1 Filed 5/29/13 P. v. Rice CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. JOSEPH RAY RICE, Defendant and Appellant. E055973 (Super.Ct.No. FVI1002670)
OPINION

APPEAL from the Superior Court of Sa n Bernardino County. John M. Tomberlin, Judge. Affirmed in part; reve rsed in part with directions. Patricia M. Ihara, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.2 A jury found defendant and appellant, Joseph Ray Rice (def endant), guilty as charged of first degree murder (Pen. Code § 187, subd. (a); count 1), 1 possession of a firearm by a felon (§ 12021, su bd. (a)(1); count 2), and st reet terrorism (§ 186.22, subd. (a); count 3). The jury also found true the gang (§ 186.22, subd. (b)(1)) and firearm use (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d)) enha ncements alleged in connection with the murder charge alle ged in count 1, and the gang enhancement alleged in connection with the felon in possession of a fire arm charge alleged in count 2. Defendant admitted the allegations that he had previous ly been convicted of a serious or violent felony within the meaning of the three strikes law (§ 667, subds. (b)-(i)), (2)), and a serious felony (§ 667, subd. (a)(1)), and that he had served a prior prison term (§ 667.5, subd. (b)). The trial court sent enced defendant to serve a dete rminate term of 15 years to life in state prison, followed by an i ndeterminate term of 75 years to life. 2

1 All further statutory references are to the Penal Code unless indicated otherwise.

2 Defendant contends the abstract of judgment and clerk’s minute order incorrectly describe his sentence as being a te rm of 90 years to life. Although we do not share defendant’s characteriza tion of the error, we will not address the issue because our resolution of this appeal will require the tria l court to prepare an amended abstract of judgment in this case.3 Defendant raises three claims of error in this appeal. First, he contends the evidence is insufficient to support the street terrorism ch arge and the gang enhancements because the prosecutor failed to present evidence to prove an element of both the crime and the enhancement, namely the gang’s prim ary criminal activities. Second, defendant contends he was denied the effective assistan ce of counsel at trial. Finally, defendant contends, and the Attorney General concedes , that the trial court improperly imposed sentence enhancements under sections 667 and 667.5 for the same offense. We agree with defendant’s first claim of e rror and, therefore, will reverse his street terrorism conviction as alleged in count 3, an d will strike the gang enhancements alleged in connection with counts 1 an d 2. We further conclude that the Attorney General has appropriately conceded the tr ial court incorrectly stayed the one-year prior prison term enhancement; it should have stricken that enhancement. FACTS The facts are undisputed. Around midnigh t on November 19, 2010, defendant was outside in the patio area of a nightclub in Victorville. A security camera videotape showed defendant looking in the direction of Delvon Williams. After about five minutes, defendant looked as if he wa s angry. He walked over to Williams, extended his hand up to Williams’s head, and fired a single shot. Williams fell backward. Security videotape showed that defendant immediately left the nightclub. Williams died as a result of the gunshot.4 By the time he was arrested in March 20 11, in Lynwood California, defendant had altered his appearance by shaving his head. In the nightclub videotape, defendant had long hair, pulled into a pony tail. When interviewed in connection with his arrest, defendant acknowledged he ha d been an East Side Inland Empire (I.E.) Gangster Crip since he was 13 years old. Defendant also said he did not know Williams but that his friend and Williams had gotten into an argum ent during which Williams said he was a “Piru” or “Blood,” and he would handle hi s business. Defendant thought to himself, “fuck that,” after which he walked over and shot Williams in the head. DISCUSSION 1. SUFFICIENCY OF THE EVIDENCE Defendant contends, as pr eviously noted, that the evidence was insufficient to prove that the East Side I.E. Gangster Crips is a criminal street gang. A criminal street gang is defined in secti on 186.22, subdivision (f), as “any ongoing organization, association, or group of three or more person s, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (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.” Defendant contends that the pros ecutor failed to present eviden ce to prove that one of the primary activities of the East Side I.E. Gangst er Crips is the commission of one or more of the enumerated crimes. We agree.5 A. Standard of Review “In addressing a challenge to the su fficiency of the ev idence supporting a conviction, the reviewing court must exam ine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence— evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant gu ilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment th e existence of every fact the trier could reasonably deduce from the evidence. [Citations .] The same standard applies when the conviction rests primarily on circumst antial evidence. [Citation.]” ( People v. Kraft (2000) 23 Cal.4th 978, 1053.) B. Analysis “The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. (See Webs ter’s Internat. Dict. ( 2d ed. 1942) p. 1963 [defining ‘primary’].) Th at definition would necessar ily exclude the occasional commission of those crimes by the group’s members.” ( People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) “Sufficient proof of th e gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also suffi cient might be expert testimony, as occurred in [ People v. ] Gardeley [(1997)] 14 Cal.4th 60 5. There, a police gang expert testified that the gang of which defe ndant Gardeley had for nine years been a member was primarily engaged in the sale of narcotic s and witness intimidation, both statutorily6 enumerated felonies. (See § 186.22, subd . (e)(4) & (8).) The gang expert based his opinion on conversations he had with Gardel ey and fellow gang members, and on ‘his personal investigations of hundreds of crim es committed by gang members,’ together with information from colleagues in hi s own police department and other law enforcement agencies . [Citation.]” ( Id . at p. 324.) In this case, the evidence the prosecutor presented to prove the elements of the section 186.22, subdivision (a), street terro rism substantive crime, and the sentence enhancements under subdivisio n (b)(1) of that section cons ists of the testimony of San Bernardino City Police Officer Nick Oldend orf, a gang expert. Am ong other things, the prosecutor asked Officer Oldendorf whether th e East Side I.E. Gangster Crips have a primary purpose, and the officer responded, “A gang is defined as three or more people with a common sign or symbol that collectivel y or individually engage in a pattern of criminal activity under Penal Code Section 186.22. Under 186.22 there are certain crimes that are listed. Am ong those are aggravated assaults, robberies, shootings, narcotics trade, grand theft auto, numerous vi olent crimes that we have to prove are a pattern of a certain gang’s criminal activity. [¶] Some of the more recent arrests have been for cocaine for sales, Penal Code Sec tion 11351.5; PCP for sales. I believe it’s Penal Code Section 11351; the shooting at occupied dwellings, Penal Code Section 246.3; possession of weapons [ sic ] by convicted felons, Penal Code Section 12021(a); PC 187, murder. Some of those have been th e most recent activity that members of East Side I.E. have been located, prosecuted, arrested and convicted of.”7 In addition to testifying that defendan t was a member of the East Side I.E. Gangster Crips, and that defendant had previ ously been convicted of attempted robbery, Officer Oldendorf also testified that Th eophilius Cobbs and Ma tthew Manning were members of the East Side I.E. Gangster Crips, and both had been involved in shooting at an inhabited dwelling. In June 2009, Mann ing was convicted of that crime, and Cobbs was convicted of being a felon in possession of a firearm. Officer Oldendorf also identified Bryson Herbey as a member of the East Side I.E. Gangster Crips, who had been convicted in June 2006 of possessing cocaine base for sa le in violation of section 11351.5. In addition, Officer Oldendorf iden tified Daveon Keel as a member of the East Side I.E. Gangster Crips, who had been convicted of murder in July 2005. The testimony quoted abov e shows, although the prosecutor asked the right question, i.e., what is the primary purpose of the East Side I.E. Gangster Crips, Officer Oldendorf did not answer that question. In stead, he purported to recite the statutory definition of a criminal street gang, but his definition was incomplete because it left out the primary activities element. Officer Olde ndorf’s recitation of “some of the more recent arrests” of the East Side I.E. Gangste r Crips did not include any details about the crimes, such as when, where, and by whom the crime was co mmitted, or any explanation about how he acquired his information. As a result, that testimony lacked an adequate foundation. “‘The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. [Citations.]’ [Citation.]” ( In re Alexander L. (2007)8 149 Cal.App.4th 605, 612.) More importantly, by saying that “[s]ome of those” crimes were the most recent activity of the East Side I.E. Gangster Crips, Officer Oldendorf left the jury to specu late about which crimes the gang’s members had actually committed. In order to prove the primary activity element, it is not enough to show that members of a purported criminal street gang commit various crimes. The primary activities element requires proof that memb ers have consistently and repeatedly committed one or more of the stat utorily enumerated crimes so that the jury then is able to draw the logical inference that commission of that crime, or those crimes, is the primary or chief occupation, or activity, of the group. Officer Oldendorf’s only other testimony, although sufficient to prove the required pattern of gang activity, 3 does not establish the primary activity element. That testimony shows that between 2005 and 2009, East Si de I.E. Gangster Crip members committed various crimes. That testimony does not show that gang members have consistently and repeatedly engaged in the partic ular criminal activity listed in the statute. Even if we consider the charges pending against defendant in this case, the evid ence shows that once in 2009 and again in 2010 members of the East Side I.E. Gangster Crips committed the crime of being a felon in possession of a fi rearm, and once in 2005 and again in 2010 members committed the crime of murder. That evidence is insuffi cient to show the

3 Section 186.22, subdivision (j), states, “A pattern of gang activity may be shown by the commission of one or more of the offens es enumerated in paragraphs (26) to (30), inclusive, of subdivision (e), and the commi ssion of one or more of the offenses enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e). A pattern of gang activity cannot be established solely by proof of commission of offenses enumerated in paragraphs (26) to (30), inclusive, of subdivision (e), alone.”9 requisite consistent and repe ated commission of a crime or crimes listed in section 186.22, subdivision (e), and th erefore does not establish the primary activities of the criminal street gang element in section 186.22, subdivision (f). Apart from the testimony previously recite d, Officer Oldendorf testified in the context of describing the territory of the Ea st Side I.E. Gangster Crips, that “[d]owntown [San Bernardino] was a hotbed for East Side I.E. The downtown drug trade and drug market was a lucrative business, so a lot of them would cong regate downtown to the local motels, and they have been arrested downtown in that area.” The Attorney General contends the quoted testimony is sufficient to support the inference that East Side I.E. Gangster Crips repeatedly and continuously engaged in the crime of selling narcotics. We do not share that view. The noted testimony that members congre gated downtown because the drug trade was lucrative arguably supports a reasonable in ference that members of the East Side I.E. Gangster Crips have engaged in the sale of narcotics. However, that testimony does not include any details and, therefore, does no t establish the frequenc y with which members engaged in that criminal activity . The additional fact that me mbers have been arrested in the area of downtown does not ai d the analysis because that fa ct not only fails to establish the frequency of such arrests, but also does not specify the crimes for which members were arrested. In other word s, this testimony does not suppo rt a reasonable inference that the East Side I.E. Gangster Crips repeatedly and consistently enga ged in the sale of controlled substances, a crime listed in secti on 186.22, subdivision (e )(4), such that the10 jury, in turn, could infer that the commission of that crime is one of the primary activities of that group. In summary, we conclude the evidence is insufficient to show that one of the primary activities of the East Side I.E. Gangst er Crips is the commission of one of the statutorily enumerated crimes. That conclu sion, in turn, requires us to conclude the prosecutor failed to prove that the East Side I.E. Gangster Crips is a criminal street gang within the meaning of section 186.22, subdi vision (f). Because the prosecutor failed to prove that the East Side I.E. Gangster Crips is a criminal street gang, we will reverse defendant’s conviction on count 3, the charge that defendant engaged in street terrorism in violation of section 186.22, subdivision (a). We will also st rike the jury’s true findings on the so-called gang enhancements under sec tion 186.22, subdivision (b)(1), alleged in connection with count 1 and count 2. 2. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM Defendant contends he was denied the e ffective assistance of counsel at trial because his attorney (1) failed to object un der Evidence Code section 352 that the probative value of defendant’s prior robbery conviction in estab lishing the pattern of criminal gang activity, was outwe ighed by its potential for undue prejudice; (2) failed to object to various documents, in cluding probation reports, introd uced into evid ence as part of the evidence offered to prove defendant , Cobbs, Manning, Herbey, and Keel had committed crimes while members of the East Side I.E. Gangster Crips; (3) failed to assert11 a hearsay objection to the gang expert test imony of Officer Oldendorf; and (4) failed to request a limiting instruction on the gang evidence. A. Standard of Review In order to establish a claim of ineffec tive assistance of counsel, defendant must “demonstrate (1) counsel’s perfo rmance was deficient in that it fell below an objective standard of reasonableness under preva iling professional norms, and (2) counsel’s deficient representation prejudiced the defend ant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant woul d have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one th at is enough to undermine confidence in the outcome. [Citations.]” ( People v . Dennis (1998) 17 Cal.4th 4 68, 540-541, citing, among other cases, Strickland v . Washington (1984) 466 U.S. 668.) B. Analysis Defendant’s ineffective assistance of co unsel claims all relate to the street terrorism charge and gang enhancements. Be cause we are reversing that conviction and those true findings, his claims arguably are i rrelevant. However, defendant contends that his attorney’s purported oversights were prejudicial because the jury could have considered the evidence, all of which suggested defendant wa s a person of bad character, in finding the murder was premeditate d and deliberate. We disagree. We will not address the performance component of defendant’s ineffective assistance of counsel claim—although “a mere failure to object to evidence or argument seldom establishes coun sel’s incompetence” ( People v. Ghent (1987) 43 Cal.3d 739, 772)—because it is easier to dispose of de fendant’s claim on the ground of lack of12 sufficient prejudice. (See Strickland v. Washington , supra , 466 U.S. at p. 697 [“If it is easier to dispose of an ineffe ctiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, th at course should be followed”].) Defendant concedes, as he must, that ther e was no issue in this case regarding the identity of the person who shot and killed Williams. As defe ndant puts it, “this was not a ‘who-done-it’ [ sic ].” He contends the issue before the jury concerned whether the murder was committed for the benefit of a criminal street gang, and whether it was premeditated. The first issu e is irrelevant for reasons previously discussed. But defendant has not demonstrated anything mo re than speculation regarding the second issue. Defendant contends the ev idence of premeditation and deliberation was weak. We do not share that view. As the trial court in structed the jury in this case, deliberation requires proof defendant “carefu lly weighed the considerations for and against his choice and, knowing the conseque nces, decided to kill. The defendant acted with premeditation if he decided to kill before completing the act that caused death. [¶ ] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without ca reful consideration is not deliberate and premeditated. On the other hand, a cold, calcu lated decision to kill can be reached quickly. The test is the extent of reflection, not the length of time.”13 In this case, the security videotape and defendant’s statement to the police demonstrate that defendant considered whet her to shoot Williams before he actually walked over and pulled the trigger. More pa rticularly, the evidence of premeditation and deliberation consists of defe ndant’s statement that after Williams and defendant’s friend got into an argument, defendant thought “fuck that” to himself, and th en walked over and shot Williams in the head. Defe ndant does not cite this evidence, least of all discuss its significance. Instead, he specula tes that the jury based its finding that defendant acted with premeditation and deliberation on th e purportedly inadmissible evidence of defendant’s bad character. Defendant simp ly has not demonstrated the prejudice requirement of his ineffective assistance of coun sel claim. In short, we conclude it is not reasonably probable, assuming the challenged evidence was inadmissibl e and, therefore, not introduced at trial, that the jury would have reached a result more favorable to defendant on the murder charge. DISPOSITION The judgment is modified as follows: Defendant’s conviction on count 3, the cr ime of street terrorism in violation of section 186.22, subdivision (a), is reversed with directions to dismiss that charge based on insufficiency of the evidence. The sentence enhancements imposed unde r section 186.22, subdivision (b)(1), on the first degree murder convic tion in count 1 and the conviction for being a felon in possession of a firearm in count 2 are stricken.14 The one-year prior prison term enhan cement imposed under section 667.5, subdivision (b), is stricken. Except as modified, th e judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment that accurately reflects defendant’s sentence as mo dified and forward a copy of that amended abstract to the appropri ate agencies and entities.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J. We concur:

RAMIREZ P. J.

CODRINGTON J.