Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA337794, Jose I. Sandoval, Judge.
Carlo Andreani, 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, Assistant Attorney General, Scott A. Taryle and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury convicted defendant and appellant Noe Contreras of three counts of attempted murder, three counts of assault with a firearm, and of evading an officer, and the jury found true gang and personal gun-use allegations. Defendant makes three contentions on appeal: first, the trial court erred by not bifurcating the gang allegations; second, the court should have excluded prior crimes evidence; and, third, the court erred by instructing the jury on aiding and abetting. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. The prior November 2007 incident.
On November 26, 2007, Los Angeles County Deputy Sheriff Thomas Maese stopped a car because it had committed traffic violations. Three people were in the car, including defendant, who was in the rear seat behind the front passenger. Maese saw defendant drop a large object behind the driver’s seat; when Maese searched that area he found a pistol grip shotgun. A second shotgun was in the front passenger compartment. The shotguns were loaded and ready to fire. Maese also found a digital camera in the car. Defendant was in the photographs with other Big Hazard gang members. All three people in the car said they were members of the Big Hazard gang.
B. The shootings on March 8, 2008.
About four months later, on March 8, 2008, at approximately 10:00 p.m., Jonathan Romero, Alfredo Jimenez, and Guillermo Moreno were walking to a party. Romero, Moreno, and Jimenez were not gang members. They were young Hispanic men with closely cropped hair.
The young men were at Malabar Street and Mott Street when a four-door gray car stopped behind them. Four guys were in the car. Jimenez saw the front passenger get out, and then he heard a bang; he was shot in his eye and back with pellets. Romero heard gunshots, and he was hit in the face and leg with pellets. Romero, Jimenez, and Moreno (who was not injured) ran to a house on Mott, where someone called for help. Officers arrived at the scene of the shooting about five minutes after it occurred. Three spent shell casings were found in the well-lit area.
At about 10:00 p.m., City of Los Angeles Police Officer Steve Zavala responded to the house on Mott, where Romero, Jimenez, and Moreno had fled. Moreno told him that a four-door gray car stopped behind him and that the front passenger got out of the car. He described the front passenger as a male Hispanic, 5 feet 7 inches tall with a shaved head, and wearing a blue jersey. Moreno said that the rear right passenger wore a black T-shirt. Officer Zavala also talked to Romero, who told him that the front passenger had a black gun. He described him as a male Hispanic, 5 feet 7 inches tall, 20 to 25 years old with a dark complexion and light goatee, and wearing a blue Dodger jacket, white T-shirt and dark pants. Romero said he could identify him if he saw him again. Romero also saw a male wearing a gray hooded sweatshirt get out from the right rear of the car. In addition to these two men, Romero said there were two other people in the car. Officer Zavala later spoke to Jimenez in the hospital. Jimenez said that he saw a male Hispanic about 20 years old with a shaved head wearing a white T-shirt with blue stripes get out of the front passenger side. He also saw a male Hispanic wearing a black T-shirt in the right rear of the car.
Romero testified at trial that the shooter was a dark-skinned male Hispanic, 20 to 25 years old, wearing a blue Dodger jacket and white T-shirt, but he also said he didn’t see the shooter. He denied telling police he could identify the shooter and giving a description of the right rear passenger to them.
At trial, Jimenez denied telling an officer the day after the shooting that the shooter was a bald male Hispanic. At trial, Jimenez didn’t remember telling a police officer the night of the shooting that the rear passenger behind the front passenger was a male Hispanic wearing a black T-shirt or that the front passenger was a male Hispanic, 20 years old, wearing a white T-shirt with blue stripes, although he did say that the front passenger was bald.
Officers Jorge Alfaro and Jacob Avalos were at the scene of the shooting but went to the Ramona Gardens Housing Project, which was in Big Hazard Neighborhood gang’s territory. The officers saw a four-door gray car driving fast with two male Hispanics inside with shaved heads. With the police car’s high beams and then sirens on, the officers followed the car, which tried to evade them. The officers pursued the car, which sped up and ran through stop signs before stopping on a dead-end street. The driver and passenger got out, and the driver ran towards the officers. The officers pursued the driver, but lost him. Officer Avalos said the driver wore a white T-shirt and long, light colored plaid shorts. The next day, Officers Alfaro and Avalos reviewed a photographic six-pack and identified defendant as the driver. On the front passenger floorboard of the gray four-door Pontiac was a spent shotgun casing. The casing from the car and the casings from the scene of the shooting were fired from the same shotgun. Fingerprints were lifted from the car but none matched defendant’s.
The day after the shooting, Detective Gabriel Barboza went to the hospital to talk to Romero and Jimenez. When shown a photographic six pack, Romero circled the photograph of defendant and said, “That’s the guy who shot me.” Romero became emotional and refused to sign anything or to write a statement. At trial, Romero said he circled defendant’s photograph, “because he told me what color was that guy, and I just told him that it was dark like him. I didn’t say it was him.” He denied telling the detective that defendant was the shooter. Detective Barboza showed Romero a second set of photographs, but Romero didn’t recognize anyone in them, although Romero testified that he was shown only one set of photographs at the hospital. Detective Barboza also asked Jimenez to look at photographs, but he refused. Moreno was shown a photographic six-pack, but he told detectives he couldn’t identify anyone. At trial, Moreno also said he did not know defendant.
Defendant was arrested on March 13, 2008. When officers searched defendant’s home, they did not find guns, ammunition, a Dodger jacket or gang paraphernalia.
Romero and Moreno reluctantly testified at the preliminary hearing. When Romero saw defendant at the hearing, Romero tried to leave. After the preliminary hearing, Romero said that a car followed him. He told Detective Barboza about this incident, but Romero denied at trial that it happened.
C. Gang expert testimony.
Officer Jose Vazquez, a member of the Hollenbeck Division gang unit of the Los Angeles Police Department, investigated crimes involving the Big Hazard gang, which is a Hispanic gang. Many Southern California Hispanic gangs wear Dodger paraphernalia. Big Hazard originated from the Ramona Gardens Housing Project. The gang currently has about 300 members. Krazy Ass Mexicans (KAM) is one of Big Hazard’s main rivals, and the shooting took place in KAM territory. Big Hazard’s primary activities are robberies, burglaries, narcotics sales, weapons violations, assaults on police officers, attempted murder on police officers, shootings, drive-by shootings, and murders. A gang will go into a rival gang’s territory and commit crimes to intimidate the community and the rival gang, thereby gaining respect, status, and control over the other territory. Gang members “put[] in work, ” meaning they commit crimes, which is how they gain respect and reputation. Gang members usually commit crimes in numbers for safety.
Defendant admitted to Officer Vazquez that he was a member of Big Hazard and that his moniker was Little Boo Boo. In Officer Vazquez’s opinion, based on a hypothetical modeled on the facts of this case, the crimes were committed for the benefit of Big Hazard and to assist or promote further criminal activities by gang members. The crimes were committed in retaliation for previous shootings and graffiti cross-outs and because of the general rivalry between KAM and Big Hazard.
D. Defense case.
Defendant’s girlfriend, Viviana Sosa, testified that on the night of the shooting, she and defendant were sitting on their outside porch from about 9:00 p.m. to about 9:45 p.m. discussing her recent pregnancy; Sosa’s friends, Gloria Carrillo and Norma Munoz, were also there. Defendant was home all night. While they were outside, they saw three cop cars go by and saw a helicopter. Sosa admitted that defendant was a gang member. Carrillo and Munoz corroborated Sosa’s testimony at trial. The parties stipulated, however, that Munoz told the defense investigator that she was not sure of the date she saw defendant and that Carillo said it was either March 7 or 8, 2008 when she saw defendant.
II. Procedural background.
On February 25, 2009, a jury found defendant guilty of counts 1, 2, and 3, willful, deliberate and premeditated attempted murder (Pen. Code, §§ 664/187, subd. (a)); of count 4, evading an officer with willful disregard (Veh. Code, § 2800.2, subd. (a)); and of counts 5, 6, and 7, assault with a firearm (§ 245, subd. (a)(2)). As to the attempted murder counts, the jury found true personal gun use (§ 12022.53, subds. (c) & (d)), and gang (§ 186.22, subd. (b)) allegations. As to the assault with a firearm counts, the jury found true personal gun use (§ 12022.5) and gang (§ 186.22, subd. (b)) allegations. The jury found true great bodily injury allegations (§ 12022.7) as to counts 5 and 6.
All further undesignated statutory references are to the Penal Code.
On July 24, 2009, the trial court sentenced defendant on count 1 to 15 years to life, doubled to 30 years under the Three Strikes law, plus 25 years to life for the gun enhancement plus a 30-year minimum parole eligibility requirement under section 186.22, subdivision (b)(4). The court sentenced him to concurrent terms on counts 2, 3, and 4 and imposed but stayed the sentences on counts 5, 6, and 7.
In a footnote, defendant states that the abstract of judgment does not reflect that these sentences were stayed. The stayed sentences, however, are in parentheses, which indicates that they were stayed. No modification to the abstract of judgment on this ground is therefore necessary.
DISCUSSION
III. Bifurcation of the gang allegation.
Before trial, defendant moved to bifurcate the gang allegation. The prosecutor argued that gang evidence was “imperative” to motive and to explain defendant’s behavior after the shooting. The trial court denied the bifurcation motion, stating, “I don’t think this case––again, it’s of a very strong and violent nature of the facts already, independent of the gang allegation. I don’t think this is one that warrants and mandates[, ] absolutely[, ] that allegation be bifurcated.” Defendant contends that the court abused its discretion and violated his federal constitutional due process rights by not bifurcating the gang allegations. We disagree.
The problem with admitting evidence of a criminal defendant’s gang membership is the risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged. And even where gang membership is relevant, trial courts should carefully scrutinize such evidence before admitting it because it may have a highly inflammatory impact on the jury. (People v. Champion (1995) 9 Cal.4th 879, 922, overruled on another ground by People v. Combs (2004) 34 Cal.4th 821, 860.) To avoid the inflammatory impact, bifurcation of gang allegations may be appropriate. In People v. Hernandez (2004) 33 Cal.4th 1040, our Supreme Court considered the propriety of bifurcating gang allegations by comparing the issue to bifurcating prior conviction allegations. Although the court recognized the value in bifurcating prior conviction allegations because a “unique prejudice” “may ensue” if a jury learns of a defendant’s prior convictions, “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.” (Hernandez, at pp. 1048-1049.) This is in part because trial of gang enhancement allegations differs from that of prior conviction allegations: “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.” (Id. at p. 1048, italics omitted.)
This is not to say, however, that “a court should never bifurcate trial of the gang enhancement from trial of guilt.... 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.) Where a gang enhancement is not at issue, evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal, unless, as is often the case, such evidence is relevant to prove identity, motive, modus operandi, specific intent, and the like. (Ibid.) But where a gang enhancement is charged, a unitary trial is permitted even if “some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself—for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged—a court may still deny bifurcation.” (Hernandez, at p. 1050.) Whether to bifurcate gang enhancement allegations is left to the trial court’s discretion, which is broader in denying bifurcation than is its discretion to admit gang evidence when no gang enhancement is alleged. (Ibid.) 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.)
Here, defendant contends it was an abuse of discretion not to bifurcate the gang allegations because the evidence “inverted the usual paradigm, established defendant’s status as a gang member, and then used the gang profile as evidence to prove disposition, motive, and identi[t]y unfairly.” (Italics omitted.) (See, e.g., People v. Albarran (2007) 149 Cal.App.4th 214, 227 [there was “nothing inherent in the facts of the shooting to suggest any specific gang motive [and] [i]n the final analysis, the only evidence to support the respect motive” was the fact of the defendant’s gang affiliation (fn. omitted)].) As defendant points out, the victims were not gang members, no gang names were shouted, and gang signs were not flashed before or after the shooting; he therefore argues that there was no evidence this was a “gang” case other than the evidence of his gang membership.
But this case is similar to People v. Williams (1997) 16 Cal.4th 153. The prosecution’s theory in Williams was the victim looked like a Crip and was in an area claimed by Crips and Bloods. Evidence that the defendant was a Blood gang member, had led a meeting of gang sets where killing Crips was discussed and weapons were distributed, and evidence of gang slogans, behavior and areas of influence “all had a ‘tendency in reason to prove’ (Evid. Code, § 210) that defendant had a motive for killing, and may indeed have shot, ” the victim. (Williams, at p. 194.) Williams therefore held that the trial court did not err in denying the defendant’s motion in limine to exclude gang evidence, because the evidence was relevant to motive and not unduly prejudicial. (Id. at p. 191.)
Similarly, in this case gang allegations were alleged under section 186.22, subdivision (b). As in Williams, the prosecutor’s theory of the case was the victims were walking at night in KAM gang territory and could be mistaken for gang members. Therefore, evidence that defendant was a member of the Big Hazard gang, that Big Hazard’s main rival was KAM, that shootings, drive-by shootings and murders were primary activities of Big Hazard, and that gang members go into rival territory to commit crimes in order to intimidate and create fear in the community had a “tendency in reason” (Evid. Code, § 210) to prove motive for the attempted murders. The probative value of the evidence also was not outweighed by its prejudicial effect. As in Williams, it tended to establish that the victims could have been mistaken for rival gang members. (People v. Williams, supra, 16 Cal.4th at p. 194.)
Nor did denial of the motion violate defendant’s federal due process right. “The admission of relevant evidence will not offend due process unless [that] evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.” (People v. Falsetta (1999) 21 Cal.4th 903, 913; see also People v. Partida (2005) 37 Cal.4th 428, 439 [“[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair” (italics omitted); admission of gang evidence did not violate due process].) As we have said, the evidence was relevant to motive and not unduly prejudicial so as to render the trial fundamentally unfair.
IV. Other crimes evidence.
The trial court admitted evidence that in November 2007 defendant was arrested after being stopped in a car with other Big Hazard gang members and loaded guns. Defendant raises two contentions concerning the admission of this prior crimes evidence: first, the evidence was cumulative and highly prejudicial, and its admission was an abuse of discretion and a violation of federal due process rights; and, second, exclusion of evidence that he was not charged with a crime violated his confrontation rights. We disagree with both contentions.
A. Additional facts.
Before trial, the People moved to admit other crimes evidence; specifically, the November 2007 incident during which defendant and two female companions were stopped in a car in which loaded guns were found. Defendant was arrested, but he was not prosecuted, although his two companions were. The prosecutor argued that the evidence was relevant to the gang enhancement. Also, because a digital camera with photographs of defendant wearing a Dodger jacket was also in the car, the evidence was relevant to identification, because the shooter was identified as wearing a Dodger jacket.
Defense counsel objected to the admission of this evidence, arguing that it was more prejudicial than probative and was remote in time. The trial court found that the evidence tended to prove a material fact and held that the evidence was admissible under Evidence Code section 352 and allowed the People to use the evidence for the limited purpose of the gang allegation.
At trial, Deputy Sheriff Maese testified that, in November 2007, he stopped a car containing two women and defendant. In addition to a digital camera containing photographs of defendant throwing gang signs, the deputy found two loaded shotguns in the car and arrested all three people, including defendant, for possession of a loaded firearm. All three people, including defendant, admitted that they were Big Hazard gang members. On cross-examination, defense counsel asked the deputy if defendant was prosecuted for the crime, but the trial court sustained the prosecutor’s objection on relevance grounds.
B. The evidence was admissible under Evidence Code sections 1101, subdivision (b), and 352.
Evidence Code section 1101, subdivision (a) prohibits the admission of other crimes evidence for the purpose of showing the defendant’s bad character or criminal propensity. Other crimes evidence, however, is admissible against a defendant “ ‘when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than his or her disposition to commit such an act.’ ” (People v. Catlin (2001) 26 Cal.4th 81, 145; see also Evid. Code, § 1101, subd. (b).) Like other circumstantial evidence, its admissibility depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence or absence of some other rule requiring exclusion. (People v. Roldan (2005) 35 Cal.4th 646, 705, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also People v. Whisenhunt (2008) 44 Cal.4th 174, 203.)
Evidence Code section 1101 states: “(a) Except as provided in this section and in [s]ections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
For evidence of uncharged crimes to be admissible under Evidence Code section 1101, subdivision (b), to prove such facts as identity, common design or plan, motive, or intent, the charged and uncharged misconduct must be “sufficiently similar to support a rational inference” of these material facts. (People v. Kipp (1998) 18 Cal.4th 349, 369.) The uncharged misconduct need only be sufficiently similar to support the inference that the defendant probably harbored the same or similar intent in each instance. (People v. Ewoldt (1994) 7 Cal.4th 380, 402; see People v. Memro (1995) 11 Cal.4th 786, 864-865 [defendant’s uncharged conduct of possessing child pornography admissible to show intent to molest young boy].)
Even if other crimes evidence is admissible under Evidence Code section 1101, subdivision (b), it may be excludable under Evidence Code section 352 if its probative value was substantially outweighed by the probability its admission would cause undue prejudice. (People v. Ewoldt, supra, 7 Cal.4th at p. 404 [“Evidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis’ ”].) The “prejudice” Evidence Code section 352 refers to 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.’ ” (People v. Karis (1988) 46 Cal.3d 612, 638.) But “ ‘ “prejudicial” is not synonymous with “damaging.” ’ ” (Ibid.) We review the trial court’s rulings under Evidence Code sections 1101 and 352 for an abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.)
The main complaint defendant has about admission of the November 2007 uncharged incident in which he was arrested after being stopped in a car with two other Big Hazard gang members and two loaded shotguns is that admitting evidence of the loaded shotguns was cumulative and prejudicial to establishing the gang allegation. As to its allegedly cumulative nature, defendant points out that there was other evidence he was a gang member: he admitted his gang membership to officers, and his girlfriend testified at trial that he was a member of Big Hazard. It was therefore cumulative to admit evidence that four months prior to the attempted murders he was arrested with two other gang members and that all three admitted they were members of Big Hazard.
The jury was instructed: “The People presented evidence of other behavior by the defendant that was not charged in this case. You may consider that evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses.... If the People have not met this burden, you must disregard this evidence entirely. If you decide that the defendant committed the uncharged offenses or acts, you may, but are not required, to consider that evidence for the limited purpose of deciding whether the defendant committed the alleged crimes charged here for the benefit of, at the direction or [sic], or in association with a criminal street gang. Do not consider this evidence for any other purpose. If you conclude that the defendant committed the uncharged offenses or acts, that conclusion is only one factor to consider along with the other evidence. It is not sufficient by itself to prove that the defendant is guilty of having committed this crime for the benefit of, at the direction of, or in association with a criminal street gang. The People must still prove that the allegation––must still prove the allegation beyond a reasonable doubt.”
We disagree it was cumulative. Certainly, there was little dispute that defendant was a Big Hazard gang member, based on his admissions to officers and his girlfriend’s testimony that he was. But evidence that defendant was seen in the company of Big Hazard gang members established that he associated with the gang and, moreover, that he associated with gang members who had access to guns, thereby giving rise to the inference he too had access to weapons. The November 2007 incident was also close in time to the attempted murders in March 2008, occurring just four months before. The prior uncharged act (possession of a loaded firearm) was no more inflammatory than the evidence of the charged offenses, which included three counts of attempted murder.
And although defendant did not object specifically on federal due process grounds in the trial court, we also reject his contention on appeal that admission of the evidence violated his due process rights. (People v. Falsetta, supra, 21 Cal.4th at p. 913; see also People v. Partida, supra, 37 Cal.4th at p. 439.) The evidence was relevant to motive and not unduly prejudicial.
C. The trial court did not abuse its discretion by excluding evidence he was not charged.
After the prosecutor elicited on direct examination that defendant was arrested for possession of a loaded firearm and taken into custody, the defense tried to elicit that defendant was not prosecuted for the crime. The prosecutor objected and, at side bar, said that the district attorney’s office rejected the case for filing. The trial court sustained the prosecutor’s objection and excluded evidence that defendant was not charged.
Defendant now argues that the evidence should have come in under authority finding a duty to inform a jury of a defendant’s acquittal of an uncharged crime that was being introduced as propensity evidence (People v. Griffin (1967) 66 Cal.2d 459 (Griffin). The defendant in Griffin was charged with murdering Essie Hodson, after trying to rape her. He fled to Mexico, where he was charged with but acquitted of raping another woman. During his trial for Hodson’s murder, the trial court admitted evidence of the rape in Mexico. (Id. at p. 464.) The California Supreme Court held that the evidence was admissible, but that the trial court erred in excluding evidence that defendant was acquitted of the rape. (Id. at p. 465.) A rule requiring the admission of such evidence “is fair to both the prosecution and the defense by assisting the jury in its assessment of the significance of the evidence of another crime with the knowledge that at another time and place a duly constituted tribunal charged with the very issue of determining defendant’s guilt or innocence of the other crime concluded that he was not guilty.” (Id. at p. 466; see also People v. Mullens (2004) 119 Cal.App.4th 648, 666 [“To give full meaning to the presumption of innocence in a case in which the prosecution is permitted to present [Evidence Code] section 1108 propensity evidence showing the defendant committed an uncharged sex crime, a trial court must grant the defense an opportunity to present evidence showing the defendant was acquitted of that alleged uncharged sex offense. In such cases, justice is best served by applying the Griffin rule so as to give the trier of fact the opportunity to consider and weigh both types of evidence in reaching a verdict that is based not on who the defendant is, but on what the defendant did”].)
People v. Jenkins (1970) 3 Cal.App.3d 529, broadly applied Griffin’s holding. In Jenkins, evidence was introduced that the codefendant had been arrested for a fraudulent transaction similar to the transaction the defendant was charged with. The trial court precluded defense counsel from introducing evidence that the codefendant was not charged with the crime. Jenkins interpreted Griffin to hold that “any competent or otherwise admissible evidence tending to weaken and rebut the evidence of the other crime should be admissible.” (Id. at p. 534.)
Defendant here argues that evidence he was not charged with any crime arising out of the November 2007 incident should have been admitted. While we do not disagree with Jenkins to the extent it concludes that such evidence might be relevant, we do not agree that a trial court necessarily abuses its discretion by excluding it. That a defendant was not prosecuted for the prior crime does not always go to the defendant’s guilt or innocence, which was the crucial reason why Griffin found that evidence of an acquittal was admissible. Rather, there are many reasons charges may not be filed; for example, witnesses may disappear or the statute of limitations may have run. Here, the district attorney declined to prosecute the case. Unlike in Griffin or Mullens, there was no factual finding of defendant’s innocence of the uncharged crime here. We also question the probative value of evidence that defendant was not charged given that there was no dispute he was in the car with loaded weapons in sight, even if it was questionable whether defendant possessed the weapons. Also, his two companions were arrested, charged, and convicted of possessing loaded firearms.
We also disagree that exclusion of the evidence violated defendant’s confrontation rights. “A defendant has the general right to offer a defense through the testimony of his or her witnesses [citation], but a state court’s application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon this right [citations].” (People v. Cornwell (2005) 37 Cal.4th 50, 82, disapproved on another ground by People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Although the United States Supreme Court, in Chambers v. Mississippi (1973) 410 U.S. 284, 302-303, “determined that the combination of state rules resulting in the exclusion of crucial defense evidence constituted a denial of due process under the unusual circumstances of the case before it, it did not question ‘the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.’ [Citation.]” (Cornwell, at p. 82; see also People v. Ayala (2000) 23 Cal.4th 225, 301 [“we have repeatedly held that ‘not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.’ [Citation.]”]; Montana v. Egelhoff (1996) 518 U.S. 37, 52-53 [such due process claims, usually citing Chambers v. Mississippi, supra, 410 U.S. 284, are often overbroad, as Chambers was a fact intensive, specific case].)
V. Aiding and abetting instruction.
The People asked for, and the trial court gave, aiding and abetting instructions (CALCRIM Nos. 400, 401), over defendant’s objection. The prosecutor argued that although Romero said that the shooter, defendant, was in the front passenger seat, defendant was later seen by police officers driving the car. Based on that, the jury could believe that defendant was not the shooter but the driver. Defense counsel argued that the People’s sole theory had been that defendant was the shooter and there was no evidence to show he aided and abetted the crime. In closing, the prosecutor made clear that his main argument was defendant was the shooter, but he also argued that defendant could have aided and abetted the crimes. After closing argument, defense moved for a mistrial on the ground that the prosecutor argued in closing only that defendant was the shooter.
The jury was instructed: “A person may be guilty of a crime in two ways: One, he or she may have directly committed the crime. I will call that person the perpetrator; two, he or she may have aided and abetted a perpetrator who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. [¶] To prove that the defendant is guilty of the crime based on aiding and abetting that crime, the People must prove that: one, the perpetrator committed the crime; two, the defendant knew that the perpetrator intended to commit the crime; three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and four, the defendant’s words and conduct did in fact aid and abet the perpetrator’s commission of the crime. Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose, and he or she specifically intends to and does in fact aid, facilitate, promote, encourage or investigate the perpetrator’s commission of that crime. If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude the defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of the crime, or fails to prevent the crime does not by itself make him an aider or abettor.”
Defendant now contends that there was insufficient evidence to support giving the instruction; that the aiding and abetting instructions were erroneous under our decision in People v. Nero (2010) 181 Cal.App.4th 504, and that the instructions relieved the prosecution of proving guilt beyond a reasonable doubt. We need not address the merits of these contentions, because any instructional error was harmless. (See, e.g., Nero, at pp. 518-519 [applying harmless error test of Chapman v. California (1967) 386 U.S. 18, 24; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165.) The jury found as to each of the attempted murder counts that “the defendant, Noe Contreras, personally and intentionally discharged a firearm” under section 12022.53, subdivision (d). (Italics added.) The jury also found, as to the assault with a firearm counts, that he personally used a firearm under section 12022.5. The jury therefore necessarily believed that defendant was the direct perpetrator—that is, the shooter—and not an aider and abettor. Any error was harmless.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., KITCHING, J.