Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 0801266.
Pollak, J.
Defendant Ramon Alejandre, Jr., appeals from his conviction of, among other crimes, first degree murder with an enhancement for benefiting a criminal street gang. He raises numerous issues on appeal, including several that arise out of the testimony of the prosecution’s expert witness on gang activity. We conclude that this testimony was properly admitted and that defendant’s other arguments on appeal are also without merit. We shall therefore affirm the judgment.
Factual and Procedural History
On January 30, 2008, the Contra Costa County District Attorney filed an information charging defendant with one count of murder (Pen. Code, § 187), with enhancements for benefiting a criminal street gang (§ 186.22, subd. (b)(l)), and discharging a firearm causing great bodily injury (§ 12022.53, subds. (b)-(e)). Defendant was also charged with one count of being a felon in possession of a firearm (§ 12021, subd. (a)(l)) and one count of conspiracy to commit aggravated assault (§§ 182, subd. (a)(l), 245, subd. (a)(2)). The information also alleged that defendant suffered a prior serious felony conviction within the meaning of sections 667, subdivision (a)(1), and 1170.12, and that he suffered a prior prison term within the meaning of section 667.5, subdivision (b).
All statutory references are to the Penal Code unless otherwise noted.
The following evidence was presented at trial:
The account of the murder came largely from two accomplices, Roberto Garcia and Juan Vargas. At the time of the murder in February 2007, Garcia was 20 and Vargas was 17. They had been friends for several years. Defendant, who was 31 at the time, is Garcia’s uncle. Defendant was a senior Sureño, known as an “OG, ” “Old Gangster” or “Original Gangster.” Vargas was a Sureño but at the time of trial claimed he was no longer a member of the gang. Garcia had taken steps to become a Sureño, but at the time of trial also denied membership in the gang.
Garcia and Vargas were also initially charged with the murder but agreed to testify against defendant as part of a plea bargain.
On the evening of February 2, 2007, defendant, Vargas, and Garcia were drinking beer together. At some point after 9:00 p.m., they went to buy more beer. Vargas drove Garcia and defendant in his truck as the three continued to drink beer in the truck. As they were driving down 11th Street in San Pablo, someone pointed to a youth walking on the sidewalk wearing red clothing and said he was a “chap, ” a derogatory term for a Norteño, another gang. At defendant’s request, Vargas pulled the car over near the corner of 11th and Stanton Streets. Vargas thought defendant was going to order him to fight the Norteño. Instead, defendant told Vargas and Garcia to wait in the truck. Defendant got out and walked toward the youth. Worried that defendant would do something to the boy and jeopardize defendant’s parole status, Garcia asked defendant to come back. Defendant again told Garcia to wait for him at the truck. While they were waiting for defendant to return, Garcia took two beer bottles from the truck and put them on the curb across the street from the truck. As he was heading back to the truck, Garcia heard several gunshots coming from the direction in which defendant had walked. Vargas heard the shots too and worried that perhaps the youth had shot defendant. He kept the truck idling. Defendant walked calmly back to the truck and the three drove away. Defendant did not answer when Garcia asked him “why had he did that?” None of them spoke of the shooting while in the truck, but later that night defendant told Garcia not to talk about it. At some point during the drive, defendant handed Garcia an empty ammunition clip and told Garcia to hold it for him.
Vargas drove to his girlfriend’s house where the three men stayed until around midnight, when they returned to the truck. Around 1:00 a.m., they were stopped by the police for a traffic infraction. As the truck was being pulled over, defendant placed his gun on the floor under the bench seat where he was sitting. The officer noticed Vargas had bloodshot, watery eyes, and smelled of alcohol. Vargas admitted to the officer he did not have a driver’s license. The officer asked the three men to identify themselves, ran their information, and then asked them to step out of the vehicle. As the officer was taking defendant out of the passenger seat, she noticed the butt of a gun under the seat, directly between defendant’s feet. She retrieved the gun, a loaded.45 caliber Springfield semiautomatic pistol, and arrested defendant. She also took custody of the empty clip from Garcia’s pocket.
Around 9:45 p.m., officers responding to a report of a shooting found the l5-year-old victim dead on the sidewalk on 11th Street. He had multiple gunshot wounds and was lying in a large pool of blood. Numerous expended.45 caliber shell casings were found on the sidewalk near the body. A firearms expert examined the expended cartridges and concluded that all had been fired by the.45 caliber gun that had been recovered under defendant’s seat. He also testified that six bullets recovered from the scene and from the victim’s body matched the brand and make of expended cartridges found around the body. The police also found Garcia’s fingerprints on two bottles of beer recovered from the comer of 11th and Stanton Streets.
Dr. Gregory Reiber, a board certified forensic examiner, described the injuries suffered by the victim and concluded that the victim died as a result of multiple gunshot wounds to his chest.
Following their arrests, Vargas and Garcia gave taped statements to the police identifying defendant as the shooter. Their taped statements were played to the jury.
The prosecution introduced extensive evidence of defendant’s gang activity. One deputy sheriff recounted an incident in jail on August 11, 2007, in which defendant had stated, “I’m a straight Sureño. We get even.” Other deputies described another incident in county jail on January 7, 2008, in which they observed defendant assaulting another inmate because, according to defendant, he was a Norteño.
Detective Jeff Palmieri testified as a gang expert. Based on his review of defendant’s gang-related criminal history, his statements and actions in jail, his tattoos, and statements he made at prison intake, Palmieri opined that defendant was a Sureño. He also opined that the crime was committed for the benefit of the Sureño gang and was done to build defendant’s status within the gang.
Defendant was found guilty of the charged offenses and the enhancements were found true. At a bifurcated court trial, the court found the prior conviction allegations true. Defendant was sentenced to an aggregate prison term of 90 years to life and filed a timely notice of appeal.
Discussion
1. Expert Testimony on Gang Activity
Detective Palmieri testified as an expert witness on gang activity. Palmieri had been a San Pablo Police Officer for 22 years and had been working with gang activity for more than 17 years. His expertise on gangs was derived from his work experience, numerous training classes and interviews with over 1, 000 gang members.
Palmieri described the area around the shooting as turf claimed by Sureños, and explained the war between the Sureños and Norteños gangs. He explained that Sureños primary activities include homicides, assaults, and drug sales, and that Sureños gain turf through acts of violence and intimidation. Palmieri recounted several recent violent crimes committed by Sureños for the benefit of the gang.
Palmieri described the origination and growth of the Sureños as an affiliated arm of the Mexican Mafia prison gang. Members of the Mexican Mafia, he explained, are “more of a hard criminal” than someone who is only a Sureño. Members of the Mexican Mafia are instructed to follow orders once released from prison, including shooting rival gang members on sight. The Mexican Mafia forbids drive-by shootings and requires its members to “walk up to the individual you suspect as a gang member and put them down.”
Through photographs, Palmieri detailed the many tattoos on defendant’s body. Palmieri explained the meaning of tattoos in Sureño gang culture and how the tattoos indicate status or role in the gang. The word “Richmond” across defendant’s knuckles and the Roman numeral “XIII” tattooed on his hand, torso and forearm demonstrated that defendant was a Sureño. Defendant also has the letter “M” tattooed on his hand indicating “an allegiance and respect to the Mexican Mafia.” Palmieri opined that a person with such tattoos “would be a full-fledged gang member of the Sureño gang. You would not be allowed to even have these type of tattoos if you weren’t.” Of particular interest to Palmieri was a tattoo on defendant’s right arm that depicted a man pointing a gun toward the viewer. Detective Palmieri explained. “If I was to see that on the street that would draw my attention based on my training and people that I have talked to who are gang members, this type of tattoo is indicative of someone who has been involved in shootings. I have seen tattoos on the forearms of double-barreled shotguns, or looks like it’s 3-D coming out at you, and these individuals are known and have a reputation for shooting at people.” Such a tattoo reflects the role of “an enforcer in the gang, someone who is willing to go out and do violent acts.”
Palmieri also described the different roles of gang members from “shot callers” and “OGs” to new members and affiliates. He explained that an OG has significant experience and seniority in gang society and serves as a role model for newer gang members by teaching them how to act and initiating new members in the ways of a Sureño. Palmieri testified that members rise in the ranks by committing crimes for the benefit of the gang. “So each time they got a new job and they did well they would receive more status and then they would gain respect from the gang and they would climb through the gang ranks. It’s called making your stripes.” Gangs use acts of violence to “intimidate [their] rival members and put fear into them” in order to obtain more turf. “If you show that you can basically walk up and shoot a rival gang member... right there on the street in front of other rival gang members they tend not to mess with you any longer. You tend to be the more violent dog on the street, so to speak, and then you can start chopping away and taking territory.” If the gang “can take somebody else’s turf and turn it into a drug area where [they] can sell narcotics, or [they] can turn their turf into an area where [they] can steal cars... then [they] have just gained a foothold and an economic base.”
Palmieri testified that he learned from his review of defendant’s criminal records that defendant had been an active member of the Sureño gang since he was 14. He had been convicted of a prior gang-related shooting and had served time in prison. While in prison he was involved in an altercation between Sureño and Norteño gang members. In forming his opinion, Palmieri also considered the fact that Garcia and Vargas had limited criminal histories.
Defendant raises numerous challenges to Palmieri’s testimony. We consider each in turn.
A. Palmieri’s testimony did not exceed the scope of his expertise.
Palmieri was qualified at trial as an expert on criminal street gangs in West Contra Costa County. As noted above, he testified extensively about the Sureños in general and within West Contra Costa, the significance of defendant’s tattoos, and about the Sureños’ connection to the Mexican Mafia. Defendant objected to Palmieri’s qualification as an expert on the ground that the qualification “is too broad, the area of expertise for the case” and the court overruled the objection. On appeal, defendant does not directly challenge this ruling, but argues that Palmieri’s testimony regarding the Mexican Mafia and the meaning of defendant’s tattoos exceeded the scope of his area of expertise.
Defendant’s failure to object to the specific testimony that he asserts exceeded the scope of Palmieri’s expertise, or to specify this ground of objection, forfeits his claim on appeal. (See People v. Bolin (1998) 18 Cal.4th 297, 321 [assertion on appeal that witness lacked necessary expertise under Evid. Code, § 720 was forfeited due to lack of objection]; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208 [defense counsel’s general objection to entirety of gang expert testimony insufficient to preserve objection to expert opinion on issue of defendant’s intent to benefit gang].)
In any event, the evidence indicates that Palmieri was qualified to testify on the challenged subject matter. Palmieri’s special training and more than 17 years of experience in observing gang culture and gang activities was sufficient to demonstrate the special knowledge, skill, experience and training needed to qualify him as an expert on these matters. (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1330 [witness’s “eight years dealing with the gang, including investigations and personal conversations with members, and reviews of reports suffices to establish the foundation for his testimony” regarding gang’s primary activities]; People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427 [gang expert’s personal familiarity with predicate crimes provided sufficient foundation for his testimony].) “ ‘ “Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility.” ’ ” (People v. Bolin, supra, 18 Cal.4th 297, 322.) Defendant has not established that Palmieri lacked adequate experience to express the opinions to which he testified.
B. Palmieri’s testimony did not violate defendant’s confrontation rights.
Palmieri acknowledged that much of his knowledge and expertise about the meaning of gang tattoos was drawn from conversations with gang members over the course of his career. Defendant raised a hearsay objection and at defendant’s request the court admonished the jury as follows: “Ladies and gentlemen, much of what Detective Palmieri is describing to you is [what] he has been told by people on the street and interview[s] [of] a number of gang members and so forth. The statements that those people made to Detective Palmieri are hearsay because they are not witnesses here in court, but I’m allowing Detective Palmieri to describe those to you so that you can understand the basis of his expert opinion, what they are founded on so you can make a judgment as to credibility and reliability and give to the opinions that Detective Palmieri is giving you, you need to understand the basis of the opinions, but because the statements are out-of-court statements they can’t be considered for the truth of the matters asserted because those people aren’t witnesses here today.”
Defendant contends that Palmieri’s opinion concerning the meaning of his tattoos violated his right to confrontation because it was based “in large part on hearsay statements from undisclosed parolees following release from prison.” Defendant acknowledges that an expert witness may rely on inadmissible evidence, including hearsay, in formulating an opinion and may testify as to the basis of his or her opinion. He argues, however, that under Crawford v. Washington (2004), 541 U.S. 36 (Crawford), an expert’s reliance on testimonial hearsay violates his Sixth Amendment right to confrontation.
Initially, the Attorney General disputes defendant’s claim that statements made by gang members in the conversations discussed by Palmieri were testimonial. In Crawford, the United States Supreme Court held that a defendant’s Sixth Amendment right of confrontation is violated by the admission of testimonial statements of a witness not subject to cross-examination at trial. In People v. Cage (2007) 40 Cal.4th 965, 984, the California Supreme Court elaborated on the nature of testimonial hearsay as follows: “First, ... the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined ‘objectively, ’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.’ ”
Defendant argues that statements made in the course of Palmieri’s interviews with gang members were testimonial because the purpose of Palmieri’s “ inquiry of gang members [is] not sociological or curious inquiry, but rather to gather information that is potentially relevant to criminal prosecutions. Further, the gang hearsay statements are accepted as true by Palmieri and are not tested with statistical or empirical inquiry. Thus, Palmieri is simply adopting the gang hearsay statements as true, and simply reiterating them in his capacity as a ‘gang expert.’ ” The Attorney General disagrees with this characterization, asserting that Palmieri’s “street contacts are designed to develop a better understanding of gangs and gang behavior within the community and are not out-of-court analogs of testimony, gleaned for use in a particular trial. They are obtained to develop an understanding of gangs and to develop and refine expertise.” We agree with the Attorney General’s characterization, particularly in this instance. Palmieri did not conduct any interviews for the purpose of gathering information for defendant’s trial. Nor did he obtain information specifically about defendant’s tattoos. Because the statements made by gang members in conversation with Palmieri were not testimonial, defendant’s confrontation rights were not infringed by Palmieri’s testimony.
Moreover, even if the statements could be considered testimonial, their admission did not implicate defendant’s confrontation rights. In U.S. v. Johnson (4th Cir. 2009) 587 F.3d 625, 635 the court held that while “Crawford forbids the introduction of testimonial hearsay as evidence in itself, ... it in no way prevents expert witnesses from offering their independent judgments merely because those judgments were in some part informed by their exposure to otherwise inadmissible evidence.” (See also People v. Thomas (2005) 130 Cal.App.4th 1202, 1210 [“Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion.”]; People v. Fulcher (2006) 136 Cal.App.4th 45, 57 [expert testimony concerning reports of defendant’s past violent conduct did not violate defendant’s right to confront witnesses]; People v. Ramirez, supra, 153 Cal.App.4th at pp. 1426-1427 [expert’s reliance on hearsay reports in forming opinion that predicate crimes were committed for the benefit of a gang did not violate Confrontation Clause].) The court in Johnson explained, “An expert witness’s reliance on evidence that Crawford would bar if offered directly only becomes a problem where the witness is used as little more than a conduit or transmitter for testimonial hearsay, rather than as a true expert whose considered opinion sheds light on some specialized factual situation. Allowing a witness simply to parrot ‘out-of-court testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of expert opinion’ would provide an end run around Crawford. [Citation.] For this reason, an expert’s use of testimonial hearsay is a matter of degree. [Citations.] The question is whether the expert is, in essence, giving an independent judgment or merely acting as a transmitter for testimonial hearsay. As long as he is applying his training and experience to the sources before him and reaching an independent judgment, there will typically be no Crawford problem. The expert’s opinion will be an original product that can be tested through cross-examination.” (U.S. v. Johnson, supra, 587 F.3d. at p. 635.)
In this case, Palmieri was not merely a transmitter of testimonial hearsay. He offered an interpretation of defendant’s tattoos based on information he had gathered though numerous conversations with gang members over the course of his career. Defendant was able to cross-examine Palmieri regarding his opinion and the jury was able to judge the credibility of his opinion in light of source of his foundational information.
C. Palmieri’s testimony regarding the meaning of defendant’s tattoos and the structure of the Mexican Mafia was not unduly prejudicial.
Defendant contends that the evidence regarding his tattoos and his connection to the Mexican Mafia, including the testimony that the Mexican Mafia prohibits “drive-by” shootings and directs its members to commit “walk-up” shootings, was highly prejudicial, amounting to inadmissible “profile” evidence. “A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime, ” and “is generally inadmissible to prove guilt” because it is “inherently prejudicial” due to “ ‘the potential of including innocent people as well as the guilty’ ” within the profile. (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084-1085.) Profile evidence unfairly relies upon the syllogism that “criminals act in a certain way; the defendant acted that way; therefore, the defendant is a criminal.” (Id. at p. 1085.) Such evidence invites the jury “to conclude that, because the defendant manifested some characteristics, he committed a crime.” (Id. at pp. 1086-1087.) In People v. Smith (2005) 35 Cal.4th 334, 357, the court explained, “ ‘Profile evidence, ’ however, is not a separate ground for excluding evidence; such evidence is inadmissible only if it is either irrelevant, lacks foundation, or is more prejudicial than probative.” The court reiterated that “[p]rofile evidence is objectionable when it is insufficiently probative because the conduct or matter that fits the profile is as consistent with innocence as guilt.” (Id. at p. 358.)
Contrary to defendant’s characterization, Palmieri’s testimony is not “profile evidence” within the meaning of these cases. “Not all testimony concerning general patterns of criminal activity is ‘profile’ testimony.... [¶]... [B]ackground testimony is not ‘profile’ evidence and does not specifically address the guilt or innocence of the defendant. Instead, it enables the jury to understand other evidence that does address guilt or innocence. [Citation.] Thus, in a prosecution for possession of cocaine for sale, the evidence might show recovery of only a small amount of the drug at defendant’s house together with recovery of a large number of small plastic Baggies. A police officer with appropriate expertise may be allowed to testify that cocaine is sold in small plastic Baggies in order to explain the meaning of the evidence itself.” (People v. Lopez (1994) 21 Cal.App.4th 1551, 1555-1556.) In People v. Castaneda (1997) 55 Cal.App.4th 1067, a police officer’s testimony that heroin dealers arrested in a particular area often turned out to be Hispanic adult males, was found to be improper profile evidence because it invited the jury to infer from the fact that defendant was Hispanic and lived in a particular locale that he was guilty of heroin dealing. (Id. at pp. 1071-1072.) In People v. Derello (1989) 211 Cal.App.3d 414, the court disallowed evidence that the defendants’ age and expensive jewelry they wore fit the profile of drug couriers. (Id. at p. 426.) However, evidence that defendants fit the profile of drug couriers because they used aliases and moved through the airport in an evasive manner was found to be admissible as evidence of the material facts of knowledge and intent. (Ibid.) The critical distinction drawn by the court was whether the evidence concerned innocent conduct or conduct indicative of criminal activity. (Ibid.) Palmieri’s testimony regarding the manner in which members of the Mexican Mafia commit murders is clearly conduct indicative of criminal activity. Likewise, the evidence regarding the accepted meaning of defendant’s tattoos is not “just as compatible with innocence as it was with guilt.” Palmieri’s testimony was probative and not unduly prejudicial.
Defendant acknowledges that “evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) He argues that even if such evidence is otherwise admissible, the court must carefully scrutinize gang-related evidence before admitting it because of its potentially inflammatory impact on the jury. (See People v. Carter (2003) 30 Cal.4th 1166, 1194 [“Although evidence of a defendant’s gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged-and thus should be carefully scrutinized by trial courts-such evidence is admissible when relevant to prove identity or motive, if its probative value is not substantially outweighed by its prejudicial effect”].)
Defendant’s tattoos are a public statement that he is willing to commit extreme violence on behalf of his gang and is relevant to show defendant’s motive. Defendant’s tattoo of the letter “M, ” especially in light of his exposure to the Mexican Mafia in prison, supports a reasonable inference that he was affiliated with that arm of the gang as well. Thus, Palmieri’s testimony regarding the Mexican Mafia also was probative of defendant’s motive and the specific intent to benefit the gang.
Contrary to defendant’s assertion, the evidence was not unduly prejudicial. (Evid. Code, § 352.) Evidence that is unduly prejudicial is that “ ‘ “which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues....” ’ In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.’ ” (People v. Doolin (2009) 45 Cal.4th 390, 439.) Here, it is unlikely the testimony regarding the meaning of defendant’s tattoos or his potential connection to the Mexican Mafia would have evoked an improper emotional reaction from the jury. Defendant’s gang affiliation was established through other substantial admissible evidence. In light of the other evidence, the evidence to which defendant objects is not particularly inflammatory. As the court observed in People v. Leon (2009) 181 Cal.App.4th 452, 462, “A defendant charged with committing a crime for the benefit of a criminal street gang has no entitlement to an antiseptic portrayal of himself. If he elects to portray himself as a killer before he commits a murder, he should not be able to have what is tantamount to a ‘name change’ thereafter.”
Defendant’s reliance on People v. Killebrew (2002) 103 Cal.App.4th 644 is misplaced. In Killebrew, the expert witness testified regarding the subjective knowledge and intent of the defendant and his gang associates. The expert testified that when one gang member in a car possesses a gun, every other gang member in the car knows of the gun and will constructively possess the gun. (Id. at p. 652.) On appeal, the court held that this testimony exceeded the scope of proper expert testimony. (Id. at p. 658.) In contrast, Palmieri testified regarding the generally accepted meaning of tattoos similar to defendant’s. He did not testify as to what defendant subjectively thought or intended his tattoos to signify.
The trial court did not abuse its discretion in permitting Detective Palmieri to provide expert testimony describing the significance of defendant’s tattoos or his potential affiliation with the Mexican Mafia.
2. The Autopsy Report
Doctor Brian Peterson performed an autopsy of the victim and prepared a report. Peterson moved to Minnesota before defendant’s trial and, to save significant costs, the prosecution did not subpoena him to testify at the trial. Instead, the prosecution secured an agreement from defendant’s attorney, in advance of trial, that Dr. Reiber would review the autopsy report and testify at trial.
Reiber testified that the victim died as a result of multiple gunshot wounds to his torso and extremities. He testified that some of the gunshot wounds were consistent with the victim standing and turning slightly to the right and others were consistent with the victim lying on the concrete. On cross-examination, Reiber acknowledged a few discrepancies between his opinions and Peterson’s opinions as expressed in the autopsy report. With respect to one of the gunshot injuries, the doctors disagreed as to which was the entry wound and which the exit wound. Defendant did not object to Reiber’s testimony on Sixth Amendment grounds.
Defense counsel did make a motion to prevent the prosecution from bolstering the credibility of Reiber’s opinion by arguing that defense counsel could have subpoenaed Peterson to testify had he thought the difference in the doctors’ opinions was important. The court observed that “the jury has in evidentiary form Dr. Peterson’s opinion of the report and Dr. Reiber’s opinion to the extent [he] disagrees, ” but indicated that it would grant a continuance if defendant wished to subpoena Peterson to provide additional testimony and suggested as an alternative that the parties could prepare a stipulation regarding his proposed testimony. Defense counsel confirmed that he was not seeking to introduce additional testimony by Peterson, and sought only to preclude certain argument by the prosecutor. The prosecutor advised the court that he had no intention of belaboring the point in argument and that any argument with respect to the autopsy reports “was not going to be the crowning jewel. It’s not even going to be a jewel in the crown of my closing argument.” The court granted defendant’s request.
On appeal, defendant contends for the first time that the “introduction of the autopsy report and testimony relating to the autopsy that had been conducted by another doctor abridged [his] right to confrontation.” The Sixth Amendment to the United States Constitution, made applicable to the states provides: “In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” As indicated above, in Crawford, supra, 541 U.S. 36, the Supreme Court held that a defendant’s Sixth Amendment right of confrontation is violated by the admission of testimonial statements of a witness not subject to cross-examination at trial, unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination. The court defined testimony as “ ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact, ’ ” and confirmed that the “core class” of testimonial statements includes affidavits, custodial examinations, prior testimony not subject to cross-examination, and “ ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ” (Id. at pp. 51-52.)
In People v. Geier (2007) 41 Cal.4th 555, the California Supreme Court applied Crawford in holding that the admission of laboratory reports containing an analysis of DNA evidence did not violate the confrontation clause even though the analyst who prepared the reports did not testify. (Id. at pp. 596-609.) The court concluded that contemporaneous recordings of observable events in laboratory reports are not testimonial because the biologist who generated the report generated it as part of her job and not to incriminate the defendant. (Id. at p. 607.)
In Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527] (Melendez-Diaz), the United States Supreme Court revisited the issue of what constitutes a “testimonial” statement. The court held that three “certificates of analysis, ” which showed that seized substances contained cocaine, were testimonial statements subject to Sixth Amendment protection because they were made under oath and under circumstances that would lead an objective witness to believe that the statement would be available for use at a later trial (Id. at p. ___ [129 S.Ct. at p. 2532].) The court observed that the certificates “are incontrovertibly a ‘ “solemn declaration or affirmation made for the purpose of establishing or proving some fact, ” ’ ” namely that the substance found in defendant and his codefendants’ possession was cocaine. (Ibid.) The court rejected the argument that a lab analyst’s report is not testimonial because it contains “near-contemporaneous” observations of a scientific test, rather than statements by lay witnesses of events observed in the past. (Id. at p. ___ [129 S.Ct. at p. 2535].) It also rejected a related argument that there is a difference between testimony recounting past events, “which is ‘prone to distortion and manipulation, ’ ” and testimony that is the result of “ ‘neutral, scientific testing.’ ” (Id. at p. ___ [129 S.Ct. at p. 2536].)
Relying on Melendez-Diaz, defendant argues that admission of Reiber’s testimony about the contents of the autopsy report prejudicially infringed his federal constitutional confrontation right. The Attorney General disputes defendant’s argument that Melendez-Diaz is applicable and contends that any potential error was harmless beyond a reasonable doubt. The Attorney General also argues that we need not reach the merits of defendant’s assertion because this claim was forfeited by the absence of contemporaneous objection at trial and by defense counsel’s express agreement to allow Reiber to testify in place of Peterson.
Numerous cases are currently pending in our Supreme Court concerning the right of confrontation under the Sixth Amendment when the results of forensic tests performed by scientists who did not testify are admitted and the effect of Melendez-Diaz, supra, 557 U.S. ___ [129 S.Ct. 2527] on California law as articulated in People v. Geier, supra, 41 Cal.4th 555. These pending cases include: People v. Dungo, S176886, review granted December 2, 2009; People v. Gutierrez, S176620, review granted December 2, 2009; People v. Rutterschmidt, S176213, review granted December 2, 2009; People v. Lopez, S177046, review granted December 2, 2009; People v. Anunciation (Dec. 22, 2009, D054988) [nonpub. opn.], review granted March 18, 2010, S179423; People v. Benitez, S181137, review granted May 12, 2010; and People v. Bowman, S182172, review granted June 9, 2010.
An objection that the introduction of evidence violates the defendant’s rights under the Confrontation Clause must be timely asserted or is forfeited on appeal. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19; People v. Burgener (2003) 29 Cal.4th 833, 869; see also Melendez-Diaz, supra, 557 U.S. at p. ___ [129 S.Ct. at p. 2534, fn. 3] [“The right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections”]; but see People v. Simms (1970) 10 Cal.App.3d 299, 310 [failure to object does not necessarily result in forfeiture of claim on appeal where objection would have been futile].) In this case, not only did defense counsel fail to object but he expressly agreed to the alternate witness. Defendant argues that there was no basis for an objection or disagreement with the prosecution’s request because “the controlling case at the time of the instant trial was People v. Geier (2007) 41 Cal.4th 555, which allowed hearsay testimony relating to business records, such as laboratory reports, into evidence as nontestimonial hearsay.” Crawford, however, was the governing law at the time of the trial, and in light of that decision an objection should have been made. (See Melendez-Diaz, supra, 557 U.S. ___ [129 S.Ct. at p. 2533] [noting that its ruling involves a “rather straightforward application of our holding in Crawford” and that it was only “faithfully applying Crawford to the facts of this case”].)
To forestall further proceedings claiming ineffectiveness of trial counsel, however, we consider the Sixth Amendment issue on the merits. In so doing we need not determine whether the autopsy report is testimonial within the meaning of the Sixth Amendment because even if it is, the admission of the report was harmless beyond a reasonable doubt. (People v. Jenkins (2000) 22 Cal.4th 900, 1015-1016 [finding it unnecessary to examine a “complex constitutional question, ” because any error was harmless].)
Confrontation clause violations are subject to harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681 [“an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt”].) “The correct inquiry is whether, assuming that the damaging potential of the [confrontation error was] fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” (Id. at p. 684.)
In this case, it is undisputed that the victim was shot and died as a result of multiple gunshot wounds. Insofar as the autopsy report was admitted for the purpose of establishing the cause of death, the absence of cross-examination clearly was harmless. Defendant argues that the “autopsy report played a much bigger role... than establishing the fact that the victim had been killed by gunshot.” He suggests that the prosecution used the report in closing argument to establish the identity of the shooter. Based on Reiber’s testimony regarding the position of the victim at the time of the first gunshot, the prosecutor argued that the shooter must have approached from the direction of the parked truck. There is no indication, however, that Peterson and Reiber disagreed as to the victim’s position and Reiber was available for cross-examination on this point. Defendant does not explain how cross-examination of Peterson would have affected the credibility of this testimony. More importantly, Reiber’s testimony regarding the position of the victim was not based on conclusions in Peterson’s report. Rather, his testimony was based primarily on photographs taken by a police technician, who authenticated the photographs at trial. The autopsy report was cumulative of the photographic evidence and its admission was harmless beyond a reasonable doubt.
3. Defendant’s Prior Criminal History
Evidence Code section 1101, subdivision (a) prohibits the admission of “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct)... when offered to prove his or her conduct on a specified occasion.” Subdivision (b) provides, however, that “[n]othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than his or her disposition to commit such an act.” Defendant contends that evidence of his prior conviction for assault with a firearm was improperly admitted and used to prove his identity as the shooter in this case.
Prior to trial, the prosecution filed a motion requesting admission of defendant’s prior conviction for assault with a firearm for the limited purpose of proving motive, intent, or gang purpose with respect to the current offense. According to the police reports of the prior incident, several Norteño gang members were standing in a store when someone yelled “Norte, Norte.” Defendant, who was in the driver’s seat of a car outside the store, pulled out a gun and began firing from the car into the store, hitting one of the individuals inside. Defendant plead guilty to assault with a firearm, and admitted an enhancement that the shooting was for a gang related purpose.
The court agreed that the prior was admissible to demonstrate defendant’s motive, intent, and the specific intent to benefit the criminal street gang. The court found the prior incident to be very similar to the current offense in showing motive and gang intent, given that defendant shot at a group of individuals for no reason other than that they belonged to the rival gang. The court found that the evidence was probative because the prior conviction resulted from defendant’s guilty plea and the passage of time between the offenses was not significant given that defendant spent nearly all the intervening time in custody and committed the current offenses soon after his release from prison. The court noted the potential for undue prejudice was minimal because the jury would learn independently that defendant was a convicted felon and that he was a member of a gang. To reduce the potential prejudice, the court directed that evidence of the prior crime be admitted through the testimony of the expert witness rather than by the testimony of the victim. Consistent with the court’s ruling, testimony was offered that defendant “and another gang member were involved in a shooting of a rival gang member in order to benefit and further the Sureño criminal street gang, and that the victim in that case did not die.”
At the close of trial, the court instructed the jury that “[e]vidence has been introduced for the purpose of showing that the defendant committed crimes other than those for which he is on trial.... This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show the existence of the intent which is a necessary element of the crime charged, a motive for the commission of the crime charged, that the crime or crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.”
Defendant contends that despite the court’s admonition, his prior conviction was improperly used to prove identity. He suggests that identity, rather than motive or intent, was “the primary issue in this case” and that the evidence of his prior conviction was “a thinly-veiled directive to the jury that [defendant] was the likely shooter because he had the more likely propensity to commit the instant crime.” Defendant suggests that the admission of this evidence was particularly prejudicial because the jury was also presented with evidence that Vargas and Garcia did not have a record of involvement in prior gang-related shootings. However, the danger that the jury considered the evidence for an improper purpose is no different here than in any other case in which evidence is admitted for a limited purpose. Moreover, that risk was reduced by the court’s admonition regarding the proper uses for the evidence and we must presume the jury followed that instruction. (People v. Osband (1996) 13 Cal.4th 622, 717.)
Defendant’s suggestion that his prior criminal conviction was irrelevant if not admitted to establish identity goes too far. The evidence was clearly relevant to show defendant’s motive for the crime and that the crime was committed for the benefit of the gang.
Defendant also contends that even if this evidence was not inadmissible under Evidence Code section 1101, the court abused its discretion in failing to exclude it under Evidence Code section 352. (See People v. Ewoldt (1994) 7 Cal.4th 380, 404 [conclusion that section 1101 does not require exclusion of evidence of defendant’s uncharged misconduct does not end court’s inquiry; the court must “proceed to examine [under Evidence Code section 352] whether the probative value of the evidence of defendant’s uncharged offenses is ‘substantially outweighed by the probability that its admission [would]... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury’ ”].) Defendant argues that the evidence was of limited probative value because defendant’s alleged motive could have been ascertained from other gang evidence and that the potential for prejudice was great because “there was the very high risk that the jury would use this evidence to discern [defendant’s] identity as the perpetrator because of what amounts to propensity evidence.” As set forth above, the court recognized the potential prejudice and attempted to minimize that risk by admitting a sanitized version of the events and by admonishing the jury. We cannot say that under these circumstances the court abused its discretion in admitting this evidence.
4. Accomplice Testimony
“Section 1111 requires corroboration of accomplice testimony. It reads in relevant part: ‘A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof....’ The purpose of this corroboration requirement is ‘to ensure that a defendant will not be convicted solely upon the testimony of an accomplice because an accomplice is likely to have self-serving motives.’ [Citation.] [¶] ‘To corroborate the testimony of an accomplice, the prosecution must present “independent evidence, ” that is, evidence that “tends to connect the defendant with the crime charged” without aid or assistance from the accomplice’s testimony.’ [Citation.] ‘ “The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence ‘may be slight and entitled to little consideration when standing alone.’ ” ’ [Citations.] It is sufficient that the corroborating evidence establish ‘ “ ‘enough of the accomplice’s testimony to establish his credibility.’ ” ’ [Citations.] However, while corroborating evidence need only be slight, ‘it is not sufficient to merely connect a defendant with the accomplice or other persons participating in the crime. The evidence must connect the defendant with the crime, not simply with its perpetrators.’ ” (People v. Beaver (2010) 186 Cal.App.4th 107, 114-115.)
Defendant contends that Vargas and Garcia are accomplices to the murder and that there was insufficient independent evidence to corroborate their testimony. The Attorney General agrees that Vargas and Garcia were accomplices, but argues that their testimony was sufficiently corroborated by the arresting police officer’s testimony that defendant was in possession of the murder weapon when she stopped Vargas’s truck. We agree.
Garcia and Vargas testified that defendant put the gun under his seat and the arresting officer confirmed that when she asked defendant to step out of the car she noticed the gun protruding from under the seat in which defendant had been sitting. Defendant argues that the officer’s testimony is insufficient corroboration because it “suggests at a minimum, joint possession with both Vargas, the owner of the truck, and Garcia, within easy hand’s reach of the weapon” and “does nothing to eliminate [Vargas or Garcia] as the possible shooters.” Section 1111 does not require, however, that the corroborating evidence eliminate the accomplice’s potential guilt, but only that it tend to connect the defendant to the crime. (People v. Abilez (2007) 41 Cal.4th 472, 506 [“the corroborating evidence need not independently establish the identity of the victim’s assailant”].) The officer’s testimony in this case sufficiently meets this standard.
5. Sufficiency of the Evidence
Section 186.22, subdivision (b)(1) provides a sentence enhancement for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” Relying on Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069 and Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, defendant argues that section 186.22 requires evidence that he intended this murder to promote other criminal activity by the gang. He acknowledges, however, that several California appellate decisions interpret section 186.22 differently and admits that the Ninth Circuit’s “interpretation of the statute might not be adopted by the California Supreme Court.” Most recently, in People v. Vazquez (2009) 178 Cal.App.4th 347, 354, the court rejected “the Ninth Circuit’s attempt to write additional requirements into the statute” explaining that section 186.22 “provides an enhanced penalty where the defendant specifically intends to ‘promote, further, or assist in any criminal conduct by gang members.’ [Citation.] There is no statutory requirement that this ‘criminal conduct by gang members’ be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing.” (See also People v. Romero (2006) 140 Cal.App.4th 15, 19 [“By its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members, ’ rather than other criminal conduct”].)
In any event, substantial evidence establishes that defendant committed this crime for the benefit of the gang and for the specific intent of promoting this and other criminal conduct. In People v. Vazquez, supra, 178 Cal.App.4th at page 353, the court held that a reasonable jury could infer, based on expert testimony, that “violent crimes such as this murder increase ‘respect’ for the gang and facilitate its criminal activities by intimidating members of rival gangs and law-abiding neighborhood residents... and other evidence in the record, that appellant intended for the Lopez murder to have the predicted effect of intimidating rival gang members and neighborhood residents, thus facilitating future crimes committed by himself and his fellow gang members.” The same inference could reasonably be made in the present case based on Palmieri’s testimony and the testimony of Vargas and Garcia that the victim was a “chap” and should be shot because he was wearing the color red.
This testimony by Vargas and Garcia renders People v. Albarran (2007) 149 Cal.App.4th 214 distinguishable. As defendant notes, the court in that case found the admission of gang evidence prejudicial under Evidence Code section 352 because there was no percipient witness or evidence to prove the crime was gang related or motivated. Instead, the prosecution relied on the defendant’s gang associations and expert testimony to establish that the case presented a classic gang shooting scenario. (Id. at p. 219.) In the present case, testimony by Vargas and Garcia independently establish that the crime was gang-related.
Griffin v. California (1965) 380 U.S. 609, 614 (Griffin).
Prior to trial, the prosecutor sought, over defendant’s objection, to introduce evidence of the fact that defendant was taken into custody three hours after the shooting and remained in custody since that time. The prosecutor explained that this fact was relevant to rebut any argument by the defense that defendant would not be able to remember that particular evening over a year ago and, thus, would not be able to identify and call an appropriate alibi witness. The court deferred ruling on the defense objection, indicating it would take the matter up with the parties over the lunch hour. Although no ruling on the evidentiary objection appears on the record, the fact that defendant remained in custody since the time of the shooting was ultimately introduced by way of stipulation.
Defendant’s motion to settle the record to determine whether his objection was overruled is denied. The record suggests that the evidentiary objection was overruled, which we shall assume for purposes of this appeal.
In rebuttal, the prosecution argued, “You know, if I asked you where you were on February 2nd, 2007, you wouldn’t know, that was just another random day. Maybe you could say you were in Buffalo or Florida. But, ladies and gentlemen, if I asked you where you were on the day you were taken into custody and you never got out again? You would remember. You would remember that night. [¶]... [¶] The defendant would remember where he was on February 2nd and 3rd, 2007, because it is a pretty important day for him. He went into custody, he went to jail, and he hasn’t got out since. That is an incredibly important fact. Don’t fall for the turn, that well none of us can really remember where we were or it’s a short 20 minutes, because there is evidence of neither. [¶]... [¶] Where were the witnesses to come and say, no, no, no, I was with Ramon Alejandre that night. He didn’t go anywhere, and he didn’t leave.”
Defendant contends that this argument improperly commented on defendant’s right to remain silent in violation of Griffin. Initially, the Attorney General contends that defendant forfeited this argument by failing to object to the closing argument. Because defendant’s earlier objection to the admission of this evidence arguably encompassed an objection under Griffin, and because the record on appeal is unclear as to the court’s precise ruling, we shall consider the argument on the merits.
“Under the rule in Griffin, error is committed whenever the prosecutor or the court comments, either directly or indirectly, upon defendant’s failure to testify in his defense. It is well established, however, that the rule prohibiting comment on defendant’s silence does not extend to comments on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses.” (People v. Medina (1995) 11 Cal.4th 694, 755; see also People v. Brown (2003) 31 Cal.4th 518, 554 [prosecutor directed jury’s attention to fact that defendant never presented evidence he was somewhere else when the crime was committed]; People v. Hughes (2002) 27 Cal.4th 287, 373 [prosecutor asked jury where was the evidence to support the defense]; People v. Bradford (1997) 15 Cal.4th 1229, 1339 [prosecutor noted absence of evidence contradicting what was produced by prosecution on several points, and the failure of defense to introduce material evidence or any alibi witnesses]; People v. Johnson (1989) 47 Cal.3d 1194, 1236 [prosecutor said, “ ‘Obviously, if there has been or is some defense to this case, you'd either have heard it by now or for some reason nobody’s talking about it’ ”].) In this case, the prosecutor’s argument was proper rebuttal to defense counsel’s explanation for the absence of an alibi witness and did not infringe on defendant’s right to remain silent.
7. Evidence of Vargas’s Gang Affiliation
Defendant contends the trial court abridged his ability to present a defense by preventing him from introducing a photograph downloaded from Vargas’s MySpace page showing Vargas’s baby wearing a gang rag on his head and a gun stuffed into the top of his diaper. The defense argued that the photograph was relevant to impeach Vargas’s testimony that he had ended his affiliation with the gang. The trial court excluded the evidence, at the prosecution’s request, under Evidence Code section 352 on the ground that the photo was more prejudicial than probative. The court explained that the photo “is likely to cause the jury to be inflamed by the fact that the baby has a gun in his diaper. The diaper has nothing to do with his testimony or his credibility and it is, in my opinion, unfairly prejudicial and doesn’t have any probative value.” At the same time, however, the court admitted four other photographs downloaded from Vargas’s MySpace page “which amply show... apparent gang signs and tattoos and other evidence that is contrary to his actual testimony that [he] is not a member of the Sureños.” We cannot say that the court’s ruling was an abuse of discretion. (People v. Lewis (2001) 26 Ca1.4th 334, 374-375 [“ ‘ “[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues” ’ ”].) Contrary to defendant’s suggestion, this evidentiary ruling did not interfere with his constitutional rights to present a defense or confront the witnesses against him. As the court noted, the other photographs downloaded from the MySpace page provided ample opportunity to impeach Vargas’s testimony.
8. CALJIC No. 2.52
Defendant contends the trial court erred in instructing the jury pursuant to CALJIC No. 2.52 that “The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.” “In general, a flight instruction ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’ [Citation.] ‘ “[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.” ’ [Citations.] ‘Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so.’ ” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) “To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence.” (People v. Bonilla (2007) 41 Ca1.4th 313, 328.)
At trial, one witness testified that she heard a truck idling outside her window prior to the shooting and immediately after the gunshots heard someone yell “hurry up, hurry up.” Then she heard the truck drive away “fast.” A second witness confirmed that she also heard someone say “hurry up” and that the truck left the area “faster than usual.” This evidence is sufficient to support the instruction.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Jenkins, J.