Filed 1/24/14 P. v. McClelland CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE ,
Plaintiff and Responde n t,

v.

ANDRE MCCL ELLAND ,
Defendant and Appella n t. B 2 4 2634
(Los Angeles County Super. Ct. No. BA377622 )

APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert J. Schuit and Drew E. Edwards
, Judge s

. Affirm ed

. Elizabeth Gar finkle
, under appoi ntment by the Court of Appeal
, for Defendant and Appellant.
Kamala D. Harris , Attorney General, Dane R. Gillette , Chief Assistant Attorney General, La nce E. Winters
, Assistant Attorney General
, Steven D.
Matthews and David E. Madeo , Dep uty Attorneys General, for Plaintiff and Respondent

.

________________________________2 INTRODUCTION
A ndre McClelland appeals from his conviction, following a jury trial, of
second d egree robbery. He contends (1) there was insufficient evidence to suppor t the gang enhancement, (2) the trial court erred in allowin g a gang expert to give opinions unsupported by evidence presented at trial , and (3) he received ineffective
assistance of counsel . Finding no error, we affirm

. PROCEDURAL HISTORY On July 5, 201 1, a jury found appellant guilty of second degree robbery (Pen. Code, § 211). 1 It also found true the allegation that a principal in the offense was armed with a firearm (§ 12022, subd. (a)(1)), and that the crime was
committed for the benefit of a crimin al street gang with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22,
subd. (b)(1)). In a bifurcated proceeding, the trial judge found true the allegation that appellant had suffered a prior conviction with in the meaning of sections 667, subdivision (a)(1), 667.5, subdivision (b), and the “ Three Strikes ” l aw (§§ 667, subds. (b)

- (i), 1170.12, subds. (a)

- (d)). After trial counsel was discharged and a public defender appointed, new
counsel filed a motion for a new trial on the grounds of ineffective assistance of prior counsel. The trial court denied the motion. The court then sentenced appellant to a total of 2 1 years in prison, consisting of the midterm of three years for the robbery conviction, doubled to six years as a second strike, plus 10 years
consecutive for the gang enhancement and five years for the section 667, subdivision (a)(1) enhancement. Appellant timely appealed.

1 All further st atutory citations are to the Penal Code, unless otherwise stated.3 FACTUAL BACKGROUND
O n October 27 , 2010, at around 2:00 p.m., Kristopher Sal lico was robbed at his drycleaning business by two men. He identified the robbers as appellant and codefendant LeAndre Hebrard, whom he knew as “4

- Leaf ” and “Touche,” respectively. 2 The men were friends of Sallico’s son, and h e had spoken with the m “nume rous” times, mainly to advise them to become productive citizens. When appellant and Hebrard enter ed his drycleaning business , Sallico approached them. Appellant said to Sallico, “Pops, give me the money.” Sallico replied , “Are you joking?” Hebrard , wh o was standing about three feet behind appellant
, lifted his shirt and showed Sallico the handle of a handgun. Sallico became frightened and walked to the cash register. He took out the money and gave it to appellant

. Appellant and Hebrard walked out, g ot into a car , and drove away. After the men left, Sallico tried to contact his son but could not reach him. About an hour later, he called the police. When the police arrived, Sallico told an
officer that he had been robbed by two Black men who were R olling 40 ’ s gang members. He identified the first man as “4

- Leaf ” and the second man as
“Touche .” Later that day, Sallico positively identified appellant and Hebrard as the robbers in a six

- pack photographic lineup. He also identified appellan t and
Hebr ard as the robbers at the preliminary hearing and at trial

. At trial, Sallico testified he believed that appellant and Hebrard were affiliated with a gang . The area surrounding his store was a gang area, and gang
members had repeated ly “tagg[ed]” his door and walls. Sallico testified that two months after the robbery, he sold the business and moved out of Los Angeles

2 The jury also convicted Hebrard of second degree robbery. This court previously affirmed that conviction. ( People v. Hebrard (April 24, 2013, B239269) [nonpub. opn.].)4

because he “wanted to get [his] family and [his] son away from this environment.”
He also testified his son was a friend of the robbers
, he was “unhappy with my son being affiliated with gangs,” and he wanted to get his son away from “the gang and the lifestyle.”
L os A ngeles P olice D epartment Officer Guillermo Espinoza testified as the

prose cution’s gang expert. Officer Espinoza had w orked in the gang enforcement unit for approximately four and a half years. His duties were to “monitor” and “suppress” “the criminal activities of the Rolling 40’s Crips criminal gang.” As part of his work, he ha d daily contact with members of the gang. Officer Espinoza
also ha d investigated gang

- related crimes, including incidents where Rolling 40’s gang members we re suspects and victims. Officer Espinoza testified that the R olling 40’s Neighborhood Crips i s a criminal street gang with about 850 memb ers. Gang members have particular symbols, clothing, and tattoos they use to identify themselves. The primary activities of the gang include murder, shootings, robberies, assault, and drug sales. According to Officer Espinoza, g ang members need to put i n “work”

-- committing crimes for the gang

-- to “keep their name or status elevated.” Officer Espin oza stated that Sallico’s business wa s in Rolling 40’s territory, and Sallico was the
father of a Roll ing 40’s gang member. From previous contacts with ap pellant, Officer Espinoza knew him as a self

- admitted Rolling 40’s gang member who had

gang tattoos and was known by his gang moniker “4

- Leaf.” Similarly, Officer Espinoza knew Hebrard as an a ctive Rolling 40’s gang member. Officer Espinoza
stated that h e knew “ [ Hebrard ] was living in his mother’s house which is outside of [ the Rolling 40’s] gang territory and actually in

. . . rival gang territory.” He explained that “because [ Hebrard] has family members that are part of that rival gang, they allow him to stay there without any repercussion. ”5

Given a hypothetical fact pattern based on the facts of this case, Officer Espinoza opined that the robbery was committed for the benefit of a criminal street gang, the Rolling 40 ’ s. He explained that gang member s commit robbe ries to generate income and to instill fear in the community. The fear deters victims from reporting the crimes to the police. It also helps the gang recruit new members.
On cross

- examination, appellant ’s counsel elicited testimony from O fficer Espinoza that it was “unusual” for a member of a gang to go out and rob the business of the father of a fellow gang member. Officer Espinoza stated that his last contact with Hebrard was about a year to 18 months ago. He also was aware that Hebrar d had testified as a prosecution witness against another Rolling 40’s gang member in a murder case in 2009, which is not acceptable within gang
culture. On redirect examination, over defense objections, Officer Espinoza testified that g ang members looked down on members who attempt to leave the gang.
These members could be disciplined
, beaten up, or killed. When a gang member leaves the gang, his family also may be targeted. Officer Espinoz a also testified that discouraging people from joining a gang i s seen as “disrespecting” the gang. The prosecutor then asked the officer: “Have any of the questions and answers that people have given today, did they change your opinion about whether the hypothetical of two active members of the Rolling 40’s going in to a dry cleaner
located in

. . . Rolling 40’s territory , committing a robbery with a gun, has it changed your opinion whether that was done with the specific intent to promote gang membership or to benefit the criminal street gang known as the Rolling
40’ s?” Officer Espinoza answered, “No, it has not.” Officer Espinoza reiterated
that “my opinion is that they have committed this robbery for the benefit of their gang.”6

Appellant did not testify. Britney Jones, who had been dating appellant at the time of the robbery , testified that she and a ppellant were together the afternoon
of the ro b ber y. Later that night, th ey went to a movie together in Culver City. According to Jones, t hey were never apart for more than 15 minutes
, and were

n ever in the area ne ar the victim’s store

. DISCUSSION Appellant contends (1) there was insufficient evidence to support the gang enhancement allegation, (2) the trial court abused its discretion in permitting the prosecution’s gang expert to opine on hypotheticals not supp orted by the evidence
, and (3) he received constitutionally ineffective assistance of counsel when his trial counsel failed to seek an admonishment or move for a mistrial after counsel’s evidentiary objection had been sustained

. A. Sufficiency of the E v idence Appellant contends the evidence was insufficient to establish that appellant committed the robbery to benefit or in association with the Rolling 40’s gang, or with the specific intent to assist gang members. “ In determining whether the
evidence is sufficient to support a conviction or an enhancement, ‘ the relevant question is 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

c rime beyond a rea sonable doubt.’ [Citations.] Under this standard, ‘an appellate

court in a criminal case

. . . does not ask itself whether it believes that the evidence at the trial established g uilt beyond a reasonable doubt.’ [Citation.] Rather, the reviewing court ‘ must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence

-- that is, evidence which is reasonable, credible, and of solid value

-- such that a reasonable
trier of fact could find the defendant gui lty beyond a reasonable doubt.’ [Citation.]7

This standard applies to a claim of insufficiency of the evidence to support a gang enhancement. [Citation.]” ( People v. Vy (2004) 122 Cal.App.4th 1 209, 1224,
italics omitted .) Expert testi mony may be used to prove t he elements of a gang enhancement allegation

. (See, e.g., People v. Williams (2009) 170 Cal.App.4th 587, 621; People v. Martinez (2008) 158 Cal.App.4th 1324, 1332

- 1333.) Here, the jury found true the allegation that appellant c ommitted the robbery for the benefit of a criminal street gang with in the meaning of section 186.22, subdivision (b)(1)(C)

. “ The section 186.22(b)(1) enhancement requires the jury to find that the crime was committed for the benefit of a criminal street g ang and with the specific intent to promote the criminal street gang. ” ( People v. Ramon (2009) 175 Cal.App.4th 843, 849.) We conclude that substantial evidence supports the jury’s findings that the crime was committed for the benefit of the Rolling 40’s gang, and that appellant had the specific intent to promote the gang when he robbed Sallico. The crime was committed by acknowledged Rolling 40’s gang members in territory claimed by the gang. The crime victim told the police he had been robbed by Rollin g 40’s gang members. Officer Espinoza opined that the robbery increased the community’s fear of the Rolling 40’s gang, and that the gang would benefit from community members’ fear and reluctance to report crimes committed by gang members. As our Supreme Court has observed, “[e] xpert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct
was ‘ committed for the benefit of

. . . a[] criminal street gang’ within the meaning of section 186.22(b)(1). ” ( People v. Albillar (2010) 51 Cal.4th 47, 63; accord People v. Gardeley (1996) 14 Cal.4th 605, 619 [from expert testimony that assault

was “‘ classic ’” gang activity that frightened residents and secured gang’s drug

dealing stronghold in the area, jury could reasonably conclude charged offense was8

committed for benefit of gang and with specific intent of promoting its criminal
activities under § 186.22, subd. (b)(1)] ; People v. Vazquez (2009) 178 Cal.App.4th 347, 351, 354 [ reasonable jury could infer from expert testimony that violent
crimes increase d respect for gang and intimidate d neighborhood residents
, and from other evidence in record that murder was committed with specific intent to promote gang’s criminal activities ]; People v. Ferraez (2003) 112 Cal.App.4th 925, 930

- 931 [

jury could reasonably infer crime was gang

- related from expert testimony coupled with other evidence].) Appellant contends that Officer Espinoza ’s opinion that the crime was gang

related was not based upon a proposed hypothetical closely matching the evidence presented in the case. According to appellant, the hypothetical presented to Officer Espinoza failed to include the fact s that the robbery was committed against the
f amily business o f a gang member, and that Hebrard was a “snitch” at the time of
the crime

. Appellant’s argument fails. These facts were elicited during cross

examination, but on re

- direct examination Officer Espinoza reaffirmed his opinion that the crime was gang

- relate d. In short, there was sufficient evidence to support the gang enhancement.
B. Gang E

xpert T estimony Appellant next contends the trial court abused its discretion in allowing Officer Espinoza to opine on hypotheticals or about facts not supported by
evide nce presented at trial. We disagree. In rendering his or her opinions, a gang expert may rely upon personal
conversations with gang mem bers, personal investigation of crimes committed by

gang me mbers, and information obtained from the expert’s own colle agues and
other law enforcement agencies

. ( People v. Gardeley , supra, 14 Cal.4th at p. 620; People v. Hill (2011) 191 Cal.App.4th 1104, 1124

- 1125 [same]; People v. Duran9

(2002) 97 Cal.App.4th 1448, 1463

- 1464 [same] .) Here, it is undisputed that based

upo n his work experience and his personal contacts with the defendants, Officer Espinoza wa s qualified to testify about the Rolling 40’s gang and its gang
members. Appellant first contends that no evidence supported Officer Espinoza’s opinion that Hebrard was an active gang member at the time the robbery was committed. (See People v. Valdez (1997) 58 Cal.App.4th 49 4, 506 [defendant’ s membership in a gang is a pro per subject of expert testimony]. ) Officer Espinoza’s testimony was supported by his personal contacts with Hebra r d, the last of which
occurred within months of the crime. 3 In addition, there was undisputed evidence that Hebrard was armed with a handgun and in the company of an active Rolling 40’s gang member in the gang’s territory. A reasonable jury could infer from this evidence that Hebrard was an active gang memb er. As for the fact that Hebrard had moved away and was living in a rival gang’s territory, the jury was presented with a reasonable explanation

-- Hebrard was living with his mother , and he had no
fear about repercussions because he h a d fam ily members in that rival gang. As for the fact that Hebrard had testified against a Rolling 40’s gang member, no evidence was presented that Hebrard was known as a “snitch.” Rather, the fact
tha t Hebrard was present with a Rolling 40’s gang member in the gang’s territory suggested he was not a known snitch, or that he had been forgiven by the gang. In short, there was no abuse of discretion in allowing Officer Espinoza to opine that
Hebrard was an active Rolling 40’s gang member.

3 Officer Espino za stated that his last contact with Hebrard

-- before Hebrard moved away from Rolling 40’s gang territory

-- was approximately a year to 18 months prior to trial. Trial started in late June 2011, and the crime occurred in late October 2010. Thus, the of ficer’s last contact with Hebrard occurred as late as June 2010, just four months before the robbery.10

Appellant next contends that Officer Espinoza’s testimony that the Rolling 40’s gang would benefit when gang members ’ crimes went unreported was speculative , as no evidence other than Officer Espinoza’s statements was presented that crime victims do not report gang crimes

. Officer Espinoza’s statements, however, were based upon his years of working in the gang enforcement unit, monitoring and investigating the Rolling 40’s gang and its members. Moreover,
the officer’ s testimony that a criminal street gang would benefit when victims of the gang’s crimes were too intimidated to report them i s r easonable, logical, and
self

- evident

. Appellant also challenges Officer Espinoza’s testimony about how the crime
benefitted th e gang, arguing that no evidence was presented that robbing a gang member’s family business was done to benefit the gang. We disagree. Sallico had testified that he wanted his son to leave the gang, and had encouraged appellant to become a productive cit izen. After the robbery, h e sold his business and moved his family out of Los Angeles to get away from the gang. Officer Espinoza testified that encouraging people to leave a gang would be seen as “disrespecting” the gang. Th us, th e evidence tended to s how that the robbery was intended to intimidate Sallico and to discourage him from advising gang members to leave the

gang. Appellant further contends that the trial court improperly allowed Officer Espinoza to testify on redirect examination about the p ossible repercussions that a member attempting to leave a gang could suffer, as there was no evidence that anyone was attempting to leave the Rolling 40’s gang . That testimony, however, was relevant to explain or rebut adverse testimony and inferences dev eloped during

cross

- examination. (See People v. Cleveland (2004) 32 Cal.4th 704, 746 [r edirect examination’s “ ‘ principal purposes are to explain or rebut adverse testimony or11

inferences developed on cross

- examination

. . . .’”].) On cross

- examination,
He brard’s attorney had elicited testimony suggesting that as Hebrard was no longer living in the Rolling 40’s gang’s territory at the time of the crime, he was no longer
an active member of the gang . Evidence tending to show the disincentives for leaving a gang was relevant to rebut this inference. In short, the trial court did not abuse its discretion in allowing the gang expert’s testimony on redirect
examination. Finally, appellant contends that on redirect examination, Officer Espinoza’s opinion that “they have committed this robbery for the benefit of their gang” was
about the defendants

-- as opposed to hypothetical gang member s . We disagree with this interpretation of the officer’s testimony. In context, the officer was referring to the hypothetic al Rolling 40’s gang members

. C. Ineffective A ssistance of C ounsel During redirect examination, the prosecuto r asked Sallico why he decided to call the police. Sallico responded: “Because I thought

-- I felt as if 4

- Leaf and Touche, I felt like I co unseled them and talked to them a lot of times. Touche one time with a job that he had, a job offer, and I sat him down in the back and said, ‘ Touche, man, you should take the job. It’s a good job. It will change your life. You’re gonna start feeling s o much better about yourself. ’ He didn’t take the job. And 4

- Leaf, when he first got out of jail

-- ” Appellant’s counsel immediately objected to the testimony as irrelevant and
inadmissible under Evidence Code section 352 . The trial court sustained the objection , but did not explicitly order Sallico’s testimony stricken . Appellant now
contends that Sallico’s “jail” comment was prejudicial per se. In addition, he12

contends his trial counsel rendered ineffective assistance by fai ling to seek an
admo nishm ent or move for a mistrial. W e disagree. “A witness’s volunteered statement can, under some circumstances, provide the basis for a finding of incurable prejudice. ” ( People v. Ledesma (2006)
39 Cal.4th 641, 683.) However, even knowledge that a defendant previously has been convicted and is being retried is not necessarily incurably prejudicial . ( Ibid .) Rather, “[w] hether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion ” in determining whe ther a new trial is required. ( People v. Haskett (1982) 30 Cal.3d 841, 854 .) People v. Bolden (2002) 29 Cal.4th 515 is instructive. There, the prosecutor asked a police officer about the defendant’s address. The officer

a nswered: “‘ It was at the Department of Correctio ns parole office located at

-- ,’” before he was interrupted by the prosecutor. ( Id . at p. 554.) The trial court did not specifically order the testimony stricken. Later that day, the defendant moved for a mistrial, which was denied. In affirming the denial, the Supreme Court held that

“ [ t ] he incident was not significant in the context of the entire guilt trial, and the
trial court did not abuse its discretion i n ruling that defendant’ s chances of receiving a fair trial had not been irreparably damaged. ” ( Id . at p. 555.) Likewise, here, the singular mention that appellant had gotten out of jail without further
details was not significant in the context of the trial, which revolved around the
identification by Sallico. Moreover, any error was harmless. (See People v.
Garcia (1984) 160 Cal.App.3d 82, 93, fn. 12 [“[I] n cases where jurors are improperly exposed to certain factual matters, the error is usually tested under the
standard set out in People v. Wat son (1956) 46 Cal.2d 818, 836 .”].) Sallico positively and consistently identified appellant , whom he knew, as one of the
robbers. Under these circumstances, it is not reasonably probable that appellant13

would have obtained a more favorable result had the incidental remark not been
made. (Cf. People v. Harris (1994) 22 Cal.App. 4th 1575, 15 80

- 1582 [in light of overwhelming evidence of guilt, no reversible error where witness mentioned appellant’s parole status]. ) In order to prevail on a claim of ineffec tive assistance of counsel, appellant must show (1) that his trial counsel’s representation fell below an objective standard for reasonableness under prevailing professional norms ; and (2) that the re was a reasonable probability that but for counsel’s unpr ofessional errors, the result would have been more favorable to the defendant. ( Strickland v. Washington (1984) 466 U.S. 668, 687

- 6 88; People v. Gray (200 5) 37 Cal.4th 168, 206

- 207; People v. Kelly (1992) 1 Cal.4th 495, 519

- 520.) “ In demonstrating prejud ice, however, the petitioner must establ ish that as a result of counsel’ s failures the trial was unreliable or fundamentally unfair. ” ( In re Visc i o t ti (1996) 14 C al.4th 325, 352.) Here, appellant has shown no prejudice resulting from his counsel’s failur e to seek an admonishment or to move for a mistrial

. T he court instructed the jury at
the conclusion of the trial that, “ [d]uring the trial, the attorneys may have objected to questions or moved to strike answers given by the witnesses. I ruled on the
ob jections according to the law. If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did. If I order [ ed ] testimony stricken from the
record
, you must disregard it and must not consider that testimony for any purpose.” (See CALCRIM No. 222.) Despite the court’s failure to strike the brief reference, it is fair to assume that the jury understood from the court’s sustaining
defense counsel’s o bjection that the testimony was not properly before it. ( People v. Sanchez (2001) 26 Cal.4th 834, 852 [jury is presumed to follow court’ s i nstructions] .) More important , for the reasons discussed above, the singular14

mention that appellant had been in jai l was not significant in the context of the trial, and did not render the trial unreliable or fundamentally unfair. I n light of the strong eyewitness testimony by Sallico , appellant cannot show that he would have
attained a more favorable result absent co unsel’s alleged error . ( People v. Cunningham (2001) 25 Cal.4th 926, 1003

. )
DISPOSITION The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.