Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA317572, Rafael A. Ongkeko, Judge.
Law Offices of Fred Browne 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 and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
PROCEDURAL BACKGROUND
On June 14, 2007, an information was filed charging appellant Michael Rodriguez with assault with a deadly weapon on Anthony Alonso (Pen. Code, § 45, subd. (a)(1)). The information further alleged that appellant had personally inflicted great bodily injury upon Alonso (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)). Appellant pleaded not guilty to the charge and denied the special allegation.
All further statutory citations are to the Penal Code, unless otherwise indicated.
Trial was by jury. On February 22, 2008, the jury found appellant guilty as charged, and found the special allegation to be true. The trial court sentenced appellant to six years in prison.
FACTUAL BACKGROUND
A. Prosecution Evidence
At trial, the key prosecution witnesses were Anthony Alonso, who was 14 years old during the pertinent incident, and his 19-year-old sister, Halley Tabora. Alonso testified as follows: Prior to January 27, 2007, he had seen appellant two or three times in his neighborhood. At approximately 2:00 p.m. on that day, Alonso and Tabora walked from their home to a neighboring restaurant for lunch. Alonso wore a black sweatshirt displaying a large picture of his brother, Jason, who had been fatally shot in November 2005.
As Alonso and Tabora walked to the restaurant, a black car parked nearby. Appellant, accompanied by another person, got out of the car and approached Alonso. Appellant carried a hammer. When appellant asked Alonso whether he “wr[o]te” -- that is, was in a gang or crew -- Alonso responded negatively. Appellant then demanded to know who was pictured on his sweatshirt. After Alonso answered, “[M]y brother,” appellant “dissed” Jason, making disparaging references to “CLM,” “S4M,” and “Clamatos.” According to Alonso, “CLM” was the name of Jason’s former crew, and “S4M” referred to another crew.
Appellant swung his hammer at Alonso, striking the left side of Alonso’s head. Alonso fell to the ground, his head bleeding. After striking Alonso, appellant said “A2M, MAD,” which Alonso understood to be the names of crews. Appellant and his colleague then returned to the black car, which sped away. Alonso was eventually taken to a hospital, where the cut on his head was closed with staples.
Tabora testified as follows: Before January 27, 2007, she had seen appellant when she picked up her sister at school. In addition, in November 2006, she attended a party and looked at several photos, including a picture of appellant. After the party, Tabora kept the photos, including appellant’s picture.
On January 27, 2007, Tabora was walking toward a restaurant with Alonso, who wore a sweatshirt depicting Jason, who had been killed by the Playboys gang. Appellant and another person emerged from a black car, and appellant asked whose picture was on the sweatshirt. When Alonso told him, appellant said “Fuck Rowdy.” According to Tabora, “Rowdy” was Jason’s nickname. Appellant also said, “Fuck clamatos, safari monkeys,” which Tabora did not understand. Appellant then struck Alonso on the head with a hammer, knocking him to the ground, and said, “A2M, MAD.”
At trial, evidence was presented that the Playboys gang did not operate in Alonso’s neighborhood.
After Tabora accompanied Alonso to the hospital, she returned home and looked at the photos she had retained from the party with a friend, who belonged to the S4M crew. She recognized appellant in the photos, and her friend told her that appellant was a “rival.” Tabora was aware that there was “something with S4M and A2M,” but she knew nothing more. She later gave appellant’s photo to the Los Angeles Police Department (LAPD).
When an LAPD officer located appellant’s residence, he saw “A2M” graffiti on the curb in front of the residence. In searching the residence, investigating officers examined appellant’s bedroom, where they found a paper with the notation, “A2M,” and a chair with “Harpys” written on the armrest. In the backyard, they discovered “A2M” and “MAD” printed in an interwoven pattern on a tree, and “BONGS” on a wooden structure.
Los Angeles Police Department officer Rene Gonzalez, a gang expert, testified that “A2M” refers to a predominantly Hispanic gang that originated as a tag crew, and later merged with a gang known as “MAD.” The gang now uses both names. The term “Harpys” is an abbreviated version of “Dead End Harpys,” another Hispanic gang. A2M and the Dead End Harpys have a “strong relationship,” and share the same territory. “S4M” names a tagging crew engaged in rivalry with A2M, and “CLM” refers to a different tagging crew allied with S4M. S4M and CLM claim adjoining territories close to the area claimed by A2M and the Dead End Harpys. The assault on Alonso occurred within S4M territory.
According to Officer Gonzalez, gang rivalry produces violence. Encounters between members of rival gangs result in physical disputes and even murder. She also testified that gang members often assert their gang name when they commit crimes. As gangs prize their reputations, they punish nonmembers who use the gang’s name.
According to Officer Gonzalez, the graffiti found in and around appellant's residence referred to the A2M and Dead End Harpys gangs. “BONGS” was the moniker for a member of the A2M gang. Officer Gonzalez also testified that appellant lived in A2M territory, and had been seen with a member of the A2M gang and a member of the Dead End Harpys gang, whom she named. She opined that appellant belonged to the A2M gang.
B. Defense Evidence
Christian Rodriguez, appellant’s brother, testified that on January 27, 2007, he and appellant went to a car dealership to shop for a car. They arrived at 10:00 a.m., and left after 8:00 p.m. Angelina Ramirez, the girlfriend of one of appellant’s brothers, testified that at 11:30 a.m. on January 27, 2007, she arrived at the car dealership and saw appellant there. Appellant was still in the dealership when she left after 7:00 p.m. Gloria Oros, the former girlfriend of appellant’s cousin, testified that appellant was in the dealership when she went there between 2:30 and 3:00 p.m, and that he remained in the dealership when she left at about 6:30 or 7:00 p.m.
DISCUSSION
Appellant contends that the trial court erred in (1) admitting gang evidence and (2) instructing the jury with respect to this evidence. We disagree.
A. Admission of Gang Evidence
Appellant contends the trial court admitted unnecessary and prejudicial gang evidence, in contravention of Evidence Code section 352, as no gang allegation was asserted against him under Penal Code section 186.22. Before the trial court, appellant objected to the admission of gang evidence, including Officer Gonzalez’s testimony and evidence of gang membership found in appellant’s residence. In overruling the objections, the court found that the evidence’s probative value regarding identity, motive, and intent outweighed its prejudicial impact.
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, italics deleted.)
The trial court initially overruled the objections on the basis of the evidence’s probative value regarding identity and motive; the trial court later clarified that the evidence was also probative of intent.
Appellant argues the evidence of his association with the A2M gang, and the expert testimony on the A2M gang’s hostility toward the CLM and S4M gangs, was irrelevant, inflammatory, and excessive in scope. He also argues that the gang evidence was nothing more than bad character evidence improperly admitted to show his propensity to commit the crime with which he was charged (Evid. Code, § 1101, subd. (a)). For the reasons explain below, we reject appellant’s contentions.
“Evidence Code section 1101, subdivision (a) generally prohibits the admission of a prior criminal act against a criminal defendant ‘when offered to prove his or her conduct on a specified occasion.’ Subdivision (b) of the statute, however, provides that such evidence is admissible ‘when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, [or] knowledge...).’” (People v. Cole (2004) 33 Cal.4th 1158, 1194.)
Generally, in the absence of a gang enhancement, evidence of gang membership is properly excluded if its probative value is minimal, due to the potential for prejudice to the defendant. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Nonetheless, in cases of this kind, gang evidence is often admissible as relevant to “identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (Ibid.) California courts have long held that “it is proper to introduce evidence which is even unpleasant or negative pertaining to an organization in issue which is relevant on the issue of motive or the subject matter at trial.” (People v. Frausto (1982) 135 Cal.App.3d129, 140-141 (Frausto).) Numerous courts have admitted expert testimony on street gangs to establish motive, social structure, and other matters. (People v. Killebrew (2002) 103 Cal.App.4th 644, 654-655 [discussing cases].)
A partial survey of early case authority in Frausto indicates the breadth of these holdings: “In People v. Remiro (1979) 89 Cal.App.3d809, 841-844 [citation], it was proper to introduce evidence of various criminal acts of a terrorist group, the Symbionese Liberation Army, in order to show the nature of the conspiracy pertaining to a murder. [¶] In the same manner, in People v. Manson (1976) 61 Cal.App.3d102, 131, 155-156 [citation], it was proper to introduce evidence of the social structure, religion, and criminal activities of an organization known as the ‘Family’ because of its relevancy to the motivation and the nature of the conspiracy of the Tate-LaBianca murders. In In re Darrell T. (1979) 90 Cal.App.3d325, 328-334 [citation], the court discussed evidence concerning the history and nature of various juvenile gangs as it pertained to the proof of the existence of a motive relative to the crime of murder. In People v. Beyea (1974) 38 Cal.App.3d176, 194 [citation], evidence concerning a membership in the Hell’s Angels was deemed to be properly introduced relative to the issue of motive.” (Frausto, supra, 135 Cal.App.3dat pp. 140-141.)
In assessing appellant’s contention, we find guidance from our Supreme Court’s discussion in People v. Williams (1997) 16 Cal.4th 153 (Williams). There, the defendant was charged with a murder that occurred in 1982. (Id. at pp. 176-177.) As the crime and the defendant’s trial predated the enactment of section 186.22, no gang allegation was asserted against the defendant. (Historical and Statutory Notes, 47 West’s Ann. Pen. Code (1999 ed.) foll. § 186.22, pp. 465-467.) Prior to trial, the court denied the defendant’s motion under Evidence Code section 352 to exclude gang evidence. At trial, the prosecution presented testimony from an eyewitness that the defendant had shot the victim, as well as other evidence establishing that the defendant, a gang member, had acted to “protect” his gang’s territory by killing the victim, an apparent member of a rival gang. (Williams, supra, 16 Cal.4th at pp. 177-181, 194.) The defendant proffered an alibi defense. (Id. at pp. 181.) Our Supreme Court rejected the defendant’s challenge to the admission of the gang evidence under Evidence Code sections 352 and 1101, concluding that the evidence “had a ‘tendency in reason to prove’ (Evid. Code, § 210) that defendant had a motive for killing, and may indeed have shot, a young male [dressed in rival gang attire].” (Williams, at p. 194.) The court further concluded that the evidence’s probative value regarding motive and identity outweighed its prejudicial impact. (Ibid.)
We reach a similar conclusion here. As in Williams, the prosecution presented eyewitnesses who identified appellant as the assailant, and appellant responded with an alibi defense. As the prosecution’s gang evidence tended to show that appellant belonged to the A2M gang, which was hostile to the CLM gang, the evidence was relevant to establish both appellant’s identity as the assailant and his criminal state of mind, including his motive.
We also reject appellant’s contention that the gang evidence was excessive and inflammatory. The evidence consisted of Alonso’s and Tabora’s testimony regarding the assailant’s gang-related remarks; evidence describing the gang markings found at appellant’s residence; evidence placing appellant in the company of two known members of the A2M and Dead End Harpys gangs; and expert testimony from Officer Gonzalez, who explained the pertinent gang relationships and jargon, interpreted the markings at appellant’s residence, and opined that appellant was an A2M gang member. Because this evidence was closely tethered to the question of appellant’s culpability for the assault, we conclude it was neither unnecessary nor excessive in scope and quantity.
Appellant contends the gang evidence was irrelevant to the issue of intent, as assault with a deadly weapon is a general intent crime, not a specific intent crime (People v. Colantuono (1994) 7 Cal.4th 206, 215). We disagree. “When a defendant pleads not guilty, he or she places all issues in dispute, and thus the perpetrator’s identity, intent and motive are all material facts. [Citations.]” (People v. Walker (2006) 139 Cal.App.4th 782, 796.) General intent, like motive, may be established by circumstantial evidence. (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, §§ 3-4, pp. 201-204 [general intent]; 1 Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, § 119, pp. 466-468 [motive].) As gang evidence is admissible to prove motive (People v. Hernandez, supra, 33 Cal.4th at p. 1049), which is not an element of assault with a deadly weapon (see 1 Witkin & Epstein, supra, §4, at pp. 202-204), we see no basis to distinguish general intent, which is an element of the crime.
Our Supreme Court has explained: “‘When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.’ [Citation.]” (People v. Mendoza (1998) 18 Cal.4th 1114, 1127, quoting People v. Hood (1969) 1 Cal.3d 444, 456-457.)
Appellant also contends the gang evidence was inadmissible to show motive or intent because he denied any participation in the assault, and presented an alibi defense at trial. In view of Williams, he is mistaken. Appellant’s reliance on People v. Von Villas (1992) 10 Cal.App.4th 201 (Von Villas) is misplaced. There, a police officer was charged with robbery and a factually unrelated conspiracy to commit murder. (Id. at pp. 213, 217.) At trial, the officer denied having participated in the robbery, and testified that he had merely “play[ed] along” with another person planning a murder. (Id. at pp. 225-227.)
At trial, the prosecution presented evidence that the officer had offered to act as a contract killer and perform other crimes “for profit” prior to his participation in the charged conspiracy to commit murder. (Von Villas, supra, 10 Cal.App.4th at pp. 261-262.) In admitting evidence of the offers, the trial court instructed the jury that the evidence was relevant solely to establish the officer’s intent or motive concerning the charged offenses. (Id. at pp. 261-263.) The appellate court held that the evidence was irrelevant to the issue of intent or motive regarding the robbery, insofar as the evidence concerned certain offers to commit murder (and no other crime). (Id. at p. 263.) Here, unlike Von Villas, the gang evidence tended to establish appellant’s motive and intent regarding the charged offense. In sum, the trial court did not err in admitting the gang evidence.
We recognize that the Von Villas court, in concluding that the evidence was irrelevant to the conspiracy charge, remarked: “[The officer] denied any participation in the robbery..., therefore the issue of his intent was not relevant. Identification was the key issue, and the [evidence] did not refer to that issue.” (Von Villas, supra, 10 Cal.App.4th at p. 263.) However, this remark, viewed in context, appears to mean nothing more than that the evidence of the offers to kill had no proper bearing on any issue material to the robbery charge.
B. Limiting Instruction Regarding Gang Evidence
Appellant contends the trial court erred in instructing the jury with a modified version of CALCRIM No. 1403, which directed it to consider the gang evidence solely on the issues of motive, intent, and identity. We disagree. Generally, when gang evidence is properly admitted for limited purposes, CALCRIM No. 1403 is “neither contrary to law nor misleading,” as “[i]t states in no uncertain terms that gang evidence is not admissible to show that the defendant is a bad person or has a criminal propensity,” and “allows such evidence to be considered only on the [germane] issues.” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1168.)
As given, the instruction stated: “You may consider gang-related evidence only for the limited purpose of deciding: [¶] Whether the defendant had a motive or intent to commit the crime charged; [¶] OR [¶] Whether the identity of the assailant may have been established. [¶] 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 disposition to commit crime[s].”
Appellant attacks the instruction on grounds that we have discussed and rejected (see pt. A., ante), namely, that the gang evidence was improperly admitted to establish motive and intent. Aside from these contentions, appellant’s sole remaining challenge is that the unmodified schematic version of CALCRIM No. 1403 does not expressly enumerate identity as an issue for which the jury may consider gang evidence. However, the unmodified version provides a blank for the insertion of any “other reason [the] court admitted [the] gang evidence.” (Judicial Council of California Criminal Jury Instructions (2009-2010) CALCRIM No. 1403, italics deleted.) As we have explained (see pt. A, ante), the gang evidence was properly admitted to establish that appellant was Alonso’s assailant. There was no instructional error.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.