Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA081022. Arthur M. Lew, Judge. Affirmed.
Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
A jury convicted appellant Frankie Pule of second degree murder. While in a cell awaiting booking, Pule and his codefendant rapped about engaging in violence and committing crimes for their gang. Authorities had bugged the cell. The trial court admitted into evidence the tape recording of Pule’s rap exchange with his buddy. On appeal Pule contends the court erred and violated due process. He argues the recording was irrelevant, hearsay, and improper character evidence. He also contends the trial court should have excluded the tape under Evidence Code section 352.
All subsequent references are to the Evidence Code unless otherwise stated.
We conclude the tape’s admission violated neither the rules of evidence nor due process. The recording’s contents were relevant to the gang enhancement allegation and elements of the murder charge. They were admissible under the hearsay exception for a party’s statements. The contents were highly probative, and their probative value was not substantially outweighed by the risk of undue prejudice. Pule’s rap recitation was not propensity evidence under Evidence Code section 1101. The jury legitimately could draw inferences from the recording and it was not highly inflammatory, so its admission did not violate due process.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
1. The murder.
Tasene Tauanuu was fatally shot outside the Samoan Flag Day Festival on August 27, 2004. Tauanuu’s nephew, Boaz Veniale, testified he attended the festival with Tauanuu, Tauanuu’s wife and children, and about nine members of the Park Village Compton Crips gang (PVCC). Veniale saw Pule and a companion enter the festival. Veniale knew Pule and knew that he and his companion were members of the Sons of Samoa gang (SOS). SOS and PVCC were both Samoan Crip gangs, but they were enemies. Pule and his companion immediately approached Veniale’s group and asked, in a challenging way, “What’s crackin?” Veniale testified this meant “Let’s do it” or “What y’all want to do?” Pule also shrugged his shoulders at Alex, who was part of the PVCC group. Pule and his companion said, “Let’s go outside,” and walked out of the festival.
When Veniale and his fellow PVCC members emerged from the festival, they saw about ten SOS members lined up along the south side of the street. The PVCC members lined up along the north side of the street, facing the SOS members. Tauanuu was still inside the festival. The SOS members announced that they had “straps” -- guns -- and the PVCC group responded that they also had guns. PVCC member Alex stepped into the street between the two gangs and asked for Typhoon (codefendant Walley Tuuamalemalo) to come out. No one did. Alex then asked for Dirt, which was Pule’s moniker. Again, no one responded.
About two minutes later, Tauanuu walked out into the street. He crossed it, his arms out in front of him, his hands open. Tauanuu stopped in front of the SOS group and told them to “catch one on one with Alex, and then we’ll just call it a day. No need for gun play.” Veniale testified that “catch one on one” meant to have a fair fight. After Tauanuu had been speaking for about a minute, three or four SOS members, including Pule, pulled guns out and started shooting. Pule fired a handgun. He was three or four feet from Tauanuu when he fired.
The coroner testified that Tauanuu had three gunshot wounds, possibly caused by two bullets. One bullet entered his lower lip and came out under his chin. A bullet also went into his chest. That bullet (which may have been the same one that entered the lip) hit his heart and spine. Tauanuu’s third wound was in the lower abdomen. That bullet penetrated the small intestine and lodged in the spine.
A Los Angeles Sheriff’s Department criminalist concluded that the same semi-automatic handgun fired the two bullets recovered from Tauanuu’s body, as well as two bullets that hit cars parked along the north side of the street and four expended casings. That gun most likely was a .40-caliber Smith and Wesson, but it could have been a 10 millimeter. Police also recovered live 12-gauge shotgun shells. And they found a .38-caliber Smith and Wesson revolver on the south side of the street. That gun had fired two bullets found embedded in different cars, one on each side of the street.
2. The tape recording.
Before trial, counsel for both defendants asked the court to exclude the surreptitiously recorded tape in which Pule and Tuuamalemalo composed a rap song about their gang exploits. On the day the tape was recorded, the case had been dismissed and refiled. The codefendants were put in a monitored holding cell awaiting rebooking, and their interaction was recorded.
Pule’s attorney argued that the rap exchange was not an admission and therefore was inadmissible hearsay, that the court should exclude it under Evidence Code section 352 because its prejudicial effect outweighed its probative value, that it amounted to inadmissible character evidence, that it was cumulative of other gang evidence, and that the admission of statements by codefendant Tuuamalemalo on the tape would violate Pule’s confrontation rights. The trial court listened to the tape and agreed to admit a redacted version of it. However, a mistrial was declared, and the retrial took place before a different judge.
During the retrial, counsel again moved to exclude the tape recording. The court listened to the tape and concluded, “[T]here is probative value to the statements that are made. I find very little prejudicial effect. Now, yeah, there is some profanity in here. There is some use of the ‘N’ terminology. But there is also reference to the speaker being – he refers to himself with the ‘N’ word. So I don’t think that there is much prejudice based on the use of that word or the profanity. [¶] I do find that there is probative value. And I find that the probative value outweighs the prejudicial effect. So I am going to overrule the 352 objection. [¶] With respect to the portions that the people are not seeking to introduce, [Pule’s attorney] had indicated that he would like it all in or nothing, and that if I was going to overrule the objection, he would like the entire recording to come in so that the context can come through. And I certainly do not have a problem with that.” The court also concluded that the statements constituted admissions and were not character evidence. The court did not find the recording cumulative enough to sustain the objection; it was “still probative enough to let it come in.”
The prosecutor played the tape recording during the testimony of Long Beach Police Department Detective Hector Gutierrez. He then went through a transcript of the tape, asking Gutierrez -- based on his gang expertise -- what various words meant.
According to the transcript, the tape begins with Pule saying, “Yeah, nigga. Like I’ve been waiting for this day. So, like nigga, oh, [unintelligible] nigga wear pants. We gonna jump you, but nigga walked all the way to the back. He went all the way to the back and the nigga came back [unintelligible] like nigga where you from? He was like, ‘Altadena Crip.’ And, I’m like nigga damn, nigga you think you bad. But, these niggas they want to bust your lip. But, he like, ‘Oh.’ So, he stay quiet and silent. But, the niggas over there, he was like, ‘Yeah, I almost beat that nigga up.[’] That nigga was talking but thinking he bad. But, the nigga he sitting on the wall kicking it with the Samoans nigga be wishin he had what they had. A nigga like me, I’m sitting back. But, the nigga knows that I’m glad, because I’m with that shit that they got that forty mack. And I bust that shit and hit these niggas and split their wigs and I bust they backs. I put their set and their hood up off the map. You know, this shit. Dirt be locin and come up quick. I bust they lip. These niggas they know that I’m the slick. Super Crip. I do that dip all the time. I do it cuz that [unintelligible] niggas I got to do it off my mind. I flip and hit the script and niggas I do it all the time. You need to know me nigga but please you best get off my line.”
Gutierrez testified that the use of “nigga” throughout the recording did not appear to be meant in a racist way, but instead seemed to refer to a rival or a friend. He interpreted Pule’s reference in the paragraph quoted above to being “glad, because I’m with that shit that they got that 40 MAC” as meaning that Pule was “with . . . that thing that happened with a 40 MAC or a 40 caliber MAC.” The next line meant Pule used a gun and “hit these guys or gangsters in the head. I split their heads, and I broke their backs or killed them.” “I put their set and their hood up off the map” meant that he killed them; their gang no longer existed and no longer hung out in their neighborhood. “Dirt be loc’in and come up quick” meant that Dirt was crazy, committed crimes, did things quickly, got a lot of money quickly, or came up through the gang ranks quickly.
Although Pule does not challenge Gutierrez’s testimony about the tape, we include it because it bears on how the jury could or would have understood the tape’s contents.
Gutierrez did not finish testifying about the tape recording in a single day. Before his testimony resumed, the trial court gave the following limiting instruction: “I expect that you will hear some evidence pertaining to gang activity from the witness about to testify. You may consider evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the intent, purpose and knowledge that are required to prove the gang related crime and enhancement charged or the defendant had a motive to commit the crime charged. [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. [¶] You may not consider this evidence for any other purpose. [¶] You may not conclude from this evidence that the defendant is a person of bad character or that he has a bad disposition to commit the crime.”
Tuuamalemalo’s first intelligible statement in the tape recording was “I rat-a-tat tatburst from my mini two two three. I got the extended clip to my motherfuckin . . . .” Pule picked up the line: “[T]o my motherfuckin’ strap and I holster my uzi. You need to know me. Please back up off me. The shit that it cost me, mini mo’s to the beats and the motherfuckin’ bones, G.” Gutierrez testified that a “two two three” was a bullet used in an automatic rifle, and an extended clip was a larger capacity magazine for a gun.
Discussion with someone about food followed. Pule resumed the rap: “But, a nigga like me I be like, ‘Damn, nigga.’ You got that T.P. to wash my ass. To wipe my shit and hittin niggas I do like [unintelligible].” Tuuamalemalo then picked up: “[Unintelligible] on the mother fucking body let ya’ know that I run this shit like John Gotti when I come through with [unintelligible] a twenty-two, just in case a niggas wanna come and set trip on Young Crip, set trip when I’m on that Crip tip. They call me Young Crip when I bust your ass straight up in your lip.” Gutierrez testified that “set trip” could mean claiming affiliation with different gangs when with different people, creating a confrontation by announcing one’s gang affiliation, or changing one’s alliance within a gang depending on location or who was around. He interpreted the sentence about “a twenty-two” to mean “coming through” with a .22-caliber handgun in case anyone asked what gang he was from. To “bust on someone” meant to shoot, hit, or commit some other violent act against them. “Young Crip” was a moniker, and “bust on your face means I would hit you or shoot you in the face.”
Pule then said, “Birth defects cuz niggas ain’t perfect, cause I came with the most shit. And, you can say [unintelligible], get off my nuts bitch.” Tuuamalemalo followed: “Today was a good day, they done drop my case and refile that shit at the same time. Now, I’m in the motherfuckin’ Lynwood County, waitin’ to be transferred to L.A. County. I got tre days, some shit.” Pule resumed: “But, a nigga me, ‘I’m like what the fuck?[’] I got the new band and the new booking number on my stuff. So, I ain’t even got no money on my shit, nigga. The number’s all new. But, it seem like damn, niggas, I came up with that shit that got me in this light blue.”
Tuuamalemalo went on: “It’s like . . . it was like 187 on the block. I hear these niggas screamin and hollering tryin to hit up on the cops. Trying to take me away for some shit I never did. Telling me it’s a murder, shit. I took a look to my left and I see my nigga Dirt-Loc, in the courtroom, ready to choke, ‘bout to get the . . . [¶] Ha, ha, ha, ha.” Gutierrez testified that “187” referred to murder, and the rest of the paragraph meant “some people or some gangsters are screaming and hollering trying to talk to the cops telling them or trying to tell them it’s a murder. They’re trying to take me away for something I never did.”
Pule resumed: “Do me a mother fuckin’ – doin’ it wild –” Tuuamalemalo took over the lead: “I do the do, I laid that nigga down. But, I ain’t fist to admit this sh [unintelligible].” Gutierrez testified that Tuuamalemalo’s statement meant he committed the crime, he killed or knocked a person out, but he was not going to admit it. Tuuamalemalo then continued, “—got me fucked up. You got me fucked up.” Pule joined in this refrain: “Ooh, I’m fucked up.”
Tuuamalemalo seemed to begin a new verse: “Two hard niggas in the same cell. Got these niggas from – man.” Pule picked up the lead: “Pushing in the green Honda, lift it up, nigga, if you want it, I give it to you like straight up E Honda [unintelligible] you know me niggas it ain’t no thing. I got the cookie in the rounds so it don’t stick like brains. Nigga it’s out your sides, leakin it, a niggas I ride on the passenger seat. Nigga with that Trey five seven with a snub nose. Nigga you know you wanted to get [unintelligible] I’d rather send you to hell. But, nigga, could you tell I’ll break you niggas off well with that mother fuckin’ snub nose. Tellin niggas I do this shit, niggas so everybody else knows. I don’t give a fuck. If you could tell. But you can’t ‘em tell shit, ‘cause you ain’t heard nothing but a bull-shit lie bitch. Niggas like you, you on the main line. But, your bitch shouldn’t be hittin niggas thats [unintelligible]. Fuckin’ everything is fine. When it comes down to my case, bitch, niggas ya best to realize, niggas, that I wiped your whole face and wiped your whole hood out of your place, niggas. The plate that I eat off, nigga’s a disgrace because dog eating hog make him do it cause I do it for fun. I do it like niggas want some. Niggas got guns if you got some. Nigga get shanked or shot. Niggas on the ‘hood of the block. Coastin’ on the East side. Niggas do we ride, dip die all the time. Niggas stay alive. In the hood. No jokes. Nigga no jives. Everytime niggas trip, hitting niggas do it with the screwdrive. You die. We ride. East side. For life. You know we don’t come like nigga that bitch shit but we bring Crip shit then we bust this shit. Nigga this clip on your bitch nigga like so quick. Nigga, you flip. Flipped and hit and flipped, nigga. Tossed in a ditch you bitch. Nigga shouldn’t never, now you snitched. Now, you on the mother fuckin’ ground like, ‘Down.’ Here are the niggas I put down. And, a girl with white pants and she got down.”
Gutierrez testified that “trey five seven with a snub nose” referred to a .357 handgun with a shorter barrel. The statement about breaking someone off meant to use the snub-nose gun on someone. He interpreted the statement about “my case” followed by “wiped your whole face and wiped your whole hood out of your place” as a threat to hurt snitches or people who testified in his case, including a threat to “take out” a snitch’s entire neighborhood. When the prosecutor asked about Pule’s use of the past tense verb “wiped” in the same sentence, Gutierrez changed his interpretation to embrace either past or future conduct. He testified that “You know we don’t come like nigga that bitch shit but we bring Crip shit then we bust this shit” meant “[W]e don’t come like – like girls or sissies or pansies. We come like gangsters. We come hard. We come violently. [¶] Then ‘we bust this shit,’ means that we’ll commit a violent act. We’ll use everything we have, our toys, our guns, and we use them on you.” The following sentence, referring to the clip, meant they used the magazine on the gun very quickly against their target.
After an exchange with a staff member doing a headcount, Pule resumed rapping about being in custody, while Tuuamalemalo apparently composed verses about a lost love. Gutierrez was not asked to interpret this portion of the tape recording during his direct testimony.
Pule then stated, “Drunk off the four-fifth, hit a nigga like damn I’m pissed but a nigga taken his risk he trips and [unintelligible] the bitch niggas they knew that I was Cripped. Hit a lick like this nigga fucked but niggas he flipped. Forced up in the ditch, the money in the burner bag hit the niggas like you wished that you heard her had [unintelligible] fuck ‘em. Niggas I bitched it up like nigga Dirt a little bastard. I’m a Crip, but a nigga like me gotta put in work, hittin’ niggas I’ve hurt.” Gutierrez testified that “hit a lick” meant committed a robbery, and “put in work” meant to commit violent crimes for the gang.
After Tuuamalemalo continued his love lyrics, Pule resumed: “. . . half the team, niggas know me, I bang Dirt I’m from the East to the side. [Unintelligible] I tell this niggas, ‘damn.’ Nigga, straight down for life. Eastside. We ride.” Gutierrez testified Pule was saying he was a gang member called Dirt from the eastside and he told other gangsters he was going to be a gangster forever.
The codefendants then rapped about their first robbery. Tuuamalemalo said, “I remember the first time we done pulled a lick. Oh, sick.” Pule continued, “There was money and the bag of chips.” Tuuamalemalo responded, “There was money and the bag and we was happy and shit God damn. Next day we done went to Knott’s Berry Farm.” Pule echoed, “Farm.” Both men laughed. Pule continued, “Riding on the ghost roaster and taking on some flicks.” Tuuamalemalo resumed, “The next day we took a trip to Knott’s Berry Farm. Came back and head to Compton. And, now, we on ones and. Pulled out the gauge and hit these niggas up. Uh, got my gauge and ready to light these niggas up. Uh, got that buck shot hit these niggas through that gate. Got these niggas running away from the fate. Now, I catch these niggas slipping some other time when I pop that nine glock.” Gutierrez testified that “gauge” was a shotgun, and Tuuamalemalo was saying he used it on someone.
Pule responded to Tuuamalemalo’s prior verse with “bitch.” Tuuamalemalo picked up the line and continued: “Straight bitches, straight snitches, try to come to court on me and try to put me away cause my shits is . . . nah.” Gutierrez testified Tuuamalemalo was calling anyone who came to court to testify against him a snitch and “a pansy.”
Pule then said, “Ya’ lose your fate when you fuck with Dirt-Loc. [Unintelligible] Hit you niggas up like man, wow.” Gutierrez testified this meant “You’ll get killed if you mess with Dirt-Loc.”
Tuuamalemalo continued the rap: “Got me fucked up. I’m fist to take this shit to a fist fight. Ha, ha. [¶] Ah, I don’t use no weapons beside the mother fuckin’ heat. With the extended clip niggas don’t want to fuck with me. Young Crip is my mother fuckin’ name. Best believe I be the first nigga to put your ass out your game, bitch. Cause you’s a punk and sucker. Best believin’ ya’ be the first mother fucker to pull that trigger. You was too slow. You reached for yours. And now, you –” Pule finished the line: “on the floor because you came through across the fold. Ha, ha.” Gutierrez testified Tuuamalemalo said the only weapon he used was a gun with an extended magazine, and no one wanted to mess with him because he had weapons. Tuuamalemalo also said he was the first one to kill the person the lyric was addressing, and that person was worthless as a gangster and a poor fighter.
In his closing, the prosecutor reminded the jurors of the court’s limiting instruction. He told them they could use the tape and other gang evidence to determine the truth of the gang allegation, whether Pule had a motive and the intent to kill, and whether he had admitted his involvement in the crime. The prosecutor then played the tape in short segments, interspersed with his arguments about incriminating inferences he believed could be drawn from the defendants’ statements.
3. The verdict.
The jury convicted Pule of second degree murder. The jury found the gang allegation true and that a principal had intentionally fired a gun, causing death. The jury also found that Pule had personally and intentionally fired a gun in the crime’s commission. However, the jury found not true the allegation that Pule’s firing of the gun had caused death. (In other words, the jury concluded that Pule had shot at the victim but it could not say whether Pule’s bullets or those from the other shooters were the bullets that killed Tauanuu.) The court sentenced Pule to 40 years to life in prison.
Pule and Tuuamalemalo were tried jointly, but with separate juries. The record does not indicate the outcome of Tuuamalemalo’s trial.
DISCUSSION
1. Pule’s statements were relevant.
Pule contends the tape recording was irrelevant because the statements in it provided no information about the charged offense. He concedes that the recording “may be arguably relevant to the gang allegations,” but argues “there was other, far less prejudicial evidence, to prove those charges.”
We review rulings on the admissibility of evidence for abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.) Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact of consequence to the action’s determination. (Evid. Code, § 210.) A not guilty plea puts every element of the charged offense in issue. (People v. Catlin (2001) 26 Cal.4th 81, 146.) A defendant’s tactical decision not to contest an essential element of the offense does not relieve the prosecution of its burden of proving every element. (Estelle v. McGuire (1991) 502 U.S. 62, 69.) Moreover, “evidence does not become irrelevant simply because other evidence may establish the same point.” (People v. Smithey (1999) 20 Cal.4th 936, 973-974.)
Pule’s statements on the tape tended to show his membership in the SOS gang and his devotion to the gang and its activities, including the commission of violent acts. So his statements were relevant to prove the intent with which he shot at Tauanuu and his motive for the shooting. Thus they were relevant to the murder charge. In addition, as Pule concedes, the statements were relevant to the Penal Code section 186.22 gang allegation. That allegation required the prosecution to prove that Pule committed the crime with the specific intent to promote, further, or assist in criminal conduct by gang members. Pule’s statements on the tape tended to show that specific intent because they demonstrated his loyalty to the gang and his willingness to commit violent crimes on behalf of, and as part of, his gang. The existence of other, purportedly less prejudicial evidence to prove the gang allegation does not detract from the tape recording’s relevance.
2. Pule’s statements were not hearsay.
Pule also contends the trial court should have excluded the tape recording as hearsay because his statements did not amount to an admission regarding the charged offense.
Section 1220 is sometimes referred to as the exception for admissions of a party. But it covers all statements of a party, whether or not they actually admit anything. (People v. Carpenter (1999) 21 Cal.4th 1016, 1049.) “The hearsay rule does not compel exclusion of any statement offered against a party declarant, whether or not it can be described as an admission.” (Ibid.) Pule’s statements on the tape fell squarely within section 1220: they were statements offered against the declarant in an action to which he was a party. Pule’s hearsay argument has no merit.
Section 1220 provides, “Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party . . . .”
3. The trial court did not abuse its discretion in refusing to exclude the tape recording under Evidence Code section 352.
Pule next argues that the court should have excluded the recording under section 352 because it was both unduly prejudicial and cumulative of other, less prejudicial evidence. He asserts that the language on the tape was highly offensive and inflammatory, and that the references to gang activities and various firearms were prejudicial. He argues, “[T]he only purpose of the tape was to suggest to the jury that appellant was a person of bad character, and a person who committed crimes.”
Section 352 gives the court discretion to exclude relevant evidence if its probative value is substantially outweighed by a substantial danger that the evidence will unduly prejudice the defendant, confuse the issues, or mislead the jury. Unduly prejudicial evidence is evidence that evokes an emotional bias against the defendant without regard to its relevance to material issues. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
a. Undue prejudice
Most of the statements on the tape are harsh, in the language used and the thoughts expressed. But we consider them in context. First, Pule and Tuuamalemalo were friends who found themselves in an unhappy situation. They used heavy slang the prosecutor deemed so beyond jurors’ common experience that he called an expert witness to interpret. They referred to everyone, including themselves, as “nigga.” The prosecutor’s expert testified that this usage did not appear to be racially-motivated, but was just how they referred to everyone. It was like “guy” or “dude.” Second, the defendants made the statements while they were creating a boastful tale of their adventures in a rhythmic and rhyming format. Their use of rhyme, the instances in which one would pick up the lead after the other faltered, and their creation of refrains by the repetition of all or a part of the last line spoken by the other person amply illustrate this endeavor.
The prosecutor acknowledged the recording’s essential nature: he characterized it in his argument as boastful singing and rapping. Pule’s defense counsel also emphasized the recording’s nature in his thorough cross-examination of Gutierrez about the absence of any link between the murder at issue and most of the incidents, guns, people, and cars mentioned in the recording. As a boastful song or rap, the recording differed from a straightforward conversation in which a person’s admission of misconduct likely would be deemed a more serious, considered action. Reasonable jurors would understand that, given the boastfulness and the attempt to rhyme, things recounted in the rap may have been exaggerated or made-up, and details -- such as the make of a gun -- may have been chosen for effect or rhyme rather than accuracy.
The references to gang affiliation in the tape recording were not unduly prejudicial, because they did not evoke an emotional bias against Pule without regard to material issues. Tauanuu’s murder was alleged to be gang-related. Pule’s references in the recording to his own gang loyalty and pride tended to show the motive for the murder and reflected on his intent. The probative value of motive evidence generally outweights its prejudicial effect, and the trial court has wide latitude in admitting evidence of a motive’s existence. (People v. Beyea (1974) 38 Cal.App.3d 176, 195.) Similarly, to the extent that references to gang-related activities in the recording were not mere boasts, they tended to reflect motive and intent: the rappers’ willingness and intent to commit violent acts to promote the gang or establish or protect its status in its claimed territory. Given the circumstances of the murder and the existence of the gang enhancement allegation, the probative value of the gang references in the recording was not substantially outweighed by a risk of undue prejudice.
Nor were references in the recording to various firearms unduly prejudicial. It was apparent that most -- perhaps all -- of the weapons mentioned in the recording had nothing to do with Tauanuu’s murder. Gutierrez admitted this in response to defense counsel’s questions, and counsel reminded the jury of that testimony in his closing. Although the prosecution argued that the reference in the recording to a “40 mac” meant the .40-caliber gun used against Tauanuu, Gutierrez testified on cross-examination that a “.40 mac” was a MAC-10 automatic rifle. The prosecution introduced no evidence that a MAC-10 rifle was used in the murder, and defense counsel argued this point as well. Given the nature and context of the rap and the references to so many different types of guns, jurors reasonably could infer that the defendants exaggerated the variety of guns to which they had access, using the names of some guns to create a rhyme. For example, “uzi” appears to have been rhymed with “three” in Tuuamalemalo’s reference to his “two two three” and “twenty-two” was rhymed with “coming through.”
Even if the jury believed that the defendants had all of the weapons named in the recording, any potential for undue prejudice would not substantially outweigh the probative value. The potential for prejudice was not especially strong. The ballistics evidence showed that the shooters used at least three different guns, and Veniale’s testimony established that Pule shot a handgun. With one possible exception, none of the guns mentioned in the rap was used to shoot at Tauanuu. Accordingly, references to the unused guns did not tend to prove that either defendant shot at Tauanuu. Instead, the references to using guns -- without regard to the make or caliber -- were relevant to intent, because they demonstrated a willingness to carry a gun and to use it to shoot rival gang members or others who offended the defendants. Carrying a loaded gun generally is relevant to premeditation because it shows the defendant considered in advance the possibility of murdering a rival gang member. (People v. Wells (1988) 199 Cal.App.3d 535, 540-541.) Veniale’s testimony established that the men who shot at Tauanuu were armed with loaded guns. Accordingly, the many references in the recording to using guns against rivals had substantial probative value of intent.
Moreover, the court’s limiting instruction dissipated any potential for prejudice. The court gave a detailed limiting instruction when the tape was played. It later reiterated the limited permissible uses of the evidence by reading the jurors CALJIC No. 2.09: “Certain evidence was admitted for a limited purpose. [¶] At the time this evidence was admitted you were instructed that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. [¶] Do not consider this evidence for any purpose except the limited purpose for which it was admitted.” We presume that the jury followed these instructions. (See, e.g., People v. Horton (1995) 11 Cal.4th 1068, 1121.) The prosecutor also reinforced these limits on use of the recording and other gang evidence during his argument.
b. Cumulativeness
The tape recording was not cumulative. The only other gang evidence about Pule was testimony by Veniale and Gutierrez that Pule was an SOS member and undated photographs of Pule making gang hand signs in the company of Tuuamalemalo and other SOS members. The tape was very different: in it, Pule’s own words showed his gang allegiance and willingness to commit violent crimes for his gang. Pule’s allegiance was relevant to show his intent and motive in shooting at Tauanuu. Neither the photographs nor the testimony provided direct insight into Pule’s mental state. So the recording was not cumulative. Also, the tape was made about a year after the murder; in contrast, the photographs, Veniale’s knowledge, and the resources Gutierrez consulted may have reflected an earlier or outdated membership and allegiance. Without the tape, Pule might falsely have claimed that he never was a member of the gang, but only associated with its members, or that he once had been a member, but no longer was participating in the gang’s activities at the time of the murder.
Gang expert Ty Labbe testified that in two of these photographs, Tuuamalemalo was “flipping off” PVCC’s gang sign as an expression of disrespect.
4. The tape recording did not constitute character evidence.
Pule contends that admission of the tape violated section 1101. We disagree.
Section 1101 provides:
“(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime . . . when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident, . . .) other than his or her disposition to commit such an act.”
Typically, a section 1101 issue arises where evidence of the commission of another crime or act of misconduct sharing some attribute with the charged offense is introduced to create an inference from the shared attribute. This case was very different. Here the tape recording was introduced to prove Pule’s intent and motive by the attitudes and beliefs he himself expressed. Although the prosecutor later argued that Pule and Tuuamalemalo were rapping about things that actually happened, he did not try to prove that the crimes mentioned in the tape in fact took place. Nor did he urge the jury to infer anything from the purported commission of other crimes, as opposed to the attitudes Pule revealed on the tape. Indeed, the prosecutor conceded that the other crimes the defendants described on the tape had no application to the case. The prosecutor relied on statements in the tape that he believed were references to this case and admissions about Tauanuu’s murder, along with statements expressing Pule’s devotion to his gang and his attitude toward rival gangs and anyone who would “mess” with him. The prosecutor never argued that the jury should infer that Pule acted with the same intent in shooting Tauanuu as he did in committing an offense mentioned on the tape. Nor did the prosecutor argue that an offense mentioned in the tape provided the motive for the charged offense. In light of both the nature of the evidence and its use, we conclude that the tape recording did not constitute evidence of Pule’s character or a trait of his character. It therefore did not fall within the scope of section 1101, subdivision (a).
In any event, Pule’s statements were properly admitted under section 1101, subdivision (b). As discussed above, Pule’s rap was relevant and the trial court admitted it to prove intent and motive for the murder as well as the specific intent required for the gang allegation. Pule’s not guilty plea required the prosecutor to prove every element of the murder charge and gang enhancement allegation. While motive is not an element, evidence of motive always is relevant and generally is admissible, no matter how it reflects on the defendant and even when it may show that he has committed other offenses. (People v. Morales (1979) 88 Cal.App.3d 259, 264; People v. Perez (1974) 42 Cal.App.3d 760, 767.) The court conducted the required section 352 analysis and gave a timely limiting instruction that expressly warned the jurors not to consider the tape’s contents as character or propensity evidence. The prosecutor reminded the jury during argument that it was to consider the statements in the tape only to decide whether Pule had the intent required for murder and the gang allegation, whether he had a motive to kill, and whether he had admitted taking part in the crime. In short, the court properly admitted the tape recording only for purposes permitted by section 1101, subdivision (b).
5. The recording’s admission did not violate due process.
Relying on People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), Pule argues that the admission of the tape recording violated his right to due process. He essentially reiterates his relevance and section 352 arguments: the tape was irrelevant, cumulative, and unduly prejudicial.
In a criminal trial, a denial of due process is a failure to observe that fundamental fairness essential to the concept of justice. (Lisenba v. California (1941) 314 U.S. 219, 236.) To find a denial of due process we must find that the absence of that fairness fatally infected the trial. (Ibid.) The acts complained of must be of such quality that they necessarily prevented a fair trial. (Ibid.)
Proper application of the rules of evidence ordinarily does not violate due process. (People v. Frye (1998) 18 Cal.4th 894, 945.) The admission of evidence may violate due process if there is no permissible inference a jury could draw from the evidence. (People v. Steele (2002) 27 Cal.4th 1230, 1246; Albarran, supra, 149 Cal.App.4th at p. 229.) The relevant inquiry is whether admission of the evidence in question was so extremely unfair as to violate “fundamental conceptions of justice.” (Dowling v. United States (1990) 493 U.S. 342, 352-353.)
In Albarran, supra, 149 Cal.App.4th 214, two men shot at a house where a party was underway. A witness who had been within 10 feet of both gunmen did not identify Albarran. He testified he knew Albarran from junior high school and would have recognized him if he had been one of the shooters. (Id. at pp. 217-219 & fn. 1.) The trial court permitted the prosecutor to introduce “a panoply of incriminating gang evidence.” One deputy testified to Albarran’s gang membership, his gang tattoos (including a Mexican Mafia tattoo), the prevalence of graffiti for Albarran’s gang around his home, a graffito threatening to murder police officers that was attributed to Albarran’s gang, the identities and arrests of other members of Albarran’s gang, and the crimes committed by that gang. The deputy also testified that the resident of the house, Michael Bacelis, belonged to a different gang, but he did not know of any rivalry between that gang and Albarran’s gang. The deputy opined that the shooting was gang-related and intended to benefit Albarran’s gang, which was engaged in an active gang war. (Albarran, supra, 149 Cal.App.4th at pp. 220-221, 227.)
Albarran moved for a new trial, arguing that insufficient evidence supported the gang enhancement and that the gang evidence was irrelevant and unduly prejudicial. The trial court granted a new trial on the gang enhancement but not on the underlying charges. (Albarran, supra, 149 Cal.App.4th at p. 222.) The trial court viewed some of the gang evidence as relevant to motive and intent for the underlying crimes, even though it was inadequate to prove the gang allegation. (Id. at p. 226.)
The Court of Appeal reversed. The court found insufficient evidence of motive. The shooting took place at a birthday party for Bacelis’ cousin. Bacelis’ gang had no rivalries. The shooters had not announced their presence or purpose, before, during, or after the shooting. There was no evidence that any gang members had bragged about their involvement or taken credit for it. Nothing in the facts of the shooting suggested any specific gang motive. (Albarran, supra, 149 Cal.App.4th at p. 227.) The court concluded that the admission of the gang evidence -- particularly the threat to police officers, the Mexican Mafia tattoo, and the unrelated crimes of other gang members -- violated due process. There were no permissible inferences the jury could draw from this evidence, it was “extremely and uniquely inflammatory,” and “there was a real danger that the jury would improperly infer that whether or not Albarran was involved in these shootings, he had committed other crimes, would commit crimes in the future, and posed a danger to the police and society in general and thus he should be punished.” (Id. at p. 230.)
Pule’s case is very different. The gang motive for Tauanuu’s murder is plain as day. Veniale, a percipient witness, testified that the two rival gangs faced off after members of one gang challenged members of the other gang to fight. In Albarran, there was no evidence of gang rivalry at play or that Albarran’s gang challenged anyone at Bacelis’s home to fight. Pule asserts that “the impetus for the shooting came from Alex,” who stepped forward from the PVCC line and called out for Pule and Tuuamalemalo. He argues that, because neither gang announced its name or threw its hand signs, the confrontation was not gang-related but merely personal to Alex. These arguments adopt a fragmented and restrictive view of the evidence. Veniale’s testimony established that at least some of the members of each gang recognized members of the rival gang. Veniale knew Pule’s gang affiliation. Pule apparently recognized several PVCC members, as he personally approached the group inside the festival and challenged them to fight. Pule then walked out to the street, where other SOS members were gathered. When the PVCC members came out, the SOS members were lined up along the south side of the street, facing them. The SOS members announced they had guns. These facts as well as the established rivalry between the two gangs amply demonstrate that the confrontation and subsequent shooting arose from the gang ethos. No announcement or gang hand signal was necessary in this case, unlike Albarran, where the gunmen’s gang affiliation (if any) was unknown. Moreover, the SOS members did not shoot at Alex when he stepped out. Given their willingness to fire at Tauanuu, it is unlikely they would have restrained themselves if their animosity had been directed solely at Alex. The evidence does not support an inference that the confrontation and shooting was only personal and not gang-related.
Finally, the gang evidence here came from the defendants’ own mouths. They showed their gang allegiance and willingness to commit violent crimes on their gang’s behalf. This personal expression by Pule and Tuuamalemalo is wholly different from the gang testimony in Albarran, which was given by police officers who did not know Albarran and could not testify to his attitudes or mental state. The officers’ testimony in Albarran also discussed offenses committed by other members of Albarran’s gang, his Mexican Mafia tattoo, graffiti attributed to the gang (but not Albarran himself), and a threat by someone in the gang to murder police officers. In Albarran, other people essentially portrayed Albarran as a bad and dangerous person, based in part on the behavior of those with whom he associated. Here, Pule and Tuuamalemalo freely talked about their own views.
For all of these reasons, the inferences to be drawn from the tape recording were permissible, legitimate, and reasonable. The recording was very relevant to motive, intent, and the gang enhancement allegations. It was not highly inflammatory nor did it smear Pule by raising irrelevant matters. Its introduction did not render his trial fundamentally unfair, and therefore did not violate due process.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P.J., FLIER, J.