Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF158409, Darryl B. Ferguson, Judge.
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, J.
A jury found appellant Salvador DeJesus guilty of mayhem and assault with a firearm, along with attendant enhancements, including intentional discharge of a firearm and commission of the offenses for benefit of a criminal street gang. He was acquitted of attempted murder. The trial court sentenced appellant to state prison for a total term of 39 years to life: the midterm of four years for mayhem plus enhancement terms of 25 years to life and 10 years to life respectively for the firearm and gang enhancements. Sentence on the assault with a firearm was stayed. On appeal, he claims jury selection error, improper admission of various items of evidence, insufficient gang evidence, prosecutorial misconduct and cumulative error. We affirm.
FACTS
On the morning of January 20, 2006, Salvador Bocanegra looked out his bedroom window on Burke Street in Visalia and saw appellant and 13-year-old J. walking down the street. Appellant and J. were walking in the same direction about three to five feet apart. Appellant was walking in front of J. At some point, appellant pulled out a.44-caliber revolver, turned, and shot J. in the left arm or shoulder. J. fell down. Appellant took a step forward, and then shot J. in the other shoulder. Appellant then ran away from the scene. J. sustained a bruised sternum and significant injuries to both of his arms. Physicians removed a fragment from a large caliber bullet from his left arm. After the shooting but before the arrival of officers, Jay Yoshida, a Housing Authority maintenance worker, approached J., who in anger said, “Stupid, why I wore these colors.” Before the arrival of an ambulance, J. told Visalia Police Officer Bryan Ferreira he thought he was shot because he was wearing a red shirt. J. complained of pain in his arm and chest and said he had been shot two times.
Bocanegra told Deputy Sheriff Tony Hallum that his view of the street and the two individuals was limited. Bocanegra also said he did not see anything in J.’s hands and Bocanegra did not believe appellant acted in self-defense. Bocanegra said he did not see any confrontation between J. and appellant before the shooting. Bocanegra conceded it was possible J. may have been “pestering” appellant.
Bocanegra said he associates with members of the Norteno criminal street gang. According to Bocanegra, Nortenos wear the color red and their rival street gang, the Surenos, wear the color blue. J. was wearing a white shirt over a red shirt at the time of the shooting. Bocanegra said “a little red” was visible despite the white shirt. J. also wore a black baseball cap bearing the word “Tulare.” Bocanegra did not believe the shooting of J. was gang related. After Bocanegra’s first day of trial testimony, someone broke the windshield of his car with a baseball bat. Appellant was in custody at the time.
Visalia Police Officer Nathan Flaws received a call that morning about shots being fired in the vicinity of Houston and Burke Streets. A short time later, he heard a call about a suspect running southbound toward Roosevelt Street. The call described the suspect as a Hispanic male dressed in dark clothing. Officer Flaws went to the intersection of Santa Fe and Roosevelt Streets and saw a subject dressed in dark pants and a dark jacket. The subject, later identified as appellant, was running toward a residence on the south side of Roosevelt.
Appellant ran southbound along the driveway of a home on East Roosevelt, scaled a cinderblock fence at the southern end of the parcel, and then ran into an open field. He next ran between two storage bins and proceeded westbound toward a chainlink fence. Law enforcement officers took him into custody as he attempted to scale the fence. Officers saw some freshly turned dirt between the two storage bins where appellant had been seen. Digging in that same soil, the officers found a.44-caliber revolver wrapped in a shirt. The revolver bore appellant’s fingerprint. According to Detective Randy Lentzner, the revolver had been reported stolen in 1994.
Visalia Police Officer Luma Fahoum testified about criminal street gangs during the prosecution’s case-in-chief. Officer Fahoum said Nortenos and Surenos are rival street gangs in the Visalia area. Nortenos identify with the color red and the number 14. Surenos identify with the color blue and the number 13. The Norteno gang dominates the vicinity of the shooting in the instant case. The Sureno gang dominates Farmersville and Linnell Camp.
Officer Fahoum said the two gangs are territorial and no insult between them goes unanswered. She explained it is risky for a single gang member to venture into the territory of a rival gang. Therefore, gang members generally travel in numbers to carry out acts of revenge or other violence. Fahoum noted a stolen weapon that comes into the possession of a gang member tends to stay in that member’s gang and fellow gang members may actually use the weapon.
Fahoum described past crimes of Sureno gang members. In one of those cases, Sureno member Albert Meek was in a van with other Sureno members on May 7, 2004. Meek said, “Get that buster,” and someone inside the van shot and killed a Norteno outside.
Officer Fahoum testified that “buster” is a derogatory term used by Surenos to describe Nortenos.
In Officer Fahoum’s opinion, appellant was an active Sureno gang member. She based this conclusion on a number of facts, including his tattoos depicting the number “13,” his past admissions of gang membership, and his 2002 altercation with a Norteno gang member at Mount Whitney High School. During that altercation, appellant said, “What’s up buster,” to the Norteno gang member. In Fahoum’s view, the victim, J., was a “wanna-be” Norteno associate, i.e., someone in the early stages of becoming a Norteno gang member.
Fahoum concluded the instant offense was gang related because it involved one gang member or associate firing a weapon at another gang member or associate. Although Fahoum acknowledged that a gang member may act lawfully in self-defense, she maintained appellant acted for the benefit of a criminal street gang in this case. The officer explained that appellant’s act against a Norteno gang associate made the Sureno gang more feared and elevated the status of appellant’s gang.
Defense
Appellant, age 20 at the time of trial, testified on his own behalf. Appellant said he had lived in Linnell Camp for 15 years and grew up with members of the Sureno gang. On the morning of January 20, 2006, appellant took a bus from Linnell Camp to Visalia to enroll in adult school. When he arrived in Visalia, he tried to locate a friend named Mario to help him with the enrollment process. Appellant did not know Mario’s last name, did not know Mario’s address, and had met Mario only a week before appellant dropped out of school. Appellant said he had not seen Mario in the several months that elapsed since the date he dropped out of school. Appellant was dressed in jeans and a black jacket when he arrived in Visalia. Under the jacket he wore a white shirt with black stripes. Appellant’s belt buckle bore the letter “S” and appellant said the initial stood for his given name, Salvador.
Unfamiliar with the area, appellant stepped off the bus and began walking. Appellant said three men approached him. Two of the three had shaved heads. One of the trio was dressed in a red shirt and black pants. A second member of the trio was wearing a checkered shirt. The third member, J., was wearing a black cap. J. was in front of his two companions. The three men started calling appellant a “fucking scrap,” a derogatory term used by Nortenos to describe Surenos. The trio also said, “[Y]ou’re on the wrong side, you’re going to die now.” At that point, appellant said J. drew a gun.
Appellant testified he grabbed the barrel of the gun, wrestled the gun away from J., and the gun fell to the ground. Appellant retrieved the weapon, pointed it at the trio, and then ran away. After running for about three blocks, appellant slowed down and began walking. He started “messing around” with the revolver and saw three bullets in the cylinder. A few minutes later he heard someone calling him “scrap.” Appellant turned around and saw J. again. According to appellant, J. caught up with him and said, “Scrap, where is my freaking gun at. I got another one. I’m going to blast you with this one.” Appellant said J. approached him and ultimately reached for his waist. At that point, appellant fired the weapon he had taken from J. earlier. J. fell down and screamed, “Freaking scrap, I’ll shoot you now.” Appellant responded by firing the weapon again. Appellant became frightened, ran away from the scene, and buried the weapon in the dirt in order to get rid of it. He admitted wrapping his shirt around the firearm before burying it because he was “trying to hide it.”
Additional Evidence
At the conclusion of the defense case, the court read the following to the jury, which it referred to as a stipulation: “On December 1, 2005, there was a shooting in Tulare County. Just prior to the shooting someone yelled ‘buster.’ Then the revolver, which is Exhibit 33 in this case, was used to shoot a Norteno gang member. There is no evidence whatsoever that the defendant was involved in that incident.”
Rebuttal
On January 20, 2006, Detective Lentzner conducted a brief, tape-recorded conversation with appellant. During the conversation, Lentzner asked what appellant was doing on Burke Street. Appellant said he was just walking around. When Lentzner asked appellant about the destination of his walk, appellant again said he was just walking around. Lentzner also asked whether appellant was going to someone’s house, but appellant claimed he was just walking around the area.
DISCUSSION
I. Jury Selection
Appellant contends the trial court erroneously denied his two motions under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258 after the prosecutor exercised peremptory challenges to two prospective jurors who were Hispanic.
The use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution (People v. Wheeler, supra, 22 Cal.3d at pp. 276-277), as well as the equal protection clause of the Fourteenth Amendment to the United States Constitution (Batson v. Kentucky, supra, 476 U.S. at p. 89; People v. Burgener (2003) 29 Cal.4th 833, 863). The exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal. (People v. Silva (2001) 25 Cal.4th 345, 385-386.)
A party who suspects improper use of peremptory challenges must raise a timely objection and make a prima facie showing that one or more jurors have been excluded on the basis of group or racial identity. Once a prima facie showing has been made, the prosecutor then must carry the burden of showing that he or she had genuine nondiscriminatory reasons for the challenge at issue. (People v. Jenkins (2000) 22 Cal.4th 900, 993.) At that point, the trial court must decide whether the opponent of the strike has proved purposeful discrimination. (People v. McDermott (2002) 28 Cal.4th 946, 971.)
The trial court’s ruling on this issue is reviewed for substantial evidence and with great restraint. (People v. McDermott, supra, 28 Cal.4th at p. 971.) We presume a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. (People v. Burgener, supra, 29 Cal.4th at p. 864.) In carrying out this obligation, the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s nondiscriminatory reason for exercising a peremptory challenge is being accepted by the court as genuine. This is particularly true where the prosecutor’s nondiscriminatory reason for exercising a peremptory challenge is based on the prospective juror’s demeanor or similar intangible factors while in the courtroom. (People v. Reynoso (2003) 31 Cal.4th 903, 919.)
During voir dire, prospective juror Velasco explained that she had a brother who was serving a sentence in the Bay Area and was a member of a prison gang. Prospective juror Cordero commented that she was in “a wimpy little gang” in Seattle when she was in the eighth grade but “[t]hat was before gangs were gangs,” and that she had a family member or a close friend who had been victimized by crime. Prospective juror Cisneros related that she, a family member, or a close friend had a bad experience with law enforcement. Prospective juror Gonzalez testified she was single, worked as a busperson at a restaurant, had no children, and had no prior jury service or involvement with law enforcement.
The prosecutor exercised peremptory challenges as to Velasco, Cisneros and Gonzalez. Defense counsel then made a Batson/Wheeler motion saying, “The prosecutor, [by] my account, has excused five jurors. Three of those five are Hispanic or at least of Hispanic surnames. They appear Hispanic to me.” The prosecutor responded: “Cisneros, her older brother was involved in a gang in LA. I’d prefer not to have people with any types of gangs on the jury.” He also explained:
“Ms. Velasco, her brother is involved in gangs I believe she said. And I believe she also indicated she visited him, did not want to have somebody with ties with gangs.
“Ms. Gonzalez, who was a single busser, no kids, no prior jury service, and the body language I felt from her was that she wasn’t very receptive to me.”
After the prosecutor offered these explanations, defense counsel pointed out that the prosecutor had asked no questions of Ms. Gonzalez. The court determined that there had not yet been shown a pattern of systematic exclusion of Hispanics.
Subsequent to that ruling, prospective juror Hernandez said he worked as a case manager for an organization called Friends Outside. He said the organization works with incarcerated inmates and that he was currently working at North Kern State Prison. Hernandez remarked he had previously served on a jury in a domestic violence case and that jury reached a verdict. Hernandez also said he had a brother who was a Kern County Probation Officer. With respect to prior experiences with law enforcement, Hernandez said a California Highway Patrol officer had issued him a ticket and Hernandez did not believe he deserved it. Hernandez said he went to court and won his challenge to the ticket.
The prosecutor accepted the jury while Hernandez was still on the panel. Following appellant’s exercise of additional peremptory challenges, the prosecutor exercised his sixth peremptory challenge to remove a prospective juror named Mendoza, who testified that he had a bad experience with law enforcement. After excusing a non-Hispanic prospective juror, the prosecutor exercised his eighth peremptory challenge to remove Hernandez.
At that point, the court and counsel retired to chambers and defense counsel renewed his Wheeler/Batson motion, noting the prosecutor had excused three more jurors, two of them Hispanic. The prosecutor noted Mendoza’s expression about law enforcement as his reason for excusing him. As to prospective juror Hernandez, the prosecutor explained his concern that Hernandez's prior service on a domestic violence trial was the type of case his office usually lost and that Hernandez, too, expressed a difference of opinion with law enforcement. The court was satisfied that the prosecutor stated a neutral and genuine basis to exclude Mendoza based on a police shooting of his gang-member brother by a police officer. It found the Hernandez dismissal to be a closer question, but was satisfied the challenge was appropriate because Hernandez “had a bad experience with law enforcement, and he took a case to trial, and he actually beat it. The court later ruled:
“Regarding the Wheeler issue, the steps that need to be taken, I believe that the totality of the circumstances raised an inference of discriminatory purpose. I do believe that. But I believe that the prosecutor’s explanations adequately explain the racial exclusion by offering permissible race-neutral justification for the strikes of those jurors. And so I think that there was not a showing of a purposeful racial discrimination purpose in excluding those jurors, just for the record.”
Appellant contends the trial court erroneously denied his motion as to prospective jurors Gonzalez and Hernandez. As to Gonzalez, a prosecutor may rely on “body language” in exercising peremptory challenges. (People v. Gonzalez (1989) 211 Cal.App.3d 1186, 1201, citing People v. Johnson (1989) 47 Cal.3d 1194, 1220.) For example, a prosecutor can lawfully peremptorily excuse a potential juror based on a hunch or suspicion, or because the prosecutor does not like the potential juror’s hairstyle, or because the prosecutor observed the potential juror glare at him or her or smile at the defendant or defense counsel. (People v. Reynoso, supra, 31 Cal.4th at pp. 924-925.) Reviewing courts should defer to the trial court’s determination of the validity of such an excuse. (People v. Gonzalez, supra, at p. 1201.)
Appellant nevertheless points out the prosecutor’s lack of elaboration in giving his reasons for excusing Gonzalez in the instant case. However, the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine. This is particularly true where the prosecutor’s race-neutral reason for exercising a peremptory challenge is based on the prospective juror’s demeanor, or similar intangible factors, while in the courtroom. (People v. Reynoso, supra, 31 Cal.4th at p. 919.) The trial court committed no error.
As to prospective juror Hernandez, appellant maintains there was “a lack of support in the record for the prosecutor’s suggestion that this prospective juror might harbor a bias against the prosecution.” In the instant case, Hernandez admitted a prior experience with law enforcement and characterized that experience as negative. The California Supreme Court has repeatedly upheld peremptory challenges based upon a prospective juror’s negative experiences with law enforcement. (People v. Turner (1994) 8 Cal.4th 137, 171.)
Appellant contends the mere fact the prospective juror contested a traffic ticket and prevailed does not suggest a bias against the prosecution. Under California law, there is a presumption that a prosecutor uses his or her peremptory challenges in a constitutional manner and reviewing courts give great deference to the trial court in distinguishing bona fide reasons from sham excuses. (People v. Turner, supra, 8 Cal.4th at p. 165.) The record in the instant case clearly established a specific, non-race-related reason why the prosecutor might want to excuse prospective juror Hernandez and reversal is not required. (People v. Bittaker (1989) 48 Cal.3d 1046, 1092.)
II. Victim’s Out-of-Court Statements
Appellant contends the trial court committed reversible error by admitting the victim’s hearsay statement that he was shot because he was wearing red clothing.
The victim, J., testified at appellant’s preliminary hearing but not at trial. Prior to trial, the prosecutor informed the court that J. had run away from his latest foster home placement. District Attorney Investigator Herman Martinez testified he actively attempted to locate J. since learning of his “run-away status” on March 14, 2007. After hearing a description of Martinez’s efforts to locate J., the court concluded the office of the district attorney failed to take sufficient steps to keep the minor victim from fleeing. As a result, the court refused to admit the testimony from the preliminary hearing transcript.
Defense counsel moved in limine for the prosecutor to instruct testifying officers not to mention anything said by the victim. The prosecutor advised the court that J. made statements immediately after the shooting and argued those statements constituted excited utterances. Defense counsel questioned the timing of the utterances, and the court conducted an Evidence Code section 402 hearing the following day. Officer Brian Ferreira testified that gunshot victim, J., was moaning, groaning, and complaining of chest and arm pain. Within five minutes of Ferreira’s arrival, J. said a Hispanic male shot him twice for an unknown reason. J. said he did not know the subject but believed he was shot because he was wearing a red shirt and was dressed as a gang member.
The prosecutor argued the statements were being offered to prove the victim’s state of mind rather than for the truth of the matter asserted. The prosecutor sought to prove the case was not one of self-defense. Defense counsel argued that the victim’s opinion as to whether the shooting was gang related was not relevant. Counsel noted that the court had already allowed the expert to say that J. was wearing a red shirt, so the victim’s opinion was irrelevant. Additionally, argued counsel, the evidence was prejudicial in stating a gang relationship beyond the point of probative value; the jury alone should decide if the act was gang related. The court expressed its view that the statement was relevant and probative concerning whether the victim entertained an aggressive state of mind going to the issue of appellant’s claim of self-defense. Upon the suggestion of the prosecutor, the court offered to exclude any gang reference in the statement. Defense counsel submitted the matter, and the court concluded,
“That’s a reasonable compromise, in my opinion. The only reason that he believes he would have been shot was he was wearing a red shirt. Because that does go to the state of mind.”
At trial, Officer Ferreira testified that appellant thought he was shot because he was wearing a red shirt. Jay Yoshida, a resident of the neighborhood where the shooting occurred, testified the victim spoke to him after he was shot saying he should not have worn red.
On appeal, appellant contends the evidence--J.’s statement that he was shot because he was wearing red--was irrelevant and improper opinion evidence. As to these claims, appellant’s briefs reflect a miscomprehension of the court’s ruling. In both his opening and reply briefs, appellant states that “his [J.’s] speculations as to the state of mind of the alleged shooter contributed nothing to the jury’s understanding of these observations.” The admissibility ruling of the court went to the state of mind of the victim himself, not the shooter, appellant. Consequently, the arguments appellant makes concerning relevance and opinion are wrongly premised.
In People v. Miron (1989) 210 Cal.App.3d 580, we held that the proponent of a purported spontaneous statement has the burden of establishing its admissibility, including its admissibility as a lay opinion. The trial court, in turn, has discretion in determining whether this burden is met and its ruling will not be disturbed on appeal unless the discretion was abused. (Id. at p. 583) A lay witness’s opinion is not generally admissible unless it is rationally based on the witness’s perception and helpful to a clear understanding of his or her testimony. (Ibid.) Similarly, the trial court has broad discretion in determining the relevance of evidence--that is, whether it logically tends to establish a material fact. (People v. Harris (2005) 37 Cal.4th 310, 337.) Here, the trial court did not abuse its discretion in determining that any opinion J. spontaneously expressed as to the reason he thought he was shot is an admissible opinion and relevant as to the speaker’s surprised, nonaggressive state of mind.
Appellant additionally claims this evidence violated his Sixth Amendment right to confrontation. The statements made here are not testimonial and thus not violative of appellant’s right to confrontation because the primary purpose in the giving and receiving of the statements was in dealing with the contemporaneous emergency of J. having just been shot twice. (People v. Cage (2007) 40 Cal.4th 965, 984.)
III. Previous Use of Same Firearm
Appellant contends the trial court committed reversible error by admitting evidence that the weapon in the instant case was used in a prior shooting perpetrated by Sureno gang members.
Prior to the opening statements, the prosecutor advised defense counsel that the weapon used in the instant case had been used in a 2005 homicide. The prosecutor had previously given defense counsel reports of the homicide and gave him Department of Justice results just before the opening statements. The prosecutor also advised defense counsel he did not intend to use the evidence relating to the history of the weapon. During his opening statement, defense counsel described an encounter that preceded the shooting: a scuffle occurred, a gun fell from J.’s waistband, and then appellant took the gun and ran away.
After the opening statements were completed, the prosecutor requested a sidebar discussion with the court and defense counsel. At that sidebar, the prosecutor stated he now intended to use the evidence and reports involving the history of the weapon because defense counsel described the weapon as “the victim’s gun” in his opening statement. According to the prosecutor, the reports indicated the shooter in the unsolved 2005 offense used the same gun when he went up to a Norteno gang member, said “Hey, buster,” and shot him. Defense counsel initially opposed the proposed use of evidence relating to the earlier offense. He said, “There’s no indication that it’s my client’s gun no more than it’s an indication it’s the victim’s gun.” In response to the court’s inquiry, the prosecutor explained the victim of the earlier firearm-related offense was a member of the Norteno gang. Detective Randy Lentzner added that the earlier offense occurred one-quarter mile away from the site where J. was shot. After hearing the arguments of counsel, the court reserved ruling on the admissibility of the evidence. The court advised the prosecutor, “In your case in chief I don’t want you to put it on. I’ll revisit that issue after I’ve heard the defense, so it would be rebuttal.”
Later in the proceedings, the court and counsel met outside the presence of the jury and the court advised counsel:
“I am going to allow the prosecutor to put on evidence regarding the use of this firearm in another crime involving an attack upon a Norteno. And that will be on rebuttal. I’m not going to allow it on the case in chief because there’s no evidence before the jury right now regarding, as was argued by Mr. Jackson on his opening statement, that this gun was initially in possession of the victim in this case, which would mean that it would be contrary to the fact that this gun was used against the previous assault against a Norteno.”
The court and counsel met subsequently to consider a stipulation about the use of the firearm in the prior offense. The court worded a stipulation with the assistance of both counsel but defense counsel ultimately stated the stipulation was over his objection insofar as it referred to the shooting victim as “buster” rather than as “a derogatory name for a Norteno.” At the conclusion of the defense case, the court advised the jury:
“Ladies and gentlemen, there’s been a stipulation entered into by the attorneys and the stipulation is this: On December 1, 2005, there was a shooting in Tulare County. Just prior to the shooting someone yelled ‘buster.’ Then the revolver, which is Exhibit 33 in this case, was used to shoot a Norteno gang member. There is no evidence whatsoever that the defendant was involved in that incident.”
Initially, we note the only portion of the court’s statement specifically objected to by appellant at trial was the use of the word “buster.” The record reflects that the parties collaborated in an effort to compose a full stipulation agreeable to both sides; in fact, appellant received the benefit of the court’s express statement that “[t]here is no evidence whatsoever that the defendant [appellant] was involved in that incident.”
On appeal, appellant contends this evidence about the firearm tended to undermine his claim that he took the gun away from J. and used it in self-defense; it was used to demonstrate the gun had previously been used to kill a Norteno gang member and invited the jury to speculate as to the whereabouts of the weapon between December 1, 2005 and January 20, 2006, as well as his possible involvement in the December 2005 shooting, which appellant describes as “perpetrated by a Sureno against a Norteno and someone yelled ‘Buster!’ in the course of the incident.” As a result, he claims the evidence was so prejudicial that he was denied due process and a fair trial.
Additional evidence included the testimony of the prosecution expert, Officer Fouham, that stolen weapons that found their way to a criminal street gang tended to stay with that gang and was shared by gang members. Officer Fahoum also testified that appellant used the term “Buster” on the campus of Mount Whitney High School in April 2002. The term “Buster” is an insult commonly used by Sureno gang members to refer to Norteno gang members. When these facts are taken together with the above statement of the court, it was not speculation, but rather a reasonable deduction, that the shooter in the first offense was not a Norteno gang member and that the weapon remained with a rival gang. The evidence had tendency in reason to disprove appellant’s claim that J. first possessed the firearm during the present incident and that appellant seized it from him.
Appellant nevertheless maintains the evidence was prejudicial to his defense. The 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. (Evid. Code, § 352.) Evidence is not “unduly prejudicial” under the Evidence Code merely because it strongly implicates a defendant and casts him or her in a bad light or merely because the defendant contests that evidence and points to allegedly contrary evidence. Rather, undue prejudice is a form of prejudice that tends to evoke an emotional bias against a party as an individual and has only slight probative value with respect to the issues of the case. (People v. Robinson (2005) 37 Cal.4th 592, 632.)
Here, the court specifically advised the jury “[t]here is no evidence whatsoever that the defendant was involved in that incident [of December 2005].” Thus, we cannot say the challenged evidence uniquely tended to evoke an emotional bias against appellant as an individual. Nor can we say the evidence had little effect on the issues, as it was clearly relevant to the credibility of appellant as a witness. (Evid. Code, § 210; People v. Harrison (2005) 35 Cal.4th 208, 229.) The evidence was not unduly prejudicial.
IV. Damage to Witness’s Vehicle During Trial
Appellant contends the prosecutor denied him due process and a fair trial by introducing evidence to show that Sureno gang members attempted to intimidate principal prosecution witness Salvador Bocanegra.
On redirect examination during the People’s case-in-chief, the prosecutor asked Bocanegra whether something had happened to him after his prior testimony. Bocanegra said someone used a baseball bat to smash the windshield of his car at about midnight. Bocanegra said the damage to his car discouraged him from cooperating with law enforcement but he returned to testify because he wanted to “see justice served.” Later in the proceedings, both counsel spoke to the court outside the presence of the jury. Defense counsel pointed out that he had “no clue” about the damage to Bocanegra’s vehicle. He noted his client had been in custody since the beginning of trial and there was no evidence to show that someone connected with appellant was involved in the damage to Bocanegra’s car. Defense counsel requested an in limine instruction to that effect and the court replied, “I’ll do that.”
The court subsequently instructed the jury: “We don’t know who hit that windshield, how it got broken. We only know that it was broken. And there’s nothing to indicate -- there’s no evidence the defendant was aware of that, had anything to do with that. The only reason it would be admitted, to the state of the mind of the witness during his testimony. Thank you.”
On appeal, appellant makes a multifaceted argument, contending (a) the testimony was inadmissible, highly inflammatory, and unduly prejudicial; (b) the vandalism of Bocanegra’s vehicle tended to underscore the gang-related nature of the charged substantive offenses; (c) the prosecutor engaged in manifest misconduct; and (d) defense counsel was ineffective by failing to move to strike the evidence or move for a mistrial.
As to the nature and weight of the evidence, a verdict shall not be set aside by reason of the erroneous admission of evidence unless there appears of record a timely, specific objection to or motion to strike or exclude the evidence. (Evid. Code, § 353.) The objection must fairly inform the trial court, as well as the party offering the evidence, of the objecting party’s specific reason or reasons for exclusion. In that way, the party offering the evidence can respond appropriately and the court can make a fully informed ruling. (People v. Geier (2007) 41 Cal.4th 555, 609.) Here, appellant never objected to the testimony or moved to strike it. Rather, he requested an in limine instruction, which the court gave to the jury. Appellant waived the evidentiary challenge by failing to object on a timely basis.
As to the conduct of the prosecutor, appellant did not object at trial to the misconduct he perceives on appeal. A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety. (People v. Thornton (2007) 41 Cal.4th 391, 454.)
As to the effectiveness of counsel, a defendant claiming ineffective assistance of counsel has the burden of showing: (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms and (2) counsel’s deficient performance resulted in prejudice. To establish prejudice, the defendant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In demonstrating prejudice, the defendant must carry his or her burden of proving prejudice as a demonstrable reality. The defendant may not simply offer speculation as to the effect of the errors or omissions of counsel. (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147.)
In some instances, the record on appeal does not shed light on why counsel acted or failed to act in the manner challenged. (People v. Pope (1979) 23 Cal.3d 412, 425.) “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.” (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) In the instant case, the record does not reflect why defense counsel requested an in limine instruction rather than interpose an evidentiary objection or motion to strike. Therefore, his contention is rejected.
Appellant has not cited and we have been unable to find any authority suggesting that defense counsel’s request for an in limine instruction was somehow less proficient than interposing an objection or motion to strike under the circumstances of the instant case. As recited above, that request was granted. A reviewing court must indulge a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance. (Strickland v. Washington (1984) 466 U.S. 668, 686.)
V. Eyewitness’s Opinion the Act Was Not in Self-Defense
Appellant contends the trial court committed reversible error when it allowed Salvador Bocanegra, the neighbor who witnessed the shooting of J., to testify that appellant did not act in self-defense.
A lay witness may testify to an opinion when it is rationally based on the perception of the witness and is helpful to a clear understanding of his or her testimony. (People v. Maglaya (2003) 112 Cal.App.4th 1604, 1608.) Lay opinion testimony is admissible where no particular scientific knowledge is required and where as a matter of practical necessity the matters perceived are either too complex or subtle to enable the matters accurately to be conveyed in another manner. (People v. Williams (1988) 44 Cal.3d 883, 915.) Generally, a lay witness may not give an opinion about another’s state of mind. However, a witness may testify about the objective behavior of another person and describe that behavior as being consistent with a certain state of mind. (People v. Chatman (2006) 38 Cal.4th 344, 397.)
Here, the matter at issue was the conduct of one party to an altercation that entailed a sequence of events and several extremely aggressive actions. Bocanegra’s statements were rationally based on his observations of the incident outside his bedroom window. The opinion was grounded in specific facts about the conduct he observed from inside his home. Under the circumstances, the trial court could reasonably conclude that this information was rationally based on the perceptions of the lay witness and helpful to a clear understanding of the witness’s testimony. The mere fact that Bocanegra’s opinion touched upon the ultimate basic issue of the case did not make it inadmissible. (Evid. Code, § 805.) Moreover, it is unlikely the jury misunderstood the statement as a conclusion of law regarding the presence or absence of self-defense due to the factual context in which the opinion was rendered. Rather, Bocanegra’s responses reasonably appeared to be descriptive of actions and were well within the competence of a lay witness. (People v. Maglaya, supra, 112 Cal.App.4th at p. 1609.) The trial court had broad discretion to permit this lay opinion testimony, and reversible evidentiary error did not occur. (People v. Clark (1970) 6 Cal.App.3d 658, 664.)
VI. Sufficiency of Gang Evidence
While evidence in the record includes appellant’s admissions that he is a Sureno street gang member, appellant contends the evidence was insufficient as a matter of law to support the finding that appellant intended to benefit a criminal street gang (Pen. Code § 186.22, subd. (b)(1)). He submits there was no evidence to show the shooting was committed at the direction of a criminal street gang. Rather, “[t]he prosecution’s evidence on the ‘gang’ allegation was, solely, that the shooter and the victim... were representatives, associates or members of rival street gangs.” In reviewing a criminal conviction for the alleged lack of evidentiary support, an appellate court must review the whole record in the light most favorable to the judgment.
A reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact. A recitation of only defendant’s evidence is not the demonstration contemplated under this rule. If defendants contend some particular issue of fact is not sustained, they are required to set forth in their brief all of the material evidence on the point and not merely their own evidence. The reviewing court is not called upon to make an independent search of the record where this rule is ignored. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283.) In the instant case, appellant’s opening brief includes the applicable law and a summary of the evidence favorable to his position. However, appellant studiously ignores all evidence to the contrary. Although an appellant is not permitted to evade or shift his responsibility in this manner, we will briefly address the substance of his evidentiary contentions.
The appellate court must determine whether the record discloses substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) The appellate court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. If the circumstances reasonably justify the findings of the trial court, reversal is not warranted simply because the circumstances might also be reconciled with a contrary finding. The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact and not whether guilt is established beyond a reasonable doubt. (People v. Williams (1971) 5 Cal.3d 211, 214.)
The testimony of an expert witness may constitute sufficient evidence to show a particular crime was committed for the benefit of a criminal street gang with the requisite specific intent. (People v. Gardeley (1996) 14 Cal.4th 605, 619-620.) A reviewing court must view the evidence in the light most favorable to the People and presume in support of the judgment the existence of every fact reasonably deducible from the evidence. (People v. Jones (1990) 51 Cal.3d 294, 314.) The standard of review is the same in cases in which the People rely primarily on circumstantial evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.)
In the instant case, Officer Fahoum testified she had well over 200 contacts with Sureno criminal street gang members and had investigated somewhere between 30 and 50 cases involving Sureno gang members. As previously recited, she gave details as to the formation, customs and conduct of the Sureno gang.
Fahoum also gave details about the Norteno street gang and identified it as the rival of the Sureno gang. Fahoum said both gangs had been in Tulare County for about 30 years and Surenos dominated Linnell Camp in January 2006. According to Fahoum, gang members identify with their color of choice, but the latest trend is to wear it with subdued colors, so that the red or blue is paired with blue, black or other colors.
Officer Fahoum said gangs fight a lot over turf. She estimated there were 300 Sureno gang members and 1,000 Norteno gang members in the Visalia area in January 2006. She said the primary activities of the Sureno gang include grand theft auto, attempted murder, murder, shooting at inhabited dwellings, mayhem, and assault with a deadly weapon (often reusing the same weapons). The gang sees itself in a power struggle with the Nortenos, and members are viewed favorably when they shoot a rival gang member who has disrespected them; such a shooting “would strengthen the gang.”
Section 186.22, subdivision (b)(1) provides for punishment of any person convicted of a felony “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” From the sequence of events leading to the charged offenses and the testimony of Officer Fahoum, the jury could reasonably conclude that appellant shot J. with the specific intent to benefit the Sureno criminal street gang and to assist the Sureno gang in its criminal enterprise by establishing its dominance over the rival, numerically larger, Norteno gang.
Appellant contends the case of In re Frank S. (2006) 141 Cal.App.4th 1192 compels a different result. In Frank S., we held that crimes may not be found to be gang-related based solely upon a perpetrator’s criminal history and gang affiliations. We reversed a gang enhancement in Frank S. because “[t]he prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense.” (Id. at p. 1199.) In the instant case, appellant carried and used a firearm within the territory of the rival Norteno gang, and Officer Fahoum offered detailed expert testimony to explain how the Sureno gang would benefit from appellant’s criminal act.
Sufficient evidence supports the gang enhancement.
VII. Prosecutor’s Conduct
Appellant contends the prosecutor committed misconduct by unfairly suggesting that defense counsel was trying to deceive the jury by making several comments during cross-examination of appellant and closing argument.
The following exchange occurred on cross-examination of appellant:
“Q. [by Deputy District Attorney Zocchi:] Now, correct me if I’m wrong, your first defense that you were going to present was it wasn’t you, you weren’t the shooter, right?
“MR. JACKSON [defense counsel]: Objection, your Honor.
“THE COURT: Sustained. Where did that come from?
“MR. ZOCCHI: Well, if I can elaborate.
“THE COURT: No, approach the bench. (Whereupon, a discussion was held at the bench, off the record.)”
The following exchange occurred during the prosecutor’s closing argument:
“MR. ZOCCHI: Yes, your Honor. Let’s start with Salvador Bocanegra. Defense wants to make it seem like back a year and three months ago that Salvador Bocanegra was absolutely sure that the victim was pestering the defendant. No. He said may possibly have appeared and he said he was not sure. Okay, this is Salvador Bocanegra trying to make sense of a senseless situation that he just does not understanding. May have possibly, not sure. Is this something that Salvador Bocanegra would remember when at the time he didn’t even know? No. They are trying to slam him over and over and over again.
“They are also trying to suggest that the gun, again, belongs to the victim, though he didn’t come out and say that. I guess he can’t do it with a straight face.
“MR. JACKSON: Objection, your Honor, argumentative.
“THE COURT: Overruled. It’s argument.”
A prosecutor violates the federal Constitution when he or she engages in a pattern of misconduct so egregious that it infects the trial with unfairness that makes the conviction a denial of due process. (People v. Ayala (2000) 23 Cal.4th 225, 283-284; People v. Hill (1998) 17 Cal.4th 800, 819.) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade the court or the jury. (Id., at p. 819.)
A defendant is excused from the necessity of a timely objection and/or a request for admonition if either would be futile. In addition, a failure to request that the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct. Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if the court immediately overrules an objection to alleged prosecutorial misconduct and as a consequence the defendant has no opportunity to make such a request. (People v. Hill, supra, 17 Cal.4th at pp. 820-821.)
In this case, defense counsel did not object on the ground of prosecutorial misconduct to the prosecutor’s challenged cross-examination of appellant or that portion of the prosecutor’s argument that is now the subject of contention. In addition, defense counsel did not request a curative admonition from the court. Moreover, nothing in the record suggests that a curative admonition would have been futile or ineffective. As a general rule, a defendant may not complain on appeal about prosecutorial misconduct unless he or she made a timely objection and on the same ground the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Since defense counsel did not object to the prosecutor’s questioning and argument on grounds of misconduct and did not request an admonition, appellant has not preserved the issue for review. (People v. Frye (1998) 18 Cal.4th 894, 969-970, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
VIII. Cumulative Error Claim
Having discussed at some length each of appellant’s claimed errors, we now turn to his contention that the cumulative impact of the errors in his case compels reversal of the judgment. He submits “this was a trial by speculation not evidence” and his contention “may not be addressed with the simple bromide that there was no error.”
To the contrary, a determination by the reviewing court that there was no cognizable error, as is the case here, requires no further discussion. (People v. Bloom (1989) 48 Cal.3d 1194, 1232.) There was no cumulative error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: ARDAIZ, P. J., CORNELL, J.