Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. YA066625 Eric C. Taylor, Judge.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, and Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
JOHNSON, J.
SUMMARY
Defendant Gilbert Espinoza shot at three boys walking along a sidewalk one evening, believing that at least one of them was a member of a rival gang. One of the victims was paralyzed. Espinoza was charged with three counts of attempted murder, and three counts of assault with a firearm, and it was alleged that he committed the offenses for the benefit of a criminal street gang. A jury convicted Espinoza on all charged counts and enhancements, and the trial court sentenced him to a state prison term totaling 50 years to life. On appeal, Espinoza claims (1) the evidence is insufficient to support his conviction, (2) the trial court admitted unduly prejudicial evidence of gang-related drawings and lyrics recovered from a search of his jail cell, and (3) the abstract of judgment requires correction. We find that sufficient evidence supports the convictions, that the trial court did not err by admitting the drawings and lyrics, and that the abstract of judgment requires correction.
PROCEDURAL BACKGROUND
Espinoza was charged with three counts of attempted, willful and premeditated murder (Penal Code sections 664, 187, subd. (a) ; counts 1, 3, 5), and three counts of assault with a firearm (§ 245, subd. (a)(2); counts 2, 4, 6). As to all counts, it was alleged that the offenses were committed for the benefit of a criminal street gang. (§ 186.22, subds. (b)(1)(B), (b)(1)(C).) As to count 1, it was alleged that Espinoza personally used and discharged a handgun, inflicting great bodily injury on the victim (Rudy F.). (§ 12022.53, subds. (b), (c), (d).) As to count 2, it was alleged that Espinoza personally inflicted great bodily injury on Rudy F., causing him to become paralyzed. (§ 12022.7, subd. (b).) For counts 3 and 5, it was alleged that Espinoza personally used and discharged a firearm. (§ 12022.53, subds. (b), (c).) With respect to counts 2, 4 and 6, the information alleged that Espinoza personally used a handgun within the meaning of sections 1203.06, subdivision (a)(1), and 12022.5, subdivision (a), rendering the offenses serious and violent felonies. (§§ 1192.7, subd. (c)(8), 667.5, subd. (c)(8).) Finally, it was alleged that each offense was committed for the benefit of a criminal street gang, and subject to the gang enhancement. (§§ 186.22, subds. (b)(1)(B), (b)(1)(C), (b)(4).) Espinoza pleaded not guilty and denied the allegations.
Unless otherwise stated, all statutory references are to the Penal Code.
Following trial in June 2007, a jury was unable to reach a unanimous verdict. A mistrial was declared.
A new jury was empanelled and a second trial conducted in April 2008. Espinoza was found guilty on all counts, and the jury found all allegations true. Espinoza’s motion for new trial was denied. Espinoza was sentenced to 50 years to life in state prison on count 1: life in state prison with a minimum parole eligibility date of 15 years, based on a true finding on the gang enhancement (§ 186.2, subd. (b)(5)), plus a consecutive 25 years to life for the firearm enhancement (§ 12022.53, subd. (b) ), plus a consecutive 10 years for the gang enhancement (§ 186.22, subds. (b)(1)(B), (b)(1)(C)). The same sentence was imposed as to counts 3 and 5, to be served concurrently with the sentence for count 1. No sentence was imposed as to counts 2, 4 or 6, as lesser included offenses. Custody credits were awarded and various fines imposed.
The abstract of judgment reflects that the 25-year-to-life term was imposed under section 12022.53, subdivisions (b) and (c). But, the verdict form indicates the jury found true the section 12022.53, subd. (d) allegation, which carries a 25-year-to-life term. As noted in section 3, ante, the abstract of judgment must be corrected.
FACTUAL BACKGROUND
Prosecution case
1. The shooting
At about 8:45 p.m. on September 22, 2006, Meshenda Butler was driving south on Prairie Avenue in Lawndale, headed to her job at a police station. It was dark, and her radio was on. Butler stopped for a red light at the intersection of Prairie and Redondo Beach Boulevard. Her window was partially open. A Chevy Astro minivan, colored gray, white or silver (“something like that”), with tinted windows was slightly ahead of Butler in the lane to her left. Butler heard the van’s driver yell, but did not hear what he said. She did not see the driver’s face, but saw that he was bald and wore a white shirt. Butler saw the driver initiate a U-turn, but did not see him complete it. At that point, the traffic light changed color and Butler drove through the intersection.
All references to September 22 relate to that date in 2006.
At about 8:50 p.m. that same evening, three 14-year-old friends, Gerardo M., Andrew R., and Rudy F., were walking north along Prairie Avenue near the intersection of Redondo Beach Boulevard, in Lawndale. Rudy noticed a man driving a light-colored (“maybe white or perhaps gray”) Chevy Astro van traveling in the opposite direction. The man stared at him in an unfriendly way. Rudy looked back over his shoulder, and he and the driver stared at one another for a few seconds. The man yelled at the boys, “Where are you fools from?”
When Gerardo, Andrew and Rudy heard the man yell at them, they understood that he was asking “what gang [they were] from, ” or whether they “gang bang, ” Gerardo did not respond, Andrew said, “I don’t bang, ” and Rudy replied, “Redondo.” The van made a rapid U-turn, came within 20 feet of the boys, and stopped. The driver began shooting at the boys out of the passenger window.
At the time, Rudy was an “accomplice” of the Redondo 13 gang; i.e., he wanted to join the gang, but had not yet been initiated.
Gerardo and Andrew heard shots and dropped down. Rudy felt a shot go through his body. When he came to he was on the ground, and had no feeling in his legs or below his chest. Gerardo and Andrew saw blood coming from Rudy’s back, and dragged him to the corner.
At 8:53 p.m., the Torrance police department received a 911 call that shots had been fired in the vicinity of Prairie Avenue and Redondo Beach Boulevard, and two people were dragging a body. The first police units arrived at 8:57 p.m. When the police arrived, Andrew and Gerardo were trying to comfort Rudy. Andrew cradled his neck, while Gerardo held his legs together. Rudy was taken to a hospital. A gunshot wound below a shoulder blade had severed Rudy’s spinal cord; he never regained use of his legs.
Torrance Police Officer Paul Wilkins and Los Angeles Deputy Sherriff Anthony Regaldo each questioned Gerardo and Andrew separately at the scene. Both boys were very distracted, upset and sad about Rudy, and it was hard to draw their attention away from their friend. Still, Officer Wilkins said Gerardo responded quickly to his questions, and his answers were clear and concise. Andrew said he heard three or four shots. Gerardo told Officer Wilkins he had heard four shots. They came from a grey or brown Chevy Astro van with tinted windows. Deputy Regaldo said Gerardo told him only that he had seen a minivan, brownish or dirty in color, with tinted windows, but was unable to identify the model. Officer Wilkins testified that Andrew told him the van was tan or light brown, with tinted windows, but did not know its make or model. Deputy Regaldo testified that Andrew told him he had seen an “Astro minivan, brownish in color with tinted windows.” Gerardo told police that, after the shooting, the van drove north and turned left off Prairie into a residential area. Both boys had seen only one person in the van, the driver/shooter. Gerardo and Andrew each described the shooter as a male Hispanic, approximately 25 to 30 years old, with a light complexion. He was clean-shaven, and had a shaved head.
2. The investigation
Deputy Regaldo contacted Detective Jeffrey Cale, at the Lawndale Sheriff’s station, an expert in local gang investigations, and provided him details of the shooting. Detective Cale gave Deputy Regaldo a photo of a gray Chevy Astro van belonging to Espinoza, that Detective Cale had on file. The van depicted in Detective Cale’s photo has custom rims. Detective Cale also gave Deputy Regaldo a computer-generated photographic “suspect six-pack” designed to emulate the appearance of Espinoza, whom Detective Cale considered the principal person of interest. In the photograph, Espinoza has a mustache and goatee. The photographs of Espinoza and of his van were taken in 2005. Detective Cale focused on members of the “Lawndale 13” gang, because the shooting had taken place in that gang’s territory. Other than Espinoza, Detective Cale knew of no member of Lawndale 13 who owned a Chevy Astro van.
Deputy Regaldo told Detective Cale the van had been described as brown or white. He did not tell him any boy had yelled “Redondo” at the driver.
The parties stipulated that, in November 2002, a deputy sheriff saw Espinoza driving a silver Chevy Astro van in Carson. That van had the same license plate number as the one impounded here.
Earlier, as Butler was driving through the intersection, she heard what she thought might be three gunshots. She looked in her rearview mirror, but saw nothing amiss and heard no screams. She continued on. Moments later she saw police cars racing down the street, lights and sirens on, and knew someone must have been shot. At work, she told her supervisor what she had seen. Later, she was interviewed by Deputy Regaldo. She told him she heard someone in a white 1990’s minivan arguing with people on the sidewalk, and saw the van make a U-turn to head north on Prairie. Deputy Regaldo showed Butler a photograph of a van, which she identified as either the same type of van (according to her), or the same van (according to Deputy Regaldo) she saw in the lane next to her a few hours before.
Deputy Regaldo went to Andrew’s and Gerardo’s homes a few hours after the shooting. He wanted to meet with each of them as soon as possible, because he believed they might soon refuse to cooperate. Each witness was shown the suspect six-pack containing Espinoza’s picture. Deputy Regaldo told them not to concentrate on facial hair, shirt colors or the hair styles of the people depicted, because those things could change. Andrew was not able to identify a suspect. After looking at the photos for a few minutes, Gerardo, whom Deputy Regaldo described as “kind of in a daze still about what had happened, ” but “calm” and “very cooperative, ” identified Espinoza as “the guy that shot at [him.]”
Deputy Regaldo also showed the photograph of the vehicle to Andrew and Gerardo. He told them to concentrate on the vehicle, because rims could be changed. Andrew told Deputy Regaldo that Espinoza’s van “was the van that he saw on Prairie Avenue that shot at him, ” although the rims looked different. Gerardo said Espinoza’s van was either “the van he saw on Prairie Avenue” (according to Deputy Regaldo) or “same type of van” (according to Gerardo). Deputy Regaldo was certain that Butler, Andrew and Gerardo had each positively identified the van in the photograph he showed them as the suspect vehicle. He claimed that, if any witness had said the van depicted had been merely similar to the suspect vehicle he would have included that information in his report. Deputy Regaldo testified that it is not unusual for a witness to say a vehicle is one color, and later to identify a vehicle of another color.
A few days after the shooting Detective Cale questioned Rudy at the hospital. He showed Rudy the suspect six-pack, but Rudy was unable to make an identification. Rudy reviewed the photographs of the vehicle, and said Espinoza’s van “looked similar to the van that was used in the shooting, ” although the one in the photo had custom rims, and the van involved in the shooting had stock rims. Detective Cale also spoke with Andrew, who repeated what he had told Deputy Regaldo. Detective Cale tried to talk to Gerardo, but he refused repeatedly to cooperate.
At a live lineup, Gerardo, Andrew and Rudy were each unable to identify a suspect in the shooting.
3. Search and arrest
On November 13, 2006, Detective Cale executed a search warrant at Espinoza’s home in San Pedro. He seized a photo album containing gang-related photographs of Espinoza, and two laptop computers. No guns or ammunition were found. Espinoza’s gray Chevy Astro van, equipped with new standard rims, was parked at his house.
Espinoza was arrested. His van was impounded and photographed under lighting intended to replicate the lighting at the time the shooting occurred. Espinoza waived his right to have counsel present, and spoke with Detective Cale. Espinoza, who claims to be an “inactive” member of the Lawndale 13 gang, told Detective Cale he lives in San Pedro, but goes to Lawndale for “short pit stops, ” not to “hang out with the homies and be an active gang member.” Espinoza said he had nothing to do with the shooting, did not know what Detective Cale was referring to, and was not “the type to go out... and commit crimes... such as the one he’[d] [been] accused of.” Espinoza came from Lawndale, had Lawndale tattoos and would always “be from the hood.” But, he was not an active gang member; he was a rap artist. Espinoza did not remember where he was on September 22. He was often out of town because he attended a lot of rap shows.
4. Gang parlance and protocol
Detective Cale testified that gangs identify themselves using graffiti, tattoos and hand signs. Graffiti typically contains the gang’s name or abbreviation, and the monikers, or nicknames of its members. A gang will cross out the name of another gang as a sign of disrespect, rivalry or dislike. Gangs are very territorial and defend their turf with assaults, some of which involve the use of weapons. A gang member found in a rival gang’s territory will usually be assaulted.
Respect is pivotal among gangs. Among gangs, respect “is the same thing as fear.” Gang members earn respect by committing acts or crimes on behalf of their gang. During the commission of a crime, a gang member may announce his or her gang affiliation because they want the victims and others “to know who is responsible for it.” Accordingly, if the opportunity presents itself, gang members will commit crimes in full public view, because it affords them respect from rival gangs, and fear from law-abiding members of the community. Witnesses are typically afraid to cooperate or come forward in gang-related cases. Detective Cale has known gang members who are married, with children. If someone falsely claims membership in a gang, that person will be beaten.
In gang jargon, to be “hit up, ” involves a confrontational interaction in which a gang member asks someone else, who he already assumes is a gang member, “where they are from, ” or what gang they “claim” (belong to). There is no correct answer to the question, which is typically followed by violence or an assault. The person asking the question cannot turn back, or back down, at that point or he will lose face (prestige) with his own gang. “Banging, ” is participating in gang activity, usually violent crimes. “Puttin’ in work, ” means to do violent crimes on behalf of your gang against rival gang members, in order to raise your own prestige and your gang’s prestige. A “‘rider’ is a gang member who puts in a lot of work, [and] does a lot of crime.” Riders do assaults, and drive-by and other shootings for their gang. A “set” or “clique” is a subset of a particular gang.
“Surenos” are members of Hispanic street gangs in Southern California, basically anywhere south of Bakersfield. They are under the direction of the Mexican Mafia, a prison gang. The numeral “13” represents “M, ” the 13th letter of the alphabet, which stands for Mexican Mafia. A gang with “13” at the end of its name, such as “Lawndale 13, ” is under the direction or influence of the Mexican Mafia. Lawndale 13, also known as “Lawnderos, ” is one of a number of Hispanic gangs within a region known as “HA, ” or Harbor Area. L13, Lawndale, 90262 (Lawndale’s zip code), and HA, are commonly seen tattoos or graffiti to represent the Lawndale 13 gang. Lawndale 13’s biggest rival is Northside Redondo/Redondo 13. According to Detective Cale, a person in Lawndale 13 territory, shot after responding “Redondo, ” when asked where he “was from, ” was probably shot by a member of Lawndale 13 protecting that gang’s turf. Detective Cale also testified that the gang member who committed the assault would then have to tell other people about it, so that he and his gang would receive “credit” for it within the gang community.
5. Other witnesses/evidence
A representative from Verizon Wireless testified regarding records for calls made from Espinoza’s cell phone on the evening of September 22. Those records reflect that calls placed by Espinoza at 8:53 p.m. and 8:56 p.m., were picked up by a cell tower 1.3 miles from where the shooting took place. The Verizon representative testified that, in Los Angeles, calls are generally picked up by cell towers within 1.5 to 2 miles away from where they are placed. Espinoza’s phone records also reflect that he placed a call to Antonio Lujan, a member of the Lawndale 13 gang at 9:00 p.m. on September 22. Espinoza claimed that Lujan was not an active member of Lawndale at the time of the shooting.
Gerardo, Andrew and Rudy testified at trial. Each boy had also testified at the first trial. Gerardo claimed he “never, never said” any of the things the police claimed he told them at the scene of the shooting. He admitted having chosen Espinoza’s photograph from a suspect six-pack, but said that was a “wrong mistake, ” and he did not know why he had gotten Espinoza in trouble for no reason. Gerardo acknowledged that, at the prior trial he had testified that: (1) he never identified a suspect, (2) he was forced by the police to identify a suspect, (3) he did not remember making a choice, and (4) he simply chose a picture at random from the six-pack. Gerardo also testified he never saw a van the night Rudy was shot, and that he had never said he had. Gerardo admitted he did not want to testify at this trial any more than he had wanted to testify at the first one. He did not care whether the “guy who shot [his] friend... [got] caught and [paid] the price for it.” Gerardo admitted having told Detective Cale he did not want to cooperate with the investigation, because he did not remember anything.
Andrew testified that he did not recall having told Regaldo the van depicted in the photograph he signed either looked like or was “the van that shot at” him. He also admitted he was not happy about having to testify, and was worried about his mother’s safety.
When asked to look at Espinoza during trial, Rudy testified that he wasn’t sure whether Espinoza looked like the person who shot at him. In prior testimony, when asked if Espinoza could be the man who shot him, Rudy had said “more likely he is.” Rudy also testified that his memory was better during the earlier proceeding.
Espinoza’s jail cell was searched at some point between the two trials. Among the items seized were drawings and song lyrics, many of which were gang related.
Defense case
1. Masoud and Greenwood
A few minutes before 9:00 p.m. on September 22, Younes Masoud was riding his bicycle south on Prairie Avenue, near the intersection of Redondo Beach Boulevard. Three guys were walking about 20 feet away. A van drove by and slowed down. Masoud heard three shots. The van drove on, and turned west on 168th Street. Masoud called 911. Masoud told police officers at the scene that the van he saw was brown. In January 2007, Masoud met with Detective Cale. He told Detective Cale he had seen a brown, older model van. At that meeting, Masoud was shown the same photograph shown to Gerardo, Andrew and Rudy. Masoud said the van did not seem like the one he saw on September 22.
Thomas Greenwood has known Espinoza since 2002. Greenwood met Espinoza through Greenwood’s brother, Donald, whom he claimed was an inactive member of the Lawndale 13 gang. Greenwood knows Espinoza as a “family man, ” who has attended holiday barbecues and other events at the Greenwoods’ house. Espinoza and the Greenwood brothers “are all pretty close.”
On the evening of September 22, Greenwood went to a tattoo shop in Carson. He went there because Espinoza, who was a rap artist, was promoting his first CD. “Spanky Loco, ” another rap artist and local celebrity on the same record label as Espinoza, was also going to be there, and Greenwood was excited because he was going to meet him for the first time. Greenwood arrived at the tattoo shop between 8:30 p.m. and 9:00 p.m. Greenwood remembers the time he arrived, because he called his girlfriend. Greenwood recalls clearly that this event occurred on September 22, “because it was September 22nd, ” and the first and only time he met Spanky Loco.
Greenwood did not look at phone records to verify this fact, even though the event occurred almost two years before. He knew what time he called his girlfriend because she is “very clingy, ” and if he did not call her when he arrived she would have kept calling him all night.
Greenwood saw Espinoza park in front of the tattoo shop sometime between 9:00 p.m. and 9:15 p.m. Espinoza was driving a brown Cutlass. Greenwood recalled having seen Espinoza in that car at least once before. Espinoza did not seem to be nervous, sweating or panicky, just excited to be promoting his CD. Greenwood saw about 11 people at the tattoo shop that evening; he knew three (himself, his brother and Espinoza). Greenwood did not pay attention to, or recall, what kind of car anyone drove that evening, except for Espinoza and Spanky Loco, who may have driven an SUV.
Greenwood learned Espinoza had been arrested for this shooting in early 2007. He first came forward to testify on Espinoza’s behalf the day before the second trial.
2. Espinoza
Espinoza testified that September 22 was a special day for him. He is a rap artist, and had just put out his first CD (under his record label 310 West Entertainment), and felt good about it. Espinoza considers himself a “nonactive” member of the Lawndale 13 gang. He joined the gang when he was 13 or 14 years old, and remained active until he was 18 or 19 years old. He has gang-related tattoos, but got that last one when he was 17 or 18. He also has tattoos of the names of his wife and children. While he was an active gang member, Espinoza participated in activities such as spray painting walls, gang fights and selling drugs, but nothing more violent. Espinoza, who was 30 years old when the shooting occurred, still associates with other nonactive gang members with whom he grew up. They do not discuss gang matters, just old times. Espinoza bears no ill will against anyone from Redondo.
Although Espinoza did not initially remember where he was September 22, his phone records later jogged his memory.
At the prior trial, Espinoza testified he got his last Gang tattoo by the time he was 21 years old.
On the evening of September 22, Espinoza drove to pick up his friend “Boxer, ” who hoped to become a rap artist and whom Espinoza planned to introduce to Spanky Loco. Espinoza went to pick up Boxer at another friend’s house on 156th Street in Lawndale, but Boxer was not there when Espinoza arrived. Espinoza called him, but Boxer, who was young, had gotten in trouble and was not permitted to go out. Espinoza drove his Chevy Cutlass back toward the freeway to go meet Spanky Loco at the tattoo shop in Carson at 9:00 p.m. On the way, Espinoza called several people to tell them his album was coming out, and that he was going to the tattoo shop if they were interested. Espinoza’s cell phone records show that he called Boxer, a member of the Lawndale 13 gang, at 8:53 p.m. or 8:56 p.m. Espinoza acknowledged having called Lujan at 9:00 p.m. on September 22, and calling Donald Greenwood twice before 8:30 p.m.. Espinoza said Lujan was no longer “affiliated” with Lawndale 13, and Donald Greenwood was not an active gang member. Espinoza testified that Spanky Loco and Thomas and Donald Greenwood were already at the tattoo shop when he arrived. Espinoza’s phone records reflect that he called Spanky Loco at 9:05 p.m. Espinoza later testified that Spanky Loco had not arrived at the tattoo shop before him.
Espinoza did not drive his Astro van regularly, unless he was with his family. His toddlers’ car seats were in the van, and his wife needed it to transport them. The van had stock rims in September 2006. Espinoza acknowledged having been contacted by a deputy sheriff in 2002, while driving the van.
Espinoza had a shaved head, a mustache and a goatee in September 2006. Before his arrest in this case, Espinoza had never shaved his face completely. Espinoza said he “always” wears a hat. Photographs in an album later recovered from Espinoza’s home show him with an almost completely shaven face in a picture taken in 2002, and hatless in several pictures. Espinoza clarified that when he said he “always” wore a hat, he meant when he drove his low-rider Cutlass. The photo album contains no photographs of Espinoza driving the Cutlass. Most of the photographs of Espinoza in the album, which he claimed belonged to his late friend, a member of Lawndale 13, were taken when he was 15 to 21 years old, except some more recent ones taken for his album cover. In one of the newer photos, Espinoza is squatting in front of a wall that bears the monikers of all the members of Lawndale 13, including Espinoza. In the photo, Espinoza is wearing a shirt that says “HA.” In another photo, Espinoza appears to be carrying a gun. Espinoza claims the gun is not real, only a computer enhancement created for his album cover at the request of his record label, to make him look like a gangster. Espinoza had “hidden” the newer photographs of himself in the album because his wife does not like them.
Prior to this case, Espinoza was arrested once. About a year before he was arrested in this case, he was detained at a park in Lawndale. He was there to film a video as a gangster rap artist for 310 West Productions. There was a lot of Lawndale 13 gang graffiti at the park (some of which was still wet when the police arrived), and about 15 to 20 gang members had been there to be part of the video, but they left when the police arrived. A member of the Lawndale 13 gang had arranged for the gang members to be involved in the video, not Espinoza. No video camera was found at the park, but Espinoza claimed there had been one in Spanky Loco’s car. Espinoza, whose eldest son was 11 years old at the time this shooting took place, testified that he would never shoot a 14 year old, and did not shoot Rudy.
DISCUSSION
Espinoza contends on appeal that: (1) the evidence is insufficient to support his conviction on any count charged, (2) the trial court prejudicially erred by admitting evidence of the lyrics and drawings seized from his jail cell, and (3) the abstract of judgment requires correction. Only the final contention has merit.
1. Sufficiency of the evidence
a. Standard of review
In a criminal case, when sufficiency of the evidence is challenged on appeal, our role in reviewing the evidence is limited. It is not our task to reweigh the evidence and substitute our judgment for that of the jury. (People v. Escobar (1996) 45 Cal.App.4th 477, 481.) Rather, our task “is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Bolin (1998) 18 Cal.4th 297, 331.)
The record will support a conviction if “there is any substantial evidence, contradicted or uncontradicted, which will support it, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the jury. It is of no consequence that the jury believing other evidence, or drawing different inferences, might have reached a contrary conclusion.” (People v. Brown (1984) 150 Cal.App.3d 968, 970.) As the Supreme Court has held: “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331; People v. Rodriguez, supra, 20 Cal.4th at p. 11.) It is the jury, not the reviewing court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. We may not substitute our judgment for that of the jury. (People v. Stanley (1995) 10 Cal.4th 764, 792–793; People v. Ceja (1993) 4 Cal.4th 1134, 1139.) The standard is the same when the prosecution is based primarily on circumstantial evidence. (People v. Stanley, supra, 10 Cal.4th at p. 793; People v. Ceja, supra, 4 Cal.4th at p. 1138.) Thus, “[i]f the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.” (People v. Ceja, supra, 4 Cal.4th at p. 1139; People v. Kraft (2000) 23 Cal.4th 978, 1053–1054.)
The testimony of one witness is sufficient to prove any fact. (CALCRIM No. 301.) Absent inherent improbability or physical impossibility, uncorroborated testimony by a single witness, if believed by the trier of fact, is sufficient to support a criminal conviction. (People v. Scott (1978) 21 Cal.3d 284, 296.) A witness’s uncorroborated out-of-court identification, by itself, may be sufficient to support a conviction, even if the witness does not confirm the identification at trial. (People v. Boyer (2006) 38 Cal.4th 412, 480.) Indeed, “‘an out-of-court identification generally has greater probative value than an in-court identification... “made... after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness’ mind. [Citations.]”’” (Ibid.)
b. Sufficient evidence supports the conviction
Espinoza maintains there is insufficient evidence to support his conviction on any count, because witnesses to the shooting described the color of the van driven by the shooter differently at the same time and at different times, only one of three witnesses identified him from the suspect six-pack, and no witness identified him at a live lineup or at trial. We conclude otherwise.
At the scene of the shooting, Gerardo and Andrew independently provided police almost identical descriptions of the shooter, and both boys identified Espinoza’s van as the one in a photograph shown them. Three or four hours after the shooting, Gerardo identified a photograph of Espinoza, even though it was over a year old and showed Espinoza in a mustache and goatee. After the shooting, Rudy told Detective Cale he could identify the shooter if he saw him again. During the first trial, Rudy was asked if Espinoza “‘look[ed] like the man that shot [him].’” He testified: “‘similar, yeah. Could be, ’” and “‘more likely he is.’”
While he was in the hospital, Rudy also told the police the van in the photograph looked similar to the one used in the shooting, albeit with different rims.
At trial, Gerardo said he “never, never” provided the description of Espinoza the police said he had given them, “didn’t even know who the suspect was” and did not know why he had gotten “him in trouble for no reason.” Gerardo had previously given contradictory testimony that the police forced him to circle a photo in the six-pack, that he did not recall having circled any photo, and that he randomly chose a photo and circled it. Beginning soon after the shooting occurred, Gerardo made it very clear to Detective Cale that he did not want to participate in the police investigation of the shooting, “did not want to testify, [and] didn’t want his parents [to be involved and] to come to court.” Similarly, at trial, Andrew no longer remembered having told the police that the van depicted in the photograph he signed looked like or was “the van that shot at” him. He candidly admitted he was not happy about testifying at trial, and feared for his mother’s safety.
Gerardo’s and Andrew’s recantations of earlier statements and their extreme reluctance to be involved in the investigation or to testify at trial are neither unexpected nor unusual. According to Detective Cale, in gang cases, witnesses are frequently afraid and reluctant to participate in the prosecution. Indeed, Espinoza himself testified that he understood why some witnesses at trial had “seemed a little nervous” and reluctant to testify, because he knows “bad things [could] happen to witnesses in gang-related crimes[;]” in gang life, “rats” “could get beat up. They could get killed. It’s part of the life.” The likelihood that Gerardo, Andrew and Rudy-all a mere 16 years old at the time of trial-feared for their own and their families’ safety, only lends credibility to their earlier identifications and out-of-court statements. Evidence a witness is afraid to testify is relevant to the witness’s credibility. (Evid. Code, § 780; People v. Warren (1988) 45 Cal.3d 471, 481; People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.) Testimony that a witness fears retaliation similarly relates to his credibility. (People v. Malone (1988) 47 Cal.3d 1, 30.) This is true even without a showing that the witness’s fear of retaliation is directly linked to the defendant. (People v. Green (1980) 27 Cal.3d 1, 19–20, overruled on other grounds by People v. Hall (1986) 41 Cal.3d 826; People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587–1588.) Moreover, as noted above, an uncorroborated out-of-court identification by a single witness can support a conviction, even if the witness does not confirm that identification at trial. (People v. Boyer, supra, 38 Cal.4th at p. 480.)
The shooting took place in Lawndale 13 territory at about 8:50 p.m. Rudy was shot when he responded “Redondo” when asked what gang he claimed. “Redondo” is Lawndale 13’s biggest rival. Espinoza lives in San Pedro, and records music at a studio in Long Beach. On September 22 at 9:00 p.m., he was supposed to meet another rap artist and friends in Carson to promote his first CD. Yet, Espinoza’s cell phone records place him less than 1.5 miles away from the shooting, within three minutes of the time it occurred, and about five minutes before he was supposed to be several cities to the south. Those phone records also show that between 8:53 p.m. and 9:00 p.m., Espinoza called at least two members of Lawndale 13, one of whom he conceded was an active gang member. This evidence is consistent with Detective Cale’s testimony that a gang member who had been “puttin’ in work” (committing violent crimes) would immediately tell others about it, so that he and his gang would receive “credit” for the crime in the gang community.
Finally, Gerardo, Andrew, Rudy and Butler all identified Espinoza’s van in the photograph, even though the rims or the van depicted therein were clearly different. Espinoza attempts to discredit this evidence because these witnesses, and Masoud, described the color of the van at various times as ranging from white, silver or gray, to light brown/tan or a nonspecific shade of brown. These discrepancies are first, minor and second, easily explained by differences in the lighting and angles from which the witnesses saw the van, and peoples’ varied perceptions and memories of color. Moreover, as Deputy Regaldo testified, it is not unusual for a witness to say a vehicle is one color, and later identify a vehicle of another color.
Notwithstanding the fact that the prosecution was built primarily on circumstantial evidence, or the existence of evidentiary conflicts in admittedly uncooperative and fearful witnesses’ testimony, we find sufficient evidence supports Espinoza’s conviction. Where, as here, the circumstances reasonably justify the jury’s findings, we may not reverse the judgment merely because the circumstances might also support a different finding. (People v. Ceja, supra, 4 Cal.4th at p. 1139; People v. Kraft, supra, 23 Cal.4th at pp. 1053–1054.) When reviewing the sufficiency of the evidence on a cold paper record, we do not resolve credibility issues or evidentiary conflicts. “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
2. Admission of drawings and rap lyrics
a. Background
The prosecution’s theory in this case was that Espinoza committed the shooting for the benefit of Lawndale 13, in which he is an active member, after he came across a member of a rival gang in his gang’s territory. At the first trial, Espinoza testified that he was no longer an active member of Lawndale 13, and has not been involved in gang-related activities for many years.
Espinoza’s jail cell was searched between the first and second trials, and rap lyrics and drawings, many of which related to the gangster lifestyle, were seized. Before and during trial (outside the jury’s presence), the prosecutor sought to introduce the materials recovered from Espinoza’s cell. Espinoza objected, based on Evidence Code section 352, arguing that the lyrics were not relevant (except for impeachment), because none contained an admission by Espinoza that he “shot” anyone, or committed the specific crimes alleged. The prosecutor countered that the gang-related drawings, graffiti and lyrics, in which Espinoza had written about being in a gang in the present tense, were directly relevant both to his claim that he had not been involved in gang activities for years, and to the gang allegation in its case in chief, to prove Espinoza was a member of a gang and that the shooting was done for the gang’s benefit.
The prosecution sought to admit: (1) a drawing of “many, many faces, skulls and devil looking people” to show that, even after the shooting, Espinoza was “claiming Lawndale 13... in his own writings and drawings;” (2) a photograph that says “Gilbert Espinoza, aka Solo Loco[, ] with a phone number;” (3) a drawing that says “just Solo Loco, Harbor Area;” (4) a dictionary on which Espinoza had written “Solo, just underneath, Loco, with the letters 154th Street, Chicos, Aztec numerology, Harbor Area, within Loco;” (5) the backs of some legal pads with “Solo Loco” and more Aztec numerology; and (7) several pictures on which was written “Harbor Area, Solo Loco, OG” The trial court granted the motion to admit this evidence.
As for the rap lyrics, the trial court ruled they were “fair game” if Espinoza took the stand and testified “that his writings that talk about his being in this lifestyle or being or claiming [to be] a part of this gang, ”... were nothing more than lyrics or any other sort of creative writing. It was “a question for the jury to decide whether or not what [Espinoza’s] doing is make believe....”
Espinoza claimed he is a “rap artist” who writes about the “gangster lifestyle.” He was a “nonactive gang member from Lawndale 13” at the time of the shooting. Espinoza also testified that, even though the lyrics are written in present tense, he was not an active gang member when he wrote them, nor at the time of trial. Espinoza claimed he wrote the lyrics at the request of other inmates who asked for gang-related material, and was “just telling them what they wanted to hear.” The prosecutor exhibited numerous examples of Espinoza’s rap lyrics, which he or Espinoza read to the jury. The lyrics included statements such as “I’m a true gangster who’s so for real. I give you nothing but reality, ” and “‘[f]rom rags to riches I still keep the gangster. I never go Hollywood, blank a studio prangster. It’s in my blood to represent to the fullest the street strong love so you know I got to do this.’” Espinoza acknowledged that his lyrics were meant to convey that he was a “real gangster, ” even though, as a nonactive gang member he really was a “studio prangster.” He also testified that his lyrics said “things like... this is all true, ” when “it [wasn’t], ” and acknowledged that “if you just walk around saying you are in a gang and... you are Lawndale 13 and it’s not true, ” you “could” have “some trouble.”
Espinoza testified he would “imagine” that it would be dangerous for someone to claim to be a member of Lawndale 13 if they are not, but denied that he is a “studio gangster.” He then went on to admit that, by writing these lyrics, he is walking around and saying he’s a fake.
In another lyric, Espinoza wrote: “‘raised in the harbor as a true Mexicano, respected by all my peers like Tony Soprano. Lawndale is a city, Los Chicos is the clique. 154 is the street and you will get hit. Lil Solo is my name and I’m down for my game. Since I stepped on this earth I was born in vain, doing my thing like very day, you know I’m keeping it real representing H-A.’” And, in others: “‘I protect my territory like it’s solid ground, do yourself a favor and don’t step out of bounds. Watch what you say or you could get hurt. It’s a price you are going to pay cuz I love to put in work;’” “‘A south side rider and I stand alone. You... can’t see me when I’m stuck in the zone. Ready and willing to attack with full force. I’ll smash on call without a bit of remorse.’” At the first trial, Espinoza testified that a “rider” is someone who “does drive-bys for the gang.” Another lyric referred to Espinoza being from Lawndale, having been “‘put on the battlefield at the age of 13, ’” and still being “‘on the scene, ’” by which he meant “claiming Lawndale.”
On re-direct, Espinoza testified he wrote lyrics about gangs “because that’s the way [he knew] how to write poetry.” Other materials taken from his cell included songs he had written about women, club music and lyrics proclaiming his innocence in this case. Espinoza testified the lyrics proclaiming his innocence were true, but that lyrics in which he claimed to be a “gang banger” were a lie.
b. No abuse of discretion
We review a trial court’s decision to admit or exclude evidence under Evidence Code section 352 for abuse of discretion. (People v. Gray (2005) 37 Cal.4th 168, 204.) Espinoza contends the trial court abused its discretion by admitting the lyrics and drawings taken from his cell, because the evidence was cumulative, and any probative value it had was outweighed by its prejudicial effect. We disagree.
The evidence was not cumulative. Espinoza denied the gang allegation, and claimed he had long been a nonactive member of Lawndale 13. The gang-related drawings and lyrics were limited in number and, together with the other gang-related indicia, probative of whether Espinoza remained an active member of Lawndale 13, and his criminal intent and motive to commit the shooting on behalf of the gang.
The theory of the case was that Espinoza was an active member of Lawndale 13 who shot at Rudy and his friends because they were in that gang’s territory, and Rudy claimed membership in Lawndale 13’s primary rival. As such, the prosecution had the burden to establish the allegation that the crimes were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) To meet this burden, it was necessary to show that Espinoza had “the specific intent to promote, further, or assist in any criminal conduct by gang members.” (Ibid.) The drawings and lyrics were probative of Espinoza’s ongoing loyalty to and active membership in Lawndale 13, and his criminal intent and motive to commit the shooting on behalf of his gang.
Similar assertions of Evidence Code section 352 error to those raised by Espinoza, were rejected in People v. Zepeda (2008) 167 Cal.App.4th 25. There, the court found that the trial court had not abused its discretion by admitting evidence of a defendant’s gangster rap songs because the “lyrics, coupled with the other evidence of defendant’s gang membership and his animosity towards [a rival gang], go beyond mere fiction to disclosing defendant’s state of mind, his motives and intentions, and his fealty to furthering his criminal gang’s activities.” (Id. at pp. 34–35; see also People v. Olguin, supra, 31 Cal.App.4th at pp. 1372–1373 [no abuse of discretion to admit evidence of defendant’s rap lyrics to demonstrate his membership in and loyalty to gang, familiarity with gang culture and, by inference, his motive and intent on the day of the killing].) Here, as in Zepeda and Olguin, evidence of the gang-related lyrics and drawings lyrics was doubtless damaging to Espinoza’s defense-but only because it was relevant and highly probative. “Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative.” (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) Such evidence should not be admitted if its sole relevance is to show a defendant’s bad character or criminal disposition, in other words, to create an inference that the defendant committed the charged offense. (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1450.) However, if, as here, there is a gang allegation, gang evidence is typically deemed admissible. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.)
The evidence of gang-related drawings and lyrics directly related to Espinoza’s assertion that he was not an active member of Lawndale 13, and permitted the jury to gauge his credibility on that pivotal issue. (See People v. Olguin, supra, 31 Cal.App.4th at p. 1372.) There was no abuse of judicial discretion.
3. Correction of abstract
For the reasons set forth in Espinoza’s opening brief, with which we and respondent agree, and which need not be repeated here, the abstract of judgment must be corrected as follows: First, the 10-year gun enhancements imposed pursuant to section 186.22, subdivision (b)(1)(C) must be stricken. (People v. Lopez (2005) 34 Cal.4th 1002, 1007.) Second, on count 1, correct the abstract to indicate that the firearm enhancement was imposed pursuant to section 12022.53, subdivision (d). (People v. Villegas (2001) 92 Cal.App.4th 1217, 1228–1229.) Third, on count 1, the firearm enhancements imposed pursuant to section 12022.53, subdivisions (b) and (c), should be stayed. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1130.) Fourth, on counts 3 and 5, the 20-year firearm enhancement should be imposed pursuant to section 12022.53, subdivision (c), and the remaining firearm enhancement, imposed under section 12022.53, subdivision (b), should be stayed. (Ibid.)
DISPOSITION
The judgment is affirmed. The abstract of judgment shall be corrected in conformance with this opinion. The trial court is directed to prepare a corrected abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
We concur: ROTHSCHILD, Acting P. J.CHANEY, J.