Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF111876, Christian F. Thierbach, Judge.
Blumenthal Law Offices and Jeffrey A. Aaron for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Stephanie H. Chow, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, J.
A jury found defendant and appellant, Michael David Calzada (hereafter defendant), guilty as charged of attempted murder with premeditation and deliberation in violation of Penal Code sections 664/187, subdivision (a) (count 1); shooting from a motor vehicle in violation of section 12034, subdivision (c) (count 2); mayhem in violation of section 203 (count 3); and street terrorism, i.e., being an active participant in the Hillside Rivas, a criminal street gang, in violation of section 186.22, subdivision (a) (count 4). The jury also found true the special allegations in connection with counts 1 through 3 that defendant personally discharged a firearm and caused great bodily injury (§§ 12022.53, subd. (d) & 1192.7, subd. (c)(8)), was a principal in the commission of the crime (§ 12022.53, subds. (d) & (e)(1)), and committed the crime for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)). After denying defendant’s motion for a new trial, the trial court sentenced defendant to serve a term of 15 years to life on count 1, with a consecutive term on the firearm enhancement of 25 years to life, and an additional consecutive term of 10 years on the gang enhancement. The trial court stayed execution of the sentences imposed on the remaining counts.
All further statutory references will be to the Penal Code unless otherwise indicated.
In this appeal, defendant raises various issues that challenge the admissibility or sufficiency of the evidence the prosecutor presented to prove the criminal street gang charge alleged in count 4, and to prove the criminal street gang enhancements alleged in connection with counts 1, 2, and 3. Defendant also purports to separately challenge the trial court’s order denying his motion for a new trial. We conclude defendant’s claims all lack merit and therefore we will affirm the judgment.
Although defendant challenges the admissibility and significance of the evidence presented at trial, the pertinent facts are undisputed. Therefore, we take the pertinent factual details from the parties’ respective briefs.
On July 23, 2003, in the mid-afternoon, a dark-colored Honda Accord drove past 16-year-old Paul Mungia, a member of 18th Street (a street gang based in Los Angeles) as he stood in the front yard of the house where he lived with his grandparents and various other family members, including his mother and sisters. According to Mungia, the person in the right rear passenger seat of the Honda pointed a gun out the car window and fired several shots that hit Mungia in the face and right arm. Mungia testified that he had seen the Honda a few minutes before the shooting, while he was riding in a van that was taking him home from school. When the van stopped at a red light, the Honda pulled up on the left side. Mungia recognized two of the three people in the Honda—the front passenger, Juan Ortega, whom Mungia knew as Daffy and a member of a gang called Hillside or Hillside Rivas, and the right rear passenger, defendant, whom Mungia knew as Flaco. While waiting at the red light, Mungia, defendant, and Ortega threw gang signs and flipped each other off.
The driver of the van testified, in pertinent part, that the street in question was one lane in each direction and that the Honda was on the other side of the intersection.
Ortega was also charged in this case. He and defendant were tried at the same time but with separate juries. Ortega is not a party to this appeal.
Mungia’s sister, Lydia, testified, in pertinent part, that on the afternoon in question, she was standing behind her brother in the front yard when she saw a gray car come down the street. There were three people in the car. The person in the back seat held a gun out the window, and fired about five shots, after which her brother fell to the ground. Lydia ran to him while also screaming for someone in the house to call 911. Lydia’s boyfriend, Enrique Cano, also saw the shooting and testified in pertinent part that the shots came from a handgun held out the window and fired by the right rear seat passenger.
Cano also stated that Mungia had gotten a gun from inside the house and was holding it down by his side while he stood in the yard waiting for the Honda to drive up. Mungia was just raising the gun, when Cano saw shots fired from the car. According to Cano, the people in the car “were faster than him” and Mungia was shot. One of Mungia’s sisters hid his gun so that the paramedics and police would not find it.
Paramedics took Mungia to a hospital where he underwent surgery. When he regained consciousness two days later, Mungia could not walk or move his right arm. After a two-week stay in the hospital, Mungia went to a rehabilitation hospital where he learned to walk again.
Additional evidence pertinent to the issues in this appeal will be recounted below.
DISCUSSION
We first address defendant’s claim that the trial court erred in admitting certain gang evidence at trial.
1.
GANG EVIDENCE ADMISSIBILITY
Over defendant’s various objections, which included hearsay, relevance, and undue prejudice, the trial court permitted the prosecutor to present evidence that (1) defendant’s brother Peter Calzada is a Hillside Rivas member and has numerous tattoos that depict his gang affiliation; (2) defendant’s name is included in a list, or roll call, of Hillside Rivas members painted on a wall in Nichols Park; (3) song lyrics found in the bedroom of a known Hillside Rivas member included references to Paul Mungia and pledged retaliation against him for his part in cooperating with the prosecution of this case; and (4) Enrique Cano had an encounter with defendant before the shooting in which defendant was in the company of known Hillside Rivas members. Defendant contends in this appeal that the noted evidence is irrelevant, or otherwise inadmissible, and in any event unduly prejudicial, and therefore the trial court abused its discretion in admitting that evidence at trial. We disagree, for reasons we now explain.
A trial court has broad discretion in determining the relevance and thus the admissibility of evidence. (People v. Scheid (1997) 16 Cal.4th 1, 14.) Similarly, under Evidence Code section 352, a trial court “in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . .” Accordingly, on appeal we review the trial court’s rulings on those issues for abuse of discretion. (People v. Scheid, supra, at p. 20.)
A. Evidence of Defendant’s Brother’s Gang Affiliation
In a pretrial motion defendant moved to exclude evidence regarding the gang affiliation of his older brother, Peter, a self-admitted Hillside Rivas member. The prosecutor argued that evidence regarding crimes Peter had committed was admissible to establish the so-called predicate crimes required to be proved as part of the street terrorism charge alleged in count 4. The trial court agreed, with one exception, and overruled defendant’s objection.
In order to prove the section 186.22, subdivision (a) street terrorism charge, the prosecutor had to prove, among other things, that gang members engaged in “a pattern of criminal gang activity,” also sometimes referred to as the predicate crimes. The quoted phrase is defined in section 186.22, subdivision (e), and “means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [the crimes specified in subsections (1) –(35)], provided at least one of these offenses occurred after the effective date of [the statute] and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.”
The exception was evidence that Peter Calzada had been convicted of intimidating a witness in violation of section 136.1. The trial court found that the evidence Peter had committed that crime a year after the shooting at issue in this case was unduly prejudicial to defendant and therefore the trial court excluded evidence of that conviction under Evidence Code section 352.
Defendant contends that the challenged evidence was not relevant to prove defendant was a gang member, or to support the prosecutor’s purported theory that defendant was competing with his brother and as part of that competition committed the shooting at issue in this case. We agree with defendant. The defect in defendant’s argument, however, is his assertion that the prosecutor relied on the evidence for either of the noted improper purposes. The record on appeal does not support defendant’s claim.
In his closing argument, the prosecutor pointed out that Peter Calzada, defendant’s older brother and a known member of Hillside Rivas, had been convicted of burglary in March of 2002, a crime that is one of the predicate offenses that must be proved as an element of the street terrorism charge. The prosecutor cited defendant’s 2003 auto theft conviction as the other predicate crime. The prosecutor also argued that defendant actively participated in Hillside Rivas, and knew that “the members do bad things” because his brother Peter is “a walking billboard for this organization,” as a result of the many gang tattoos Peter has on his body (as depicted in a photograph admitted into evidence). In the course of arguing that defendant shot Paul Mungia in order to promote, further, or assist in felonious criminal conduct by members of Hillside Rivas (yet another element of the street terrorism crime), the prosecutor commented that defendant’s “specific intent is to promote or further Hillside. His Big Man Stock is rising. I killed Paul Mungia. Outdid my older brother.” In short, the prosecutor did not argue that the jury could find defendant was a gang member based on evidence that defendant’s brother was a gang member. Accordingly, we conclude the trial court did not abuse its discretion by admitting evidence that defendant’s brother was a member of Hillside Rivas and had been convicted of burglary in 2002.
Among his many tattoos, Peter apparently has “HSR” tattooed on the back of his head. Detective Gary Toussaint, the gang expert, testified, in pertinent part, that those initials stand for Hillside Rivas. Although defendant describes this evidence as “highly prejudicial and inflammatory,” he does not challenge its admissibility in this appeal, presumably because he did not object to the evidence in the trial court.
We also agree with defendant’s assertion that gang evidence is inadmissible to show defendant’s criminal disposition or bad character and thus to create an impermissible inference that defendant committed the charged crime. (See, e.g., People v. Albarran (2007) 149 Cal.App.4th 214, 223.) Unlike People v. Albarran, in this case gang evidence was relevant and therefore properly admitted to prove the street terrorism charge and the gang enhancements.
B. Evidence of Gang Graffiti
During the testimony of Detective Toussaint, who testified as a gang expert, the prosecutor presented a photograph taken in July 2000 (Exhibit 11) of graffiti on a wall in Nichols Park that depicted the name of the gang, Hillside Dukes Inland Empire Riverside, as well as the names of various individuals, including Coco and Flaco. The detective had testified that Nichols Park is well-known Hillside Rivas territory and that Coco is the gang name, or moniker, of defendant’s brother Peter, and Flaco is defendant’s gang moniker. According to the prosecution’s offer of proof, Detective Toussaint would testify that the graffiti is a roll call, i.e., a list of gang members. Defendant objected to the evidence on the grounds that it was unduly prejudicial, and in any event lacked a proper foundation because there was no way to know whether the name Flaco referred to defendant. The trial court overruled both objections, and found that whether the Flaco listed on the roll call was defendant went to the weight rather than the admissibility of the photograph. Detective Toussaint relied in part on the roll call as the basis for his opinion that defendant is Flaco, and Flaco is a member of Hillside Rivas, a criminal street gang.
Defendant contends the trial court erred in admitting the photograph of the roll call graffiti, first because it is hearsay, and second because it is irrelevant and unduly prejudicial. Defendant did not assert either the hearsay or relevance objections in the trial court, and therefore may not raise those objections on appeal. “A party desiring to preserve for appeal a challenge to the admission of evidence must comply with the provisions of Evidence Code section 353, which precludes reversal for erroneous admission of evidence unless: ‘There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made.’” (People v. Morris (1991) 53 Cal.3d 152, 187, overruled on other grounds in People v. Stansbury (1995) 9 Cal.4th 824.) Accordingly, the only issue we will address is whether the trial court abused its discretion under Evidence Code section 352.
Although defendant asserts that the evidence is unduly prejudicial, he does not argue the point other than to assert, “There is no legitimate connection between the graffiti to [defendant’s] alleged gang membership some three years after the writing was destroyed. Once again, we have [defendant] linked to gang membership solely by his relation to his brother, Peter.” Defendant’s argument does not demonstrate that the trial court abused its discretion in ruling that the probative value of the roll call evidence outweighed its prejudicial effect. Moreover, defendant’s assertion is incorrect. As previously discussed, the link between defendant and the Hillside Rivas criminal street gang does not depend on defendant’s relationship to his brother. That link is established by the photograph that depicts defendant’s gang moniker, the name of the gang, and the monikers of other known gang members, including defendant’s brother, written on a wall in a park known to be the territory of that gang. That evidence, along with other evidence we recount below in our discussion of defendant’s challenge to the sufficiency of the evidence, supports an inference that defendant is a member of Hillside Rivas.
C. Evidence of Rap Song Lyrics
During trial, the prosecutor sought to introduce rap song lyrics recovered by the police in 2005 during a search, unrelated to this case, of the bedroom of a 15-year-old known member of Hillside Rivas. The lyrics, which defendant sets out in their entirety in his opening brief, begin with the refrain, “Ye we some street banging thugs ye we shooting them slugs and we slanging them drugs leave your ass filled in blood,” and also include the apparent chorus, “U don’t want to come to Nichols park after dark we be shooting them slugs.” In arguing their relevance and admissibility, the prosecutor represented to the trial court that the lyrics, among other things, talk about shooting people, and refer to Nichols Park as an area claimed by Hillside. The prosecutor also stated that the song mentions Mungia (referred to in the lyrics by his gang moniker, Midget) crying to the district attorney after Hillside shot him. The prosecutor asserted that Detective Toussaint would testify the lyrics recount the primary activities of Hillside Rivas.
Defendant objected that the lyrics are hearsay, that they lacked foundation, and that the probative value was substantially outweighed by their potential for undue prejudice. The trial court failed to rule on the hearsay objection, but overruled defendant’s other objections. In the trial court’s view, defendant’s foundation objection went to the weight not the admissibility of the song lyrics. As a result of the trial court’s ruling, Detective Toussaint testified, in pertinent part, that the song lyrics were among the items he considered in forming his opinions in this case that Nichols Park is Hillside Rivas territory, that the primary activities of Hillside Rivas include violent crimes, and that Hillside Rivas takes action against rival gangs that come into their territory.
Defendant challenges the trial court’s ruling, arguing that the prosecutor failed to lay the proper foundation, and in any event, the lyrics are hearsay if offered to prove the primary activities of Hillside Rivas. We will not address the hearsay objection because, as previously noted, the trial court did not rule on that issue. To comply with Evidence Code section 353, a defendant must not only object, but must also pursue a ruling on the objection. Absent a ruling the issue is not preserved for review on appeal. (People v. Ramos (1997) 15 Cal.4th 1133, 1171 [“Because the trial court did not rule on his objections in limine, [defendant] ‘was obligated to press for such a ruling and to object to [the evidence] until he obtained one. He failed to do so, thus depriving the trial court of the opportunity to correct the potential error.’”].)
On appeal we review a trial court’s ruling on a lack-of-foundation objection to the introduction of evidence for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 207.) The trial court did not abuse its discretion by admitting the rap song lyrics into evidence at trial. The prosecutor established a sufficient foundation through the testimony of Detective Toussaint who explained, as previously noted, that the police found the lyrics in the bedroom of a 15-year-old known member of Hillside Rivas. Other details regarding the provenance of the song lyrics were matters for the jurors to consider in deciding what weight they should give that evidence.
D. Enrique Cano’s Prior Encounter with Defendant
Defendant made a motion to exclude the testimony of Enrique Cano that before the shooting at issue in this case, he was walking through Nichols Park when defendant and several other known Hillside Rivas members asked Cano “where he’s from” and Cano responded that he is not a gang member. Defendant argued that Cano’s testimony should be excluded because he did not mention this incident to law enforcement at the time of the shooting, and consequently the “probative affect [sic] is meaningless, is nothing.” Moreover, defendant argued that Cano’s testimony regarding his prior encounter with defendant “would be very prejudicial in front of the jury just by virtue of his having made that claim” and because in defendant’s view the trial court is “a gatekeeper, and [the court] doesn’t have to allow incompetent and inadmissible or extremely biased evidence in.” The trial court found that defendant’s objection raised an issue of credibility, i.e., whether Cano was telling the truth, and that such an issue must be resolved by the jury. Accordingly, the trial court denied defendant’s motion to exclude Cano’s testimony.
Defendant asserts that the trial court abused its discretion, but he does not articulate the precise basis for his claim. We assume defendant’s omission is due to the fact that he did not make a specific or precise objection in the trial court, and instead generally argued that Cano’s testimony was not credible. The trial court correctly found that credibility issues are to be resolved by the jury and for that reason denied defendant’s motion. The trial court did not abuse its discretion, defendant’s contrary and cursory claim otherwise.
Defendant also asserts that at the very least the trial court could have given “limiting instructions.” Defendant did not request such an instruction in the trial court nor does he describe in his argument the limit that the trial court should have placed on the evidence. For these reasons we will not address the assertion.
E. Expert Testimony
As a separate issue, defendant contends that the trial court wrongly admitted expert opinion testimony because that testimony was based on incompetent hearsay and was also substantively inadequate. Defendant did not object in the trial court to the adequacy of the foundation for Detective Toussaint’s opinions. Therefore, he may not raise the objection for the first time on appeal. (People v. Morris, supra, 53 Cal.3d at p. 187.) Moreover, defendant is incorrect in his view that Detective Toussaint was not competent to express an opinion in this case because he did not know details about Hillside Rivas such as the hierarchy of the gang, and how membership decisions were made. Those facts, along with the detective’s apparent lack of knowledge regarding the number and type of crimes committed by Hillside Rivas members in 2003 all go to the validity, or weight, of the opinions Detective Toussaint expressed in this case.
2.
SUFFICIENCY OF THE EVIDENCE
The charges against defendant, as previously noted, include a street terrorism charge in violation of section 186.22, subdivision (a), as alleged in count 4, and also include enhancements under section 186.22, subdivision (b) alleging that defendant committed the charged crimes for the benefit of a criminal street gang. In order to prove the substantive offense and the enhancements, the prosecutor had to present evidence to show, among other things, that Hillside Rivas is a criminal street gang. Section 186.22 defines a criminal street gang as “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 [specified felonies including, assault with a deadly weapon, possession of controlled substances for sale, burglary, and auto theft] 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.” (§ 186.22, subds. (f), (e)(1), (4), (11), (25).)
A. Primary Activities Evidence
Defendant contends that the evidence in this case is insufficient to show the “primary activities” of Hillside Rivas and, therefore, fails to prove that Hillside Rivas is a criminal street gang. To support his claim, defendant relies on In re Alexander L. (2007) 149 Cal.App.4th 605, in which the gang expert, when asked to describe the primary activities of the gang at issue in that case, responded, “‘I know they’ve committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’” (Id. at p. 611.) Noting that the quoted testimony was the only evidence on the issue, and that the expert did not offer specific details, nor did he “directly testify that criminal activities constituted [the gang’s] primary activities” (In re Alexander L., supra, at pp. 611-612), and in any event the testimony lacked an adequate foundation (id. at p. 612), the court held that the evidence was insufficient to prove the gang in that case was a criminal street gang within the meaning of section 186.22. (In re Alexander L., supra, at pp. 613-614.)
In this case, Detective Toussaint expressed the opinion, based on his six and one-half years in the gang unit, as well as on his many hours of training, that the primary activities of Hillside Rivas included drug and narcotics violations, robberies, assaults with a deadly weapon, and drive-by shootings, the latter evidenced by the incident at issue in this case as well as by reports of previous drive-by shootings at the same location. The detective also stated that he based his opinion in part on police reports he reviews in order to gather information about specific gangs. In addition, Detective Toussaint testified that his method of gathering gang information, in general, includes personal contact with gang members, review of information compiled by other officers and included field identification cards, and review of police reports prepared by other officers. That testimony not only is sufficient to establish the primary activities of Hillside Rivas, but it also reveals the basis for Detective Toussaint’s opinion, and thereby distinguishes this case from In re Alexander L. In our view, the evidence in this case is akin to that in People v. Martinez (2008) 158 Cal.App.4th 1324, in which two of the three justices who decided In re Alexander L. held that the expert’s direct testimony regarding the primary activities of the gang, combined with his testimony regarding his experience investigating gang crimes, which included personal conversations with gang members and reviews of reports, was sufficient to establish the foundation for the expert’s opinion, and thus to prove the primary activity of the gang in that case. (People v. Martinez, supra, at pp. 1329-1330.)
B. Active Participant Evidence
Defendant also challenges the sufficiency of the evidence to prove he was an active participant in Hillside Rivas. The substantive crime of street terrorism alleged in count 4, requires the prosecutor to present evidence to show that defendant “actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and . . . willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.” (§ 186.22, subd. (a).) “A person need not be a gang member to be guilty of violating section 186.22(a). [Citation.] But he or she must have had more than a nominal or passive involvement with the gang, knowing of the gang’s pattern of criminal activity, and must have aided and abetted a separate felony committed by gang members. [Citation.]” (In re Jose P. (2003) 106 Cal.App.4th 458, 466; see also People v. Castenada (2000) 23 Cal.4th 743, 752.)
As defendant acknowledges, Detective Toussaint expressed the opinion, based on his training, his personal knowledge about defendant, and information provided by other officers, that defendant was a member of and an active participant in Hillside Rivas. Defendant does not dispute that evidence, and therefore acknowledges that there was evidence to show that he used the nickname Flaco, that the name Flaco appeared on the roll call painted on the wall in Nichols Park, and that the police had contact with defendant on three separate occasions in which he was in the company of other known members of Hillside Rivas. The earliest of those contacts occurred on October 17, 2002, when defendant was in Nichols Park with three other active members of Hillside Rivas. The second contact occurred on May 25, 2003, when a Riverside City Police officer arrested defendant and Vincente Ortega for theft of an automobile. Detective Toussaint testified that he was aware that Vincent Ortega is a documented member of Hillside Rivas. The third contact occurred on August 15, 2003, in connection with the crime that is the subject of this case. At the time of that contact, which also occurred in Nichols Park, defendant was “with Vincente Ortega and a subject by the name of Vasquez, who are both admitted documented members of Hillside Riva [sic] gang.”
According to defendant, the evidence regarding the October 17, 2002, incident showed that he was in the park with two other people only one of whom was a known gang member. Defendant’s description of the evidence is incorrect. Detective Toussaint testified, as set out above, that defendant was in Nichols park with three people all of whom were gang members.
In challenging the sufficiency of the above noted evidence to establish defendant’s active participation in Hillside Rivas, defendant points out that the prosecutor did not present evidence to show that defendant had gang tattoos, or that he had admitted membership in Hillside Rivas, or that his gang moniker, Flaco, was included on a police field identification card of known gang members. Defendant also notes that in People v. Salcido (2007) 149 Cal.App.4th 356, the prosecutor presented more extensive evidence of the defendant’s gang participation.
Defendant has not demonstrated that the evidence presented in this case was insufficient to support the jury’s implied finding that defendant was an active participant in Hillside Rivas; he has shown only that other evidence also would support that implied finding. Moreover, People v. Salcido, supra, did not address sufficiency of the evidence. The issue in that case was instructional error, in particular, whether the trial court had correctly instructed the jury on the crime of street terrorism. In short, we reject defendant’s suggestion that only evidence of the type presented in People v. Salcido is sufficient to prove active participation in a criminal street gang. We conclude the evidence presented in this case is also sufficient to support the jury’s implied finding that defendant was an active participant in Hillside Rivas, and therefore guilty of the crime of street terrorism, in violation of section 186.22, subdivision (a), as alleged in count 4.
3.
NEW TRIAL MOTION
Defendant filed a motion for new trial in this case asserting four purported grounds on which such a motion should be granted: (1) that the trial court erroneously admitted gang evidence at trial, in particular photographs of defendant’s brother that revealed his numerous gang tattoos and the rap song lyrics; (2) that defendant’s vision was impaired during trial as a result of which he had difficulty seeing objects and people in court; (3) that the evidence was insufficient to convict; and (4) that there might have been juror misconduct because after trial, when defense counsel asked the jurors “what single factor convinced you to vote guilty (or words to that effect), a number of jurors indicated that the defendant’s lack of an alibi was the major reason.” Following a hearing at which defendant, among other things, asked the trial court to release the jurors’ personal information in order for defendant to investigate the misconduct claim, the trial court denied defendant’s new trial motion, a ruling defendant challenges in this appeal.
“On appeal, a trial court’s ruling on a motion for new trial is reviewed for abuse of discretion. [Citation.] Its ruling will not be disturbed on appeal ‘“unless a manifest and unmistakable abuse of discretion clearly appears.” [Citation.]’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1159-1160.) We have previously addressed defendant’s challenges to the admissibility of the gang evidence and to the sufficiency of the evidence presented a trial. Therefore, we will not address those two issues again. Instead, we conclude for the reasons previously discussed that the trial court did not abuse its discretion when it denied defendant’s new trial motion based on defendant’s gang evidence and sufficiency of the evidence claims.
Defendant’s assertion that he was unable to see clearly at trial due to a persistent vision problem also did not compel the trial court to grant defendant a new trial. Defendant acknowledged in his motion that the trial court had made three orders directing that defendant be examined by an optometrist but those orders were never carried out. Nevertheless, defendant did not complain at any time during trial that he was unable to see the evidence or the witnesses. If defendant had done so, the trial court stated that it “probably would have had to order that the exhibit be brought up to [defendant] for close examination.” Because defendant did not complain during trial that he was unable to see witnesses and/or evidence, we must conclude that the trial court did not abuse its discretion by denying defendant’s motion for new trial on this ground.
The trial court also rejected defendant’s final claim that the jurors might have engaged in misconduct as evidenced by the purported statements regarding the lack of alibi evidence. Defendant argued in the trial court as he does on appeal that the statement discloses the possibility that the jury believed defendant had to prove his innocence. In denying defendant’s motion for new trial, the trial court stated that it viewed the jurors’ statements regarding the lack of an alibi as “a comment on the state of the evidence rather than a[n] expression that the juror expects the defendant to prove something.” The trial court noted, “This jury was instructed repeatedly by me that the defense does not have to prove anything, but the burden of proof rests entirely on the shoulders of the Prosecution, and that the standard of proof is proof beyond a reasonable doubt. So, I think the comments you attribute to the jurors is [sic] more of a lay expression of their assessment of the strength, or lack thereof, of the defense.” We agree with the trial court’s interpretation of the comment and therefore once again conclude that the trial court did not abuse its discretion by denying defendant’s motion for new trial.
Because we agree with the trial court’s finding that the statements regarding the lack of an alibi do not necessarily disclose juror misconduct, we must also conclude that the trial court did not abuse its discretion in denying defendant’s request for disclosure of personal identifying information about the jurors. Defendant did not establish good cause for the disclosure of that information. (See Code Civ. Proc., § 237, subd. (b).)
In summary, we conclude that defendant did not demonstrate grounds for a new trial. Therefore, the trial court did not abuse its discretion by denying defendant’s new trial motion.
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Richli, J.