Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA 075566. Bruce F. Marrs, Judge.
Roderick W. Leonard, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Defendant appeals his conviction after a jury trial of one count of vehicle theft (Veh. Code, § 10851, subd. (a)). He contends (1) the trial court erred in permitting the prosecution to reopen its case-in-chief after the defense had rested, (2) the prosecution’s reference to gang membership during questioning of a witness was highly prejudicial. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Prosecution Case.
1. The May 31, 2006 Vehicle Theft Arrest.
On May 22, 2006, at approximately 5:30 p.m., Maria Quan noticed her car, a green Infiniti, had been stolen from the parking lot on East Valley Boulevard in San Gabriel, where she customarily parked it. She had left the key in the ignition and the car running to run back into the house to retrieve something she had forgotten. When she returned, the car was gone. She had not given anyone permission to drive the car.
On May 31, 2006, at approximately 9:15 a.m., Officer Frank Segura of the Baldwin Park police department was on patrol in his vehicle when he saw a green Infiniti traveling northbound on Merced Avenue approaching the intersection with Nubia Street. The car was going about 10 miles an hour. The Infiniti turned right onto Nubia Street, and Segura saw the license number of the vehicle. The Infiniti stopped suddenly in the middle of the roadway in front of 13802 Nubia, and after a few seconds hesitation, made an abrupt right turn into the driveway. Segura became suspicious when the vehicle stopped in the middle of the street, and at that point planned on stopping it.
Segura could see the driver, who was defendant. Segura stopped in front of the house and observed defendant and a passenger get out of the vehicle. Defendant made eye contact with Segura, then started walking to the front of the car. Segura told him to stop, and defendant began running towards Merced Avenue and then turned and ran southbound on Merced. Segura gave chase in his police vehicle, and transmitted a bulletin for additional units to assist and contain the area. While they were setting up the containment of the area, Segura learned the Infiniti had been stolen.
Segura drove around in the area, and after he was unable to locate defendant, returned to the house on Nubia where defendant had left the Infiniti. Approximately 25 minutes had passed. Segura spoke to the passenger in the vehicle, John Wright, who lived at the house where it had stopped. Thereafter, Segura went to 4864 Jerry Avenue. Defendant’s mother answered the door, and gave Segura a photograph of defendant. Segura recognized defendant from the photograph as the driver of the Infiniti who had fled on foot. Segura spoke to defendant’s brother Gustavo Caro at the house on Jerry Ave. Gustavo, who had stepped outside, was loud and uncooperative, and would not allow his mother to answer questions.
Prior to Officer Segura’s testimony, the court held an Evidence Code section 402 hearing regarding Wright’s hearsay statements to Officer Segura. After Segura was unable to find defendant and returned to the house on Nubia Street, Wright told Segura where defendant lived, and rode with Segura in his patrol car and directed him to defendant’s house. The court limited the prosecution’s questioning of Wright to avoid introduction of any hearsay statements, and permitted Segura to testify that after having a conversation with Wright, he went to a residence.
Segura described defendant as heavy set, five seven to five eight, wearing a black T shirt, black baggy shorts, with short hair. Segura did not notice any tattoos.
Segura was unable to locate defendant that day.
2. The July 10, 2006 Arrest of Defendant.
On July 10, 2006, Segura detained defendant near Bressee Avenue in Baldwin Park in connection with another matter. At first, Segura did not recognize defendant as the same person who had run from him in connection with the May 31, 2006 theft of Maria Quan’s car. After he placed defendant in his patrol car, Segura recognized him. Segura did not mention in his arrest report that defendant was the suspect in the car theft, although he told other officers at the scene assisting in the arrest and later told his supervisor.
Defendant was tried separately on narcotics charges resulting from his July 10, 2006 arrest. At that trial, the evidence disclosed that Segura arrested defendant after he observed defendant walking illegally on the wrong side of the street. Defendant was near a car containing a male and female parked in front of a house. Defendant dropped a plastic baggie on the front lawn of the house and went up to the front door, but was unable to enter. A male got out of the car, approached the house, and dropped a pipe and a white object onto the lawn. Segura recognized the substance in the baggie defendant dropped as crystal methamphetamine, and arrested defendant and his male companion. Defendant’s trial on this matter resulted in an acquittal.
B. Defense Case.
Aurora Caro, defendant’s mother, was at home at 10:00 a.m. on May 31, 2006, drinking a cup of coffee and watching television. She met a police officer at her door, who asked who was at home, and she told him that she and her son were in the house. The police handcuffed her son, Gustavo Caro, and took him outside. She told the police she had another son named Pedro, and they asked for a picture, which she gave them. She told the police defendant was working and sometimes he spent the night at his girlfriend’s house. She did not know where he was, only that he worked in construction.
Segura denied that Gustavo was handcuffed.
Defendant’s brother Gustavo Caro worked swing shift, so he went to bed about 3:00 or 4:00 a.m. in the morning. His mother woke him up the morning of May 31, 2006, when the police arrived at the house. The police handcuffed him. Officer Segura asked him why he had tried to run from him, and took him outside. Gustavo denied that he was disruptive.
Israel Gonzalez, defendant’s brother-in-law, runs a concrete business. Defendant worked for him on May 31, 2006 from 5:45 a.m. to about 4:00 p.m.
On May 31, 2006, Eric Jimenez was having concrete work done on his driveway at his house in West Covina. Defendant was a laborer at the job, and Jimenez identified him in court. The workers arrived about 6:00 a.m., and left about 3:30 p.m. Jimenez did not mention defendant’s alibi to anyone until he was asked about it by the investigator.
Jimenez remembered defendant because they had a conversation regarding tattoos, and defendant showed Jimenez some tattoos on his legs by pulling up his pant legs. At trial, defendant showed the witness and the jury the tattoos on his legs. The tattoos were two skulls on one leg, with large lettering; the letters were three inches high and were “E and “S.” On the other leg were the letters “B” and “P,” also three inches high. Jimenez testified these were the tattoos that defendant showed him on May 31, 2006.
Ramon Castillo, defendant’s investigator, spoke to Jimenez about the cement pouring at his house. Jimenez could not remember exactly when it was, but that it was sometime in May. Castillo had a receipt which stated that the work had been done on May 31, 2006 that he showed to Jimenez; Jimenez did not have his own receipt. Jimenez said a photograph of defendant looked like one of the workers. Jimenez told Castillo he was sure about the identification because of the conversation he had with defendant regarding his tattoos. Castillo did not ask Jimenez to describe the tattoos, but told him he could do so in court.
C. Prosecution Rebuttal.
John Wright, the passenger in the car with defendant on May 31, 2006, admitted that he lived at 13802 Nubia Street. He denied knowing defendant, meeting Officer Segura on May 31, 2006, that he was a passenger in a green Infiniti on that date, or that he had a conversation with Officer Segura. He did not show Officer Segura where defendant lived, nor did he tell him that he did not know the car was stolen.
On July 10, 2006 at 3:00 a.m. Sergeant Doug Parnell of the Baldwin Park police assisted Segura with the arrest of defendant. Segura informed him defendant was the suspect in the car theft case sometime between the time he arrived to assist Segura and the time Segura arrived at the police station.
After the prosecution rested, the court inquired whether defendant wanted to put on any other evidence. Defendant declined.
The jury found defendant guilty on Count 1.
DISCUSSION
I. THERE WAS NO ERROR IN THE PRESENTATION OF THE PROSECUTION’S CASE.
Defendant contends the trial court committed prejudicial error when it permitted the prosecution to reopen its case to introduce the testimony of John Wright and Sergeant Parnell because such testimony was properly part of the prosecution’s case in chief.
A. Factual Background.
During Officer Segura’s testimony, he admitted that he did not mention in his police report for the drug arrest on July 10, 2006, that he recognized defendant as the driver on May 31, 2006, in the Maria Quan car theft. However, he testified that he told the other officers assisting at the scene of the drug arrest. On cross-examination the defense elicited some inconsistencies in his statements concerning when he told the other officers that he recognized defendant at the time of defendant’s arrest in the drug case. As a result, the prosecution advised the court it was not to ready to rest its case, and that in order to rehabilitate Officer Segura, it wanted to call the officers who were at the scene.
The court noted that “I certainly don’t want to shoot two and a half hours this afternoon doing absolutely nothing waiting for the officer to come in on Monday and then start the defense case.” Defense counsel objected, stating that if the witnesses were not going to be called, he would likely not put on a defense, but if they were to be called, he would put on a defense. The court concluded that the witnesses were relevant, and ruled that the prosecution would be allowed to re-open its case to present those witnesses.
Prior to the presentation of the defense, the defense again objected to the reopening of the prosecution’s case because the potential testimony would affect its strategy. “I’m sort of in a situation where I’m having to make that decision [whether to put on a defense] without knowing the people’s entire case, and I think that is fundamentally unfair to me in my representation of my client, because I still don’t know what his entire evidence is.”
The court pointed out it had the right to control the presentation of evidence, and that the jury was waiting, as well as an interpreter; further, because of the inference of recent fabrication of the officer’s statement, the prosecution had the right to rebut this evidence. The court advised the defense that if it wished to present additional evidence after the two police officers testified, it would give it an opportunity to do so. The defense made a motion for a mistrial, which the court denied.
During the presentation of the defense case, the prosecution informed the court that John Wright, who had previously failed to appear in response to a subpoena, was in court. The prosecution advised the court that Wright had been evading process, and they had only been able to obtain his presence with a bench warrant. According to the prosecution, Wright’s testimony was necessary because Wright would not admit to being the passenger in the stolen vehicle, and Officer Segura would testify to Wright’s prior inconsistent statements. The defense again objected that such testimony was properly part of the prosecution’s case in chief, and pointed out that Wright had been listed as a witness for the prosecution from the outset.
The court stated, “I think it’s strictly the order of presentation of witnesses, which of course is within the court’s control,” and overruled the defense objection. Officer Segura did not return to testify concerning Wright’s statements.
During closing argument, the prosecution commented on Wright’s testimony. “What are we doing with Mr. Wright? He’s reluctant, and he’s reluctant for a reason. What would that reason be? What happened when Officer Segura returned to the Infiniti? He interviewed Mr. Wright; correct? Now Mr. Wright, Mr. Wright denied he said anything. He denied that he said that, oh, it was [defendant] driving. He denied that he led him to [defendant’s] house. He denied he said, I thought the car was stolen when [defendant] ran from the car. He denied all of those things. Is he lying about that? Do you believe him when he says that?”
After closing argument, the defense again raised the issue that Wright’s testimony was not proper rebuttal testimony, and that the prosecution had raised the substance of Wright’s conversation with Segura, “even though there was no evidence that he made these statements.” Defense counsel requested the court to strike Wright’s testimony and direct the jury not to consider it. Further, counsel moved for a mistrial because Wright was not a rebuttal witness. The court denied the motions, commented that testimony had disclosed that defendant was the driver of the Infiniti, and it was a reasonable inference from the testimony that Wright relayed the information to Segura. Further, Wright testified that he remembered an individual coming to the door and speaking to him about the car, such that there were sufficient other sources to support the prosecution’s arguments.
B. Discussion.
The trial court has broad discretion to control the order of the presentation of evidence. (Pen. Code, § 1093, subds. (c), (d); People v. Harris (2005) 37 Cal.4th 310, 335.) Section 1093 raises two related issues: (1) Whether prosecution evidence put on after the defense case is proper rebuttal evidence, and (2) if not, whether the trial court retains discretion to permit the presentation of evidence properly part of the prosecution’s case-in-chief out of order. The purpose of Penal Code section 1093’s restriction on the presentation of evidence “is to assure an orderly presentation of evidence so that the trier of fact will not be confused; to prevent a party from unduly magnifying certain evidence by dramatically introducing it late in the trial; and to avoid any unfair surprise that may result when a party who thinks he has met his opponent’s case is suddenly confronted at the end of trial with an additional piece of crucial piece evidence.” (People v. Carter (1957) 48 Cal.2d 737, 753.)
Penal Code section 1093 provides in relevant part, “(c) The district attorney, or other counsel for the people shall then offer the evidence in support of the charge. The defendant or his or her counsel may then offer his or her evidence in support of the defense. [¶] (d) The parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permits them to offer evidence upon their original case.”
Proper rebuttal evidence does not tend to establish the defendant’s guilt in the first instance, but is “restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.” (People v. Carter, supra, 48 Cal.2dat pp. 753-754.) Testimony “that repeats or fortifies a part of the prosecution’s case that has been impeached by defense evidence may properly be admitted in rebuttal.” (People v. Young (2005) 34 Cal.4th 1149, 1199.) In any event, the trial court retains discretion to permit a party to reopen their case. (People v. Carter, supra, 48 Cal.2d 754.)
Here, although the procedural posture of the case was unusual, the court’s handling of the presentation of evidence did not constitute an abuse of discretion. Defendant could have rested after the prosecution had presented its case and chosen to rely on the state of the evidence. (People v. Evans (1998) 62 Cal.App.4th 186, 191.) In that regard, CALJIC No. 2.61, given in this case, provides, “In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him [or] her.” If the defense had declined to put on evidence after the prosecution finished with its case-in-chief, the prosecution would never have had the opportunity to call Officer Parnell and John Wright to testify. Thus, defendant was not faced with the Hobson’s choice he depicts.
However, although not required to do so, defendant chose to put on a defense; once he did so, the trial court properly exercised its discretion in permitting the proposed prosecution evidence. Officer Parnell’s testimony was proper rebuttal testimony to the defense case on the issue of defendant’s identity because defendant put on extensive evidence to show he was at a concrete-pouring project the day of the car theft. The fact the evidence also was proper to rehabilitate Officer Segura, after issues arose on cross-examination over the consistency of his statements concerning when he told other officers that he recognized defendant as the suspect in the car theft case, does not render the trial court’s ruling erroneous. (See People v. Harris, supra, 37 Cal.4th at p. 336 [court properly admitted rebuttal testimony to refute defendant’s claimed whereabouts at time of murder].)
Wright’s testimony, which was necessary so that Officer Segura could testify to Wright’s hearsay statements, was intended as part of the prosecution’s case-in-chief, and was not itself rebuttal. However, Wright was unavailable during the presentation of the prosecution’s case. In any event, Wright’s testimony was minimal, consisting almost exclusively of denials of the questions asked. Thus, its admission was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The prosecution intended that Wright’s testimony would open the door to additional testimony by Officer Segura to Wright’s prior inconsistent statements. (Evid. Code, § 1235.) That testimony was not elicited.
II. NO ERROR IN ADMISSION OF GANG EVIDENCE.
Defendant contends that the prosecution’s reference to the Baldwin Park gang was prejudicial and requires reversal because the only issue at trial was whether or not defendant was the driver of the green Infiniti when Officer Segura stopped the car on May 31, 2006. He points out that the prosecution was twice admonished not to mention gangs, and that the admission of the evidence was highly prejudicial here because it was a very close case resting entirely on Officer Segura’s identification testimony.
A. Factual Background.
Defendant was tried first on the July 10, 2006 narcotics charges. Prior to trial on the vehicle theft case, the defense counsel pointed out Officer Segura was the same arresting officer in the car theft case, and had mentioned while testifying in the drug case that he was on a gang detail. Counsel requested the court to limit any further mention of Officer Segura’s assignment to the gang detail because gang allegations were not at issue in the car theft case. The court twice advised the prosecution prior to trial to have a discussion with Officer Segura prior to his testimony to limit any mention of his assignment to the gang detail.
During the prosecution’s cross-examination of Eric Jimenez in the vehicle theft case concerning defendant’s tattoos, the following questioning occurred:
“Q. What is the significance of the ‘B.P.’?
“A: I have no idea.
“Q. Does it stand for ‘Baldwin Park’?
“A. It could be.
“Q. Okay. Are you sure?
“A. No.
“Q. Well, what’s the significance of that ‘B.P.?’ Is it a gang symbol?
“A. I don’t know.
“[Defense Counsel]: I’m going to object. It’s irrelevant.
“The Court: Sustained. He says he doesn’t know.”
B. The Passing Reference to the Baldwin Park Gang Did Not Prejudice Defendant.
Gang evidence is admissible if it is relevant to some material issue in the case (other than character evidence), is not more prejudicial than probative, and is not cumulative. (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) “Consequently, gang evidence may be relevant to establish the defendant’s motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect.” (People v. Albarran (2007) 149 Cal.App.4th 214, 223.) However, gang evidence is inadmissible if introduced only to establish defendant’s criminal disposition or bad character as a means of raising an inference the defendant committed the charged offense. (People v. Avitia, supra, 127 Cal.App.4th at p. 192.) In such instances where gang evidence is only tangentially relevant, given its inflammatory potential, it should not be admitted. (People v. Albarran, supra, 149 Cal.App.4th at p. 223; People v. Cox (1991) 53 Cal.3d 618, 660.)
Here, the prosecution’s questions were improper. It is undisputed that gang affiliation was not relevant to any issue in the case, and the prosecution was directly admonished prior to trial. Although defendant’s identity was in issue, and the presence of the tattoos on his legs were critical to his alibi defense that he was pouring a driveway on the day of the car theft, the tattoos could be described for the jury without reference to potential gang membership. The “BP” tattoo was ambiguous, and the prosecution’s questioning highlighted its potential gang significance.
Defendant contends the error was of constitutional importance, and deprived him of a fair trial in violation of his due process rights. (See People v. Albarran, supra, 149 Cal.App.4th at p. 229.) Therefore, he argues, we cannot apply the People v. Watson (1956) 46 Cal.2d 818, 836standard of reversible error, but must determine whether the admission of the evidence resulted in an unfair trial. Nonetheless, under that standard, “‘[o]nly if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must “be of such quality as necessarily prevents a fair trial.”’” (People v. Albarran, supra, 149 Cal.App.4th at p. 229.)
We do not find the prosecution’s questions rise to that level of error to have prevented defendant from receiving a fair trial. The questioning was brief, and the witness did not confirm the meaning of “BP” as being a gang moniker, instead responding, “I have no idea.” (People v. Mendoza (2000) 24 Cal.4th 130, 163 [“fleeting and minor” reference to gang membership did not result in denial of due process].) Further, we must assume the jury followed the instructions, which admonished them that questions were not evidence. (People v. Boyette (2002) 29 Cal.4th 381, 431.) Thus, because the prosecution’s questioning raised only the slightest inference of gang membership, we do not find reversible error.
DISPOSITION
The judgment of the superior court is affirmed.
We concur: PERLUSS, P. J., WOODS, J.