Opinion
B323207
04-25-2024
THE PEOPLE, Plaintiff and Respondent, v. MARQUICE JOSEPH, Defendant and Appellant.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Jason Tran, Supervising Deputy Attorney General, and Louis W. Karlin, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA470445, Eleanor J. Hunter, Judge.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Jason Tran, Supervising Deputy Attorney General, and Louis W. Karlin, Deputy Attorney General, for Plaintiff and Respondent.
SEGAL, Acting P. J.
INTRODUCTION
Marquice Joseph appeals from the judgment entered after a jury convicted him on two counts of second degree murder (Pen. Code, § 187, subd. (a)(1)) and found true related firearm allegations (id., § 12022.53, subd. (d)). He argues the trial court abused its discretion under Evidence Code section 352 and violated his constitutional rights by admitting "an excessive amount" of gang evidence. Joseph also argues the court abused its discretion and violated his constitutional rights by precluding him from introducing testimony that supported his argument at trial he was merely boasting when he made incriminating statements in custody to a confidential informant. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Gerrik Thomas Is Shot
On the evening of January 25, 2016 Gerrik Thomas was talking on the phone with his mother as he walked back from a liquor store near the corner of 54th Street and Ninth Avenue. A few minutes after the call ended, Thomas's mother learned he had been shot. Rachael Minor witnessed the shooting. She saw Thomas walking toward her on 54th Street and a black male walking on Ninth Avenue toward 54th Street with his hands in his jacket pockets. The man walked up to Thomas, pulled out a handgun, and fired three to five shots at Thomas, who fell to the ground. The shooter put his hands back in his pockets, turned around, and walked down Ninth Avenue. Minor "ducked down behind the apartments" and called the 911 emergency operator. She later gave a description of the shooter to a sketch artist.
Thomas died from a gunshot wound to the head. Bullet fragments found in Thomas's body were from a .38 special or .357 magnum revolver or from a semiautomatic weapon. Police did not find any bullet casings at the scene, which suggested the shooter used a revolver.
Surveillance video showed a silver convertible traveling north on Tenth Avenue to the intersection with 54th Street and signaling a lefthand turn. After Thomas crossed 54th Street from the north side to the south side, the car's left turn signal stopped, and the car turned right on 54th Street and right again on Ninth Avenue. The car stopped, and the shooter got out from the passenger door and walked north on Ninth Avenue toward 54th Street. At the corner the shooter shot Thomas, who fell to the ground. The shooter ran south on Ninth Avenue and got back into the parked car, which fled south on Ninth Avenue.
On March 9, 2016 police officers arrested Joseph in connection with an unrelated incident. Officers found Joseph lying in a backyard and a cell phone approximately five feet away in a planter. Call records showed the phone was used on January 25, 2016, the day Thomas was killed, to call a number connected to Gregory Bradley's cell phone account. Records showed Joseph's phone and Bradley's phone both accessed a cell phone tower close to the crime scene multiple times near when Thomas was shot, indicating both phones were close by at that time. Bradley rented a silver convertible from a rental car agency on January 19, 2016 and returned it on January 26, 2016, the day after Thomas was shot.
B. Juan Ingraham Is Shot
On April 6, 2017 Juan Ingraham was standing outside a liquor store at the corner of 74th Street and Crenshaw Boulevard with Joseph Pipion and another friend. Two black men got out of a white car and approached Ingraham and his friends. One of the men asked them whether they knew "any 60's around the neighborhood," which Pipion understood referred to a criminal street gang. Ingraham said, "Yeah," but he "didn't never associate with them." The man who asked about the "60's" shot Ingraham. The two men fled in the white car.
At Joseph's preliminary hearing Pipion identified Joseph's codefendant Derrick Beamon as the shooter. Pipion also testified at the preliminary hearing the shooter was the shorter of the two men. When Joseph and Beamon stood up, Joseph was shorter. At trial, Pipion identified Joseph as the shooter.
Ingraham died of multiple gunshot wounds. Bullet fragments found at the scene and in Ingraham's body came from the same weapon, a .38 special or .357 magnum handgun. Police did not find any bullet casings, which suggested the shooter used a revolver.
An anonymous caller to the 911 emergency operator said he heard gunshots at a liquor store on Crenshaw Boulevard. He said a white sedan with about five people in it drove away toward the freeway. The caller gave a license plate number that matched the license plate on a car belonging to Stephanie Dotie.
Early in the morning on April 7, 2017, officers saw a white sedan matching the description given by the 911 caller parked in front of a marijuana dispensary one and one-half miles from the crime scene. Dotie, Bobby Walker, and a female named "Precious" were in the car. Police impounded the car. Joseph's employee identification card was in the car's center console. Joseph's fingerprints were found on the car's exterior on the driver's side, the passenger's side, and the trunk.
Meanwhile, on April 5, 2017, the day before the second shooting, police officers had stopped Dotie's white sedan. Beamon was driving; Joseph, Dotie, and one other person were passengers. Joseph admitted to the officers that he was a member of the "Van Ness" gang with the moniker "Avenue Red."
Using social media records, detectives learned Beamon took a bus to Oklahoma on April 11, 2017. Joseph was taken into custody in Oklahoma, and detectives interviewed him there on April 28, 2017. Joseph admitted he was from "VNG's" and said he was called "Low Avenue Red" but denied going by Tiny Madd.At first Joseph denied knowing Dotie, but when detectives showed Joseph her photograph, he admitted he knew Dotie and had been in her car. He denied knowing anything about the shooting at 74th Street and Crenshaw Boulevard.
The prosecution's gang expert testified that members of the Van Ness Gangster Brims abbreviated the name of the gang as "VNG" or "VNGB."
C. Dotie Testifies Against Joseph at Trial
Dotie pleaded guilty to being an accessory to murder in exchange for a promise to testify truthfully at Joseph's trial. Dotie testified as follows: She had been a member of a gang, but left the gang before trial. On the night of Ingraham's murder, Dotie was in the passenger seat of her white sedan. Walker was driving, and Joseph was in the back seat with Beamon (Dotie's cousin) and a woman named "Princess." Joseph and Beamon were members of the "Van Ness" or "VN" gang. They went to the liquor store to get some "blunts." Joseph, Beamon, and Princess got out of the car. Dotie heard gunshots. When the three passengers got back in the car, Joseph was holding a gun. Walker drove away and dropped off Joseph and Beamon together. On a surveillance video, Dotie identified her white sedan, Joseph and Beamon approaching the liquor store, and Joseph raising his hands and shooting Ingraham. During her testimony, Dotie was reluctant to answer questions and sometimes took long pauses before answering. When the prosecutor asked her to identify Joseph in the courtroom, Dotie asked to take a break. Dotie said she feared for her safety and could get killed for testifying.
D. Joseph Talks to a Confidential Informant in Jail
Police arrested Joseph for the Ingraham shooting and returned him to Los Angeles. Detective Refugio Garza conducted a "Perkins operation," which involved placing a confidential informant in Joseph's jail cell to elicit incriminating statements about his involvement in the Thomas killing. The police recorded the two-hour conversation between Joseph and the informant, and the prosecution played the recording at trial.
In Illinois v. Perkins (1990) 496 U.S. 292 the United States Supreme Court stated "Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect's misplaced trust in one he supposes to be a fellow prisoner." (Id. at p. 297; see People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 284.)
When Joseph was placed in the cell, the informant asked him where he was from. Joseph said he was "from V.N." The informant said he was "from East Coast." The informant said that he was 47 years old, that he was charged with being an "excon with a gun," and that he had "just done 14." The informant said he knew about a "gang of youngsters right now from V.N. . . . out there pushing lines," and Joseph said, "Yeah. I'm one of them." Joseph said police brought him back to Los Angeles on a warrant for murder. Joseph said that a woman who was a "Black Stone" informed on him, but that she was not credible because she was a "dope head."
Joseph's gang expert testified that "East Coast Crips" was a gang in Los Angeles and Riverside and that "East Coast" referred to the area east of the 110 freeway.
The prosecution's gang expert testified "pushing lines" meant representing one's gang, including by committing crimes in rival territory.
Detective Garza removed Joseph from his cell and swabbed him for DNA. He told Joseph he wanted to talk to him not about the Ingraham case, but about "that kid you guys killed up there on 54th and Ninth Ave." The detective showed Joseph a picture of the silver convertible used in the Thomas killing and said the police had the car. After Detective Garza returned Joseph to the cell, Joseph made incriminating statements about the Thomas shooting. Joseph told the informant "they can't book me on that one" because "that was last year." Joseph said he hoped he was going home because "they ain't got nothing . . . . That gun, I burnt it." The informant asked Joseph about the car, and Joseph said that it "was a rental" and that it was not in his name. The informant asked whether the person who rented the car would implicate Joseph. Joseph said, "They don't even know me. . . . And if they did, that's my big homie . . . and he not snitching."
Joseph said he was "worried about 74th and Crenshaw . . . because everybody got booked . . . . And they was supposedly supposed to be telling." The informant asked Joseph whether he wore gloves when he "bust," and Joseph said, "I had a revolver."
When counsel for Joseph questioned the prosecution's gang expert, Joseph's gang expert, and Detective Garza, counsel tried to elicit testimony that someone in a jail cell with an older, tougher member of a rival gang would fear for his safety and, therefore, would exaggerate his street credentials and criminal activities. The trial court sustained the prosecutor's objections to four of those questions on the grounds they were irrelevant and called for speculation.
E. The Trial Court Admits Gang Evidence
The trial court granted Joseph's motion under Penal Code section 1109 to bifurcate the trial on the gang and gang-murder special circumstance allegations, but stated "gang evidence would be relevant with regard to motive, possibly I.D., and any type of bias or prejudice." The prosecution's gang expert, Detective Allen Hsiao, testified Joseph went by the monikers "Tiny Madd" and "Madd 4." Detective Hsiao described Joseph's three Van Ness Gangster Brims tattoos, including one with the letters "C" and "K," meaning "Crip Killer." He also testified Beamon and Bradley were members of the Van Ness Gangster Brims. Detective Hsiao testified the Thomas and Ingraham shootings occurred in territory claimed by the Rollin' 60's Neighborhood Crips, one of the Van Ness Gangster Brims' primary rivals.
In the first amended information the People alleged that Joseph committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members (Pen. Code, § 186.22, subd. (b)(1)(C)) and that he committed the offenses while he was an active participant in a criminal street gang and to further the activities of the gang (id., § 190.2, subd. (a)(22)). The People decided that, if the jury convicted Joseph on the murder counts, they would not pursue those allegations.
Over Joseph's objection, Detective Hsiao testified gang members bolstered their status "by contributing to the gang," including "committing dangerous acts," "defending the territory," and "shooting and killing someone in rival gang territory." Detective Hsiao stated cooperating with the police is looked down upon in gang culture and can bring negative consequences, including death.
Joseph also objected to evidence the People introduced from Joseph's social media accounts. This evidence included a photograph of Joseph displaying his gang tattoos and photographs of Joseph and other Van Ness Gangster Brims (including Beamon) throwing their gang's hand signs and disrespecting the hand signs of the Neighborhood Crips. Joseph used the name "Tiny Madd Napp Killa" on his social media accounts; according to Detective Hsiao, "Napp" was a derogatory term for the Neighborhood Crips, and "Killa" meant someone had "killed a Neighborhood Crip" or at least claimed "to have put in work against the Neighborhood Crips." Detective Hsiao testified it was common for a gang member to go into rival gang territory to challenge or "hit up" a person by asking them if they know anyone from a rival gang.
Martin Flores testified as a gang expert for the defense. He stated the Van Ness Gangster Brims and the Rollin' 60's claimed the neighborhood where Thomas was killed. Flores testified the location where Ingraham was killed was controlled by the Inglewood Family Gangster Bloods, not the Rollin 60's, whose territory was a few blocks away. According to Flores, someone who had a "Crip Killer" tattoo expressed disrespect for the Crips, but had not necessarily killed anyone. Flores also testified asking whether someone is from a rival gang was "hitting someone up" or "gangbanging," but asking whether someone knew someone from a rival gang was not.
F. The Jury Convicts Joseph of Murdering Thomas and Ingraham
A jury convicted Joseph on two counts of second degree murder (Pen. Code, § 187, subd. (a)(1)) and on each count found true an allegation he personally and intentionally discharged a firearm causing great bodily injury or death, within the meaning of Penal Code section 12022.53, subdivision (d). The jury found not true the special circumstance allegation that, within the meaning of Penal Code section 190.2, subdivision (a)(3), Joseph committed more than one murder in the first or second degree.
The trial court sentenced Joseph to two consecutive prison terms of 15 years to life on the murder convictions, plus two consecutive terms of 25 years to life for the firearm enhancements, for an aggregate prison term of 80 years to life. Joseph timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
Under Evidence Code section 352, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (See People v. Chhoun (2021) 11 Cal.5th 1, 29 (Chhoun) ["'The "prejudice" which section 352 seeks to avoid is that which "'"uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues."'"'"].) We review a trial court's evidentiary rulings under Evidence Code section 352 for abuse of discretion. (People v. Mataele (2022) 13 Cal.5th 372, 413; People v. Linton (2013) 56 Cal.4th 1146, 1181.) "A trial court's decision to admit or exclude evidence '"'will not be disturbed unless there is a showing that the trial court acted in an arbitrary, capricious, or absurd manner resulting in a miscarriage of justice.'"'" (Mataele, at pp. 413-414.)
B. The Trial Court Did Not Abuse Its Discretion or Violate Joseph's Constitutional Rights in Admitting Gang Evidence
Joseph argues the trial court erred in admitting "an excessive amount of gang evidence" that "was extremely prejudicial but had minimal probative value to prove [Joseph's] motive to kill the victims, because the evidence that the deadly shootings were gang-related was very weak." The People argue that "there was substantial, reliable evidence of gang involvement and motivation" and that the "evidence was admissible for the limited and permissible purpose of establishing [Joseph's] motive for committing both murders" and "to explain Dotie's fear of testifying."
"The People are generally entitled to introduce evidence of a defendant's gang affiliation and activity if it is relevant to the charged offense." (Chhoun, supra, 11 Cal.5th at p. 31; see People v. Huynh (2021) 65 Cal.App.5th 969, 980 ["'"Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related."'"].) "'Evidence of the defendant's gang affiliation-including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like-can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.'" (Chhoun, at p. 31; see People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) "Even when it is relevant, however, 'courts should carefully scrutinize evidence of a defendant's gang membership because such evidence "creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged."'" (Chhoun, at p. 31; see People v. Melendez (2016) 2 Cal.5th 1, 28-29.)
The gang evidence was relevant to prove why Joseph shot Thomas and Ingraham because, contrary to Joseph's contention, there was significant evidence the two shootings were gang-related. Joseph told a police officer he was a member of the Van Ness Gangster Brims and told the informant he was one of the members of that gang committing crimes in rival territory. Both Bradley (Joseph's accomplice in the Thomas shooting) and Beamon (Joseph's accomplice in the Ingraham shooting) were members of the Van Ness Gangster Brims. Both Thomas and Ingraham were shot in rival gang territory. Before Joseph shot Ingraham, he asked Ingraham whether he knew "any 60's around the neighborhood."
Detective Hsiao's testimony gang members bolstered their reputation by committing violent acts against victims in rival gang territory was relevant to explain why Joseph shot two strangers who had done nothing to provoke him. (See People v. Ward (2005) 36 Cal.4th 186, 210 [expert gang testimony is admissible to explain the "defendant's motivation for entering rival gang territory and his likely reaction to language or actions he perceived as gang challenges"].) The photographs of Joseph showing his Van Ness Gangster Brims tattoos, throwing gang signs, and posing with other members of the Van Ness Gangster Brims were relevant to prove Joseph's allegiance to the gang. And the photographs of Joseph and another member of the Van Ness Gangster Brims disrespecting the gang signs of their rival, the Neighborhood Crips, was probative of Joseph's motive for venturing into the territory of the Rollin' 60's Neighborhood Crips, issuing a gang challenge, and shooting Ingraham. As the prosecutor stated in closing argument, Joseph's gang affiliation was relevant "to get into his mental state. What's his motivation? . . . [I]f you find in this evidence that the defendant did have a motive, then that helps you. It helps you in your determination of whether he's guilty of these crimes." (See People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 773 ["Evidence about gang activity, and the defendants' gang membership, was highly relevant given the apparent gang-related motivation for the murders."]; People v. Duong (2020) 10 Cal.5th 36, 64 ["[T]here was little question that evidence of defendant's gang membership was relevant to motive. Indeed, without such evidence, the shooting would have been difficult to explain"]; People v. Huynh, supra, 65 Cal.App.5th at pp. 980-981 ["Common gang motives include 'criminal activity against a rival or a suspected rival; a battle over gang territory; retaliation for a prior attack upon a gang member; intimidation preceded by gang signs and identification; or bolstering one's reputation within the gang.'" (citations omitted)].)
The gang evidence was also relevant to explain why Dotie was reluctant to testify against Joseph. Dotie said that she feared for her safety and that she might be killed for testifying. (See People v. Flinner (2020) 10 Cal.5th 686, 724 [it was "well within the discretion of the trial court" to admit evidence explaining why a witness was afraid to testify]; People v. Nguyen (2015) 61 Cal.4th 1015, 1035 [expert may testify "that witnesses to a gang-related crime are usually reluctant to testify because of fear of retaliation"]; People v. Merriman (2014) 60 Cal.4th 1, 86 ["'[e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness," as is an "explanation of the basis for the witness's fear'"].)
Joseph cites People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), where this court stated 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. 231.) In Albarran there was "nothing inherent in the facts of the shooting to suggest any specific gang motive." (Id. at p. 227.) Although the defendant was a gang member, the shooting occurred at a birthday party, and the prosecution's gang expert testified he did not know of any rivalry between the shooter's gang and the victim's gang. (Id. at pp. 221, 227.) Yet, the trial court admitted "extremely inflammatory gang evidence" unrelated to the charges against the defendant, including of crimes committed by other members of the defendant's gang and of graffiti threatening to kill police officers. (Id. at pp. 227-228.) Joseph asserts that the gang evidence introduced in his trial was similarly unrelated to the charges against him because there was no evidence either victim was a gang member, and that, as in Albarran, there was no evidence the perpetrator announced he was from a gang, no evidence the gang claimed responsibility, and no evidence the perpetrator gained status as a result of the killings.
Albarran is distinguishable. First, in Joseph's trial the court did not admit evidence about unrelated crimes committed by other members of the Van Ness Gangster Brims. Second, as discussed, unlike in Albarran, there was evidence here both crimes were gang-motivated. Both shootings took place in rival gang territory; Joseph committed each crime with an accomplice from the Van Ness Gangster Brims; before shooting Ingraham, Joseph issued a gang challenge. Joseph argues that there was no evidence he said anything to Thomas before shooting him and that Joseph's question to Ingraham was not a true gang challenge because he asked only whether Ingraham knew any Rollin' 60's gang members, not whether Ingraham was a member of the Rollin' 60's gang. But just because the evidence did not include every possible indicium of a gang shooting did not mean there was not sufficient evidence of gang involvement to make the gang evidence relevant.
Joseph also argues the gang evidence's "minimal relevance" was substantially outweighed by its undue prejudice. While the gang evidence was probative and damaging, it was not unduly prejudicial. (See Chhoun, supra, 11 Cal.5th at p. 29 ["'"'In applying section 352, "prejudicial" is not synonymous with "damaging."'"'"]; People v. Cortez (2016) 63 Cal.4th 101, 128-129 ["relevant, probative evidence" is not prejudicial under Evidence Code section 352 unless it is "'"unduly prejudicial"'"].) The trial court "carefully weighed the probative value of the evidence against the potential for undue prejudice" (Chhoun, at p. 33) and limited the gang evidence the jury heard. When the prosecutor asked her gang expert whether reputation was "something that's important to a gang member," the court sustained counsel for Joseph's relevance objection, called the attorneys to a sidebar conference, told the prosecutor the court would allow gang evidence regarding motive, but warned the prosecutor not to "go too far afield." Later, when the prosecutor asked whether, when "a gang member goes into rival gang territory," there were "any expectations of him as a gang member . . . of what he should or should not do in rival gang territory," the court sustained its own objection to the question.
In addition, the prejudicial effect of the gang evidence Joseph challenges was mitigated by the fact the jury heard a considerable amount of evidence about gangs without objection. Joseph objected to some of Detective Hsiao's testimony (about Van Ness Gangster Brims tattoos, gang monikers, and how gang members committed crimes to bolster their reputations in the gang), and he objected to social media evidence connecting him to the Van Ness Gangster Brims. But Joseph did not object to the admission of his statement to the police that he was a member of the Van Ness Gangster Brims or his statements to the confidential informant that he was one of the "youngsters" from the gang who were "pushing lines" and that his accomplice in the Thomas shooting was Joseph's "big homie." Nor did Joseph object to Detective Hsiao's testimony that Joseph had gang monikers and tattoos or that Joseph's alleged accomplices in both shootings were also members of the Van Ness Gangster Brims. (See People v. Valdez (2012) 55 Cal.4th 82, 134 ["[g]iven the extensive other evidence of defendant's . . . gang membership and of [the gang's] activities, defendant's claim that the handful of gang-related exhibits he now challenges created 'a substantial danger of undue prejudice' within the meaning of Evidence Code section 352 . . . is untenable"].)
Any prejudice was further mitigated by the trial court's instruction to the jury that it could "consider evidence of gang activity only for the limited purpose of deciding whether the defendant had a motive to commit the crimes charged or identification or bias." The court also told the jury, "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." (See Chhoun, supra, 11 Cal.5th at p. 33 [probative value of gang evidence was not substantially outweighed by a substantial danger of undue prejudice where the court "took steps to minimize the subject areas of expert testimony and instructed that the evidence could not be used as proof of defendant's character"].) We presume the jury followed the court's limiting instruction. (See People v. Franklin (2016) 248 Cal.App.4th 938, 953.) Indeed, the prosecutor referred to the limiting instruction during closing argument, stating the gang evidence was "not put before you . . . so that you could . . . think that he's a bad person or because it has any other relevance other than to get into his mental state."
Moreover, any error in admitting gang evidence was harmless because it was not reasonably probable Joseph would have achieved a more favorable result had the trial court excluded the evidence. (See People v. Partida (2005) 37 Cal.4th 428, 439 [error under Evidence Code section 352 in admitting gang evidence is subject to harmless error review under People v. Watson (1956) 46 Cal.2d 818, 836].) Even without the gang evidence to which Joseph objected, there was overwhelming evidence of Joseph's guilt, including eyewitness testimony, video surveillance, cell phone records, and Joseph's admissions to the confidential informant. (See People v. Session (2023) 93 Cal.App.5th 723, 735 [even if the trial court had excluded gang evidence, there was "no reasonable probability . . . any reasonable jury would have reached a different outcome," given the overwhelming evidence of guilt].)
Finally, the admission of gang evidence did not violate Joseph's constitutional due process right to a fundamentally fair trial. "'"The 'routine application of state evidentiary law does not implicate [a] defendant's constitutional rights.'"'" (People v. Thompson (2016) 1 Cal.5th 1043, 1116.) To meet the "high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial," Joseph must show "'there are no permissible inferences the jury may draw from the evidence.'" (Albarran, supra, 149 Cal.App.4th at p. 229.) Because, as discussed, the gang evidence was relevant to explain Joseph's motive for shooting Thomas and Ingraham and to explain Dotie's reluctance to testify, and because its probative value was not substantially outweighed by a substantial danger of undue prejudice, its admission did not violate Joseph's constitutional rights. (See People v. Sattiewhite (2014) 59 Cal.4th 446, 472 ["Because the trial court did not abuse its discretion in finding the [evidence] relevant and not unduly prejudicial, there was no violation of defendant's constitutional rights."].)
C. The Trial Court Did Not Commit Prejudicial Error or Violate Joseph's Constitutional Rights in Excluding Testimony Joseph May Have Boasted to the Confidential Informant
Joseph argues the trial court abused its discretion in preventing him from eliciting testimony "to support an inference that [he] was simply exaggerating his street credentials because he feared he could be in danger from the Perkins agent." Any error in excluding this testimony, however, was harmless.
Counsel for Joseph tried to question three different witnesses about the possibility Joseph may have been boasting about his criminal conduct because he was afraid of the confidential informant, who was older and larger than Joseph and claimed to be a member of a rival gang. The first attempt was after Detective Hsiao on cross-examination agreed the East Coast Crips and the Van Ness Gangster Brims were rival gangs. Counsel for Joseph asked Detective Hsiao the following hypothetical question: "So if an 18-year-old Van Ness Brim gang member shared a jail cell with an older . . . and larger East Coast Crip gang member, would the Van Ness Brim gang member have reason to be concerned for their safety?" The prosecutor objected the question called for speculation, and the trial court sustained the objection. The second attempt occurred when counsel for Joseph asked Detective Garza a similar question on cross- examination: "Would you agree that, if [the confidential informant] identifies themselves as being from a rival gang, that the other person might be concerned for their safety?" The court again sustained the prosecution's speculation objection.
Detective Garza testified the informant was approximately 5 feet 9 inches tall and weighed over 200 pounds.
Whether Detective Garza and Detective Hsiao had sufficient foundation to answer these questions is debatable. Although Detective Garza did not testify as an expert witness, he had been a police officer for 25 years and was familiar with Perkins operations. Detective Hsiao, on the other hand, testified as an expert on gangs and could give an opinion based on his "special knowledge, skill, experience, training, and education." (Evid. Code § 801, subd. (b); see People v. Huynh, supra, 65 Cal.App.5th at p. 981 ["A gang expert can offer an opinion based on a hypothetical situation if the facts within the hypothetical are supported by the evidence at trial."].) Detective Hsiao testified the Van Ness Gangster Brims and East Coast Neighborhood Crips were rivals, but counsel for Joseph did not specifically lay a foundation regarding the detective's knowledge about violence between rival gang members in jail cells (although it may not have been all that difficult for counsel to have done so). (See People v. DeHoyos (2013) 57 Cal.4th 79, 128 ["'"The competency of an expert is relative to the topic and fields of knowledge about which the person is asked to make a statement."'"].)
The third attempt was when the trial court sustained objections to two questions counsel for Joseph asked Flores, Joseph's gang expert. Counsel for Joseph asked Flores, "Did it surprise you that the Perkins agent identified himself as an East Coast Crip?" The court sustained the prosecutor's relevance objection. Next, counsel for Joseph asked Flores, "What effect would it have if an East Coast Crip was sharing a cell . . . with a Van Ness gangster?" The court sustained the prosecutor's speculation objection. Counsel for Joseph, however, established Flores, like Detective Hsiao, was an expert on the dynamics of gang rivalries, although counsel did not specifically establish Flores's expertise extended to the potential effects of placing rival gang members in the same cell.
Any error in sustaining the prosecutor's objections, however, was harmless because counsel for Joseph was able to elicit much of the desired testimony from Flores. After the court sustained the objection to the question about the "effect" of rival gang members sharing a cell, counsel for Joseph asked Flores, "Are rival gang members . . . at risk from rival gangs?" Flores answered, "Yes." Counsel for Joseph followed up by asking, "Do they ever assault each other in jail cells?" Flores answered, "It can happen, yes." In addition, the jury heard evidence the confidential informant, who weighed over 200 pounds, told Joseph that he was 47 years old, that he had served 14 years in prison, and that he was from a rival gang. The jury also heard evidence gang members sometimes assault rival gang members in jail cells. This evidence allowed counsel for Joseph to argue in closing that, when Joseph spoke to the confidential informant, he exaggerated his criminal acts because the informant was a "much older man, much larger man, from a rival gang" and that Joseph "was scared." (See People v. Kaufman (2017) 17 Cal.App.5th 370, 393 ["any error was harmless in light of the subsequent admission of the same evidence"].)
Finally, the trial court's evidentiary rulings did not violate Joseph's constitutional right to present a defense, to compulsory process, or to confrontation. (See People v. Wilson (2008) 44 Cal.4th 758, 794 ["'Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'"]; People v. Thornton (2007) 41 Cal.4th 391, 452-453 ["short of a total preclusion of defendant's ability to present a mitigating case to the trier of fact, no due process violation occurs"]; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1064 ["'excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense'"].) Because the trial court did not prevent Joseph from introducing evidence gang members sometimes assaulted their rivals in jail cells, the court did not violate Joseph's constitutional rights.
Joseph also argues the cumulative prejudice of the alleged errors in admitting gang evidence and excluding testimony suggesting Joseph boasted to the confidential informant requires reversal. But because there was no prejudicial error, there was no cumulative prejudice. (See People v. Cordova (2015) 62 Cal.4th 104, 150 [cumulative effect of asserted errors was not prejudicial where "there was no error to accumulate"]; People v. DeHoyos, supra, 57 Cal.4th at p. 155 [where "'"each error or possible error [is] harmless when considered separately . . . we likewise conclude that their cumulative effect does not warrant reversal"'"].)
DISPOSITION
The judgment is affirmed.
We concur: FEUER, J., MARTINEZ, J.