Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BA289903
Robert J. Perry, Judge. Affirmed.
Oscar B. Valencia for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and G. Tracey Letteau, Deputy Attorney General, for Plaintiff and Respondent.
COOPER, P. J.
Omar Mireles appeals from the judgment imposed after a jury convicted him of the first degree murder of Kevin Rosas (Pen. Code, §187, subd. (a); undesignated section references are to that code), and found that a principal intentionally discharged a firearm, causing death (§ 12022.53, subds. (d), (e)(1)) and that appellant committed the offense for the benefit of and in association with a criminal street gang, with intent to further criminal conduct by gang members (§ 186.22, subd. (b)(1)). The jury acquitted appellant of a count of attempted murder.
Sentenced to a term of 50 years, appellant contends the trial court committed reversible error by admitting, and having played before the jury, excerpts from a commercial video program, which showed appellant and his codefendant Carlos Vela, whose trial was severed from appellant’s, speaking about their gang’s territory and the use of violence to safeguard it. Appellant argues that the videotape was not adequately authenticated and that its prejudicial tendency substantially exceeded its probative value (Evid. Code, § 352). We conclude the video excerpt was properly admitted, and affirm the judgment.
FACTS
Appellant was convicted following an initial trial that resulted in a hung jury and a mistrial. Viewed in accordance with the governing rules of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence at the second trial showed that on the morning of September 7, 2005, Kevin Rosas, a member of the Hobart Street Thugs gang, went to help Edwin Gutierrez move his non-functioning car, to avoid a parking ticket. While walking to the car, the two men passed Carlos Vela. Vela gave Gutierrez and Rosas an angry look, but did not say anything to them.
Gutierrez testified that he had been an associate of the Hobart Street gang as a teenager.
After moving the car, Gutierrez and Rosas walked along Irolo Street towards San Marino Street. Appellant appeared ahead of them, walking from the direction of San Marino. Appellant approached the men and asked, “Where you from?” to which Gutierrez responded, “We don’t bang.” Appellant claimed his own gang affiliation by saying “Mara Salvatrucha,” and also said “Fuck Hood Rats,”a derogatory term for the Hobart Street Thugs. Gutierrez told Rosas to ignore appellant and keep walking. After Gutierrez and Rosas proceeded around appellant, appellant began hitting Rosas in the back of the head. Rosas stumbled and moved away from appellant into the street.
Vela then reappeared, at the intersection of Irolo and San Marino. He began shooting at Rosas. Appellant ran to San Marino Street and turned the corner to go east. Vela fired approximately five shots, three of which hit Rosas in the back. Vela then ran down San Marino Street. Rosas died from the gunshot wounds.
Penelope T., a nearby resident, heard gunfire on the morning of September 7, 2005. She looked out the window of her second story apartment and observed the top of a vehicle, which she described as a white SUV or van, parked on San Marino near Normandie Avenue, one block east of Irolo. Ms. T. saw the front doors of the vehicle close, although she did not see who had entered it. The vehicle accelerated rapidly out of the area. When police showed Ms. T. photographs of the top of a white Isuzu Trooper that appellant had been seen driving that day, she said the color was similar to that of the vehicle she had seen from her window.
Around 11:00 a.m. on the day of the shooting, Nancy T. received a visit from Vela, who was her neighbor. Vela left a black sock with something heavy in it on her dining room table. Nancy T. put the sock inside a drawer. When Los Angeles Police Detective Jean Parshall went to Nancy T.’s apartment the next day, he recovered the sock and found it contained a revolver, holding five bullet casings and two live bullets.
Detective Parshall interviewed Gutierrez about the shooting. Gutierrez looked at photographs from a Mara Salvatrucha gang mug book, and he identified appellant as the person who had punched Rosas, and Vela as the shooter. Although Gutierrez had seen both appellant and Vela in nearby Irolo Park on prior occasions, he had never seen them together.
Los Angeles Police Officer Rafael Lopez provided expert testimony about gangs, particularly the Mara Salvatrucha (hereafter MS), which he had been assigned to monitor during his four years on the department’s Wilshire Gang Enforcement Detail. From his numerous contacts with MS members, Officer Lopez learned about the activities, culture, and rules of the gang. The MS is very large but is divided into cliques that claim various territories; the “Normandie Locos” and its junior counterpart “Pee-Wee Locos” cliques claim the area where Rosas was shot. Members of those two cliques freely associate.
Asked about MS’s primary activities, Officer Lopez recounted that during his assignment as a gang officer he had investigated crimes by MS members involving extortion, in the form of “taxing” of unlicensed vendors, robbery, assault with a deadly weapon, narcotic sales and possession, and vandalism. He stated that violent crimes are committed to send a message to rival gangs and to create an atmosphere of intimidation within the community. Officer Lopez identified two specific convictions of MS members for assault with a deadly weapon.
Officer Lopez testified that other gangs are not tolerated on MS territory. The MS is known for not getting along with any other gang, including the Hobart Street Thugs, whose territory is just a few blocks west of the Normandie Locos cliques’. Suspected rival gang members in MS territory are confronted, usually first by being asked where they are from – meaning what gang one is affiliated with – and if they claim their gang there is a further, often physical confrontation. Violent crimes against rival gang members send a strong message to those gangs that their presence will not be tolerated in MS territory.
According to Officer Lopez, gang members who commit crimes gain respect and prestige in the gang. They will often work together to commit a crime, and each member will receive credit regardless of the extent of the member’s participation. The officer explained, “the fact that these individuals were at the location . . . [means] the gang will view it as both of them committing the crime.” In Officer Lopez’s experience, moreover, a single gang member would not challenge a group of rival gang members alone, because he would be outnumbered if the confrontation turned violent. Given a hypothetical question reflecting the facts of the present offense, Officer Lopez opined that the shooting concerned gang territory.
Officer Lopez testified that he had interacted with Vela in the past and that Vela had acknowledged being a member of the Pee-Wee Locos clique of MS. Officer Mathew Zeigler, another prosecution witness, stated that appellant had previously told him that he was a member of the Normandie Locos clique.
Regarding the item of evidence that appellant presently contests, Officer Lopez testified that he had previously viewed a one-hour television program about the MS that had been screened on National Geographic cable television. In that program, he recognized appellant, as the MS member shown and referred to as “Jester.” The officer also identified Vela as the other gang member who appeared with appellant on the program. Although Vela’s face was blurred in the video, Officer Lopez recognized his voice, complexion, and mannerisms. The jury was shown an edited portion of the program. We discuss below the admission and content of this excerpt, and appellant’s objections to it.
In his defense, appellant called Maria Maldonado, who testified she had heard gunshots on the morning of September 7, 2005, and went outside, near San Marino and Normandie. She observed a Latino man run towards, enter, and drive rapidly away in a white “closed camper” truck that had been parked on San Marino. Maldonado did not recognize anyone in the courtroom, and she had not seen anyone else get into the truck.
DISCUSSION
Appellant contends that the court erred in admitting and exhibiting excerpts from the National Geographic program (the video), because they were not adequately authenticated and because the prejudicial nature of certain aspects required their exclusion under Evidence Code section 352. Before addressing these contentions, we review the proceedings by which the excerpts were admitted.
Early in the trial, the court held an in limine hearing concerning a five-page portion of the program that the prosecution had offered. The prosecutor contended that appellant could be identified in a portion of the program, which would show that he was an active gang member, familiar with illegal gang activities, and willing to defend the gang’s territory with violence. Appellant objected to the program’s introduction on grounds of hearsay, as to narration by its host, irrelevance, and lack of foundational authentication. The prosecutor conceded that the voice-over narration should be excluded, but he proposed to authenticate the video, as far as appellant was concerned, with testimony by Officer Lopez, who could identify appellant both visually and by voice.
Satisfied with this showing, the court stated that the video contained relevant admissions by appellant that would be admitted. The court proceeded, however, to review the transcript “line by line.” The court excluded several passages under Evidence Code section 352, and then appellant raised that objection as to a further excerpt. Appellant again objected under section 352 to his statements about the ability to procure drugs, but the court overruled the objection on the basis that Officer Lopez would be testifying to MS’s involvement in drugs.
Finally, the court admitted as an adoptive admission a series of statements by Vela, apparently in the backseat of a car appellant was driving, stating that he would kill an “enemy” individual who had just entered MS territory, to protect it. The court found adequate the preliminary showing that appellant was in the same car, and left ultimate resolution to the jury. The court’s editing reduced the video to a two-page transcript, which contained, besides Vela’s statements just mentioned, appellant’s, set forth in the margin.
“We’ll go next to ‘em, and point it at their heads, and bam, you’re gone. [¶] . . . ¶] You always gotta be on the lookout, ‘cause you never know who’s gonna have a gun ready to shoot you. [¶] . . . [¶] This is our territory, if somebody tries to step in, we’re gonna take ‘em down. Don’t matter what it takes, you know? We’ll shoot them. If I’m here alone, I don’t care, I’ll shoot them myself. [¶] . . . [¶] This is all our streets, all I’m going through is, this is all ours right here. This truck pays rent, this truck pays rent. I mean, they all do. Everything you see here, everybody gets taxed around here, from the tamale lady right here to the hot dog lady. They all get taxed. [¶] . . . [¶] They gotta pay us to sell there. He makes $500? Well he gotta give us 250 of what he makes. He gotta give us half.” [¶] [Narrator]: “And what happens if they don’t pay?”[¶] “They always pay, but I mean sometimes you gotta get aggressive with ‘em. [¶] . . . [¶] Crystal, cocaine, heroin, coke, rock, weed, um pills. You need any kind of pills don’t go to the doctor, we’ll get you a doctor’s prescription, that’s all right.” [¶] . . . [¶] [Narrator]: “How do the other gangs try to come in and take it?” [¶] “Sometimes when they see like, empty spots, they’ll try to kick it here and try to make this their block. But with us they can’t. Like my homeboy, he always has to be looking, I mean, you never know who’s gonna be driving by. ‘Cause you never know who’s gonna have a gun ready to shoot you. And you better be ready for it.”
We turn to appellant’s contentions. Appellant first claims that the video should not have been admitted because it was inadequately authenticated. “To be admissible in evidence, an audio or video recording must be authenticated. [Citations] A video recording is authenticated by testimony or other evidence ‘that it accurately depicts what it purports to show.’ [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 747.)
Authentication is a preliminary fact determination first performed by the trial court. (Evid. Code § 403, subds. (a)(3), (c)(1).) If the court perceives sufficient evidence to permit the jury to find the preliminary fact true by a preponderance of the evidence, the evidence may go to the jury. (People v. Marshall (1996) 13 Cal.4th 799, 832.) “The decision whether the foundational evidence is sufficiently substantial is a matter within the court’s discretion.” (People v. Lucas (1995) 12 Cal.4th 415, 466.)
The present video was authenticated by the testimony of Officer Lopez, who stated he had seen the National Geographic program in February 2005 (trial was in 2006). From his personal knowledge of appellant and Vela, he identified them as the two individuals depicted and speaking on the video. This was an adequate foundation to authenticate the video. Because the words spoken were the video’s significant element, appellant’s identity as speaker was sufficient authentication of what were, as the court recognized, admissions by him. Although appellant argues that Officer Lopez did not testify that appellant had not been coached or encouraged to exaggerate in the program, such characteristics were not part of identifying the video as reflecting appellant’s image and speech. They were matters going to the weight of the recording.
Appellant’s remaining argument is that portions of the video should have been excluded under Evidence Code section 352, because their probability of undue prejudice substantially outweighed their probative value. In this context, unduly prejudicial evidence is that which “‘uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.’” (People v. Samuels (2005) 36 Cal.4th 96, 124.) “The trial court has broad discretion both in determining the relevance of evidence and in assessing whether its prejudicial effect outweighs its probative value.” (People v. Horning (2004) 34 Cal.4th 871, 900.) We accordingly review a decision allowing evidence under Evidence Code section 352 for abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
Appellant claims Evidence Code section 352 error with respect to two aspects of the video. The first is appellant’s statement that “This is our territory, if somebody tries to step in . . . . We’ll shoot them. If I’m here alone, I don’t care, I’ll shoot them by myself.” The second is Vela’s exchange with the narrator about killing an enemy trespasser.
The transcript of that exchange reads: [Vela]: “There’s a guy right there.” [¶] [Narrator]: “A rival has trespassed into MS’s turf. [¶] You would kill him?” [¶] [Vela]: “Yeah.” [¶] . . . [¶] [Narrator]: “Do you know him?” [¶] [Vela]: “I know him.” [¶] [Narrator] “Why would you kill him?” [¶] [Vela]: “Because they’re enemies.” [¶] [Narrator]: “So it sounds like it’s a game.” [¶] [Vela]: Yeah, it’s a game, who wins, who wins the street.”
There is an initial question whether these excerpts may be reviewed under Evidence Code section 352, because appellant, although asserting that objection to other portions of the video below, did not object to these portions on that ground, as ordinarily required. (See People v. Harrison (2005) 35 Cal.4th 208, 230-231.) However, we are disinclined to invoke the rule of strict forfeiture when the court spontaneously considered every element of the video, and invoked its express authority under Evidence Code section 352 with respect to several portions. Appellant is entitled to review of those proceedings as to whether the court improperly failed to exclude further evidence under the statute.
We conclude that appellant’s remarks about protecting MS’s turf and shooting someone who tried to “step in” were not subject to exclusion under Evidence Code section 352. The evidence of appellant’s admissions was highly relevant, because it not only showed appellant’s adherence to the gang’s territory but also included direct evidence that appellant possessed the intent necessary to render him an aider-abetter and principal to the murder. (See People v. Beeman (1984) 35 Cal.3d 547, 560.) On the other hand, the evidence was prejudicial only in respect of establishing facts and elements of an admittedly violent case. It did not, as contemplated by section 352, gratuitously elicit a bias against appellant, unconnected to his acts.
The recording of Vela’s statements about killing an interloper to MS territory ultimately did not require statutory exclusion either. Here once more, the evidence had substantial probative value. Appellant’s claim that it had none, because the record does not establish whether Vela’s remarks were “spontaneous” or “scripted or coached,” mistakes matters of impeachment with relevance. The excerpt showed direct contact between appellant and Vela, in the course of Vela’s threatening to do what he did do in the present instance. This was evidence of appellant’s knowledge of Vela’s unlawful purpose. And the notion of prejudice, by reason of appellant’s presence with Vela, again involved probative matter.
DISPOSITION
The judgment is affirmed.
We concur: FLIER, J., EGERTON, J.
Judge of the Los Angeles S.Ct. assigned by the Chief Justice pursuant to art. I, § 6 of the Cal. Const.