Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. F406958, John A. Trice, Judge
Gilbert W. Lentz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Douglas L. Wilson, Deputy Attorney General, for Plaintiff and Respondent.
A jury found Abiel Arthur Ayala guilty of willful, deliberate and premeditated first degree murder. (Pen. Code, §§ 187, subd. (a)/189.). The jury also found that Ayala personally used and intentionally discharged a firearm causing great bodily injury. (§ 12022.53, subd. (d).) The jury was unable to reach a verdict, however, on the allegation that the murder was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) Ayala admitted he served two prior prison terms. (§ 667.5, subd. (b).) The court dismissed the gang enhancement allegation at the request of the prosecutor.
All statutory references are to the Penal Code unless otherwise stated.
Ayala challenges the admissibility of certain gang related evidence. We affirm.
FACTS
Ayala was a member of the Nipomo 13 gang. Luis Medina was also a member. Ayala's brother, Angel, reported to Ayala that he heard Medina was furnishing drugs to "Little Jesse." Little Jesse's father is a gang member. Ayala told Angel he would take care of it.
On November 20, 2006, Ayala obtained a handgun from Robert Ramirez, another gang member. Later that day, Ayala drove to a motel with his girlfriend, Olivia Robles. Robles waited in the car as Ayala went into a room at the motel. In the room were fellow gang members, Nathan Padilla and Medina.
Ayala and Padilla went into the bathroom. Ayala told Padilla that Medina was no good. He said Medina threatened "Lalo, " a fellow gang member, with a gun. Padilla defended Medina. He told Ayala to ask Medina about the incident. Ayala walked out of the motel room without asking.
Ayala returned to the car. He and Robles drove south. After driving for about 10 or 15 minutes Ayala said, "[f]uck it, " and made a u-turn. Ayala told Robles they were going back to the motel.
Both Ayala and Robles went into the motel room. Padilla and Medina were there. Ayala confronted Medina about threatening a fellow gang member with a gun. Medina denied he did it, and blamed another person named "Lito."
Ayala told Medina, "Let's go for a ride." Ayala told Robles to wait in the motel room. Ayala and Medina went to the car. Robles decided to retrieve her purse from the car's front passenger seat.
When Robles arrived at the car, she saw Ayala sitting in the driver's seat. The door was open, and he was facing out with his feet on the ground. Medina was standing nearby talking with Ayala.
Robles grabbed her purse from the front passenger seat, and began walking back to the motel room. As she was passing the rear of the car, she heard two gunshots. She looked back and saw Medina on the ground with Ayala standing a few feet away. She did not see a gun. Inside the motel room, Padilla heard the gunshots. He looked outside, and saw Ayala holding a gun in his hand.
Robles, not knowing what else to do, got into the passenger seat of the car. Ayala got into the driver's seat, and began driving away. After going a short distance, Ayala stopped the car. He got out, and Robles heard another shot. Ayala returned to the car and resumed driving. They drove around while Ayala ingested drugs. Eventually, they arrived in Santa Maria in the early morning hours. During the drive, Ayala told Robles he shot Medina because "any guy sets up one of his good friends is no good." Ayala also told his brother Angel that he killed Medina.
Padilla, a member of the Nipomo 13 gang, testified. He said the gang requires its members to treat each other with respect. Selling drugs to a child of a fellow gang member or threatening a fellow gang member is considered disrespectful. Being disrespectful can lead to punishment by physical violence.
Probation Officer Robert Kraft testified he had particular knowledge of the Nipomo 13 gang from his training and contact with gang members. The gang is an ongoing organization with 136 documented members. Its primary activities are drug sales, assaults with deadly weapons and robberies. Crimes committed by the gang include robbery, burglary, felon in possession of a firearm, attempted vehicle theft, drug possession, and assault causing great bodily injury. Kraft opined the murder was for the benefit of the gang. Ayala obtained the gun from a fellow gang member and the murder showed the gang policed itself.
Robert Ramirez, the person from whom Ayala obtained the gun, denied being a Nipomo 13 gang member. A search warrant executed at his residence almost two years after the murder revealed various items showing his gang membership. The items included photographs of Ramirez with other Nipomo 13 gang members.
Defense
Erica Estrada testified she was a friend of Angel Ayala. Four or five weeks after the shooting, Angel told her it was he who shot Medina. He said he shot him because he was selling drugs to children.
DISCUSSION
I
Ayala contends the trial court abused its discretion in admitting irrelevant and prejudicial gang evidence.
The evidence to which Ayala objects consists of poster boards with multiple pictures of gang members displaying tattoos. Some of the gang members pictured had no relation to the crime. Other photographs pictured gang graffiti and gang paraphernalia. Ayala particularly objected to photographs of evidence found in the search of Robert Ramirez's residence almost two years after the crime. This evidence included stolen guns, a significant amount of cocaine, cash, gang graffiti, and pictures of uncharged gang members showing tattoos and displaying gang signs.
Gang evidence is not admissible where its sole relevance is to show a defendant's criminal disposition or bad character. (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) Gang evidence is admissible, however, where it is relevant to show motive, intent, or some other fact concerning the charged offenses. (People v. Williams (1997) 16 Cal.4th 153, 193.)
Ayala does not object to all gang evidence. For example, he does not object to the testimony of gang expert, Robert Kraft. He only objects to photographs showing uncharged gang members, their tattoos, gang signs and clothing, as well as stolen guns and cocaine found in Ramirez's residence two years after the murder.
Ayala was charged with a gang enhancement pursuant to section 186.22, subdivision (b)(1). Subdivision (f) of that provides: "As used in this chapter, 'criminal street gang' means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity."
The pictures of uncharged members showing similar tattoos and gang signs are relevant to prove the Nipomo 13 gang is an organization of three more persons having a common identifying sign or symbol. In addition, photographs taken from Ramirez's residence showed he is a member of the gang. Ayala obtained the gun he used to shoot Medina from Ramirez. Thus the evidence was relevant to show the shooting was committed for the benefit of or in association with a criminal street gang. Finally, the pictures of drugs and weapons support Kraft's testimony that the gang is involved in criminal activities.
Ayala argues that even if the pictures are relevant, the trial court abused its discretion in refusing to exclude them under Evidence Code section 352. That section gives the trial court the discretion to exclude evidence where its probative value is substantially outweighed by the probability its admission will require an undue consumption of time, or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
Ayala complains the gang members look menacing in the photographs. But Ayala does not claim the photographs paint a false picture. Nor are the photographs particularly shocking. The people in the photographs look like what they are, members of a street gang. The photographs are not unduly prejudicial.
Ayala's reliance on People v. Albarran (2007) 149 Cal.App.4th 214, is misplaced. There a jury found the defendant guilty of offenses relating to shooting at an occupied dwelling. The jury also found a gang enhancement pursuant to section 186.22 to be true. The trial court determined that the gang enhancement was not supported by sufficient evidence, and granted a new trial on the enhancement only. The Court of Appeal reversed with instruction to the trial court to grant a new trial on all charges. The court determined that gang evidence was irrelevant, cumulative and created a substantial risk of undue prejudice. (Albarran, supra, at p. 228.)
In Albarran, the gang expert testified the victim and defendant were members of different gangs, but that the victim's gang did not have any known rivalries. People v. Albarran, supra, 149 Cal.App.4th at p. 227.) The expert also conceded he did not know the exact reason for the shooting, and conceded there was no direct evidence that specifically linked the defendant's gang to the crime. (Id. at p. 220.) Under the circumstances, if the gang evidence had any relevance at all, it was clearly outweighed by its potential for prejudice.
Here, in contrast, there was evidence that the shooting was gang related. When Angel complained to Ayala that Medina was furnishing drugs to the son of a fellow gang member, Ayala said he would take care of it. In addition, Ayala confronted Medina about threatening a fellow gang member. Padilla, a member of the gang, testified that the gang requires its members to treat each other with respect. Selling drugs to a child of a fellow gang member or threatening a fellow gang member is considered disrespectful. Being disrespectful can lead to physical punishment. Under the circumstances, the gang evidence was more probative than prejudicial.
Ayala argues that the gang evidence he objected to has a tendency to confuse the issues. This is simply another reiteration of his argument that the evidence was unduly prejudicial. He points to nothing in the record to show the trial court abused its discretion in determining the probative value of the evidence outweighed the possibility of confusion.
Ayala argues the gang evidence required an undue consumption of time. His argument appears to encompass the time consumed by all the gang evidence. But he does not challenge all the gang evidence, only certain photographs. He does not show that the introduction of the photographs required an undue consumption of time.
Finally, Ayala argues the evidence was cumulative. He points out that he offered to stipulate that Nipomo 13 is a street gang.
But a defendant may not stipulate his way out of the full evidentiary force of the People's case. (Old Chief v. United States (1997) 519 U.S. 172, 186-187; People v. Waidla (2000) 22 Cal.4th 690, 723, fn. 5.) Nor is the photographic evidence to which Ayala objects so cumulative as to show an abuse of discretion.
The judgment is affirmed.
GILBERT, P.J.
We concur: YEGAN, J.; PERREN, J.