Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County No. VA089066. Dewey Lawes Falcone, Judge. Modified and affirmed as to Joseph Michael Aranda; and affirmed as to Fernando Rogelio Aranda.
Judith Kahn, under appointment by the Court of Appeal, for Defendant and Appellant Joseph Michael Aranda.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant Fernando Rogelio Aranda.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Roberta L. Davis and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Joseph Michael Aranda and Fernando Rogelio Aranda appeal from convictions of one count of first degree murder and one count of willful, premeditated, deliberate, attempted murder. They contend the trial court abused its discretion in failing to bifurcate trial on the gang enhancement allegations and committed reversible error in admitting highly prejudicial gang evidence. We modify one of the judgments to reflect actual custody credits and otherwise affirm.
BACKGROUND
A month before the shooting in this case, Joseph Michael Aranda, a member of the Pico Nuevo gang, was shot in the buttocks in a drive-by shooting while standing in front of his residence. On the sidewalk in front of the residence officers found a live.38 caliber bullet which had a manufacturer’s stamp of “R-P.”
The Shooting
On Friday, March 4, 2005, at approximately 9:00 p.m., Elizabeth Aulcy left her house in Pico Rivera to walk to a store. While walking down an alley a green Jeep drove up next to her and stopped. The four men in the Jeep said they were from the Rivera 13 gang and were friends of “Wacko.” They said they also knew her boyfriend, Leonard “Trippy” Mercado, a member of the Rivera 13 gang. Aulcy assumed the four young men were her “homeboys.” She shook hands with the men and talked to them for approximately 10 minutes while standing outside the Jeep. Joseph Michael Aranda sat in the backseat behind the driver and was closest to Aulcy. He spoke to her through the car’s open window. Fernando Rogelio Aranda, who sat in the front passenger seat, turned his body around to address Aulcy and did most of the talking. Aulcy described Fernando as having dark skin, slanted eyes and wearing a hooded sweatshirt.
We refer to Joseph Aranda and Fernando Aranda by their first names to avoid potential confusion due to their same last name.
Aulcy told them that she was on her way to visit Leonard “Trippy” Mercado. She used one of the men’s cell phones to call Mercado who asked her to pick him up. The men responded that Mercado was their “homeboy” and offered to drive her to his house. Joseph got out of the Jeep to let Aulcy in and she sat between Joseph and the other man seated in the backseat. When Joseph got out of the Jeep, Aulcy noticed that he had on shorts, white socks and white tennis shoes, and that he was thin. Aulcy directed the men to Mercado’s residence and pointed out her own house during the drive. As they approached Mercado’s house Aulcy saw Mercado outside walking away with some friends she did not recognize. She thought one of the men was “Sneaky” (Manuel Bermudez) but was not sure because she did not know “Sneaky” very well.
The Jeep drove just past Mercado and the others and stopped. Fernando got out of the front passenger seat and began firing a handgun at Mercado and the others. Aulcy saw the gun’s muzzle flashes. Joseph and the other man in the backseat also exited the Jeep and began firing their handguns. Joseph walked around the back of the Jeep and Aulcy did not actually see him with a weapon.
There was so much gunfire Aulcy was scared and kept her head down and her eyes closed. During the shooting, she felt blasts of air, noticed something “kicking out” of the other backseat passenger’s gun, felt shell casings hitting her on the head, and heard what sounded like one of the Jeep’s windows breaking.
When the shooting stopped, Fernando and the backseat passenger got back into the Jeep and the Jeep drove off without Joseph. Aulcy kept yelling “what the hell just happened[?]” The backseat passenger said “‘shut up you stupid bitch’” or “‘shut the fuck up, bitch,’” and shoved her out of the moving Jeep. As she fell, Aulcy heard one of the men say “‘Los Nietos,’” which she recognized as the name of a gang from Whittier, not Pico Rivera. Aulcy ran to a nearby house and called 911.
Leonard “Trippy” Mercado, Manuel “Sneaky” Bermudez, and Daniel Guerrero were the victims of the shooting. Guerrero died of a gunshot wound to the head. He was a 15-year-old associate of the Rivera 13 gang.
Officers found a bloody Dodgers’ baseball cap, dark knit gloves, and one white, size eight and a half, K-Swiss tennis shoe near Guerrero’s body. The shoe did not belong to Guerrero who was then wearing a pair of size nine Reebok tennis shoes. Officers sent the white tennis shoe and a hair found in the shoe to a lab for DNA analysis. Officers never found the other tennis shoe and never found the green Jeep.
Recovery of Revolver Used in the Shooting
Four days after the shooting sheriff’s deputies patrolling the Palmdale/Acton area saw a van parked in a gas station with the hood up and white smoke coming from the engine compartment. Fernando and Colt Sanchez were inspecting the engine as two women stood nearby. When the deputies drove into the station Fernando removed his gloves and walked to the passenger side of the van. One of the women said the van was hers and that she had owned it for over a year. The deputies became suspicious because the van still had dealer plates and because Sanchez seemed nervous. Sanchez walked twice to the passenger side of the van and on his second trip quickly lifted his shirt and appeared to remove something from his waistband. The deputies detained all four people. In a pat-down search, the deputies found a fold-up knife in Sanchez’s front pocket. In a search of the van, the deputies found a loaded.357 caliber Magnum handgun in a compartment underneath the front right passenger seat of the van. The deputies arrested Sanchez for illegal gun possession and booked the gun into evidence. They were then unaware that Fernando was wanted in connection with the earlier shooting in Pico Rivera. Ballistics testing determined that the handgun was the.357 caliber Magnum revolver used in the shooting in Pico Rivera four days earlier.
Ballistics Evidence
Officers found 21 shell casings and 11 bullet strikes at the shooting scene. Ballistics tests showed that the shell casings had been fired from two different nine-millimeter handguns. Officers also found multiple bullets and bullet fragments at the scene. Two of the bullet fragments were fired from the.357 caliber Magnum revolver that deputies recovered from the van at the Palmdale gas station. A.38 caliber bullet was fired from another revolver, either a.357 caliber Magnum or a.38 caliber revolver, as a.38 caliber bullet can be fired by either weapon. Based on the shell casing and bullet fragment evidence an expert on ballistics opined that four guns had been used in the shooting: two nine-millimeter handguns and two revolvers.
The ballistics expert stated that a bullet with a head stamp of “R-P” signifies that the bullet was manufactured by the Remington Peters Company, one of many manufacturers of.38 caliber bullets.
Eyewitness Testimony
Before interviewing Aulcy, or showing her photographs, sergeants from the Los Angeles Sheriff’s Department reviewed the crime scene and spoke to the homicide detectives and officers familiar with gangs active in the Pico Rivera area. At the time of the shooting the Los Nietos gang was inactive and was not considered an enemy of the Rivera 13 gang. The Rivera 13 and Pico Nuevo gangs, in contrast, were known rivals and at the time had been “warring pretty heavy.” For these reasons the officers thought that it was unlikely Los Nietos had been involved in the shooting. Based on this information the sergeants decided to prepare two photo arrays using only photographs of documented Pico Nuevo gang members for Aulcy’s review. Each photo array contained 10, rather than the usual 6, photos.
The sergeants interviewed Aulcy at the station in the early morning hours after the shooting. She was cooperative and detailed in her responses. After their initial interview the sergeants tape recorded Aulcy’s statements and this tape recording was played for the jury at trial.
Aulcy identified Fernando and Joseph from the photo arrays as two of the four men in the Jeep involved in the shooting. She immediately identified Joseph’s photo as depicting the person in the backseat wearing the white tennis shoes and socks. She described him as 17 years old, five feet, seven inches tall, and “skinny.” She likewise positively identified Fernando’s photo as depicting the person in the front passenger seat who was the first to exit the Jeep and begin firing at Mercado and the others.
Over the course of several months, the sergeants showed Aulcy additional photo arrays but she identified no one as being involved in the shooting until a year later when she identified a photo of Ralph De Arcos as the driver of the Jeep.
At trial, Aulcy admitted that she had ignored the subpoena to appear and testify at the preliminary hearing and that the court had issued a bench warrant for her arrest. Aulcy explained that she had been too afraid to testify and had hidden at her grandfather’s house. She admitted to being afraid for her and her family’s safety but had refused the sheriff’s offer to move her family out of the area. She claimed that she did not recall telling one of the detectives that Rivera 13 gang members had told her not to testify on three or four separate occasions. She also denied telling the detectives that both Mercado and her own family members advised her not to go to court to testify. Aulcy agreed that identifying the shooters would be dangerous because both Rivera 13 and Pico Nuevo gang members knew where she lived. She testified that she did not recall telling the detective just before trial that she would lose if she testified and told the truth because she would be considered a “rat,” and that she would also lose if she lied because then the shooters would go free.
Aulcy did not identify either Fernando or Joseph at trial. She did, however, identify the voice on the tape recording as hers and acknowledged that she had not felt any obligation to select any photo from the photo arrays. She then contradicted this testimony by stating that she felt forced to pick someone out, and had selected the photos of Fernando and Joseph because she had been “maybe” “drinking or something.”
Both the officer who transported Aulcy from the shooting scene to the sheriff’s station, and one of the sergeants who interviewed Aulcy at the station, testified that Aulcy did not appear intoxicated, did not profess to be intoxicated, and did not have odors of alcohol on her breath or person.
At the time of trial Mercado and Bermudez were in custody. They refused to testify and refused to review photographs to determine if they could identify the shooters.
Fernando and Joseph’s Arrests
On March 23, 2005, officers executed search and arrest warrants at the Aranda residence. They found Joseph in the house and arrested him. In a search of the house, officers found a.38 caliber bullet with a “R-P” head stamp in one of the bedrooms, but found no gun.
Three months later, on June 19, 2005, sheriff’s deputies patrolling the neighborhood recognized Fernando as he walked out of an alley. They made eye contact with him and when a deputy got out of the patrol car, Fernando ran away. He ran down the street and jumped a fence into the backyard of a residence. The deputies ordered Fernando to stop and, when he did not, called for assistance to cordon off the area.
Janet Villanueva and her younger sister, Angela, were home alone when Fernando broke into the Villanueva’s house and suddenly appeared in the kitchen. He asked Janet Villanueva if he could hide in a closet. Several minutes later officers advised over a public address system that police had surrounded the house. When Fernando left the kitchen to hide, Janet and Angela Villanueva ran outside. Fernando eventually came out and officers took him into custody.
The investigating officer visited Joseph while in custody and inspected the slip-on shoes provided Joseph at juvenile hall. The shoes were size nine and his toes did not reach the end of the shoes, suggesting that Joseph’s actual shoe size was smaller than a size nine. While in custody officials issued Fernando shoes marked size eleven to twelve and a half.
DNA Evidence
Thomas Fedor, a forensic serologist who worked at a private research institute, examined the white tennis shoe found at the crime scene for biological fluids. The only DNA he was able to lift from the shoe was from accumulated perspiration. The DNA was a mixture from at least three different people.
Fedor concluded that neither Fernando nor Joseph could be excluded as possible contributors to the mixture of the DNA found in the shoe. In comparing Fernando’s control sample to the DNA found in the shoe, Fedor opined that Fernando was one in 25 Hispanic persons who could not be excluded as a possible contributor or, conversely, that 96 percent of the Hispanic population could be excluded as possible contributors. In comparing Joseph’s control sample with the DNA found in the shoe, Fedor opined that Joseph was one in 1,260 Hispanic persons who could not be excluded as a possible contributor, meaning that 99.9 percent of all Hispanics could be excluded as possible contributors to the DNA mixture found in the white tennis shoe.
Fedor also analyzed the DNA found in the wool gloves found at the shooting scene. In comparing Fernando and Joseph’s DNA control samples, Fedor opined that they were both excluded as possible contributors. Likewise, according to Fedor’s analysis, neither Fernando nor Joseph contributed the hair found in the tennis shoe.
Gang Evidence
Sergeant Ruben Nava testified as a gang expert at trial. He had been an officer for over 21 years and had devoted several years specifically to gang enforcement operations in East Los Angeles.
Nava began by explaining Hispanic gang culture in general and the process of becoming a member of a gang as first being an associate, “putting in work” for the gang by tagging or committing crimes, and then by being “jumped in,” or beaten up by fellow gang members. According to Nava, persons have to earn the right to have a gang tattoo.
Nava explained that members proceed through the gang hierarchy by committing increasingly more violent crimes in order to become a high ranking and respected “shot caller,” or “original gangster” or “O.G.” A member gains respect by committing violent crimes, and according to Nava, “[r]espect is so important people will kill for it, will die for it. It’s everything to a gang member.” When a gang member is disrespected, Nava stated, it is important to retaliate to avoid losing respect and, if the member does not retaliate, the member is subject to punishment by fellow gang members. In Nava’s opinion, being shot in the buttocks by a rival gang “would be the ultimate disrespect,” short of being killed.
Nava explained that instilling fear is an important aspect of the gang lifestyle. When “their enemies fear them, [and] the community fears them... they are less likely to say anything to law enforcement, less likely to testify in court. [¶] And so with that knowledge, the gang members can run freely in the streets of these communities intimidating both citizens and the enemy.” According to Nava, fear is often the reason why witnesses to gang crimes recant and become uncooperative with law enforcement. People who give information to law enforcement are labeled a “rat” or a “snitch” and are subject to punishment—up to and including death—with no exceptions for testifying against the enemy.
Photos of Fernando and Joseph showed that they had tattoos relating to the Pico Nuevo gang. Roster sheets listing gang members’ monikers found in Joseph’s jail cell showed that he was aligned with the Mexican Mafia prison gang. Because Joseph’s moniker headed the list, Nava explained that this meant Joseph was responsible for collecting “taxes” for the Mexican Mafia within his jail module in order to perpetuate its drug enterprise. Documents confiscated from Fernando’s jail cell contained gang writings and Mexican Mafia symbols.
Nava stated that the Pico Nuevo gang organized in the early 1970s and at present had approximately 250 members. The territory Pico Nuevo claimed extended from Beverly Road on the north, the San Gabriel riverbed on the east, Paramount Boulevard on the west, and Washington Boulevard on the south, which southern border they shared with their rival Rivera 13.
Using photographs of Pico Nuevo gang members, Nava described and explained Pico Nuevo hand signs, tattoos, and graffiti. He described the primary activities of the Pico Nuevo gang as drive-by shootings, murders, assaults with deadly weapons, carjackings, auto thefts, narcotic sales, witness intimidation, burglaries, and making criminal threats. To establish that the Pico Nuevo gang had a pattern of criminal activity the prosecutor introduced documentary evidence of Pico Nuevo gang members’ convictions of assault with a firearm in 2005, robberies in 2003, and methamphetamine sales in 2002. Nava knew each of these gang members personally and had been involved in three of the four prosecutions.
Nava had known Fernando and Joseph since 2002 and stated that Fernando was a self-admitted member of the Pico Varrio gang whose moniker was “Tank.” Joseph’s counsel offered to stipulate that Joseph was a member of the Pico Nuevo gang whose moniker was “Shadow.” (The prosecutor declined to accept the stipulation.) On one or two occasions Nava had spoken to the Aranda brothers while they were in the company of Jose Blanco, a fellow Pico Nuevo member. In 2004 Blanco was killed in a car-to-car shooting for which law enforcement officers believed the Rivera 13 gang was responsible. Because a killing by a rival gang is the ultimate act of disrespect, and because the Aranda brothers were close friends of Blanco, Nava stated that in gang culture Fernando and Joseph would be expected to avenge Blanco’s death.
Rivera 13 had approximately 200 members but a larger territory than Pico Nuevo. The two gangs had been rivals since their inception in the 1970s. During the four-year period of 2001 to 2005 that he worked at the Pico Rivera station as a detective in the gang enforcement team, the two gangs committed from two to five assaultive type crimes against each other every month. The Los Nietos gang was not friendly with Rivera 13 but the Los Nietos’ primary enemy was a gang called Canas Ranas.
In response to a hypothetical question, Nava opined that the shooting of Rivera 13 associate Daniel Guerrero, and Rivera 13 members Mercado and Bermudez, was committed for the benefit of the Pico Nuevo gang. Nava came to this conclusion because Rivera 13 was Pico Nuevo’s main rival and because the shooting would avenge Rivera 13’s killing of Blanco and retaliate for the drive-by shooting of Joseph the month before. Nava further opined that if Fernando and Joseph participated in the shooting it would have elevated their status within the Pico Nuevo gang.
Defense Evidence
Joseph’s booking record showed that when arrested on March 23, 2005, he reported that he was five feet, six inches tall and that he weighed 200 pounds. Fernando presented no defense.
Procedural Background
An information charged Fernando and Joseph with the murder of Daniel Guerrero (Pen. Code, § 187, count 1) and with the attempted willful, deliberate and premeditated murders of Leonard Mercado and Manuel Bermudez (§§ 664/187, counts 2 & 3). As to all counts the information alleged that the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)) and that they or a principal personally and intentionally discharged a firearm causing great bodily injury or death, that they personally and intentionally discharged a firearm, and that they personally used a firearm in the commission of the offenses. (§ 12022.53, subds. (b), (c), (d) & (e)(1).) The information further alleged that Joseph had suffered a prior conviction within the meaning of the Three Strikes law. (§§ 1170.12, subds. (a) – (d), 667, subds. (b) – (i).)
Further unmarked statutory references are to the Penal Code.
The jury convicted Fernando and Joseph of the first degree murder of Daniel Guerrero and of the attempted willful, deliberate, and premeditated murder of Leonard Mercado and found true the gang enhancement allegations as to these counts. With respect to Fernando, the jury found true all gun allegations. The jury also found true the gun allegations with respect to Joseph, except the allegations that he personally and intentionally discharged a firearm causing great bodily injury or death.
The jury could not reach a verdict on count 3 involving Manuel “Sneaky” Bermudez and the court ultimately dismissed this count on the prosecutor’s motion in the interest of justice. (§ 1385.)
The court sentenced Fernando and Joseph each to an aggregate term of 90 years to life in state prison. This appeal followed.
The record does not contain any findings on, or discussion concerning, the allegation that Joseph had suffered a prior “strike” conviction.
DISCUSSION
Bifurcation of Gang Enhancement Allegation
Joseph, joined by Fernando, moved pretrial to bifurcate trial on the gang enhancement allegations. The court responded that “the issue for the court in looking at the cases are as follows: Number one[,] is... the evidence otherwise relevant, independent of the gang enhancement allegation; and even if it’s relevant, the court must scrutinize the evidence to make sure that it’s not potentially inflammatory that would so prejudice the jury that they would take into consideration the gang allegation rather than the evidence itself. It really boils down to a 352 issue.”
The court asked the prosecutor to address whether evidence relating to the gang allegation was relevant to the underlying offenses. The prosecutor responded that “the gang evidence is interwoven throughout. It [would be] an exercise in futility to try to separate it out. The gang evidence aside from the gang allegation goes to motive. It goes to identity.” The court reviewed a summary of the case, stating that a car drove up to a person, the people in the car claimed that they were from a certain gang, the person got into the car and they drove to a location where a shooting involving another gang occurred. All counsel agreed with the court’s recitation of this brief summary of the expected evidence and the court then commented, “All right. So the issue is whether or not that evidence is sufficient to establish some other basis other than the gang allegation on the 186.22. It appears to me in looking at this that it does go to the issue of motive, intent, perhaps identity.... [¶] So based upon the summary given by [the prosecutor] as agreed to by [defense counsel], in essence, and apparently this evidence is not used to establish some sort of criminal propensity, because of the fact that these two defendants belong to a gang, the court does find that it is relevant, that evidence is relevant to prove motive, intent or some other factor independent of the gang enhancement under 186.22 (b)(4), and that under 352 of the Evidence Code the probative value outweighs any prejudicial effect.” Accordingly, the court denied the request to bifurcate trial of the gang enhancement allegations.
Fernando and Joseph contend the trial court’s ruling was an abuse of discretion. We disagree.
In People v. Hernandez (2004) 33 Cal.4th 1040 the Supreme Court examined the question of bifurcation of gang enhancement allegations. It began by examining its holding on bifurcation of prior conviction allegations: because of the unique potential for prejudice if the jury learns of the defendant’s prior convictions, the value of bifurcating trial of the allegations has been recognized by the Legislature and the courts. (Id. at pp. 1048-1049, citing § 1025 and People v. Calderon (1994) 9 Cal.4th 69, 74-77.) The court then observed that trial of gang enhancement allegations differs, in that “[a] prior conviction allegation relates to the defendant’s status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation.” (People v. Hernandez, supra, 33 Cal.4th at p. 1048.)
Additionally, “the Legislature has given no indication of a similar concern regarding enhancements related to the charged offense, such as a street gang enhancement. Nothing in section 186.22 suggests the street gang enhancement should receive special treatment of the kind given to prior convictions.” (People v. Hernandez, supra, 33 Cal.4th at p. 1049.)
The Supreme Court did not go so far as “to say that a court should never bifurcate trial of the gang enhancement from trial of guilt.” (People v. Hernandez, supra, 33 Cal.4th at p. 1049.) It noted that the “predicate offenses offered to establish a ‘pattern of criminal gang activity’ (§ 186.22, subd. (e)) need not be related to the crime, or even the defendant, and evidence of such offenses may be unduly prejudicial, thus warranting bifurcation. Moreover, some of the other gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant’s actual guilt.” (People v. Hernandez, supra, 33 Cal.4th at p. 1049.)
The Supreme Court left it to the trial court’s discretion to determine whether to bifurcate trial of gang enhancement allegations. (People v. Hernandez, supra, 33 Cal.4th at p. 1050.) In doing so, it noted that the trial court’s discretion to deny bifurcation is broader than its discretion to admit gang evidence when no gang enhancement is alleged. (Ibid.) It also noted that the burden is on the defendant “‘to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’” (Id. at p. 1051, quoting People v. Bean (1988) 46 Cal.3d 919, 938.)
Fernando and Joseph argue, in essence, that the gang evidence was prejudicial, had little probative value regarding proof of the underlying offenses, and thus bifurcation was required. They point out there was no evidence that during the shooting the shooters wore gang clothing, wore gang colors, shouted gang slogans, made gang hand signs, or asked the typical question of, “Where are you from?” They thus assert that because the gang evidence had minimal or no relevance to proof of the offenses, other than to disparage their character and show that they were predisposed to commit violent crimes, bifurcation was required because the gang evidence was so inflammatory and prejudicial.
As noted in People v. Hernandez, supra, the question regarding bifurcation is not whether the prejudicial effect of the evidence outweighs its probative value but whether the evidence is “so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant’s actual guilt.” (33 Cal.4th at p. 1049.)
Fernando and Joseph point to nothing in the record to show that when moving for bifurcation they made any specific objection to any particular evidence, or to any specific category of evidence, as being potentially extraordinarily prejudicial. The record shows that they objected generally to the proposed gang evidence as “prejudicial,” to the gang expert’s proposed testimony as based on “hearsay,” and complained that they had received late discovery of the police reports regarding the predicate acts. None of these objections, considered singly or in combination, however, was sufficient to alert the court that any specific gang evidence was potentially so extraordinarily prejudicial that bifurcation of the gang enhancement allegations was warranted. Thus, Fernando and Joseph failed to carry their burden in the trial court to show that the benefits of a unitary trial were outweighed by a substantial danger of undue prejudice. (People v. Hernandez, supra, 33 Cal.4th at p. 1051; People v. Bean, supra, 46 Cal.3d at p. 939.) Accordingly, we have no basis for finding that the court abused its discretion in denying their pretrial motion to bifurcate.
Because Fernando and Joseph have raised the issue on appeal, we also consider the actual impact of the evidence at trial of the court’s decision to deny bifurcation. (People v. Bean, supra, 46 Cal.3d at p. 940.) After review, we conclude that even if bifurcation of the gang enhancement allegations was justified that any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836 .)
Most of the gang evidence would have been admitted in a trial limited to guilt of the charged offenses in any event. The gang expert’s testimony relating to the Pico Nuevo and Rivera 13 gangs and their rivalry, and the importance of respect and retaliation to gang members, was relevant and admissible to prove the charged offenses. Fernando and Joseph themselves invoked gang membership at the inception of the events. They gained Aulcy’s trust by purporting to be her boyfriend’s “homeboys” from Rivera 13. Nava’s expert testimony helped the jury to understand the rivalry between the Rivera 13 and Pico Nuevo gangs, and the importance of retaliation for acts of disrespect, including the murder of their friend Blanco the year before, the recent drive-by shooting of Joseph, and the Pico Nuevo graffiti recently painted over by Rivera 13. This evidence relating to the gangs’ rivalry was probative of Fernando and Joseph’s identity, as well as of their motive and intent for the shooting and none of this evidence was cumulative to any other evidence presented at trial. (See People v. Albarran (2007) 149 Cal.App.4th 214, 223 [evidence of gang membership and activity is admissible “if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative, and is not cumulative”].)
Fernando and Joseph assert that the gang expert’s testimony was irrelevant and unduly prejudicial regarding the gang culture of instilling fear in the community and the expert’s statement that this fear permitted the gangs to “run freely in the streets,” and to commit crimes, confident citizens and others would be too afraid to complain to law enforcement. The gang expert’s testimony regarding criminal street gangs in general, however, was relevant to understanding why Aulcy was fearful of being labeled a “rat” or a “snitch” by testifying and why she distanced herself from her earlier identification of Fernando and Joseph as being responsible for the shooting. This testimony also helped the jury to understand why the named victims of the attempted murder counts refused to testify.
Fernando and Joseph further assert that the trial court erred in permitting the gang expert to testify regarding the Mexican Mafia simply because documents bearing gang writings and Mexican Mafia symbols were confiscated from their jail cells. They argue that this evidence was not only prejudicial, but that it was also irrelevant to a shooting three years earlier. Their affiliation, however, with the Mexican Mafia prison gang showed their strong allegiance and continued commitment to their gangs’ culture and was thus probative of motive.
On the other hand, some of the evidence admitted solely to prove the gang enhancement allegations would not have been admissible at a trial of the substantive crimes. For example, the expert’s testimony regarding Pico Nuevo’s primary criminal activities of assaults with deadly weapons, murders, drive-by shootings, and the like, or the evidence of the predicate acts committed by other Pico Nuevo gang members of assault with a firearm, robbery and drug sales, would not have been admissible at a trial limited to the charged offenses. (People v. Hernandez, supra, 33 Cal.4th at p. 1051.) Evidence of these offenses and the convictions of fellow Pico Nuevo gang members had the potential for prejudice. As to the evidence of the predicate acts of assault with a firearm, robbery and drugs sales, however, it was not so inflammatory in comparison to the charged acts of murder and attempted murder that it threatened “to sway the jury to convict regardless of [their] actual guilt.” (Id. at p. 1049.)
In any case, the jury did not accept the gang evidence uncritically. The jury’s verdicts demonstrate that the jurors carefully weighed and considered the evidence to prove the charges and distinguished that evidence from the evidence admitted to prove the gang enhancement allegations. The jury found the evidence insufficient that Manuel “Sneaky” Bermudez had been the victim of the attempted murder charged in count 3 and could not reach a verdict on this count, voting eight to four for acquittal. Likewise, the jury found not true the allegations that Joseph had personally and intentionally discharged a firearm causing great bodily injury or death. By their verdicts and findings, the jury demonstrated that the gang evidence was not so inflammatory or unduly prejudicial that it jeopardized their objectivity or kept them from independently scrutinizing the evidence. (See, e.g., People v. Williams (2009) 170 Cal.App.4th 587, 613 [by acquitting the defendant of the more serious drug offense and by finding the gang allegation not true with respect to another offense, the jury demonstrated that it had not accepted the gang evidence and erroneously admitted other crimes evidence uncritically].)
During deliberations, the jury requested read back of Aulcy’s testimony and sent out numerous questions requesting direction on, or clarification of, certain aspects of the court’s instructions. When the jury announced that they were deadlocked on count 3, the foreperson explained that additional time or further instruction would not assist them because what certain jurors wanted was more evidence.
Further, the court properly instructed the jury on the proper use of the gang evidence admitted solely to prove the enhancement, and further instructed that they were not permitted to consider the gang evidence to prove that Fernando and Joseph had a bad character or were disposed to commit crimes. (CALJIC No. 17.24.3.) We presume, as we must, that the jury understood and followed the court’s instruction. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
Fernando and Joseph have failed to carry their burden to “‘clearly establish’” that admission of gang evidence created undue prejudice and thus bifurcation was required. (People v. Hernandez, supra, 33 Cal.4th at p. 1051.)
Admission of Excessive Gang Evidence
Fernando and Joseph contend that the gang evidence actually introduced at trial was either irrelevant or so minimally probative of the offenses compared to its prejudicial effect, that its admission deprived them of a fair trial and amounted to a violation of due process. (Citing People v. Partida (2005) 37 Cal.4th 428, 435-436 [the erroneous admission of evidence under state law violates due process when it makes the trial fundamentally unfair].) We disagree.
The gang evidence admitted was relevant to either prove guilt of the charged crimes or the gang enhancement and was not so prejudicial as compared to its probative value that it deprived them of a fair trial.
Motive, identity, and intent were significant issues in this case. Evidence of the gangs’ rivalry and evidence of the importance of respect and retaliation for disrespect was relevant and probative of these issues. Evidence that Fernando and Joseph’s friend Blanco had been shot in a car-to-car shooting by suspected Rivera 13 members the year before and the evidence Joseph had been shot in the buttocks the month before was relevant to, and highly probative of, Fernando and Joseph’s motive and intent for the shooting, as well as of the shooters’ identity.
Joseph contends that admitting the evidence that a month before the shooting he had been the victim of a drive-by shooting and that officers found a live.38 caliber bullet in front of his house with a manufacturer’s mark of “R-P” amounted to prejudicial, constitutional error. He asserts that the evidence was improper character evidence which had no relevance other than to persuade the jury of his bad character and propensity to be involved in shootings. (Citing, Evid. Code, § 1101, subd. (a) [precluding admission of a person’s character or character trait when offered to prove his conduct on a specified occasion].) We disagree.
Also, when, as here, a gang enhancement allegation is alleged the prosecution must prove the underlying crimes were 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,... ” (§ 186.22, subd. (b)(1).) “‘In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a “pattern of criminal gang activity” by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called “predicate offenses”) during the statutorily defined period. [Citation.]’ [Citation.]” (People v. Hernandez, supra, 33 Cal.4th at p. 1047.)
The prosecution was permitted to present expert testimony regarding the Pico Nuevo gang to prove each of these elements of the gang enhancement allegations. (People v. Gardeley (1996) 14 Cal.4th 605, 617-620; see also People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657 [listing topics regarding gang culture, habits and activities to which an expert may properly offer opinion testimony and holding improper only expert testimony purporting to explain a gang member’s subjective knowledge and intent].) The gang evidence concerning the Pico Nuevo gang, including photographs of Pico Nuevo gang members, was relevant to prove, and highly probative of, the elements of the gang enhancement allegation: (1) its territory, defining characteristics, symbols, hand signs and tattoos; (2) its primary criminal activities; and (3) predicate criminal acts by Pico Nuevo gang members of assault with a firearm, robbery and drug sales.
Contrary to Fernando’s assertion, the gang expert did not offer “an improper opinion on an ultimate issue,” but instead offered an expert opinion based on a hypothetical question and, when assuming the truth of the facts in the hypothetical, opined that the shooting benefitted the Pico Nuevo gang. This expert testimony based on the hypothetical question was acceptable under existing law. (See People v. Gardeley, supra, 14 Cal.4th at pp. 618-620.)
The decisions on which Fernando and Joseph rely are distinguishable. In those cases, extensive and wide-ranging gang evidence was admitted for the sole purpose of showing bias of a witness, although no gang enhancement was alleged, and although the evidence was otherwise irrelevant to the charged offenses. (See, e.g., People v. Maestas (1993) 20 Cal.App.4th 1482, 1497-1498 [reversal required where prejudicial gang evidence was admitted only to show bias and was cumulative to other properly admitted evidence]; People v. Bojorquez (2002) 104 Cal.App.4th 335, 343-345 [extensive gang evidence admitted solely to show bias was irrelevant to the charged offenses and constituted prejudicial error]; In re Wing Y. (1977) 67 Cal.App.3d 69, 76-77 [same].)
In arguing that the gang evidence was excessive, Fernando and Joseph complain that more than 50 pages of trial transcript were devoted to the gang expert’s testimony. This may be true but it is also immaterial in this relatively lengthy trial with numerous civilian and law enforcement witnesses, and where an equal, if not greater, amount of the trial transcript was devoted to the ballistics expert’s testimony.
In any case, as noted, by their verdicts the jury showed that they were sufficiently discerning about, and critical of, the evidence presented that they were able to distinguish between the proved and unproved counts and allegations apparently uninfluenced by the allegedly excessive and prejudicial gang evidence. The jury’s verdicts suggest that in making their determinations they credited Aulcy’s pretrial statements and relied primarily, if not exclusively, on her explanation of the shooting and her positive and unequivocal identification of Fernando and Joseph as two of the shooters. Thus, we cannot say that Fernando and Joseph were prejudiced by admission of the gang evidence or would have achieved a more favorable result had less gang evidence been admitted. (People v. Watson, supra, 46 Cal.2d at p. 836; cf. People v. Albarran, supra, 149 Cal.App.4th at pp. 230-232 [defendant’s case was prejudiced by admission of unusually inflammatory gang evidence which was only tangentially related to the charges].)
Joseph’s Presentence Custody Credits
Joseph was arrested and taken into custody on March 23, 2005, and was sentenced on May 7, 2008, a day for which he was also entitled to custody credit. (See People v. Smith (1989) 211 Cal.App.3d 523, 526.) Counting the day of his arrest and the day of sentencing, and because 2008 was a leap year, Joseph should have been credited with 1,142 days of actual custody credit. (§ 2900.5, subds. (a) & (d).)
Joseph contends, the Attorney General concedes, and we agree, that the court erred in awarding Joseph only 1049 days of custody credits. We modify the judgment to credit Joseph with an additional 93 days of custody credits. (People v. Jones (2000) 82 Cal.App.4th 485, 493 [appellate court may exercise its discretion to correct a miscalculation of custody credits].)
DISPOSITION
With respect to Fernando Rogelio Aranda, the judgment is affirmed in its entirety. With respect to Joseph Michael Aranda, the judgment is modified to reflect actual custody credits of 1,142 days. The court is directed to prepare a new abstract of judgment reflecting this change and to forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: MALLANO, P. J., CHANEY, J.
Under Evidence Code section 352, the trial court properly exercised its discretion to admit evidence of the shooting as probative of intent and motive for committing the shooting of Rivera 13 members a month later. Evidence of the.38 caliber bullet manufactured by the Remington Peters Company found in front of his house, when considered with the.38 caliber Remington Peters Company bullet found in a bedroom of his house during the later search, plus the.38 caliber bullet fragment with the “R-P” mark found at the shooting scene, was relevant to, and at least somewhat probative of, the identity of the shooters. The court did not err in finding that the probative value of the evidence was not substantially outweighed by its potential for prejudice, and in exercising its discretion under Evidence Code section 352 to admit the evidence on the issues of motive, intent, and identity pursuant to Evidence Code section 1101, subdivision (b).