People v. Nevarez CA3

Filed 2/9/24 P. v. Nevarez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C097543

Plaintiff and Respondent, (Super. Ct. No. 19FE020709)

v.

ERICK NEVAREZ,

Defendant and Appellant.

Defendant Erick Nevarez was convicted of premeditated attempted murder for the benefit of a criminal street gang. On appeal, he contends (1) insufficient evidence supports the predicate offenses used to prove the gang enhancement and (2) his counsel was ineffective for failing to object to hearsay testimony given by the gang expert. We affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND Defendant’s appeal pertains to the evidence regarding the predicate offenses supporting the gang enhancement. We thus do not recite facts relevant only to the attempted murder conviction and nongang-related allegations. During trial on defendant’s attempted murder offense and nongang-related allegations, defendant admitted to being a member of the Varrio Gardenland gang, a subset of the Norteño criminal street gang, at the time of the offense. Subsequently, the jury found defendant guilty of attempted murder and found true allegations that he acted with premeditation, used a deadly weapon, and inflicted great bodily injury. Defendant contemplated admitting the remaining gang allegation; specifically, that he committed the attempted murder for the benefit of the Varrio Gardenland Norteño criminal street gang. Defendant decided, however, to proceed with a court trial on the gang allegation to preserve future appellate rights regarding potential legislative changes. In light of proceeding with a court trial, defense counsel waived the applicability of hearsay restrictions to the gang expert’s testimony, such as those announced in People v. Sanchez (2016) 63 Cal.4th 665, including to the expert’s testimony that was relevant to “the history of the gang, including the predicate offenses.” Counsel indicated he knew the prosecution was capable of calling qualified witnesses to testify about the predicate offenses and that he was the attorney on one of the cases. The prosecution called Sacramento Police Detective John Sample as its gang expert. Detective Sample testified about the Norteño criminal street gang; specifically, that all subsets of the Norteño gang share similar objectives and philosophies, including maintaining their neighborhoods free of rival gang members. Further, “[r]espect is very important,” as is loyalty and family. Typically, Norteño gang members arm themselves with firearms, but Detective Sample has seen them use baseball bats, sticks, knives, brass knuckles, and vehicles as weapons. Primary activities of the Norteño gang are drug sales, illegal weapons possession, and the commission of robberies, shootings, and murders.