Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC109393
Mihara, J.
Defendant Duy Le appeals from a judgment of conviction entered after a jury found him guilty of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187, 664, subd. (a) - count 1) and assault with a firearm (Pen. Code, § 245, subd. (b) - count 2). The jury also found that defendant committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang and with the specific intent to promote, further, and assist in criminal conduct by gang members (Pen. Code, § 186.22, subd. (b)(1)). The jury further found that the firearm enhancement allegation as to count 1 (Pen. Code, § 12022.53, subds. (d) & (e)(1)) and the great bodily injury enhancement allegations as to count 2 (Pen. Code, §§ 1203, subd. (e)(3), 12022.7, subd. (a)) were true. The trial court sentenced defendant to 40 years in state prison. On appeal, defendant contends: (1) the trial court erred in admitting evidence of prior uncharged acts; (2) the jury instructions regarding this evidence was improper; and (3) trial counsel rendered ineffective assistance. We find no error requiring reversal and affirm the judgment.
I. Statement of Facts
Prosecution Case
Officer Tak Odama, who testified as an expert in Asian criminal street gangs, was a detective in the gang investigations unit in April 2001. Officer Odama was familiar with two rival Vietnamese gangs, V.N. and A-Dub (AW), which stood for Asian Warriors. V.N., which was formed in 1992 or 1993, was one of the biggest and most violent of the Vietnamese criminal street gangs in San Jose. In 1993 or 1994, a group of friends from Andrew High School formed AW to defend themselves from V.N. AW also developed a reputation for violence. V.G. or Vietnamese Gangsters was a younger generation of V.N., and these members associated with the older gang members. In 2000, V-Dub (VW) or Viet Warriors was formed. Its members were younger and associated with the AW gang.
Within the Vietnamese gang culture, the most important value is saving face or not losing respect. When a gang member is perceived as weak or cowardly, this perception reflects poorly on fellow gang members. Vietnamese gangs do not control neighborhoods. Instead, they frequent certain coffee shops or restaurants. When a Vietnamese gang member goes to a coffee shop or restaurant frequented by a rival gang, he is challenging these gang members and they must respond with action so that they do not lose face. Since many of the coffee shops and restaurants have surveillance cameras, gang members sometimes go outside to engage in violent acts. A gang member who cooperates with the police is considered a snitch and will be punished. Gang members also intimidate witnesses to prevent any cooperation with the police.
On April 27, 2001, 19-year-old Vuong Duong (Duong) went to a Vietnamese coffee shop, which was called the Da Thao Café, with Kristy Nguyen (Kristy), her boyfriend Tuyen Tran (Tuyen), and Tuyen’s friend, defendant. Duong did not know either Tuyen or defendant. Duong first drove with defendant to Home Depot and then to the coffee shop while Kristy drove with Tuyen. Defendant told Duong that he was a member of AW. Duong denied any gang affiliation.
Defendant, Tuyen, Duong, and Kristy sat at a table near the door at the coffee shop. After about an hour, Tuyen told the group to leave, but Duong did not know why. When they were outside, Duong overheard a conversation between defendant and Tuyen in which they said something about an enemy inside the coffee shop. Tuyen said, “ ‘Let’s do it another time,’ ” and defendant responded, “ ‘No, it’s him, it’s him.’ ” They also referred to a “V.N. guy” in the coffee shop. Duong and Kristy then entered Duong’s car and drove across the street to the Quik Stop. After Duong heard three or four loud gunshots in quick succession, a lot of people ran out of the coffee shop. Tuyen and defendant also ran to their car. Duong could not recall who entered the driver’s seat, but he had previously testified that Tuyen was driving. In November 2001, Duong identified both Tuyen and defendant in photographic lineups. However, he could not identify defendant at trial.
Kristy testified that she was 19 years old on the day of the shooting. Kristy went to the coffee shop with Tuyen, and Duong went with defendant. Tuyen told her that he was in AW. She did not know that anyone had a gun when they went to the coffee shop. After they left the coffee shop, Kristy told Tuyen to leave. She overheard defendant saying “something about enemy or a gang-related word.” Tuyen told her that “ ‘[t]he guy in there is an enemy and we’ve got to take care of something.’ ” Kristy left with Duong, and told him to park at the Quik Stop. She saw Tuyen and defendant quickly reenter the coffee shop. Kristy then heard four or five gunshots in quick succession. As a lot of people ran from the coffee shop, she told Duong to drive away. Kristy did not know who committed the shooting.
Kristy never spoke to either Tuyen or defendant again. She positively identified Tuyen and defendant in court on two previous occasions. According to Kristy, at the time of trial, defendant did not look like he did on the day of the shooting. She was a “little bit” afraid of both Tuyen and defendant, and did not want to testify because she was afraid of what would happen to her.
Kristy did not recall telling Officer Odama that she spoke to Tuyen the evening of the shooting and that Tuyen told her that he was going to leave town for awhile.
Lisa Baker testified that she was in her car at the intersection of Lucretia and Story Road at the time of the shooting. She was waiting at the stoplight, when she looked toward the Da Thao Café. A dark brown Acura pulled up and two Asian men entered the coffee shop. She did not see a gun. Baker then heard four to five popping sounds within five to 10 seconds after the men entered the coffee shop. When the two men ran from the coffee shop, the passenger from the Acura was holding a gun in his hand.
Baker wrote down the color and model of the car, the license plate number, and a description of the men’s clothing. She then went to a nearby business and asked someone to call 911. When the police arrived, she provided them with the information. Baker was unable to identify the person she saw holding a gun at a photographic lineup. She was also unable to identify anyone at the preliminary hearing or at trial.
Thai Van Tran (Thai) testified that he joined V.N. when he was 16 or 17 years old. At age 18, he got tattoos of the letters “V” and “N” on his arms that were six inches long. In April 2001, he was aware of problems between V.N. and AW. On April 27, 2001, Thai went to the Da Thao Café. As he entered, he nodded to Tuyen, whom he recognized from high school. They were not friends, but Thai never had any problems with him. Thai was wearing a short-sleeved shirt that revealed his tattoos. Thai did not engage in any challenging behavior and did not know that Tuyen was in a gang. Tuyen and his friends eventually left the coffee shop. Within five minutes, however, Tuyen returned, tapped Thai on the back, and said that he wanted to talk to Thai outside. Thai followed Tuyen, but Thai was no longer behind Tuyen at the door. When Thai took a couple steps out the door, he saw a gun pointed in his face. A “skinny tall male,” not Tuyen, was holding the gun in front of Thai’s face. Without saying anything, the man started shooting. Thai turned and tried to run, but he was shot in the left buttocks area and fell to the ground. He suffered a fractured femur and a torn urethra. Thai could not identify the gunman, because his face was obscured.
Officer Odama testified that Thai told him that the gunman had been sitting at the table with Tuyen.
Tuyen was 21 years old in April 2001. At the time of trial, he had been in custody since July 2001 when he was arrested for his participation in the shooting. Shortly before trial, Tuyen pleaded guilty to attempted murder and admitted a gang enhancement allegation in exchange for a 19-year prison sentence. One of the conditions of the plea agreement was that Tuyen would testify truthfully in any future proceedings in the case.
Tuyen testified that he was a member of VW prior to April 2001. He had the letters “V” and “W” tattooed on his forearms. VW was the second generation of AW. If Tuyen went to a coffee shop with an AW member, it was understood that he would “have their back.” According to Tuyen, VW did not have problems with V.N., but AW did.
On April 27, 2001, Tuyen went to defendant’s house. Tuyen borrowed a gray Acura from Dai Nguyen (Dai), a member of AW. Kristy and Duong also came over to defendant’s house, and then the group decided to go to the Da Thao Café. Tuyen thought that defendant was in the car with him, and Kristy was in Duong’s car. Before they left, defendant put a gun in his waistband. After defendant got into the Acura, he put the gun under the passenger seat. Tuyen did not drive to Home Depot first. When Tuyen and Duong arrived at the coffee shop, they parked their cars near each other.
The group took a table in the middle of the coffee shop. About an hour later, Thai arrived and they acknowledged each other. Tuyen knew Thai from high school, and Tuyen did not have any problems with him. However, when defendant saw Thai, defendant said that his friend had a problem with Thai and defendant was going to “do something to him.” Defendant referred to Thai as his enemy, and told Tuyen to move the car. At that point, Tuyen knew that something bad was about to happen, and he moved the car into a getaway position. Tuyen then returned to the coffee shop and told defendant that the car had been moved. After Tuyen, defendant, Kristy, and Duong went outside, Tuyen told defendant, “ ‘Not today, you know. Just leave it alone, you know.’ ” Kristy asked Tuyen to leave with her, but he told her to leave with Duong. Tuyen testified that he was “stupid” for not leaving with Kristy, but that he had to help defendant because he was a gang member. Tuyen and defendant entered the Acura and defendant got the gun from under the seat. Tuyen returned to the coffee shop and asked Thai to come outside. Tuyen knew that there were surveillance cameras inside the coffee shop, but he did not realize that there were also cameras outside. Thai followed Tuyen through the door. Defendant was standing about 22 feet away and facing the door with a gun in his hands. As soon as Tuyen stepped to the right, he heard three or four shots. Thai fell after the second or third shot.
Tuyen and defendant ran to the car and left. Defendant directed Tuyen to a friend’s house, where defendant threw the gun into a bush. After defendant called Dai and told him what had happened, he told Tuyen to leave the car a few blocks away. Du Nguyen (Du), a member of AW, picked up defendant and Tuyen, and drove them to another house. About two or three hours later, Du gave them bus tickets and drove them to the Greyhound station. They took the bus to San Diego, where they stayed for three or four days with an individual that Tuyen thought was named Duong, an AW member. Defendant and Tuyen then went to a motel for about 10 days. Tuyen did not see Huy Le (Huy), defendant’s brother, in San Diego.
Sometime during the day of the shooting, Tuyen called Kristy to tell her that he was leaving town. He did not tell her that defendant was the shooter. After Tuyen was arrested, he wrote her some letters and told her that the police might contact her. Kristy did not respond.
After defendant was arrested and then released, for driving without a license, he and Tuyen went to Illinois, where they stayed with Sang Mai (Sang), a member of AW and VW. At some point, Huy also began staying at Sang’s apartment. Huy arrived with his friends, Bao and Duc. Tuyen did not recall having any arguments with Huy or having any problems with anyone at Sang’s house.
On July 2001, Tuyen was arrested and eventually transported to California. Tuyen was the only person facing charges for the shooting at the Da Thao Café. Tuyen told the police that defendant was the shooter. He also told Officer Odama that Kristy and Duong were present at the time of the shooting. According to Tuyen, defendant asked him to “take the case for him,” because the victim knew Tuyen and that he would receive $100 per month while he was in jail. Defendant was eventually arrested and they were charged together. While he and defendant were both in custody in 2001, they got into a fight. However, Tuyen denied that it was because defendant would not take a deal in the case. Tuyen also denied that he told defendant that he better take the deal because he had already told the police that defendant was the shooter. Tuyen was placed in protective custody, because he was a snitch.
Huy, Duc, and Bao were wanted for a shooting on April 10, 2001.
Tuyen initially lied about his involvement to protect himself and defendant. He first told the police that he did not know anything about it. In his second conversation with the police, he stated that Duong dropped him off at the coffee shop, and since he did not have a ride home, he asked the victim to come outside to ask him for a ride home. While they were outside, someone that he had never seen before began shooting at them, and Tuyen walked home. Later, Tuyen told the police that he went to the coffee shop with Kristy and Duong, and defendant arrived later. Tuyen asked Thai outside to ask him for a ride and defendant began shooting at Thai. In yet another interview, Tuyen stated that defendant drove to the coffee shop in the Acura, and that he was already there with Kristy and Duong. Tuyen asked Thai outside to ask for a ride and defendant shot at him. Tuyen became scared, and ran off with defendant, who asked him to drive the car.
Dai was defendant’s friend and they lived in the same neighborhood. Dai had been a member of AW for three years. Defendant was also a member of AW and had the letters “A” and “W” tattooed on his forearms. However, Dai stated that defendant was not a member, because he had been “let [] in,” not “jumped in.” AW did not get along with V.N. “back in the day,” but did so currently. On the day of the shooting, the police arrested Dai and asked him where his Acura was. He lied and told them that it was at the Home Depot parking lot where he worked, but he had actually lent it to Tuyen so that he could take his girlfriend to the coffee shop. The police found Dai’s car on May 4, 2001. Defendant’s right and left thumb prints were found on the rear-view mirror.
Dai’s former testimony was read into the record, because he was unavailable.
In March 1999, Dai and defendant were in a bar with Vu Truong (Truong), a fellow AW member, when an argument broke out between AW and V.N. members. Truong fired a gun. In April 2000, Dai was with Vu Pham (Pham) and other AW members when a fight broke out and a V.G. member stabbed Pham to death. Viet Mai (Mai) was one of the AW members present at the café. He was later involved in a shooting in January 2001. Dai once told a police officer that AW members were too smart to commit crimes when cameras were around.
Truong testified that he had known defendant for about eight years and he considered him a friend. Truong was a member of AW prior to 1999. He no longer associated with the gang, but he saw Dai and Du socially. Truong did not know if defendant was a member of AW in 1999. He had heard that defendant joined after 1999.
On March 25, 1999, Truong went to a restaurant with Dai, Du, defendant, and Tuan Le, who was also an AW member. Truong had shown them that he was carrying a gun. After some V.N. members entered the restaurant and immediately left, Truong followed them. As they drove away, Truong pulled out his gun and shot in the air. Truong fired the gun, because he was young and impulsive, and did not want to lose face in front of his fellow gang members. In 1999, he told a police officer that he would have shot the V.N. gang members if he had had the chance. However, he no longer felt that way. Truong pleaded guilty to offenses relating to the shooting. He was also convicted of gang-related crimes in 2003 and 2004. In June 2005, Truong was stabbed after he stated that he was a member of AW.
Officer Odama testified that AW was an ongoing criminal street gang in April 2001. AW, which had approximately 20 to 25 members, did not have a structure or hierarchy. AW members identified themselves by the letters “A” and “W,” and the numbers “1” and “23,” which are the first and twenty-third letters of the alphabet. The primary purpose of the gang was to commit certain felonies, including murder, assault with a deadly weapon, robbery, drug dealing, burglary, auto theft, and witness intimidation. These crimes were used to increase the gang’s reputation and to intimidate members of the community. Rival gang members were not the only victims of these crimes.
Officer Odama described prior acts of gang violence upon which he based his opinions. On May 26, 1997, Lac Tran (Tran), an AW member, committed a robbery and shooting. On February 20, 1998, AW members killed an A.G. gang member, who was with Nick Dang (Dang). Dang was a V.N. member who helped found V.G. On March 25, 1999, Truong shot at some V.N. members. On August 11, 1999, Tran committed another shooting. He was with other AW members when a fight broke out at a restaurant, and Tran fired his gun. On April 21, 2000, a V.G. member stabbed Pham, an AW member. On January 23, 2001, Mai, an AW member, shot at some V.G. members, because he believed they were involved in the killing of his friend. On December 17, 2003, after Dang got up to give a toast, a fight broke out between V.G. and AW members. Dang was shot and killed, and AW members shot other V.G. members.
In Officer Odama’s opinion, defendant was an AW member based on the cases that he has been involved in, his associates, and his field contacts with the police. On February 20, 1998, defendant told a police officer that he had been an AW member for about a year and that he had been a member since the beginning. On May 19, 1998, he told another officer that he was an AW member. On August 6, 1998, the police stopped defendant with other AW members. On January 28, 1999, February 21, 1999, and March 25, 1999, defendant admitted to police officers that he was an AW member. On May 12, 1999, the police stopped defendant with another AW member. On July12, 1999, defendant got into a fight with a V.G. member at a juvenile ranch. On January 28, 2000, defendant told a counselor that he would be an AW member for life. On July 4, 2000, defendant was stopped with another AW member, even though he had been ordered not to associate with any gang members. At that time, defendant was wearing a hat with the numbers “1” and “23.” Though defendant told a probation officer in July 2000 that he was going to quit the gang, Officer Odama did not change his opinion that defendant was an AW member. Defendant had the letters “A” and “W” tattooed on his forearms. However, when he was arrested in September 2001, he had covered up the “A.”
Assuming that defendant was the shooter on April 27, 2001, it was Officer Odama’s opinion that the shooting was done for the benefit of, at the direction of, or in association with a criminal street gang. AW benefited from the shooting by the enhancement of its reputation for being a powerful street gang. The shooting also demonstrated that AW members were willing to shoot people for purposes of intimidation. Officer Odama further testified that the shooting promoted criminal conduct by gang members.
Defense Case
Dung Hung Le (Dung), defendant’s father, testified that April 10, 2001, was the 16th birthday of his younger son, Huy. On that day, Huy did not return home, and Dung became concerned. On April 15, 2001, defendant asked permission to go look for Huy. Defendant went to Los Angeles, but could not find Huy. On April 17 or 18, defendant called from San Diego. Dung learned that his wife had sent some money to their sons in San Diego, and that she later sent money to another state. Dung did not recognize defendant in the video surveillance tapes from the coffee shop on the day of the shooting. Dung did not believe that defendant had done anything wrong. He told defendant’s attorney about the phone calls from San Diego the week before his testimony, and he also told a defense investigator and defendant’s attorneys before defendant’s first trial.
Dung Kim Bui (Bui), defendant’s mother, testified that Huy turned 17 on April 10, 2001. When Huy did not return home, she sent defendant to go look for him on April 15. Defendant went to Los Angeles, but did not find Huy. Defendant then called from San Diego to say that he had found Huy, who did not want to come home. Defendant stayed in San Diego to care for Huy. Bui did not have any telephone records from April 2001 and had not contacted the telephone company to obtain these records. In November 2005, Bui told John Vegas, a defense investigator about the phone calls. She denied that she told Vegas that defendant left for San Diego two weeks after April 10, 2001. Bui could not identify defendant in the surveillance video from the coffee shop.
Nhan Tran (Nhan) testified that he was Thai’s brother. Nhan attended high school with defendant, and was “pretty close” friends with him. Nhan did not know of problems between defendant and Thai. Nhan was not sure whether he wrote a tattoo on defendant’s chest. He was unaware that Thai was a V.N. gang member. Nhan thought that Thai’s tattoos referred to his girlfriend.
Du testified that he was a member of AW until four or five years before trial. He had been friends with defendant. At about 2:30 p.m. on April 27, 2001, Du was arrested with Dai for a shooting. They were transported to the police station where they were interviewed, fingerprinted, and tested for gunshot residue. It was dark by the time that he was released from custody. He did not see either defendant or Tuyen on that day, and he did not buy them bus tickets. He denied getting off work early, because defendant needed a ride. In April 2001, Du was a member of AW, and he acknowledged that gang membership required him to help fellow gang members or face consequences.
In May 2006, Du pleaded guilty to assault with a deadly weapon and admitted a gang enhancement allegation. The crime occurred on March 2, 2004. His codefendants were various AW members. Du also admitted that he was with Truong and other AW members when Truong fired shots at V.N. members in March 1999. According to Du, defendant, who was also present, was an AW member.
Huy testified that he turned 17 on April 10, 2001, and he ran away from home. He left San Jose with his friends, Dai, Duc, and Bao, because the police were looking for them. On April 20 or 21, Huy called defendant from Arizona and asked him to meet him in San Diego to help him find a job and a place to live. Prior to this time, he had not spoken to anyone in his family about going to San Diego. Huy next spoke to defendant about three weeks later. Defendant told him that he was unable to find either a job or a place to stay in San Diego, and that Huy should meet him in Illinois. Huy and two of his friends went to Illinois, where they stayed with defendant, Tuyen, Sang, and Sang’s girlfriend.
While Huy was staying at Sang’s apartment, he frequently got into arguments with Tuyen. Defendant took Huy’s side, and Sang took Tuyen’s side. After one argument, defendant stopped helping Tuyen financially. Huy knew that Sang and Tuyen were gang members, and stated that defendant was no longer a gang member. Huy denied that he was a member of the R.D. or Black Dragons gang. In 2004, Huy was convicted of attempted murder with a gang enhancement.
R.D. is a subset of AW.
Vuong Nguyen (Vuong) testified that he had known defendant for almost nine years and was his friend. Vuong associated with A.W. members, but he was not a member. In April 2001, Vuong was living with his girlfriend in San Diego. On April 22 or 23, defendant arrived in San Diego and contacted him. He remembered the date, because it was two or three days after the anniversary of his friend’s death. He did not remember if anyone was with defendant or if he arrived by car or by bus. Defendant stayed with Vuong in a motel for one and a half or two months. Three or four days after defendant began staying with Vuong, defendant introduced him to Tuyen. By the end of April, Tuyen was also staying with Vuong, his girlfriend, and defendant. Defendant and Tuyen stayed with Vuong until the end of May or beginning of June. Vuong was certain that defendant was staying with him on April 27, 2001.
Vuong admitted that he was with AW members when he was contacted by the police on April 30, 1998. He was also present with AW members on December 27, 1999, when a shooting occurred. Vuong did not think that defendant was an AW member, because he was not “hard core.” Vuong and defendant were arrested in San Diego in May 2001. Vuong was convicted of felony burglary on September 6, 2001. He was also convicted of felony grand theft on June 15, 2006. Vuong did not tell anyone that defendant had been with him on April 27, 2001 until October 2004.
Defendant testified in his own defense. He stated that he came into contact with AW members when he was in high school. He was afraid of them and they put pressure on him to join the gang. At the time, defendant was 15 years old and the AW members were two or three years older than he was. He was jumped in, when nine or 10 of the AW members hit him at the same time. Defendant conceded that he had been stopped by the police, but he had never seen Officer Odama before. In July 2000, defendant decided to leave the gang so that he could support his family financially. He informed one of the AW members, and he was jumped out. He was also told to cover his tattoos, which he did.
In August 2000, defendant got a job as a welder in a machine shop. At the end of 2000, Sang asked for a loan to fix his car. Defendant loaned him $400, but Sang never paid him back. At the beginning of 2001, Dai contacted defendant and asked to borrow some money to pay a gambling debt. Defendant gave Dai $1,000. Defendant knew Dai from school, and he met Sang at the beginning of 2000 and suspected that he was a gang member.
Defendant also knew Tuyen from school. Before May 2001, defendant had last seen him in February 2001 when Tuyen gave him a ride home. He knew that Tuyen was a gang member at the time. He met Kristy at the same time, but did not see her at any other time. He had never met Duong.
On April 27, 2001, defendant was in San Diego where he was looking for housing for Huy. On April 20, Huy had called defendant, who was still in San Jose, from Arizona. He asked for money and a place to stay, and stated that he was running away from the police. Defendant told him that he would meet him in San Diego. Defendant did not tell his parents that Huy was in Arizona. Defendant was no longer working in April 2001, because he had been laid off from his job. Though he had saved $3,000 from his job, he asked his coworkers for money. He also asked Dai for a loan, which Dai refused. Dai then gave him a ride home in his Acura. While he was in Dai’s car, defendant touched the rear view mirror. His eye itched and he wanted to check it.
On April 22, 2001, defendant’s friend gave him a ride to Los Angeles. Two days later, defendant went to San Diego where he stayed with Vuong for about four or five weeks. About a week later, defendant saw Tuyen at a coffee shop. Tuyen asked if he could stay with him, and Vuong said that it was okay. Defendant looked for work and housing. He also contacted Sang, who still owed him $400. Sang did not repay the loan, but told defendant that he and Huy could stay with him in Illinois. Defendant told Huy to meet him in Illinois.
According to defendant, Tuyen did not pay rent and other expenses while they were living in Sang’s apartment, because he was a gang member. However, defendant was required to do so, because he was not a gang member. At some point, Huy and Tuyen got into an argument over clothing. When defendant took Huy’s side, Tuyen became angry. Defendant then stopped speaking to Tuyen.
After Tuyen and Huy were arrested and transported to San Jose, defendant returned to his parents’ home. He was arrested in September 2001. After his arrest, Tuyen threatened defendant in a holding cell. Tuyen wanted defendant to say that he was the shooter. Tuyen was trying to protect someone else, but would not say his name. Tuyen told defendant that if he did not cooperate, Tuyen would have his girlfriend testify against him and send someone to shoot his family. Defendant then fought with Tuyen, because he did not want to admit to something that he did not do.
Defendant and Nhan, the victim’s brother, were “really close friends” in high school. After they finished school, they continued to be friends. Defendant never had any problems with Thai, and they were “very good friends.”
On cross-examination, defendant testified that he was “completely drunk” and had to be held down when he got his tattoos. When asked why he had told the police that he was a member of AW, defendant stated, “I was really young at that time. My words didn’t mean much. I believe I did say. But now that I’m older, I was not thinking when I was that young. But now I’m mature, I’m older, I do think, and I have said that I’m no longer a member of any gangs.” When defendant was stopped in July 2000, and he was wearing a baseball hat with the numbers “1” and “23” on it, he said that he “didn’t know what it meant.” He did not remember that he told a probation officer that he was going to quit the gang when he was released from custody. Defendant also testified that he was jumped out of the gang sometime between September 2000 and April 2001.
Defendant admitted that he was present when Truong fired the gun at V.N. members on March 25, 1999. However, he stated that he was “very drunk” that day, and did not know whether Truong had “shot anything.” Though defendant had gone to San Diego to find lodging for his brother, it was “easier” to allow Tuyen to stay with him and Vuong.
When defendant was arrested, he realized immediately that he was in San Diego on the day of the shooting. He told his mother that he was not guilty and that he had been in San Diego. However, she did “not speak English, [did] not know about the law, so she remained silent.” He did not contact Vuong, because he did not know where he was. Defendant told his former attorneys that he was staying in Vuong’s house, but they did not do anything. He did not ask his parents to get phone records, because he did not know anything about them.
Defendant testified that he was interviewed by Detective Williams on September 3, 2001. Defendant told him that he had left the area before the shooting to find his brother, and that his mother had sent him to Los Angeles and San Diego. He did not tell him that his brother was in Arizona at that time. He also told him that he left on April 15 on a Greyhound bus, because he “was very tired,” “hungry,” and he “pressure[d]” him. Defendant also conceded that he had initially denied being in Dai’s car, because he was “not clear about his question.”
Rebuttal
In September 2001, Sergeant Shawny Williams worked as a detective in the gang investigations unit. His partner, Jason Ta, was fluent in Vietnamese. On September 3, Sergeant Williams interviewed defendant. Defendant, who did not appear to have any difficulty understanding English, told the officers that he took a bus on April 15, 2001, at his mother’s request, to look for his brother in Los Angeles and San Diego. When confronted with Tuyen’s statement, defendant said that he did not shoot Thai on April 27, 2001. Defendant initially said that he had never been in Dai’s car. When Sergeant Williams asked him if his fingerprints would be in Dai’s car, defendant admitted that he had been in the car.
John Vegas, an investigator with the alternate defender’s office, was assigned to defendant’s case. He was responsible for conducting witness interviews and giving the reports to defense counsel. He had never interviewed defendant’s father about defendant’s whereabouts on April 27, 2001. Vegas spoke to defendant’s mother twice. In the first interview on October 21, 2004, she said that she had spoken with Vuong after defendant returned to San Jose, and that Vuong told her that defendant had been in San Diego when the shooting occurred. She did not say that she sent defendant to San Diego or that defendant had called her from San Diego. Defendant’s father, who was present during the interview, did not say anything. In the second interview on November 15, 2001, defendant’s mother stated that she asked defendant to look for her younger son about two weeks after April 10, 2001. Vegas first interviewed Vuong on October 25, 2004. Vuong told him that defendant came to his house in San Diego with two other friends.
II. Discussion
A. Admissibility of Other Crimes Evidence
Defendant contends that the trial court erred in admitting evidence of other crimes to prove the gang enhancement allegations and to show defendant’s intent and motive under Evidence Code section 1101, subdivision (b).
All further statutory references are to the Evidence Code unless otherwise stated.
1. Background
Prior to trial, the prosecutor filed a memorandum in which he sought the admission of several incidents to prove the gang enhancement allegation. He also sought the admission of two of the incidents under section 1101, subdivision (b). At the hearing, the prosecutor sought the admission of seven incidents to establish the predicate offenses, the primary activities and pattern of activities of the gang, and the ongoing rivalry between AW and V.N. These incidents included: (1) the May 26, 1997 home invasion robbery by Tran; (2) the February 20, 1998 homicide in which AW members killed an A.G. member, who was with Dang; (3) the March 25, 1999 shooting in which Truong fired shots in the air as VN members drove off; (4) the August 11, 1999 shooting by Tran after a fight broke out with AW members in a restaurant; (5) the April 21, 2000 homicide in which a V.G. member stabbed Pham to death; (6) the January 23, 2001 shooting by an AW member against a V.G. member; and (7) the December 17, 2003 murder of Dang.
Defense counsel argued that the trial court should limit the evidence of prior incidents to prove the predicate offenses and the primary activities elements of the gang enhancement allegation. Noting that the central issue was the identity of the shooter, defense counsel argued that some of the incidents were overly prejudicial or irrelevant. The prosecutor stated that four incidents would be used to prove predicate offenses, and the remaining incidents would be used to support Officer Odama’s opinion regarding the ongoing rivalry between the two gangs. Defense counsel continued his objections and pointed out that the 2003 homicide occurred while defendant was in custody.
Following argument, the trial court stated: “All right. Then based upon the offers of proof as articulated by [the prosecutor] here in court this morning, as well as the offers of proof contained in the People’s brief on this issue, the court does find that each one of these instances is probative to the elements of the enhancement and issues that the People are required to prove. [¶] Further, the fact that they do involve individuals other than the defendant, the prejudicial value is lessened, and any prejudicial value will be further lessened when the court gives the appropriate limiting instruction. [¶] Accordingly, the court will allow evidence regarding each one of the instances which the People wish to introduce. And the court does find that the probative value does outweigh the prejudicial effect. So, the motion in limine is granted.”
The prosecutor also sought the admission of the March 25, 1999 shooting and the January 23, 2001 shooting under section 1101, subdivision (b) to show intent, motive, malice, and premeditation. The prosecutor argued that this evidence was admissible, because “it [was] necessary to understand the mind set of what it means to be an Asian Warrior gang member, and why an Asian Warrior gang member would fire without provocation against VN gang members.” Regarding the January 2001 shooting, the prosecutor claimed that Mai committed it to avenge the killing of his friend. Defense counsel sought exclusion of the March 25 shooting under section 352. He also argued the prior offenses were not sufficiently similar to the charged crime. The trial court found that evidence of the two prior incidents was sufficiently similar to “support the inference that the Defendant had the requisite intent, motive, malice and premeditation,” and thus was admissible. The trial court also found that the probative value of this evidence outweighed its prejudicial effect.
2. Analysis
Defendant first contends that the trial court erred in admitting the 2003 incident. He claims that this evidence was irrelevant, because the incident occurred two years after the charged crime and while he was in custody.
Section 350 bars evidence that is not relevant. “Relevant evidence” is defined as “evidence, . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (§ 210.) While most cases deal with questions of admissibility of evidence of prior crimes or misconduct, evidence of crimes or misconduct committed after the charged incident may also be relevant. (See People v. Balcom (1994) 7 Cal.4th 414, 425-426 (Balcom).) The California Supreme Court in Balcom quoted from Jefferson: “ ‘If evidence of an uncharged offense is relevant, there is no distinction between an offense that is prior to and one that is subsequent to the date of the charged offense.’ (2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 33.6, p. 1200, italics in original.)” (Balcom at p. 425.)
The determination of the relevancy of evidence is committed to the sound discretion of the trial court. (People v. Crittenden (1994) 9 Cal.4th 83, 132.) However, the trial court does not have discretion to admit irrelevant evidence. (Ibid.) This court reviews a trial court’s determination on the admissibility of evidence under the abuse of discretion standard. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.)
Penal Code section 186.22, subdivision (b)(1) prescribes additional punishment for a defendant who commits a felony that is related to a criminal street gang. Pursuant to this statute, the prosecution must prove that the defendant committed the crime “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (Pen. Code, § 186.22, subd. (b)(1).) A “ ‘criminal street gang’ ” is defined as “any ongoing organization, association, or group of three or more persons” that has as “one of its primary activities the commission of one or more of the criminal acts enumerated,” in the statute. (Pen. Code, § 186.22, subd. (f).) It must also have “a common name or common identifying sign or symbol” and its members must “engage in or have engaged in a pattern of criminal gang activity.” (Pen. Code, § 186.22, subd. (f).) “The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.]” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).) Proof that a “group’s members consistently and repeatedly have committed criminal activity listed in the gang statute” is sufficient to establish the gang’s primary activity. (Id. at p. 324.) The occasional commission of crimes by the gang’s members, however, is insufficient. (Ibid.)
Here, several witnesses, including defendant, testified that they were no longer members of AW. Thus, the evidence of the 2003 incident had some tendency in reason to prove the disputed fact that AW was an “ongoing” criminal street gang. Moreover, the evidence was relevant to support Officer Odama’s testimony regarding the violent rivalry between the two gangs. Accordingly, the trial court did not abuse its discretion in admitting this evidence.
Even assuming that there was an abuse of discretion, it is not reasonably probable that the result would have been more favorable to defendant if the evidence had been excluded. (§ 353, subd. (b); People v. Watson (1956) 46 Cal.2d 818, 836.) Officer Odama’s testimony about the 2003 incident took up less than one transcript page in a lengthy trial. He testified that Dang and other V.G. gang members were at one table and AW gang members were at another. As Dang was about to give a toast, a fight broke out and Dang was shot to death. Given the other evidence of gang activity and that defendant was not present at the incident, there was no prejudice to defendant.
Defendant next argues that the trial court abused its discretion in admitting the evidence of the March 1999 and January 2001 incidents under section 1101, subdivision (b). He argues: (1) these incidents did not involve defendant; (2) they were inadmissible on the issue of motive; (3) they were not sufficiently similar to the charged crime; (4) they were cumulative of other evidence that was admitted; (5) they were more prejudicial than probative under section 352; and (6) they reduced the prosecution’s burden of proof, thereby depriving him of his federal constitutional rights to due process.
We do not consider whether the trial court abused its discretion in admitting the evidence of the January 2001 incident, because, as discussed below, the trial court did not refer to this evidence in its instructions to the jury on the evidence that was admitted under section 1101, subdivision (b).
Section 1101, subdivision (a) states: “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion.” Subdivision (b) of this section provides: “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 . . .) other than his or her disposition to commit such an act.”
“The admissibility of other-crimes evidence depends on three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence, e.g., Evidence Code section 352.” (People v. Sully (1991) 53 Cal.3d 1195, 1224.) A defendant who pleads not guilty puts in issue all elements of the charged offenses. (Balcom, supra, 7 Cal.4th at p. 422.) Since substantial prejudice is inherent in admitting evidence of uncharged offenses, such offenses are admissible “ ‘only if they have substantial probative value.’ ” (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) Moreover, the probative value of any uncharged offense must be weighed against the danger “of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses. (People v. Kipp (1998) 18 Cal.4th 349, 369-370 (Kipp).) A lesser degree of similarity is required to establish relevance on the issue of common design or plan. (Id. at p. 371.) “The least degree of similarity is required to establish relevance on the issue of intent. [Citation.] For this purpose, the uncharged crimes need only be ‘sufficiently similar [to the charged offenses] to support the inference that the defendant “ ‘probably harbor[ed] the same intent in each instance.’ [Citations.]” ’ ” (Ibid.)
An appellate court will not reverse the trial court’s ruling under section 352 unless it “exceeds the bounds of reason, all of the circumstances considered.” (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)
The case of People v. Funes (1994) 23 Cal.App.4th 1506 (Funes) presents a factual scenario similar to the present one. In Funes, the trial court admitted evidence of nine gang-related incidents that preceded the charged homicide, though it did not consider the admissibility of the evidence under section 1101, subdivision (b). (Id. at p. 1512.) The defendant was involved in some, but not all, of these incidents. (Id. at pp. 1510-1513.) Relying on prior case law, the Funes court held that the trial court properly admitted the evidence of gang activity to prove motive, intent, malice, and premeditation as to the murder charge. (Id. at p. 1518.) The Funes court also rejected the defendant’s claim that the trial court abused its discretion in admitting evidence of incidents in which he was not involved. The court reasoned: “[A]ll of those incidents were relevant to the issue of motive (retaliation as part of an ongoing rivalry between the two gangs) and, if anything, the incidents where defendant was arguably not involved and where Trece attacked 18th Street members were less prejudicial to defendant than those where defendant clearly took an active role in retaliating against Trece. [¶] In sum, the trial court properly admitted evidence of gang affiliation and activity to prove intent and motive with respect to the murder. Once the trial court made this decision, it did not abuse its discretion under Evidence code section 352 when it permitted the prosecution to present the entire picture of the rivalry between Trece and 18th Street.” (Id. at p. 1519.)
In the present case, Truong testified that he, defendant, Dai, Du, and Tuan Le went to a restaurant in March 1999. Truong had shown the group the gun that he was carrying. Some V.N. members entered the restaurant, then left immediately. Truong followed them out and fired his gun in the air as they drove away. The police stopped Truong and his fellow gang members as they left the area. Truong fired the gun, because his fellow gang members knew he had a gun and he did not want to lose face. Truong told an officer that he would have shot the V.N. gang members if he had had the chance, because Truong was a “gangster.” Dai testified that he was with Truong at the restaurant when AW members got into an argument with V.N. members, and Truong fired the gun. Defendant also testified that he was with Truong on March 25, 1999, but he was “very drunk” and did not remember whether Truong “shot anything.”
In our view, the reasoning of Funes is sound and applicable to the present case. Defendant was present with other AW members when Truong fired at V.N. members in March 1999. His presence with his fellow gang members served as a motive for Truong to shoot the gun at their rivals. This incident had some tendency to prove why defendant also shot at a rival gang member without provocation, that is, there was an ongoing violent rivalry between the two gangs. Defendant points out that the charged offense was not similar to the March 1999 incident, because here Tuyen tried to dissuade him from shooting Thai while Truong fired the gun to save face in front of his fellow gang members. First, the offer of proof did not include Tuyen’s statements prior to the shooting. Second, the evidence presented at trial regarding Tuyen’s statements was conflicting. Tuyen testified that he told defendant, “Just leave it alone, you know.” However, Kristy testified that Tuyen told her that “ ‘[t]he guy in there is an enemy and we’ve got to take care of something.’ ” Thus, there was substantial evidence to support a finding that defendant committed the charged offense for the same reason that Truong fired the gun, that is, to save face in front of a fellow gang member. Based on this record, the trial court did not abuse its discretion in concluding the evidence was admissible on the issues of intent, motive, malice, and premeditation.
Defendant also claims that the evidence of the March 1999 incident was cumulative. He argues that “there was ample evidence aside from the prior crimes of Appellant’s intent, motive, premeditation and malice. He was armed with a gun, and fired multiple shots at Thai Tran from which there could be no other inference than that he was bent on causing death. Plus there was evidence that Appellant considered Thai Tran an enemy who had to be destroyed. He said as much to Tuyen Tran just prior to the shooting and directed Tuyen to move their car into a getaway position. That he acted according to a preconceived, premeditated plan can be inferred from these facts.” However, this evidence was not merely cumulative, because it also explained that defendant was willing to murder Thai due to his affiliation with a rival gang.
Defendant argues that the trial court abused its discretion under section 352, because the other crimes evidence was inflammatory, confusing to the jury, and had little probative value. We disagree. The March 1999 shooting was less inflammatory than the present case, because it involved Truong firing his gun into the air. In contrast to this incident, here, the shooter fired directly at another person. Truong was convicted for his part in the shooting, thus lessening any chance that the jury would confuse the other crimes evidence with the charged crimes. As previously discussed, the challenged evidence was probative on the issue of intent, motive, malice, and premeditation. Moreover, as defendant has pointed out, the evidence of his guilt on these issues was overwhelming. Thus, the trial court did not err in admitting this evidence.
We also reject defendant’s claim that the admission of this evidence reduced the prosecution’s burden of proof in violation of his federal constitutional rights to due process. Generally, the admissibility of evidence does not rise to the level of a federal constitutional issue. (See Estelle v. McGuire (1991) 502 U.S. 62, 68-72.) “Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must ‘be of such quality as necessarily prevents a fair trial.’ [Citation.]” (Jammal v. Van De Kamp (9th Cir. 1991) 926 F.2d 918, 920.) Since we conclude that the trial court properly exercised its discretion in concluding that the probative value of the relevant evidence outweighed its prejudicial effect, we find no due process violation.
B. Jury Instructions
Defendant also contends that the trial court erred in its instructions to the jury regarding the other crimes evidence.
The trial court instructed the jury regarding the March 1999 incident: “ ‘The People presented evidence that Vu Truong committed another offense that was not charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that Vu Truong in fact committed the uncharged offense. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that Vu Truong committed the uncharged offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] the defendant acted with the intent to kill; [¶] the defendant had a motive to commit the offenses alleged in this case; [¶] the defendant acted willfully, and with deliberation and premeditation. [¶] In evaluating this evidence consider the similarities or lack of similarities between the uncharged offenses and acts and the charged offenses. [¶] Do not consider this evidence for any other purpose except for the limited purpose of determining the defendant’s credibility. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that Vu Truong committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of attempted murder and assault with a semiautomatic firearm. The People must still prove each element of every charge beyond a reasonable doubt.’ ” Defendant does not contend that this instruction was improper. He notes, however, that the trial court did not refer to the January 2001 incident.
The trial court later instructed on the findings necessary to support the gang enhancements. In doing so, the trial court referred to the prosecution’s burden of proof: “ ‘The People have the burden of proving each allegation beyond a reasonable doubt. It the People have not met this burden, you must find the allegation has not been proved.’ ” The trial court then instructed the jury pursuant to CALCRIM No. 1403: “ ‘You must consider evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related enhancements charged; [¶] or [¶] The defendant had a motive to commit the crimes charged. [¶] The defendant acted with malice or premeditation. [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit the crime.’ ”
Defendant points out that this instruction referred to evidence consisting of all seven incidents, thus allowing the jury to consider the May 1997, February 1998, August 1999, April 2000, January 2001, and December 2003 incidents in addition to the March 1999 incident for motive, intent, malice, and premeditation with respect to the gang-related enhancement. Defendant argues that trial counsel rendered ineffective assistance of counsel by failing to request an instruction that further limited the use of evidence of gang activity.
“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when 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. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 215 (Williams).)
We first note that CALCRIM No. 1403 must be given upon request. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052.) Though there is nothing in the record to indicate which party requested CALCRIM No. 1403, defendant did not object to the instruction. Here, the trial court admitted the evidence of the seven incidents to establish the predicate offenses, the primary activities and pattern of activities of the gang, and the ongoing rivalry between AW and V.N. Since the prosecution was required to prove defendant’s intent and purpose in connection with the gang enhancements, there was no error in instructing that these incidents could be considered for intent and motive. However, a reasonably competent attorney would have objected to the portion of the instruction referring to malice and premeditation, because they are neither elements of nor relevant to the gang enhancements.
Though defendant has established trial counsel’s performance was deficient, he has failed to establish prejudice. The jury was instructed that “ ‘[s]ome of these instructions may not apply.’ ” We presume the jury follows the trial court’s instructions. (People v. Welch (1999) 20 Cal.4th 701, 773, overruled in part on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89, 96.) Since malice and premeditation were not relevant to any issue related to the gang enhancements, the jury would have disregarded this portion of the instruction. Moreover, there was no danger that the jury would have considered evidence of all seven incidents in making its findings as to the charged offenses. As previously noted, the trial court correctly instructed the jury regarding the March 1999 incident as it related to the attempted murder and assault charges. The jury was also properly instructed that it was required to decide whether defendant committed the gang enhancements only after it had decided that he committed the charged offenses. Thus, it is not reasonably probable that the result would have been different absent trial counsel’s error. (Williams, supra, 16 Cal.4th at p. 215.)
Defendant also contends that trial counsel rendered ineffective assistance by failing to object on all of the grounds that he has raised on appeal, thereby waiving the claims on appeal. (§ 353.) However, since we have considered and rejected those claims on the merits, we need not consider trial counsel’s performance.
Defendant also argues that CALCRIM No. 1403 failed to state that the appropriate standard of proof for the evidence of the seven incidents was by a preponderance of the evidence. Even assuming error, we fail to see how defendant was prejudiced by this omission. When instructing on the gang enhancement allegation, which included findings on the predicate offenses, primary activities, and pattern of criminal gang activity, the trial court instructed the jury that the People had the burden of proving the allegations beyond a reasonable doubt. Since this is a higher burden of proof, any error was harmless.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.