People v. Valle

Full title: THE PEOPLE, Plaintiff and Respondent, v. HECTOR RUBEN VALLE, Defendant and…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Feb 14, 2017

No. F069356 (Cal. Ct. App. Feb. 14, 2017)

Opinion

F069356

02-14-2017

THE PEOPLE, Plaintiff and Respondent, v. HECTOR RUBEN VALLE, Defendant and Appellant.

Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

PEÑA, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF137858B)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant Hector Ruben Valle was convicted at the conclusion of a jury trial on June 5, 2013, of the lesser offense of second degree murder of Cipriano Maldonado (Pen. Code, §§ 187, subd. (a); count 1),¹ assault of Abelardo Zorrilla with a deadly weapon (§ 245, subd. (a)(1); count 2), and participation in a criminal street gang (§ 186.22, subd. (a); count 3). The jury found true gang enhancements alleged as to counts 1 and 2 (§ 186.22, subd. (b)(1)), but could not reach a verdict on allegations that defendant committed the murder intentionally for a criminal street gang within the meaning of section 190.2, subdivision (a)(22), on the truth of a dangerous weapon enhancement alleging defendant used a knife (§ 12022, subd. (b)(1)), and on a great bodily injury enhancement (§ 12022.7) alleged in count 2. Codefendant Saul Gonzalez was acquitted of all three counts.

1 Unless otherwise designated, all statutory references are to the Penal Code.

On May 8, 2014, the trial court denied defendant's motion for new trial. The court sentenced defendant to prison for a term of 15 years to life for second degree murder, a term of four years on count 2 plus a consecutive term of five years for the gang enhancement. The court stayed defendant's sentence on count 3 pursuant to section 654. Defendant's total prison sentence is an indeterminate term of 15 years to life plus a determinate term of nine years.

Defendant contends the trial court abused its discretion, denying him due process, because it denied defendant's motion to sever his case from codefendant Gonzalez's case. Defendant contends the trial court erroneously allowed the testimony pursuant to Evidence Code section 1101, subdivision (b), of a probation officer who witnessed an uncharged crime occurring prior to the charged offenses. Defendant argues the trial court improperly instructed the jury on the limited admissibility of the other-crimes evidence. Defendant further argues the trial court erroneously denied his motion for a new trial based on the erroneous admission of the other-crimes evidence and newly discovered evidence concerning the probation officer's trustworthiness. Defendant argues the combination of these contentions resulted in cumulative error. We affirm the judgment.

FACTS

This case arose after a violent clash between two groups of young males in the Loma neighborhood of Bakersfield. After the clash, Abelardo Zorrilla and Cipriano Maldonado were stabbed. Zorrilla was wounded and Maldonado died at the scene from stab wounds to his neck. The prosecutor's theory was that either defendant or Gonzalez stabbed Maldonado, and the same person may have stabbed Zorrilla. The prosecutor argued the jury could find both defendants guilty without agreeing on who killed Maldonado under the theory they were aiding and abetting each other.

Background

The summer of 2011, defendant lived with Thalia Bravo and their children in a three-bedroom home in Bakersfield. Two other adults, including Bravo's brother Alberto Bravo, lived in the house.² Defendant's house was a party house, with a constant stream of people coming and going as well as drinking. Defendant and Bravo had been together for 10 years since defendant was 12 and Bravo was 13.

2 We refer to Thalia Bravo by her last name and use her brother's full name.

Defendant and his younger brother Ismael Valle were self-admitted members of the Okie Baker criminal street gang. Defendant had been a member of the gang since he was 13 years old and went by the moniker Soldier Boy or Soldier. Defendant's home was in territory claimed by the rival Loma Baker gang. Okie Baker graffiti, including defendant's moniker Soldier had been spray painted behind his house.

Codefendant Saul Gonzalez lived about 10 minutes from defendant's home. Gonzalez was 21 years old and was friends with Alberto Bravo. Gonzalez and Alberto Bravo were members of The Few Chosen (TFC), a tagging crew unaffiliated with the Okie Bakers. Matthew Vega was also a friend of Alberto Bravo's and spent time at defendant's home.

Jamie P. was 15 years old and was introduced to defendant and Bravo by her friend in February 2011. Jamie P. became a regular visitor at defendant's home and began dating Gonzalez.

In July 2011, Daniel V. was Cipriano Maldonado's best friend. They were both 15 years old. Abelardo Zorrilla was Maldonado's 18-year-old cousin and spent nearly every day with him. Zorrilla was also close friends with Daniel V. Zorrilla, Daniel V., and Maldonado were not gang members. Zorrilla described Maldonado as a "skater" and said neither one of them were gang "wannabes."

Events Leading to Incident

On July 29, 2011, Jamie P. arrived at defendant's home between 8:00 and 9:00 p.m. with her friend.³ There still was some light outside. Defendant and Bravo were both there. Bravo testified she did not remember exactly when she and defendant arrived home, but there was still light outside. Bravo explained her family went to Beale Park at 8:00 p.m., went to a friend's home between 9:00 and 9:30 p.m., and went back to their own home between 11:00 and 11:30 p.m.

3 All date references to the incident are to the year 2011 unless otherwise indicated.

When Jamie P. arrived at defendant's home, several people were already there including Matthew Vega, Ismael Valle, Luis Reyes, Alberto Bravo, and Angel Lopez. Jamie P. could not remember if Bravo's two sisters were there. Gonzalez arrived after it was dark outside. Bravo testified defendant was the only one drinking that evening, and on a scale of one to 10—with 10 being falling down drunk—defendant was a five. Jamie P. thought that most of those at the party were a little drunk.

Jamie P. described Ismael Valle, Reyes, and defendant as beginning to get aggressive, trying to pick a fight with the people who were walking by defendant's house. Jamie P. said "[t]hey were banging the opposite hood of where they're from." They were yelling out the name of the rival Loma gang to see how passersby would respond. Jamie P. had reason to believe defendant "bangs Okie." No fights occurred that evening despite defendant's conduct. Jamie P. thought defendant especially was trying to pick fights with people walking by his home. Gonzalez was not involved in this activity, did not interact with defendant, and spent his time arguing with Jamie P.

Gonzalez was wearing a black and red plaid shirt that evening as shown in People's exhibit 28, wore earrings, and had piercings in his lower lip. Jamie P. told police officers that defendant was wearing a white or gray shirt and blue shorts. Defendant had a goatee, had "OB 13" tattooed on his arms, and was wearing a white T-shirt when he was arrested as depicted in People's exhibit 2. Bravo initially told police defendant was wearing a white tank top during the incident, but changed her account and said he was wearing a dark blue shirt without sleeves with dark-colored gym shorts. Ismael Valle was wearing a charcoal gray shirt.

Maldonado, Daniel V., and Zorrilla left Daniel V.'s home on foot between 2:00 and 3:00 a.m. the morning of July 30. They were getting rid of a stray dog that had been bothering Daniel V.'s dog; they took it to an alley south of Oregon Street and left it there. As the three headed back on Brown Street toward Daniel V.'s home, a green Honda drove past them as they were crossing Oregon Street. Bravo owned the green Honda.

Defendant drove the car in search of marijuana with Bravo, Jamie P., Gonzalez, Vega, Ismael Valle, and one of Bravo's children as passengers. Reyes was not in the car. Bravo and her daughter were in the front passenger seat. Ismael Valle and Vega were sitting in the back seat with Gonzalez. Jamie P. was sitting on Gonzalez's lap. Jamie P. thought she and Gonzalez were going to be dropped off at his house to have sex before the others bought marijuana. Jamie P. did not initially explain this to police because she did not want her mother to know her plans for that evening.

Fight and Stabbings

Jamie P. thought defendant still appeared to be drunk and in a "hyped" state as he drove. Jamie P. did not see weapons in the car. Maldonado, Daniel V., and Zorrilla were walking just past Oregon Street. Defendant yelled "Okie" at them as he drove through the intersection of Oregon and Brown Streets. Jamie P. saw Maldonado "throw" an "L" sign with his hand and defendant reported this to the others in the car. Bravo explained that "L" stood for the rival Loma gang and the young men were the ones who started "banging" as the car drove through the intersection. Vega yelled "B Dub," Gonzalez yelled "TFC," and defendant and Ismael Valle yelled "Okie."

Daniel V. testified that when the green Honda passed them, someone in the car yelled "OB" which stood for Okie Bakers. Daniel V. yelled back "Gage Street," which is a subset of the Loma Baker gang, and Zorrilla said "Loma." Daniel V. was not sure whether Maldonado threw an "L" gang sign or just "flipped off" those in the green car. Zorrilla denied meaning anything by the comments, explaining he and his companions did not want to fight, and none of them were gang members. According to Zorrilla, everyone uses gang slurs and doing so is not a big deal. Zorrilla also heard someone in the green car yell "OB" and Daniel V. yelled out "Gage Street." They continued walking down Brown Street. Maldonado took off his shirt not because he wanted to fight but because it was hot.

According to Bravo, defendant had a temper and got angry when pedestrians started banging. Defendant sped up, took right turns on nearby streets, and headed up Brown Street toward the three young men. Jamie P. believed defendant seemed anxious to fight. No one was speaking or telling him what to do. Jamie P. explained that defendant pulled over the car, got out, and told the others, "Let's go." According to Jamie P., defendant was the oldest and it seemed to her he "ran" the others. Defendant made the decisions. All the males exited the car and took off running.

Bravo moved to the driver's seat and told Jamie P. to hold the baby and sit in the passenger seat. Bravo drove the car toward where the males had run and made a U-turn not far from where they were encountering Maldonado, Daniel V., and Zorrilla. Jamie P. could see the males fighting, but not clearly at first because she could not determine who was fighting who. Jamie P. described the fight happening in about 60 seconds. Maldonado and Gonzalez struck each other about five times each for five to six seconds, but Jamie P. could see Gonzalez's hands and he was not holding a knife. Maldonado briefly grabbed Gonzalez's neck, Jamie P. was distracted by the baby for about 20 seconds, and when she looked back at the fight, Gonzalez had stepped away from Maldonado.

Jamie P. then saw defendant begin to fight Maldonado. She was 25 feet away from the combatants. Jamie P. saw defendant strike Maldonado but could not tell at first whether he had a knife in his hand. Defendant struck Maldonado in a hook-like motion that looked different from a punch. As defendant pulled his hand away from Maldonado, Jamie P. could see a knife in his right hand. Maldonado immediately stopped, grabbed his neck, stumbled a few feet, and fell down. Blood was gushing over Maldonado's chest before he fell down. Maldonado's friends surrounded him and yelled defendant had killed their "homey." Defendant stood staring at the bleeding victim for a moment until everyone yelled at him to get back into the car.

At first, Jamie P. denied telling police she saw defendant return to the car with a bloody knife in his hand. Jamie P. said she was not drunk the night of the incident, but she was afraid she might get into trouble. She changed her story about looking for marijuana because she did not want her mother to know what she was doing. Jamie P. was afraid at trial because she had received threats and was trying to be brave. Jamie P. was scared when Bravo walked into the courtroom. When defendant returned to the car, Jamie P. saw him holding a knife with blood on it, just as she told the police after the incident. When they returned to the house, Gonzalez did not have blood on himself.

Bravo testified that after she drove the car, made the U-turn, and stopped, she looked back to watch the fight. Bravo saw a guy walking who had been cut. The guys scattered and came back to the car. Everyone went back to Bravo's home but no one had blood on them. Bravo did not see who was fighting who, and she did not know who stabbed Maldonado. Bravo did not see the fight start or who threw the first blow. Bravo believed she was parked 50 to 55 feet away from the fight and did not see any knives. According to Bravo, Gonzalez was wearing the plaid shirt depicted in People's exhibit 28.

Daniel V. testified the guy with lip piercings wearing a black and red plaid shirt similar to the one depicted in People's exhibit 28 swung first and struck Maldonado in the neck. Daniel V. said the shirt depicted in People's exhibit 28 had one extra color than the plaid shirt worn by Maldonado's attacker. Daniel V. explained the first punch was to the neck, and the fight lasted for 10 minutes. Daniel V. later saw the guy in the plaid shirt with a knife in his left hand. He also saw a second assailant with a knife.

A light-skinned assailant wearing a gray shirt and a goatee was one of the attackers. Zorrilla did not think Gonzalez had the same light color of skin. Zorrilla could not recall who was fighting with Maldonado. The man in the plaid shirt and lip piercings took the first swing. Zorrilla, however, did not see the assailant in the plaid shirt with a knife. It was the assailant with light skin that Zorrilla saw with a knife. Zorrilla thought People's exhibit 28 looked similar to the plaid shirt worn by the assailant.

Zorrilla was jumped, suffered several blows, and blacked out before he threw any punches. Zorrilla regained consciousness and noticed the green car driving up. After the blackout, Daniel V. called Zorrilla. Zorrilla said he threw some punches. According to Zorrilla, the fight ended when blood began pouring out of Maldonado's neck. Within 30 to 40 seconds Maldonado lost control of his body. Zorrilla caught Maldonado and placed him on the ground. Initially Zorrilla testified the fight lasted two to three minutes, later he testified the fight lasted three to four minutes. The fighting stopped and the assailants left the scene in the car. The assailant with light skin paused before running back to the car.

Zorrilla said the first swing at Maldonado was made by the man with piercings and the plaid shirt, but Zorrilla did not see this man holding a knife. Zorrilla reiterated his earlier testimony that he saw one assailant that evening with a knife. He did not see the person who stabbed him and did not see Maldonado being stabbed. Zorrilla said the man with the knife was light skinned and was wearing a dark shirt. Zorrilla suffered a two-inch stab wound that required hospitalization and two staples.

Jamie P. stated after they went back to defendant's home, he and Bravo prevented her from leaving until daylight, even though Jamie P. wanted to go home. Bravo threatened Jamie P. about coming to court and testifying because she would "be caught in the streets." Jamie P. was very fearful to testify and as soon as she saw Bravo, she wanted to get off the witness stand as soon as possible. Bravo denied preventing Jamie P. from leaving their home after the incident and denied threatening Jamie P. about testifying at trial. According to Bravo, defendant denied stabbing Maldonado. Also, defendant was a good fist fighter and did not need a knife.

Statements to the Police

When Jamie P. was questioned by police, she told them defendant was wearing either a white or gray shirt the night of the incident. During the fight, Jamie P. saw defendant step behind Maldonado and cut or stab him on the right side of his neck. After the fight, defendant was holding a bloody knife in his left hand. Jamie P. also overheard someone tell defendant to get rid of the knife. She did not tell police that she had planned on going to Gonzalez's home to have sex.

Bravo initially told police Luis Reyes was at the fight while she was home asleep. Police, however, had a receipt from Jack-in-the-Box from Bravo's car for the morning of July 30 at 4:00 a.m. Bravo expressed fear for her personal safety if she came to court. Bravo then said defendant was driving and she was a passenger when words were exchanged with another group of males. The males in the car got out to fight. Bravo said Reyes, Ismael Valle, Jamie P., and another guy were in the back seat. When Bravo saw the fighting, she drove home.

Bravo said nothing about her child being in the car. Bravo explained defendant had a problem with these three males in the past and they came to her home threatening her and defendant. One had come to their home and threatened them, although she could not provide a date. Although Bravo initially said defendant was wearing a white shirt, she changed her story and said he was wearing a dark blue tank top. Bravo told police defendant carried a black pocket knife and so did Reyes. Bravo told police she never saw the stabbing.

When questioned by police, Daniel V. had claimed he did not yell anything at the passing green car. He had also said he saw three people with knives at the fight. Zorrilla had told investigators that when someone yelled "Okie Bakers" from the car, he yelled back "Loma." Zorrilla also said that Daniel V. threw an "L" with his right hand. Zorrilla had not told the police he had blacked out during the fight. Zorrilla had not recognized Gonzalez in a photographic lineup as a participant in the fight.

When Gonzalez was interrogated by police, he told them he had no idea why they were questioning him. Gonzalez said on the time of the incident he was with a woman in her 30's named Tonya and they went to Little Caesar's to have pizza and then "hung out" together at her house, where he slept from 11:30 p.m. until 3:30 a.m. when he went home to get ready for work. Gonzalez said he had been wearing a white Pro Club T-shirt and black shorts. When confronted with the fact that a search made of Gonzalez's house pursuant to a warrant revealed a checkered shirt, Gonzalez said he was wearing the checkered shirt.⁴ Gonzalez later admitted he was present at the fight and said the person he was fighting with was bleeding a lot.

4 Police searching Gonzalez's home found the word "Bakers" written in dust on a mirror on top of the dresser. In a kitchen closet, police found a shirt, variously described as plaid or checkered, admitted as People's exhibit 28. Police found a number of hairs at the bottom of the bathtub of defendant's home that looked similar to shaved facial hair.

Detective Michael Hale was lead homicide investigator in this case and interrogated defendant. Hale explained that during questioning, defendant initially denied he was involved in a fight and tried to place someone else at the scene. Defendant later said there was "some dude just laying right there" on the ground, and was "like what the fuck just happened." But defendant did not know what had happened, just "somebody stuck that fool." Defendant said he did not know who had the blade. Defendant said it was Gonzalez who "squared up" with Maldonado. Defendant claimed to be fighting another person and could not "believe that little guy got stuck." Defendant also said Reyes fought with the victim.

Defendant was given his Miranda ⁵ rights and agreed to questioning. His recorded interrogation was played for the jury. Defendant said he did not know who had a knife. Words were exchanged and a dark-skinned guy threw a punch at defendant. Gonzalez was next to defendant and started to fight a fat guy. Reyes was fighting the skinny little guy. Gonzalez was still fighting the "that fool" and Reyes came in between defendant and the person he was fighting. The "little guy" backed up grabbing his neck. Defendant did not see who had stabbed him. The guy defendant had been fighting yelled they had killed his "homie" and there was blood splattered everywhere.

5 Miranda v. Arizona (1966) 384 U.S. 436.

As questioning progressed, defendant said it was possible Gonzalez, not Reyes, squared off with the guy who was stabbed. Defendant said he was wearing a white T-shirt with blue shorts but later said they were all wearing dark colors that evening. Defendant said he shaved earlier and denied he shaved after the fight.

Defendant's Jail Conversation

A recording of a phone conversation defendant had with a relative after he was charged with murder was played for the jury. The parties stipulated it was defendant's voice on the recording.

"[E]verybody tells me have faith, have faith, and it's like, you know, how do you want me to have faith when God won't even give me a little ... something ... you know what I mean, treat me like Moses. You know what I mean, I was like, he started—he killed somebody too, you know what I mean, and, and you know what I mean, and God forgave him and, and God, you know what I'm saying, throughout [sic] him, you know, he brought Egypt out [sic] and then started ..., why can't he do that with me ...?"

Gang Evidence

The prosecutor and both defendants stipulated the Okie Bakers are a criminal street gang with more than three members within the meaning of section 186.22. Defendant's counsel further stipulated his client was a member of the Okie Baker criminal street gang. Bakersfield police officer Shane Shaff testified he had several contacts with defendant where defendant admitted he was a member of the Okie Baker gang. Ismael Valle also admitted to Shaff he was a member of the gang. Shaff had to arrest defendant and question defendant after he had been arrested.

Shaff saw defendant July 12, prior to this incident, after defendant reported being stabbed. Although Shaff did not witness this incident, defendant had slash marks and blood on his hands. Defendant claimed his assailants were Loma gang members. In Shaff's experience, people who disrespect gang members are subjected to violent acts including beatings, stabbings, shootings, and murder. Shaff explained the intersection of Brown and Oregon Streets in Bakersfield is Loma Baker gang territory. Shaff stated that tagging crews are generally in a different class from criminal street gangs. Some have become criminal street gangs, but tagger graffiti can be more artistic than gang graffiti.

Bakersfield police officer Travis Harless testified as the People's gang expert. Harless explained that Loma Bakers are a rival gang to the Okie Bakers. Gang rivalries lead to violence. Respect in a gang is a primary reason for violence between gangs. Respect is fear. The word "banging" means a gang member is imposing his influence or will on another person. The rivalry between the Loma Baker and Okie Baker gangs is long standing with a history of violence.

Shouting out to someone the name of a rival gang is disrespectful of that person. In the gang community, it is unreasonable for someone to walk away from disrespectful conduct because doing so is considered cowardly and tarnishes the image of the gang. Okie Bakers, OBM, the number 13, and the color blue are all signs and symbols of the Okie Baker gang. Primary activities of the Okie Baker gang include theft, assault with a deadly weapon, and murder.

The members of the Okie Baker gang were aware of the activities of other gang members. The prosecutor presented evidence of five predicate offenses by the Okie Baker gang. A certified court record was introduced as People's exhibit 32 of Ismael Valle's guilty plea to conspiracy to commit assault with a deadly weapon and with a gang enhancement in 2012.

People's exhibits 33 through 36 were certified court records of convictions of four Okie Baker gang members: Eric Castilleja, Danny Macia, Jose Medrano, and Victor Taporco. Harless personally encountered Eric Castilleja on multiple occasions in which he admitted being a gang member. A crime occurred in January 2007 in which Castilleja, Macia, Medrano, and Taporco were all involved and convicted. Eric Castilleja pled guilty to active participation in a criminal street gang in violation of section 186.22, subdivision (a). Medrano was convicted of assault with a deadly weapon and committing a felony on behalf of the gang. Taporco was found guilty of assault with a deadly weapon and a gang enhancement. Macia was also involved in the shooting. It is unclear whether he was found to have violated any provision of section 186.22.

Harless presented hearsay information of defendant's knowledge of the Okie Baker gang's criminal activities, including contact by police with defendant and another known gang member in 2006, an assault with a deadly weapon involving Ismael Valle in 2007, and an offense with a known Okie Baker gang member in 2009. Defendant identified himself as a gang member 12 times while being booked in jail.

Harless explained that in Bakersfield, the Loma Bakers and Okie Bakers are rival gangs. Harless believed defendant and his brother Ismael Valle were members of the Okie Baker gang based on their gang tattoos and Ismael Valle's conviction with a gang enhancement. He also believed Gonzalez was an active member of the Okie Baker gang on July 30.

Harless stated he could find no information indicating Maldonado, Zorrilla, or Daniel V. were gang members. Harless noted defendant did not have a prior history of using a knife.

Autopsy Report

Dr. Adel Shaker, a forensic pathologist, reviewed photographs and the autopsy report on Cipriano Maldonado. Maldonado died from a complex stab wound that involved two wounds to the right side of his neck. The first path came from behind the neck up to the middle of the neck, from the right to the left, up and down. The second path came from the middle of the neck upward and rightward, from below and went up the neck. Though the wounds were separate, they came together with edges from each wound meeting in the middle of Maldonado's neck. The wound was three inches deep, reaching the spinal cord. Together, the wounds were about seven inches long.

Dr. Shaker could not tell if the wounds were both made from the same knife. The wounds cut the jugular vein and the carotid artery supplying blood to the brain, and the vagus nerve leading from the brain to all internal thoracic and abdominal organs. The wounds would have caused death in less than five minutes. The victim could have walked and talked sensibly for a few minutes.

Gonzalez's Testimony

Gonzalez testified he was an artistic tagger with TFC and associated with other taggers who could draw and write. The TFC group was not a gang and did not draw gang graffiti. Gonzalez and Alberto Bravo were good friends. Neither one of them were gang members and Alberto Bravo was still going to high school. Defendant did not communicate with Gonzalez about gang activities and Gonzalez did not know defendant had been stabbed earlier in July. Gonzalez was finishing high school, had a good job, and had stopped doing graffiti in late 2010 or early 2011.

About 2:00 a.m., Gonzalez wanted to go home with Jamie P. to have sex. Defendant, Bravo, their child, Vega, and Ismael Valle were leaving to buy marijuana so they offered Gonzalez and Jamie P. a ride. Everyone got into the car. There was no mention of weapons or getting into a fight. Defendant drove with Bravo and their daughter in the front passenger seat. Jamie P. was sitting on Gonzalez's lap in the back seat with the others.

At the intersection of Brown and Oregon Streets they saw three males crossing the street on foot. One of the males yelled Loma; defendant yelled back Okie. Defendant slowed the car. Bravo told him to forget it and just keep going, but defendant felt disrespected. Defendant looked mad, and when Bravo asked defendant what he was doing, he replied, "fuck that" and said they were going back. Defendant drove the car back to where the three males were. Gonzalez did not want to go but felt defendant would have beaten him up if he did not comply because defendant does whatever he wants.

Defendant was wearing a dark shirt and shorts. Ismael Valle was wearing a darker colored shirt. Gonzalez was wearing the plaid shirt depicted in exhibit 28. Gonzalez also had lip piercings. During the incident, defendant had a goatee with long sideburns down to his chin.

When he exited the car, Gonzalez believed there would be a fight. The group began speed walking toward Daniel V., Maldonado, and Zorrilla. Gonzalez did not yet see any weapon. When the two groups converged, Daniel V. and Zorrilla were in front with Maldonado a few feet behind them. Gonzalez had never seen them before. Defendant was facing Daniel V. and Gonzalez was facing Zorrilla. Ismael Valle was behind defendant and Vega was behind Ismael.

After Zorrilla and defendant traded insults over Loma and Okie, Zorrilla threw the first punch at Gonzalez, striking him in the right cheek. Gonzalez tried to defend himself by throwing a couple of punches. Defendant and Ismael Valle went around Gonzalez. Zorrilla was getting the best of Gonzalez, so he backed off. As Gonzalez moved back, he saw Maldonado about 30 feet away on the ground grabbing his neck. Gonzalez did not have a weapon and did not see anyone else with one. Gonzalez did not see any stabbing. Gonzalez said he had not struck Maldonado.

When Zorrilla went to help Maldonado, Gonzalez ran back to the car. Before getting back into the car, Gonzalez looked back and saw defendant with an open pocketknife in his hand with a blade five to six inches long. He also later saw defendant with the knife inside the car. Ismael Valle kept asking defendant what had he done before telling defendant to get back into the car. Defendant took off his dark shirt and wrapped the knife in it. Both Ismael Valle and Bravo asked defendant what had he done. Everyone was shocked. Defendant told everyone not to say anything, which Gonzalez took as a threat. Back at defendant's home, Gonzalez overheard defendant say, "I stuck this fool."

Defendant's Testimony

Defendant testified he had felony convictions for possession of a deadly weapon and attempted burglary. Defendant was given the moniker Soldier Boy because he was always ready to fight. For defendant, there is no difference between being ready to fight for the gang or on a personal basis. Defendant placed some of the tagging on his back fence to protect his home. Some of the gang graffiti was placed by others on defendant's behalf.

Defendant admitted Reyes was not in the car the evening of the incident, though he then said he did not remember whether or not Reyes was in the car. Defendant clarified that he did not remember Reyes being in the car. Defendant later said he told officers Reyes was in the car, but he was mistaken and was not intentionally lying. Defendant described the passengers in the car consistently with other witnesses.

Defendant denied knowing the three males walking down the street the evening of the incident. When he drove past Maldonado, Zorrilla, and Daniel V., Gonzalez yelled a neutral slogan but Ismael Valle yelled Okie. Zorrilla twice yelled Loma. Defendant took the Loma chant as disrespectful but denied yelling Okie or anything else. Defendant said others in the car told him to pull over. Defendant did not want to do so because his daughter was in the car. As they drove up to another intersection, Gonzalez said, "let's go back." Defendant parked the car and all of the males exited the car at the same time. Defendant could not remember if he ordered them out of the car. Defendant said no one was looking for a fight that night and there was no mention of knives or other weapons.

Defendant's group walked over to the others and he exchanged expletive insults with Zorrilla over Loma and Okie. Gonzalez was next to defendant when Zorrilla threw the first punch at defendant. Gonzalez reached over and grabbed Zorrilla by the shirt as defendant was still fighting Zorrilla; Gonzalez only ripped Zorrilla's shirt. Defendant stopped fighting with Zorrilla, but Zorrilla continued to throw punches at Gonzalez. Daniel V. yelled to Zorrilla and defendant saw Maldonado holding his neck with blood on the ground. Maldonado could no longer stand and fell back.

Defendant admitted he was the last person in the car, but he did not have a knife. Defendant said he was wearing a white T-shirt and gym shorts that night. Defendant explained he was a dropout from the gang. Defendant asserted Bravo was untruthful when she testified that he kept a pocketknife. Defendant denied ever using a knife or seeing a knife the evening of the incident and said he only fought with his fists. Defendant denied stabbing Maldonado and Zorrilla. When he made the Moses comment in jail, defendant felt morally responsible for what happened.

Defendant also admitted that on July 9 he was confronted by five rival Loma Baker gang members at his home and he pulled out a shotgun. After doing so, the Loma Baker gang members left. Defendant denied pointing the shotgun at anyone and only brandished it to scare the people away. Defendant said the shotgun belonged to his cousin. Defendant dropped the gun and ran away from it when Probation Officer Lloyd Knowles arrived. Defendant denied Maldonado was one of the people to whom he brandished the gun. Defendant did not know the actual names of those individuals but said two of them had the monikers Palms and Hazek.

Shotgun Brandishing Evidence

Kern County Probation Officer Lloyd Knowles was called as a witness by Gonzalez's counsel.⁶ Knowles testified that on July 9, he was assigned to the electronic monitoring program. Knowles was dressed in a field uniform and driving a marked probation vehicle. Knowles saw defendant walking down the street and pulling out a firearm from his waistband. Knowles had been defendant's probation officer for some time and had several contacts with him in his office, at defendant's home, and at other locations in the community. The gun was a black shotgun with a stock, barrel, and pump.

6 During pretrial motions, the prosecutor stated he had no intention to call Knowles as a witness for the People's case because in conversations with Knowles, Knowles was uncertain of his identification of Maldonado and did not want to testify under penalty of perjury that he could place Maldonado at the scene of the shotgun incident.

Knowles exited his vehicle, used it as cover, and drew his department-issued firearm. Knowles commanded defendant to drop the weapon and stop. Defendant was with several other people. In total, there were eight to 10 people at the scene. Despite Knowles's commands for defendant to drop the shotgun, defendant ran into an alley, taking the shotgun with him. Knowles looked in the alley for 10 minutes for the gun but could not find it. With a felony conviction, defendant was prohibited from possessing a gun. Defendant was later apprehended and admitted to Knowles that he possessed the shotgun because there was a youngster running around showing disrespect.

On July 31, Knowles saw a news report about the homicide of Cipriano Maldonado showing his photograph. The photograph reminded Knowles of the person in the alley defendant had pointed the shotgun toward on July 9. Knowles saw similarity in the face and a hairstyle that was bushy and wavy. Knowles said he was certain of his identification of Maldonado.

On cross-examination, Knowles acknowledged his initial report on the incident noted defendant dropped the shotgun and ran away from Knowles. Knowles conceded there were eight to 10 people in the alley and he viewed them for "[n]ot very many" seconds. Knowles further conceded that in conversations with the prosecutor, he said he could not be certain that the person toward whom defendant brandished the shotgun was Maldonado, and Knowles had never met or spoken to Maldonado. On redirect examination, Knowles said the person he saw during the shotgun incident resembled Maldonado.

DISCUSSION

1. Defendant's Severance Motion

Defendant contends his pretrial motion to sever his case from Gonzalez's was improperly denied by the trial court because he and Gonzalez had antagonistic defenses. Defendant argues this was especially prejudicial because Gonzalez called Probation Officer Knowles to testify concerning the uncharged shotgun offense occurring three weeks prior to the stabbings. Defendant also argues the trial court's denial of his severance motion deprived him of due process and a fair trial. To support his contention, defendant argues his codefendant did not object to the admission of cumulative gang evidence, the codefendant sought the admission of Knowles's identification from the incident on July 9, and the codefendant sought admission of defendant's recorded confession in jail. Defendant maintains he was entitled to a separate jury after the trial court denied his severance motion.

We view all of this evidence individually and in combination as insufficient to demonstrate an abuse of discretion in the trial court's ruling or a denial of defendant's right to due process.

Pretrial Motions

Beginning on April 30, 2013, and continuing into the first two weeks of May 2013, the trial court conducted extensive in limine hearings. One of these was on Gonzalez's motion to bifurcate the gang issues. The motion included an Evidence Code section 402 hearing to evaluate the proposed testimony of Officer Harless. Gonzalez's attorney was concerned about the spillover effect of the gang testimony on the issue of guilt. Defendant's counsel had the same concern and joined in the bifurcation motion, noting it would be much easier than a severance of the trials of the two defendants.

In denying the defendants' motion to bifurcate all gang issues, the trial court found that evidence of the gang territory, membership, signs, symbols, beliefs, practices, criminal enterprises, and rivalries was relevant to proof of identity, motive, modus operandi, specific intent, and all other issues pertinent to culpability for the charged crimes. The court further found, pursuant to Evidence Code section 352, the probative value of the gang evidence outweighed its prejudicial effect. The court denied the motion to bifurcate as well as defendant's oral motion pursuant to section 1098 to sever the trial of the two defendants.⁷

7 Earlier in the proceedings, in February 2013, defendant's counsel sought a continuance to review extensive jail recordings of defendant's conversations with others. The prosecutor did not oppose the motion. Gonzalez's attorney did not oppose a continuance, but had reviewed the recordings and sought a severance for Gonzalez's trial. The trial court denied Gonzalez's request for a severance.

Prior to the start of trial on May 8, 2013, the trial court conducted an Evidence Code section 402 hearing on defendant's motion to exclude Knowles's testimony. Knowles's testimony largely paralleled his later testimony at trial. During the pretrial hearing, Knowles stated that when he saw Maldonado's picture on television after the homicide, he believed it "strongly resembled" one of the people he saw in the alley during the shotgun incident. Knowles contacted a detective with the Bakersfield Police Department who was investigating the case and told him about the earlier incident. The detective asked Knowles to prepare a memo narrating his recollection of events on July 9. Knowles stated that he believed the person he saw in the alley was Maldonado.

On cross-examination during the Evidence Code section 402 hearing, Knowles said the time span from when he saw defendant to when defendant ran away "seemed to happen pretty quick." Knowles's focus was on defendant who was holding a gun. There were two to four people standing next to defendant and four or five people standing in the alley. The group standing away from defendant was between 10 and 20 feet away from him. The person Knowles identified as Maldonado stood out to him because he did not have the typical appearance of a gang member. Knowles estimated he looked at Maldonado for as long as five seconds.

Maldonado ran off with the others away from Knowles's position. When asked if he ascertained for a certainty that the person he saw that day was Maldonado, Knowles replied, "No." Knowles acknowledged it was speculative for him to state as a fact the person he saw was Maldonado, there was no way to establish his identification as a fact, but in Knowles's opinion the person he saw was Maldonado. The prosecutor asked Knowles if the photograph he saw on television, in his personal opinion, was the person he had seen in the alley. Knowles replied his "initial reaction was that is the same person."

The prosecutor explained to the court that because he had a burden of proof beyond a reasonable doubt, he did not find Knowles's identification "solid enough" to support the People's accusation defendant was the killer. The shotgun evidence also did not fit the People's theory of the case. The prosecutor believed the proffer of this evidence by Gonzalez's attorney was subject to a lesser burden because it had exculpatory implications for his client. The prosecutor believed defendant's objection to the strength of the evidence concerned more the weight of the evidence than its admissibility. The prosecutor added Knowles's opinion that Maldonado did not look like a gang member would be enough to change the prosecutor's opinion concerning the quality of the identification. The trial court noted the lengthy questioning of Knowles, and questioned defendant's seeking "proof" that Knowles could positively identify Maldonado because it implied mathematical certainty.

Gonzalez's counsel replied that they had established the credibility of the witness and defendant's objections to the evidence only went to its weight. Defense counsel replied that if the trial court found Knowles's identification evidence admissible, defendant was lodging a motion to sever the case to let him have his own jury or to allow each defendant to have his own jury.⁸

8 During his argument, defendant's attorney argued that Gonzalez's counsel would not enter into a stipulation that there was a gang called the Okie Bakers and defendant was a member of that gang. The prosecutor and both defendants ultimately entered into this stipulation during trial.

The court found motive was a disputed and relevant fact. The court further found Knowles's identification evidence to be relevant and admissible. The court denied defendant's motion to exclude the testimony as well as his motion to sever the trial pursuant to section 1098. The court noted severance is not mandatory when codefendants present mutually antagonistic defenses.

Legal Principles

We review a trial court's denial of a severance motion for abuse of discretion based on the facts available when the court ruled on the motion. If the trial court abused its discretion, reversal is required only if it is reasonably probable the defendant would have obtained a more favorable result at a separate trial. If the trial court's joinder ruling was proper when it was made, a judgment may only be reversed on a showing joinder was so grossly unfair it amounted to a denial of due process. Where a defendant is charged with codefendants of having committed common crimes involving common events and victims, the trial court is presented with a classic case for a joint trial. (People v. Burney (2009) 47 Cal.4th 203, 237; People v. Lewis (2008) 43 Cal.4th 415, 452-453, overruled on another point in People v. Black (2014) 58 Cal.4th 912, 919-920.)

Section 1098 provides a legislative preference for defendants jointly charged with any public offense to be tried together unless the court orders separate trials. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 149-150.) The trial court may order separate trials in the face of an incriminating confession, prejudicial association with codefendants, likely confusion from evidence on multiple counts, conflicting defenses, or the possibility a separate trial would give exonerating testimony. The trial court's denial of a severance motion is reviewed for abuse of discretion based on the facts as they appeared at the time the court ruled on the motion. If the trial court's ruling is proper, a reviewing court may reverse a judgment only on a showing that joinder resulted in gross unfairness equivalent to a denial of due process. (Id. at p. 150.)

A classic case for joint trial occurs when defendants are charged with the same crimes arising from the same events. Where two defendants try to affix blame on each other, this is an insufficient reason by itself to require separate trials. Otherwise, the mere fact of conflicting or antagonistic defenses would negate the legislative preference for joint trials and separate trials would be mandatory in nearly every case. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 150.) A court abuses its discretion only when the conflict between the defendants concerning their antagonistic defenses is so prejudicial that the defenses are irreconcilable, leading the jury to unjustifiably infer that this conflict alone demonstrates both are guilty. When there exists sufficient independent evidence against the moving defendant, it is not the conflict by itself that demonstrates his or her guilt, and antagonistic defenses do not compel severance. (People v. Souza (2012) 54 Cal.4th 90, 111; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 43; People v. Letner and Tobin, supra, at p. 150.)

Joint trial has been prescribed and broadly allowed by the Legislature's enactment of section 954. Joint trials are proper where charges are connected together in their commission. (People v. Soper (2009) 45 Cal.4th 759, 771-772.) For a defendant to establish error where charges, or in this case defendants, are properly joined, he or she must make a clear showing of prejudice. The trial court's ruling amounts to a prejudicial abuse of discretion only where the ruling falls outside the bounds of reason. (Id. at p. 774.) Courts also consider whether consolidation would cause introduction of damaging evidence not admissible in a separate trial. (People v. Keenan (1988) 46 Cal.3d 478, 500 (Keenan).)

Analysis

Defendant relies on Keenan for the proposition that he was subjected at trial to evidence the prosecutor otherwise would not have sought to admit against him in a separate trial. Looking to the gang evidence, defendant relies heavily on a statement by his trial counsel in pretrial motions that Gonzalez's attorney would not stipulate to gang evidence involving the existence of the Okie Baker gang and defendant's membership in it. At trial, these facts were stipulated to by all the parties.

Defendant further argues the gang evidence was unduly prejudicial in light of his own willingness to admit gang membership. This argument is unconvincing because the conflict between defendant's group and Maldonado's group was based on gang affiliation, the location of gang territory, as well as the use of gang slogans, symbols, and signs. The stipulation by the parties of defendant's gang membership in the Okie Baker gang put none of the action immediately prior to the fight into any discernable context. The only way to do so was through the testimony of the gang expert, Officer Harless, and Officer Shaff, who had personal past encounters with defendant.

Gang evidence is relevant and admissible when the very reason or motive for the underlying crime is gang related. Because motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1168, see People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) Defendant's reliance on People v. Albarran (2007) 149 Cal.App.4th 214, 226-228, is unpersuasive because in Albarran, the prosecution admitted gang evidence that was irrelevant to the underlying offenses and was clearly prejudicial to the defense. Albarran is factually inapposite to the instant action.

Defendant also asserts that Probation Officer Knowles's testimony would not have been admitted against him in a separate trial because the prosecutor thought Knowles was not solid enough on the identification. This was based on a telephone conversation with Knowles long before trial. At the conclusion of the Evidence Code section 402 hearing on the admissibility of Knowles's statement, the prosecutor changed his mind, explaining Knowles's opinion that Maldonado did not look like a gang member would be enough to change the prosecutor's opinion concerning the quality of the identification. Thus, in a separate trial, it appears the prosecutor could well have sought admission of Knowles's testimony concerning the shotgun incident.

As we discuss in more detail post, Knowles's testimony concerning the uncharged crime was admissible. It went to defendant's motive to fatally stab Maldonado three weeks later. We agree with the trial court's finding that the certainty of Knowles's identification of Maldonado during the incident on July 9 went to the weight of the evidence, not its admissibility. During cross-examination, the jury heard Knowles acknowledge he was not absolutely certain of his identification of Maldonado. The jury had the opportunity to evaluate the strength of Knowles's testimony and accord it the proper weight.

Defendant also argues he was prejudiced by Gonzalez's introduction of his statement in jail, arguably implicating himself in the stabbing when he referred to Moses killing a man and being forgiven by God. As defendant himself concedes in his opening brief, however, this statement "while damaging, was far from being a clear expression of [defendant]'s admission that he stabbed Maldonado." The prosecutor indicated during pretrial motions he did not intend to offer this evidence at trial. The prosecutor sought the convictions of both defendants for the stabbings based on a theory they aided and abetted each other. From the prosecutor's perspective, this evidence may have weakened the People's case against Gonzalez in a joint trial. Faced with separate trials of each defendant, it is speculative to assume the prosecutor would not have used this evidence against defendant had the trial court severed trial of the defendants.

Defendant advances his argument, stating that without Gonzalez's gang stipulation, Knowles's testimony, and his statement in jail, he was forced to testify in his own defense and forgo his Fifth Amendment right to remain silent. Again, this appears to be speculative. Faced with a codefendant ready to testify, and given the conflicting testimony of witnesses concerning who stabbed Maldonado, defendant may well have chosen to testify in the absence of Gonzalez's introduction of the challenged evidence.

The question we face is whether the antagonistic defenses of the defendants led to the introduction of evidence implicating both of them as guilty of the crime. A court abuses its discretion only when the conflict between the defendants concerning their antagonistic defenses is so prejudicial that the defenses are irreconcilable, leading the jury to unjustifiably infer that this conflict alone demonstrates both are guilty. This did not happen here. When there exists sufficient independent evidence against the moving defendant, it is not the conflict by itself that demonstrates his or her guilt, and antagonistic defenses do not compel severance. (People v. Souza, supra, 54 Cal.4th at p. 111; People v. Coffman and Marlow, supra, 34 Cal.4th at p. 43; People v. Letner and Tobin, supra, 50 Cal.4th at p. 150.) There was abundant independent evidence establishing defendant's guilt, including Jamie P's testimony she saw defendant wield a knife at Maldonado and Bravo's testimony that defendant carried a knife. Jamie P. also saw defendant holding a knife after the incident.

Furthermore, courts consider whether consolidation would cause introduction of damaging evidence not admissible in a separate trial. (Keenan, supra, 46 Cal.3d at p. 500.) As discussed, the evidence Gonzalez sought to introduce against defendant would have been admissible against defendant in a separate trial. If the trial court's ruling is proper, a reviewing court may reverse a judgment only on a showing that joinder resulted in gross unfairness equivalent to a denial of due process. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 150.) Defendant has failed to demonstrate his trial was so grossly unfair as to deny him due process or that the trial court abused its discretion in denying his severance motion.⁹

9 Defendant argues in passing the trial court should have granted his request for a separate jury, citing People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1969) 391 U.S. 123. The Aranda-Bruton rule applies to cases where one defendant's incriminating extrajudicial statements implicate a codefendant. (People v. Jackson (1996) 13 Cal.4th 1164, 1207-1208.) Gonzalez did not implicate defendant as the person who stabbed Maldonado in his extrajudicial statements. Defendant alludes to Gonzalez's counsel as being a second prosecutor. As we discuss, however, defendant has failed to identify any evidence elicited by defense counsel that would have been inadmissible in a separate trial. (People v. Jackson, supra, at p. 1208.) Gonzalez's antagonistic defense also does not require severance or a separate jury. (Ibid.)

2. Other-crimes Evidence

Introduction

Defendant makes the following attacks on the testimony of Probation Officer Knowles concerning the shotgun incident on July 9. Defendant contends Knowles's testimony was inadmissible under Evidence Code sections 1101 and 352 because it lacked a logical connection to the instant offense, it was inadmissible to prove identity, the identification was too uncertain, and its probative value was outweighed by its prejudicial effect. Defendant contends the trial court failed in its sua sponte duty to instruct the jury with CALCRIM No. 375 on other-crimes evidence, and trial counsel was ineffective for failing to request this instruction.

Defendant contends the trial court abused its discretion and deprived him of due process in denying his new trial motion raising similar issues to those raised on appeal and because of newly discovered evidence unavailable prior to trial that Knowles was facing allegations of criminal wrongdoing. We find no error.

Evidence Code sections 1101 and 352

Evidence Code section 1101 prohibits admission of evidence of a person's character, including specific instances of uncharged misconduct, to prove the conduct of the person on a particular occasion. Subdivision (b) of Evidence Code section 1101 clarifies that this prohibition does not apply to admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition to commit crime. (People v. Fuiava (2012) 53 Cal.4th 622, 667; People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).)

Evidence a defendant committed crimes other than those he or she is currently charged with is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue such as motive, intent, preparation, or identity. The trial court has the discretion to admit such evidence after weighing its probative value against the prejudicial effect pursuant to Evidence Code section 352. In reviewing the admissibility of other-crimes evidence, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other-crimes evidence to prove or disprove a fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant, because, this type of evidence can be damaging. (People v. Fuiava, supra, 53 Cal.4th at p. 667.)

A trial court's rulings on the relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352 are reviewed under the abuse of discretion standard. (People v. Scott (2011) 52 Cal.4th 452, 491; People v. Fuiava, supra, 53 Cal.4th at pp. 667-668.) We further review the evidence in the light most favorable to the trial court's ruling. (People v. Edwards (2013) 57 Cal.4th 658, 711.) The trial court's exercise of discretion will not be set aside unless it is so arbitrary, capricious, or patently absurd that it results in a miscarriage of justice. (People v. Ochoa (2001) 26 Cal.4th 398, 437-438, abrogated on another point in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.)

For other-crimes evidence to be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses. The pattern and characteristics must be so unusual and distinctive as to be like a signature. (People v. Kipp (1998) 18 Cal.4th 349, 369-370 (Kipp); Ewoldt, supra, 7 Cal.4th at p. 403.) A lesser degree of similarity is required to establish relevance on the issue of common design or plan. The common features between the charged and uncharged crimes must indicate the existence of a plan rather than a series of similar spontaneous acts. The plan need not be distinctive. The least degree of similarity is required to establish relevance on the issue of intent. For this purpose, the uncharged crimes need only be sufficiently similar to the current alleged offenses to support an inference that the defendant probably harbored the same intent in each incident. (Kipp, supra, at p. 371; Ewoldt, supra, at pp. 402-403.)

Motive to commit an offense, though not itself an ultimate fact placed at issue by the charges or the defense, is probative of both intent and lack of justification for the offense. (People v. Demetrulias (2006) 39 Cal.4th 1, 14.) The probativeness of other-crimes evidence does not depend on similarities between the charged and uncharged crimes so long as there is a direct logical nexus between the offenses. (Id. at p. 15.)

When a defendant is charged with a crime and has had a previous relationship with a victim, including prior assaults on the same victim, issues of identity, intent, and motive are admissible based solely upon consideration of identical perpetrator and victim without resort to a distinctive modus operandi analysis. Evidence showing quarrels, antagonism, or enmity between an accused and the victim of a violent offense is proof of motive to commit the offense. It is also proof of the identity of the offender. (People v. San Nicolas (2004) 34 Cal.4th 614, 668 (San Nicolas); People v. Kovacich (2011) 201 Cal.App.4th 863, 893 (Kovacich); People v. Zack (1986) 184 Cal.App.3d 409, 415 (Zack); see Rufo v. Simpson (2001) 86 Cal.App.4th 573, 585-586.)

As explained in Kipp and Ewoldt, for other-crimes evidence to be admissible under Evidence Code section 1101, subdivision (b), the least degree of similarity between the charged and uncharged crime is necessary to show the defendant's motive to commit the charged offense. The Demetrulias case held the probativeness of other-crimes evidence does not depend on similarities between the charged and uncharged crimes so long as there is a direct logical nexus between the offenses. The San Nicolas, Kovacich, and Zack cases stand for the proposition that of distinctive modus operandi analysis is unnecessary where there is evidence showing quarrels, antagonism, or enmity between an accused and the victim of a violent offense because it is proof of motive to commit the offense.

Knowles testified that when he saw a picture of Maldonado after the killing, he looked like the young man defendant had pointed a shotgun at on July 9. Despite defendant's arguments to the contrary, this is a direct logical nexus between the shotgun incident on July 9 and the knife attack on Maldonado and Zorrilla. The evidence shows defendant had a motive to commit the charged offense. It is also evidence of a quarrel, antagonism, or enmity between defendant and Maldonado, which does not require analysis of a distinctive modus operandi. The evidence was, therefore, admissible to show motive and had a logical nexus to the charged offenses. Evidence of motive to commit an offense is evidence of the identity of the offender. (San Nicolas, supra, 34 Cal.4th at p. 668; People v. Daniels (1971) 16 Cal.App.3d 36, 46.) The identity of the person who stabbed Maldonado, whether it was defendant, Gonzalez, or someone else, was undeniably at issue here.

Defendant further attacks Knowles's identification of Maldonado as being unreliable because Knowles was uncertain of his identification. Knowles saw a news report on July 31 about the homicide of Maldonado showing his photograph. The photograph reminded Knowles of the person in the alley defendant had pointed the shotgun toward on July 9. Knowles saw similarity in the face and a hairstyle that was bushy and wavy. Knowles said he was certain of his identification of Maldonado.

On cross-examination, Knowles conceded there were eight to 10 people in the alley and he viewed them for "[n]ot very many" seconds. Knowles further conceded that in conversations with the prosecutor, he said he could not be certain that the person toward whom defendant brandished the shotgun was Maldonado, and he had never met or spoken to Maldonado. On redirect examination, Knowles said the person he saw during the shotgun incident resembled Maldonado.

The jury watched Knowles being examined and cross-examined concerning the certainty of his identification of Maldonado as the person defendant aimed a shotgun at on July 9. As we read Knowles's testimony, he harbored some degree of uncertainty that Maldonado was one of the people he saw on July 9. This does not suggest Knowles's testimony was inherently unreliable. As the trial court noted during the pretrial hearing, the parties should avoid trying to achieve a mathematical certainty concerning the accuracy of the witness's observation. To the extent Knowles's testimony was inconsistent or uncertain, this affects the weight, not the admissibility, of his testimony and is a matter for the jury to decide. (People v. Virgil (2011) 51 Cal.4th 1210, 1256; People v. Williams (1973) 9 Cal.3d 24, 37, disapproved on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.)

Defendant further argues the probative value of Knowles's observation outweighed its prejudicial effect under Evidence Code section 352. Defendant asserts the error was so egregious he was denied a fair trial and due process. We reject this argument.

After correctly determining the shotgun evidence was relevant and admissible under Evidence Code section 1101, the court determined whether the evidence was made inadmissible by Evidence Code section 352. A court has discretion to exclude relevant evidence pursuant to Evidence Code section 352 if its admission would necessitate undue consumption of time, create substantial danger of undue prejudice, confuse the issues, or mislead the jury. The prejudice referred to in Evidence Code section 352 applies to evidence that uniquely tends to evoke an emotional bias against a defendant as an individual and has very little effect on the issues. In applying Evidence Code section 352, prejudicial evidence is not made inadmissible because it is damaging. Prejudicial evidence is not synonymous with damaging evidence. The relevant factors for determining prejudice are whether the prior acts were more inflammatory than the charged conduct, whether there is the possibility the jury might confuse the prior acts with the charged acts, whether the prior acts were more recent or remote in time, and whether the defendant had already been convicted and punished for the prior offenses. (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)

Evidence Code section 352 grants the trial court discretion to exclude evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The probative value of the evidence is measured by four factors: (1) the inflammatory nature of the uncharged conduct, (2) the possibility of confusion of issues, (3) the remoteness in time of the uncharged offense(s), and (4) the amount of time involved in introducing and refuting evidence of the uncharged offense(s). We review the trial court's determination for abuse of discretion and affirm it unless the ruling is arbitrary, whimsical, or capricious as a matter of law. (Ewoldt, supra, 7 Cal.4th at pp. 404-405; People v. Culbert (2013) 218 Cal.App.4th 184, 192.)

Applying these factors, the incident on July 9 in which defendant brandished a shotgun toward a group of people, including Maldonado, is less inflammatory than stabbing Maldonado fatally in the neck. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211 [confrontation between gang members wielding mace and baseball bats in which defendant brandished a handgun showed motive and intent in charged crime of murder].) The possibility of confusion of issues was negligible because the incident on July 9 was separated by three weeks, took place quickly, and did not involve complex facts. The incident was not too remote in time, occurring within weeks of the charged offenses. The amount of time to describe and refute this evidence was small compared to other evidence taking weeks to present. Contrary to defendant's argument on appeal, the evidence was not so egregious as to evoke emotional bias against defendant.

The record indicates the trial court properly understood and fulfilled its responsibilities under Evidence Code section 352. In so doing, the trial court did not abuse its discretion in finding the defendant's prior crimes evidence admissible. (People v. Williams (1997) 16 Cal.4th 153, 213.) Error in the admission of prior crimes evidence is reviewed pursuant to People v. Watson (1956) 46 Cal.2d 818, 836 to determine if it is reasonably probable that "a result more favorable to defendant would have resulted absent admission of this evidence." (People v. Welch (1999) 20 Cal.4th 701, 750.)

The admission of evidence, even if erroneous under state law, must make the trial fundamentally unfair as to result in a violation of due process. (People v. Partida (2005) 37 Cal.4th 428, 439, citing Estelle v. McGuire (1991) 502 U.S. 62, 70 and Spencer v. Texas (1967) 385 U.S. 554, 563-564.) Defendant has failed to demonstrate Knowles's testimony concerning the incident on July 9 was so unfair as to deprive him of due process. The trial court did not err in admitting the other-crimes evidence. Accordingly, defendant's challenges based on Evidence Code sections 1101 and 352, as well as his due process challenge, fail.

Instruction on Other-crimes Evidence

Defendant contends the trial court had a sua sponte duty to instruct the jury on other-crimes evidence pursuant to CALCRIM No. 375. Alternatively, defendant argues his trial counsel was ineffective for failing to request the instruction. We reject these contentions.

Absent a request, a trial court generally has no duty to instruct concerning the limited purpose for which evidence has been admitted. A narrow exception to this rule exists in the occasional extraordinary case in which the evidence at issue is the dominant portion of the case against the defendant and it is both minimally relevant to any legitimate purpose and highly prejudicial. (People v. Cowan (2010) 50 Cal.4th 401, 479; People v. Smith (2007) 40 Cal.4th 483, 516; People v. Hernandez (2004) 33 Cal.4th 1040, 1051; People v. Collie (1981) 30 Cal.3d 43, 63-64.)

The narrow exception is inapplicable here because Knowles's testimony was not a dominant part of the People's case and was, in fact, introduced by codefendant Gonzalez. The People's case involved the presentation of witnesses to the fight, statements to police during questioning after the incident, and relevant gang evidence. Knowles's testimony was not a dominant feature of trial for Gonzalez or the People, who did not seek its admission.

Defendant further argues his trial counsel was ineffective for failing to request a jury instruction on other-crimes evidence because CALCRIM No. 375 instructs the jury it has to find the other-crimes evidence true by a preponderance of the evidence and no other instruction did so.

The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel's decisionmaking is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.)

The People demonstrated defendant was a member of the Okie Baker gang, lived either in or on the border of Loma Baker territory, had the gang moniker Soldier Boy because he liked to fight, and was disrespected when he was stabbed by a Loma Baker on July 12. The evening of the stabbing of Maldonado, defendant, his brother, and other gang members stood outside his home trying to provoke physical fights. When defendant drove his group past Maldonado's group and yelled Okie, Maldonado and his friends yelled Loma back and made an "L" hand gesture, a Loma Baker gang symbol.

Defendant was anxious to fight, drove the car around the block, and parked it. Defendant yelled "Let's go" to the males in the car, ignoring Bravo's pleas not to go. Defendant challenged the other group by demanding to know where they were from. Jamie P. saw Gonzalez fighting with Maldonado, but could see Gonzalez's hands and he was not holding a knife. Also, Jamie P.'s testimony established defendant was leading the group into the fight. She said defendant "ran" the others.

Jamie P. saw Maldonado briefly grab Gonzalez's neck but she was distracted for about 20 seconds by the child on her lap. When she looked back at the fight, Gonzalez had stepped away from Maldonado. Jamie P. then saw defendant begin to fight Maldonado. She was 25 feet away from the combatants. Jamie P. observed defendant strike Maldonado but could not tell at first that he had a knife in his hand. Defendant struck Maldonado in a hook-like motion that looked different from a punch. As defendant pulled his hand away from Maldonado, Jamie P. could see a knife in his right hand. Maldonado was bleeding.

Although Zorrilla testified he saw Gonzalez throw the first punch, Zorrilla did not see anyone get stabbed. Daniel V. did not see Gonzalez with a knife when he saw Gonzalez initially punch Maldonado in the neck, though he thought the first blow was the stab wound. Gonzalez testified he heard defendant admit to Reyes after the fight that he had stabbed someone. Bravo told police defendant had had a problem with the three guys before. One had come to their home and threatened them, although she could not provide a date.

At first, Jamie P. denied telling police she saw defendant return to the car with a bloody knife in his hand. Jamie P. was afraid because she had received threats and was trying to be brave testifying. Jamie P. was scared when Bravo walked into the courtroom. When defendant returned to the car, Jamie P. saw him holding a bloody knife just as she told the police after the incident, affirming her account to the police that she saw defendant holding a bloody knife. When they returned to the house, Gonzalez did not have blood on himself.

Defendant's testimony was weak in light of the People's case. Defendant and Bravo told inconsistent versions of events, including placing Reyes at the scene of the stabbing in early statements to police and later stating Vega was at the scene. In his initial statements to police, defendant blamed Reyes for the stabbing, said he did not see who stabbed Maldonado, and he told police he saw Gonzalez square off with Maldonado. Defendant also contradictorily told police he was wearing a white T-shirt and later said he was wearing a dark colored shirt.

Though there are some conflicts in the evidence, there is substantial evidence defendant stabbed Maldonado. The other-crimes evidence was not a dominant part of the People's case. The shotgun incident on July 9 was not part of the prosecutor's case but Gonzalez's case and it helped explain defendant's motive. It was similar to Bravo's statement to police that defendant had a prior problem with the Maldonado trio, a statement that independently constituted proof of defendant's motive. Knowles's testimony is cumulative to Bravo's testimony. This evidence was not minimally relevant, and as discussed ante, it was not highly prejudicial. The narrow exception placing a sua sponte duty on the trial court to give the other-crimes evidence instruction, therefore, is not applicable here. (People v. Cowan, supra, 50 Cal.4th at p. 479; People v. Smith, supra, 40 Cal.4th at p. 516.)

We find counsel's failure to request this instruction was, at most, a tactical error, which is generally not reversible. More importantly, the People's case was strong in contrast to defendant's weak case. We conclude the record does not affirmatively demonstrate a reasonable probability that absent counsel's alleged error, the result of the trial would have been different.

3. Defendant's New Trial Motion

Background

Prior to sentencing, defendant brought a motion for new trial, asserting he was denied a fair trial because the court permitted admission of cumulative and prejudicial gang evidence and the court erroneously permitted Probation Officer Knowles to testify about the shotgun incident of July 9. The gist of defendant's argument on the new trial motion has already been discussed by defendant in his presentation of previous issues.

Defendant brought a supplemental motion for new trial based on newly discovered evidence that Knowles was under criminal investigation for improprieties, including theft, in his job as a probation officer. Defendant argued he did not have the opportunity at trial to impeach Knowles with his own wrongdoing. Defense counsel represented that had the investigation into Knowles's conduct been completed prior to defendant's trial, Knowles would not have testified and the jury would not have heard evidence of the shotgun incident, or had Knowles testified, the jury would have rejected his testimony as completely untrustworthy. Defendant's motion to obtain posttrial review of Knowles's personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 was granted on January 27, 2014. Defendant attached to his motion reports of investigators who conducted the investigation.

During his argument in the supplemental motion for new trial, defense counsel disagreed with the trial court's observation that the jury weighed the credibility of the two defendants and the witnesses because Gonzalez's counsel "picked 12 people he knew ... would be sympathetic" to Gonzalez and tried to show defendant as "the monster." Defense counsel argued that had defendant been aware of the new evidence of Knowles's wrongdoing, Knowles would not have testified, and if he had testified, defense counsel could have impeached him with police reports of the investigation.

Defense counsel stated his client would not have testified. Defense counsel argued Gonzalez was the only person next to Maldonado and the jury rejected the testimony of Maldonado's friends. Defense counsel stated it was disingenuous to elaborate on the testimony of Jamie P. and other witnesses because Knowles was used to paint a portrait of defendant as a monster and who also established a motive for defendant. Defense counsel argued Gonzalez only chose to testify after defendant chose to do so.

The prosecutor countered that the newly discovered evidence was admissible to impeach Knowles, but defense counsel was completely speculating concerning whether either defendant would testify in the absence of Knowles's testimony. The prosecutor pointed out that although Knowles was not impeached "with ugly stuff," he was impeached on how certain he was concerning his identification of Maldonado on July 9. The prosecutor described the shotgun incident as "a sideshow of the trial." The killing of Maldonado and stabbing of Zorrilla did not depend on motivation because there was "loud mouth" activity leading to a physical confrontation. The prosecutor also referred to defendant's jail statement that "Moses killed somebody too."

The trial court found Knowles's testimony to be cumulative and collateral, involving an incident three weeks before the stabbing. The court noted both defendants testified, giving the jury the opportunity to weigh their credibility and reach a decision. In denying defendant's motion for a new trial, the court found the newly discovered evidence did not show a reasonable probability the jury would have reached a different result on retrial.

4. Gang Evidence

Defendant argues at length that the gang evidence was superfluous, cumulative, and highly inflammatory. We disagree.

Gang evidence should not be admitted where its sole purpose is to show a defendant's criminal disposition or bad character. (People v. Memory (2010) 182 Cal.App.4th 835, 859.) Gang evidence is relevant and admissible when the very reason and motive for the underlying crime is gang related. Because motive is ordinarily the incentive for gang behavior, its probative value generally exceeds its prejudicial effect. (People v. Samaniego, supra, 172 Cal.App.4th at p. 1168.) Gang evidence, including expert testimony, is relevant to prove the elements of the substantive gang crime and gang enhancements. (People v. Williams (2009) 170 Cal.App.4th 587, 609; see People v. Vang (2011) 52 Cal.4th 1038, 1048.) Evidence of a defendant's gang affiliation-including evidence of the gang's territory, membership, signs, symbols, beliefs, practices, criminal enterprises, and rivalries—is proof of identity, motive, modus operandi, specific intent, and other issues pertinent to culpability of the charged offense. (People v. Hernandez, supra, 33 Cal.4th at p. 1049; People v. Williams, supra, at p. 609.)

To this end, the People not only presented the expert testimony evidence of Officer Harless, but also presented the testimony of Officer Shaff who had personal contact and experience with defendant.¹⁰ The testimony of these officers established the underlying motive for the crime. Whether or not defendant had an encounter with Maldonado three weeks before the stabbing, the exchange of gang slogans and signs between defendant's group and Maldonado's group was a sufficient basis by itself to explain motive in the stabbings of Maldonado and Zorrilla. Even though defendant stipulated to being a gang member of the active Okie Baker gang, the jury's understanding of gang culture, criminal activity, and rivalry would have been unintelligible without the testimony of Officers Harless and Shaff. The evidence was not unduly cumulative or prejudicial and the trial court did not err in rejecting this basis for defendant's new trial motion.

10 Harless presented hearsay information of defendant's knowledge of the Okie Baker gang's criminal activities, including contact by police with defendant and another known gang member in 2006, an assault with a deadly weapon involving Ismael Valle in 2007, and an incident involving an incident with a known Okie Baker gang member in 2009. This particular evidence was inadmissible because it is testimonial hearsay under the California Supreme Court's recent decision in People v. Sanchez (2016) 63 Cal.4th 665.
Defendant identified himself as a gang member 12 times after being booked in jail. The booking evidence appears to also be inadmissible pursuant to the Supreme Court's decision in People v. Elizalde (2015) 61 Cal.4th 523. Defendant has not made challenges pursuant to Sanchez or Elizalde, although in passing asserts this evidence was hearsay. Nevertheless, we have evaluated the record to determine whether there was prejudicial error in the admission of this evidence under Sanchez and Elizalde. Shaff's testimony was not based on testimonial hearsay but on Shaff's personal experience and encounters with defendant. Given the other admissible and undisputed gang evidence, including defendant's stipulations that he was an active member of the Okie Baker gang and the gang is a currently active criminal street gang, we find any error under Sanchez and Elizalde to be harmless beyond a reasonable doubt. (People v. Sanchez, supra, at pp. 696-699; People v. Elizalde, supra, at p. 542.)

Furthermore, the jury was instructed with CALCRIM No. 1403, a limiting instruction advising the jury only to consider the gang evidence for the limited purpose of considering intent or motive to commit the crimes charged, and to consider the facts and information relied on by the expert witness in reaching his opinion. It further instructed the jury it could consider gang evidence to evaluate whether defendant acted in the heat of passion or needed to defend himself. The instruction expressly advised the jury not to consider gang evidence for any other purpose, including that defendant has a bad character or disposition to commit crime. This instruction is a proper instruction and mitigated any prejudicial aspects to the gang testimony. (See People v. Samaniego, supra, 172 Cal.App.4th at pp. 1169-1168.) We presume the jury understood and followed the trial court's instructions. (People v. Hovarter (2008) 44 Cal.4th 983, 1005.)

5. Admission of Other-crimes Evidence

As discussed in detail above, the trial court did not abuse its discretion in admitting Knowles's testimony concerning the shotgun incident of July 9; it did not err in denying the defendant's motion on this ground.

6. Newly Discovered Evidence

The determination of a motion for new trial rests completely within the trial court's discretion and will not be disturbed on appeal unless it is clear there was a manifest and unmistakable abuse of discretion. (People v. Howard (2010) 51 Cal.4th 15, 42-43.) The trial court considers the following factors in ruling on a motion for new trial based on newly discovered evidence: (1) the evidence be newly discovered, not merely its materiality; (2) the evidence not be cumulative; (3) the evidence be of such a nature as to render a different result probable on retrial; (4) the party could not have discovered the evidence and produced it at trial with reasonable diligence; and (5) these facts be shown by the best evidence of which the case admits. The trial court may consider the credibility as well as materiality of the evidence in its determination of whether introduction of the evidence in a new trial would probably render a different result. (Ibid., citing People v. Delgado (1993) 5 Cal.4th 312, 328.)

A new trial on the ground of newly discovered evidence is not granted where the only value of the newly discovered testimony is as impeaching evidence or to contradict a witness of the opposing party. (People v. Hall (2010) 187 Cal.App.4th 282, 299.) This rule does not apply where the new evidence does more than merely impeach the main prosecution witness but tends to destroy the testimony of the primary prosecution witness by raising grave doubts about the witness's veracity and credibility. (People v. Huskins (1966) 245 Cal.App.2d 859, 862-863.)

The factors concerning whether the evidence of Knowles's alleged wrongdoing constituted newly discovered evidence are not under challenge. There is no dispute that defendant did not have access to this information prior to or during trial. The relevant factors in our analysis are whether this new evidence was cumulative, whether it was merely impeachment evidence of a witness other than the prosecution's primary witness, and whether the jury's knowledge of this evidence would have probably resulted in a different outcome at trial.

We agree with the People that the testimony given by Knowles was cumulative because it only corroborated Bravo's testimony that defendant had a prior dispute with Maldonado and his group. The new evidence itself was cumulative because it would impeach Knowles's credibility, something defendant already accomplished on cross-examination when he established Knowles was not as certain of his identification of Maldonado as he was during his direct testimony. Also, the new evidence would merely impeach Knowles, who was not the prosecution's primary witness at trial and was called as a witness by Gonzalez. Other witnesses conveyed far more direct and important information because they witnessed the stabbing or testified concerning how the Okie Baker and Loma Baker gangs functioned. We conclude there was little probability of the jury reaching a different verdict had defendant been able to impeach Knowles with the newly discovered evidence of his alleged misconduct.

7. Cumulative Error

Defendant asserts the combination of all the issues he has raised constitutes cumulative error. The cumulative effect of errors must be sufficiently prejudicial to warrant reversal of guilty verdicts. Where there are few errors and each one is harmless when separately considered, there is no cumulative error warranting reversal of guilty verdicts. (People v. Jurado (2006) 38 Cal.4th 72, 127; see People v. Jenkins (2000) 22 Cal.4th 900, 1056.) Defendant has not established error and there is no cumulative error.

DISPOSITION

The judgment is affirmed.

/s/_________

PEÑA, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SMITH, J.