Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA083886 Ronald V. Skyers, Judge.
Marilee Marshall, 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, Deborah J. Chuang and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
INTRODUCTION
A jury convicted Diamond Jones of attempted murder. Jones appeals, arguing that the evidence was insufficient to support his conviction, the trial court erred by instructing with CALCRIM Nos. 372 and 1403, the prosecutor committed misconduct in argument, and the trial court erred by admitting gang photographs and testimony regarding uncharged crimes. We affirm.
BACKGROUND
The information charged Jones with the murder of Darshay Lavel Harris in violation of Penal Code section 187, subdivision (a) (count 1) and the attempted willful, deliberate, and premeditated murder of Demond Whiting (Whiting) in violation of sections 664 and 187, subdivision (a) (count 2). The information further alleged that both offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, and assist criminal conduct by gang members (§ 186.22, subd. (b)(1)). It also alleged that in the commission of each offense, a principal personally used a firearm, and personally and intentionally discharged a firearm, causing great bodily injury and death, within the meaning of section 12022.53, subdivisions (b), (c), (d) and (e)(1).
Unless otherwise indicated, all subsequent statutory references are to the Penal Code.
Jones pleaded not guilty and denied the special allegations. A jury convicted him of attempted murder and found that the offense was committed willfully, deliberately, and with premeditation. The jury also found all of the firearm allegations and the gang enhancement allegation true. The jury could not reach a verdict on the murder charge, which was dismissed in the furtherance of justice at sentencing. The trial court denied Jones’s motion for a new trial and sentenced him to 40 years to life in prison, consisting of 15 years to life for attempted murder, plus 25 years to life pursuant to section 12022.53, subdivision (d). The court also ordered Jones to pay a $10,000 restitution fine (§ 1202.4, subd. (b)) and a $20 court security fee (§ 1465.8, subd. (a)(1)), and imposed but stayed a parole revocation fine of $10,000 (§ 1202.45). The court credited Jones with 345 days of presentence custody.
From December 24, 2005, to January 16, 2006, the Grape Street Crips (GSC) and Bounty Hunter Bloods (BHB) gangs engaged one another in “an all-out war.” Jones, who is also known as “DK,” is an admitted member of the Peda Roll Squad clique of the GSC gang. The GSC gang is based primarily in the Jordan Downs housing project, and the BHB gang is based in the nearby Nickerson Gardens housing project. At 8:20 p.m. on December 24, Los Angeles Police Department Officers Eric Young and his partner received a “shots heard” call and responded to 103rd Street and Lou Dillon Avenue, which is within the area claimed by the GSC gang. The officers found no evidence of a shooting and left at 8:40 p.m. At 8:50 p.m., the same officers received a “shots fired” call and responded to East 114th Street and Success Avenue in Nickerson Gardens, an area claimed by the BHB gang, where they found Demond Whiting had just been shot.
Unless otherwise indicated, all subsequent date references pertain to 2005.
Whiting testified that although he previously lived in Nickerson Gardens and had been a member of the BHB gang, he was out of the gang and living elsewhere by December 24. He went to Nickerson Gardens that night to visit his “partners.” While standing outside, talking to one of his “partners” at East 114th Street and Success Avenue, he heard shots. The next thing Whiting remembered was awaking without any feeling in his legs. He heard 15 to 20 more shots, and used his arms to “crawl” in between parked cars. All of the shots sounded as if they had been fired by a “big weapon.” Whiting did not see anyone shooting and did not know who shot him. The shooting left him paralyzed.
The police collected ten expended 7.62 millimeter Wolf-brand casings from the scene of Whiting’s shooting. This caliber of ammunition could be used in an AK-47 rifle. Ballistics examiners determined that two of these casings were expended by the Maadi rifle ultimately recovered by the police and introduced at trial as People’s exhibit 13. The Maadi looked like an AK-47 rifle. The remaining eight casings were expended by a different gun, which the police apparently did not recover.
The record does not support respondent’s assertion that both guns used in the Whiting shooting were recovered when the police stopped Darreon Harris and Anthony Lynch on January 16, 2006. As far as the record reveals, the police recovered only one gun on that occasion (Maadi rifle), and no ballistics match was made on the remaining eight casings from the Whiting shooting. The prosecution introduced just two other weapons, both handguns: a 9 millimeter Ruger (People’s exhibit 9) and a .40 caliber Glock (People’s exhibit 7) that were linked forensically to the December 27 murder of Darshay Harris (count 1).
Numerous reprisal shootings ensued. At about 8:45 a.m. on December 25, BHB member Wendall Swisher was shot while riding a scooter in Nickerson Gardens. At about 9:40 a.m. the same day, GSC member Brandon Bullard was shot in the face at 103rd and Grape in Jordan Downs. Bullard was a “shot-caller” in the GSC gang. About ten minutes later, BHB member Derrick Harris was fatally shot at the Watts Arms Apartments, which is a few blocks from 103rd and Grape and is another base of operations for the GSC gang. On December 27, Darshay Harris was shot to death on Compton Avenue at 114th Street in Nickerson Gardens. Darshay Harris was a member of the Black P Stones gang, which is another Blood gang. At the trial, the prosecution introduced testimony and the prior statements of several witnesses who saw young men speed away from the scene of the Harris murder.
Because Jones was not convicted of this charge, we limit our recitation of the evidence pertaining to that charge to matters that are relevant to the issues raised on appeal or to a basic understanding of the case.
On January 16, 2006, Detective Daniel Pearce recovered the Maadi rifle (People’s exhibit 13) when Darreon Harris jumped out of the car near the Watts Arms, dropped the Maadi, and ran. Like Jones, Harris and the car’s driver, Anthony Lynch, were members of the Peda Roll Squad clique of the GSC gang. DNA found on the Maadi matched Lynch.
In March 2006 the police arrested Jones for the murder of Darshay Harris on the basis of statements and a photographic identification by Katherine Locklin. The police placed Jones in a recorded jail cell, into which they later introduced a Primera Flats gang member named Huero. Huero and Jones conversed. Jones said, “[O]n Christmas Eve, cuz [¶] … [¶] [w]e was hanging in our hood. [¶] … [¶] [T]hey came through shootin’, almost shot me in my face, cuz. [¶] … [¶] Almost shot me in my face and almost shot like four of the homies, right. [¶] … [¶] So, so we doubled back and went over there and we shot that shit up.” Huero asked whether “the Grapes” were shooting at Jones. Jones responded, “No, the Bounty Hunters,” then explained, “I’m from Grape.” Jones continued, “So when they shot at us, we went right back in like ten minutes, cuz. [¶] … [¶] And, we jumped out with AK’s in they projects, in the Blood projects. [¶] … [¶] We shot that shit up, cuz.” After Huero asked whether they shot with “an AK,” Jones replied, “Yeah, with two of them.” Jones further explained, “[I]t was at night when they came through ... we went right back the same night.” Jones then stated, “But, on Christmas Day, my homies went through there early in the morning like seven something. [¶] … [¶] The homies caught one of them fools on one of them scooter things. [¶] … [¶] They shot his ass off of it. [¶] … [¶] [B]ut I’m saying they homies came back and shot my, shot one of my, like, like, our main man, he shot one of our main men in the face.” Jones then related that on Christmas Day, a “slob” was visiting one of GSC’s “O.G. homies,” and GSC members killed the “slob,” despite instructions from the “O.G.” to leave him alone. Pearce testified that a “slob” was a derogatory term for a member of a Blood gang.
A recording of this conversation was played for the jury during Jones’s trial and the jury was furnished with transcripts.
After he heard the recording of the conversation between Jones and Huero, Detective Samuel Marullo linked Jones’s statements to the attempted murder of Whiting.
Acting as the prosecution’s gang expert, Detective Pearce testified about gang behavior and the operational area, hand signs, tattoos, colors, graffiti, cliques, criminal activities, and enemies of the GSC gang; identified various GSC gang and Peda Roll Squad clique members in photographs with Jones; and opined that both of the charged offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang, and with the specific intent to promote, further, and assist in criminal conduct by gang members.
Jones did not testify at trial. His older brother, Tiris Jones, testified that he drove into Jordan Downs between 8:15 and 8:30 p.m. on December 24. A friend immediately flagged him down and told him that his younger brother “almost got shot in the face.” Tiris found defendant Jones in the apartment. Tiris remained in the apartment until after 11:30 p.m. and did not see defendant Jones leave.
Jones called his own gang expert, Gregory Brown, Ph.D., who grew up in South Central Los Angeles and is a professor at California State University, Fullerton. Brown testified that everyone in Jordan Downs and Nickerson Gardens would know, in detail, about the hostilities between the resident gangs. Members of the GSC gang would know what other members of their gang had done because they would talk about their experiences. In addition, a member of the GSC gang would use “we,” “my homies,” and “Grape” interchangeably. Brown further testified that a gang member in a custodial setting will attempt to “ward off negative or violent encounters” by portraying his gang as “crazy” and tough and himself as “bigger, badder, [and] tougher” than those he encounters.
DISCUSSION
1. Sufficiency of evidence
Jones contends the evidence was insufficient to support his attempted murder conviction because nothing apart from his surreptitiously recorded conversation with Huero linked him to the commission of the crime. He argues that the statements he made during this conversation were devoid of details revealing he was actually present at the shooting, and therefore showed he merely learned about the crime afterwards.
Jones does not challenge the sufficiency of the evidence to establish any element of the crime, apart from his identity as the perpetrator. Nor does he challenge the sufficiency of the evidence supporting the jury’s finding that the attempted murder was willful, deliberate, and premeditated.
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) The jury, not this court, must be convinced of the defendant’s guilt beyond a reasonable doubt. (Id. at p. 1139.)
Jones’s statements to Huero included several details that were consistent with other evidence regarding the Whiting shooting and its antecedents. Jones told Huero the date of the shootings, which corresponded to the testimony of Whiting and Marullo. Jones also explained that he and four of his “homies” were hanging out in their “hood” when another group “came through shootin’” and almost shot Jones in his face, in addition to almost shooting four of Jones’s “homies.” This matched evidence of a police call reporting that shots were fired in Jordan Downs and Tiris Jones’s testimony that someone told him that his brother had almost been shot in the face that evening. The site of the Whiting shooting, Nickerson Gardens, is consistent with Jones’s reference to the location as a “Blood project” and defendant Jones told Huero the approximate temporal relationship between the shootings in Jordan Downs and the retaliatory shooting by GSC members. The ballistics evidence established that two of the ten expended casings found at the scene of the Whiting shooting were ejected by People’s exhibit 13, an AK-47 style Maadi rifle. The remaining eight expended casings at the scene were of the same caliber, which suggested a second AK-47 style rifle was also used. This evidence matched Jones’s statement to Huero that the GSC members used two “AK’s” in the retaliatory shooting on December 24. Moreover, Jones’s description of the December 24 shootings established a context and motive that was consistent with the testimony of Detectives Marullo and Pearce regarding the “war” between the GSC and BHB gangs that began on December 24.
Jones argues that his reference to “like ten minutes” did not match the 30 minute time difference between the two December 24 incidents, as shown by the timing of the police radio broadcasts. The timing of a police broadcast, however, does not necessarily reflect accurately the timing of the incident reported. The police sometimes learn of an incident through a citizen’s report; on other occasions, officers in the vicinity perceive the event firsthand. Because the record does not indicate how the police learned of either of the December 24 shootings, the 30 minute difference between the broadcasts cannot be viewed as a precise measure of the interval between the shootings. Moreover, Jones did not purport to state the timing between the shootings with precision. He said, “we went right back in like ten minutes,” which reasonably may be interpreted as stating that Jones and his companions left Jordan Downs to go to Nickerson Gardens approximately ten minutes after shots were fired at them. Jones did not state that his group arrived at Nickerson Gardens ten minutes after the first shooting or that the retaliatory shooting occurred ten minutes after the first shooting. Once Jones and his group actually departed from Jordan Downs, it necessarily took them some period of time to travel between the two housing projects, which are nearly two miles apart. The time discrepancy, if any, would therefore be less than 20 minutes. In the context of a casual conversation with a cellmate, a few minutes’ difference is trivial and does not demonstrate that Jones lacked first-hand knowledge.
Jones also argues that he did not specify the location or name of the “Blood project” in which the shooting occurred. The record, however, established a series of shootings between the GSC and BHB gangs, commencing with those on December 24. From this, the jury could reasonably infer that the “Blood project” to which appellant referred was Nickerson Gardens, the Blood-dominated housing project in which Whiting was shot.
Given the context in which Jones made these statements, the absence of greater specificity or precision is understandable. Jones was conversing with a cellmate, not responding to probing questions from an interrogator.
Relying upon the testimony of his gang expert, Jones also argues that his use of “we” rather than “I” in describing the events on December 24 suggested he was not personally involved, but was simply saying “we” in the same way a sports fan states “we won” to refer to a victory by the team he or she supports. This contention is undermined, however, by contrasting Jones’s descriptions of the events on December 24 and December 25. Whereas Jones used the first person plural in relating the events of December 24, he used “my homies” to describe what occurred the next day. The difference in Jones’s choice of words supports a strong inference that Jones participated in the Whiting shooting on December 24, but not the shootings on December 25.
Jones also bases his insufficiency of evidence argument upon CALCRIM No. 224, which instructs the jury that if two or more reasonable inferences can be drawn from circumstantial evidence, one pointing to innocence and the other to guilt, the jury must accept the one that points to innocence. This principle does not, however, govern appellate review of the sufficiency of evidence. (People v. Towler (1982) 31 Cal.3d 105, 118.) The instruction is for the jury’s guidance in its fact-finding role. (Ibid.) On review, however, we affirm if substantial evidence supports the verdict, even though the circumstantial evidence might be reasonably reconciled with the appellant’s innocence. (Ibid.) Jones’s attempted murder conviction is supported by substantial evidence, consisting of his statements in his conversation with Huero and the corroborative testimony of Marullo, Pearce, Whiting, Tiris Jones, and ballistics expert Starr Sachs.
2. Instructional error: CALCRIM No. 1403
The trial court instructed the jury with CALCRIM No. 1403, regarding the permissible and impermissible uses of evidence of gang activity. Jones contends the trial court’s instruction that the jury could consider evidence of gang activity when evaluating witness credibility violated his rights to due process, equal protection, and a fair trial by impermissibly and exclusively focusing upon Tiris Jones. Tiris denied gang membership, but admitted that many of his friends were gang members, that he had the nickname of a popular deceased GSC gang member tattooed on his arm, and that he had, on occasion, used the GSC hand signal to greet friends in Jordan Downs.
The court gave the following version of the instruction: “You may consider evidence of gang activity only for the limited purpose of deciding whether: [¶] The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes charged[;] [¶] OR [¶] The defendant had a motive to commit the crime charged[;] [¶] OR [¶] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.” (Extraneous punctuation and bullet points removed.)
Respondent argues that Jones forfeited his instructional error claims by failing to raise them in the trial court. An instructional error that affected a defendant’s substantial rights may be reviewed on appeal even without an objection in the trial court. (§ 1259.) We therefore address the merits of Jones’s claims. (People v. Prieto (2003) 30 Cal.4th 226, 247.)
Purportedly erroneous instructions are reviewed in the context of the entire charge to determine whether it is reasonably likely the jury misconstrued or misapplied the challenged instruction. (People v. Dunkle (2005) 36 Cal.4th 861, 899; People v. Frye (1998) 18 Cal.4th 894, 957.) Instructional error that does not impair a federal constitutional right requires reversal only if it is reasonably probable that a properly instructed jury would have returned a verdict more favorable to the appellant. (People v. Rogers (2006) 39 Cal.4th 826, 875; People v. Watson (1956) 46 Cal.2d 818, 836.)
CALCRIM No. 1403 was properly given in this case because the evidence suggested Tiris Jones had an affiliation with the GSC gang or at least had positive feelings toward the gang, which supported a reasonable inference that he was biased in favor of the gang. (People v. Monterroso (2004) 34 Cal.4th 743, 778.) In addition, the instruction properly applied to the credibility of at least two other witnesses who either recanted at trial or failed to appear, apparently due to fear of gang retaliation. (People v. Gonzalez (2006) 38 Cal.4th 932, 946.) The instruction did not reduce the prosecution’s burden of proof or otherwise violate due process or equal protection.
Jones argues that the instruction does not pertain to the credibility of witnesses who are not affiliated or associated with a gang. However, this argument is based upon an inaccurate quotation. Jones argues the instruction states, “You may not conclude from this evidence that the person is a person of bad character or that he has a disposition to commit crime.” (Italics added.) The instruction actually tells the jury not to infer from gang evidence that “the defendant is a person of bad character ….”
Even if we assume that the instruction permitted the jury to draw an adverse inference regarding Tiris Jones’s credibility solely because of his gang association, under the circumstances of this case, the potentially improper inference was harmless because Jones’s credibility was adversely affected by two separate biases: his close familial relationship with defendant Jones and his affiliation with or affection toward the GSC gang. Given these strong inferences of bias, it is not reasonably probable that defendant Jones would have obtained a more favorable result if the trial court had not instructed the jury that it could consider evidence of gang activity when evaluating a witness’s credibility or believability. (People v. Rogers, supra, 39 Cal.4th at p. 875.)
3. Instructional error: CALCRIM No. 372
Over Jones’s objection, the trial court instructed the jury on flight, using CALCRIM No. 372. Although Jones did not ask the trial court to modify the instruction, he now contends that the trial court erred by failing to limit the application of the instruction to count 1.
The court gave the following version of CALCRIM No. 372: “If the defendant fled or tried to flee (immediately after the crime was committed), that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”
A flight instruction is proper and required where the evidence shows that appellant departed the crime scene under circumstances suggesting his movement was motivated by a consciousness of guilt. (Pen. Code, § 1127c; People v. Bradford (1997) 14 Cal.4th 1005, 1055.) With respect to count 1, a flight instruction was required in this case because Maurice Slaughter testified that after he heard the shots on December 27, he saw two young men run to a car, jump in it, and drive away quickly. The instruction was further supported by the statements and testimony of Locklin and Hervey.
Assuming, for the sake of argument, that the court erred by failing to limit the instruction to count 1, we conclude the error was harmless. By its own terms, CALCRIM No. 372 only applies “[i]f the defendant fled or tried to flee immediately after the crime was committed” and if the jury concludes “that the defendant fled or tried to flee.” There was no evidence of flight in the wake of the Whiting shooting. The jury therefore could not have applied CALCRIM No. 372 to count 2. Because the jury could apply the instruction with respect to count 1 and had been told that some of the instructions might not apply (CALCRIM No. 200), the jury would feel no compulsion to apply CALCRIM No. 372 to count 2.
Jones argues, however, that the failure to modify the instruction permitted the jury to infer from his flight on December 27 his awareness of his guilt of the December 24 crime. This is simply not a reasonable interpretation of CALCRIM No. 372. The instruction specifically links the awareness of guilt to the crime from which the defendant fled.
Assuming the court erred, for all of the aforementioned reasons, it is not reasonably probable that Jones would have obtained a more favorable result if the trial court had restricted the application of CALCRIM No. 372 to count 1.
4. Prosecutorial misconduct
In his closing argument, defense counsel argued that Tiris Jones was a credible witness and complained that the prosecutor questioned him more harshly than Whiting: “When Demond Whiting came in here the prosecutor said you got tattoos, but we don’t need to see them. Did he ask him to make any gang signs? He asked him about his prior convictions, because he has to. Because those prior convictions that Demond Whiting has you have a right to know about. Did you hear him asking Tiris about any prior convictions? You can bet if Tiris had a prior conviction you’d have heard about it. But he doesn’t. He’s working for UPS. You think they would hire him if he was a gang member with all kinds of convictions? I don’t think so. You think if he had any convictions you would have heard about them? Absolutely. You don’t hear anything about that. He comes in here and all you hear about is he made a G.”
In rebuttal, the prosecutor argued that defense counsel was asking the jury to speculate about certain matters. In pertinent part, the prosecutor stated the following: “Let me give you an example of speculating. If you sit here and say, the guy who testified yesterday, Tiris Jones, the defendant’s brother, he must not have any felony convictions, because if he did we would have talked about them. That’s speculating. We didn’t hear anything either way, whether he did or didn’t, why he would, when he didn’t.”
Defense counsel objected, stating, “The prosecution has that knowledge, and to infer that they don’t is improper.” The trial court overruled the objection on the ground that it was “the nature of closing arguments,” but admonished the jurors that they were “the only ones who will decide what facts have been presented in this court and not the attorneys.”
The prosecutor continued his argument regarding Tiris Jones: “[Defense counsel] said, [‘]Would UPS hire a guy that has convictions?[’] He’s asking you to speculate.”
Jones contends that the prosecutor “introduced new facts into the case, namely, that the prosecution was unable to obtain any information about whether or not Jones had a prior conviction” by arguing “We didn’t hear anything either way, whether he did or didn’t, why he would, when he didn’t.” Jones argues that the prosecutor’s alleged misconduct violated both state law and his federal constitutional right to due process.
A prosecutor’s misconduct violates due process if it infects a trial with unfairness. (People v. Farnam (2002) 28 Cal.4th 107, 167.) Less egregious conduct by a prosecutor may nonetheless constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to attempt to persuade the court or jury. (Ibid.)
If a prosecutorial misconduct claim is based on the prosecutor’s arguments to the jury, we consider how the statement would, or could, have been understood by a reasonable juror in the context of the entire argument. (People v. Dennis (1998) 17 Cal.4th 468, 522; People v. Benson (1990) 52 Cal.3d 754, 793 (Benson).) No misconduct exists if a juror would have taken the statement to state or imply nothing harmful. (Benson, at p. 793.) “[W]e ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye, supra, 18 Cal.4th at p. 970.) A prosecutor may not suggest the existence of “facts” outside of the record by arguing matters not in evidence. (Benson, at pp. 794-795.) However, a prosecutor may make comments that would otherwise be improper if they are fairly responsive to argument by defense counsel and based on the record. (People v. McDaniel (1976) 16 Cal.3d 156, 177.)
Defense counsel encouraged the jury to infer from the absence of evidence regarding Tiris Jones’s prior convictions that he had no prior convictions. In so doing, defense counsel asked the jury to engage in speculation. The prosecutor properly characterized defense counsel’s arguments and correctly assessed the state of the record regarding Tiris Jones’s prior convictions, if any: “We didn’t hear anything either way, whether he did or didn’t, why he would, when he didn’t.” The clumsy phrasing of the remainder of the prosecutor’s sentence suggested Jones did not have any prior convictions, which is precisely the inference defense counsel sought. Nothing the prosecutor said, however, would have been understood by a reasonable juror to mean that the prosecutor was unable to obtain any information about whether or not Jones had any prior convictions. The prosecutor did not engage in misconduct.
5. Evidentiary error
At the start of the trial, Jones urged the court to exclude, under Evidence Code section 352, (1) photographs of Jones in the company of other GSC gang members and (2) evidence of the arrests of other GSC gang members with the weapons that were ballistically linked to the charged offenses. The trial court agreed that the evidence was “highly prejudicial,” but overruled the objection on the ground that the evidence was relevant to prove the section 186.22, subdivision (b) allegation.
Jones contends the trial court abused its discretion and violated his rights to due process and a fair trial by admitting evidence of uncharged shootings and unduly prejudicial photographs of him that linked him to the GSC gang. Jones fails to specifically identify the testimony and exhibits that are the subject of his contention, although his record citations indicate he complains of Pearce’s testimony regarding the December 25 shootings of Wendall Swisher and Brandon Bullard and People’s exhibits 23, 25, 27-30, and 35-37. Although Jones also mentions evidence of shootings on January 9 and 16, 2006, he does not identify the witness who provided the testimony or cite its location in the record. To the extent Jones intended to claim that the trial court erred by admitting any evidence other than the aforementioned exhibits and testimony by Pearce, he has not carried his burden of proving error on appeal. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)
We nonetheless consider the merits of Jones’s claim that the trial court should have excluded People’s exhibits 23, 25, 27-30, and 35-37 and the testimony of Detectives Marullo and Pearce regarding the shootings on December 25, 2005 and January 9 and 16, 2006 under Evidence Code section 352.
Gang evidence is admissible in a criminal trial if it is relevant to a material issue in the case and is not substantially more prejudicial than probative. (People v. Carter (2003) 30 Cal.4th 1166, 1194; Evid. Code, §§ 351, 352.) Evidence Code section 352 provides that the court may, in its discretion, exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. The type of prejudice Evidence Code section 352 seeks to avoid is not the damage to a defense that naturally results from relevant evidence, but the tendency to prejudge a person or cause on the basis of extraneous factors, such as evidence that evokes an emotional bias against the defendant without regard to its relevance to material issues. (People v. Kipp (2001) 26 Cal.4th 1100, 1121; People v. Zapien (1993) 4 Cal.4th 929, 958.) We review the trial court’s ruling for abuse of discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
a. Jones’s partial stipulation offer
Jones indicated he would be willing to stipulate that the crime was committed for the benefit of and in association with a criminal street gang, but the prosecutor declined to so stipulate, saying that the evidence was “so highly intertwined with the intent and motive in this case that it’s going to come in anyways ….” Jones did not offer to admit the entire gang enhancement allegation, and the prosecutor was not required to accept Jones’s offer of a partial stipulation. (People v. Salcido (2008) 44 Cal.4th 93, 147.) Accordingly, the prosecutor was required to prove all of the elements of the enhancement allegation. (People v. Balcom (1994) 7 Cal.4th 414, 422.) Moreover, even if Jones had admitted the entire gang enhancement allegation, the evidence was, as discussed below, relevant to prove matters other than elements of the gang enhancement allegation, such as motive and identity. Accordingly, Jones’s offer to stipulate to one element of the gang enhancement allegation did not diminish the probative value of the evidence.
b. December 25 shootings
Detective Marullo testified that after he heard the recording of the jail conversation between Jones and Huero, he looked through police records to find reports of shootings on December 24 and 25. The testimony of Marullo and Pearce showed that Wendall Swisher was shot in Nickerson Gardens before 8:45 a.m. on December 25, and there was a scooter at the crime scene. A little later in the day, Brandon Bullard was shot in the face in the GSC neighborhood. Bullard was “a second generation Grape Street Crip Gang member” and “a shot caller,” one of the GSC gang’s “main players.” A short time later, a BHB gang member named Derrick Harris was shot at the Watts Arms while visiting an “older Grape Streeter.”
The testimony regarding the December 25 shootings was highly probative. It corroborated the events Jones related to Huero in their jailhouse conversation, and therefore lent weight to Jones’s admission that he participated in the December 24 shooting charged in count 2. Evidence of the Bullard shooting was also relevant to establish a motive for the Darshay Harris murder, i.e., retaliation for the shooting of Jones’s friend, Bullard. Similarly, evidence of the Bullard shooting was relevant to prove that the shooting of Harris on December 27 was committed for the benefit of a gang, with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)), in that Jones and his fellow Peda Roll Squad members would both desire and feel compelled to retaliate for the harm Bullard suffered.
The risk of undue prejudice did not substantially outweigh the probative value of the detectives’ testimony. Their testimony regarding the December 25 shootings was extremely brief and general in nature. They did not describe the shootings, identify any person thought to be involved in either shooting, or introduce any demonstrative evidence regarding these crimes. There is no possibility the jury concluded Jones was involved in shooting his fellow GSC member Bullard, and no one suggested that Jones played any part in the shooting of Swisher or Derrick Harris. The limited evidence about the December 25 shootings therefore was not likely to evoke an emotional bias against Jones or otherwise cause the jury to prejudge him on the basis of extraneous factors. The trial court therefore did not abuse its discretion.
Jones did not raise his constitutional claims in the trial court, and thereby forfeited them. (People v. Williams (1997) 16 Cal.4th 153, 208, 250.) In any event, these claims have no merit. The erroneous admission of evidence may violate due process if there is no permissible inference a jury may draw from the evidence. (People v. Steele (2002) 27 Cal.4th 1230, 1246.) The relevant inquiry is whether admission of the evidence in question was so extremely unfair as to violate “fundamental conceptions of justice.” (Dowling v. United States (1990) 493 U.S. 342, 352.) The testimony regarding the December 25 shootings was relevant and gave rise to permissible inferences. It created no unfairness.
c. January 9 and 16, 2006 shootings
Marullo testified that he responded to the Hacienda Village housing project on January 9, 2006 because Rayfton Morrison had been fatally shot at around noon. The police recovered about 30 expended cartridge casings. The police believed that Morrison was associated with a Bloods gang operating in Hacienda Village. Anthony Lynch and Darreon Harris were identified as the driver and shooter, respectively, in the Morrison murder.
The testimony of Marullo and Pearce regarding January 16, 2006 collectively established that Ronald Watson was killed and Deshawn Wallace and Ethel Percy were injured in a drive-by shooting in Nickerson Gardens. Wallace was a BHB gang member, and Watson was believed to be a BHB gang associate. Pearce’s “gang team” was forewarned of the shooting and went to the area to attempt to prevent the shooting or catch the culprits. After other officers reported hearing shots and seeing a dark blue car speeding from the area, Pearce and his partner intercepted a car matching the description. Darreon Harris jumped out of the passenger seat with the Maadi (People’s exhibit 13), dropped it, and ran. Anthony Lynch crashed the car into a wall, then ran. Lynch, Darreon Harris, and Jones were all members of the Peda Roll Squad clique of the GSC gang. Pearce recovered the Maadi, which was still hot to the touch. The expended casings recovered from the January 9 and 16 crime scenes matched People’s exhibit 13, as did two of the casings from the Whiting shooting.
The testimony regarding the January 9 and 16, 2006, shootings had significant probative value. It was relevant to explain the recovery of the Maadi and show that this was a weapon possessed and used by Jones’s clique. The clique’s possession and use of the gun tended to corroborate Jones’s statement to Huero regarding the GSC gang members’ use of an “AK” in the second shooting on December 24, which in turn tended to establish Jones’s participation in the Whiting shooting.
The trial court did not abuse its discretion by concluding that the risk of undue prejudice did not substantially outweigh the probative value of this evidence. Apart from Pearce’s description of the circumstances surrounding the recovery of the Maadi, neither officer went into detail about the January shootings. Because the detectives’ testimony made it clear that Lynch and Harris committed these shootings, there was no possibility the jury would conclude Jones participated in them. Nothing about the detectives’ testimony was likely to evoke an emotional bias against Jones or otherwise cause the jury to prejudge him on the basis of extraneous factors.
d. Photographs
As far as the reporter’s transcript reveals, People’s exhibits 23, 27-30, and 37 were photographs depicting Jones alone. Exhibits 27 through 30 were photographs of his tattoos that appeared to be gang-related. With reference to exhibit 29, Pearce testified that Jones’s tattoo of a compact machine gun was rarely seen and indicated that Jones was a shooter. Exhibits 23 and 37 depicted Jones making his clique’s hand sign. Exhibits 25, 35, and 36 were group photographs depicting Jones with other members of his clique and gang.
Photographs of Jones’s tattoos and of him making his clique’s hand sign were relevant to demonstrate his membership in and commitment to the gang, which in turn helped to establish the gang enhancement allegation and Jones’s motive and intent in participating in the charged offenses, in that the victims were associated with Blood gangs, and the BHB gang had shot at members of Jones’s gang just before the commission of the charged offenses. Photographs of Jones making the Peda Roll Squad hand sign were also relevant to prove the “common identifying sign or symbol” element of the gang allegation. (§186.22, subd. (f).)
The group photographs tended to show that Jones and the other GSC and Peda Roll Squad members depicted enjoyed a close relationship and felt loyalty to their gang. This supported the prosecution’s aiding and abetting theory through an inference that Jones and his fellow members were so close that they would know and share one another’s intent before setting out on a “mission” -- such as the two charged offenses -- to attack a rival gang’s members. The closeness and gang loyalty shown by the photographs also supported the gang enhancement allegation by supporting an inference that the persons depicted in the photograph would be acting for the benefit of, and in association with their gang when retaliating against a rival gang. People’s exhibit 35, which included Bullard, demonstrated a relationship between Bullard and Jones, which supported an inference that the shooting of Bullard on December 25 provided a personal and particularized retaliatory motive for Jones’s participation in the Harris murder on December 27. In addition, the photographs provided additional proof that the GSC gang and the Peda Roll Squad clique were an ongoing group of three or more members with a “common identifying sign or symbol” within the scope of section 186.22, subdivision (f).
The risk of undue prejudice did not substantially outweigh the photographs’ probative value. Jones argues that the photographs, particularly one taken at Raging Waters, were prejudicial because they “scare[d] the jurors into fearing appellant, fearing the Grape Street Crips, and fearing the gang’s presence in places to which they themselves might enjoy visiting.” This is, of course, speculation. A photograph of Jones and his fellow gang members at Raging Waters may have shown jurors a more appealing, less frightening side of gang members’ lives, i.e., gang members like to engage in “normal,” light-hearted, fun activities that have nothing to do with crime. As far as the record reveals, none of the photographs were inflammatory or gave rise to any improper inference. Given the remaining evidence of the violent acts committed by Jones and other GSC gang members, we cannot conclude that the probative value of the photographs was substantially outweighed by the probability of evoking an emotional bias against Jones or otherwise causing the jury to prejudge him on the basis of extraneous factors. The trial court did not abuse its discretion.
6. Cumulative error
Jones contends that the cumulative prejudicial impact of all of the claimed errors requires reversal. We do not agree. Even if we assume that giving CALCRIM Nos. 1403 and 372 was error, the cumulative effect was not prejudicial.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., NEIDORF, J.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.