Filed 4/26/16 P. v. Diaz CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. JOSE ROMERO DIAZ,

Defenda nt and Appellant. H040282 (Santa Clara County Super. Ct. No. C1224743)

Defendant Jose Romero Diaz appeals a judgment entered following a jury trial during which he was convicted of attempted murder (Pen. Code §§ 664, subd. (a), 187). 1 On appeal, defendant asserts that the trial court erred in instructing the jury with CALCRIM No. 252, and allowing the testimony of a gang expert. In addition, defendant argues that he was denied effective assistance of counsel, and that the prosecutor

c ommitted misconduct during his trial.

S TATEMENT O F T HE F ACTS A ND C ASE About 8:30 p.m. on December 29, 2010, Kyle Ortiz was walking in the area of Mclaughlin Avenue and Fair Avenue, in San Jose. Ortiz was with his girlfriend, Maria Valtierra, and a friend named Yessenia Muñoz, as well a s a young girl named Brianna.

1 All further statutory references are to the Penal Code.2

Ortiz testified that he had “hung around” with Norteño gang members in the past, and knew that the part of town he was walking i n was claimed by the Sureños. As the group walked along Mclaugh lin Avenue, a car drove up very quickly and someone in the car yelled o ut “ Sur Trece ” several times. Two or three people got out of the car, while a fourt h person remained in the car. Muñoz testified that one of the men “asked Kyle what we were doing wal king down the s treet and why we were there.” One of the men who got out of the car took out a knife and stabbed Ortiz twice in th e neck and
twice on his side. The stabber ran back to the car, shouting “It’s m y hood. Stay out. Sur
Trece.” The stabber and the other men got back in the car and drove away. Ortiz told police that the stabber was wearing a black beanie and was pulled down low, with his eyebrows s till visible. Ortiz identified defendant as the stabber in court at trial, and at the preliminar y hearing. On the night of the attack, police showed Muñoz a six

- pac k photo array, and she said that the photo of defendant “looked familiar.” On January 11, 2011, police showed
Muñoz a second six

- pack array with different suspects depicted in the phot ographs; defendant was the only suspect that was repeated in the second array. Muñoz again picked defendant’s picture, saying that it “kinda look[s] like him. . . He’s the guy that stabbed my friend.

. . His eyebrows, his mus tache, his facial structure. ” When police arrived at the scene, they found a red LG Metro PCS cell phone in the gutter along the curb in the area of the attack. Ortiz said that he saw defendant drop the phone du ring the attack. Muñoz said that she saw a phone drop a s the men got out of
the car. She said the person who atta cked Ortiz dropped the phone. Valtierra said that she did not actually see the stabber drop the phone, but that he was the only person in that
area where the phone was on the ground. The police searched the phone, and inside they found photos of defendant, along
with videos of defendant with a woman and children

.3

Officer Ken Tran questioned defendant on Jan uary 5, 2011. Defendant said that
he had lost his cel l phone two or three days before

. He denied hav ing been in the area where the stabbing happened. During the interview, defendant told Officer Tran “ [ i ] f you
want me to take the c harge, I’ll take the charge.”
De tective Kenneth Rak questioned defendant on February 15, 2012 Defendant
said that he did not know why his phone was found in the area of the stabbi ng , and that
he had not been there before . He did not know how he had lost the phone. Defendant
admitted that he “claimed” Sureño.
Defendant was arreste d in February of 2012, and was carry ing a cell phone and a
knife at the time. Some of pho tos on the cell phone that defendant was carrying when he was arrested were the same as the photos from the Red LG phone that was found at the
scene of the stabbi ng. The photos found in the phone included o ne picture of a gang hand sign signifying an “E,” referring to the East Side of San Jose.
Defendant had previously admitted belonging to Varrio Tami Lee, a Sur eño subset
based in San Jose. He has a “1” and a “3” tattooed on his arms in reference to the number “13,” s ignifying Sureño affiliation. Detective Rak testified that the Sureños are a criminal street gang with the primary activities of homicide, assault with a deadly weapon, drive

- by sho otings, and felony
vandalism. He des cribed the foll owing predicate offenses: (1) a n incident that occurred on in September 2009 d uring which defendant and other Sureños committed battery for the benefit of a criminal street gang; (2) an incident that occurred in July 2009 during
which Vario Tami Lee Sureños com mitted assault with force likely to cause great bodily injury and assault with a deadly weapon; and (3) an incident that occurred in May 2010 during which Sureño s committed assault with a deadly weapon and felony vandalism.4

Detective Rak testified that h e believed that the crime committed in this case would benefit the Sureños by helping to control the territory and would intimidate other
rival gangs. On May 7, 2013, defendant was charged by information with one count of attempted murder (§§ 187, 664 , s ubd. (a) ), with the additional allegations that the crime was committed for the benefit of a criminal street gang (§ 186. 22, subd. (b)(1)(C)) and
that defendant personally inflicted great bodily injury on a person other than an accomplice in the commission of the offense (§§ 12207, subd. (a) & 1203, subd. (e)(3)). Defendant was convicted after jury trial of all charges, and the jury found that
enhancements to be true. The court sentenced defendant to 20 years in prison , and defendant filed this appeal.
D ISCUSSION Defendant argues that the trial court erred by instructing the jury with CALCRIM No. 252 and allowing the gang expert to testify based on hearsay evidence. In addition,
defendant asserts that he was denied effective assistance of counsel becaus e his attorney did not object to identification procedures that were unduly suggestive. Finally, defendant argues that the prosecu tor committed misconduct in closing argument.
CALCRIM No. 252 Defendant asserts that the trial court erred in instructing t he jury with CALCRIM No. 252, because the instruction as given did not specify the intent required for a finding of guilt on the attempted murder charge. Specifically, defendant argues that the instruction permitted the jury to convict defendant based on a finding that he had “wrongful intent” rather than an intent to kill. Defendant’s counsel did not object to the in struction as given , nor did he ask that
the instruction be modified or clarified. Defendant argues that no objection was required
below bec ause his “substantial rights” were affected. Specifically, defendant argues the5

error in instructing the jury with CALCRIM No. 252 violated his due process rights under the Fourteenth Amendment and his right to a jury trial under the Sixth
Amendment. 2
“ ‘Generally, a party may not complain on appeal that an instruction correct in law and responsive to t he evidence was too general or incomplete unless the party has
reque sted appropriate clarifying or amplifying language.’ [Citation.]” ( People v. Hudson ( 2006) 38 Cal.4th 1002, 1011

- 1012.) However, we may “review any instruction g iven,
refused or modified, even though no objection was ma de thereto in the lower court, if the substantial rights of the defendant were affected thereby” (§ 1259 .) “ ‘Ascertain ing
whether claimed instructional error affected the substantial rights of the defendant

necessar ily requires an examination of the merits of the claim

— at least to the exte nt of ascertaining whether the asserted error would result in prejudice i f error it was.’ [Citation.]” ( People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) Our Supreme Court has explained: “ ‘[w ]hen we review challenges to a jury instruction as being incorrect or incomplete, we evaluate the instructions given as a whole
and not in iso lation. [Citation.]’ ” ( People v. Moore (2011) 51 Cal.4th 1104, 1140.)
Ge nerally, we ask whether there is any reasonable likelihood the ju ry was confused and misapplied the instructions. ( People v. Harrison (2005) 35 Cal.4th 208, 252 ( Harrison ) .)
“ ‘ “[M]isdirection of the jury, i ncluding incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error are
reviewed und er the harmless error standard articulated” in [ People v. ] Watson (1956) 46
Cal.2d 818 ( Watson )] .’ [Citations.] ‘[U]nder Watson , a defendant must show i t is reasonably probable a more fa vorable result would have been obtained absent the error.’ [Citation.] ” ( People v. Beltran (2013) 56 Cal.4th 935, 955.)

2 Defendant filed a supplemental opening brief adding the argument regarding the Sixth Amendment to his original arguments in his opening brief.6

Here , t he jury instruction o n the union of act and intent, CALCRIM No. 252, was given and stated the following : “ The crime and other allegations charged in Count One require proof of the union, or joint operation, of act and wrongful intent. [ ¶ ] The following allegation requires ge neral criminal intent: infliction of great bodily injury. For you to find the allegation true, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act; however, it is not required that he or she intend to break the law. The act required is explained in the inst ruction for that allegation. [ ¶ ] The following crime and allegation require a specific intent or mental state: attempted murder and the gang enhancement. For you to find a person guilty of this crime or to find the allegation true, that person must not only intentionally commit the prohibited act, but must do so with a specific intent. The act and the s pecific intent/ required [ sic ] are explained in the instructio n for that crime or allegation. ” The instruction on attempted murder, CALCRIM No. 600 stated that to find appellant guilty of attempted murder the jury must find that appellant took a direct but ineffective step towar d killing another person and “intended to kill [ the ] person.” In addition, the court instructed the jury with CALCRIM No. 200, telling the jurors to
consider the instructions as a whole. Initially, we note that CALCRIM No. 252 is a correct statement of the law ( People
v. Ibarra (2007) 156 Cal.Ap p .4th 1174, 1189

- 1190.) Moreover, when CALCRIM
No. 600 , which requires a finding of specific intent to kill, is read in conjunction with
CALC RIM No. 252, which requires a find ing of a union of act and “wrongful i ntent,” a reasonable juror would understand that the “wrongful intent” required is that specified for attempted murder; namely, the specific intent to kill.7

When considered as a whole, the instructions as given in this case were accurate
reflections of the law, and we find that there is not a reasonable likelihood that the jury was confused or misapplied the instructions. ( Harrison , supra , 35 Cal.4th at p. 252 ). Photo Identifications
Defendant asserts that his trial counsel was prejudicially ineffect ive in fa iling to move to suppress Yessenia Munoz’s identification testimony, which he argues was the result of her exposure to suggestive identification procedures. A defendant seeking reversal for ineffect ive assistance of counsel must prove both
defici ent performance and prejudice. ( People v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687 ( Strickland ).) The first element “requires showing that couns el made errors so serious that counsel was no t functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Ame ndment.” ( Strickland , supra , at p. 687 .) “Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” ( Ibid .) “The defen dant must
show that there is a reasonable probability that, but for counse l’s unprofessional errors,
the result of the proceeding would have been different.” ( Id . at p. 694.) A court deciding
an ineffective assistance claim does not need to address the elements in order, or even to
address both elements if the defendant makes an insufficient showing on one. ( Id . at
p. 697.) “If it is easier to dispose of an ineffectiv eness claim on th e ground of lack of
sufficient prejudice, . . . that course should be followed.” ( Ibid .) In order to establish that defendant’s trial counsel was deficient in failing to move to suppress the identification in this case, defendant must fi rst establish that the identification was improperly suggestive. An identification procedure is unfair if it “suggests in advance of identification by the witness the identity of the person suspected by the police.” ( People v. Slutts (1968) 259 Cal.App.2 d 886, 891 .) Admission of8

eyewitness identification evi dence may violate a defendant’s constitutional due process rights if the identification procedures were “unnecessarily suggestive and conducive to irreparable mistaken identification

. . . .” ( Stoval l v. Denno (1967) 388 U.S. 293, 302.) On the issue of the fairness of an identification, t he California Supreme Court
stated: “[T]o determine whether the admission of identification evidence violates a defendant's right to due process of law, we conside r (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the
identification itself was nevertheless reliable under the totality of the circumstances , taking into account such factors as the opportunity of th e witness to view the suspect at
the t ime of the offense, the witness’ s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated
at the time of the identification , and the lapse of time between the offense and the
identification .” ( People v. Cunningham (2001) 25 Cal.4th 926, 989 ( Cunningham ) , italics added.) 3 In determining whether an identification procedure is unduly suggestive, “[t]he question is whether anything ca used defendant to ‘stand out’ from the others in a way that would suggest the witness should select him [or her].” ( People v. Carpenter (1997) 15 Cal.4th 312, 367.) “The defendant bears the burden of demonstrating the existence of
an unreliable identific ation procedure.” ( Cunningham , supra, 25 Cal.4th at p. 989.) The question of whether an identification procedure is “unduly suggestive” for due process purposes is a mixed question of law and fact that we review de novo, or i ndependently of
the trial cou rt’ s ruling. ( People v. Kennedy (2005) 36 Cal.4th 595, 608

- 609.)
The identification at issue in thi s case was the result of Muñoz being presented
with two photo arrays. On December 29, 2010, the police showed Muñoz the first array

3 Defe ndant did not address the issue of whether identification procedures are unduly prejudicial under the totality of circumstances test in his opening brief. Defendant later raise this issue in a supplemental brief.9

of six photographs. M uñoz identified defendant and wrote: “The person in Number 2 looks familiar. He looks like the suspect who was wearing a beanie.” On January 11, 2011, the police showed Muñoz a second set of six photographs. In this array, the police replaced all of th e people represented in the first array with different suspects, except defendant, who was repeated in the second array. However, the photograph of defendant in the second array was different that the one presented to
Muñoz in the first array. In viewing the second array, Muñoz identified defendant in position number one by writing: “That kind of looks like him. He’s the guy that stabbed my friend.” During trial, the prosecutor asked Muñoz if she had identified defendant in the two photo arrays, and sh e said that she had. She also identified defendant in co urt as the person who stabbed Ortiz. Defendant argues that his trial counsel should have objected

to Muñoz ’s independent identification of him in court, because her testimony was tainted by suggesti ve identification procedures used by police prior to trial. Specifically, when the police presented Muñoz with the second array of photographs, the only suspect who appeared again was defendant; all other suspects had been replaced. As a result, Muñoz

sa w defendant two times , while she saw the other suspects only once.
Defendant relies on Foster v. California (1969) 394 U.S. 440, 442

- 443 ( Foster ) , for the proposition that changing every person in a lineup except for defendant so that
defendant was the only person in the second lineup who appeared in the first lineup violates due process. However, contrary to defendant’s argument, Foster does not provide support for his case , because there are very important factual distinctions

. Specifically, in Foste r , the two lineups were in person. ( Id . at p. 443.) I n the first lineup,
the defendant stood out from all of the other suspects because he was five to six inches taller than they, and he was wearing a leather jacket that was similar to what the witness
h ad seen the robber wear. ( Ibid .) Prior to the second lineup, the po lice allowed the10

witness to personally confront the defendant one

- on

- one. ( Ibid .) When the defendant was repeated in the second lineup, the witness was certain defendant was the person who
committed the robbery. ( Ibid .) The similarity between Foster and this case begins and ends with the repetition of defendant in the second lineup. Here, the police did not suggest that defendant was the stabber by presenting Muñoz with photographs of suspects who were significantly dissimilar to defendant in appearance , or allowing Muñoz to see defendant separate and apart from any other suspects. Foster does not support a finding that the identification procedures in this case we re improperly sugg estive.
De fendant cannot establish that his counsel was deficient for failing to object to
Muñoz ’s identification of defendant as the stabber, because defendant cannot establish
that the identification procedures used in this case were improperly suggesti ve under the totality of the circumstances

. The fact that defendant was the only suspect repeated in the second photo lineup does not itself demonstrate that the procedures were suggestive. Other than to assert that the repetition of defendant in the sec ond lineup was improper, defendant offers no other reason that the identification procedure in this case was suggestive. Gang Expert Testimony
Defendant asserts that he was denied his constitutional right to confrontation because the prosecution’s gang ex pert was allowed to testify to his opinion based on
hear s ay statements. Prior to trial, defense counsel brought an in limine motion arguing that allowing Detective Rak to rely on hearsay evidence in offering his expert opinion on gang
affiliation would v iolate defendant’s Sixth Amendment right to confrontation. In denying the motion, t he court stated: “[W]hile potentially testimonial, [the hearsay statements] are not being offered for the truth of the statement, but rather as a basis fo r the expert’s11

op inion only.” Defense counsel stated that it intended to raise an ongoing objection to the admission of the expert’s opinion that was based on hearsay as violating defendant’s Sixth and Fourteenth Amendment rights. At trial, Detective Rak was qualified as an expert in criminal street gangs based upon his assignment with the Gang Investigations Unit of the San Jose Polic e Department for over two years, his participation in form al and informal trainings and his review of e

mails and newsletters from the Ca lifornia Gang Investigators Association. Detective Rak stated that he had spoken to gang members and had participated in the registration of more than 100 gang members with the San Jose Police. Detective Rak described the
Sureño stre et gang as “one of th e top two criminal street gang s within Santa Clara County.”
Detective Rak testified that Sureños have comm on signs and symbols, they perpetrate “homicides, assault with deadly weapons, drive

- by shootings, felony vandalisms, [and] robberies”; and they eng age in a “pattern of criminal gang activity

. ” Detective Rak also testified to three predicate offenses committed by Sureños , including one committed by defendant. An expert may offer an opinion if the subject is sufficiently beyond common experience and the opinion would a ssist the trier of fact. (Evid. Code, § 801, subd. (a).) In general, the testimony of a gang expert meets this test. ( People v. Valdez (1997) 58
Cal .App.4th 494, 506.) Beyond the foregoing, expert opinion must be “[b ]ased on matter (including his special knowledge, skill, experience, trai ning, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates[.]” (Evid.Code, § 801, subd. (b).) Under the Evidence Code, an expert may rely on hearsay
such as conversations with gang members and information gained from law enforcement12

colleagues and agencies. (See People v. Gardeley ( 1996) 14 Cal.4th 605, 618

- 619 ( Gardeley ). Nevertheless, currently, the a bility of an expert to rely on hearsay without implicating the confron tation clause concerns is in a state of flux.
In Gardeley, s upra , 14 Cal.4th 605, the California Su preme Court explained that expert testimony may be “pr emised on material that is not admitted into evidence so long
as it is material of a type that is reasonably relied upon by experts in the par ticular field in
form ing their opinions” and “even matter that is ordina rily inadmissible can form the proper basis for an expert’s opinion tes timony”; and “because Evidence Code section 802 allows an expert witness t o ‘state on direct examination the reasons for his opinion a nd the matter . . . upon which it is based,’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the mater ial that forms the basis of the opinion.” ( Id . at p. 618.) Gardeley concluded that a gang expert, in opining that an
assault in which the defendant participated was gang related, properly relied on and
revealed an otherwise inadmissible hearsay statement by one of the defendant’s allege d cohorts that he, the alleged cohort, was a gang member. ( Id . at pp . 611

- 613, 618

- 619.) In

reac hing this conclusion, Gardeley reasoned that i t was proper for the expert to reveal the alleged cohort’s hearsay statement, because the hearsay evidence or statement was not
offered for its truth and was properly allowed under Evidence Code section 802. ( Ga rdeley, supra , at pp. 618

- 619.) Nevertheless, subsequent developments in the law require us to examine the continuing precedential value of Gardeley as it relates to this
confrontation clause issue.
In Williams v. Illinois (2012) 567 U.S. __ [132 S.Ct. 2221] (Williams), “ the prosecution called an expert who testifi ed that a DNA profile produced by an outside laboratory . . . matched a profile produced by the state police lab using a sample of the [defendant ’s] blood.” ( Id

. at p. __ [132 S.Ct. at p. 2227] (plur. opn. of Alito, J .).) In the plurality opinion, Justice Alito stated that “[o]ut

- of

- court statements tha t are related by13

the expert solely for the purpose of explai ning the assumptions on which [ an] opinion

rests are not offered for the ir truth and thus fall outside the scope of the Confrontation Clause.” ( Id . at p. __ [132 S.Ct. at p. 2228] (plur. opn. of Alito, J.).) However, four
members of the court denounced the “not for the truth ” rationale, in dissent, as “a prosecutorial dodge.” ( Id. at p. ___ [132 S.Ct. at p. 2265 (dis. opn. of Kagan, J.).) They
qu oted at length from a treatise describing that rationale as “ ‘very w eak,’ ‘factually implausible,’ ‘nonsense,’ and ‘sheer fiction.’ ” ( Id . at p. 2269., quoting D. Kaye, D. Bernstein, & J. Mnookin, The New Wigmore: Expert Evidence § 4.10.1, pp. 196

- 197 (2d ed.2011); id., § 4.11.6, at 2 4 (Supp.2012).) A fifth member of the court substantially agreed with this characterization, citing the same text, but joined wit h the other four
members of the court to form a plurality on the ground that the laboratory report there at
issue did not satisfy his unique test for what const itutes a “ ‘ “testimonial” ’ ” statement triggering a right to confrontati on. ( Williams, supra , ___ U.S. at pp. ___, ___ [132 S.Ct. at pp. 2255, 2257] (conc. opn. of Thomas, J.).)
After Williams , the California Supreme Court analyzed confrontation clause issues
in People v. Lopez (2012) 55 Cal.4th 569 ( Lopez ), People v. Dungo ( 2012) 55 Cal.4th
608 ( Dungo ) and People v. R utterschmidt (2012) 55 Cal.4th 650 ( Rutterschmidt ). All
three cases in volved witnesses who testified about technical reports that they did not
prepare. ( Lopez, supra , at p. 573 [a laboratory analyst testified regardin g a blood

- alc ohol level report prepared by a colleague]; Dungo , supra , at p. 61 2 [a pathologist testified regarding the condition of the victim’s body as recorded in an autopsy report pr epared by another pathologist]; Ru tterschmidt, supra , at p. 659 [ a laboratory direc tor testified that his analysts had detected the presence of alcohol and sedatives in the v ictim’s blood].) In Lopez , the court found no confrontation clause violation because the critical portions of the report regarding the defend ant’s blood

- alcohol lev el were not made with “the requisite degree of formality or solemnity to be considered testimonial.” ( Lopez, supr a,14

at p. 582.) The Dungo court declined to find a confrontation clause v iolation because the “criminal investigation was not the primary pu rp ose for the autopsy report’s description of the condition of [the vict im’s] body; it was only one of several purposes. . . . The autopsy report itself was simply an official explanation of an unusual death, and such

o fficial records are ordinarily not tes timonial.” ( Dungo, supra , at p. 621.) The
confrontation clause issue in Rutterschmidt was not reached be cause the court concluded
that the evidence of guilt was overwhelming and a ny error was harmless beyond a
reasonable doubt. ( Rutterschmidt, supra , at p. 661.)
In Lopez , our Supreme Court looked at the fractured Williams opinion and explained that “all nine high court justi ces agree that an out

- of

- court statement is testimonial only if its pr imary purpose pertains in some fashion to a criminal
prosecu tion.” ( Lopez, supra , 55 Cal.4th at p. 582.) However, this rule sheds very little light on whether a gang expert can prov ide an opinion that is based on h undreds of different pieces of information, especially given the reality t hat gang experts often rel y on a mixture of kn owledge gained through personal observations and investigations, nontestimonial hearsay, and testimonial hearsay. In other words, a gang expert’s opinion is likely based at least in part on matter that raises no confrontation clause c on cerns. Moreover, practically speaking there is a distinction between a scientific or medical expert relying on a report versus a gang expert relying on multiple sources.
T he California Supreme Court is cur rently considering whether the Sixth
Amendment ri ght to confrontation ba rs a gang expert’s reliance on testimonial hearsay. ( People v. Sanchez (2 013) 223 Cal.App.4th 1, review granted May 14 , 2014, S216681;
see also People v. Archuleta (2014) 2 25 Cal.App.4th 527, review granted June 11, 20 14, S218640 [b riefing deferred pending consideration and disposition of Sanchez ].) However, u ntil the California Supreme Court holds otherwise, we are bound to follow Gardeley by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) an d15

therefore reject defendant’s confrontation clause challenge to Detective Rak’s expert testimony. In the present case, there was overwhelming evidence to support a finding that defendant committed the crime for the benefit of a criminal street gang. In particular,
defenda nt told Officer Tran that he would “take the charge,” and admitted to Detective Rak that he “claimed” Sureño . He yelled out “sur trece” while he stabbed Ortiz. Defendant’s phone that was found at the scene contained photographs of defendant displaying g ang signs, and he had tattoos representing Sureño affiliation. The admission of the expert testimony in this case was harmless under either standard. ( Watson, supra , 46 Cal.2d 818; Chapman v. California (1967) 386 U.S. 18.)
Prosecutorial Misconduct
Defen dant argues that the prosecutor committed prejudicial misconduct by using epithets in closing argument that were intended to inflame the passion of the jury. “Prosecutorial misconduct implies a deceptive or reprehensible method of persuading the court or jury.” ( People v. Pr ice (1991) 1 Cal.4th 324, 448, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161

- 1165.) Altho ugh prosecutors are given “ ‘ “ ‘w ide latitude’ ” ’ ” in arguing their case s, they nev ertheless “are held to an elevated standard of conduct.” ( People v. Hill (1998) 17
Cal.4th 800, 819 ( Hill ) , overruled on other grounds in Price v. Superior Court (2001 25 Cal.4th 1046, 1069, fn. 13 .) The imposition of this h igher standard is justified by their “unique function . . . in repre senting the interests, and in exercising the sovereign power, of the state.” ( Id . at p. 820.) To warrant reversal, the challenged conduct must be prejudicial. “ What is crucial to a claim of prosecu torial misconduct i s . . . the potential injury to the defendant.” ( Peo ple v. Benson (1990) 52 Cal.3d 754, 793.) When the claim “focuses upon c omments made by the prosecutor before the jury, the question is whether th ere is a reasonable16

likelihood that the jury construed o r applied any of the complained

- of r emarks in an objectionable fashion.” ( People v. Samayoa , supra , 15 Cal.4th at p. 841.) To answer that question, we examine the prosecutor’s statement in the context of the whole record, including argu ments and instruct ions. ( Hill, supra , 17 Cal.4th at p. 832.) “In condu cting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s state ments.” ( People v. Frye (1998) 18 Cal.4th 894, 970, overruled on other grounds by Peop le v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
As a matter of federal constitutiona l law, a prosecutor’s behavior constitutes prejudicial misconduct when it is “ ‘ “ ‘ “so egregious that it infects the trial with such
unfairness as to make the convi ction a denial of due process.” ’ ” [Citations. ] Conduct by a prosecutor that d oes not render a criminal trial fundame ntally unfair is prosecutorial misconduct under state law only if it invo lves “ ‘ “the use of deceptive or reprehensible methods to attempt to pe rsuade either the court or the jury.” ’ ” [Citation.]’ [Citation.]” ( Hi ll, supra, 17 Cal.4th at p. 819 .) Here, defendant asserts that the prosecutor’s use of epithets in describing him during closing argument w as improper. Specifically, the prosecutor commented during closing argument as follows: “He’s done a good job as a lawyer for his client. Unfortunately, his client is a vicious, violent gangster, who is stupid enough, careless enough to leave his identif ication basically, his cell phone at the scene, after h e tried to murder this guy.” T he prosecutor further described defendant , as follows: “This is a

stone

- cold gangster, vicious attempted murderer. He didn’t care about his interview with the police.” Finally, th e prosecutor asked the jury if it wanted to “bend over backwards to help this vicious thug out.” At this point in the argument, defense counsel objected as follows: “ Objection. Th is is the fourth time [ the p ro secutor] called my client names,” to which the court stated: “ Overruled. It’s argument. ”17

The prosecutor’s statements in his closing argument were not improper in this

case. “ ‘ A prosecutor is allowed to make vigorous arguments and may even use such epithets as are warranted by the ev idence, as long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury. ’ [Citation]” ( People v. Tully (2012) 54 Cal.4th 9 5 2, 1021.) The evidence presented during the trial warranted the epithets th e prosecutor used. Specifically, defendant admitted that he was a Sureño gang member. While he stabbed the victim who he perceived to be a Norteño four times, he yelled “Sur Trece.” To describe defendant as a “vicious, violent gangster,” “stone

- cold gan gster,” “vicious attempted murderer,” and a “vicious thug,” is supported by the evide nce. The prosecutor’s comments to describe defendant did not improperly appeal to the sympathy or passion of the jury. ( See, e.g. , People v. Fields (1983) 35 Cal.3d 329, 362

- 363.)
Cumulative Error Defendant argues that the cumulative effect of the alleged errors in this case deprived of him of his constit utional right to a fair trial, and therefore the conviction must be re versed. The California Supreme Court has instr ucted that “a series of tri al errors , though independently harmless, may in some circumstances ris e by accretion to the level
of reversible and prejudicial error.” ( Hill, supra , 17 Cal.4th at p. 844.) In the present case, we have determined that none of the above claimed actions on the part of the court were prejudicial errors. Moreover, the cumulative effect of the
claimed errors is insufficient to rise to the level of reversible and pr ejudicial error. Therefore, we must reject defendant’s contention of cumulative error.
D ISPOSITION The judgment is affirmed.18 ______________________________________

RUSHING , P.J.

WE CONCUR:

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PREMO, J

.

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ELIA, J.

People v. Diaz H040282