Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA357891, Michael E. Pastor, Judge.
Deborah Blanchard for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P.J.
A jury convicted appellant Vinicio Jaramillo of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664/187, subd. (a); count 1) and carrying a loaded firearm (Pen. Code, § 12031, subd. (a)(1); count 2). With respect to count 1, special firearm allegations (Pen. Code, § 12022.53, subds. (b), (c), (d), (e)(1)) and gang allegations (Pen. Code, § 186.22, subd. (b)(1)) were found to be true.
Appellant appeals from the judgment on two grounds. First, he argues that the jury was instructed improperly, in a way that dispensed with the requirement of finding specific intent for count 1. Second, he argues that testimony presented by a gang expert violated his due process rights. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
The Shooting and Investigation
Witness Jessi Hernandez and her daughter were riding in a car driven by Hernandez’s friend, Manuel Sanchez, on June 8, 2009, at approximately 11:30 a.m. As they were traveling on Central Avenue toward 51st Street in Los Angeles—an area considered “Playboys” gang territory—they were suddenly cut off by a beige Toyota Camry carrying four Hispanic men who looked like “gangbangers.” Sanchez swore at the driver and two of the passengers glared at him.
The Camry made a right turn on 51st Street, as did Sanchez. On 51st Street, the Camry stopped and backed up a couple of feet, causing Sanchez to stop and back up his car. The man sitting in the front passenger seat of the Camry got out holding a gun, and started shooting. He fired approximately five to 10 shots at David Diaz, who was sitting in a car parked at the curb next to where Sanchez had stopped. The gunman got back in the Camry, the car “burned rubber” as it sped away, and it made a right on Avalon Boulevard. Sanchez got the license plate number, and Hernandez relayed the number to a 911 operator. Meanwhile, Diaz crashed into another parked vehicle and then drove away. Later, from looking at a photographic lineup, both Hernandez and Sanchez identified Henry Lona as the shooter.
Los Angeles Police Officer Douglas Bell investigated the crime scene. Spent gun rounds were found on the ground, there was an SUV with its headlight shot out, and there was another SUV with crash damage. Officer Kevin Raines examined Diaz’s car. It had been struck by multiple bullets, and there was blood on the steering wheel and driver’s side door.
On June 12, 2009, Officer Jesse Drenckhahn and his partner were patrolling in Playboys’ territory when they spotted a beige Camry with the reported license plate number. Drenckhahn recognized appellant, who was eating pizza and drinking beer by the car with other probable Playboys gang members. When Drenckhahn approached appellant to pat him down, appellant volunteered that he had a gun in his right front pocket. Drenckhahn recovered a loaded.380-caliber semiautomatic handgun that was not registered to appellant. It was not the gun used by Lona in the shooting. The beige Camry was registered to appellant’s mother, who lived at the same address as appellant. Drenckhahn arrested appellant.
Officer Raines interviewed appellant after his arrest. The interview was recorded and later, at trial, was played for the jury, which also received a transcript. During the interview, appellant stated that a couple weeks prior to the shooting, Diaz had been arguing with other gang members. Appellant said that on the day of the shooting, he saw Lona with a gun in his pocket, and asked him why he was bringing it with him. He admitted to being the driver when Lona got out and shot Diaz, but claimed he did not know Lona was going to shoot Diaz. He identified Lona from a photographic lineup as the shooter.
Appellant did not actually use the names “Lona” or “Diaz” during the interview. Instead, he referred to them as “homie” and “fool, ” or by their gang monikers.
On July 2, 2009, Officer Bell attempted to speak with Diaz at his home. Diaz had a wound to his left thumb, a bullet wound to his left chest, and a graze wound on the forehead, but would not cooperate with Bell. When Bell attempted to serve Diaz with a subpoena, Diaz fled out the back door.
Appellant’s Trial Testimony
Appellant testified on his own behalf at trial. He stated he had been a Playboys gang member for 10 years, since he was 15 years old. He previously had been arrested and released for tagging, but had never spent any time in jail.
Appellant testified that on the day of the shooting, he went to a motel to meet a friend and saw Lona there. Lona wanted to get some beer and asked appellant for a ride to the liquor store. As appellant was driving down 51st Street, Lona saw Diaz parked in his car. Appellant stated that Lona told him to stop because Lona wanted to talk to Diaz. After Lona got out of the car, appellant heard shots. When Lona got back in the car he was holding a gun, which was the first time appellant had seen the gun. Lona told appellant to “step on it” and appellant drove away, back to the motel.
Appellant testified that he did not know Lona was going to shoot Diaz. After the shooting, everyone in the car asked Lona why he had shot Diaz, but Lona told them not to meddle into his affairs. In response to cross-examination, appellant stated that the two passengers in the rear of the car were also gang members.
Expert Testimony
Officer Drenckhahn testified at trial as a gang expert. He stated that he was familiar with the Playboys gang and patrolled their territory. According to Drenckhahn, there are about 400 Playboys citywide. They use the Playboy bunny as their symbol, and their hand sign resembles a bunny. Drenckhahn stated that their primary criminal activities include felony vandalism, narcotics sales, gun possession, and attempted murder.
Appellant’s gang moniker is “Little Sleepy.” He has several tattoos that show his Playboys gang membership and previous encounters with the police indicated he was a member of the gang. Lona was also a Playboys gang member, as was Diaz.
Drenckhahn stated that gang members seek to build a reputation to establish fear in the community, so they can act essentially without consequence. Gang members discipline themselves not to assist the police. The prosecutor posed the hypothetical question of whether a gang member who commits a crime in the presence and with the assistance of other gang members would be committing the crime for the benefit of, at the direction of, or in association with the gang with the specific intent to promote or assist in the gang’s criminal conduct. Drenckhahn responded affirmatively, stating that in his experience, gang members formulate plans and act as a team to promote and benefit the gang and enhance their reputation.
The prosecutor then asked another hypothetical: “Assuming four men were in a car and that you knew that the driver and front passenger were documented Playboys gang members, but the identity of the rear passengers was unknown except that they were Hispanic males. And that car stopped, one of the Playboys members got out, shot someone, got back in the car, and the car drove away. In your opinion, what is the likelihood that the other two unknown men in that car are gang members?” Defense counsel objected to the question on the ground of speculation as it asked for a response not based on Drenckhahn’s experience and training. The court overruled the objection, and asked Drenckhahn if his answer would be based on his experience. Drenckhahn stated it would be, and answered that gang members commit crimes in the presence of other gang members because they know gang members will not talk to the police, so it would be very likely the other two passengers in the car were gang members.
The prosecutor asked further hypothetical questions, to which Drenckhahn responded without objection. Drenckhahn testified that if two or more gang members committed a violent act against a fellow gang member because that fellow gang member had violated the gang’s rules, that act would be done for the benefit of, at the direction of, or in association with the gang with the specific intent to promote, further, or assist in the gang’s criminal conduct. He further testified that when gang members act in concert they plan their activities and do not act randomly.
The Judgment
Trial was by jury. Appellant was prosecuted on the basis of being an aider and abettor to the crime committed on June 8, 2009, and for carrying a loaded handgun on June 12, 2009. On December 11, 2009, appellant was found guilty as charged on count 1—attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664/187, subd. (a)); and count 2—for carrying a loaded firearm on his person in a public place (Pen. Code, § 12031, subd. (a)(1)). With respect to count 1, the jury further found all special firearm allegations (Pen. Code, § 12022.53, subds. (b), (c), (d), (e)(1)) and gang allegations (Pen. Code, § 186.22(b)(1)) true.
Appellant was sentenced to a determinate term of two years for count 2, and indeterminate terms of life imprisonment with a minimum parole eligibility after seven years for count 1 plus 25 years to life for the Penal Code section 12022.53, subdivisions (d), (e)(1) enhancement, all to be served consecutively. Appellant filed a timely notice of appeal.
DISCUSSION
I. No prejudicial error resulted from the jury instructions.
Appellant first argues that the jury instructions were internally inconsistent and thereby improperly removed the requirement of finding specific intent for the attempted murder charge. A “specific intent to kill” is a required element of attempted murder. (People v. Lee (1987) 43 Cal.3d 666, 670.) Appellant cites to In re Winship (1970) 397 U.S. 358, 364, and like authority, which have explicitly held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”
Appellant contends that CALCRIM Nos. 403 and 400 were misleading and prejudicial because they dispensed with the element of intent. CALCRIM No. 400, as presented to the jury, stated: “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. [¶] Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of another crime that occurred during the commission of the first crime. Those specific circumstances must be proved by the theory of ‘a natural and probable consequence, ’ which I shall explain in a later instruction.” CALCRIM No. 403 stated: “Before you may decide whether the defendant is guilty of attempted murder as charged in Count 1 based upon the particular theory of ‘a natural and probable consequence, ’ you first must decide whether the People have proved beyond a reasonable doubt that he committed the ‘target’ crime of assault with a firearm in violation of Penal Code section 245(a)(2), as defined in these instructions. [¶] To prove that the defendant committed the crime of attempted murder as charged in Count 1 based upon a theory of ‘a natural and probable consequence, ’ the People must prove beyond a reasonable doubt that: [¶] 1. The defendant committed the ‘target’ crime of assault with a firearm as an aider and abettor; [¶] 2. During the commission of the crime of assault with a firearm a coparticipant in that assault with a firearm committed the crime of attempted murder; [¶] AND [¶] 3. Under all of the circumstances, a reasonable person in the defendant’s position would have known that the commission of the attempted murder was a natural and probable consequence of the commission of assault with a firearm. [¶] A coparticipant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. If the attempted murder was committed for a reason independent of the common plan to commit the assault with a firearm, then the commission of attempted murder was not a natural and probable consequence of the assault with a firearm. [¶] To decide whether the crime of attempted murder was committed, please refer to the separate instruction that I will give you on that crime.”
Appellant argues that these instructions were prejudicial because they set a much lower burden of proof than is required to establish attempted willful, deliberate, and premeditated murder.
A. CALCRIM No. 403
Appellant focuses on CALCRIM No. 403, particularly its emphasis on the “natural and probable consequence” theory. This instruction directed the jury that it must first decide whether the “target” crime of assault with a firearm had been proven before the jury could decide whether defendant was guilty of attempted murder based upon the theory of “a natural and probable consequence.” Appellant argues that the lack of any reference to “intent” in No. 403 was violative of due process because it allowed the jury to convict appellant without deciding whether he had the requisite intent.
The “target” crime of assault with a firearm was not charged, a common practice when the “natural and consequences” doctrine is employed. “In many cases in which the doctrine is applicable, the defendant is not charged with the target crime, but with another crime that was allegedly committed by the defendant’s confederate.” (People v. Prettyman (1996) 14 Cal.4th 248, 268 (Prettyman).) The jury was instructed on the elements of assault with a firearm.
“Natural and probable consequences” liability is a form of aider and abettor liability. “Under California law, a person who aids and abets the commission of a crime is a ‘principal’ in the crime, and thus shares the guilt of the actual perpetrator.” (Prettyman, supra, 14 Cal.4th at p. 259, citing Pen. Code, § 31.) In order to prove the mental state necessary for aider and abettor liability, the prosecution must show that the defendant acted “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560, original italics.) For a specific intent crime, in general the aider and abettor must “share the specific intent of the perpetrator.... [A]n aider and abettor will ‘share’ the perpetrator’s specific intent when he or she knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” (Ibid.)
Under the “natural and probable consequences” doctrine, a defendant may be held responsible not just for the crime he or she intended to aid and abet, but also for “any other crime that is the ‘natural and probable consequence’ of the target crime.” (Prettyman, supra, 14 Cal.4th at p. 261.) When the “natural and probable consequences” doctrine applies, “the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime. But the trier of fact must also find that (4) the defendant’s confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted.” (Id. at p. 262, fn. omitted.)
Prettyman held that the failure to instruct on “target” crimes is improper under state law when the “natural and probable consequences” doctrine is employed, although the error may be harmless. (14 Cal.4th at p. 274.) But it is not a violation of the constitutional right to due process of law. (Ibid.) Here, there was no failure to instruct on the “target” crime of assault with a firearm. Moreover, appellant’s argument that the “natural and probable consequences” doctrine is unconstitutional has been repeatedly rejected by the California Supreme Court (see id. at pp. 270-271; People v. Richardson (2008) 43 Cal.4th 959, 1021; People v. Garrison (1989) 47 Cal.3d 746, 777-778; People v. Bunyard (1988) 45 Cal.3d 1189, 1231). The jury instructions adequately expressed the requirements for finding appellant guilty under the natural and probable consequences doctrine.
Appellant relies on People v. Lee, supra, 43 Cal.3d 666, to argue that the instructions improperly removed the issue of intent from the jury’s consideration. This reliance is misplaced. Lee held that “implied malice” instructions should never be given in relation to an attempted murder charge because implied malice is insufficient for an attempted murder charge, which requires a specific intent to kill. (Id. at p. 670.) Implied malice instructions were not given in the case, however, and the “natural and probable consequences” instructions that were given were consistent with instructions that have been upheld as lawful. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 184-185; People v. Ayala (2010) 181 Cal.App.4th 1440, 1450-1451.)
Instruction No. 403 required a finding that appellant committed the target crime as an aider and abettor. The instruction on “aiding and abetting, ” CALCRIM No. 401, which directly preceded No. 403, expressly contained the knowledge, intent, and facilitating requirements for aiding and abetting liability. Furthermore, instruction No. 403 required a finding that the coparticipant committed an offense (attempted murder) other than the target crime (assault with a firearm), and that a reasonable person would have known that the commission of the attempted murder was a natural and probable consequence of the commission of assault with a firearm. These instructions properly followed the elements of the “natural and probable consequences” doctrine enunciated in Prettyman, supra, 14 Cal.4th at page 262. Thus, the inclusion of CALCRIM No. 403 was proper.
B. CALCRIM No. 400
Appellant also asserts that instruction No. 400 was improper because of its language that a defendant “is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.”
This instruction has been criticized in case law, and due to this criticism, the most recent version of the instruction omits the word “equally.” In People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165 (Samaniego), we held that an aider and abettor’s guilt may be greater or lesser than the perpetrator’s, depending on the culpability of the aider and abettor’s mental state. Thus, we found that the “equally guilty” language in No. 400, “while generally correct in all but the most exceptional circumstances, ” was misleading in a murder case, in which the aider and abettor “‘must know and share the murderous intent of the actual perpetrator.’” (Id. at pp. 1164-1165, quoting People v. McCoy (2001) 25 Cal.4th 1111, 1118.) However, because the error was harmless, the judgment was affirmed. (Samaniego, supra, 172 Cal.App.4th at p. 1165.)
Shortly afterward, in People v. Nero (2010) 181 Cal.App.4th 504 (Nero), “equally guilty” instructional language was held to be prejudicial error in a murder case, and the judgment in that case was reversed. After deliberations had begun, the jury asked several questions to the trial court about whether it could find that one defendant had a lesser degree of guilt than the other. (Id. at p. 510-513.) The court repeated several times that each principal in an aiding and abetting situation is “equally guilty.” (Ibid.)
We find that the usage of the language “equally guilty” in CALCRIM No. 400 does not compel reversal here. First, any objection as to the form of No. 400 was forfeited. As we stated in Samaniego, generally “‘“[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”’” (172 Cal.App.4th at p. 1163.) Since instruction No. 400 was “generally an accurate statement of law, ” the defendant was “obligated to request modification or clarification and, having failed to have done so, forfeited this contention.” (Ibid.) The same analysis applies here. The record reflects no attempt to request modification or clarification of the instruction, and so the issue was forfeited.
Second, even if the issue had been preserved for appeal, there was no prejudicial error. The harmless error test of Chapman v. California (1967) 386 U.S. 18, 24, applies to an instruction that omits or misdescribes an element of a charged offense. (People v. Williams (2001) 26 Cal.4th 779, 797.) Under the Chapman test, if it appears beyond a reasonable doubt that the error complained of did not contribute to the jury’s verdict, the error is harmless. (Neder v. United States (1999) 527 U.S. 1, 15.)
Any error that may have occurred here was harmless. This case does not present the situation encountered in Nero, where the jury was obviously troubled by the apparent, faulty requirement that they must find an aider and abettor equally guilty as her codefendant. (181 Cal.App.4th at pp. 510-513.) The jury here did not inquire about instruction No. 400. Instead, it asked about the meaning of “premeditation, ” and was directed to review instruction No. 601, which contained a proper explanation of premeditation. This questioning shows that, contrary to appellant’s argument, the jury did not disregard the intent element of the attempted murder charge, but rather concentrated on it.
The jury’s apparent lack of confusion here may stem from the fact that there was only one defendant on trial in this case. In Nero, where both defendants were prosecuted before the same jury, the jury seemed to determine that one codefendant was less culpable than the other, but the jury was not allowed to decide that they had differing levels of guilt. (181 Cal.App.4th at p. 512.) In this case, there was no codefendant tried. Unlike in Nero, the jury here would not have felt pressured to find that appellant’s guilt was equal to that of the nonpresent perpetrator.
Furthermore, unlike in Nero (and Samaniego), the prosecutor here relied on a “natural and probable consequences” theory of liability. As noted in Nero, citing People v. McCoy, supra, 25 Cal.4th 1111, 1117-1118, the required mental state can differ depending on the theory of liability. (Nero, supra, 181 Cal.App.4th at pp. 513-515.) In general, to be found guilty of a crime, an aider and abettor must aid or encourage a perpetrator with an intent or purpose of committing, encouraging or facilitating the crime in question. (People v. Lee (2003) 31 Cal.4th 613, 624.) But, while a defendant must intend to commit a target offense under the “natural and probable consequences” doctrine to be held responsible for a crime that is the natural and probable consequence of the target crime, specific intent to commit that “ultimate” crime is not required. (Prettyman, supra, 14 Cal.4th at p. 261.) As explained by our Supreme Court, “where the natural-and-probable-consequences doctrine does apply, an attempted murderer who is guilty as an aider and abettor may be less blameworthy. In light of such a possibility, it would not have been irrational for the Legislature to limit [Penal Code] section 664 [, subdivision] (a) only to those attempted murderers who personally acted willfully and with deliberation and premeditation. But the Legislature has declined to do so.” (People v. Lee, supra, 31 Cal.4th at pp. 624-625.)
Accordingly, we discern no reason for finding that the “equally guilty” language of instruction No. 400 may have improperly influenced the jury’s verdict. Reversal is not compelled.
II. The expert testimony was not improper.
Appellant’s second main argument is that the gang expert’s opinion testimony caused a violation of due process by imposing a conclusive presumption that appellant intended to commit murder. This argument fails because the hypothetical questions criticized on appeal were not objected to in the trial court and thus the issue was forfeited, and in any case the hypothetical questions posed by the prosecutor were not improper.
As explained above, the defense only objected to one of the hypothetical questions posed to the gang expert, Drenckhahn, and that objection was overruled. The trial court did not abuse its discretion in so ruling. (See People v. Albarran (2007) 149 Cal.App.4th 214, 224 [decision on whether gang evidence is admissible is within trial court’s discretion].) The defense did not object to any further questioning of the expert witness, and never objected on the basis now asserted on appeal (that the questioning sought an improper opinion regarding appellant’s intent). These failures to object result in a forfeiture of the issue on appeal. (Civ. Code, §353, subd. (a); People v. Valdez (1997) 58 Cal.App.4th 494, 505; People v. Samayoa (1997) 15 Cal.4th 795, 841.)
The hypothetical question asked whether it was likely that the two passengers in the rear seat of the car driven by appellant were gang members. After defense counsel objected on the ground that it called for speculation because it was beyond the expert’s experience and training, the prosecutor asserted, “I would say it falls squarely under People vs. [V]ang, 87 Cal.App.4th 554.” People v. Vang (2001) 87 Cal.App.4th 554, examined the specific intent of the defendants and the inferences the jury drew from their actions; it did not involve the appropriateness of expert testimony. The trial court here, however, did not appear to overrule the objection based on People v. Vang.
In any event, even if the issue were not forfeited, the hypothetical questions and the expert opinion were not improper, as experts are given wide latitude to opine on gang-related matters. The culture and habits of criminal street gangs are proper subjects of expert testimony under Evidence Code section 801. (People v. Gardeley (1996) 14 Cal.4th 605, 617.) Further, “[c]ases have repeatedly held that it is proper to introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.” (People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) Moreover, “an expert may render opinion testimony on the basis of facts given ‘in a hypothetical question that asks the expert to assume their truth.’ [Citation.]” (People v. Gardeley, supra, 14 Cal.4th at p. 618.) “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.’ [Citation.]” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)
Thus, the expert’s testimony here, which expressed the opinion that gang members act in concert with the specific intent to promote, further, or assist in the gang’s criminal conduct, and that they commit violent acts against fellow gang members who violate the gang’s rules, was not improper. For example, in People v. Garcia (2007) 153 Cal.App.4th 1499, 1513-1514, an expert responded to hypothetical questions by opining that the defendant’s possession of a handgun would be for the purpose of benefiting a criminal street gang, and such testimony was found proper, even though “the topics as to which he rendered an opinion based on responses to hypothetical questions were, in fact, the ultimate issues of the case.” In People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208-1209, the prosecutor posed a hypothetical question of “‘why somebody would go to Pacific [Avenue] and ask a person where they were from and then shoot them, ’” and the expert responded that such behavior was likely done for gang-related purposes. The Court of Appeal found the trial court did not err by admitting this testimony. (Ibid.)
It is true that an expert may not testify that an individual had specific knowledge or possessed a specific intent. (People v. Killebrew (2002) 103 Cal.App.4th 644, 658; see also People v. Ochoa (2009) 179 Cal.App.4th 650, 664 [nonhypothetical question of whether particular acts were committed to benefit a gang were impermissible when posed to expert].) The testimony at issue here, however, was not of this sort. The expert did not state that appellant personally, specifically intended to commit any act. Instead, the expert responded to hypothetical questions, and opined, based on his experience and training, of how gang members tend to act. His testimony was similar to the type of testimony found proper in People v. Garcia, supra, 153 Cal.App.4th 1499, People v. Zepeda, supra, 87 Cal.App.4th 1183, and numerous other cases, and the jury was entitled to give as much weight to this testimony as it felt proper. (See People v. Ledesma (2006) 39 Cal.4th 641, 723.) The trial court did not abuse its discretion in allowing such testimony.
Nor did the testimony result in a violation of due process. Appellant relies on People v. Albarran, supra, 149 Cal.App.4th 214, 217 which found that certain gang evidence was prejudicial and should not have been admitted because it was not relevant to the underlying charges. Extensive and inflammatory gang-related testimony—including threats to kill police officers, descriptions of criminal activities of other gang members, and reference to the Mexican Mafia—had been allowed in the trial court even though the prosecution failed to present sufficient evidence that the crimes at issue were gang motivated. (Id. at pp. 217, 227-228.) The appellate court acknowledged that the appellant had to satisfy a high constitutional standard to prove a deprivation of federal due process rights. “‘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.” [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.’” (Id. at p. 229, quoting Jammal v. Van de Kamp [9th Cir. 1991] 926 F.2d [918, ] 920.) Nevertheless, the court found that certain gang evidence had “no legitimate purpose” in the trial, and found that the jury could draw no “permissible inferences” from that evidence. (People v. Albarran, 149 Cal.App.4th at p. 230.) Thus, the case presented “one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendant’s trial fundamentally unfair.” (Id. at p. 232.)
Such concerns do not exist here. In this case, there was no indication that the attempted murder was not gang related. The Playboys are a long-established gang, which, according to expert testimony, started in the late 1960’s and now has about 400 members citywide. The principals and the victim of the crime were all Playboys gang members, and all the passengers in appellant’s car during the shooting were gang members. Appellant stated that a couple of weeks prior to the shooting, Diaz had been arguing with other gang members, which strongly suggests a gang-related motive for the shooting. When interviewed by the police, appellant stated that he saw Lona carrying a gun in his pocket before the shooting, but then at trial stated that he did not see the gun until after the shooting. From this and the other evidence presented at trial, it was not unreasonable for the jury to determine that appellant was guilty as an aider and abettor.
Nor was the expert testimony impermissibly inflammatory. Although the gang expert testified about several crimes previously committed by other Playboys gang members, the testimony tended to show that the gang was active and that its members had engaged in a pattern of criminal gang activity. This testimony was permissible. Accordingly, the trial court did not err by allowing the expert testimony.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.