Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 01CF3420, M. Marc Kelly, Judge. Petition for writ of habeas corpus.
Fay Arfa for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted defendant Timothy Lee Driggars of attempted murder (Pen. Code, §§ 643, subd. (a), 187) and street terrorism (§ 186.22, subd. (a)). The jury found the crime was not premeditated. The jury found true allegations defendant committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)), personally discharged a firearm causing great bodily injury (§§ 12022.53, subd. (d), 1192.7 & 667.5), and personally used a firearm (§§ 12022.5, subd. (a), 1192.7 & 667.5). Defendant admitted serving a prior prison term. (§ 667.5, subd. (b).) The court sentenced him to “25 years to life in state prison plus 18 years.”
All statutory references are to the Penal Code unless otherwise stated.
On appeal defendant raises a host of ineffective assistance of counsel claims, as well as a substantial evidence challenge to his attempted murder conviction, a prosecutorial misconduct argument, and contentions of court error on evidentiary issues. Defendant further argues “the cumulative effect of the errors requires reversal.” None of these claims have merit. We therefore affirm the judgment.
In his May 9, 2008 petition for writ of habeas corpus, defendant raises the same ineffective assistance of counsel claims as he does on appeal. We deny the petition.
FACTS
On March 8, 2005, 27-year-old Oscar Ramirez and his 16-year-old brother, M.M., both non-gang members, walked through an area of Santa Ana claimed by the Lopers criminal street gang toward a discount store. It was M.’s birthday and Oscar planned to buy M. a soda.
A green car drove from the left lane to the right lane closest to the brothers, and the white male driver “mad dogg[ed]” them. M. had never seen the man before. The brothers looked back at him, then ignored him and kept on walking. Besides the driver, there were two girls in the car. The driver parked in the store’s lot with the car backed into a parking space. As the brothers walked toward the store, the driver said, “Come here.” (Although Oscar knew the driver had called out to M., he could not hear the words due to a hearing problem.) M. heard the driver’s words so M. took a couple of steps toward the car. The driver asked M., “Do you gang bang?” M. replied, “No.” The driver called him a “Latin bitch.” The driver opened the car door, put his left foot on the ground, reached down, pulled out a gun, and shot M. in the stomach. M. said, “Fuck you,” and “flipped [the driver] off,” but then noticed blood on his sweater. He ran back to Oscar, pushed him, and said, “Let’s go inside the store.” The shooter drove away. Inside the store, Oscar phoned 911.
A police officer responding to the 911 call located a car matching the description. The car was at a gas station about 17 blocks from the discount store; defendant was pumping gas and he was with two females. After the arrival of backup units, the officer arrested defendant.
In the speaker of the driver’s side door, an officer discovered a .25 caliber handgun and an Altoids tin containing two or three .25 caliber cartridges. A bullet recovered from M.’s body and a casing located at the crime scene were fired from the handgun found in the car. Upon his arrest, “defendant had gunshot residue on his hands”
The brothers identified defendant in court as the shooter.
The prosecution’s gang expert testified defendant had many gang related tattoos on his body, including the words “Lopers” on the side of his head and on his middle body section and “Loper” on his neck, the letters “LPS” on his elbow, and “13” in three places. (In prison gang culture, “13” symbolizes southern California.) Tattoos are one of the main ways of showing gang allegiance and a willingness to sacrifice oneself. In addition, field interview reports, police reports, and correspondence to and from defendant tied him to the Lopers gang. Discovered in the car were a belt with the letter “C” on the buckle, a common buckle for the 5th Street Lopers gang, with the C standing for “Callecinco” or 5th Street and a calendar with “Huero” (defendant’s moniker, meaning “a light skinned person”), and “Lopers 13” written in pencil on it. Also found in the car were a pair of gloves, a black hat, and over 30 letters and writings that referred to gang activities, some including defendant’s moniker “Huero.”
The Lopers gang is a traditional Hispanic street gang, but allows Caucasians to be active members. “[T]heir crimes over the years have ranged from murder, to robberies, street robberies, [and] auto thefts.” A Lopers member was convicted in 2005 of receiving stolen property, vandalism, and street terrorism. Another Lopers member was convicted in 2002 of armed robbery and street terrorism.
The expert explained the term “hit up” “in the gang subculture [means] when somebody or a group of persons basically ask you where [you] are from,” i.e. “what gang you are from.” “It is a potential[ly] volatile situation where violence can easily occur.” “There is no correct response. You basically are at the whim of that gang or gang members as to how they’re going to respond to what you said.” A hit up is seen as a challenge in the violent gang subculture where street toughness elevates a person’s esteem and the gang’s reputation. One way a gang controls its territory is by hitting up people within the area. If a gang member conducts a hit up and receives a disrespectful response, the member might lose respect if he fails to meet the response with violence.
The expert conducted background investigations on Oscar and M. and found no evidence tying them to any gang.
The expert opined defendant was an active participant of the Lopers gang. In response to a hypothetical question based on the facts of this case, the expert opined the crime was committed for the benefit of the gang.
Defendant testified on his own behalf. He explained he had a weapon on March 8, 2005 because he had been shot in the leg six days before (possibly by members of another gang) and was therefore scared. On March 8, 2005, defendant, his pregnant girlfriend, and her sister went swimming at the home of defendant’s grandmother from around 1:30 p.m. to 4:30 p.m. They were driving home when they decided to get off the freeway to buy gas. Defendant drove to a friend’s house to borrow money for gas. He then drove to a discount store located very close to territory claimed by the Lopers gang. On the way there, he did not see two young men and did not mad dog anyone. He parked the car and was asking his girlfriend what she wanted to drink when two men aggressively approached him, asked where he was from, and said a gang name like Latin Kings or Latin Boys. Defendant did not respond because to say “nowhere” “would cause more altercation” due to his tattoos. The men came to within 14 feet of the car. One had his hands in his pockets and the other was pulling up his sleeves. Defendant admitted he never saw M. with a gun or knife. Defendant felt afraid for himself, his girlfriend, their unborn child, and his girlfriend’s sister. When M. was about 14 feet away, defendant pulled the gun out of the speaker in his door, pointed it in the direction of the men, and fired one shot.
Defendant testified he did not shoot M. for the benefit of the gang and was not a gang member at the time. Although he had previously been a gang member, he was no longer active. He had suffered a 2003 assault conviction and, upon his discharge from custody, he decided he “was no longer going to be criminally active with the gang.” Because of his decision to leave the gang, he “was sliced with a razor blade eight to nine times.” He spoke with his parole office and his grandmother about methods for removing his tattoos. On March 8, 2005, he had a job and was living with his pregnant girlfriend and her family in Hollywood. Defendant was familiar with the gang ethic that it is improper (a green light offense) to involve “civilians,” i.e. someone who does not belong to a gang, in a gang’s crime activity. Most of the letters found in his car were actually rap lyrics he wrote during his incarceration. For example, he wrote a rap song asking, “Tell me why do we got to kill our own race just because you got a different tattoo on his face. Tell me why do we got to kill our own race just because he grew up in a different place,” and another saying, “Well, it’s me little Huero and I’m back once again saying to all the homies in the pin and ya where I spent a whole lot of days writing these lyrics so my raps can pay.”
Defendant’s girlfriend testified she gave him the belt whose “C” stood for her name, Claudia. Her testimony generally accorded with defendant’s, except that she saw the two men walking down the street. She and her sister testified defendant went to a friend’s house to borrow money, and that two men approached the car “screaming” at defendant “where was he from.”
Defendant’s grandmother testified she picked up defendant’s car after he was arrested. In the car she found “a flier from a company [called] Tattoo Be Gone” and another paper “from the Orange County Conservation Corps, a place to contact for employment.” Defendant’s mother had passed away in 2001, leaving defendant “distraught.”
In two pretrial interviews with police, defendant made statements inconsistent with his trial testimony. In the first interview, he “denied even being at the scene of the shooting.” In the second interview, in which he admitted shooting M., he said that prior to going to the discount store he had visited a friend —a Lopers homeboy, Penguin, who had recently been shot or hurt. He did not mention needing money for gas. He said just one person walked toward his car. He stated “he urinated on his hands in order to get rid of the gunshot residue.” When asked “if he was no longer a Loper,” defendant replied, “Nah, I didn’t say that.”
In a pretrial police interview, defendant’s girlfriend made statements inconsistent with her trial testimony. She stated that “on the way back from defendant’s grandmother’s house,” he visited a friend who “had just been released from the hospital.” On the way to the discount store, defendant got “into a staring match with two unknown males.” Defendant backed his car into a parking space and “waited” with his engine running. She saw “defendant open the driver’s door,” “say something to the two unknown males,” “produce a handgun from the center console,” and “point[] the gun at the males and fire[] a round at one of them.” Defendant then closed the door and fled from the scene.
In a pretrial police interview, the girlfriend’s sister stated she awoke to hear defendant “yelling something at someone outside the vehicle.”
DISCUSSION
Substantial Evidence Supports Defendant’s Attempted Murder Conviction
Defendant argues the evidence fails to show he “specifically intended to kill” M., but instead shows he “acted in self-defense and the defense of others.”
On appeal we consider “whether there is substantial evidence to support the conclusion of the trier of fact,” “not whether guilt is established beyond a reasonable doubt.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) We review the whole record “in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Johnson (1980) 26 Cal.3d 557, 578.) To be substantial, evidence must be “reasonable, credible, and of solid value.” (People v. Johnson, supra, 26 Cal.3d at p. 578) “The standard of appellate review is the same when the evidence of guilt is primarily circumstantial.” (People v. Holt (1997) 15 Cal.4th 619, 668.) “Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) A defendant “does not show the evidence is insufficient by citing only his own evidence, or by arguing about what evidence is not in the record, or by portraying the evidence that is in the record in the light most favorable to himself.” (Ibid.)
“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) “Self-defense is perfect or imperfect. For perfect self-defense, one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. [Citation.] A killing committed in perfect self-defense is neither murder nor manslaughter; it is justifiable homicide. [Citation.] [¶] One acting in imperfect self-defense also actually believes he must defend himself from imminent danger of death or great bodily injury; however, his belief is unreasonable.” (People v. Randle (2005) 35 Cal.4th 987, 994.) “One who kills in imperfect self-defense . . . is guilty of manslaughter, not murder, because he lacks the malice required for murder. [Citation.] For the same reason, one who kills in imperfect defense of others — in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury — is guilty only of manslaughter.” (Id. at pp. 996-997.)
Defendant argues, because he himself was shot six days before he shot M., he “honestly believed he was in imminent peril from [M.’s] potential attack.” He also argues M. rolled up his sleeves and intended to fight, and showed his defiant attitude after he was shot by saying “Fuck you” and flipping off defendant. He concludes the evidence showed he acted in self-defense and in defense of others.
Defendant’s argument relies solely on the evidence most favorable to himself. He ignores the substantial evidence that showed he intended to kill M.: He shot M. in the stomach. He mad dogged him on the street, then parked in a lot and waited for him. He conducted a hit up, asking M. where he was from and creating a volatile situation. The jury was instructed on self-defense, but did not find it applicable here. Substantial evidence supports defendant’s attempted murder conviction.
Defense Counsel’s Assistance at Trial Was Not Ineffective
To prove an ineffective assistance claim, a defendant must show that
(1) “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 687, 692 (Strickland).) A court need not “address both components of the inquiry if the defendant makes an insufficient showing on one.” (Id. at p. 697.)
When evaluating the adequacy of counsel’s performance, a court asks whether counsel’s assistance was reasonable “under prevailing professional norms” and in light of all circumstances existing at “the time of counsel’s conduct.” (Strickland, supra, 466 U.S. at pp. 688-690.) Because defense counsel face a “variety of circumstances” and an array of “ legitimate decisions” (id. at p. 689), a court must “accord great deference to counsel’s tactical decisions” (People v. Lewis (2001) 25 Cal.4th 610, 674) and “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance . . . .” (Strickland, at p. 689.)
To prove prejudice, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694.) “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” (Id. at p. 695.)
With these precepts in mind, we turn to defendant’s eight claims of ineffective assistance of counsel. The trial court rejected these same claims in defendant’s new trial motion, observing defendant’s trial counsel provided “solid representation” and won “a not true finding from the jury on the most serious enhancement, which was the premeditation and deliberation.”
1. M.’s marijuana use
Defendant contends his trial counsel performed deficiently by failing to “present critical exculpatory evidence of [M.’s drug use] and a drug expert.” In his new trial motion, defendant alleged prosecution discovery showed M. was under the influence of marijuana at the time of the shooting. He attached a laboratory report showing M. tested positive at the hospital on the day of the shooting for THC, “the main psychoactive substance” in marijuana. Social Services reported M. stated it was “his first time.” Defendant also attached an investigator’s report as an exhibit to his new trial motion. This report stated the owner of M.’s former apartment believed M. smoked marijuana. The apartment owner suggested the investigator might “find evidence of smoking marijuana on the front porch,” but the investigator “was not able to locate any.”
On appeal defendant argues the “marijuana evidence would have undermined the prosecution’s case by showing that [M.’s] perceptions of the incident were diminished because of his marijuana use” and by showing he “lied to his doctors about his marijuana use.”
Defendant fails to show he was prejudiced by his counsel’s failure to introduce the foregoing evidence. Defendant does not offer any evidence of when M. took the drug or how it affected him. Even if marijuana use had diminished M.’s perceptions of the incident or called into question his credibility, defendant himself admitted that he pointed the gun toward the men and shot, M. did not have a gun, and M. walked aggressively (not ran) toward the car. The evidence of defendant’s guilt was overwhelming. There is no reasonable probability the speculative evidence M. was under the influence of marijuana would have changed the outcome of the case.
2. Defendant’s mental state due to posttraumatic stress
Defendant argues he suffered psychological effects from his prior gunshot wound which caused him to believe he and others were in imminent peril and in need of defense. He concludes his trial counsel provided ineffective assistance by failing to retain a mental health expert who would have helped the jury “understand why a shooting that occurred six days before would have caused [him] to believe he needed to act in self defense.” Defendant attached to his new trial motion the declaration of a psychologist stating “an exaggerated startle response” is a “core symptom” of posttraumatic stress.
There is no reasonable probability expert testimony on defendant’s mental state would have changed the outcome of the case. The jury heard defendant’s detailed testimony he had been shot six days earlier, was scared, and believed he needed a gun for protection. The jury also saw a transcript of defendant’s police interview containing further details about defendant being shot in the leg six days before the M. shooting. As the People point out, the evidence showed defendant “instigated the matter.” Defendant mad dogged M. and Oscar, parked in the lot to wait for them, and yelled at them. His actions were inconsistent with someone who was scared and suffering from posttraumatic stress. Trial counsel did not provide ineffective assistance by failing to call a psychological expert.
3. Defense gang expert
In closing argument, defendant’s trial counsel presented the defense theory that M. and Oscar saw “a white boy with two Latin girls in a Latin area” and were motivated to get in an argument or a fight. On appeal defendant asserts his trial counsel should have retained a defense gang expert to support the defense theory and rebut the People’s expert’s opinion that the offense was gang related. Defendant attached to his new trial motion the declaration of a gang expert opining defendant “sought to leave the gang,” “began carrying a gun for his personal protection,” “fired the gun to protect himself and his women,” and possessed the lyrics as an expression of “American pop culture,” not with the intent to promote the gang. The expert also stated “a white male with two Latina females would be construed as an affront to the Latino male image” and require “the Latino men to protect the honor of their women.” Defendant argues that if the expert had testified at trial, his “testimony would have seriously undermined the gang enhancement[.]”
A defense expert’s testimony on the defense theory, i.e. that M. was angered by the sight of a white boy with Latina girls, was unlikely to have changed the outcome of the case. The defense theory was strenuously argued to the jurors, but rejected by them. A gang expert’s opinion on the cultural underpinnings of the theory was not reasonably likely to change that result. Defendant testified he was no longer a Lopers member and had paid a price for leaving the gang. The jury was unpersuaded by that testimony, and a gang expert’s opinion defendant had left the gang (based solely on defendant’s own averments) was not reasonably likely to alter the outcome. As pointed out by the prosecutor during her argument opposing the new trial motion, it is a defense judgment call whether to retain a gang expert because such an expert can end up helping the prosecution. Defendant did not receive ineffective assistance on this issue.
4. Defendant’s parole officer
Defendant argues his “parole officer would have corroborated [his] desire to remove his tattoos.” Defendant attached to his new trial motion the declaration of his parole officer who declared that during a home visit on February 22, 2005, defendant spoke to her “about removing his tattoos.” Defendant concludes his “parole officer would have shown [he] really wanted to remove his tattoos and sever his ties to any gang.”
Defendant testified he talked with his parole officer and grandmother about removing his tattoos, and both defendant and his grandmother testified about the flyer on tattoo removal she found in his car. The flyer itself was admitted into evidence. There is no reasonable probability of a more favorable outcome; defendant did not receive ineffective assistance on this issue.
5. Defendant’s medical records
Defendant contends his “medical records corroborated his testimony that he had been shot and that he sought medical attention,” and “that he had been brutally attacked in jail.” He asserts these records constituted “concrete proof that he had indeed suffered a gunshot wound, bought a gun to protect himself, and acted out of self defense and/or the defense of others.”
Defendant testified at length to both events memorialized by these records. As to his gunshot wound, he stated he suspected he was shot by a gang in the Hollywood neighborhood where he lived with his girlfriend. He testified he had been hit up by gang members there three times. The first time, when he replied he was from nowhere, “they asked [him], ‘What does it say on your head[?]’” (This suggests an alternative reason why defendant may have wished to remove some of his visible tattoos.) The medical record concerning the attack in jail reflects defendant had “multiple complex lacerations to head, face, neck and left upper extremity.” At trial defendant showed the jury some of his injuries, displaying “facial slicing . . . on the left side of his face area and down by the chin and the cheek.” He testified he also had slicing on his head, arms and back of the neck. When asked on cross-examination if the jail attack happened because he was no longer a Loper, defendant replied, “Yes, ma’am, from what I know.” He admitted that he told a deputy after the incident that he did not know why this had happened to him. There is no reasonable probability a more favorable outcome would have resulted if trial counsel had presented the medical records; defendant did not receive ineffective assistance on this issue.
6. Transcript of police interview
Defendant argues the transcript of his second police interview (where he admitted the shooting) failed to show his “extremely distressed emotional state” and “how [he] cried throughout the interview,” and omitted information about his state of mind. He also asserts the transcript is “largely unintelligible” and “lacked sufficient accuracy in material respects to justify its use by the jury.” For example, he alleges in one section of the transcript marked “inaudible,” he can be heard on the tape saying he did not know the shooting was going to happen and he was scared for his girlfriend.
Trial counsel asked the court to “play the tape” if the transcripts were introduced because counsel did not “agree with everything that is on the transcript versus the tape.” Trial counsel argued “the trier of fact ought to be able to ascertain . . . how and the context in which . . . the statements were made.” He expressed a concern about parts of the transcript which were “inaudible and to [him] they were audible.” The court deferred ruling until after defendant was cross-examined. Trial counsel later asked that the tapes be entered into evidence and played. The prosecutor indicated one interview was on a compact disc and the other on cassette tape; trial counsel stated he had no means to play them. Trial counsel then asked that the transcripts be introduced into evidence.
We have reviewed the transcripts of both interviews and find them to be intelligible and sufficiently accurate. The transcript of the second interview contains much that is helpful to defendant’s defense. It contains extended discussion about defendant being shot in the leg in Hollywood by the La Mirada gang about a week before defendant shot M., thus casting light on his state of mind. In the interview, defendant stated he does not gang bang and does not “do none of that shit,” has “been in Hollywood 24/7,” and has been working at Video Finders. Defendant stated he did not know who [M.] was, and he only shot him once. He thought M. said “Latin Boys . . . but . . . from New York (inaudible) mother fucking strapped . . . you know, he’s walking up to the car. People who walk up to cars like that are crazy . . . .” The officer asked if the two men “were they like right next to each other,” to which defendant replied, “Yeah. They were . . . .” The transcript shows defendant was emotional and sought to protect his girlfriend and her sister by confessing. The officer told defendant toward the beginning of the interview, “I know this is hard, man, but . . . .” Toward the end of the interview the following colloquy occurs:
“Ruiz: Okay. Okay. Okay. Tim, hang in there, okay. Hang in there (inaudible) the guy’s not dead and . . . my report’s going to indicate you told the truth and came clean. Now that’s worth something, okay. Okay (inaudible) okay.
“Driggers: Well, how long before they . . . before they get them out?
“Ruiz: . . . I can’t tell you specifically what date, what hour but it’s something I’m going to be working on, okay. [H]opefully, it will come together correctly and they’re not involved, they’ll be out real quick like, okay. But you got to remember next time . . . if you’re with you[r] lady . . ., something like this goes down . . ., you just got to back off, get out of there.
“Driggers: . . . I was thinking about protecting myself and her. . . .”
The transcript’s omission of defendant’s statement he “didn’t even know it was gonna happen” was not prejudicial since the jury found defendant did not premeditate the shooting. In sum, there is no reasonable probability a more favorable outcome would have resulted if trial counsel had chosen not to introduce the transcript; defendant did not receive ineffective assistance on this issue.
7. Admission of ski mask, gloves and rap lyrics
Defendant contends admission into evidence of the black hat, gloves and rap lyrics found in his car was “irrelevant and highly prejudicial,” but trial counsel failed to lodge an objection. During her closing argument, the prosecutor recited the following from defendant’s writings: “There’s a gun on the left and a homie on the right. I’ll put my ski mask on my face to hide my face cause I’m not gonna catch another case.” Defendant concludes “[t]he items unfairly permitted the jury to speculate or conjecture about appellant’s reason to possess the items” and “implied that [he] intended to use [them] for criminal purposes.” He also argues the items “constituted inadmissible character evidence under Evidence Code section 1101, subdivision (a).” He asserts the evidence of the gloves and the knit hat “had no evidentiary value” since the “prosecution failed to show that [defendant] ever wore the items or intended to wear the items.”
The rap lyrics were probative of defendant’s gang affiliation and guilt. As to the hat and gloves, “[t]he trial court has broad discretion in determining the relevance of evidence.” (People v. Harris (2005) 37 Cal.4th 310, 337.) In any case, in light of the overwhelming evidence proving his guilt, it is not reasonably probable that excluding the hat and gloves would have yielded a more favorable result for defendant.
8. Gang expert’s testimony
Defendant contends his trial counsel should have objected on hearsay grounds to the gang expert’s opinion he was affiliated with the Lopers gang for purposes of the street terrorism charge and the gang enhancement. He complains the expert’s opinion was based on field interview reports and other police documents prepared by people who did not testify at trial.
“Evidence Code section 801 limits expert opinion testimony to an opinion that is ‘[b]ased on matter . . . perceived by or personally known to the witness or made known to [the witness] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates . . . .’” (People v. Gardeley (1996) 14 Cal.4th 605, 617.) Expert testimony may “be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions.” (Id. at p. 618.) “Of course, any material that forms the basis of an expert’s opinion testimony must be reliable.” (Ibid.) “So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony.” (Ibid.) “And because Evidence Code section 802 allows an expert witness to ‘state on direct examination the reasons for his opinion and the matter . . . upon which it is based,’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion.” (Ibid.)
Here, the expert’s testimony was admissible and any objection by trial counsel would have been futile. Defendant did not receive ineffective assistance in this respect.
The Court Did Not Unfairly Restrict Trial Testimony of Defendant or His Grandmother
Defendant contends the court improperly “sustained the . . . constant objections to trial counsel’s questions” of his grandmother at trial. He contends her testimony would have corroborated his “desire to remove his tattoos,” and shed light on his “state of mind and the rap lyrics found in [his] car.” Defendant concludes the court deprived him “of his federal constitutional rights to . . . present a defense, due process and a fair trial . . ., and a reliable judgment . . . .” Defendant further argues the court improperly excluded defendant’s own testimony by erroneously sustaining the prosecutor’s vagueness objection to his counsel’s “critical question,” “Did you feel that these young men were up to no good?”
The court allowed the grandmother to testify that she found in defendant’s car “an item from the probation officer that . . . tattoos be gone . . . .” But the court struck her testimony that defendant requested the item, after sustaining the prosecutor’s objection on grounds of speculation and lack of foundation. Defendant argues the court’s ruling was erroneous because the grandmother “saw and heard” defendant ask his parole officer for tattoo removal information.
The grandmother also testified defendant was “very distraught” after his mother died. The court subsequently sustained relevancy objections to questions on whether defendant had mood swings or changed after his mother’s passing. Defendant contends his grandmother, if permitted, would have testified that, after his mother died, he “became sad, withdrawn and despondent,” requested grief counseling from the Youth Authority, but his requests went unanswered, tried to commit suicide, and covered himself with tattoos to protect himself from other gang members, to demonstrate he was strong, and to mask his grief.
Defense counsel asked the grandmother whether defendant told her what he planned to do with the rap lyrics. The court sustained the prosecutor’s hearsay objection. Defendant contends the court’s ruling was erroneous because his grandmother would have testified he “asked her to save the rap lyrics because he intended to professionally record them and pursue a recording contract” and that he had “recorded a demo tape of rap lyrics that he had written [in] honor of his mother’s death.”
As to the question defendant sought to answer himself about whether he thought the brothers were up to no good, defendant argues he “needed to explain what he believed the men were going to do” since these “perceptions constituted the cru[x] of his defense.”
Defendant argues the foregoing testimony would have helped the jury decide whether he acted in self defense, and whether he acted reasonably in light of his difficult life and need for psychological treatment. He concludes he was deprived of his right to present a defense.
“The principles governing the admission of evidence are well settled. Only relevant evidence is admissible [citation], ‘and all relevant evidence is admissible unless excluded under the federal or California Constitutions or by statute. [Citations.]’ [Citation.] ‘The test of relevance is whether the evidence tends “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive.’” (People v. Harris, supra, 37 Cal.4th at p. 337.) “‘Speculative inferences that are derived from evidence cannot be deemed to be relevant . . . .’” (People v. Babbitt (1988)45 Cal.3d 660, 681-682.) A defendant’s due process right to a fair trial entitles him “to present all relevant evidence of significant probative value to his defense.” (People v. Reeder (1978) 82 Cal.App.3d 543, 553.) Defendant relies on Crane v. Kentucky (1986) 476 U.S. 683 to support his contention he was denied a meaningful opportunity to present a complete defense, but there, the lower court improperly granted the prosecutor’s motion in limine “to prevent the defense from introducing any testimony bearing on the circumstances under which the confession was obtained” (id., at pp. 685-686), even though “evidence bearing on the credibility of a confession [was] central to the defendant’s claim of innocence.” (Id. at p. 690.)
“The trial court is vested with discretion in admitting or rejecting proffered evidence and its decision will not be reversed on appeal unless there is a manifest abuse of that discretion resulting in a miscarriage of justice.” (People v. Wein (1977) 69 Cal.App.3d 79, 90 .) Our Supreme Court has “held the application of ordinary rules of evidence does not implicate the federal Constitution, and thus we review allegations of error under the ‘reasonable probability’ standard of People v. Watson (1956) 46 Cal.2d 818, 836.” (People v. Harris, supra, 37 Cal.4th at p. 336.)
We find no error here. Trial counsel did not lay a foundation of personal knowledge for how the grandmother knew defendant had asked for the Tattoos Be Gone flyer. Defendant now argues the grandmother would have testified she heard him ask his parole officer for tattoo removal information and then tell the officer he had yet to receive the information. Defendant asserts this testimony would have been admissible under the state of mind exception to the hearsay rule. (Evid. Code, § 1250.) But defendant did not make this offer of proof at trial. (Evid. Code, § 354, subd. (a) [judgment shall not be reversed because of erroneous exclusion of evidence unless “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means”].) The trial court never had the opportunity to consider either the proffered testimony or the applicability of the state of mind exception to overcome a hearsay objection. For a statement to survive a hearsay objection, the party offering the statement must either show the statement is not hearsay (People v. Fauber (1992) 2 Cal.4th 792, 854) or “alert the court to the exception relied upon and [lay] the proper foundation.” (People v. Livaditis (1992) 2 Cal.4th 759, 778.) Moreover, we note the flyer was introduced into evidence and defendant testified about it as well.
The grandmother testified defendant was very distraught after his mother passed away, thus informing the jury his mother’s death four years earlier may have affected his state of mind at the time of the shooting. Any further testimony on the subject would have lacked significant probative value; some of it would have constituted hearsay. And the trial court was never given an offer of proof that the grandmother would have testified to the matters now argued on appeal.
As to defendant’s plans for his rap lyrics, the court excluded the grandmother’s testimony as hearsay. Defendant now argues the testimony was within the state of mind exception to the hearsay rule. (Evide. Code, § 1250.) But that argument was not made at trial. As noted above, for a statement to survive a hearsay objection, the party offering the statement must either show the statement is not hearsay (People v. Fauber, supra, 2 Cal.4th 792, 854) or “alert the court to the exception relied upon and [lay] the proper foundation.” (People v. Livaditis (1992) 2 Cal.4th 759, 778.)
Defendant’s testimony on whether he believed the two men were “up to no good” was properly excluded for vagueness. Defendant was asked more specific questions and testified he was afraid because the men aggressively approached his car, hit him up, said Latin Kings or Latin Boys, and one had his hands in his pockets while the other pulled up his sleeves. There is no doubt he was heard on the crux of his defense. In addition, his girlfriend and her sister testified about the men screaming “where are you from.” In sum, the court did not abuse its discretion by excluding the foregoing testimony.
The Court Did Not Err by Admitting the Gang Expert’s Testimony
Defendant contends he was denied his constitutional rights to effective assistance of counsel, due process and a fair trial by the gang expert’s opinion he committed the shooting to benefit a gang, and the opinion violated the Evidence Code. Defendant contends the expert “usurped the function of the jury.”
The prosecutor posed a hypothetical question to the expert based on the facts of this case and asked if he had an opinion whether the crimes described in the hypothetical were committed for the benefit of the Lopers gang. Trial counsel objected that the question asked for a legal conclusion. The court overruled the objection.
“‘As a general rule, a trial court has wide discretion to admit or exclude expert testimony. [Citations.] An appellate court may not interfere with the exercise of that discretion unless it is clearly abused.’” (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) Expert testimony “‘is admissible even though it encompasses the ultimate issue in the case.’” (Ibid.) “Generally, an expert may render opinion testimony on the basis of facts given ‘in a hypothetical question that asks the expert to assume their truth.’” (People v. Gardeley, supra, 14 Cal.4th at p. 618.) “Expert testimony repeatedly has been offered to show . . . ‘whether and how a crime was committed to benefit or promote a gang.’” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)
The court did not abuse its discretion by admitting the expert’s opinion into evidence.
The Prosecutor Did Not Improperly Vouch for Oscar’s Credibility
Defendant argues the prosecutor “committed misconduct by expressing her personal belief as to the reliability of the prosecution’s witnesses” and defendant’s guilt. He concludes in a case where “the jury had to decide whether to believe [defendant] or the brothers,” the prosecutor’s comments violated his constitutional rights to due process, a fair trial, and a reliable judgment. He also contends his trial counsel’s failure to object constituted ineffective assistance of counsel.
Defendant challenges the following statements the prosecutor made in closing argument.
1. “Oscar was honest with you. How do you know? There’s two ways you know Oscar was honest with you and told the truth.” The prosecutor then gave two reasons drawn from the record: “First is listen to that 911 tape again. When he was calling 911, he wasn’t doing it for evidence to be presented to you.” Second, “[t]here’s another reason why you know Oscar Ramirez was honest. What did he say? He said I saw the defendant talking to my brother and [my brother] walked forward but I have a hearing problem. I couldn’t hear the exact words that were said. If he were lying to you, he would make up the words the defendant said, but he was honest.”
2. In response to defense counsel’s argument both brothers “charged” the car, the prosecutor repeated her reasons for arguing Oscar told the truth: “Oscar Ramirez was an innocent bystander, and he told the truth on that 911 tape, and he told the truth in court, and there’s nothing to contradict that. And so was [M.M.].”
3. “There are defenses the law allows for attempted murder, and there’s two different kinds of defenses. I submit to you, neither one applies in this case.”
4. “There is absolutely no evidence that M. and Oscar were out to confront the defendant. And, I disagree, but you are the judges of the facts.”
5. “I disagree with the evidence, but you are the judges of Mr. De La Pena [defense counsel].”
6. The prosecutor closed her argument and rebuttal with the words, “He’s guilty.”
“‘A prosecutor’s rude and intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.) “‘“[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence . . . .”’” (People v. Ward (2005) 36 Cal.4th 186, 215.) Nevertheless, “‘[a] prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of [his] office behind a witness by offering the impression that [he] has taken steps to assure a witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,” [his] comments cannot be characterized as improper vouching.’” (Ibid.) “The use of the words ‘I submit’ are not the equivalent of expressing a personal opinion. To paraphrase, it would be ‘I submit that upon the facts as shown by the evidence.’” (U.S. v. Stulga (1978) 584 F.2d 142, 147.)
Applying the foregoing principles, we find no prosecutorial misconduct here. The prosecutor did not refer to evidence outside the record to bolster the witnesses’s credibility or give any impression she had taken steps to assure their truthfulness. She disagreed with defendant’s and his counsel’s version of events. She summed up her case with the words, “He’s guilty.” She was entitled to wide latitude and to vigorously argue her case. She did not commit misconduct.
Defendant’s Right to Due Process of Law and a Fair Trial were not Violated by Any Cumulative Effect of Errors
In his final contention, defendant asserts that, due to the cumulative effect of the alleged errors, he was denied due process of law and a fair trial. As discussed above, we have found no errors in this case. As to some of defendant’s ineffective assistance of counsel claims, we have found them to be nonprejudicial without considering them on the merits. This was not a close case. (See People v. Bunyard (1988) 45 Cal.3d 1189, 1236-1237.) Since we have found no aspects in which defendant was prejudiced in this case, it is not reasonably probable a result more favorable to the defendant would have been reached in the absence of any alleged errors. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed. Defendant’s petition for writ of habeas corpus is denied.
WE CONCUR: O’LEARY, ACTING P. J., MOORE, J.