P. v. Delgado

Filed 6/13/07 P. v. Delgado CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ISAAC ANTHONY DELGADO,
Defendant and Appellant.
G036754
(Super. Ct. No. 04WF1875)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County,
Richard M. King, Judge. Affirmed and remanded for resentencing.
Paul R. Ward, under appointment by the Court of Appeal, for Defendant
and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo
Graves and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons,
Assistant Attorney General, Ronald A. Jakob and Jennifer A. Jadovitz, Deputy Attorneys
General, for Plaintiff and Respondent.
* * *

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INTRODUCTION
Defendant Isaac Anthony Delgado appeals from a judgment entered after a
jury found him guilty of carrying a concealed dirk or dagger, street terrorism, and assault
with a deadly weapon. The jury found true the enhancement allegations that defendant
personally used a knife and inflicted great bodily injury in the commission of the assault
with a deadly weapon offense, and committed that crime for the benefit of, at the
direction of, or in association with a criminal street gang with the specific intent to
promote, further, or assist in any criminal conduct by members of that gang.
Defendant contends the enhancement finding that he committed the assault
with a deadly weapon for the benefit of a criminal street gang must be stricken because
(1) the trial court erroneously admitted an expert witness’s testimony regarding
defendant’s specific intent, and (2) defendant received ineffective assistance of counsel.
Defendant also contends the trial court erred by imposing the upper term for each count
based on aggravating factors found true by the trial court, not by a jury.
We affirm. The trial court did not err in admitting the prosecution’s expert
witness testimony because the expert did not testify defendant specifically intended to
benefit a criminal street gang in the commission of the assault with a deadly weapon
offense.
As discussed in detail post, even if defendant’s legal representation had
been deficient in the manner asserted by defendant, it is not reasonably probable the
result of the trial would have been different. (Strickland v. Washington (1984) 466 U.S.
668, 687, 694.) Defendant’s ineffective assistance of counsel claim therefore fails.
In light of the United States Supreme Court’s recent decision in
Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), we remand
for resentencing on the sole ground the trial court imposed an upper term sentence based
on aggravating factors found true by the court rather than by a jury beyond a reasonable
doubt.

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FACTS
On June 29, 2004, Antonio B. was walking down a street in Garden Grove
after school with his friends, Irvin G. and Danny C., when he noticed defendant staring at
him. Various accounts of what happened next were presented at trial. All accounts,
however, agree that Antonio’s confrontation with defendant resulted in defendant
stabbing Antonio in the chest.
Douglas Pluard, a Garden Grove police officer, testified he interviewed
Antonio in the hospital after the incident. Pluard tape-recorded his interview with
Antonio, but did not tell Antonio the interview was being taped. Antonio told Pluard that
after defendant stared at him, defendant, who was sitting on a bicycle, said something to
the effect of “hey, this is Santana.” Antonio “just turned away,” and walked away from
defendant and a second man who was also sitting on a bicycle.
Antonio said defendant got off his bike and walked up behind him.
Defendant grabbed his arm, “kind of spun him around,” and said “what’s up?” Antonio
said defendant struck him in the chest. After Antonio felt “some extreme pain” in his
chest, he saw defendant was holding a knife. Antonio “took a fighting stance to try and
defend himself”; he punched defendant in the face. After defendant tried to stab Antonio
again, Antonio ran across the street. Defendant gave chase. While running, Antonio saw
blood on his chest and realized he had been stabbed. He reached the other side of the
street, and lay down on the sidewalk. Defendant stopped pursuing Antonio, ran back to
his bicycle, and rode away.
Officer Pete Arrellano of the Garden Grove Police Department interviewed
Irvin later that afternoon; this interview was tape-recorded without Irvin’s knowledge.
Irvin told Arrellano that there had been a “hit up” that afternoon. Irvin explained that as
he, Antonio, and Danny walked by defendant and a second person, who were both sitting
on bicycles, the latter one asked them where they were from. Antonio said something in

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response, but Irvin did not hear what was said. Defendant got off his bicycle and said,
“this is Santa Nita.” Irvin then saw Antonio and defendant involved in some kind of
altercation. He saw a knife in defendant’s hand; defendant attempted to stab Antonio.
Antonio threw punches at defendant and then ran to the other side of the street where he
leaned up against a chain link fence and fell to the ground. Irvin said defendant initially
chased after Antonio but then stopped, ran back to his bicycle, and rode away. Irvin told
Arrellano that he had not been more forthcoming with information at the crime scene
because he thought the police officers were jerks and also because he was concerned
about being looked upon as a “rat.”
Antonio and Irvin testified at trial, but described a sequence of events
different from what they had described in their interviews with Pluard and Arrellano,
respectively.
Antonio testified that after he and defendant made eye contact, defendant
started walking behind Antonio, Irvin and Danny. Antonio testified he turned around and
asked something to the effect of “you know me?” or “[w]hy you staring at me?”
Defendant asked Antonio whether he was going out with his “lady” from Santa Ana.
Antonio testified he truthfully told defendant he was going out with defendant’s lady, but
could not remember her name. Antonio testified he then struck defendant in the eye, and
Irvin and Danny joined in by hitting defendant as well. Defendant then stabbed Antonio
in the chest.
Antonio testified he has never heard of the Santa Nita criminal street gang
and did not hear defendant say, “this is Santa Ana.” Antonio also testified that it is not a
good thing to be classified as a “rat”—meaning one who provides information to the
police.
Irvin similarly testified at trial that Antonio struck the first blow against
defendant, and that he and Danny joined in by hitting defendant. Irvin admitted having
heard of Santa Nita, but denied telling Arrellano that defendant said, “this is Santa Nita”

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at the time of the incident. He testified he did not recognize defendant, and stated he did
not see defendant on a bicycle. He denied identifying defendant to the police.
Defendant testified at trial that he was attacked by Antonio, Danny, and
Irvin, and that he was fearful and tried to defend himself. Defendant stated he had a knife
in his possession for self-protection and admitted he stabbed Antonio. He denied being a
gang member.
Officer Jonathan Wainwright of the Garden Grove Police Department
testified as an expert witness. He testified that Santa Nita is a criminal street gang and
one of its rival gangs is the Darkside criminal street gang. He opined that defendant was
an active participant of Santa Nita on June 29, 2004. His opinion was based on, inter
alia, defendant’s own prior statements claiming Santa Nita. Wainwright also opined
Antonio was an active participant of the Darkside criminal street gang on June 29, 2004.
During direct examination, the prosecutor posed a hypothetical question to
Wainwright, which assumed as true the circumstances first described by Antonio and
Irvin to the police. Wainwright testified that based on those assumed facts, the offense of
assault with a knife would have been committed for the benefit of Santa Nita.
Wainwright explained that the incident was “a classic gang hit up.” He stated that a
hit-up involves a gang member encountering someone who “looks like a gang member”
and then asking that person where he or she is from. If that person responds with the
name of a rival gang, the common outcome is violence “anywhere from a simple assault
and battery or using their hands and fists, all the way up to using handguns to a
homicide.” If the person does not respond and tries to ignore the question, he or she will
also be met with violence. Successful hit-ups enhance the perpetrator’s reputation within
the gang and the gang’s reputation with other gangs. They also assist the perpetrator’s
gang in its recruiting efforts.

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PROCEDURAL BACKGROUND
Defendant was charged in an amended information with (1) attempted
murder in violation of Penal Code sections 664 and 187, subdivision (a) (count 1);
(2) carrying a concealed dirk or dagger in violation of section 12020, subdivision (a)(4)
(count 2); (3) street terrorism in violation of section 186.22, subdivision (a) (count 3); and
(4) assault with a deadly weapon in violation of section 245, subdivision (a)(1) (count 4).
(All further statutory references are to the Penal Code.)
The amended information contained multiple conduct enhancement
allegations: (1) as to counts 1 and 4, pursuant to section 12022, subdivision (b)(1),
defendant personally used a deadly weapon (a knife) within the meaning of
section 1192.7, in the commission of those crimes; (2) as to counts 1 and 4, pursuant to
section 12022.7, subdivision (a), and within the meaning of sections 1192.7 and 667.5,
defendant personally inflicted great bodily injury; and (3) as to counts 1, 2, and 4,
pursuant to section 186.22, subdivision (b)(1), defendant committed those offenses “for
the benefit of, at the direction of, and in association with SANTA NITA, a criminal street
gang, with the specific intent to promote, further, and assist in criminal conduct by
members of that gang.”
The jury found defendant guilty of counts 2, 3, and 4. The jury found true
the conduct enhancement allegation that defendant committed count 4 for the benefit of,
at the direction of, or in association with a criminal street gang with the specific intent to
promote, further, or assist in any criminal conduct by members of that gang. The jury
also found true that defendant personally used a deadly or dangerous weapon (a knife)
and personally inflicted great bodily injury during the commission of count 4. The trial
court declared a mistrial as to count 1, and ultimately granted the prosecution’s motion to
dismiss count 1.
The trial court sentenced defendant to a total prison term of 17 years by
imposing: (1) the upper term of four years on count 4; (2) a consecutive three-year term

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for the infliction of great bodily injury enhancement; (3) a consecutive 10-year term for
the gang enhancement; (4) the upper term of three years on count 2, to run concurrently
with the term imposed for count 4; and (5) the upper term of three years on count 3, to
run concurrently with the term imposed for count 4.1 The court stated on the record that
it imposed the upper term sentences based on findings (1) defendant’s crimes involved
great violence, (2) defendant engaged in violent conduct that indicates a serious danger to
society, (3) his prior sustained petitions in juvenile delinquency proceedings are
numerous or of increasing seriousness, and (4) his prior performance on probation was
unsatisfactory.
Defendant appealed.
DISCUSSION
I.
W AINWRIGHT D ID N OT O FFER EXPERT O PINION T ESTIMONY ON
D EFENDANT ’S S PECIFIC INTENT .
The jury found true that defendant committed the crime of assault with a
deadly weapon “for the benefit of, at the direction of, or in association with any criminal
street gang, to wit: SANTA NITA, with the specific intent to promote, further or assist in
any criminal conduct by members of that gang.” Defendant contends the trial court erred
by allowing Wainwright to provide expert witness testimony on the issue of defendant’s
specific intent.2
1 The trial court struck the personal use of a deadly weapon enhancement “for purposes
of sentencing only.”
2 The Attorney General contends defendant has waived this argument because he failed
to raise this objection to Wainwright’s expert testimony during trial. Defendant argues
any such objection would have been futile in light of the trial court’s earlier comments
which generally described its view of the admissibility of expert testimony. Defendant
further argues that if an objection to Wainwright’s expert testimony would not have been
futile, defendant’s counsel provided ineffective assistance of counsel by failing to so

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“‘As a general rule, a trial court has wide discretion to admit or exclude
expert testimony. [Citations.] An appellate court may not interfere with the exercise of
that discretion unless it is clearly abused. [Citation.]’” (People v. Valdez (1997) 58
Cal.App.4th 494, 506.) In cases where a gang enhancement is alleged, expert testimony
regarding the “culture, habits, and psychology of gangs” is generally permissible because
these subjects are “‘sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact.’” (Ibid.) For example, an expert may properly testify about
the size, composition, or existence of a gang; “motivation for a particular crime, generally
retaliation or intimidation”; and “whether and how a crime was committed to benefit or
promote a gang.” (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-658; People v.
Gonzalez (2005) 126 Cal.App.4th 1539, 1550 [“Expert testimony repeatedly has been
offered to show the ‘motivation for a particular crime, generally retaliation or
intimidation’ and ‘whether and how a crime was committed to benefit or promote a
gang’”]; People v. Valdez, supra, 58 Cal.App.4th at pp. 507-509 [holding expert opinion
concerning whether the defendant acted for the benefit of a gang was admissible under
the circumstances of the case].)
An expert, however, may not testify that a specific individual had specific
knowledge or possessed a specific intent. (People v. Killebrew, supra, 103 Cal.App.4th
at p. 658.) In People v. Killebrew, the appellate court held an expert’s opinion testimony
was improper: “Through the use of hypothetical questions, [the expert] testified that each
of the individuals in the three cars (1) knew there was a gun in the Chevrolet and a gun in
the Mazda, and (2) jointly possessed the gun with every other person in all three cars for
their mutual protection. In other words, [the expert] testified to the subjective knowledge
and intent of each occupant in each vehicle. Such testimony is much different from the
expectations of gang members in general when confronted with a specific action. [¶]
object. We do not need to decide whether defendant has waived this argument because,
in any event, as discussed in detail post, defendant’s argument is meritless.

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[The expert]’s testimony was the only evidence offered by the People to establish the
elements of the crime. As such, it is the type of opinion that did nothing more than
inform the jury how [the expert] believed the case should be decided. It was an improper
opinion on the ultimate issue and should have been excluded.” (Ibid.)
In People v. Gonzalez (2006) 38 Cal.4th 932, 946-947, the California
Supreme Court stated, “[a]s did the court in People v. Gonzalez, supra, 126 Cal.App.4th
1539, we read [People v.] Killebrew[, supra, 103 Cal.App.4th 644] as merely
‘prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of
a defendant on trial.’ [Citations.] [Fn. omitted.] Even if we assume, without deciding,
that [People v.] Killebrew is correct in this respect, it has no relevance here. [The expert
witness] merely answered hypothetical questions based on other evidence the prosecution
presented, which is a proper way of presenting expert testimony. ‘Generally, an expert
may render opinion testimony on the basis of facts given “in a hypothetical question that
asks the expert to assume their truth.”’ [Citations.]” The Supreme Court further stated,
“there is a difference between testifying about specific persons and about hypothetical
persons. It would be incorrect to read [People v.] Killebrew as barring the questioning of
expert witnesses through the use of hypothetical questions regarding hypothetical
persons.” (Id. at p. 946, fn. 3.)
Here, Wainwright never testified as to defendant’s specific intent in the
commission of the assault with a deadly weapon offense, or any other offense. Instead, in
response to a hypothetical question (which was generally based on the same
circumstances of the incident as first described by Antonio and Irvin to the police),
Wainwright testified the crime of assault with a deadly weapon under such circumstances
would be committed to benefit a criminal street gang. Wainwright testified as follows.
“[The prosecutor]: I’m going to ask you to assume that—we’ll call person
1 ‘victim’—that victim is an active participant in a criminal street gang, and the name of
the gang is Darkside.

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“As the victim is walking away from school with two other males, he
noticed two males up ahead straddling their bicycles. As they approached and the victim
walked by the two males on their bicycles, one of the two males on the bikes in front of
them asked the victim where he was from.
“I’m going to ask you to assume that one of the two individuals that are
straddling the bikes, that one of them is a documented gang member with the gang Santa
Nita.
“Now, after the one individual on the bicycle up ahead asks the victim
where he’s from, I’m going to ask you to assume that that Santa Nita gang member who
is on his bicycle claims his gang back by saying something to the effect of, ‘this is Santa
Nita.’ Words are exchanged and the victim starts to walk away.
“I’m going to ask you to assume that the Santa Nita gang member follows
that victim, grabs the victim, turns him around and starts to make stabbing motions
toward the victim and toward his chest.
“I’m going to ask you to assume that the victim tries to get away by
pushing, by kicking the Santa Nita gang member, and that the Santa Nita gang member
successfully stabs the victim with a knife in the upper chest or sternum area, actually
causing the knife to go through the skin causing an injury.
“I’m going to ask you to assume that the victim then ran across the street
and that the Santa Nita gang member chases that victim across the street. There is
another physical altercation between the two on the second side of the street once they’ve
crossed, and the Santa Nita gang member fled the area.
“I’m going to ask you to assume that the Santa Nita gang member was later
caught at his residence with a knife in his pocket that had blood on the blade, and that at
the time of the incident, the Darkside gang and Santa Nita gang were considered rival
gangs.

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“I’m further going to ask you to assume that the victim ultimately fell on
the ground and was bleeding from the chest and required medical assistance.
“Assuming those facts, do you have an opinion as to whether the crime of
attempted murder with the stabbing of a knife through the victim’s chest was committed
for the benefit of or in association with the criminal street gang Santa Nita?
“A. Yes, I do.
“Q. What is your opinion?
“A. That it was committed for the benefit of the gang Santa Nita.
“Q. And what is that opinion based on?
“A. That opinion is based on—based on my years as a law enforcement
officer, my experience dealing with gang members, reviewing this entire case, everyone’s
history. And also on this, with your hypothetical, it’s a classic gang hit up.
“Q. Okay. What do you mean when you say that?
“A. The classic gang hit up. The individual started it off where you—from
throwing out his gang name. The other guy didn’t want anything to do with it. Basically,
that’s a form of disrespect between the two gangs when nobody answers back. Felt
disrespected, went after that individual with a knife, attempted to kill him by shoving a
knife in his chest.
“Q. How would the attempted murder in the hypothetical I’ve given you,
how would that actually benefit his gang, Santa Nita?
“A. It would give the gang—within gang culture, make them one step
higher on the rung knowing that these guys actually back up what they say. They’re
going to inflict pain on another gang if they’re disrespected.
“Q. When you say, ‘one step higher on the rung,’ would that give them
respect within the gang community?
“A. Yes.”
The expert witness further testified:

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“Q. And similarly, with the same set of facts, I’m going to ask you about
the crime of assault with a deadly weapon, assault with a knife.
“Do you have an opinion as to whether or not that crime was committed for
the benefit of the gang in our hypothetical?
“A. Yes, I do.
“Q. What is that opinion?
“A. It was committed for the benefit of the gang.
“Q. And what is that opinion based on?
“A. Again, the whole respect with the knife, the hit up, and the actual him
being the aggressor against the rival gang. It’s all about the respect.”
The prosecutor asked:
“Q. Okay. And also with what’s—let’s just take the crime, same facts,
assault with a deadly weapon. Asking you the similar question. How does that promote,
further or assist the gang, if it does?
“A. Again, the same reason. I mean, you have an individual that was
promoting the gang by calling out the gang’s name, committing the crime, promoting the
gang, and giving that gang more respect.”
Wainwright’s opinion in response to a hypothetical question based on
circumstances similar to the instant case, that the crime of assault with a deadly weapon
was committed to benefit a criminal street gang constitutes admissible expert testimony.
(See, e.g., In re Frank S. (2006) 141 Cal.App.4th 1192, 1197 [expert testimony about the
motivation for a particular crime and “‘whether and how a crime was committed to
benefit or promote a gang’” is permissible]; People v. Killebrew, supra, 103 Cal.App.4th
at pp. 656-657 [same].)
We find no error.

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II.
T HE R ECORD D OES N OT S HOW D EFENDANT R ECEIVED INEFFECTIVE
A SSISTANCE OF C OUNSEL WITH R EGARD TO D EFENDING A GAINST THE
10-Y EAR ENHANCEMENT A LLEGATION T ERM FOR C OMMITTING A SSAULT
WITH A D EADLY W EAPON FOR THE B ENEFIT OF A C RIMINAL S TREET G ANG.
Defendant contends he received ineffective assistance of counsel with
regard to his defense against the gang enhancement allegation because his trial counsel
(1) had difficulty cross-examining Wainwright; (2) failed to object to portions of Pluard’s
and Arrellano’s testimony; (3) failed to adequately cross-examine Pluard and Arrellano;
and (4) failed to argue to the jury that Antonio’s and Irvin’s statements to Pluard and
Arrellano, respectively, were less reliable than Antonio’s and Irvin’s trial testimony.
A.
S TANDARD OF R EVIEW
To prevail on a claim of ineffective assistance of counsel, the defendant
must prove: (1) his or her attorney’s representation was deficient in that it fell below an
objective standard of reasonableness under prevailing professional standards; and (2) his
or her attorney’s deficient representation subjected him or her to prejudice. (Strickland v.
Washington, supra, 466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.)
Prejudice means a “reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” (Strickland v. Washington,
supra, 466 U.S. at p. 694.)
B.
D EFENDANT ’S INEFFECTIVE A SSISTANCE OF C OUNSEL C LAIM AS TO
W AINWRIGHT ’S T ESTIMONY F AILS.
Defendant contends he received ineffective assistance of counsel because
the record shows “defense counsel completely lacked the ability to cross examine the
expert witness,” which resulted in defendant being “left with no representation as to the
expert witness.” Specifically, defendant argues effective representation by his trial

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counsel would have included a cross-examination of Wainwright that elicited testimony
establishing (1) Wainwright’s opinion depended entirely on the facts assumed by the
prosecution, and other assumptions (e.g., that Antonio struck defendant first, defendant
never mentioned any gang affiliation, and the fight started after comments about a girl),
would have produced different expert opinions; and (2) Wainwright could not offer an
expert opinion about “who initiated the conflict based solely on how the conflict ended”
(e.g., Antonio having been stabbed), thereby “emphasiz[ing] for the jury that the officer’s
opinion about the intent to benefit a street gang depended entirely on the facts of the
hypothetical.”
We do not need to determine whether defendant’s trial counsel’s
representation was deficient because the record fails to support a reasonable probability
the result would have been different had counsel’s cross-examination of Wainwright
elicited such testimony. Before the prosecutor posed the hypothetical question to
Wainwright, the trial court instructed the jury: “In examining an expert witness, counsel
may ask hypothetical questions. This is a question in which the witness is asked to
assume the truth of a set of facts and to give an opinion based on that assumption. [¶] In
permitting this type of question, the court does not rule and does not necessarily find that
all of the assumed facts have been proved. It only determines that those assumed facts
are within the possible range of the evidence. It is for you to decide from all the evidence
whether or not the facts assumed in a hypothetical question have been proved. [¶] If you
should decide that any assumption in a question has not been proved, you are to
determine the effect of that failure of proof on the value and weight of the expert’s
opinion based on the assumed facts.”
As discussed ante, the prosecutor’s hypothetical question expressly
assumed that defendant was the aggressor. Antonio and Irvin testified at trial that it was
Antonio—not defendant—who threw the first punch. The jury was instructed to weigh
the conflicting evidence and determine whether the hypothetical question’s express

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assumption that defendant was the aggressor was true in assigning the proper weight to
give the expert witness’s testimony.
Defendant contends his trial counsel was ineffective because he was unable
to formulate proper questions during his cross-examination of Wainwright, which would
have elicited information about Antonio’s past. Even assuming trial counsel’s
representation with regard to Wainwright’s cross-examination was deficient, the record
does not show what information such questioning would have yielded. In People v. Bolin
(1998) 18 Cal.4th 297, 334, the California Supreme Court rejected a defendant’s
argument his counsel was ineffective for failure to engage in more extensive cross-
examination of a witness, stating: “‘Defendant identifies no exculpatory or impeachment
evidence that counsel could have revealed by further questioning of prosecution
witnesses [or examination of defense experts] and that would have produced a more
favorable result at trial. [¶] . . . Such claims must be supported by declarations or other
proffered testimony establishing both 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.’”
On this record, we therefore cannot conclude that it is reasonably probable
such information would have changed the result.
C.
D EFENDANT ’S INEFFECTIVE A SSISTANCE OF C OUNSEL C LAIM F AILS AS TO
P LUARD’S AND A RRELLANO’S T ESTIMONY.
During trial, Pluard testified that he interviewed Antonio at the hospital
later in the day after the stabbing. Pluard testified he tape-recorded the interview, but did
not tell Antonio the interview was being tape-recorded because he learned from
experience that “sometimes, oftentimes, if you do tell somebody that you’re tape
recording, they’re going to—they won’t tell you the full truth. They’ll know that it may

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come back to maybe haunt them later and we’ll have it on record.” Antonio told Pluard
that defendant initiated their confrontation by staring at Antonio and then stating
something to the effect of “hey, this is Santana.” Antonio said that after he turned and
walked away, defendant got off his bike, walked up behind Antonio, grabbed Antonio’s
arm, spun him around, and said “what’s up?” Defendant then stabbed Antonio.
Arrellano testified that he tape-recorded his interview of Irvin, but did not
tell Irvin the interview was being tape-recorded. Arrellano testified he did not tell Irvin
he was taping the interview because he felt Irvin would be more truthful and more
forthcoming with information if he did not know the interview was being tape-recorded.
Irvin told Arrellano that as he, Antonio, and Danny walked past defendant, and a second
individual with defendant asked where they were from and defendant said something to
the effect of “this is Santa Nita.” Irvin saw that Antonio and defendant were involved in
some kind of an altercation where defendant had a knife in his right hand and was
attempting to stab Antonio.
At trial, both Antonio and Irvin described a version of the incident different
from what each had previously reported to police. Each testified that after Antonio asked
defendant why he was staring at him, defendant asked Antonio something about why or
whether Antonio was going out with defendant’s lady. Antonio and Irvin further testified
Antonio told defendant that Antonio was going out with defendant’s lady. Antonio and
Irvin also testified that Antonio threw the first punch at defendant, and that Irvin and
Danny assisted Antonio by hitting defendant.
Defendant contends he received ineffective assistance of counsel because
his trial attorney failed to object to Pluard’s and Arrellano’s testimony “as improper
vouching for a particular version of conflicting evidence or as a comment on the
credibility of witnesses.” He also contends, “to the extent that the officers sought to
apply their general opinions about the effectiveness of their interviewing techniques to
these particular interviews, the opinions were based entirely on speculation as to whether

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the interviewees had something to hide. And, to the extent that the officers’ opinions did
not relate to these particular interviews, they were irrelevant.” Defendant further
contends the prosecutor committed misconduct by soliciting such testimony.
The record shows Pluard and Arrellano merely explained the reason why
they decided to secretly tape-record their interviews. They did not opine on credibility
issues and did not weigh in on whether Antonio’s or Irvin’s statements during the
interviews or their trial testimony was more truthful or reliable. Nor did the prosecutor
attempt to elicit improper “vouching” testimony from the officers. Defendant’s trial
attorney, therefore, was not ineffective for failing to object to the officers’ testimony on
this ground.
Defendant further contends, “effective counsel would have brought out on
cross examination and in argument that the officers’ belief that people are less likely to
tell the ‘full truth’ when a microphone is visible applies only to perpetrators of crimes,
not to people who are purely victims of or witnesses to crimes, because nothing a
completely innocent victim or witness could say to an officer falls into the category of
‘[t]hey’ll know that it may come back to maybe haunt them later and we’ll have it on the
record.’” But there is no evidence that the officers would have testified that they had
such a belief. (See People v. Bolin, supra, 18 Cal.4th at p. 334 [defendant failed to
identify exculpatory or impeachment evidence that could have been revealed by counsel
through further questioning of prosecution witnesses and that would have produced a
more favorable result at trial].)
If anything, the record shows it is unlikely the officers would have so
testified in light of Wainwright’s expert testimony that in gang culture, witnesses to
criminal offenses are often reluctant to provide information to the police because they
fear being characterized as a “rat” and subjected to retaliation.
Therefore, defendant’s ineffective assistance of counsel claim as to Pluard’s
and Arrellano’s testimony fails.

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III.
IN L IGHT OF C UNNINGHAM , SUPRA, 549 U.S. __ [127 S.C T. 856], W E
R EMAND FOR R ESENTENCING.
In his supplemental opening brief, defendant cites Cunningham, supra, 549
U.S. __ [127 S.Ct. 856], arguing defendant’s upper term sentence, which was imposed
based on facts determined by the trial court, violated his constitutional rights to due
process and a jury trial. The United States Supreme Court has held California’s
determinate sentencing law violates a defendant’s rights under the Sixth and Fourteenth
Amendments to the United States Constitution to a jury trial to the extent it permits a trial
court to impose an upper term sentence based on facts found by the court instead of by a
jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. __ [127 S.Ct. 856].)
Here, the trial court imposed the upper term sentence, citing several
aggravating factors relating to defendant. (Cal. Rules of Court, rule 4.421(a)(1) [the
crime involved great violence]; id., rule 4.421(b)(1) [defendant has engaged in violent
conduct that indicates a serious danger to society]; id., rule 4.421(b)(2) [defendant’s prior
sustained petitions in juvenile delinquency proceedings are numerous or of increasing
seriousness]; id., rule 4.421(b)(5) [defendant’s prior performance on probation was
unsatisfactory].)
Currently before the California Supreme Court, in People v. Black (2005)
35 Cal.4th 1238, judgment vacated and cause remanded sub nom. Black v. California
(2007) __ U.S. __ [127 S.Ct. 1210], is the issue whether there is “any violation of the
defendant’s Sixth Amendment rights under Cunningham if the defendant is eligible for
the upper term based upon a single aggravating factor that has been established by means
that satisfy the governing Sixth Amendment authorities . . . even if the trial judge relies
on other aggravating factors (not established by such means) in exercising his or her
discretion to select among the three sentences for which the defendant is eligible.”
(Supreme Ct. dock. entry, Feb. 21, 2007.)

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Because the trial court here imposed an upper term sentence based on
several aggravating factors that were not tried to and found by a jury, in light of
Cunningham, we remand for resentencing.
DISPOSITION
The judgment is affirmed and remanded for resentencing.
FYBEL, J.
WE CONCUR:
SILLS, P. J.
RYLAARSDAM, J.

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