Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 02CF1579, Richard M. King, Judge.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted Feliciano Cadena of two counts of attempted first degree murder (Pen. Code, §§ 187, subd. (a), 664; all further unlabeled statutory references are to the Penal Code), unlawful possession of a firearm as a felon (§ 12021, subd. (a)), and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury also found to be true allegations that defendant personally discharged a firearm causing great bodily injury on one attempted murder count and, on the other, that defendant personally discharged a firearm. (§§ 12022.53, subds. (c) & (d).) The jury rejected allegations that defendant committed the attempted murders and firearm possession for the benefit of a criminal street gang. (§ 186.22, subd. (b).) After the trial court found in a bifurcated proceeding that defendant had served a prior prison term and suffered a prior serious felony conviction (§ 667, subds. (b) & (e)(1)), the trial court sentenced defendant to 73 years to life in prison.
Defendant contends the trial court erred in rejecting his pretrial motion to sever the active gang participation count for a separate trial and to bifurcate the gang enhancements from their underlying charges, i.e., the attempted murder and firearm possession counts. He also challenges the sufficiency of the evidence to support the jury’s conclusion he was the individual who attempted to shoot the victims. He further argues the trial court erred in (1) allowing the prosecution’s gang expert witness to rely on letters he purportedly wrote to his brother from prison, (2) rejecting a pinpoint jury instruction on his claim another person was the shooter, and (3) imposing a court security fee of $80 — $20 for each of the four counts on which he was convicted. As we explain below, defendant’s claims furnish no basis for reversal, and we therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 8:00 p.m. on the evening of June 11, 2002, the Zepeda brothers, Jesus and Jose, with their friends Isidro Hernandez and Enrique Sanchez, worked on Jose’s car in the Zepeda’s apartment complex garage in Santa Ana. Jesus was seated in the driver’s seat while the others were standing near the front of the car with the hood open.
We use Jose’s and Jesus’s first names for ease of reference for the reader, and intend no disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)
Defendant and another man approached the car. Defendant came directly to the passenger side while his companion remained several feet away. Defendant asked Jesus if he had a problem, pointed a gun at Jesus, and threatened to kill him. Jesus replied that he had no problem, but defendant shot him four times. As defendant retreated towards his companion, Jose moved toward them intending to take the weapon. Defendant had passed the gun to his companion, who reloaded it. Defendant quickly retrieved the gun and fired several times as Jose pursued him, grazing Jose’s head with a bullet. Defendant ran toward the street while his companion decamped through the parking garage. Jose and Hernandez chased after defendant.
Andy C., a teenager walking home from a nearby market, heard gunshots. Shortly thereafter, defendant ran toward him with a gun. Defendant came within three to four feet of Andy C., who recognized defendant as a fellow resident of the same apartment complex he shared with the Zepedas. Jose then ran by in pursuit, instructing Andy C. to call the police. Andy C. dialed 911 from a nearby store, provided the location of the incident and his home address, and returned home.
Meanwhile, a car had turned onto the street from the apartment parking garage, and as the car stopped for a red light, defendant entered the passenger side of the vehicle. Hernandez hurled a flashlight that broke the rear window. Jose flagged down another car and followed defendant, but after a few blocks abandoned the pursuit and returned to the parking garage to check on his brother.
Paramedics were on the scene providing medical attention to Jesus, and the police had arrived as well. The officers’ investigation led them to apartment 387 where they searched unsuccessfully for defendant. On the night of the incident, police presented photographic lineups, separately and in turn, to Jose, Hernandez, and Andy C. Jose failed to identify the shooter, but Hernandez had no doubt in selecting defendant’s photograph. Andy C. similarly identified defendant with certainty from the layout of 30 to 50 photographs. While in the hospital and under heavy medication, the police presented Jesus with a series of six photographs, but he failed to identify the shooter. The officers’ search of defendant’s apartment yielded a paystub and electric bill in defendant’s name. The investigation also yielded two letters defendant wrote to his brother while incarcerated some months before the shooting, but it was not clear at trial whether the officers retrieved the letters from defendant’s apartment or another location. The letters included an express claim of 18th Street gang membership, plus typical 18th Street gang markings and graffiti, such as “#18” and “v #18.”
Defendant testified at trial that he was neither the shooter, nor the shooter’s companion. He claimed that just before the shooting he was meeting with a friend, Jose Rivera, who had recently borrowed his car. As defendant walked to meet Rivera in the garage, another acquaintance he knew happened to walk by and wave. Five minutes later, defendant heard gunshots and decided to drive off because, as a parolee, he wanted no police contact. Rivera corroborated defendant’s story. Defendant acknowledged that as he pulled out of the garage something shattered one of his car windows. According to defendant, the acquaintance that had waved earlier banged on the car and let himself into the passenger seat. Defendant later surmised this man committed the shooting. The man made him drive several blocks, dropped defendant off, and took his car. Defendant started walking back toward the apartment complex, but stopped and called his sister to pick him up. He then called his sister-in-law at the apartment, who informed him the police were looking for him. Defendant spent the night at his sister’s house and fled to Mexico the next day.
Defendant returned to the United States in February or March of 2003 under an assumed name to avoid arrest for parole violations. The police arrested him in November 2004 at his new apartment, less than a mile from his old one.
In February 2005, after defendant had been arrested and nearly three years after the incident, Jose identified defendant as the shooter in a six-picture photographic lineup. Jose made specific reference to the teardrop tattoo under defendant’s eye when he selected defendant’s photo as the shooter. Defendant’s photograph was the only one depicting an individual with a teardrop tattoo. On cross-examination, Jose admitted to speaking with his brother, Hernandez, and Sanchez since the incident about what the shooter looked like, including that he had a teardrop tattoo under his eye. Jose had told the police the night of the incident about the shooter’s unique tattoo, as had Andy C.
Detective Donald Stow, a criminal street gang expert, and Detective Matthew McLeod, a Spanish interpreter and a member of the department’s gang unit, investigated defendant’s background, reviewed prior police reports, field identification cards, Street Terrorism Enforcement and Prevention (STEP) Act notification cards, and the letters defendant wrote in Spanish to his brother from prison in 2001. Based on his review, Stow opined defendant was a member of the 18th Street gang, whose primary activities included narcotics trafficking and assaults with firearms. Records also indicated that in 1999 defendant admitted in court to his membership in the 18th Street gang and had previously told police he had been a member of the gang for six years. After his arrest for the present offenses, however, defendant informed police he no longer claimed membership in the 18th Street gang. Stow nevertheless opined defendant was an active member in the 18th Street gang at the time he shot Jesus and Jose, and that a gang member committing the crime in such circumstances would be doing so for the benefit of his gang.
II
DISCUSSION
A. The Trial Court Properly Declined to Sever the Gang Count and Enhancements
Defendant moved pretrial to sever the active gang participation count from the attempted murder and firearm possession charges. Section 954 invests the trial court with discretion to order separate trials in the interests of justice. The factors to be considered on a severance motion are: “(1) would the evidence of the crimes be cross-admissible in separate trials; (2) are some of the charges unusually likely to inflame the jury against the defendant; (3) has a weak case been joined with a strong case or another weak case so that the total evidence on the joined charges may alter the outcome of some or all of the charged offenses; and (4) is any one of the charges a death penalty offense, or does joinder of the charges convert the matter into a capital case.” (People v. Marshall (1997) 15 Cal.4th 1, 27-28.) We review the trial court’s ruling for abuse of discretion, bearing in mind the defendant’s burden to show prejudice from joinder. (Ibid.) “A determination that the evidence was cross-admissible ordinarily dispels any inference of prejudice.” (Id. at p. 28.)
Here, the trial court properly concluded evidence concerning the active gang participation charge and other charges was cross-admissible. Evidence relevant to the firearm and attempted murder charges was cross-admissible to prove the active participation count because that count included the element that defendant “willfully promotes, furthers, or assists in any felonious criminal conduct . . . .” (§ 186.22, subd. (a).) And evidence of defendant’s active gang participation was relevant and cross-admissible on the other charges because it furnished a motive for the attempted slayings and firearm possession. (Evid. Code, § 1101, subd. (b).)
Defendant highlights the jury’s rejection of the gang enhancements (§ 186.22, subd. (b)) to bolster his claim the evidence on the active gang participation charge was weak, precluding its joinder with the attempted murder and firearm charges. Notably, however, defendant’s brief does not suggest the prosecution’s case was so weak on the active gang participation count that he moved for dismissal under section 995 or for acquittal under section 1118.1. In any event, the jury’s later finding on the enhancements is irrelevant because, “[i]n determining whether there was an abuse of discretion, we examine the record before the trial court at the time of its ruling.” (People v. Mendoza (2000) 24 Cal.4th 130, 161.)
The trial court’s ruling followed the preliminary hearing. There, the prosecution’s gang expert explained gang prestige depends on spreading fear in the community and among rival gangs, and that a gang’s reputation for violence may be enhanced even where, as here, there is no overt claim by the perpetrator of gang membership. No such “hit-up” is necessary where, as here, the perpetrator makes no attempt to hide his identity and was known by the victims or at least one witness to live in the neighborhood. Simply put, as the perpetrator’s identity leaks out to the community, his gang affiliation may as well, engendering the desired fear to burnish the gang’s standing.
As the expert explained: “[T]hese incidents are spoken of by the people in the community and witnesses . . . . And when they usually do find out what gang is responsible and then that information is put forth, that’s why the 18th Street gang is known as a very violent street gang.” The expert added that the 18th Street gang was largely a Los Angeles-based gang, but had for years been trying to expand its turf foothold in the immediate vicinity of the shooting, furnishing an additional motive for the crime, since violence establishes a gang’s claim to territory. The tendency of the evidence to establish the perpetrator’s motive and intent (Evid. Code, § 1101, subd. (b)) rendered the evidence cross-admissible and, consequently, the trial court did not err in denying defendant’s severance motion.
Defendant also moved pretrial to bifurcate the gang enhancements (§ 186.22, subd. (b)) from the substantive counts to which they attached, namely, attempted murder and firearm possession. The trial court has the power, through its general duty under section 1044 to control proceedings, to pry enhancements from their underlying counts for separate determination in a bifurcated proceeding. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) But “[t]o the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary.” (Id. at pp. 1049-1050.) So it is here. Because the motive and intent evidence reviewed above was pertinent to explaining the attempted murder and firearm charges, it was also necessarily relevant to establishing the enhancement. (See § 186.22, subd. (b) [enhancing punishment for crimes committed “for the benefit of” a criminal street gang].) Consequently, the trial court did not err in denying bifurcation.
B. Substantial Evidence Supports the Jury’s Conclusion Defendant Was the Shooter
Defendant challenges the sufficiency of the evidence to support the jury’s conclusion he fired the shots that almost killed Jose and Jesus. Consistent with our limited vantage point and circumscribed role on appeal, we must view the evidence disclosed by the record in the light most favorable to the judgment below. (People v. Elliot (2005) 37 Cal.4th 453, 466.) The test is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) We presume in support of the judgment the existence of every fact reasonably inferred from the evidence. (Ibid.) That the circumstances could be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Consequently, a defendant attacking the sufficiency of the evidence “bears an enormous burden.” (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) The uncorroborated testimony of a single witness is sufficient to sustain a conviction. (People v. Gammage (1992) 2 Cal.4th 693, 700.)
Three eyewitnesses identified defendant as the shooter. Where, as here, the circumstances surrounding an identification made by a witness have been exhaustively investigated at trial, the trier of fact’s evaluation of that evidence — reflected in the verdict — is binding on the appellate court. (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) For “‘a reviewing court to set aside a jury’s finding of guilt, the evidence of identity must be so weak as to constitute practically no evidence at all.’” (People v. Prado (1982) 130 Cal.App.3d 669, 674 (Prado), abrogated on other grounds by People v. Howard (1992) 1 Cal.4th 1132, 1175, fn. 17.) Thus, “‘it is not essential that a witness be free from doubt as to one’s identity’” to sustain a conviction. (Ibid.) Accordingly, convictions have been sustained where an eyewitness fails to select the defendant’s photograph from a photographic display, or an eyewitness provides a description of the assailants inconsistent with that of the defendant. (Prado, at p. 673.) Such failures and inconsistencies impact only the weight of the evidence, not its sufficiency. (Id. at p. 674.)
Defendant argues the photographic lineup shown to Jose was unduly suggestive because defendant was the only person depicted with a teardrop tattoo under his eye. Notably, however, Jesus was unable to identify defendant from the same photographic lineup, undermining the notion it was overly suggestive. In any event, defendant did not seek to suppress Jose’s identification, and concedes his challenge is therefore limited to the weight of the evidence, not its admissibility. (People v. Williams (1988) 44 Cal.3d 883, 906; People v. Diaz (1967) 66 Cal.2d 801.) Defendant argues Jose selected his picture from the lineup solely because of the teardrop tattoo. The record reflects, however, that Jose noted another person in the lineup without a tattoo was not the shooter but bore some resemblance to him, demonstrating he saw the shooter clearly enough to recognize facial features other than the tattoo. Because it was the jury’s province to judge the weight of the evidence regarding Jose’s identification, there is no basis for us to reach a contrary conclusion.
Andy C. and Hernandez identified defendant within hours of the shooting after examining up to 50 photographs. Hernandez declared he was certain defendant was the shooter, remarking, “I can’t forget his face.” At trial, Andy C. confirmed he was positive he had correctly identified the man with the gun. On appeal, defendant reiterates his attempts to cast doubt on these two witnesses’ observations. He contends Hernandez’s identification was tainted by familiarity that falsely informed his review of the lineup photographs, since he recognized defendant from seeing him around the apartment complex. But the jury could reasonably conclude this bolstered Hernandez’s identification rather than undercut it. Defendant argues Andy C. “was incorrect on most every point in his description of the man with the gun,” wrongly inferring he was a friend of Jesus’s, where he lived in the apartment building, and that defendant’s name was Ernesto. But it was for the jury to weigh the significance of these collateral details against Andy C.’s positive physical identification.
Similarly, while defendant reemphasizes that the witnesses had different recollections of the color of the shooter’s clothing and whether he wore a baseball cap, it was for the jury to evaluate these discrepancies given the different lighting conditions and portions of the shooting and chase in which they observed defendant. Defendant complains that the prosecution asked none of the witnesses at trial to provide an in-court identification of the shooter. But defendant looked so different at trial that his own childhood friend was initially unable to identify him. In any event, it was for the jury to weigh the probity of the witnesses’ pretrial identifications, which were strong, mutually corroborating and in no way inherently improbable or physically impossible. Consequently, we may not second-guess the jury’s conclusion. (People v. Young (2005) 34 Cal.4th 1149, 1181; Prado, supra, 130 Cal.App.3d at p. 674.)
C. The Gang Expert Properly Relied on Letters Written by Defendant
Defendant contends the trial court erred in permitting the prosecution’s gang expert to rely on, among other indicia of gang membership, the letters purportedly written by defendant to his brother. The expert relied on the letters as a basis for his opinion defendant was an active 18th Street gang member at the time of the shooting. Defendant objected to the letters at trial, and reiterates on appeal his contention the letters lacked foundation because the investigator omitted the letters from his inventory of items collected at defendant’s apartment and because no evidence showed defendant wrote the letters. Absent authentication, defendant asserts the letters were unreliable and incompetent as a basis for the expert’s opinion because, “‘[l]ike a house built on sand, the expert’s opinion is no better than the facts on which it is based.’ [Citation.]” (People v. Gardeley (1996) 14 Cal.4th 605, 618.)
Defendant overlooks, however, that authentication need not be established by an investigator recounting the chain of custody or, indeed, in any particular manner. “The law is clear that the various means of authentication as set forth in Evidence Code sections 1410-1421 are not exclusive.” (People v. Gibson (2001) 90 Cal.App.4th 371, 383 (Gibson).) “‘[L]ike any other material fact, the authenticity of a letter may be established by circumstantial evidence. . . .’” (Chaplin v. Sullivan (1945) 67 Cal.App.2d 728, 734.) One method of authenticating a document is by its contents; another is by its location. (Gibson, at p. 383.) Once the court finds sufficient evidence of the preliminary fact of authenticity to warrant admission of the writing into evidence, the existence of that fact is subject to redetermination by the jury. (2 Witkin, Cal. Evid. (4th ed. 2008 supp.) Documentary Evidence, § 7, p. 24; McAllister v. George (1977) 73 Cal.App.3d 258, 263 (McAllister); Chaplin, at p. 734.)
So it is here. The letters bore defendant’s name as the author, they were addressed to his brother on dates defendant was in prison before the shooting, and they communicated personal, core identity details a factfinder could reasonably conclude only defendant knew and would divulge to a confidant, including the admission, “I am Aztec, I am Mexican, and 18th Streeter of the heart.” (See Gibson, supra, 90 Cal.App.4th at p. 383 [use of defendant’s name, even an alias, suffices to authenticate letter]; see also Evid. Code, § 1421 [writing authenticated where it “refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent . . . to be the author of the writing”].) Defendant cross-examined the gang expert on his skill as a Spanish translator, the fact he had not personally found the letters, and the absence of handwriting comparison samples, but these challenges affect only the weight of the evidence, not its admissibility. (E.g., McAllister, supra, 73 Cal.App.3d at p. 263.)
The trial court admitted the portions of the letters concerning defendant’s gang membership for their truth, under the party admission exception to the hearsay rule. (Evid. Code, § 1220.) Defendant contends the unreliability of the letters’ authorship required their exclusion under Evidence Code section 352 as a basis for the expert’s gang membership opinion. (People v. Valdez (1997) 58 Cal.App.4th 494, 511.) But, as discussed, the prosecution adequately established defendant as the author by authenticating the letters. Defendant’s challenge to the expert’s reliance on the letters is therefore without merit.
D. Any Error in Refusing Defendant’s Pinpoint Instruction Was Harmless
Defendant argues the trial court erred in refusing a special jury instruction he proposed relating the reasonable doubt standard to his defense that the prosecution failed to prove he committed the offenses. Relying on his testimony that a man commandeered his car as he drove near the shooting scene, defendant requested the following special instruction: “You have heard evidence that a person other than the defendant committed the offense with which defendant is charged. The defendant is not required to prove the other person’s guilt. It is the prosecution that has the burden of proving the defendant guilty beyond a reasonable doubt. Therefore, the defendant is entitled to an acquittal if you have a reasonable doubt as to the defendant’s guilt. Evidence that another person committed the charged offense may by itself raise a reasonable doubt as to the defendant’s guilt. However, its weight and significance, if any, are matters for your determination. If after considering all of the evidence, including any evidence that another person committed the offense, you have a reasonable doubt that the defendant committed the offense, you must find the defendant not guilty.”
Upon request, a defendant has a right to tailored instructions which relate the standard of reasonable doubt to the evidence in the case. (People v. Earp (1999) 20 Cal.4th 826, 886 (Earp); see generally 21 Cal.Jur.3d (2008) Criminal Law: Trial, § 323.) “‘In a proper instruction, “[w]hat is pinpointed is not specific evidence as such, but the theory of the defendant’s case.”’ [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 720.) “But a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation].” (People v. Bolden (2002) 29 Cal.4th 515, 558.)
Here, several sentences in defendant’s proposed instruction duplicated the trial court’s instructions concerning the prosecution’s burden of proving defendant’s guilt beyond a reasonable doubt (CALCRIM No. 220) and the jury’s authority to resolve the weight and significance of conflicting evidence (CALCRIM No. 302). Indeed, because defendant’s lengthy instruction unnecessarily restated the reasonable doubt standard four different ways in four different sentences, the trial court could reasonably conclude the undue repetition rendered the instruction argumentative. (See In re Wagner (1981) 119 Cal.App.3d 90, 112 [no error in trial court’s refusal to give instructions that are “repetitive or argumentative or in some cases both”].)
To the extent the trial court might have pared duplicative or repetitive aspects of defendant’s instruction, any error in failing to do so was harmless. In Earp, the Supreme Court considered a proposed instruction remarkably similar to defendant’s, albeit shorter and to the point. The instruction read: “‘Evidence has been offered that a third party is the perpetrator of the charged offense. It is not required that the defendant prove this fact beyond a reasonable doubt. In order to be entitled to a verdict of acquittal, it is only required that such evidence raise a reasonable doubt in your minds of the defendant’s guilt.’” (Earp, supra, 20 Cal.4th at p. 887.)
Citing People v. Watson (1956) 46 Cal.2d 818, 836, the Supreme Court concluded: “Even assuming that this proposed instruction accurately pinpointed the defense theory, defendant suffered no prejudice from the trial court’s refusal to give it. The jury was instructed under CALJIC No. 2.90 [CALCRIM No. 2.20’s forebear] that the prosecution had to prove defendant’s guilt beyond a reasonable doubt, and the jury knew from defense counsel’s argument the defense theory that Dennis Morgan, not defendant, had committed the crimes. Under these circumstances, it is not reasonably probable that had the jury been given defendant’s proposed pinpoint instruction, it would have come to any different conclusion in this case.” (Earp, supra, 20 Cal.4th at p. 887.) The same is true here. The trial court thoroughly instructed the jury on the prosecution’s burden of proof (CALCRIM No. 2.20), and defense counsel and defendant’s own testimony brought home to the jury the defense theory of a third-party perpetrator. Thus, any error in the trial court’s refusal to give or pare defendant’s proposed instruction was harmless.
E. The Trial Court Did Not Err by Imposing $80 in Court Security Fees
Defendant contends the $20 court security fee (see § 1465.8 [effective Aug. 17, 2003]) the trial court imposed for each of his four convictions violates the Penal Code’s general bar against retroactive application, since he committed the crimes in 2002. (See § 3 [“No part of [the code] is retroactive, unless expressly so declared”].) The Supreme Court has determined, however, that section 1465.8’s legislative history reveals a clear intent to impose the fee prospectively on, as here, all convictions postdating its effective date. (People v. Alford (2007) 42 Cal.4th 749, 754.) Defendant’s challenge therefore fails. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III
DISPOSTION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., IKOLA, J.