Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County Super. Ct. No. 2005007856 of Ventura James P. Cloninger, Judge
Gilbert W. Lentz, 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, Lance E. Winters, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Alberto Carrillo appeals the judgment entered after a jury convicted him of first degree murder (Pen. Code, §§ 187, subd. (a)/189). The jury also found true the allegations that Carrillo and a principal personally used and intentionally discharged a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(e)(1)), and that the crime was committed for the benefit of a criminal street gang, the Colonia Chiques (§ 186.22, subd. (b)(1)). He was sentenced to 50 years to life in state prison. He contends the trial court prejudicially erred in admitting a "gangsta" rap music video to prove that the Colonia Chiques is a criminal street gang, as contemplated by section 186.22, subdivision (f). We affirm.
All further undesignated statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
On March 4, 2005, Carrillo, victim Peter Reveles, Oscar Martinez, and Jesus "Chuy" Aguilar attended a party on the 1800 block of Devonshire Drive in Oxnard. Carrillo was wearing a sweatshirt bearing the Dallas Cowboys logo. A few months earlier, Carrillo and Reveles had been involved in a verbal altercation at a hotel after Carrillo spit on Reveles from a balcony. When Reveles approached Carrillo at the party and attempted to shake his hand, Carrillo told him, "I'll take my enemies out." Someone shouted out, "That's how the CO Boys do it." As Carrillo held his hands near his pockets, Reveles told him, "I know you got something there. Drop whatever you got and fight me like a man."
When Martinez attempted to intervene on behalf of his friend Reveles, Aguilar emptied two bottles of beer and came toward him. Carrillo and Aguilar chased Martinez down the street. Aguilar threw one of the bottles at Martinez, hitting him in the back. Reveles came to Martinez's defense and broke a beer bottle over Aguilar's head. When Reveles saw that Carrillo had pulled a gun out of his sweater, he started running away. Carrillo chased Reveles down and shot him four times in the back, killing him.
Oxnard Police Officer Manuel Vega testified as a gang expert. Officer Vega opined that Carrillo had killed Reveles for the benefit of his gang, the Colonia Chiques. The officer, a former member of the gang, testified that the gang currently had about 2,000 active members who identified themselves with clothing bearing the symbols of the Dallas Cowboys or the Indianapolis Colts. The gang has claimed most of Oxnard as its territory. A music video of a song entitled "Gangsta Games," in which Colonia Chiques members in Dallas Cowboys clothing are depicted flashing the gang's hand signs and simulating various crimes, was shown to the jury for the limited purpose of proving that the Colonia Chiques is a criminal street gang. Officer Vega also testified that members of the gang have committed murder, carjacking, armed robbery, burglary, and assault with a deadly weapon in the three years preceding the instant offense.
According to Officer Vega, a member of the gang could elevate his status by committing violent crimes, especially those involving the use of a firearm. Moreover, a member of the gang is expected to retaliate against anyone who disrespects him, and increases his reputation by killing that individual.
Officer Vega testified that the police had contacted Carrillo on numerous occasions while he was in the presence of known members of the Colonia Chiques. Officer Tamara McCready testified that Carrillo associated with the gang's members when he was in high school. The police had also recovered photographs of Carrillo flashing the gang's hand signs while wearing clothing bearing the Dallas Cowboys' logo.
Carrillo testified on his own behalf. He denied that he was a member of the Colonia Chiques, and claimed that he owned Dallas Cowboys clothing only because he is a fan of the team. While he acknowledged posing for photographs while flashing the gang's hand signs, he offered that he had done so "just for the fun of it." He admitted shooting Reveles with a gun he bought from a friend in 2004. According to Carrillo, Reveles had challenged him to a fight after Carrillo refused to shake his hand. When the two of them walked down the street to a grassy area, however, they changed their minds and decided to return to their friends. Martinez and Aguilar approached and asked what was happening, then began arguing. Carrillo saw Martinez and Aguilar get hit with bottles, but did not see who had thrown them. Fearing that he might be harmed next, he drew his gun and shot the person he believed had thrown the bottle at Aguilar. Carrillo admitted that he continued to shoot at Reveles after he had turned away from him. He claimed, however, that he did not know if he had actually hit him. He left the scene and disposed of the gun because he feared he would get in trouble for discharging it.
Several of Carrillo's friends testified that he was not a violent person and was not a member of the Colonia Chiques. According to one of the witnesses, it was common for non-gang members in Oxnard to not only wear Dallas Cowboys clothing, but flash the gang's hand signs to show their pride as residents of the Colonia district.
DISCUSSION
Carrillo contends that the trial court abused its discretion in admitting the music video to prove that the Colonia Chiques qualifies as a criminal street gang under section 186.22, subdivision (f). The prosecutor described the video as follows: "It's by an Oxnard rapper who calls himself Down. He does music for Colonia. In this particular video what you see is a bunch of Colonia gang members flashing the gang signs, which is a combination of two signs. There's a 'CO' and there's an 'ES' for East Side, and they talk about how they do crimes, they do beat-downs, and they talk about guns and firearms and they simulate different types of crimes." The prosecutor argued that the video was relevant to prove that the gang "thrive[d]" on crime and violence and "shows the pride that Colonia takes in doing things like what happened in this case." The prosecutor also indicated that Officer Vega would identify individuals in the video as documented members of the Colonia Chiques.
Carrillo moved to exclude the video under Evidence Code section 352. He argued that the relevance of the evidence was "marginal at best" because he was not in the video and there was no evidence he knew anyone in the video or had ever seen it. He also asserted that the video was prejudicial in that "[i]t shows real or simulated criminal activity by heavily tattooed Hispanic young males in the Oxnard area" wearing Dallas Cowboys clothing, which would create a "risk that the jury will impute the behaviors on the video to the defendant . . . ." The prosecutor responded, "I have the burden of proving that Colonia is a criminal street gang, and this video shows that. . . . [¶] The mere allegation that the defendant did this for the benefit of a criminal street gang is going to necessarily involve prejudic[ial] material, because I have to show that Colonia is a criminal street gang and there are a lot of ways to do that. . . . [¶] . . . And in this case the defendant not being in the video, I don't really see a significant prejudicial effect."
The court concluded that the video was admissible to prove that the Colonia Chiques was a criminal street gang, and that the jury could be instructed on its limited use. The court reasoned: "In my experience it's very unusual for a criminal organization such as the Colonia Chiques to actually participate in the making of a video where they're acting out a number of the crimes that the gang is accused of routinely committing, and it's a highly probative piece of evidence on the question of whether or not this organization is what the People allege that it is, which is a criminal street gang. [¶] Based on prior testimony and my own personal experience from cases, I think that the gang is a loosely organized group consisting of several hundred or a thousand members and its nature as a criminal organization is one of the key issues here in this case. This video tends to prove that. [¶] I think unless the jurors are properly instructed, . . . it could be quite prejudicial to the defendant. But it's not being offered to prove that Mr. Carrillo is a member. It's offered on the limited question of whether or not this is a criminal organization, which it is. [¶] . . . I think most jurors probably lack an understanding of what kind of organization this is, and the video probably does a lot to help them understand what the Colonia Chiques is as a group. [¶] So I think it's quite probative and more probative than prejudicial. Any undue prejudice I think that the defendant might suffer can be taken care of with an adequate instruction making it clear to the jurors that the only thing this video can be considered for is helping them answer the question whether the People have discharged their burden of showing that the Colonia Chiques is a criminal street gang . . . ."
Before the video was shown, the court told the jury: "I want to admonish the jurors concerning the video. The video that you are about to see is offered only to show that the Colonia Chiques are a criminal street gang for purposes of the charged special allegation. This is the only purpose for which you may use this evidence. [¶] It is not offered as, nor are the jurors to use it as proof of, for evidence of the defendant's character or his membership in a gang, nor of his guilt of the crimes charged against him." Carrillo declined the court's request to provide any further admonition.
Carrillo contends that the video should have been excluded under Evidence Code section 352, which provides that "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate under consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." To establish that the court abused its broad discretion in admitting the video, he must demonstrate that the decision "exceeds the bounds of reason." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.)
We have reviewed the evidence, which is best described as a music video of the "gangsta rap" genre. Because the video does not purport to depict the crime with which Carrillo was charged, we need not discuss the specific factors to be considered in evaluating whether such evidence is admissible under Evidence Code section 352. (Compare People v. Ibarra (2007) 151 Cal.App.4th 1145, 1150, and People v. Sims (1993) 5 Cal.4th 405, 451-453, disapproved on other grounds in People v. Storm (2002) 28 Cal.4th 1007, 1031-1032.) We need only decide whether the court exceeded the bounds of reason in finding that the tape was substantially more probative that prejudicial. (People v. Olguin, supra, 31 Cal.App.4th at p. 1369.)
Carrillo fails to make this showing. The video was plainly relevant to prove that the Colonia Chiques is a criminal street gang, which is defined as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts" enumerated in the statute and "having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) Officer Vega testified that certain members of the Colonia Chiques had committed the requisite crimes, and he identified individuals in the video as documented members of the gang. In the video, these individuals are depicted in gang clothing, flashing gang signs, displaying guns, and "rapping" about their pride in committing violent crimes in the name of the gang. While Carrillo claims that the video was merely cumulative of Officer Vega's testimony, evidence need not be excluded as cumulative under Evidence Code section 352 when it might assist the jury in understanding and evaluating other evidence or bolster a witness's credibility. (People v. Sims, supra, 5 Cal.4th at p. 452; People v. Scheid (1997) 16 Cal.4th 1, 14-16.) Carrillo's complaint that he did not expressly challenge the allegation that the Colonia Chiques is a criminal street gang is also unavailing. (Scheid, supra, at pp. 16-17.)
We also reject Carrillo's claim that the video was unduly prejudicial. "'. . . The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging."' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.) The jury was informed that Carrillo was not in the video. Moreover, the behavior depicted in the video pales in comparison to Officer Vega's testimony that members of the Colonia Chiques gang, including some of those who participated in the video, had committed at least 70 predicate criminal acts, including murder and armed robbery. While Carrillo claims that the potential for prejudice was exacerbated by Officer Vega's testimony that one of the individuals depicted in the video was a member of the Mexican Mafia, he did not give the court the opportunity to strike that testimony by objecting to it at trial.
In any event, any error in admitting the video is harmless because it is not reasonably probable that Carrillo would have obtained a more favorable result had it been excluded. (People v. Scheid, supra, 16 Cal.4th at p. 21; People v. Watson (1956) 46 Cal.2d 818, 836.) Even if Carrillo could establish that the video was admitted in violation of his federal due process rights, the error would be harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Most notably, the evidence was admitted for the limited purpose of proving that the Colonia Chiques is a criminal street gang. The jury was admonished not to consider the evidence for any other purpose, and we presume the jury followed that instruction. (People v. Alfaro (2007) 41 Cal.4th 1277, 1326.) As we have explained, the video was less inflammatory than the other evidence offered to prove that the Colonia Chiques is a criminal street gang. Moreover, the evidence that Carrillo was a member of the gang and committed the crime for its benefit was overwhelming. The jury not only heard of his documented history of associating with known members of the gang, but were also presented with photographs of him flashing the gang's signs while dressed in gang clothing. Several witnesses heard Carrillo identify the victim as his enemy, and also heard someone say "[t]hat's how the CO Boys do it" when the confrontation occurred. The gang expert testified that a member of the gang would be expected to retaliate against anyone he perceived as disrespecting him, and would increase his reputation within the gang by killing the person. Carrillo admitted that he shot the victim repeatedly in the back, and failed to provide any legitimate defense for his actions. Under the circumstances, he cannot demonstrate that he was prejudiced by any error in admitting the video.
The judgment is affirmed.
We concur:
YEGAN, Acting P.J., COFFEE, J.