Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA082170, Charles Horan, Judge.
Mark D. Lenenberg, under appointment by the Court of Appeal, Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
The jury found defendant and appellant Larry Michael Gonzales guilty of the first degree murder of Arturo Rodriguez (§ 187, subd. (a)), separately finding that a principal personally and intentionally discharged a firearm to cause the victim’s injury or death (§ 12022.53, subds. (d), (e)(1)) and the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The jury also found defendant guilty of being a felon in possession of a firearm (§ 12021, subd. (a)(1)). Defendant received consecutive terms of 25 years to life for the murder and firearm enhancement, along with a concurrent two-year term for the firearm possession offense.
All statutory references are to the Penal Code, unless noted otherwise.
The jury rejected the personal use of firearm allegations.
In his timely appeal, defendant contends (1) the prosecution gang expert gave improper opinion testimony as to the subjective intent of the perpetrators, and (2) the trial court improperly admitted hearsay statements in violation of defendant’s federal constitutional rights to due process and to confront adverse witnesses. We affirm.
STATEMENT OF FACTS
At 9:25 p.m. on February 10, 2008, uniformed police Officer Fred Kittman was writing a parking citation on the 1900 block of West Orange Grove Avenue in Pomona, when he heard 20 to 30 gunshots fired from a nearby location. The officer immediately got into his marked patrol car and drove eastbound on Orange Grove. He followed a westbound vehicle that he initially thought might have been involved in the shooting, but quickly determined it was not and drove southbound on Glen Street. Within seconds, Officer Kittman saw two males running southbound, crossing the street approximately 25 feet in front of his patrol car. He identified himself and yelled for them to stop. The suspects, one of whom held a gun, continued to run away. Officer Kittman parked his patrol car and pursued them on foot.
When exiting the patrol car, the officer saw the person holding the gun-defendant-turn around to look back. Defendant’s face was illuminated by the patrol car’s spotlight. As the officer chased the two suspects, who were running side by side on Glen, he saw defendant drop a cellular phone. Officer Kittman could not determine whether an object in the other subject’s hand was a gun. The suspects ran westbound on Orange Grove and turned into the front yard of a residence. They bumped into each other, tumbled through a fence, and continued to run through the yard. Then, the other suspect ran toward the alley and disappeared. Officer Kittman waited for backup assistance to arrive.
Officer Kittman got a good view of the gunman during the chase. The suspects were illuminated by the patrol car’s lights, the street lights, and the light below the barrel of the officer’s firearm. Defendant wore a black baseball cap, a black sweatshirt, dark jeans, and shoes. Officer Kittman identified him in court, and, a few days after the incident, the officer identified defendant’s photograph from a “six-pack” photographic lineup.
Canine Officer Richard Aguiar arrived with his dog, Robbie. Officer Kittman directed them to search the backyard for suspects. Officer Aguiar called out that any suspect should surrender immediately or his dog would find and bite him. Hearing nothing, Officer Aguiar released Robbie, but the dog found no one in the backyard area. A neighbor called out that the suspect was in the front. Officer Aguiar took Robbie in that direction and saw defendant leaving the yard. The officer told him to stop and warned him about the dog, but defendant ignored him. Robbie was released. The dog caught defendant and bit him in the lower left buttock. As Robbie held on, defendant picked him up and ran him into a light pole, causing the dog to let go. As the suspect climbed a chain-link fence, Robbie caught him and bit his lower left leg. Defendant nevertheless managed to climb over the fence and escape. Officer Aguiar saw defendant’s face during the chase and identified him in court and from a photographic lineup.
Within a few minutes of the chase, Officer Kittman retraced his path and found two firearms on the ground near the residence fence. He found a hat on the north side of the backyard and a sweatshirt on the south side.
Meanwhile, Officer Jeffrey Hayward responded to the shooting scene on 967 Ericksen Drive. Arturo Rodriguez was lying on the ground in front of a residence on a cul-de-sac. The officer found shell casings from bullets lying on the street and driveway around the victim. Officer Hayward escorted the emergency vehicle to the hospital, where Rodriguez died. He had received 19 bullet wounds, two of which were fatal. Four gunshots entered the front of the victim’s body.
Detective Richard Shope also saw the victim at the scene. The victim had “PE” and “WSP” tattooed on his stomach, which showed his affiliation with the Westside Pomona gang.
Crime scene investigator Adam MacDonald found 30 shell casings, 23 nine-millimeter casings, and seven.45 caliber casings at the shooting scene. At 1701 West Orange Grove, he found a cell phone on the sidewalk and some items of clothing nearby-a jacket, a black glove, and a hat.
Detective Andrew Bebon examined the cell phone. There were a number of recent text messages in the memory. Outgoing messages said, “It’s me Larry,” “It’s me Hex,” and “It’s me Heckle. Where you at?” Detective Bebon was acquainted with defendant, having spoken with him on many occasions since 1997 or 1998. Defendant’s first name was Larry; his nickname was Heckle. He did not know anyone else in Pomona who went by that nickname. The detective knew defendant’s brother Jeckle.
Ten days after the incident, having discovered where defendant lived, Detective Bebon took part in serving an arrest warrant on defendant. As a number of police officers entered the residence, the detective saw defendant running through a nearby construction yard. The officers lost sight of defendant, but caught and arrested him some eight hours later. Defendant’s legs showed injuries consistent with dog bites. Defendant had “POMONA” tattooed on his chest.
The jury heard audiotapes of various telephone conversations between defendant and others, made while defendant was in jail. In one, defendant referred to “Joe, Cisco, Bugsy, and Little Brains.” All four of those persons were in the residence when the police initially attempted to arrest defendant. In another jailhouse telephone conversation, defendant referred to a witness in custody who was “snitching” on him. In a subsequent conversation, defendant mentioned his desire to have his brother “somehow get at” a witness who was in custody. Detective Bebon testified that Eduardo Rojas, the victim’s brother, was in county jail at that time. At the time of trial, however, he had been deported to Mexico. In another conversation, defendant talked about his intent to have the “Heckle and Jeckle bird” and a shark tattooed on his neck, but he would wait until he was convicted and sentenced to have it done. The significance of defendant’s reference to a shark tattoo is that defendant is a member of a Pomona gang called the 12th Street Sharkies or Sharkey Park.
Two 9-millimeter semiautomatic handguns were found near the West Orange Grove residence, a Beretta 92FS, and a Norinco Luger. Of the 22 nine-millimeter casings found at the shooting scene, 16 were fired from the Beretta. The other six were fired from the Norinco pistol. Seven expended bullets were fired from the Beretta and two from the Norinco. There were also a number of.45 caliber casings at the scene, which had been fired from the same weapon, but not from one of the guns that had been recovered.
Melanie Sohocki, Ph.D., an expert in DNA analysis, received samples from the glove, cap, cigarette filter, the Beretta, and the Norinco. Defendant was a possible donor of the glove samples because the sample could have come from three persons, one of whom was defendant. As to the hat, the most conservative estimate was that there was a one in 9,588 chance that someone other than defendant was the donor. The samples from the firearms were inconclusive. The donor on the cigarette filter was the victim.
Detective Greg Freeman testified as an expert in criminal street gangs. He was currently assigned to the Pomona Police Department’s gang unit, where he had been for 10 years. Prior to that, while working on patrol, he met gang members on a regular basis. Detective Freeman had received specialized gang training from the sheriff’s department and regularly attended seminars by the California Gang Investigators’ Association. Defendant was a member of the Pomona 12th Street Sharkies gang. There were approximately 300 members and associates of the 12th Street gang. It was the biggest, most respected gang in the city. Its primary activities were committing weapons offenses, narcotics sales, vandalism, carjacking, witness intimidation, and murder. Its symbols included, “P12” and the “Sharkies.” A shark tattoo would signify an affiliation with the gang. It was stipulated that 12th Street and Westside Pomona were criminal street gangs.
Detective Freeman had 15 to 20 personal contacts with defendant in the past seven to eight years. He knew defendant by his street name, “Heckle,” which defendant had disclosed to the detective. Defendant had admitted to being a member of the 12th Street gang. Other members of the gang included Joe Aguilar, Francisco “Cisco” Casillas, Rudy “Bugsy” Partida, and Tony “Little Brains” Sanchez. The victim’s tattoo indicated his affiliation with the Westside Pomona gang, which claimed a territory one to two miles away from that of the 12th Street gang. The two gangs did not get along, but they did not share a history of constant inter-gang violence. The location of the Rodriguez killing was in the middle of Westside Pomona territory.
The detective opined that a scenario with the hallmarks of the prosecution case-the killing of a Westside Pomona member in that gang’s territory by a group of persons, including a known member of the 12th Street gang who fired 29 gunshots from three guns-would have benefitted the 12th Street gang. Criminal street gangs need respect to operate in their territories. One of the ways they gain respect is by committing acts of disrespect toward rival gangs. Killing a rival in the rival’s territory by a large display of violence would serve 12th Street gang by demonstrating how powerful it was. Members of the community would fear the gang. Such a display would also benefit the gang member who committed the murder by enhancing his standing within the gang. Detective Freeman further opined that it would be unlikely for a gang member to commit such a shooting with non-gang members because only fellow gang members could be trusted not to inform authorities of the crime.
In order to “put[] in work” for the gang, members will typically go on “mission[s]” in which they drive into rival territory, looking for rivals “to disrespect,” meaning to beat or shoot them. In Detective Freeman’s opinion, a shooting of a member of Westside Pomona territory on a dead end street using 29 shots from three guns would not be indicative of a random shooting. In his experience, it appeared as if the victim had been “targeted” by 12th Street members who were on a mission.
Defense
Defendant testified that he was walking eastbound on Orange Grove near Glen at the time of the shooting. He had just been dropped off at that location, where he planned to “meet some girl,” when he heard gunshots. Defendant turned, walked northbound on Glen, and used his cell phone in an attempt to get a ride from the person who had dropped him off. As defendant tried unsuccessfully to reach his friend, four or five persons ran by him. Fearing they had been involved in serious gang violence, defendant began to run between cars. He jumped a fence and ran through a yard, dropping his phone along the way. His sweater got snagged on the fence, so he took it off. Defendant heard a police officer yelling “stop.” The officer was not addressing him, but the persons who had run past him.
Defendant hid in the backyard because he was on parole for a 2003 conviction for possessing methamphetamine and was currently in possession of that same illegal substance. He took off his hat and put his gloves in his pocket, but inadvertently dropped one. An occupant of the house would not let him inside, so he walked toward Orange Grove. At that time, the canine officer saw him. He protested that he was not involved in the shooting, but the officer told him to “get down.” Not wanting to get arrested for a crime he did not commit, defendant ran away and escaped, despite getting bit by the dog. He was not carrying a gun. Defendant fled from the police 10 days later because he was in the company of gang members, which was a parole violation.
By the time of his arrest, defendant heard “talk on the street” that the shooting resulted in a murder. Having realized he dropped his cell phone during the chase, defendant worried he would be blamed for the murder. On cross-examination, defendant admitted sending the text messages described in the prosecution case. He denied being a member of the 12th Street gang.
DISCUSSION
Expert Testimony
Defendant contends Detective Freeman, the prosecution gang expert, exceeded the proper bounds of expert testimony by opining as to the perpetrators’ subjective states of mind in testifying that the gang members who shot Rodriguez did so with the intent of benefitting the 12th Street gang. The defense, however, did not interpose a timely and specific objection to the detective’s testimony as being an improper expert opinion, or on the constitutional ground defendant derivatively seeks to raise on appeal-that the supposed misapplication of California evidence law amounted to a violation of a federal due process “liberty interest.” Issues pertaining to the admissibility of expert testimony on the subject of gangs are forfeited if not litigated in the trial court. (People v. Ward (2005) 36 Cal.4th 186, 211.) Defendant has therefore failed to preserve these claims for appellate review.
Because defendant argues any such forfeiture was the product of trial counsel’s constitutionally ineffective assistance, we address the contention under that rubric. “To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694; see Williams v. Taylor (2000) 529 U.S. 362, 391-394; People v. Kraft (2000) 23 Cal.4th 978, 1068.) “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Strickland v.. Washington, supra, 466 U.S. at p. 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.)” (People v. Cunningham, supra, at p. 1003.) Mere speculation does not meet the Sixth Amendment standard for demonstrating prejudice. (In re Clark (1993) 5 Cal.4th 750, 766.)
“A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. ‘If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ [Citations.]” (People v. Cunningham, supra, 25 Cal.4th at p. 1003, citing People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Defendant establishes neither the performance nor the prejudice aspect of the Sixth Amendment inquiry because he fails to demonstrate his central assertion-that the challenged testimony was clearly inadmissible under California law. The applicable standards concerning the legitimate scope of a gang expert’s testimony are well settled. Such testimony may properly be admitted to prove motive and intent. (See People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) Expert testimony has repeatedly been offered to prove the “motivation for a particular crime, generally retaliation or intimidation” and “whether and how a crime was committed to benefit or promote a gang.” (People v. Killebrew (2002) 103 Cal.App.4th 644, 657 (Killebrew).) An expert may testify about whether a defendant acted for the benefit of a gang, even though the question is an ultimate factual issue in the case, when these matters are beyond the jury’s common experience. (People v. Valdez (1997) 58 Cal.App.4th 494, 507-509.)
Defendant asserts Detective Freeman repeatedly testified that a particular individual had specific knowledge or possessed a specific intent, as ruled improper in Killebrew, supra, 103 Cal.App.4th at pages 657-658. However, the Killebrew court drew the crucial distinction between permissible expert testimony as to “the expectations of gang members in general when confronted with a specific action” and impermissible testimony as to what a defendant was actually thinking during commission of a crime-the expert “testified to the subjective knowledgeand intent of each occupant in each vehicle.” (Id. at p. 658.) As we explain, the record does not support defendant’s position because in each of the challenged instances, Detective Freeman was testifying as to the expectations of a typical gang member in various situations.
For example, the expert testified that when a group of gang members cross the city into a rival gang’s neighborhood to shoot 29 rounds at a rival, their motivation would be to make the statement to the victims and the community, “Hey, we’re the most powerful gang in this city, in this area.” Contrary to defendant’s assertion, this is not reasonably understood as testimony expressing the perpetrators’ actual statements and thoughts, but rather the reasons why a gang member would undertake such a course of conduct. This is the type of expert testimony recognized by Killebrew as permissible. “Testimony that... gangs would travel in large groups if expecting trouble, that in a confrontation more than one gang member may share a gun in some identified circumstances, and that oftentimes gang members traveling together may know if one of their group is armed, would have been admissible.” (Killebrew, supra, 103 Cal.App.4th at p. 658.)
The same is true of Detective Freeman’s testimony that a 12th Street gang member would be unlikely to commit a shooting in rival gang territory, except with fellow gang members. As the expert explained, gang membership is based on trust. Based on his experience, the detective explained that a person must prove himself trustworthy to earn the right to be called a 12th Street gang member. It would therefore be unlikely a gang member would commit a serious crime with a person who could not be trusted not to “snitch to the police.” This is a permissible inference as to typical gang conduct based on gang culture and habits. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196 (Frank S.) [“It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. [Citation.]”].)
Nor was Detective Freeman opining as to the perpetrators’ subjective mentality when he testified that the circumstances of the shooting-driving into a cul-de-sac in Westside Pomona territory and firing 29 rounds from three different weapons at a rival-were indicative of a gang “mission” in which the victim was “targeted.” Rather, the reasonable interpretation is the expert was explaining how the perpetrators’ conduct was typical of gang-motivated-rather than random-violence because of the large show of force exhibited in an out-of-the-way location in a rival’s territory. Such an act would be consistent with the gang-related motive of intimidating rivals and citizens by showing the magnitude of the gang’s strength and its willingness to use violence.
Once again, this testimony falls within the recognized scope of permissible expert testimony as to gang culture, habits, and motivation. “‘[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.’ (People v. Lopez (1969) 1 Cal.App.3d 78, 85; see also People v. Martin (1994) 23 Cal.App.4th 76, 81 [gang activity or membership admissible where ‘important to the motive... even if prejudicial’].) [¶] Expert testimony repeatedly has been offered to show the ‘motivation for a particular crime, generally retaliation or intimidation’ and ‘whether and how a crime was committed to benefit or promote a gang.’ (People v. Killebrew, supra, 103 Cal.App.4th at p. 657.)” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550; see also People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1513.)
Having concluded the gang evidence was admissible, defendant’s derivative Sixth Amendment claim must fail. Trial counsel would have had no reason to think objections based on the Killebrew rationale would have been successful. It is axiomatic that counsel’s failure to object to admissible evidence does not constitute inadequate assistance of trial counsel. Such an omission is inherently reasonable and nonprejudicial. (See, e.g., People v. Wallace (2008) 44 Cal.4th 1032, 1094-1095; cf. People v. Coffman and Marlow (2004) 34 Cal.4th 1, 83 [where the alleged judicial misconduct did not occur, the defendant’s “related claim of ineffective assistance of counsel and his derivative claims of federal constitutional error likewise must fail”].) We also note that while defense counsel did not object to the expert’s opinion, he cross-examined the expert thoroughly as to various problematic aspects of the opinion, most significantly that Detective Freeman was not aware of ongoing incidents of violence between the 12th Street and the Westside Pomona gangs.
Hearsay/Confrontation
Defendant contends Detective Bebon’s testimony that Eduardo Rojas, the victim’s brother, had refused an offer to be transported from Mexico to testify at defendant’s trial was erroneously admitted over defendant’s hearsay objection, resulting in a violation of his Sixth Amendment right to confront adverse witnesses. The claim fails because the evidence was admissible for a nonhearsay purpose, defendant failed to object on confrontation grounds, and any error is harmless beyond a reasonable doubt.
The prosecution presented recordings of jailhouse telephone conversations in which defendant complained that a person in custody was “snitching” on him. In a subsequent conversation, defendant mentioned his desire to have his brother “somehow get at” a witness who was in custody. Detective Bebon testified that Rojas was in county jail at the same time as defendant. By the time of trial, however, Rojas had been deported to Mexico. The detective telephoned Rojas in Mexico and asked him to return to Los Angeles to testify at the trial, offering to provide Rojas with air fare and transportation. When asked whether Rojas “indicate[d] in any way that he’d be willing to” accept that offer, the defense interposed a hearsay objection. The trial court asked the witness whether Rojas “agree[d] to do it or not?” When the detective testified that Rojas “would not agree to do it,” the trial court implicitly overruled the objection, stating the answer would stand.
However, when the prosecution asked whether Rojas had “identif[ied] anyone,” the trial court sustained the defense’s hearsay objection. On cross-examination, the defense established that the only reason for Rojas’s deportation was because of efforts by the federal immigration authorities. Later, outside the jury’s presence, the trial court confirmed that Rojas had not made any identification. The trial court explained to counsel that it had sustained the second hearsay objection out of concern that the detective might have offered testimony that Rojas had identified defendant. With the knowledge that the detective’s answer would have been potentially helpful to the defense, the trial court gave the defense the opportunity to have that question and answer made before the jury. Trial counsel accepted the offer, and the defense adduced the detective’s testimony that Rojas had not identified anyone as being involved in the shooting.
Initially, we hold that by failing to interpose a timely and specific objection, defendant failed to preserve his confrontation claim for appeal. (E.g., People v. Burgener (2003) 29 Cal.4th 833, 869 [a claim based on a purported violation of the confrontation clause must be timely asserted at trial or it is waived on appeal].)
As defendant seeks to avoid the forfeiture bar by arguing trial counsel’s failure to make a specific confrontation clause objection amounted to ineffective assistance of counsel, we turn to the merits of his contention. First, we point out that it is doubtful whether the challenged testimony contains a “statement” for purposes of the hearsay rule: “‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) From the record, it is clear the trial court sought to insure Detective Bebon did not recount Rojas’s telephonic statement, but only testified to the fact that Rojas declined the offer.
The analysis in Browne v. Turner Const. Co. (2005) 127 Cal.App.4th 1334 is instructive. There, in a negligence action by an employee who had been injured by a fall at a construction site, the defendants objected that deposition testimony offered by the plaintiff was hearsay “insofar as it asserted that defendants ‘wanted’ the [hydraulic] lifts removed.” (Id. at p. 1348.) The testimony, however, was found not hearsay because “[n]one of the challenged testimony purported to recount ‘a statement,’ let alone to prove what was ‘stated.’” (Id. at pp. 1348-1349.) Here, the detective merely related the fact that Rojas refused his offer, without testifying as to the content of his statement. Given that there is no dispute that Rojas refused to testify, it is difficult to see how cross-examination on this point would have been meaningful to the defense.
Moreover, it is clear the evidence was admitted not to prove that Rojas refused to testify, but that Rojas was fearful of testifying-a state of mind that was directly relevant in light of evidence that defendant tried to prevent Rojas from testifying, based on defendant’s admissions that he was concerned about a jail inmate who was “snitching” and defendant’s intent to have his brother “get at” the inmate. Such evidence was admissible to prove defendant’s consciousness of guilt. Because the evidence was not offered for its truth, it was not hearsay. (People v. Mendoza (2007) 42 Cal.4th 686, 697 [victim’s statements that the defendant had molested her were not hearsay because they were offered not to prove the defendant actually molested her, but rather to prove the defendant was aware of the accusations and to explain defendant’s motive for killing].)
We turn to the confrontation aspect of defendant’s claim. “The confrontation clause provides: ‘In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.’ (U.S. Const., 6th Amend.) However, as the high court acknowledged in Crawford, the Sixth Amendment is not implicated by the admission of nonhearsay statements. (Crawford [v. Washington (2004)]541 U.S. [36,] 68; People v. Combs (2004) 34 Cal.4th 821, 842-843)... Because we have already concluded [the victim’s] statements were admitted for a nonhearsay purpose, defendant’s claim fails.” (People v. Mendoza, supra, 42 Cal.4th at pp. 698-699.)
Finally, even assuming Rojas’s refusal amounted to a statement offered for its truth and admitted in violation of defendant’s Sixth Amendment confrontation rights, any error was harmless. “Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.) ‘Since Chapman, we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’ [Citation.] The harmless error inquiry asks: ‘Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?’ (Neder v. United States (1999) 527 U.S. 1, 18.)” (People v. Geier (2007) 41 Cal.4th 555, 608.) Here, as in Geier, “the answer is yes.” (Ibid.)
Rojas’s refusal to travel from Mexico to testify in defendant’s trial was of negligible importance to the prosecution’s case. To the extent it showed evidence of fear to testify against a gang member, such evidence was cumulative to testimony by the prosecution gang expert and by defendant himself, who admitted “it’s common knowledge on the street that you are not going to come and testify.” Further, the defense adduced testimony that Rojas had left the United States under compulsion of the immigration authorities, which gave the defense a strong counter-argument to the prosecution’s position. Moreover, it was uncontradicted that Rojas had never offered an inculpatory statement to the police. On the other hand, in light of defendant’s custodial statements of his desire to reach a witness he believed was informing against him, along with his flight at the crime scene and from arresting officers 10 days later, the evidence of his consciousness of guilt was very strong without any reference to Rojas’s refusal to testify. Of course, the strength of the prosecution case centered on the eyewitness testimony that he was running from the crime scene within minutes of the shooting, when he dropped one of the murder weapons and his cell phone, the latter showing he had recently made communications using his gang moniker.
DISPOSITION
The judgment is affirmed.
We concur: MOSK, Acting P. J. WEISMAN, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.