THE PEOPLE v. JESUS AUGUSTINE CABRERA (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Defendants Jesus Augustine Cabrera (Cabrera) and Saul Romero-Luna (Romero-Luna) appeal from judgments of conviction entered after a jury trial.   Cabrera and Romero-Luna were convicted of three counts of attempted premeditated murder (Pen.Code, §§ 187, subd. (a), 664) ¹ and one count of shooting at an occupied motor vehicle (§ 246).   The jury found true the allegations that, in the commission of the attempted premeditated murders, a principal personally and intentionally discharged a firearm (§ 12022.53, subds.(c) & (e)(1)) and defendants personally used a firearm (§ 12022.53, subds.(b) & (e)(1)).   As to all offenses, the jury found true the allegation that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)).  The trial court sentenced each defendant to a determinate term of 60 years, plus an indeterminate sentence of life with the eligibility for parole after 21 years.

On appeal, defendants raise various claims of evidentiary error and challenge the photographic lineup identification.   In addition, Cabrera claims ineffective assistance of counsel, and Romero-Luna contends the trial court erred in calculating his presentence custody credits.   We agree the trial court erred in calculating Romero-Luna's presentence custody credits and modify the judgment against him accordingly.   We reject the remainder of defendants' claims of error.

FACTS

A. Prosecution

On November 11, 2006, at approximately 4 p.m., Donte Robinson (Robinson), his brother, Rafael McBride (McBride), and Jason Green (Green) were in the parking lot at an apartment building on Roscoe Boulevard in Canoga Park where Robinson and McBride lived.   Robinson and McBride are Black, and Green is half Black.   With Robinson's white car parked nearby, the men were working on another car.   A Hispanic man was also in the parking lot, working on a different car.

Robinson saw a man jump the fence and come toward him.   Robinson became concerned, got into his car and told McBride and Green to get into the car.   They did so.   Robinson was driving to the parking lot gate when he heard a gunshot.   A man was standing there, shooting a revolver at them.   Another man was jumping over the gate.   When Robinson drove his car out of the gate, he saw one or two men standing near a red car and other men in the car.   The gunshots continued as Robinson drove down the alley toward Owensmouth Avenue.   Green turned and saw that the red car was approaching Robinson's car, and a man was standing through the red car's sunroof, firing at them.   Robinson turned left onto Saticoy Street.   Eventually, he got away from the red car and turned onto Canoga Avenue.

Patrick Cane and Jamie Ales (Ales) were driving on Owensmouth Avenue near Saticoy Street when they saw a white car and a red car driving quite aggressively.   The red car was in the wrong lane coming toward them, and they pulled into a parking lot to get out of the way.   They saw the red car get behind the white car.   A man popped out of the sunroof of the red car with a gun and fired five rounds.

Zhaleh Shyganfar (Shyganfar) was in her apartment in the area of Owensmouth Avenue and Saticoy Street.   She heard shooting.   When she looked outside, she saw a man stand up through the roof of a car and start shooting.

At approximately 4:15 p.m., Michael Terrazas, a police officer for the City of Los Angeles, was on patrol with his partner, Selena Beach, when he received a radio call of “shots fired” on Saticoy Street.   They went to the location, where they met with three witnesses, Ales, Shyganfar, and Patrick Goodfellow.   As the officers finished the interviews, they were notified that other officers were in the area with a possible victim, Green.

The officers interviewed Green as he sat in a white car in a parking lot.   Green gave a description of three suspects, all Hispanic men.   He described the red car and said that the second man was the one driving and the first man had a gun.

The officers were then notified that Robinson had gone to a nearby police station and reported the shooting.   Robinson told the officers that he had seen several Hispanic men enter the alley.   He believed they were Canoga Park Alabama (CPA) gang members.   Because CPA gang members had previously harassed him, he became afraid and he, McBride and Green got in the car.   As they drove out of the alley, Robinson saw several of the men making a “C” shape with their hands.   One man drew a gun that Robinson thought was a semiautomatic handgun.   Robinson drove at a high rate of speed out of the alley and saw the man with the gun get into a red car, which began chasing them.   As Robinson made a turn onto Saticoy Street, the man with the gun stood up through the sunroof of the red car, and, with a shotgun, fired five times at Robinson's car.

Detective Edward Moreno was assigned to the investigation of the incident.   During an interview, Robinson gave a similar account of the incident.   Robinson also told the detective that prior to the incident, he had been approached by a group of Hispanic men who lived in the area of the alley and they asked him where he was from.   He also said that he had no gang affiliation.

Detective Moreno showed Robinson two photographic lineups.   Each included six photographs.   Such photographic lineups were also referred to as six-packs.   Robinson identified Cabrera from the lineups as the man who had jumped over the gate, made a “C” hand sign, and fired one round at Robinson's car as he drove down the alley.

Detective Moreno also interviewed Green.   Green gave an account of the incident similar to the account given by Robinson.   When the detective showed Green the two photographic lineups, Green identified Cabrera and Romero-Luna.   He said Cabrera was the man who shot the single round at them and Romero-Luna was the driver of the red car.

The police recovered the red car and found fingerprints of a Jorge Campos, who was a documented CPA gang member.   Prior to the incident, the red car had been reported stolen by its owner.   When it was recovered, it was being driven by Roberto Rodrigues.

A few days later, Detective Moreno was driving on Lanark Street, which he knew was associated with the CPA gang.   He saw Cabrera.   When Cabrera saw the detective, he ran away.

Officer Raymond Diaz testified as a gang expert.   He was a police officer for the City of Los Angeles and had been working in the West Valley Division for 12 years.   For the past three and a half years, he was assigned to the gang enforcement detail, specifically to the CPA gang.

Officer Diaz testified that, during 2006 prior to the incident, CPA activities included assaults with firearms, shooting at occupied dwellings and occupied vehicles, and attempted murders.   He personally participated in 15 investigations of these types of crimes perpetrated by CPA from June through December 2006.   Among the area gangs CPA considered rivals was the Original Valley Gangsters, whose members were primarily Black.

Officer Diaz testified that CPA members often drew gang symbols as graffiti on buildings in the neighborhood where the incident occurred.   Some of the graffiti included the letters “NK,” which indicated that they killed Black people.

According to Officer Diaz, in 2006, the most prevalent CPA activities against Black people were shootings.   While some of the victims were members of other gangs, some were not.   In the course of investigating crimes against Black people, the officer questioned a number of CPA members and asked if they had something against Black people.   The officer testified that the CPA members used derogatory terms to describe Black people and said they did not like them.   He observed that “some of that can be regarding they feel that Black people may be infringing or trying to come into their territory and taking it over.”

Officer Diaz also testified that prior to the incident, the Sheriff's Department had disseminated information to gang units throughout Los Angeles that the CPA members were operating under an order to attack Black people.   The prosecutor asked Officer Diaz to “[a]ssume there is an order on the street from members of the Canoga Park Alabama to commit acts of violence against random Black people.   Are the members of the gang, in your opinion, expected to follow that order?”   Officer Diaz answered, “Yes.”

B. Defense

On November 11, 2006, at 4 p.m., Griselda Crespo was on Owensmouth Avenue.   She saw a red car coming out of the alley, driving very fast.   The driver was a “White young guy, curly hair, blue eyes.”   She lived in Canoga Park and had seen Cabrera several times in the neighborhood.

Cabrera's twin sister, Analaura Cabrera, has never known Cabrera to wear his hair in a ponytail, and he did not do so in November 2006.   She had lived in Canoga Park but had never heard of the CPA gang and denied that Cabrera was a member of the gang.

Taquan Stewart (Stewart) was a teacher at Canoga Park High School in 2006.   He was affiliated with a high school group known as The United Colors Group.   Several students of different races were involved in the group, including Romero-Luna.   Stewart was aware that the CPA gang was generally considered to be racist against Black people.   He only recently learned that Romero-Luna was a member of CPA.

Dr. Robert Shomer, a forensic psychologist, testified as an identification expert.   He opined that even in the multi-racial societies of today, cross-racial identifications are difficult.   Dr. Shomer also opined that stress significantly decreases the reliability of eyewitness identification of a stranger and that other specified factors could decrease reliability.

DISCUSSION

A. Gang Expert Testimony by Officer Diaz

Defendants claim that their constitutional rights were violated by Officer Diaz's testimony that high-ranking CPA gang members ordered lower-ranking members to attack Black people, that gang members were expected to follow the order and, as evidence of CPA's racial hostility against Black people, that CPA gang members wrote “NK” as part of the gang's graffiti to indicate that they killed Black people.   We disagree.

It is well-established that a gang expert properly may give testimony regarding the culture and habits of criminal street gangs and may render an opinion in response to a hypothetical question based on facts the expert was asked to assume.  (Evid.Code, § 801;  People v. Gonzalez (2006) 38 Cal.4th 932, 946;  People v. Gardeley (1996) 14 Cal.4th 605, 617-618.)   “Evidence of the defendant's gang affiliation-including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like-can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.  [Citations.]”  (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)   In a case, such as this one, involving the gang enhancement, various types of evidence related to gang membership are relevant to the charged offense and admissible, in that they have greater probative value than prejudicial effect.  (Evid.Code, § 352;  Hernandez, supra, at p. 1049.)

A gang expert may base an opinion upon hearsay, including conversations with gang members, as well as “ ‘the expert's personal investigation of past crimes by gang members and information about gangs learned from the expert's colleagues or from other law enforcement agencies.’ ”  (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.)   If asked to explain the basis for his opinion, the gang expert may relate the information and sources the expert relied on in order to form his opinion.  (Id. at p. 1209.)   A gang expert may base an opinion on matter that is of a type that reasonably may be relied upon by experts in forming their opinion upon the subject of their testimony because the culture and habits of gangs are deemed matters which are “sufficiently beyond common experience that the

Officer Diaz's testimony about the CPA gang order to attack Black people was the type of testimony an expert is allowed to give, in that the testimony included his opinion and the sources of information upon which he based his opinion, whether or not the sources would otherwise be deemed to be hearsay.   (People v. Gardeley, supra, 14 Cal.4th at pp. 617-618;  People v. Thomas, supra, 130 Cal.App.4th at pp. 1209-1210.)   Defendants nevertheless claim that the statement was inadmissible hearsay and its admission violated their constitutional right of confrontation.

Defendants assert that, pursuant to Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177], the fact that the officer's testimony is admissible under the Evidence Code does not make it admissible under the confrontation clause (U.S. Const., 6th Amend.).   In Crawford, the Supreme Court held that the confrontation clause is not dependent upon the law of evidence and applies of its own force to out-of-court statements introduced at trial.  (Crawford, supra, at pp. 50-51.)   The court stated, however, that “not all hearsay implicates the Sixth Amendment's core concerns.”  (Id. at p. 51.)   The confrontation clause applies to a hearsay statement if it is “testimonial” in nature.  (Ibid.)

Defendants maintain that Officer Diaz's testimony regarding the CPA order to attack Black people was testimonial and therefore violated their rights under the confrontation clause.   The People counter that the testimony was not testimonial in nature, in that it was not offered to establish the guilt or innocence of defendants, that is, to implicate directly either defendant;  rather it was offered to provide a motive for the group in which defendants were members to engage in attacks on Black people.

For confrontation clause purposes, a testimonial statement is one “ ‘made for the purpose of establishing or proving some fact.’ ”  (Crawford v. Washington, supra, 541 U.S. at p. 51.)   The statement regarding the CPA order, to which Officer Diaz testified, was not made for the purpose of proving a fact, such as that the order existed.   Rather, it was made to alert law enforcement as to potential criminal activity.   Accordingly, it was not the type of hearsay to which the confrontation clause applies.  (Ibid.)

As to Officer Diaz's opinion that CPA members would be expected to follow the order to commit acts of violence against random Black people, defendants claim that the officer's testimony constituted an impermissible opinion on their mental state, in violation of their rights to due process and a fair jury trial.

As defendants assert, a gang expert may not give an opinion on an individual's mental state.  (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-659;  People v. Nunn (1996) 50 Cal.App.4th 1357, 1364.)   In Killebrew, the gang expert opined that “when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun.”  (Killebrew, supra, at p. 652, fn. omitted.)   The court held that admission of the opinion was improper in that, under the facts of the case, the testimony was the only evidence of essential elements of the crime charged and, therefore, amounted to an opinion as to the defendants' subjective knowledge and intent with respect to the guns involved.  (Killebrew, supra, at p. 658.)   The California Supreme Court later explained that the Killebrew holding is to be read narrowly “as merely ‘prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.’  [Citations.]”  (People v. Gonzalez, supra, 38 Cal.4th at p. 946, fn. omitted.)

The facts in the instant case distinguish the questioned testimony by Officer Diaz from the testimony of the gang expert in Killebrew.   First, Officer Diaz did not purport to be testifying as to the knowledge or intent of either Cabrera or Romero-Luna.   Second, the officer's testimony was not the only evidence of any element of the crimes charged.   There were several witnesses who testified from personal knowledge regarding defendants' actions during the incident.   Further, the question to which the officer responded was the type of question an expert witness is permitted to answer-a hypothetical question, asking the officer to assume certain facts and render an opinion.   (Evid.Code, § 801;  People v. Gonzalez, supra, 38 Cal.4th at p. 946;  People v. Gardeley, supra, 14 Cal.4th at pp. 617-618.)

Defendants also assert that admission of Officer Diaz's testimony about CPA's racial hostility against Blacks violated their federal and state due process rights.   Specifically, they argue that racial animosity was not an element of the crimes charged, making evidence of racial animosity irrelevant and therefore inadmissible.  (Evid.Code, §§ 210, 350, 351.)

At the pretrial motion in limine proceedings, defense counsel objected to the gang expert being allowed to give testimony about the racial animosity of CPA against Black people.   The trial court overruled the objections on the basis that such testimony was relevant to motive.

A gang expert may properly testify about a gang, its “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, supra, 103 Cal.App.4th at pp. 657-658.)   Officer Diaz's testimony thus was properly admitted to prove motive.

In addition, defendants contend that the testimony should have been excluded under Evidence Code section 352 as being more prejudicial than probative.²  We disagree.

“The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.”  (People v. Karis (1988) 46 Cal.3d 612, 638.)   Rather, the prejudicial evidence referred to in Evidence Code section 352 is “ ‘evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.   In applying section 352, “prejudicial” is not synonymous with “damaging.” ’  [Citation.]”  (Ibid.) The testimony of Officer Diaz regarding the negative attitude of the CPA gang against Black people was “relevant, highly probative evidence” of the motive for the attack on the victims.   It had much more than a “ ‘very little effect on the issues.’ ”  (Ibid.) We conclude that the trial court did not abuse its discretion in admitting the testimony.

Lastly, defendants assert that CPA gang members could have, and should have, been called as witnesses to testify regarding the information Officer Diaz presented in the questioned testimony.   Defendants argue that CPA gang members had personal knowledge of the matters, and defendants' attorneys could have confronted them about the veracity and accuracy of the information.   Inasmuch as Officer Diaz's testimony was admissible on the subject, it was not required that the prosecution present testimony by CPA members as well.

B. Photographic Lineup Identification

Defendants claim that the photographic lineup identifications were unreliable and violated their constitutional rights to due process.   They claim that the identification process was unduly suggestive, in that before showing witnesses the two photo six-packs, Detective Moreno told the witnesses that he believed that the potential suspects might be in the photographic lineup.³

Defendants do not dispute that, at trial, they made no objection to the admission of the identifications.   It is well-settled that, “ ‘ “in the absence of a specific and timely objection in the trial court” ’ ” to the admission of evidence, a defendant is deemed to have forfeited the issue on appeal.   (People v. Williams (2008) 43 Cal.4th 584, 620;  accord, People v. Partida (2005) 37 Cal.4th 428, 433-435;  see also Evid.Code, § 353.)   They therefore contend that they were denied the effective assistance of counsel by the failure to object to the identification evidence.   We disagree.

“To secure reversal of a conviction for ineffective assistance of counsel, a defendant must establish that counsel's performance fell below an objective standard of reasonableness and that, to a reasonable probability, defendant would have obtained a more favorable result absent counsel's shortcomings.   (Strickland v. Washington (1984) 466 U.S. 668, 687-694 [104 S.Ct. 2052, 2064-2068, 80 L.Ed.2d 674].)”  (People v. Kraft (2000) 23 Cal.4th 978, 1068.)   Generally, we defer to trial counsel's tactical decisions when reviewing a defendant's claim of ineffective assistance of counsel.  (People v. Ray (1996) 13 Cal.4th 313, 349.)

As the California Supreme Court has stated, “[a]n appellate court's ability to determine from the record whether an attorney has provided constitutionally deficient legal representation is in the usual case severely hampered by the absence of an explanation of an attorney's strategy.”  (People v. Weaver (2001) 26 Cal.4th 876, 955.)  “If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.  [Citation.]”  (People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069.)

In this case, the record does not show why defendants' trial counsel made no objection to the evidence.   In pretrial motion in limine proceedings, however, one of the attorneys raised an objection about the photo six-packs, but only to the prosecutor's use of them during his opening statement.   This shows that both attorneys had the opportunity to consider whether to object to the photographic lineup identification evidence and raises an inference that there was some tactical reason for their failure to object at trial.   Accordingly, we reject defendants' claims of ineffective assistance of counsel with regard to the evidence and conclude that defendants' forfeited their claims of unconstitutionally unreliable identification by the failure to object at trial.  (People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069.)

In any event, there is no evidence that the photographic lineup identification process was so suggestive as to warrant reversal of the judgment against either defendant.   The standard of review applicable to a claim that an identification procedure was unduly suggestive is de novo.  (People v. Kennedy (2005) 36 Cal.4th 595, 608, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.)  “In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (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 the witness to view the suspect at the time 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.  [Citations.]”  (People v. Cunningham (2001) 25 Cal.4th 926, 989.)  “Moreover, there must be a ‘substantial likelihood of irreparable misidentification’ under the ‘ “ ‘totality of the circumstances' ” ’ to warrant reversal of a conviction” on the ground of an unreliable identification procedure.  (Id. at p. 990, quoting Manson v. Brathwaite (1977) 432 U.S. 98, 104-107 [97 S.Ct. 2243, 53 L.Ed.2d 140].)

Defendants have segregated Detective Moreno's statement from the totality of his testimony regarding the photographic lineup identification process he conducted.   His testimony was that he telephoned the witnesses to schedule a meeting for the identification process and that he had “two separate photographs to show them believing these might be the potential suspects.”

While Detective Moreno's words could lend themselves to the inference that he told the witnesses by telephone that he was going to show them one photograph of each of two people he believed might be potential suspects, his testimony shows that this did not occur.   When the detective met with the witnesses, he showed the witnesses twelve-not two-photographs, each of a different person.   He also gave the standard admonition for photographic lineups:  “This group of photographs may or may not contain a picture of the person who committed the crime now being investigated.”   That the detective believed the photographs might be potential suspects is consistent with the admonition.   He did not express any certainty that the assailants were pictured in the lineup.   The statement of his belief is also consistent with the reasonable inference that a witness could be expected to draw if a detective calls the witness to set up a meeting to look at photographs, that is, that the photographs would include the photograph of a person the police had reason to suspect was the assailant.   Defendants do not claim that Detective Moreno did anything to draw the witnesses' attention to their specific photographs among the twelve he showed them.   We conclude that defendants have failed to show how, considering the totality of the circumstances, the detective's single statement created a substantial likelihood of irreparable misidentification.  (People v. Cunningham, supra, 25 Cal.4th at pp. 989-990.)

C. Detective Moreno's Testimony Regarding Prior Criminal History

Defendants contend that, through Detective Moreno's testimony, the prosecution improperly introduced evidence of prior bad acts that impugned the character of each defendant, in violation of Evidence Code section 1101.   Subdivision (a) of section 1101 provides that evidence of a person's character is inadmissible to prove his conduct on a specific occasion.

The detective's testimony on which defendants base their claim is his answer to the prosecutor's inquiry about how Detective Moreno had gone about putting the photographic lineups together, “meaning, where did you get the photographs from?”   The detective responded, “From our criminal history files, our computers,” and continued by giving details of the process of preparing the photographic lineups using the computer.   As the People point out, Detective Moreno's subsequent testimony provided the context for his reference to use of criminal history files.   The detective explained that he obtained a photograph of each defendant and put one defendant's photograph in one six-pack and the other defendant's photograph in a second six-pack.   Detective Moreno testified:  “The other people are persons who have some type of criminal history that are in our database․”  It is therefore clear that he did not testify that defendants had criminal histories.

Moreover, defendants did not object to the testimony, forfeiting the issue on appeal.  (Evid.Code, § 353;  People v. Williams, supra, 43 Cal.4th at p. 620;  People v. Partida, supra, 37 Cal.4th at pp. 433-435.)   Inasmuch as the testimony was not objectionable, there was no ineffective assistance of counsel in the failure to object.  (People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069.)

D. Detective Moreno's Hearsay Testimony Linking Defendants to Each Other and to the Red Car

Defendants contend that Detective Moreno gave hearsay testimony linking them to the red car and that his statement was of such damaging prejudicial character as to constitute grounds for a mistrial.   Defendants claim that, although the trial court ordered the testimony to be stricken and admonished the jury to disregard it, the prejudicial effect could not be cured.   We disagree.

Before making the specific statement in question, Detective Moreno testified that Robinson told him that Cabrera, “from the sunroof of the red sports car, came on out with a shotgun and fired ․ at them.”   Then, in response to the prosecutor's inquiry about how the detective went about developing suspects to put in the photographic lineup, Detective Moreno said:  “Yeah, [I] received information from a fellow officer that two days before, on the night of the shooting, that ․ Cabrera[ ] was actually driving that car and that he hangs out with ․ Romero-Luna․”  It is undisputed that the statement was inadmissible multi-level hearsay.⁴

Counsel for each defendant objected.   Romero-Luna's counsel asked the court to give a limiting instruction to the jury and the opportunity to cross-examine the witness regarding the response.   Cabrera's counsel asked for a mistrial on the ground that “[y]ou can't unring the bell” of the highly prejudicial hearsay statement.   After denying defense counsels' requests, the court struck Detective Moreno's statement and admonished the jury not to consider it.

Subsequently, out of the presence of the jury, Romero-Luna's counsel expressed a desire to revisit the detective's testimony.   The court stated that the issue had been settled and would not be litigated again.   Later, Cabrera's counsel told the court that he was withdrawing his objection to Detective Moreno's statement and his related motion for a mistrial.   The court noted that, in the absence of an objection, “there's nothing for me to rule on.”

The result is that Cabrera did not preserve the issue for appeal, but rather forfeited it.  (Evid.Code, § 353;  People v. Williams, supra, 43 Cal.4th at p. 620;  People v. Partida, supra, 37 Cal.4th at pp. 433-435.)   When the court granted the motion of Romero-Luna's attorney by striking the statement and admonishing the jury to disregard it, the result was Romero-Luna no longer had a basis for raising the issue on appeal.

In any event, the trial court admonished the jury to disregard the testimony, and we presume the jury was able to follow this admonition.  (People v. Holt (1997) 15 Cal.4th 619, 662;  People v. Delgado (1993) 5 Cal.4th 312, 331.)   In light of the identification of defendants from the photographic lineups, we cannot say that the testimony was so prejudicial that the admonition was insufficient to cure any harm.

E. Detective Moreno's Testimony About Cabrera's Demeanor

Cabrera contends he was prejudiced by Detective Moreno's testimony that he had been in police custody on other occasions.   Detective Moreno testified that, prior to the shootings, Cabrera was “uncooperative if we had him in custody, mouthy.”   The prosecutor asked Detective Moreno if he had contact with Cabrera that “wasn't some sort of custodial situation or arrest situation.”   Moreno said he had not.

Cabrera's counsel did not object to Detective Moreno's testimony.   This forfeits the issue on appeal.  (Evid.Code, § 353;  People v. Williams, supra, 43 Cal.4th at p. 620;  People v. Partida, supra, 37 Cal.4th at pp. 433-435.)

Cabrera further contends that Detective Moreno gave extremely prejudicial testimony suggesting Cabrera looked guilty and, as a result, Cabrera was denied a fair trial.   Detective Moreno testified that when he saw Cabrera on the street a day or two after the incident, Cabrera gave him “the deer-in-the-headlights look.”   Cabrera's counsel objected.   At his request, the court struck the statement and admonished the jury to disregard it.   When asked to describe Cabrera's demeanor, Detective Moreno said, “He looked at me like he knew he was wanted for something.”   Cabrera's counsel again objected.   At his request, the court struck the statement and admonished the jury to disregard it.   Detective Moreno then testified that Cabrera ran when Moreno saw him.

Cabrera's contention fails, in that the challenged testimony was stricken and the jury was admonished to disregard it.  “When a trial court sustains defense objections and admonishes the jury to disregard the comments, we assume the jury followed the admonition and that prejudice was therefore avoided.”   (People v. Bennett (2009) 45 Cal.4th 577, 595.)   Moreover, the admissible testimony that Cabrera ran when he saw Detective Moreno had the same effect as the stricken testimony, creating an inference of guilt, and negating the probability of prejudice from the stricken evidence.

F. Cabrera's Claim of Ineffective Assistance of Counsel Regarding Ponytail Evidence

Cabrera asserts that his trial counsel failed to present available evidence of a significant distinction between a witness's description of the shooter as having a ponytail and Cabrera's appearance-with no ponytail-and that counsel's “fumbling” behavior in handling the omission undermined the credibility of Cabrera's case with the jury.   As a result, he claims, he was deprived of the effective assistance of counsel.   We disagree.

As we previously noted, “[t]o secure reversal of a conviction for ineffective assistance of counsel, a defendant must establish that counsel's performance fell below an objective standard of reasonableness and that, to a reasonable probability, defendant would have obtained a more favorable result absent counsel's shortcomings.  [Citation.]”  (People v. Kraft, supra, 23 Cal.4th at p. 1068.)   In view of the identification of Cabrera by multiple witnesses, there is no basis to conclude that, “to a reasonable probability,” the outcome of the trial would have been more favorable had it not been for counsel's “fumbling” with regard to the ponytail evidence.  (Ibid.) Cabrera therefore was not deprived of the effective assistance of counsel by his counsel's handling of the evidence.  (Ibid.)

G. Romero-Luna's Claim on His Presentence Custody Credits

The People agree with Romero-Luna that the trial court should have credited him with one additional day of actual presentence custody credit, 868 instead of 867, and, as a result, his total presentence custody credit should be increased from 997 to 998.   A defendant is entitled to actual presentence custody credit for both the date of the arrest and the date of sentencing. (§ 4019;  People v. Smith (1989) 211 Cal.App.3d 523, 527.)   The trial court acknowledged that Romero-Luna was arrested on November 18, 2006, and was sentenced on April 3, 2009.   When Romero-Luna's actual presentence custody days are counted, including both the day of his arrest and the day of his sentencing, the result is 868, and his total presentence custody credit is 998.   The judgment must be modified accordingly.  (Cf. People v. Avila (1999) 75 Cal.App.4th 416, 424.)

H. Cumulative Error

Defendants contend that the trial court's evidentiary errors combined with Detective Moreno's improper testimony and the errors and omissions of defendants' trial counsel cumulatively deprived defendants of their constitutional right to due process and require the reversal of the judgments against them.  (U.S. Const., 5th & 14th Amends.;   Cal. Const., art.   I, § 15.)   We disagree.

Where a defendant has “sustained virtually none of his claims of error,” there is “no cumulative deficiency in the trial proceedings sufficient to support reversal on that basis.”  (People v. Hawthorne (1992) 4 Cal.4th 43, 79.)   As this is the case here, we reject defendants' claims of cumulative error.

DISPOSITION

The judgment against Cabrera is affirmed.   The judgment against Romero-Luna is modified to give him credit for one additional day of actual custody, for a total of 868 days of actual custody, and total presentence custody credit of 998 days.   As so modified, the judgment is affirmed.   The clerk of the court is directed to prepare a corrected abstract of judgment and to forward a copy thereof to the Department of Corrections and Rehabilitation.

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise identified..  FN1. All further statutory references are to the Penal Code unless otherwise identified.

FN2. Evidence Code section 352 provides:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”.  FN2. Evidence Code section 352 provides:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

FN3. On direct examination by the prosecutor, Detective Moreno testified that he telephoned Robinson and told him that he was going to meet him at his place of employment and he had “two separate photographs to show them believing these might be the potential suspects.”   On cross-examination, Romero-Luna's attorney asked Detective Moreno:  “Didn't you just tell this jury that you told [Robinson and Green] that the suspects that you believed were involved in this crime were going to be in those six-packs?”   The detective responded “Yes, I did.”.  FN3. On direct examination by the prosecutor, Detective Moreno testified that he telephoned Robinson and told him that he was going to meet him at his place of employment and he had “two separate photographs to show them believing these might be the potential suspects.”   On cross-examination, Romero-Luna's attorney asked Detective Moreno:  “Didn't you just tell this jury that you told [Robinson and Green] that the suspects that you believed were involved in this crime were going to be in those six-packs?”   The detective responded “Yes, I did.”

FN4. Out of the presence of the jury, Cabrera's counsel informed the court there were several layers of hearsay involved.   He explained that Detective Moreno gave information which Officer Ornelas had told him, that Officer Ornelas had obtained the information when he interviewed another suspect, Rodrigues, who told Officer Ornelas that he had obtained the information from a person named Ricky..  FN4. Out of the presence of the jury, Cabrera's counsel informed the court there were several layers of hearsay involved.   He explained that Detective Moreno gave information which Officer Ornelas had told him, that Officer Ornelas had obtained the information when he interviewed another suspect, Rodrigues, who told Officer Ornelas that he had obtained the information from a person named Ricky.

PERLUSS, P. J. WOODS, J.