr. Blandon-Gitlin provided Cho with her preliminary opinion,
they did not have any further communication until late January
2017. At that time, Cho contacted Dr. Blandon-Gitlin to inform
her the trial would be starting in a week and a half and learn Dr.
Blandon-Gitlin’s availability for trial. However, Dr. Blandon-
Gitlin was not available because she had family issues and other
work commitments. McDowell did not ask Dr. Blandon-Gitlin to
state her opinions at the new trial hearing because the “sole
purpose for [McDowell] calling her [was] her dealing with Mr.
Becker on scheduling, getting her here, that [Becker] called her
to testify, and then all of a sudden that fell apart.”
(iii) Martin Flores
On February 8, 2017, the trial court appointed Flores as a
gang expert for the defense. Flores first spoke with Becker about
the case in “mid” to “end of” January 2017. At that time, Becker
informed Flores the trial would be starting within a month and
sent Flores case materials. In February 2017, Flores provided
Becker with his opinion of the case. Flores’s opinion was that, if
Veliz was the shooter, his motive for the crime was “a personal
response” because the Monge had a “prior conflict” with Veliz’s
girlfriend.
On February 13, 2017, Becker sent Flores an email
confirming he was not going to call Flores as a witness. In the
email, Becker conveyed that he felt the case “was more of an I.D.
issue” case, and bringing in a defense gang expert might “impact
the case in a negative way by making it more of a gang case.”
19
(iv) Veliz
Veliz’s family retained Becker to represent him in October
2015. Early on in his representation, Becker told Veliz that he
wanted to retain an eyewitness identification expert, a DNA
expert, and a fingerprint expert. Shortly before trial began,
Becker informed Veliz that an eyewitness identification expert
had been appointed and that “everything [was] lined up ready for
trial.”
Becker visited Veliz over the weekend of February 10,
2017. He explained Dr. Blandon-Gitlin was no longer available to
testify because she had a family emergency. Becker also stated
that he had a second expert, Dr. Eisen, but “he was not favorable
to our case,” and Becker “wasn’t feeling what Dr. Eisen was
trying to say.” Becker told Veliz there was no time to look for
another expert, and he was going to proceed without one because
“the case . . . had been going good.” Becker indicated he did not
want to request a continuance because the trial judge had a
vacation scheduled for later that month, and the jury might feel
they were prolonging the trial. Although he “really trusted”
Becker, Veliz conveyed to Becker that he was not happy with the
decision because “there’s only one side and we’re just hearing
what the D.A. has to say. We don’t have no say-so.”
During the meeting, Becker and Veliz also discussed other
experts. Becker told Veliz he was not going to call a DNA or
fingerprint expert because he felt he could present that evidence
himself. Becker said he had decided not to call a gang expert
because “the case had been going so good, he felt like [they] were
in a good position.” Becker did not discuss with Veliz the “pros
and cons” of calling the fingerprint, DNA, or gang expert
witnesses. Instead, Becker made the one-night stand comment
20
about the jury. Veliz understood the comment to mean that they
were “going to win” and “didn’t need . . . experts.”
d. The trial court denies the motion
The trial court denied the motion for new trial. The trial
court ruled: “I don’t see that Mr. Becker’s representation was
inadequate. I believe there was an appropriate strategic reason
for every decision made. I don’t find that there’s any adverse
impact to the defendant from the failure to call any one of these
expert[ ] witnesses. And that while Mr. McDowell, with the
benefit of experience and hindsight, does his job in pointing out
things he might have done differently, or others might have done
differently, that’s not the standard. So the motion for new trial is
denied.”
2. Governing Law
“‘A criminal defendant is guaranteed the right to the
assistance of counsel by the Sixth Amendment to the United
States Constitution and article I, section 15 of the California
Constitution.’” (People v. Rices (2017) 4 Cal.5th 49, 65.) “In
order to establish a claim for ineffective assistance of counsel, a
defendant must show that his or her counsel’s performance was
deficient and that the defendant suffered prejudice as a result
of such deficient performance. [Citation.] To demonstrate
deficient performance, defendant bears the burden of showing
that counsel’s performance ‘“‘“fell below an objective standard
of reasonableness . . . under prevailing professional norms.”’”’
[Citation.] To demonstrate prejudice, defendant bears the
burden of showing a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have
been different.” (People v. Mickel (2016) 2 Cal.5th 181, 198; see
21
Strickland v. Washington (1984) 466 U.S. 668, 694.)
“When examining an ineffective assistance claim, a
reviewing court defers to counsel’s reasonable tactical decisions,
and there is a presumption counsel acted within the wide range
of reasonable professional assistance. It is particularly difficult
to prevail on an appellate claim of ineffective assistance.” (People
v. Mai (2013) 57 Cal.4th 986, 1009; accord, People v. Bell (2019) 7
Cal.5th 70, 125 [“‘[u]nless a defendant establishes the contrary,
we shall presume that “counsel’s performance fell within the wide
range of professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial strategy”’”].)
“‘“[I]f the record on appeal fails to show why counsel acted or
failed to act in the instance asserted to be ineffective, unless
counsel was asked for an explanation and failed to provide one,
or unless there simply could be no satisfactory explanation, the
claim must be rejected on appeal.’”” (People v. Johnson (2016) 62
Cal.4th 600, 653.) “Whether counsel’s performance was deficient,
and whether any deficiency prejudiced defendant, are mixed
questions of law and fact subject to our independent review.”
(In re Gay (2020) 8 Cal.5th 1059, 1073.)
“Usually, ineffective assistance of counsel claims are
properly decided in a habeas corpus proceeding rather than on
appeal.” (People v. Carrasco (2014) 59 Cal.4th 924, 980-981;
accord, People v. Hoyt (2020) 8 Cal.5th 892, 958.) A defendant
may, however, raise the issue of counsel’s effectiveness in a
motion for new trial. (People v. Hoyt, at p. 958; People v.
Carrasco, at p. 981.) “‘[T]he trial court should consider a claim of
ineffective assistance of counsel in a motion for new trial’ when
the ‘“issue of counsel’s effectiveness can be resolved promptly at
the trial level”’ and justice will be thereby be expedited.” (People
22
v. Carrasco, at p. 981.) “‘“‘“We review a trial court’s ruling on a
motion for a new trial under a deferential abuse-of-discretion
standard.” [Citations.] “‘A trial court’s ruling on a motion for
new trial is so completely within that court’s discretion that a
reviewing court will not disturb the ruling absent a manifest and
unmistakable abuse of that discretion.’”’”’” (People v. Hoyt, at
p. 957.)
3. Veliz Has Not Met His Burden To Show Ineffective
Assistance of Counsel
Veliz contends Becker provided ineffective assistance by
failing to call expert witnesses to testify at trial. Based on these
same grounds, Veliz further contends the trial court abused its
discretion in denying his motion for new trial. Veliz specifically
asserts Becker lacked any rational tactical basis for his decision
not to call to testify an eyewitness identification expert, a gang
expert, and a DNA or fingerprint expert. Veliz further argues the
lack of experts was prejudicial because it had the effect of
withdrawing a defense to the charged crimes and enhancement
allegations. In addition, Veliz claims his consent to proceed
without experts was not knowing and voluntary because it was
based on Becker’s misrepresentations.
“The decision whether to call certain witnesses is a
‘matter[] of trial tactics and strategy which a reviewing court
generally may not second-guess.’” (People v. Carrasco, supra, 59
Cal.4th at p. 989; see also People v. Bolin (1998) 18 Cal.4th 297,
334] [“[w]hether to call certain witnesses is . . . a matter of trial
tactics, unless the decision results from unreasonable failure to
investigate”].) Accordingly, a contention that defense counsel
was ineffective for failing to call an expert “‘must be supported
by declarations or other proffered testimony establishing both
23
the substance of the omitted evidence and its likelihood for
exonerating the accused. [Citations.] We cannot evaluate alleged
deficiencies in counsel’s representation solely on defendant’s
unsubstantiated speculation.’” (People v. Bolin, at p. 334; see
People v. Cunningham (2001) 25 Cal.4th 926, 1033 [where “record
does not reflect what evidence might have been presented” in the
testimony of experts, reviewing court is “unable to infer anything
about its existence, probative force, or the probable consequences
at trial, had such evidence been presented”].)
a. Failure to call an eyewitness identification expert
Veliz asserts Becker was ineffective because he failed to
take reasonable steps to ensure that an eyewitness identification
expert was available to testify at trial in support of Veliz’s “sole
defense.” With respect to Dr. Blandon-Gitlin, Veliz claims Becker
“admitted he failed to adequately communicate with Dr. Blandon-
Gitlin” to determine her availability, and failed to seek a short
continuance when he learned prior to trial that she would not be
available. With respect to Dr. Eisen, Veliz argues Becker also
failed to adequately communicate with Dr. Eisen to assure he
would be ready to testify in the event the People rested their
case earlier than anticipated. Veliz further contends Becker’s
“representation was deficient because he failed to call any
eyewitness expert to refute the reliability of [Veliz’s]
identification as the shooter.” Without an expert, Becker “was
relegated to arguing his personal opinion instead of evidence.”
Becker could have acted with greater diligence to
determine whether Dr. Blandon-Gitlin and Dr. Eisen would be
available for trial, and whether each expert’s proffered opinions
would be favorable to the defense. The record reflects that
Becker’s co-counsel did not contact Dr. Blandon-Gitlin about her
24
availability until a week and a half before trial was set to begin.
Although Becker was the lead trial counsel, he never spoke with
Dr. Blandon-Gitlin about her opinion of the case or how she
intended to testify if called as a defense witness. Further, even
though Becker learned of Dr. Blandon-Gitlin’s unavailability
in late January 2017, he did not secure another eyewitness
identification expert until after he announced his readiness for
trial on February 2. The record further reflects that Becker did
not have a thorough discussion with Dr. Eisen about his opinion
of the case until February 10, after the People announced their
intention to rest on the next court date. During that discussion,
Becker learned for the first time that Dr. Eisen would not be
available to testify the following week when the defense had to
present its case. Becker also learned that Dr. Eisen disagreed
with Becker’s assessment of the importance of the discrepancies
in the witnesses’ testimony about the shooter’s clothing, tattoos,
and method of fleeing. According to Becker, Dr. Eisen regarded
those arguments as “noise” that the jury likely would reject. At
that late stage in the trial, Becker made a tactical decision not to
call Dr. Eisen as a witness.
Although Becker could have done more to timely ascertain
the availability of Dr. Blandon-Gitlin and Dr. Eisen for trial as
well as the substance of their anticipated testimony, we need not
decide whether Becker’s actions and omissions with respect to
these experts fell below an objective standard of reasonableness.
As the California Supreme Court has held, a reviewing court
“need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies. . . . If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
25
prejudice, which we expect will often be so, that course should be
followed.” (People v. Carrasco, supra, 59 Cal.4th at p. 982;
accord, Strickland v. Washington, supra, 466 U.S. at p. 697.)
Veliz has failed to demonstrate prejudice.
Testimony of an eyewitness identification expert may
be helpful to a jury’s understanding of the case “[w]hen an
eyewitness identification of the defendant is a key element of
the prosecution’s case but is not substantially corroborated by
evidence giving it independent reliability,” and there are “specific
psychological factors shown by the record that could have affected
the accuracy of the identification but are not likely to be fully
known to or understood by the jury.” (People v. McDonald (1984)
37 Cal.3d 351, 377, overruled on other grounds in People v.
Mendoza (2000) 23 Cal.4th 896, 914.) Factors bearing on the
reliability of an eyewitness identification that may be beyond the
jury’s common experience include “the effects on perception of an
eyewitness’ personal or cultural expectations or beliefs [citation],
the effects on memory of the witness’ exposure to subsequent
information or suggestions [citation], and the effects on recall
of bias or cues in identification procedures or methods
of questioning.” (People v. McDonald, at p. 368.) This does not
mean, however, that defense counsel must call an expert in every
case where an eyewitness identification is uncorroborated.
(People v. Datt (2010) 185 Cal.App.4th 942, 952.) To the contrary,
the Supreme Court has recognized that “[e]xpert testimony on
the psychological factors affecting eyewitness identification is
often unnecessary.” (People v. Lewis and Oliver (2006) 39 Cal.4th
970, 995; see People v. McDonald, at p. 377 [“[w]e expect that
such evidence will not often be needed”].)
26
As the trial court explained in denying the motion for new
trial, this was not a typical eyewitness identification case. The
trial court found: “There were people saying he was there. And
from what I can tell, no expert could have undermined at least
part of that testimony, since Mr. Veliz was not a stranger to the
people that were there. So are they lying that he was there?
Possibly, if they had a motive. But that is not an I.D. issue,
that’s a bias issue or a motive to cause him harm. That is
different. But the woman who did the cooking, Cecilia Martinez,
she knew him. He was a guest at her house frequently. The
others−I believe the two brothers had seen him in the
neighborhood before. So I don’t see what an eyewitness expert’s
going to say about that. You can certainly say someone who
didn’t know him would be contaminated by looking at his picture,
especially if they heard a story saying he’s the guy, yes. But
that’s if they didn’t know him . . . Mr. Becker raised these things
in his argument. You can argue about whether he leaned hard
enough on the right ones, made the most efficient argument he
could, but assuming he got his first eyewitness expert and that
person testified wonderfully from his view, is he going to argue
Mr. Veliz wasn’t there? I don’t know. That’s going to be a
challenging strategy to argue that he wasn’t there . . . So I just do
not see the expert eyewitness issue as being withdrawing of a
defense. It is a strategy that people can second-guess, as with all
strategies can be second-guessed. But I don’t even see the dots
being connected between the expert not coming and some
argument that couldn’t be made or wasn’t made. I don’t see it.
Everything you’re talking about so far, the jury heard and
considered.”
27
Thus, while the identification of Veliz as the shooter was
the key element of the People’s case, this was not a situation
where eyewitnesses with no prior contact with Veliz identified
him as the perpetrator. Rather, multiple eyewitnesses who
identified Veliz as being present at the scene were familiar with
him prior to the shooting. Martinez was the witness most
familiar with Veliz. Veliz had visited Martinez’s home four or
five times. During those visits, Martinez had friendly
interactions with Veliz and his girlfriend, Rojas, and cooked food
for them. Luna also saw Veliz and Rojas on four prior occasions
when they visited the residence, and he was able to observe them
together as they socialized with other people. While Walter had
never met Veliz or Rojas, he saw Veliz arriving at the residence
on one occasion a few months before the shooting.
In addition, Veliz attended the barbeque on the day of the
shooting, and he spent time standing near the other guests while
Rojas inquired about Monge. Each witness who was present at
the barbeque thus had an opportunity to observe Veliz for a
period of time before the shooting occurred, and similarly recalled
he had long hair tied back in a ponytail. The witness who saw a
man dispose of the gun right after the shooting also recounted
that the man had a ponytail. Given that the majority of
witnesses who identified Veliz had some degree of contact with
him prior to the shooting, it was not reasonably probable that
expert testimony on the psychological factors affecting eyewitness
identifications would have resulted in a different outcome at
trial.
Veliz nevertheless contends that an eyewitness
identification expert “was essential to explain the contamination
of the eyewitness testimony stemming from discussions and the
28
dissemination of [Veliz’s] photo, and how that corrupted the
witnesses’ subsequent identifications.” Veliz notes that, in
discussing the case with Becker, Dr. Eisen expressed his opinion
that Martinez had contaminated the identification process by
showing the witnesses the photo of Veliz that she had found on
Rojas’s Facebook page. However, Becker challenged the
eyewitness identifications on this basis in cross-examination. In
particular, Becker elicited testimony from Detective Sherman
that, prior to her showing the six-pack photographic lineup to the
witnesses, a number of them had already seen the Facebook
photo of Veliz that was being circulated among the group. Becker
also addressed the likelihood of contamination in the
identification process during his closing argument to the jury,
asserting: “We could use different words for what the impact of
using social media to pull a picture off and show to everybody
after a crime could do to contaminate or taint an investigation,
but[ ] [is] very clear that that’s what happened here. That these
people . . . many of whom were intoxicated, or had a very limited
opportunity to see the shooter, were influenced by having been
presented with the photograph of Luis Veliz. I think it has the
effect of undermining the quality of the identifications made
here.”
As the trial court found, the issue of potential
contamination in the identification process was therefore
presented to the jury. While Veliz argues that expert testimony
on the factors affecting memory could have aided the jury in
understanding this issue, he has not shown that the outcome of
his trial would have been any different had such testimony been
presented. As the trial court aptly stated: “There were too many
complex issues of identification – who played what role, who was
29
present, other circumstantial evidence of Mr. Veliz’s presence –
that a pure I.D. discussion of the theories of memory and
suggestibility would have made no difference. The jury, using
knowledge within their own skill and competency, weighed all of
these topics.” Because it is not reasonably probable that the jury
would have reached a more favorable verdict had an eyewitness
identification expert testified, Becker’s failure to call such an
expert did not constitute ineffective assistance of counsel. (In re
Alvernaz (1992) 2 Cal.4th 924, 945 [“even if counsel’s
performance was deficient, petitioner has failed to sustain his
burden on the issue of prejudice”].)
b. Failure to call a gang expert
Veliz further argues Becker was ineffective in failing to call
gang expert Flores. Veliz asserts the decision to forego the use of
a gang expert was “irrational” because the “decision effectively
conceded the truth of the gang enhancements.”
The record reflects, however, that Becker had a rational
tactical basis for deciding not to call Flores as a witness. As
Becker explained at the hearing on the new trial motion, Flores
was prepared to testify that there may have been a personal
motive for the shooting because Monge had a prior conflict with
Veliz’s girlfriend, Rojas. Flores’s proffered opinion thus could
support the defense that Veliz was not acting for the benefit of
the gang when he committed the shooting. However, Becker was
reasonably concerned that, if credited by the jury, Flores’s
testimony about a personal motivation would offer an
“alternative mechanism to convict” for the substantive offenses of
attempted murder and assault with a firearm. As the trial court
found: “I would hardly find it ineffective assistance of counsel to
decide not to bring in an expert who says, yeah, this sounds more
30
like someone who is trying to stand up for the honor of his
girlfriend, and therefore it’s a personal beef and that’s why he
tried to kill him and had nothing to do with the gang. Because
[the prosecutor] could easily say, yeah, that may have been a big
factor when the gang decided to discipline him, they chose
somebody from the gang they knew didn’t like him because he
would be happy to do it. It’s kind of a two for one, out of
discipline for the gang and revenge for the girlfriend.”
Becker therefore made a reasonable tactical choice to forego
the use of a gang expert whose testimony could support a defense
to the gang allegations, but would risk bolstering the underlying
charges by further suggesting a personal motive for the shooting.
“‘A reviewing court will not second-guess trial counsel’s
reasonable tactical decisions.’” (People v. Woodruff (2020) 5
Cal.5th 697, 762.)
c. Failure to call a DNA and fingerprint expert
Veliz also challenges Becker’s decision not to call DNA and
fingerprint experts or to conduct independent testing of evidence
found at the crime scene. Veliz contends additional testing of the
firearm and beer bottles could have shown there was no forensic
evidence tying Veliz to the shooting, strengthening the defense
that he was not the shooter.
The People conceded in their case-in-chief that the forensic
evidence did not connect Veliz to the shooting.7 Calling a defense
7 In his opening statement, the prosecutor conceded: “There
was extensive testing done, DNA testing, fingerprint testing on
beer bottles at the location. There were approximately 20 bottles
at the location. The evidence will be unclear if Mr. Veliz actually
ever touched any of these bottles. However, they were tested and
you’re going to hear that none of the fingerprints came back to
31
expert to confirm what the People’s experts already had conceded
would not have added anything useful to the defense. (People v.
Doolin (2009) 45 Cal.4th 390, 424 [where no evidence suggested
shooter left behind blood at crime scene, “counsel could
reasonably have decided a blood analysis expert would contribute
nothing to the defense”]; People v. Adkins (2002) 103 Cal.App.4th
942, 952 [defense counsel “is not remiss for failing to present
additional scientific or medical evidence rather than relying upon
the opinions of the prosecution experts where there is no cause to
suspect that additional expert testimony or evidence would lead
to a different conclusion”].) Moreover, when Becker consulted
with a fingerprint expert, he was told that cold beer bottles and
certain parts of a firearm were not conducive to retaining prints.
Based on that information, Becker believed calling a forensic
expert might hurt the defense because the expert’s “benign
explanation” could bolster the prosecution’s argument that the
absence of Veliz’s prints or DNA did not exclude him as the
perpetrator. Becker thus had sound strategic reasons for his
decision. (See Harrington v. Richter (2011) 562 U.S. 86, 109 [“[t]o
support a defense argument that the prosecution has not proved
its case it sometimes is better to try to cast pervasive suspicion of
doubt than to strive to prove a certainty that exonerates”].)
Mr. Veliz and that the DNA, at best, is inconclusive. There is no
DNA that anybody going to say came back to him. You’re going
to learn that some DNA’s are of such poor quality that they can’t
really determine if it comes to somebody or it does not come to
somebody or if it’s such small amount that they can’t match it to
somebody. The firearm itself was also analyzed and you are
going to hear that they swabbed it for DNA and that there was no
human DNA on the gun and that there was a fingerprint on that
firearm that did not belong to Mr. Veliz.”
32
Regarding Veliz’s claim that the failure to conduct
independent testing of the evidence constituted ineffective
assistance, as the California Supreme Court has explained:
“More is required than a mere possibility that timely retesting
might have yielded favorable evidence. There must be a
reasonable probability that such evidence would have been
produced. Defendant cannot make such a showing. He does not
establish that the serological testing by the police in this case
was inaccurate, or that his own tests were likely to produce a
different result. Accordingly, we must conclude there was no
ineffective assistance. To hold otherwise would be to establish a
perverse system of incentives: defense counsel would have the
choice of retesting physical evidence on some undetermined
possibility that it might yield a result favorable to his client, or
not retesting, with a high probability that any conviction of his
client would therefore be overturned.” (People v. Kaurish (1990)
52 Cal.3d 648, 689-690.) Here, Veliz has not established that the
prosecution’s forensic testing was inaccurate, or that his own
testing likely would produce a more favorable result. Veliz
accordingly cannot show prejudice.
d. Veliz’s consent to proceed without experts
Veliz argues Becker provided ineffective assistance when
he misled Veliz about the availability of, and need for, expert
witnesses and the likelihood of prevailing at trial. Veliz asserts
Becker’s misrepresentations caused him to unknowingly and
involuntarily consent to proceed without any expert witnesses.
In support of this argument, Veliz points to various
statements that Becker allegedly made when he visited Veliz
over the weekend of February 10, 2017 to discuss trial strategy.
He claims Becker “misled” him about the reasons for Dr.
33
Blandon-Gitlin’s unavailability when Becker told him that the
expert had a family emergency. Veliz also claims Becker
“prejudicially misled” him about “the status of the case”
and “likelihood of prevailing” when Becker stated that the trial
was going well and that they did not need experts. In his
testimony at the hearing on the motion for new trial, Becker
disputed Veliz’s version of events. Becker denied giving Veliz a
reason for Dr. Blandon-Gitlin’s unavailability, and testified he
did not know the reason until he reviewed Veliz’s new trial
motion. Becker also testified he told Veliz that he “felt we were
in a good position,” but “wouldn’t say we’re gonna win this.” In
his testimony, Veliz admitted Becker “didn’t guarantee”
anything, but he “did make [Veliz] feel like we’re in a good
position.”
On this record, Veliz has failed to show ineffective
assistance of counsel based on Becker’s alleged
misrepresentations. Even assuming Becker made certain
misstatements to Veliz about the status of the case, the likelihood
of prevailing, or the need for experts, Veliz cannot demonstrate
prejudice. Veliz argues he was prejudiced by Becker’s
misrepresentations because they led him to consent to proceed
without the benefit of expert witnesses. However, the trial court
did not find, nor do we, that Veliz’s consent defeated his
ineffective assistance claims.
Even if Veliz had never consented to Becker’s decision to
forego the use of experts, he could not prevail on his ineffective
assistance claims. As discussed, there was no reasonable
probability that Veliz would have obtained a more favorable
result if Dr. Blandon-Gitlin, Dr. Eisen, or any other eyewitness
identification expert had testified. Any alleged misstatements to
34
Veliz about Dr. Blandon-Gitlin’s availability made no difference
in this case. Further, as for the other experts, the record reflects
Becker decided not to call these experts because he reasonably
decided that, on balance, their testimony could hurt the defense
more than it could help it. Becker’s decision to forgo such
testimony represented a valid tactical choice irrespective
of whether Veliz knowingly consented to that choice.
4. Counsel Retained for the Motion for New Trial Was
Not Ineffective
Veliz contends that Lonnie McDowell, the attorney who
represented him in the motion for new trial, also provided
ineffective assistance when he failed to introduce evidence of the
substantive content of Dr. Blandon-Gitlin’s opinions. Rather
than elicit testimony from Dr. Blandon-Gitlin about her case-
specific opinions, McDowell objected to the expert providing her
“ultimate conclusions based on her review of the evidence” at the
hearing on the new trial motion. According to Veliz, the
“evidence was necessary to show additional prejudice stemming
from [Becker’s] decision to change experts instead of making an
effort to accommodate [Dr. Blandon-Gitlin’s] prior commitments
by seeking a new trial date.”
Veliz has failed to establish an ineffective assistance claim
based on McDowell’s handling of the new trial motion. The
record does not affirmatively demonstrate that McDowell lacked
any rational tactical basis for objecting to the admission of Dr.
Blandon-Gitlin’s case-specific opinions. Instead, in making the
objection, McDowell argued the evidence was irrelevant because
Becker had testified that he never received a proffer of Dr.
Blandon-Gitlin’s opinions, and that he replaced her with Dr.
Eisen based solely on her unavailability. The trial court agreed
35
that, under these circumstances, Dr. Blandon-Gitlin’s case-
specific opinions were not relevant to the issues raised in the new
trial motion. The trial court explained: “[T]o demonstrate before
me that you could undermine [Dr. Blandon-Gitlin’s] opinion on
one or two or three witnesses to me is unnecessary because I
think that’s something that both sides could argue whether or not
the expert really could have helped the jury with that. . . . I
wanted both sides to know my view that most eyewitness issues
should be handled by a jury and are handled by a jury with
common sense and life experience. But there are some things
where I feel experts contribute meaningfully to things that are
different from the way a layperson looks at identification. So it
might be an interesting exercise to see what you could do with
Dr. Blandon-Gitlin’s opinions if she gave them in a case specific
way, but I’m thinking it would ultimately not be helpful to my
decision to watch that. . . . The defense is saying that . . . by not
calling experts to bolster his arguments on I.D., he effectively
withdrew that defense. . . . I guess I’m saying you don’t have to
retry your case or cross-examine a hypothetical case for me to
understand what your side is.”
Moreover, while Veliz speculates that Dr. Blandon-Gitlin’s
opinions “would have been helpful to the defense,” the record does
not disclose the substance of her opinions or whether they were
materially different from those provided by Dr. Eisen. A
defendant claiming ineffective assistance of counsel “must do
more than surmise that defense experts might have provided
more favorable testimony.” (People v. Lucas (1995) 12 Cal.4th
415, 448, fn. 5; see People v. Medina (1995) 11 Cal.4th 694, 773
[“[w]e cannot assume from a silent record that particular
witnesses were ready, willing and able to give mitigating
36
testimony, nor can we speculate concerning the probable content
or substance of such testimony”]; People v. Jones (2003) 29
Cal.4th 1229, 1263 [issues requiring review of matters outside
the record are better raised on habeas corpus rather than on
direct appeal]; People v. Mendoza Tello, supra, 15 Cal.4th at
pp. 266-267 [a claim of ineffective assistance of counsel relating
to “why counsel acted or failed to act in the manner challenged
. . . is more appropriately decided in a habeas corpus
proceeding”].) Finally, even assuming Dr. Blandon-Gitlin’s
opinions were favorable to the defense, Veliz cannot show
prejudice. As discussed, given that multiple eyewitnesses were
familiar with Veliz prior to the shooting, it was not reasonably
probable that the outcome of the trial or the new trial motion
would have been different had Dr. Blandon-Gitlin or any other
eyewitness identification expert been called to testify. (People v.
Mickel, supra, 2 Cal.5th at p. 198; In re Alvernaz, supra, 2
Cal.4th at p. 945.)
5. Trial Counsel Was Not Ineffective in Failing To File a
Motion To Suppress the Eyewitness Identifications
Veliz argues Becker was ineffective in failing to file a
motion to suppress the eyewitness identifications of him as
the shooter or to otherwise challenge the admissibility of those
identifications at trial. Veliz asserts Becker should have sought
to suppress the identifications because Martinez’s actions in
sharing Veliz’s Facebook photo with other witnesses were so
“impermissibly suggestive” that they tainted the identification
procedure and denied Veliz due process of law. This claim fails
because the allegedly suggestive identification procedure about
which Veliz complains was arranged by Martinez, a private
citizen.
37
It is well-established that “‘[d]ue process requires the
exclusion of identification testimony only if the identification
procedures used were unnecessarily suggestive and, if so, the
resulting identification was also unreliable.’” (People v. Avila
(2009) 46 Cal.4th 680, 698; accord, People v. Sanchez (2019) 7
Cal.5th 14, 35 [“‘A due process violation occurs only if the
identification procedure is “so impermissibly suggestive as to give
rise to a very substantial likelihood of irreparable
misidentification.”’”].) The United States Supreme Court has
held, however, that the federal due process clause is not
implicated where the allegedly suggestive identification
procedure was not arranged by the police. (Perry v. New
Hampshire (2012) 565 U.S. 228, 232-233 (Perry.) In Perry, the
high court explained that application of the due process clause
“turn[s] on the presence of state action and aim[s] to deter police
from rigging identification procedures, for example, at a lineup,
showup, or photograph array.” (Id. at p. 233.) “When no
improper law enforcement activity is involved, . . . it suffices to
test reliability through the rights and opportunities generally
designed for that purpose, notably, the presence of counsel at
postindictment lineups, vigorous cross-examination, protective
rules of evidence, and jury instructions on both the fallibility of
eyewitness identification and the requirement that guilt be
proved beyond a reasonable doubt.” (Ibid.; see People v. Thomas
(2012) 54 Cal.4th 908, 931.)
In this case, there was no indication of police involvement
in the allegedly suggestive identification procedure. Rather, the
evidence showed that Martinez acted on her own when she
searched Rojas’s Facebook page, found a photo of Veliz, and
shared that photo with the other witnesses. Because a due
38
process challenge to the identification procedure arranged by
Martinez would have been futile, Becker was not ineffective in
failing to file a motion to suppress or to otherwise object to the
eyewitness identification evidence on those grounds. (People v.
Caro (2019) 7 Cal.5th 463, 489 [where defendant “fail[ed] to
establish that a motion to suppress [evidence] would have been
meritorious,” he could not show his counsel was ineffective in
failing to bring such motion]; People v. Bell, supra, 7 Cal.5th at
p. 126 [“[a] decision not to pursue futile or frivolous motions does
not make an attorney ineffective”].)
6. Trial Counsel Was Not Ineffective in Agreeing To
Redact the Writing on Veliz’s Photo
Veliz contends Becker provided ineffective assistance when
he agreed to crop the word “WANTED” from the photo of Veliz
that Martinez shared with other witnesses. The record reflects
that the original photo that Martinez obtained from Rojas’s
Facebook page was in the nature of a western style “Wanted”
poster that was generated using a photo of Veliz and a website
application. The word “WANTED” was printed at the top of the
photo and the words “Drifters 13” were printed at the bottom.
Becker sought to redact the words “Drifters 13” from the photo as
unduly prejudicial, but sought to retain the word “WANTED”
because it was “an added component to the suggestiveness of the
picture.” The trial court ruled that either the photo would be
shown to the jury in its entirety, or the words on both the top and
bottom of the photo would be redacted. Becker and the
prosecutor agreed to crop the words “WANTED” and “Drifters 13”
from the photo, leaving only the image of Veliz.
Veliz asserts Becker should have agreed to show the jury
the complete photo with all of the printed words retained. Veliz
39
argues that, by agreeing to crop the word “WANTED,” Becker
withdrew a potentially meritorious defense that the witnesses
only identified Veliz as the shooter because Martinez showed
them a suggestive photo depicting him in a “Wanted” poster.
Becker reasonably concluded that the harm from leaving the
gang designation on the poster outweighed any benefit from
having the word “WANTED” remain on the poster. Further, as
the trial court observed, it was not reasonably likely the jury
would have viewed the unredacted photo as suggesting Veliz was
guilty of any crime. Rather, the jury likely would have
recognized the “Wanted” poster framing for what it was−“an old
time format, colorful way of showing his picture.” Accordingly,
even if the photo had been shown to the jury in its entirety, there
is no reasonable probability Veliz would have obtained a more
favorable verdict.
7. Trial Counsel Was Not Ineffective in Failing To Argue
that the Ongoing Organization Element of the Gang
Enhancements Was Not Met
At the close of the evidence, Becker brought a motion for
acquittal “as to all counts . . . and all special allegations” under
section 1118.1, which the trial court denied. On appeal, Veliz
claims Becker was ineffective in making the motion because
Becker failed to argue that the evidence was insufficient
to establish the “ongoing organization” element of the gang
enhancements, as defined in People v. Prunty (2015) 62 Cal.4th
59 (Prunty). This claim fails.
To obtain a true finding on a gang enhancement allegation,
the People must prove the defendant committed the charged
crime “for the benefit of, at the direction of, or in association with
any criminal street gang, with the specific intent to promote,
40
further, or assist in any criminal conduct by gang members.”
(§ 186.22, subd. (b)(1).) A “criminal street gang” is defined as
“any ongoing organization, association, or group of three or more
persons, whether formal or informal, having as one of its primary
activities the commission of one or more of the criminal acts
enumerated in [id., subd. (e)], having a common name or common
identifying sign or symbol, and whose members individually or
collectively engage in, or have engaged in a pattern of criminal
gang activity.” (Id., subd. (f).) A “pattern of criminal gang
activity” means “the commission of attempted commission of
conspiracy to commit, . . . or conviction of two or more of the
[enumerated] offenses, provided . . . the offenses were committed
on separate occasions, or by two or more persons” within a
statutorily defined time period. (Id., subd. (e).)
In Prunty, supra, 62 Cal.4th 59, the California Supreme
Court considered “what type of showing the prosecution must
make when its theory of why a criminal street gang exists turns
on the conduct of one or more gang subsets.” (Id. at p. 67.) The
prosecution in that case presented evidence the defendant
identified as a member of the Sacramento-area Norteño gang.
However, the prosecution’s predicate offenses evidence pertained
to activities of two Norteño subsets, of which the defendant was
not a member. The prosecution’s gang expert did not “offer any
specific testimony contending that these subsets’ activities
connected them to one another or to the Sacramento Norteño
gang in general.” (Ibid.)
The Supreme Court held the lack of a connection between
the subsets and the larger Norteño gang precluded application
of the gang enhancement, stating: “[W]hen the prosecution seeks
to prove the street gang enhancement by showing a defendant
41
committed a felony to benefit a given gang, but establishes the
commission of the required predicate offenses with evidence of
crimes committed by members of the gang’s alleged subsets, it
must prove a connection between the gang and the subsets.”
(Prunty, supra, 62 Cal.4th at pp. 67-68.) As the Court explained:
“That connection may take the form of evidence of collaboration
or organization, or the sharing of material information among the
subsets of a larger group. Alternatively, it may be shown that
the subsets are part of the same loosely hierarchical organization,
even if the subsets themselves do not communicate or work
together. And in other cases, the prosecution may show that
various subset members exhibit behavior showing their self-
identification with a larger group, thereby allowing those subsets
to be treated as a single organization. [¶] Whatever theory the
prosecution chooses to demonstrate that a relationship exists, the
evidence must show that it is the same ‘group’ that meets the
definition of section 186.22(f)−i.e., that the group committed the
predicate offenses and engaged in criminal primary
activities−and that the defendant sought to benefit under section
186.22(b).” (Prunty, supra, 62 Cal.4th at pp. 71-72, fns. omitted.)
Here, in contrast to the Norteño gang in Prunty, which had
1,500 members spread “all over Sacramento” with “a lot of
subsets” (Prunty, supra, 62 Cal.4th at p. 69), Officer Molina, the
People’s gang expert, testified the Drifters were “all one single
gang.” The Drifters only had about 100 members and claimed a
well-defined territory within the city of Los Angeles. While the
Drifters included several smaller cliques, each with 10 to 15
members, the cliques all got along with one another and shared
common rivals and common identifying symbols. (Id. at pp. 78-79
[“evidence that shows subset members have communicated,
42
worked together, or share a relationship (however formal or
informal) will permit the jury to infer that the subsets should be
treated as a single street gang”].)
It is true that both Monge and Pereira, the two Drifters
gang members who committed the predicate offenses, belonged
to the 12th Street Bagos clique, whereas Veliz belonged to the
Picos Logos clique. However, the evidence showed that these
cliques were not separate entities, but rather were parts of a
common organization whose members acted for the benefit of the
larger gang. Moreover, the prosecution’s theory was that Veliz
was a Drifters gang member who committed the shooting in this
case for the benefit of the Drifters, not for any particular clique
within the gang. Because there was substantial evidence from
which the jury could conclude that the Drifters were a single
“ongoing organization, association or group,” Becker was not
ineffective in failing to argue this specific element of the gang
enhancements in the section 1118.1 motion.
8. Trial Counsel Was Not Ineffective in Cross-Examining
the Prosecution’s Gang Expert About the Alleged
Predicate Offenses
Veliz contends Becker was ineffective when he cross-
examined Officer Molina about the predicate offenses required
to establish the “pattern of criminal gang activity” element of the
gang enhancements. Veliz specifically claims that, during his
cross-examination of Officer Molina, Becker elicited inadmissible
hearsay in violation of in People v. Sanchez (2016) 63 Cal.4th
665 (Sanchez). Veliz is incorrect.
The Sixth Amendment of the United States Constitution
guarantees a criminal defendant the right “to be confronted
with the witnesses against him.” (U.S. Const., 6th Amend.) In
43
Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the
United States Supreme Court held the Sixth Amendment right of
confrontation bars the “admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for cross-
examination.” (Id. at pp. 53-54.) In Sanchez, the California
Supreme Court considered the extent to which Crawford limits
an expert witness from relating case-specific hearsay in
explaining the basis for an opinion, and addressed the proper
application of California hearsay law to the scope of expert
testimony. (Sanchez, supra, 63 Cal.4th at p. 670.) The Sanchez
Court held the gang expert’s case-specific statements, presented
as true and without the requisite independent proof, constituted
inadmissible hearsay under California law. (Ibid.) The Court
also held that admission of such statements violates the right to
confrontation if the statements were testimonial and “the
Crawford limitations of unavailability, as well as cross-
examination or forfeiture, were not satisfied.” (Id. at p. 680.)
With respect to California hearsay law, the Sanchez Court
drew a distinction between “an expert’s testimony regarding his
general knowledge in his field of expertise” and “case-specific
facts about which the expert has no independent knowledge.”
(Sanchez, supra, 63 Cal.4th at p. 676, italics omitted.) “Case-
specific facts are those relating to the particular events and
participants alleged to have been involved in the case being
tried.” (Ibid.) Traditionally, “an expert’s testimony concerning
his general knowledge, even if technically hearsay, has not been
subject to exclusion on hearsay grounds.” (Ibid.) Thus, “[g]ang
experts, like all others, can rely on background information
accepted in their field of expertise under the traditional latitude
44
given by the Evidence Code. They can rely on information within
their personal knowledge, and they can give an opinion based on
a hypothetical including case-specific facts that are properly
proven.” (Id. at p. 685.) On the other hand, “[w]hat an expert
cannot do is relate as true case-specific facts asserted in hearsay
statements, unless they are independently proven by competent
evidence or are covered by a hearsay exception.” (Id. at p. 686.)8
In this case, the People sought to prove the “pattern
of criminal gang activity” element of the gang enhancements
through evidence of a predicate offense committed by Monge on
8 There is a split of authority as to whether a gang expert’s
testimony about predicate offenses offered to establish a gang’s
pattern of criminal gang activity involves “case-specific facts”
within the meaning of Sanchez. Some courts have concluded that
facts pertaining to predicate offenses are necessarily case specific,
and therefore, when an expert “testified that various persons
admitted to being members of the [gang], he related hearsay to
prove case specific facts.” (People v. Ochoa (2017) 7 Cal.App.5th
575, 583, 588-589; accord, People v. Lara (2017) 9 Cal.App.5th
296, 337.) Other courts have held that facts concerning predicate
offenses are more appropriately characterized as “background
information” because “they are historical facts related to the
gang’s conduct and activities.” (People v. Blessett (2018) 22
Cal.App.5th 903, 944-945, review granted Aug. 8, 2018, S249250;
see id. at p. 945) [because “a gang’s “‘operation, primary
activities, and pattern of criminal activities’” are background
facts, not case-specific facts, under Sanchez and a gang expert is
permitted to testify about such things, even if that testimony is
based on hearsay sources”]; People v. Vega-Robles (2017) 9
Cal.App.5th 382, 411.) The issue currently is pending before the
Supreme Court. (See People v. Garcia, review granted Oct. 17,
2018, S250670 and People v. Valencia, review granted Oct. 17,
2018, S250218.)
45
May 5, 2013, and a predicate offense committed by Pereira on
May 15, 2013. The People’s evidence consisted of certified court
records reflecting the convictions of Monge and Pereira for these
respective offenses, and Officer Molina’s testimony that Monge
and Pereira were both members of the Drifters gang. On cross-
examination, Becker asked Officer Molina if he knew whether the
offense committed by Monge was done for the benefit of the gang.
Officer Molina answered he did not know. Becker then asked
Officer Molina if he knew whether Pereira’s offense “was done for
gang purposes.” When Officer Molina again responded he did not
know, Becker asked if he had “seen docket on the case.” Officer
Molina confirmed he had seen the docket, and had “also reviewed
the report and spoken to the officers that took down those
reports.” Becker again inquired if Officer Molina had “any
personal knowledge” whether Pereira’s offense was done for the
benefit of the gang. Officer Molina answered it was his opinion
that the offense was done for the gang’s benefit.
Contrary to Veliz’s contention, Officer Molina did not relate
any inadmissible case-specific hearsay in responding to these
questions. Officer Molina’s testimony that he reviewed the
docket and police reports did not reveal any case-specific facts
about the content of those records. Likewise, his testimony that
he spoke with the officers who “took down those reports” did not
convey any out-of-court statements made by those officers or
anyone else. As the Supreme Court explained in Sanchez, while
“an expert cannot . . . relate as true case-specific facts asserted in
hearsay statements,” the expert “may still rely on hearsay in
forming an opinion, and may tell the jury in general terms that
he did so.” (Sanchez, supra, 63 Cal.4th at pp. 685–686.) The
expert also may tell the jury “generally the kind and source of
46
the ‘matter’ upon which his opinion rests” so that the jury can
“independently evaluate the probative value of an expert’s
testimony.” (Ibid.) Officer Molina thus could testify in general
terms that he relied on conversations with other officers and on
written records such as police reports and court dockets in
forming his opinions. Becker did not introduce “inadmissible
testimonial hearsay in violation of Sanchez.” While Becker’s
questioning of Officer Molina about the predicate offenses failed
to yield favorable testimony, it did not constitute ineffective
assistance of counsel.
9. Trial Counsel Was Not Ineffective in Failing To
Object to Alleged Prosecutorial Misconduct
Veliz asserts Becker provided ineffective assistance in
failing to object to multiple instances of prosecutorial misconduct
during closing argument. Veliz argues the prosecutor committed
misconduct in his argument to the jury by: (1) referring to a
hypothetical given by the trial court during jury voir dire and
implying it was evidence; (2) commenting on Veliz’s failure to
testify; and (3) denigrating defense counsel while vouching for
his own version of the truth.
“‘“A prosecutor’s conduct violates the Fourteenth
Amendment to the federal Constitution when it infects the trial
with such unfairness as to make the conviction a denial of due
process. Conduct by a prosecutor that does not render a criminal
trial fundamentally unfair is prosecutorial misconduct under
state law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the
jury.”’” (People v. Seumanu (2015) 61 Cal.4th 1293, 1331-1332.)
Where, as here, “a claim of misconduct is based on the
prosecutor’s comments before the jury, . . . ‘“the question is
47
whether there is a reasonable likelihood that the jury construed
or applied any of the complained-of remarks in an objectionable
fashion.”’” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254,
305.) “‘A defendant’s conviction will not be reversed for
prosecutorial misconduct . . . unless it is reasonably probable that
a result more favorable to the defendant would have been
reached without the misconduct.’” (People v. Flores (2020) 9
Cal.5th 371, 403.)
“‘“To preserve a claim of prosecutorial misconduct for
appeal, a defendant must make a timely and specific objection
and ask the trial court to admonish the jury to disregard the
improper argument.’” [Citation.] A court will excuse a
defendant’s failure to object only if an objection would have been
futile or if an admonition would not have cured the harm caused
by the misconduct.” (People v. Jackson (2016) 1 Cal.5th 269,
349.) Where a prosecutor’s statement does not constitute
prejudicial misconduct, defense counsel’s failure to object to the
statement is not ineffective assistance of counsel. (People v.
O’Malley (2016) 62 Cal.4th 944, 1010, fn. 12; People v. Castaneda
(2011) 51 Cal.4th 1292, 1333-1334.)
a. The prosecutor did not improperly rely on a
hypothetical used by the trial court in voir dire
Veliz contends the prosecutor committed misconduct by
referring to a hypothetical example given by the trial court
during jury voir dire to explain circumstantial evidence. Veliz
claims this was improper because the court’s hypothetical was
not evidence, and using it gave the prosecutor “unwarranted
credibility by association.”
During voir dire, the trial court explained to the jurors that
DNA and fingerprints constitute circumstantial rather than
48
direct evidence. To illustrate that point, the court gave the
following hypothetical: “[L]et’s say, I’m the person. And I
touched the bench like this. Now, you are seeing me do that.
That is direct evidence, if you saw the judge touch the bench. . . .
If I leave and someone comes in and finds my DNA, maybe even
my fingerprints right there, they would say I found his DNA. I
found his fingerprints there. And then the jury would conclude
circumstantially that I must have touched it.”
In his closing argument, the prosecutor told the jury that
“[e]vidence is the sworn testimony of witnesses and the exhibits
admitted into evidence,” and that “[n]othing we say is evidence.”
The prosecutor then stated: “Direct and circumstantial evidence.
We talked about this a little bit in the context of physical, D.N.A.,
fingerprint evidence. All right. Both direct and circumstantial
evidence are acceptable types of evidence. The judge -- when the
judge told you earlier -- or when we were talking in voir dire,
there was an example of D.N.A. left on . . . or a fingerprint left
on the judge’s bench. D.N.A. or fingerprints are what we
call circumstantial evidence. All right. And we call them
circumstantial evidence because they don’t directly prove
anything, if you think about it. I mean, they have strong
suggestions or inferences that you can draw from them, but just
because my D.N.A. is on this bench doesn’t mean I was actually
even here; right? This could have gotten there from a different
way. It could have been transferred from myself to another
person. I could cough or something. I could be in the general
vicinity. There’s lots of reasons why your D.N.A. could be
somewhere, even though you weren’t there.”
“‘Prosecuting attorneys are allowed “a wide range of
descriptive comment’ and their ‘“‘argument may be vigorous as
49
long as it amounts to fair comment on the evidence, which can
include reasonable inferences, or deductions to be drawn
therefrom.”’”’” (People v. Jackson, supra, 1 Cal.5th at p. 349.)
Prosecutors also “may draw from matters that are ‘“‘“not in
evidence, but which are common knowledge or are illustrations
drawn from common experience, history or literature.”’”’” (People
v. Ghobrial (2018) 5 Cal.5th 250, 289.) “The use of hypotheticals
is not forbidden and there is no misconduct when . . . ‘[n]o
reasonable juror would have misunderstood the expressly
hypothetical examples to refer to evidence outside the record.’”
(People v. Mendoza (2016) 62 Cal.4th 856, 907.)
Here, the prosecutor used a hypothetical to illustrate the
difference between direct and circumstantial evidence. In fact,
by referring to the trial court’s own prior hypothetical in voir
dire, the prosecutor made clear that he was merely giving an
“example” of how the presence of a person’s DNA on a bench
could be circumstantial evidence that the person had touched the
bench. The prosecutor never suggested the jury should consider
facts outside the record, nor did his use of the hypothetical invite
the jury to rely on the prestige of the government rather than its
own evaluation of the evidence. Because no reasonable juror
would have misunderstood the hypothetical to refer to facts
outside the record, there was no misconduct. (People v. Mendoza,
supra, 62 Cal.4th at p. 907 [no misconduct where “prosecutor
compared the facts of the case with common, obviously
hypothetical scenarios that jurors readily could posit for
themselves”]; People v. Davis (1995) 10 Cal.4th 463, 538 [use of
hypotheticals not misconduct where “[t]here was no suggestion by
the prosecutor that he was referring to factual information
outside the record; nor did his use of hypothetical examples
50
improperly use the prestige of the district attorney’s office to
convince the jury to return a verdict of death”].) Becker was not
ineffective in failing to object to the prosecutor’s hypothetical.
(See People v. O’Malley, supra, 62 Cal.4th at p. 1010, fn. 12
[“[b]ecause we find either no misconduct, or, assuming
misconduct, no prejudice, counsel’s failure to object was not
ineffective assistance”]; People v. Castaneda, supra, 51 Cal.4th at
pp. 1333-1334 [where prosecutor’s statement did not constitute
misconduct, “defense counsel had no basis for objecting to the
statement, and was not deficient for declining to do so”].)
b. The prosecutor did not improperly comment on
Veliz’s failure to testify
Veliz next asserts the prosecutor committed misconduct by
commenting on Veliz’s failure to testify in violation of Griffin v.
California (1965) 380 U.S. 609 (Griffin). In support of this claim,
Veliz points to the following argument by the prosecutor in his
rebuttal: “There was a couple of things that I think are
problematic for the defense in their argument. One was they
never disputed that [Rojas] was there. And if [Rojas] was there,
folks, it makes a whole lot of [sense] why Luis Veliz was there.
And the other issue is they never—now, they don’t have any kind
of burden, all right. They didn’t have to provide an explanation.
But they didn’t provide you with an explanation of what
happened that day. They didn’t say he was there, or he wasn’t
there. They didn’t say he was there, then he left and then he
came back. Or he was there, he left, and then left and somebody
else came back. There was no logical explanation for what
happened that day from the defense, in their argument.”
The Fifth and Fourteenth Amendments to the United
States Constitution “forbid[] either comment by the prosecution
51
on the accused’s silence or instructions by the court that such
silence is evidence of guilt.” (Griffin, supra, 380 U.S. at p. 615,
fn. omitted; see People v. Castaneda, supra, 51 Cal.4th at
p. 1333.) “‘[A] prosecutor may commit Griffin error if he or
she argues to the jury that certain testimony or evidence is
uncontradicted, if such contradiction or denial could be provided
only by the defendant, who therefore would be required to take
the witness stand.’” (People v. Thomas, supra, 54 Cal.4th at
p. 945.) “However, not every statement made before a jury that
touches on one defendant’s rights to silence and representation
amounts to a constitutional violation. For example, a prosecutor
is permitted to comment on the state of the evidence and the
defendant’s failure to call a logical witness, despite the mere
possibility that the statement might also be interpreted as a
reference to the defendant's failure to testify.” (People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 387.)
In this case, the prosecutor’s comments did not constitute
Griffin error. When viewed as a whole and in context, the
prosecutor’s remarks were directed at what he perceived to be
deficiencies in defense counsel’s closing argument to the jury,
and in particular, the failure of defense counsel to provide a
“logical explanation for what happened that day . . . in their
argument.” Although Becker had argued to the jury that Veliz
was not the shooter, he did not explain whether the defense
theory was that Veliz was at the barbeque but left before the
shooting, or was never there at all. Becker also did not address
whether the witnesses were wrong when they identified Veliz’s
girlfriend Rojas, as being present. In his rebuttal, the prosecutor
focused on these gaps in Becker’s argument. While the
prosecutor used the words “they” and “their” in his comments, it
52
seems clear this was a generic reference to the defense rather
than to Veliz himself. Indeed, the prosecutor began this portion
of his rebuttal by stating there were problems “for the defense in
their argument.” He then concluded by again referring to “the
defense, in their argument.” Because the prosecutor did not
comment on Veliz’s failure to testify, he did not commit Griffin
error. (People v. Medina, supra, 11 Cal.4th at p. 756 [no Griffin
error where “prosecutor’s comments were directed to the general
failure of the defense to provide an innocent explanation as to
why defendant was armed” and “contained no references, express
or implied, to defendant’s own silence”].) Becker was therefore
not deficient in failing to object to the prosecutor’s comments.
(People v. O’Malley, supra, 62 Cal.4th at p. 1010, fn. 12; People v.
Castaneda, supra, 51 Cal. at pp. 1333-1334.)
c. The prosecutor did not denigrate defense counsel or
engage in improper vouching
Veliz also argues the prosecutor committed misconduct by
disparaging defense counsel while impermissibly vouching for
his own personal view of the evidence. Veliz identifies three
instances in the prosecutor’s rebuttal argument that he claims
constituted improper denigration and vouching.
First, the prosecutor stated in his rebuttal: “And so I think
it’s just not using your common sense when the defense says it’s
reasonable doubt to say that Walter Lopez and Christian Lopez
heard three shots, but there were only two shots fired, and that’s
reasonable doubt. I think that it becomes disingenuous when the
argument is made, from a commonsense standpoint. It becomes
even more disingenuous, borderline offensive, when he says that
Christopher Luna couldn’t even see out of his window. That it
was blocked -- the window was blocked. And you look at the
53
photographs, it’s inconclusive. I looked at the photographs. It’s
inconclusive, I think, whether or not they’re blocked or not.”
Later in his rebuttal, the prosecutor told the jury: “So
you’re going to have to believe that all of these people, that have
identified Mr. Luis Veliz, are either mistaken or they are lying.
And a conspiracy issue, I think, is laughable. I don’t see why
anybody would have -- any of these people, who, for the most
part, seem to be good individuals, would have any type of animus
towards Luis Veliz to have a conspiracy to get him. So I think
the defense argument has to be that they are mistaken. And if
the defense is they’re mistaken because they thought three shots
[were fired] and there were actually two, or they thought he got
into a car, but he actually ran away—if those are the types of
inconsistencies that you were willing to disregard the other
testimony, I just don’t think it makes sense.”
Near the conclusion of his rebuttal, the prosecutor argued:
“Luis Veliz went into the backyard to assassinate one specific
individual, Daniel Monge. And if you’re asking for an
explanation, I think it’s relatively simple. Daniel Monge had
fallen out of favor with the gang. And who better to kill Daniel
Monge than the guy whose girlfriend Daniel Monge had talked
trash about.”
“‘A prosecutor commits misconduct if he or she attacks
the integrity of defense counsel, or casts aspersions on defense
counsel.’ [Citations.] ‘In evaluating a claim of such misconduct,
we determine whether the prosecutor’s comments were a fair
response to defense counsel’s remarks’ [citation], and whether
there is a reasonable likelihood the jury construed the remarks in
an objectionable fashion.” (People v. Edwards (2013) 57 Cal.4th
658, 738.) “Improper vouching occurs when the prosecutor either
54
(1) suggests that evidence not available to the jury supports the
argument, or (2) invokes his or her personal prestige or depth of
experience, or the prestige or reputation of the office, in support
of the argument.” (People v. Anderson (2018) 5 Cal.5th 372, 415.)
However, “‘“[a] prosecutor is given wide latitude to vigorously
argue his or her case”’ [citation] and ‘“may make ‘assurances
regarding the apparent honesty or reliability of’ a witness ‘based
on the “facts of [the] record and the inferences reasonably drawn
therefrom.”’”’” (People v. Rodriguez (2020) 9 Cal.5th 474, 480.)
In this case, there was no misconduct. The prosecutor did
not cast aspersions on defense counsel or attack his personal
integrity. Rather, the prosecutor made the challenged remarks
in the context of rebutting a point that defense counsel had raised
during his closing argument. While some of the words used by
the prosecutor, such as “disingenuous,” “offensive,” and
“laughable,” were harsh and not appropriate language for a
closing argument, they did not rise to the level of misconduct.
Further, the prosecutor directed the statements solely at defense
counsel’s arguments and characterization of the evidence, and
not at him personally. On this record, there is no reasonable
likelihood the jury would have construed the comments in an
objectionable manner. (People v. Charles (2015) 61 Cal.4th 308,
328-329 [prosecutor’s statement that “‘I tip my hat to the job the
defense did in this case when they had no evidence that went
their way’” was not misconduct because it “‘was aimed solely at
the persuasive force of defense counsel’s closing argument, and
not at counsel personally’”]; People v. Cole (2004) 33 Cal.4th 1158,
1203 [no prosecutorial misconduct where “it is not reasonably
likely that the jury understood the prosecutor’s references to
defense counsel as ‘deceiv[ing],’ ‘unfair,’ ‘misleading,’ or ‘tricky’ to
55
be personal attacks on counsel’s integrity”].)
Veliz also has failed to show impermissible vouching. The
prosecutor’s comments about what the witnesses were able to
see and whether they had a motive to lie were based solely on
evidence contained in the record. The prosecutor did not express
any personal belief in the witnesses’ veracity, nor did he suggest
that there was evidence available to the government, but not
presented to the jury that supported the witnesses’ credibility.
The prosecutor also did not imply the jury should adopt his view
of the evidence based on his position, reputation, or experience.
(People v. Linton (2013) 56 Cal.4th 1146, 1207 [no improper
vouching occurred where “[t]he prosecutor was not suggesting
there was evidence the prosecutor knew outside of the record
or that the jury should personally trust him because of his
position”].) In sum, because the prosecutor did not commit
misconduct in making the challenged arguments, Becker’s failure
to object to those arguments was not ineffective assistance of
counsel. (See People v. O’Malley, supra, 62 Cal.4th at p. 1010,
fn. 12 [“[b]ecause we find either no misconduct, or, assuming
misconduct, no prejudice, counsel’s failure to object was not
ineffective assistance”]; People v. Castaneda, supra, 51 Cal.4th at
pp. 1333-1334 [where prosecutor’s statement did not constitute
misconduct, “defense counsel had no basis for objecting to the
statement, and was not deficient for declining to do so”].)
B. The Trial Court Did Not Err in Admitting Evidence of
Monge’s Refusal to Comply with a Gang Directive
Veliz asserts the trial court erred in admitting evidence of
Monge’s statement to Detective Sherman that a prison inmate
had directed him to sell drugs and he had refused. Veliz argues,
“[T]he prosecution introduced evidence that Monge declined to
56
sell drugs for the Drifters and the shooting was in retaliation for
his refusal.” Veliz specifically argues that the “inmate’s
statement constituted testimonial hearsay” in violation of the
Evidence Code and the Sixth Amendment right of confrontation.
1. Relevant Background
During Monge’s testimony, the prosecutor asked Monge
whether he had received a call from a gang member in prison
requesting that he “do something.” Monge denied receiving such
a call, stating: “No, I didn’t.” Although he remembered the
hospital interview with Detective Sherman was recorded, Monge
could not recall the details of the interview. After refreshing
Monge’s recollection with the transcript of the interview, Monge
testified that he was telling the detective during the interview
“what she wanted. Basically she was answering her own
questions. I was just agreeing with her.” The prosecutor asked
Monge again whether he received a phone call from “somebody
upstate.”9 Monge responded, “[He] didn’t talk to [anybody]
upstate and that he did not “associate with none of the homies, so
why would [he] want to talk to somebody upstate?” The
prosecutor asked Monge what he had told Detective Sherman
“about the phone call.” Defense counsel objected on hearsay
grounds.
In a sidebar conference, the prosecutor explained that
Monge had told the detective that a prison inmate had called him
and instructed him to sell drugs for the gang. Defense counsel
argued the inmate’s statement was being offered for the truth of
the matter stated to establish motive for the shooting, and not to
show Monge’s state of mind. Defense counsel noted that Monge’s
9 According to Monge, “upstate” meant “prison.”
57
state of mind was not relevant to any issue in dispute. Defense
counsel also argued that admission of the statement presented a
“Crawford problem” because he could not examine the inmate.
The prosecutor asserted the inmate’s statement was not “even
hearsay” because it was “a request or demand.” The prosecutor
argued that “a request or command . . . is not hearsay, it’s not a
statement offered to prove the truth of the matter asserted.”
The trial court ruled that the evidence was admissible,
stating in relevant part: “You can certainly cross-examine the
witness [Monge] who says it was given. He might say I made all
this up to get the detective to leave. No one called me, there’s no
reason to discipline me, and I was under no fear. I didn’t believe
anyone wanted me to sell. . . . It gives [Monge] a state of mind
that would explain his conduct and circumstantially provide a
motive to whoever in the gang wanted him to do this, to act on it,
which I imagine some gang expert . . . would say is a basis for
discipline, including the most severe discipline. So the objection
will be overruled.”
When Monge’s testimony resumed, Monge stated he did not
remember “ever talking” to anyone in prison. He admitted,
however, that he told Detective Sherman that a prison inmate
had asked him “to sell something,” which for a Drifters gang
member meant “to sell narcotics.” When asked what he said in
response to the request, Monge testified he had said “yeah.”
Monge then admitted he told the detective that he “actually said
no to the request.” Monge testified that what he told the
detective was “false” because he did not “remember ever talking
to [anyone] upstate.”
58
Immediately after this testimony, the trial court instructed
the jury: “So ladies and gentlemen, sometimes evidence is
admitted for a limited purpose. Often this happens when the
right of the defendant to confront some speaker is not present.
So if we had the person that placed the call, who could be asked
did you say that, what did you mean, et cetera, then that could be
used in one way. The purpose for this testimony is not to prove
that a person wanted any particular thing, but it does prove that
this witness may have thought something based on what he
heard. That’s if you believe he actually heard it. If you accept
the different version that that never occurred and he said it for a
different reason, that’s up to you. But we call that the effect on
the listener. So the effect on the listener is the purpose it’s being
used, not to prove what the speaker intended.”
2. Standard of Review and Applicable Law
A trial court is vested with broad discretion in ruling on the
admissibility of evidence. (People v. Fayed (2020) 9 Cal.5th 147,
189.) “‘We review a trial court’s decision to admit or exclude
evidence “for abuse of discretion, and [the ruling] will not be
disturbed unless there is a showing that the trial court acted
in an arbitrary, capricious, or absurd manner resulting in a
miscarriage of justice.”’” (People v. Young (2019) 7 Cal.5th 905,
931; see People v. Clark (2016) 63 Cal.4th 522, 590 [“[t]he
standard of review for the court’s [evidentiary] ruling, along with
its determination of issues concerning the hearsay rule, is abuse
of discretion”]; People v. Jones (2013) 57 Cal.4th 899, 956 [“a trial
court’s decision to admit or exclude a hearsay statement . . . will
not be disturbed on appeal absent a showing of abuse of
discretion”].) “If a judgment rests on admissible evidence it will
not be reversed because the trial court admitted that evidence
59
upon a different theory, a mistaken theory, or one not raised
below.” (People v. Brown (2004) 33 Cal.4th 892, 901.)
Hearsay is “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.” (Evid. Code,
§ 1200, subd. (a).) Unless subject to an exception, hearsay
evidence is inadmissible. (Id., subd. (b).) However, “an out-of-
court statement is hearsay only when it is ‘offered to prove the
truth of the matter stated.’ [Citation.] Because a request, by
itself, does not assert the truth of any fact, it cannot be offered to
prove the truth of the matter stated.” (People v. Jurado (2006) 38
Cal.4th 72, 117; see People v. Mayfield (1997) 14 Cal.4th 668, 741,
disapproved on another ground in People v. Scott (2015) 61
Cal.4th 363, 390, fn. 2 [“pleas for help, were not hearsay because
they were not admitted for the truth of the matter stated”];
People v. Garcia (2008) 168 Cal.App.4th 261, 289 [“requests and
words of direction generally do not constitute hearsay.”]; People v.
Reyes (1976) 62 Cal.App.3d 53, 67 [“[a] declarant’s words of
direction or authorization do not constitute hearsay since they
are not offered to prove the truth of any matter asserted by such
words”].)
Further, a witness’s prior statement that is inconsistent
with his or her testimony is admissible so long as the witness is
given the opportunity to explain or deny the statement. (Evid.
Code, §§ 770, 1235; People v. Coffman (2004) 34 Cal.4th 1, 78.) A
prior inconsistent statement is admissible not only to impeach a
witness’s credibility, but also as an exception to the hearsay rule
to prove the truth of the matter asserted therein. (People v.
Fierro (1991) 1 Cal.4th 173, 221.) In People v. Zapien (1993) 4
Cal.4th 929, the California Supreme Court explained: “The
60
reason the prior inconsistent statement of a witness may be
received is that the declarant is present in court and subject to
cross-examination. ‘The witness who has told one story aforetime
and another today has opened the gates to all the vistas of truth
which the common law practice of cross-examination and re-
examination was invented to explore. The reasons for the change
of face, whether forgetfulness, carelessness, pity, terror, or greed,
may be explored by the two questioners in the presence of the
trier of fact, under oath, casting light on which is the true story
and which the false. It is hard to escape the view that evidence of
a prior inconsistent statement, when declarant is on the stand to
explain it if he can, has in high degree the safeguards of
examined testimony.” (Id. at p. 952.)
A defendant’s Sixth Amendment right to confront and
cross-examine a witness is not violated when the witness who
made the prior inconsistent statement is available for cross-
examination. (Crawford, supra, 541 U.S. at pp. 59-60, fn. 9;
People v. Friend (2009) 47 Cal.4th 1, 42, fn. 24; Fierro, supra, 1
Cal.4th at p. 222.) In Crawford, supra, 541 U.S. 36, the United
States Supreme Court held: “when the declarant appears for
cross-examination at trial, the Confrontation Clause places
no constraints at all on the use of his prior testimonial
statements. . . . The Clause does not bar admission of a statement
so long as the declarant is present at trial to defend or explain it.”
(Id. at p. 59, fn. 9.)
3. The Trial Court Did Not Err
At trial, Monge testified that he did not refuse his gang’s
request to sell narcotics. However, in his hospital interview with
Detective Sherman, Monge admitted receiving the request “to sell
something.” The admissibility of Monge’s testimony therefore
61
involved two levels; between Monge and the prisoner during the
telephone call, and Monge’s later statements to Detective
Sherman in the interview. (See generally Evid. Code, § 1201.)
As to the first level, the inmate’s request did not constitute
hearsay because the request did not assert any fact. The
inmate’s request was offered to prove that the words were said,
not that the words were true. Thus, the inmate’s request “was
not hearsay but ‘simply verbal conduct’ consisting of a proposal to
perform an act, and therefore was ‘neither inherently true nor
false.’” (People v. Cowan (2010) 50 Cal.4th 401, 472; accord,
People v. Clark, supra, 63 Cal.4th at p. 592 [“We have often
characterized commands not as hearsay but rather as ‘simply
verbal conduct consisting of a directive that was neither
inherently true nor false.’”]; People v. Curl (2009) 46 Cal.4th 339,
361, 362 [instruction to “‘get rid’” of a pair of boots “was not
hearsay but simply verbal conduct consisting of a directive that
was neither inherently true nor false”].)
Likewise, Monge’s response to the inmate’s request was
not hearsay because it did not involve an assertion of a fact. It
was offered to prove that the words were said, regardless of
whether they were true. The prosecutor did not offer Monge’s
testimony to prove that Monge did not sell drugs. Rather, if
believed, as Monge recounted to the detective, the exchange
between the inmate and Monge showed the gang’s belief that
Monge had refused its request to sell narcotics. The gang’s belief
was relevant to show why Veliz, a Drifters gang member, had a
motive for shooting Monge, a fellow member of that gang. (See
People v. Riccardi (2012) 54 Cal.4th 758, 815 [“[a]lthough motive
is normally not an element of any crime that the prosecutor must
prove, ‘evidence of motive makes the crime understandable and
62
renders the inferences regarding defendant’s intent more
reasonable’”], overruled on another ground in People v. Rangel
(2016) 62 Cal.4th 1192, 1215.)
As to the second level, by testifying what he had told
Detective Sherman in the hospital interview was “false” and
denying that there was a gang request to “do something,” Monge
directly contradicted his prior statement about the exchange with
the inmate. Monge’s earlier statement to Detective Sherman was
therefore admissible as a prior inconsistent statement under
Evidence Code section 1235. In accordance with Evidence Code
section 770, Monge had “an opportunity to explain or to deny the
statement” while testifying. (See People v. Alexander (2010) 49
Cal.4th 846, 908 [“[t]hat the requirements of Evidence Code
section 770 were met here is undisputed, given that [the witness]
was asked directly about the contents of her September
statements to [the police detective] during her testimony”]; People
v. Zapien, supra, 4 Cal.4th at p. 955 [when a declarant admitted
the prior inconsistent statement, “the defendant's ability to
attack the prior statement may be enhanced, because the witness
‘should be more than willing to give the usual suggested
explanations for the inaccuracy of his prior statement, such as
faulty perception or undue haste in recounting the event”].)10
10 Monge’s testimony was not admissible under Evidence
Code section 1250, which authorizes the admission of out-of-court
statements to prove the declarant’s then-existing state of mind if
the declarant’s state of mind “is itself an issue in the action,” or if
the evidence “is offered to prove or explain acts or conduct of the
declarant.” (Evid. Code, § 1250, subds. (a)(1), (2).) Because
Monge’s state of mind was not relevant to any disputed issue at
trial, the state-of-mind exception did not apply. (See People v.
63
Monge’s testimony did not violate Veliz’s Sixth Amendment
right of confrontation. As the Supreme Court in Crawford
explained, the Confrontation Clause addresses the specific
concern of “[a]n accuser who makes a formal statement to
government officers” because the accuser “bears testimony in a
sense that a person who makes a casual remark to an
acquaintance does not.” (Crawford, supra, 541 U.S. at p. 51;
accord, People v. Brooks (2017) 3 Cal.5th 1, 39.) As to Monge’s
exchange with a fellow gang member, the Confrontation Clause
was not implicated because there was no hearsay and it was not
testimonial. (People v. McKinnon (2011) 52 Cal.4th 610, 656, fn.
28 [“[g]iven our conclusion that the gang testimony . . . was
properly admitted for a nonhearsay purpose, defendant’s claim
that his constitutional right to confrontation also fails”]; People v.
Cage (2007) 40 Cal.4th 965, 975, fn. 6 [“Crawford made clear that
there are no confrontation clause restrictions on the introduction
of out-of-court statements for nonhearsay purposes”]; People v.
Sanchez, supra, 63 Cal.4th at p. 687 [“the term ‘testimonial’
‘applies at a minimum to prior testimony at a preliminary
hearing, before a grand jury, or at a former trial; and to police
interrogations. These are the modern practices with closest
kinship to the abuses at which the Confrontation Clause was
directed’”].) Regarding Monge’s interview with Detective
Sherman, because Veliz had the opportunity to confront and
cross-examine Monge, the trial court’s admission of the
statements did not violate Veliz’s rights. (Crawford, at p. 59, fn.
9 [“when the declarant appears for cross-examination at trial, the
Flores, supra, 9 Cal.5th at p. 410; People v. Jablonski (2006) 37
Cal.4th 774, 819.)
64
Confrontation Clause places no constraints at all on the use of his
prior testimonial statements”]; People v. Sanchez, at pp. 679-680
[““‘The main and essential purpose of confrontation is to secure
for the proponent the opportunity of cross-examination.’”
[Citation.] ‘Cross-examination is the principal means by which
the believability of a witness and the truth of his [or her]
testimony are tested”].)
C. Substantial Evidence Supported Veliz’s Convictions
Veliz challenges the sufficiency of the evidence supporting
his convictions for attempted murder, assault with a firearm, and
possession of a firearm by a felon. Veliz contends substantial
evidence does not support the finding that he was the shooter.
1. Standard of Review
“‘“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 determine “whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” [Citation.] In so doing,
a reviewing court “presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.”’” (People v. Beck and Cruz (2019) 8 Cal.5th 548, 626.)
“[O]ur task is not to resolve credibility issues or evidentiary
conflicts, nor is it to inquire whether the evidence might ‘“‘be
reasonably reconciled with the defendant’s innocence.’”’
65
[Citations.] The relevant inquiry is whether, in light of all the
evidence, a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt.” (People v. Gomez
(2018) 6 Cal.5th 243, 278.)
2. Substantial Evidence Supported the Finding That
Veliz Was the Shooter
In this case, substantial evidence supported a finding that
Veliz was the person who committed the shooting. At trial, four
different witnesses—Martinez, Luna, Christian, and Walter—
identified Veliz as one of the two men who arrived at
the barbeque with Rojas. Martinez, Luna, and Walter were all
familiar with Veliz prior to the shooting and recalled Veliz had
long hair that he typically wore in a ponytail. The witnesses
testified that Veliz had a ponytail that day. Two of the witnesses
– Christian and Walter – saw the actual shooting, and identified
Veliz as the person who walked up behind Monge, pointed a gun
directly to the back of his head, and fired at least two shots.
Luna identified Veliz as the person who walked away from the
residence immediately after the shots were fired. A few minutes
after the shooting, Begazo, the school district employee with no
connection to Veliz or any of the other witnesses, saw a man with
a ponytail run by and discard a gun under a wooden fence. The
police recovered a .22-caliber revolver with two spent cartridges
from that location. From this evidence, the jury reasonably could
have concluded that Veliz was the man with the ponytail who
arrived at the barbeque with Rojas, committed the shooting of
Monge and Christian, and then fled from the scene and disposed
of the gun under the wooden fence.
66
The jury also heard evidence that both Veliz and Monge
were members of the Drifters gang. Prior to the shooting, Monge
had refused a directive from a prison inmate to sell drugs for the
gang. Officer Molina, the prosecution’s gang expert, explained
that gangs discipline their members for disobeying the rules of
the gang, and that such discipline can include shootings. Monge
confirmed he often did not follow the leaders of his gang because
he did not believe they should have authority over him. Monge
further confirmed he did not get along with Rojas, who also was
part of the Drifters. From this evidence, the jury reasonably
could have concluded that Veliz had a motive to commit the
shooting to discipline Monge for the benefit of the gang and/or to
seek revenge against Monge for disrespecting Rojas.
Veliz argues the evidence was insufficient to support his
convictions because there was no physical evidence linking him
to the beer bottles found at the residence or to the gun found
under the fence. However, the absence of forensic evidence, such
as Veliz’s fingerprints and DNA from the crime scene, does not
negate the sufficiency of the evidence that he committed the
shooting. (People v. Lewis (2009) 46 Cal.4th 1255, 1293 [“the
absence of forensic evidence such as defendant’s fingerprints in
the victim’s apartment . . . does not negate the sufficiency of
the evidence to prove that defendant raped and murdered [the
victim]”].) Moreover, the prosecution’s forensic experts explained
that certain types of surfaces, such firearm grips and bottles with
condensation, were not conducive to retaining prints or DNA.
In challenging the sufficiency of the evidence, Veliz further
argues the eyewitness identifications of him were inconsistent
and unreliable. Veliz points to certain discrepancies in the
witnesses’ accounts of the shooter’s dress and appearance and
67
where the shooter went immediately after the incident. Veliz
also asserts the identifications were the result of the suggestive
procedure introduced by Martinez when she showed the
witnesses Veliz’s Facebook photo. It is well-established, however,
that “[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.] Unless it describes
facts or events that are physically impossible or inherently
improbable, the testimony of a single witness is sufficient to
support a conviction.” (People v. Elliott (2012) 53 Cal.4th 535,
585; accord, People v. Gomez, supra, 6 Cal.5th at p. 280 [“‘“doubts
about the credibility of the in-court witness should be left for the
jury’s resolution”’”]; People v. Reed (2018) 4 Cal.5th 989, 1006
[“sufficiency argument based on the identification procedures
attacks the credibility of [the witness’s] testimony, which we do
not question when considering sufficiency of the evidence so long
as the witness’s testimony is not inherently improbable”].)
Here, the witnesses’ identifications of Veliz as the shooter
were neither physically impossible nor inherently improbable.
The jury heard the evidence casting doubt on the credibility of
those identifications, and the defense argued those issues at
length at trial. Defense counsel cross-examined the witnesses
about their recollection of events surrounding the shooting, the
discrepancies in the recollections, and suggestiveness in the
identification procedure. “The final determination as to the
weight of the evidence [was] for the jury to make.” (People v.
Brown (2014) 59 Cal.4th 86, 106.) Because the jury reasonably
could have concluded from the totality of the evidence presented
68
that Veliz was the shooter, substantial evidence supported
his convictions.
D. Substantial Evidence Supported the Gang Enhancement
Findings
Veliz argues that substantial evidence did not support the
gang enhancement findings. He specifically contends the
prosecution failed to establish the “pattern of criminal gang
activity” element of the enhancement because one of the
predicate offenses–the robbery committed by Pereira–was based
on Officer Molina’s hearsay testimony in violation of Sanchez.
Veliz also claims the prosecution failed to prove the “ongoing
organization” element because the evidence did not establish
that Veliz and Pereira belonged to the same subset of the
Drifters, as required under Prunty. These arguments are
unavailing.
As discussed, Officer Molina’s testimony that he relied on
the court docket, police reports, and conversations with other
officers in forming his opinion that Pereira’s offense was gang-
related did not convey any case-specific hearsay in violation of
Sanchez. Further, Officer Molina’s opinion that Pereira
committed the predicate offense for the benefit of the gang was
not necessary to prove a “pattern of criminal gang activity” under
section 186.22. There is no requirement in the statute that the
predicate offenses be gang-related. (People v. Gardeley (1996) 14
Cal.4th 605, 621 [“[n]othing in [section 186.22’s] statutory
language suggests an intent by the Legislature to require the
‘two or more’ predicate offenses to have been committed ‘for the
benefit of, at the direction of, or in association with’ the gang”],
overruled on another ground by Sanchez, supra, 63 Cal.4th at
p. 686, fn. 13; People v. Thompkins (2020) 50 Cal.App.5th 365,
69
413, fn. 24 [“[i]t is unnecessary that the predicate offenses have
been committed for the benefit of the gang”].) Here, the
prosecution presented evidence that two or more members of the
Drifters gang each committed an enumerated offense on a
separate occasion within the statutory period. (§ 186.22, subd.
(e).) This was sufficient to satisfy the “pattern of criminal gang
activity” element of the gang enhancements.
Contrary to Veliz’s contention, the prosecution also was not
required to prove Veliz and Pereira belonged to the same subset
of the gang. As discussed, the prosecution presented sufficient
evidence to establish an associational or organizational
connection between the small cliques that comprised the Drifters
gang, as required under Prunty, supra, 62 Cal.4th 59. From such
evidence, the jury reasonably could infer that Veliz and the gang
members who committed the predicate offenses were part of a
single criminal street gang, and that Veliz committed the charged
offenses for the benefit of that gang. Substantial evidence
therefore supported the jury’s true findings on the gang
enhancements.
E. The Trial Court Did Not Err in Instructing the Jury on
the Gang Enhancements
Veliz contends the trial court erred in instructing the jury
on the gang enhancements because it failed to sua sponte define
the organizational nexus requirement set forth in Prunty, supra,
62 Cal.4th 59. Veliz argues: “[T]he prosecution cannot show that
[Veliz] intended to benefit one gang while relying upon the
predicate offenses of another gang to satisfy the statutory
requirements.” This claim lacks merit.
70
1. Relevant Law
A criminal defendant has a right to accurate instructions
on the elements of a charged crime or allegation. (People v. Mil
(2012) 53 Cal.4th 400, 409.) “As a general rule, in the absence
of a request for amplification, the language of a statute defining
a crime . . . usually is an appropriate basis for an instruction. If
a statutory word or phrase is commonly understood and is not
used in a technical sense, the court need not give any sua sponte
instruction as to its meaning. If, however, a word or phrase is
used in a technical sense differing from its commonly understood
meaning, clarifying instructions are appropriate and should be
given on the court’s own motion.” (People v. Rodriguez (2002) 28
Cal.4th 543, 546-547; accord, People v. Krebs (2019) 8 Cal.5th
265, 331 [“‘[w]hen a word or phrase “‘is commonly understood by
those familiar with the English language and is not used in a
technical sense peculiar to the law, the court is not required to
give an instruction as to its meaning in the absence of a
request’”’”].) We review de novo whether an instruction
accurately states the law. (People v. Mitchell (2019) 7 Cal.5th
561, 579; People v. Posey (2004) 32 Cal.4th 193, 218.)
2. The Trial Court Properly Instructed the Jury on the
Elements of the Gang Enhancements
The trial court instructed the jury on the elements of the
gang enhancements with CALCRIM No. 1401, which stated, in
relevant part: “If you find the defendant guilty of the crimes
charged in Counts one[,] two or three, 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
71
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: [¶] 1. That has a
common name or common identifying sign or symbol; [¶] 2. That
has, as one or more of its primary activities, the commission of
robbery, assault with a deadly weapon or possession of a firearm
by a person prohibited, attempted murder, unlawful taking of a
vehicle in violation of Vehicle Code section 10851; [¶] AND
[¶] 3. Whose members, whether acting alone or together, engage
in or have engaged in a pattern of criminal gang activity.” Veliz
did not object CALCRIM No. 1401, or request any clarifying
language.
Veliz asserts the trial court had a sua sponte duty to
further define the term “criminal street gang.” He argues the
court should have instructed the jury that, to prove the existence
of a criminal street gang, the People had to establish that the
organization, association, or group that Veliz sought to benefit
was the same one that engaged in the primary activities and
pattern of criminal gang activity. However, the trial court’s
instruction on the definition of “criminal street gang” tracked
the language of section 186.22, subdivision (f). In Prunty, the
Supreme Court construed the phrase “organization, association,
or group . . ., whether formal or informal,” as used in that
subdivision, as “contemplat[ing] some kind of relationship, or
degree of ‘togetherness,’ uniting those individuals.” (Prunty,
72
supra, 62 Cal.4th at p. 72.) The Prunty court did not ascribe a
technical meaning to the statutory language, but rather relied
on the common understanding of those terms as reflected in
dictionary definitions. (Id. at pp. 72-73.) The court also rejected
the argument that it was adding “‘an element to the statute that
the Legislature did not put there,’” and made clear it was merely
interpreting the words of section 186.22, subdivision (f). (Prunty,
at p. 76, fn. 4.) Accordingly, as reflected Prunty, the phrase
“ongoing organization, association, or group . . . , whether formal
or informal” does not have a technical meaning different from
its commonly understood meaning. Because the trial court
properly instructed the jury on the elements of the gang
enhancements, Veliz’s instructional error claim fails.
F. Remand Is Warranted To Permit the Trial Court To
Consider Whether To Exercise Its Sentencing Discretion
At Veliz’s November 2017 sentencing hearing, the trial
court imposed a prison term of life with a minimum parole
eligibility of 15 years on the count for attempted willful,
deliberate, and premeditated murder, doubled to a minimum
parole eligibility of 30 years based on the prior felony strike
(§ 1170.12), plus 25 years to life based on the firearm
enhancement (§ 12022.53, subd. (d)). Veliz contends, and the
People concede, that remand is warranted to permit the trial
court to exercise its discretion to strike or dismiss the firearm
enhancement imposed on the attempted murder count. We
agree.
73
Before January 1, 2018, the sentencing court was not
permitted to strike or dismiss a mandatory firearm enhancement
imposed under sections 12022.53 or 12022.5. (See §§ 12022.53,
former subd. (h), 12022.5, former subd. (c).) Effective January 1,
2018, the Legislature amended both sections to permit the
superior court in its discretion to strike or dismiss a firearm
enhancement in furtherance of justice. (See Sen. Bill No. 620
(2017-2018 Reg. Sess.) Stats. 2017, ch. 682; see also People v.
Billingsley (2018) 22 Cal.App.5th 1076, 1080.) Because Veliz’s
judgment of conviction is not yet final, the amendment to section
12022.53 applies retroactively to his sentence. (People v. Zamora
(2019) 35 Cal.App.5th 200, 207-208; People v. Johnson (2019) 32
Cal.App.5th 26, 68; People v. Woods (2018) 19 Cal.App.5th 1080,
1091.)
We therefore remand to allow the trial court to consider
whether to exercise its discretion to strike or dismiss the firearm
enhancement pursuant to section 12022.53, subdivision (h).
G. Cumulative Error
Veliz argues the cumulative effect of the claimed errors
deprived him of due process of law and a fair trial. “Cumulative
error is present when the combined effect of the trial court’s
errors is prejudicial or harmful to the defendant. [Citations.]
Although a defendant is entitled to a fair trial, he or she is not
entitled to ‘a perfect one.’” (People v. Capers (2019) 7 Cal.5th 989,
1017.)
Because we have rejected all of Veliz’s claims of error, there
is nothing to cumulate. Veliz received a fair trial and has failed
to show any error requiring reversal of his convictions.
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DISPOSITION
Veliz’s convictions are affirmed. The matter is remanded to
the trial court to exercise its discretion whether to strike or
dismiss the firearm enhancement pursuant to section 12022.53,
subdivision (h).
DILLON, J.*
We concur:
PERLUSS, P. J.
FEUER, J.
*
Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
75