Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach, Judge.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and William M. Wood, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
Defendant Martin Angelo Juarez appeals his conviction of six counts of attempted murder and other offenses.
PROCEDURAL HISTORY
Defendant was charged with six counts of premeditated attempted murder (Pen. Code, §§ 664, 187; counts 1, 2, 3, 4, 5, 8), discharging a firearm at an inhabited dwelling (§ 246; count 6), and possession of ammunition by a person prohibited from possessing a firearm (§ 12316, subd. (b)(1); count 7). The information alleged that all of the offenses were committed for the benefit of, at the direction of and in association with a criminal street gang. (§ 186.22, subd. (b).) As to the attempted murder counts, the information alleged that defendant personally discharged a firearm causing great bodily injury or death. (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8).) As to the charge of discharging a firearm at an inhabited dwelling, the information alleged that defendant personally used a firearm, within the meaning of sections 667 and 1192.7, subdivision (c)(8). Finally, the information alleged one prior serious felony offense, within the meaning of section 667, subdivisions (a), (c) and (e)(1) and section 1170.12, subdivision (c)(1).
All statutory citations refer to the Penal Code unless another code is specified.
An allegation that defendant personally discharged a firearm within the meaning of section 12022.53, subdivision (d) and section 1192.7, subdivision (c)(8) as to count 6 was stricken.
A jury convicted defendant on all counts as charged, except for counts 4 and 8. As to those counts, the jury convicted defendant of attempted murder, but found that the crimes were not willful, premeditated and deliberate. The jury found all enhancing allegations true. In a separate court trial, the court found the prior conviction allegation true.
The court sentenced defendant to a total determinate term of 33 years eight months, plus an indeterminate term of 150 years to life, plus an indeterminate term of life in prison with a minimum parole eligibility period of 14 years.
Defendant filed a timely notice of appeal.
FACTS
On the evening of May 12, 2002, a number of people were gathered at the Pena family’s house on Glendale Avenue in Riverside, celebrating a victory by the Los Angeles Lakers. Most of the people were in front of the house or in the garage; at least one person was inside the house. The Pena family was originally from Corona, and the eldest son, Ruben Diaz, had previously belonged to a Corona gang. At least two other people who were present either were or had been members of a Corona gang, Corona Varrio Locos or CVL.
At approximately 9:00 p.m., defendant walked up the driveway and asked if he could join the party. According to Jose Pena and others, defendant was initially friendly and shook hands with the people around him. Manuel (last name unknown), a friend of Pena’s brother Ruben Diaz, told Jose to tell defendant he was not welcome. Defendant then asked, “Where are you guys from?” Someone answered, “Corona.” Defendant then identified himself as “Demon” from SRL, and said that the area was his neighborhood and that they did not belong there. He angrily repeated several times that he was Demon from SRL and that the neighborhood was his turf. Jose Pena responded that defendant was on their property and that he should leave.
Southside Riverside Locos or Sur Riva Locotes.
Defendant pulled a gun from his waistband and began firing. Jose Pena was hit in the abdomen by the first shot, although he did not realize it immediately. Jose and several other people ran into the garage as defendant continued shooting. Several people in the garage were shot. The people in the garage fled inside the house as defendant stood at the open garage door and continued firing. Jose called 911.
Jose Pena (count 1) was hospitalized for three months and was in a coma for a month. He had several surgeries, during which portions of his stomach and of his colon were removed. The bullet remained lodged in his lower back, and excessive movement could cause the bullet to migrate and damage his spine. The doctor who treated him said he would have died without medical treatment.
Michael Fierro (count 2) was in the garage when he was shot. A bullet entered the left side of his abdomen and exited from the right side. His right hand was shattered, possibly by the same bullet. Fierro lost a portion of his small intestine and had a pin placed in his injured hand. The doctor who treated him said that he would either have bled to death or died of peritonitis without medical treatment. Fierro heard the shooter yell “SRL” just before shooting him.
Mario Carrillo (count 3) was shot as he was running into the garage. The bullet entered his chest and exited through his back. Carrillo was hospitalized for a week. The injury was life-threatening.
Joanna Perez (count 4) was in the garage. She was grazed on the back of her head but received only a relatively minor injury. A doctor testified that if the bullet had been slightly lower, it would have caused paralysis or death.
Angel Pereyra (count 5) was standing next to Jose Pena when defendant started shooting. He dove under a van. He testified that defendant appeared to be aiming at Jose Pena and that defendant did not aim at him or fire any shots at him. He saw defendant run toward the garage and fire at people in the garage.
Angela Torres (count 8) was sitting in the garage when she heard the shots. When people ran into the garage, she got up to run but fell down. She saw the shooter near the entrance to the garage, firing. She was not shot.
Crime scene investigators did not find any shell casings at the scene. However, a copper casing and lead fragments were recovered from a wall inside the residence, which lined up with a bullet strike next to the front door. There were no bullet strikes inside the garage. The copper jacket most likely came from a Remington Peters .38 special or .357 magnum revolver cartridge.
During a search of defendant’s bedroom the day after the shooting, police discovered four Remington Peters .357 magnum cartridges on a shelf in the closet. One of the cartridges had a copper jacket with marked similarities to the copper jacket recovered from the wall at the crime scene. The other three cartridges were semi-wad-cutter rounds.
Some of the witnesses described the shooter as wearing a dark jacket and gloves. During the search of defendant’s bedroom, the police found a black jacket with a pair of brown gloves in the pocket. The gloves were sent to the lab for gunshot residue testing. Analysis revealed “highly specific” gunshot residue particles on the outside of the glove. The only sources of “highly specific” gunshot residue are a fireworks device which has not been present in California since the 1960’s and the primer material in cartridges. No gunshot residue was detected on defendant’s hands.
When defendant was questioned by the police, he denied any knowledge of the incident and of the cartridges found in his closet. He admitted that he had been involved with SRL and that his moniker was “Demon.” He stated that he was the only one in SRL with that moniker. He claimed he had stopped participating in gang activities some time before. At trial, he again admitted that he had previously been involved with SRL and that his moniker was Demon, but he claimed that he had had no involvement with the gang since his release from prison in 2001. He also admitted that he had fired the shots, but claimed it was self-defense. He testified that the situation became tense when one of the party guests said he was from CVL and began eyeing him in a hostile manner. Someone came at him with a broken bottle. The whole crowd then came toward him, and he saw someone take a handgun from his waistband. He shot to keep the crowd from advancing on him.
LEGAL ANALYSIS
ANY ERROR IN ADMITTING EVIDENCE IN VIOLATION OF MIRANDA WAS HARMLESS
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Defendant invoked his right to counsel during his interview with police, before he was booked into the jail. During the booking process, Corporal Koury asked defendant about his gang affiliation for classification, housing and security purposes within the jail. Defendant responded that SRL was his gang affiliation and that SRL stood for South Riverside Locos. He said that his gang moniker was Demon. He did not tell Koury that he was no longer actively involved with the gang. The prosecutor sought to present Koury’s testimony during his case-in-chief. Defendant objected, citing Miranda, supra,384 U.S. 436. The court ruled the testimony admissible, on the ground that the questions were routine booking questions not related to the charged offenses.
On appeal, the parties focus on whether Miranda applies to questions asked during booking for purely administrative purposes. We need not decide this issue, however, because even if defendant’s admission to Koury that he was affiliated with SRL was subject to Miranda and thus inadmissible, the error in permitting Koury’s testimony was harmless.
We evaluate error in the admission of a defendant’s pre-arrest statements under the “harmless beyond a reasonable doubt” standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (See People v. Johnson (1993) 6 Cal.4th 1, 32-33.) Under that standard, an error may be found harmless only when the reviewing court concludes beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. (Chapman, at p. 24.) Error in admitting a statement obtained in violation of Miranda is generally deemed harmless if there was other, properly admitted evidence which established the fact sought to be proven by means of the statement. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 60.)
Here, the prosecutor sought to prove through Koury’s testimony that defendant was an active member of SRL at the time of the shootings for the purpose of proving the gang enhancement allegations, as well as to bolster the identifications of defendant as the shooter.
As to the latter issue, any error was harmless because the evidence was simply overwhelming that defendant was the shooter. In addition to defendant’s own admission that he was the shooter, five of the victims picked him out of live lineups and two others identified him from photographs. Five witnesses heard the shooter identify himself as Demon from SRL. Defendant admitted, in his videotaped interview after his arrest, that his moniker was Demon and that he was the only member of SRL with that moniker. Koury’s testimony added nothing to this mountain of evidence.
Defendant contends that the admission of Koury’s testimony was prejudicial because the prosecutor relied on it to establish that defendant was an active member of SRL at the time of the shooting. He contends that because jurors were more likely to believe that an active gang member would have shot without provocation and were conversely less likely to believe that he acted in self-defense if he was an active gang member, Koury’s testimony undermined his self-defense theory. He asserts that Koury’s testimony supplied an otherwise missing link in the evidence, and that it therefore cannot be said beyond a reasonable doubt that the error was harmless.
The prosecutor argued to the court that defendant, in his police interview, claimed that he was no longer an active gang member and that the defense had emphasized the staleness of defendant’s admissions of membership in SRL during earlier police contacts. He stated that he needed to prove that defendant was in fact still an active member of SRL. As the prosecutor stated during his argument to the jury, however, active participation in a gang is not an element of the gang enhancement. Section 186.22, subdivision (b) provides for an enhanced sentence for “any person” who commits an offense “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” It contains no element of active participation. (§ 186.22, subd. (b)(1); In re Ramon T. (1997) 57 Cal.App.4th 201, 206-207.) Defendant did not object to Koury’s testimony on the ground that it was not relevant to the gang enhancement, however.
Koury’s testimony was not the only evidence that defendant was an active member of SRL, however. Indeed, it was not even the strongest evidence. At least five witnesses either testified in court or had told the police immediately after the incident that the shooter identified himself as Demon from SRL and claimed the neighborhood as his or as belonging to SRL, and that he then began shooting, without provocation and not in response to any threat. Based on the conduct these witnesses described, the gang expert opined that defendant was an active gang member because that conduct is consistent with gang-related crimes and turf-related gang crimes. In comparison to this evidence, defendant’s statement to Koury that his “affiliation” was SRL was of minor importance. It most certainly did not supply a “missing link” in the evidence, and any error in admitting her testimony was harmless beyond a reasonable doubt. (People v. Coffman and Marlow, supra, 31 Cal.4th at p. 60.)
Some witnesses were reluctant to testify or did not recall what the shooter did or said. At the time the incident was fresh, however, the witnesses who were in a position to see how the incident began all told the police essentially the same thing: Angel Pereyra told police on May 13, 2002, the day after the incident, that the shooter asked “them” where they were from, and that when someone responded “Corona,” defendant replied, “Well, this is SRL.” He then said, “Demon. You guys don’t need to be in my neighborhood.” Mario Carrillo told police, apparently on May 13, 2002, that the shooter said, “This hood is mine,” or “This is my hood.” Johnny Ray Gonzalez told police on the night of the shooting that the shooter said he was Demon from SRL and that Johnny and his friends did not belong in that neighborhood. Jesse Gonzalez told police on the night of the shooting that the shooter said, “I am Demon. This is SRL, my hood,” then started shooting.
DEFENDANT HAS NOT MET HIS BURDEN OF DEMONSTRATING PREJUDICE RESULTING FROM THE TRIAL COURT’S FAILURE TO EXERCISE ITS DISCRETION PURSUANT TO EVIDENCE CODE SECTION 352
In 1998, defendant was convicted of assault with a deadly weapon with a gang enhancement. During the incident, he and fellow gang members beat and kicked a young man and stabbed him with a screwdriver. They believed he was from a rival gang, but he apparently was not. During the assault they shouted “SRL” and shouted slurs against the rival gang. During the trial in this case, the prosecution’s gang expert testified in detail about that incident in support of his opinion that defendant was an active member of SRL. In his closing argument, the prosecutor used the incident as a predicate offense, to argue that SRL is a criminal street gang within the meaning of section 186.22.
“(e) As used in this chapter, ‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons[.] [¶] . . . [¶]
Before trial, when the prosecutor informed the court that he intended to use the 1998 assault conviction as a predicate offense to prove the gang enhancement, defendant objected on the basis of Evidence Code section 352. He argued that because there were numerous other crimes committed by SRL members available to prove the pattern of criminal gang activity, use of his prior conviction would be unduly inflammatory, particularly if the details of the offense were disclosed. In the alternative, he asked the court to “sanitize[]” the prior incident, i.e., to prevent the expert from testifying about the details of the assault.
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
During a lengthy discussion, the court acknowledged its discretion to limit the use of the prior conviction pursuant to Evidence Code section 352 in certain contexts, including the proposed admissibility of the evidence pursuant to Evidence Code section 1101, subdivision (b). The court ultimately ruled the conviction inadmissible under Evidence Code section 1101, subdivision (b). The court did allow the prosecutor to use the 1998 assault as a predicate offense, and did not limit the expert’s testimony concerning the offense in any way.
“Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).)
Defendant now contends that the trial court failed to recognize its discretion, under Evidence Code section 352, to exclude or limit the gang expert’s testimony concerning the prior assault conviction. He contends that the court’s failure to exercise that discretion when asked to do so was a prejudicial abuse of discretion because the evidence was inflammatory and undermined his defense, in that jurors would inevitably be disinclined to believe he acted in self-defense in the face of evidence that he participated in an unprovoked attack on the victim of the prior assault. The Attorney General contends that the entire colloquy demonstrates that the court was aware of its discretion under Evidence Code section 352 and that it exercised that discretion appropriately.
Expert opinion may be based on material that would not otherwise be admitted into evidence. (Evid. Code, § 801, subd. (b).) Because Evidence Code section 802 allows an expert witness to “‘state on direct examination the reasons for his opinion and the matter . . . upon which it is based,’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.] [¶] A trial court, however, ‘has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.’ [Citation.] A trial court also has discretion ‘to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein.’ [Citation.]” (People v. Gardeley (1996) 14 Cal.4th 605, 618-619.) “Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth. [Citation.] [¶] Sometimes a limiting instruction may not be enough. In such cases, Evidence Code section 352 authorizes the court to exclude from an expert's testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value. [Citation.]” (People v. Montiel (1993) 5 Cal.4th 877, 919, italics added; accord, People v. Bell (2007) 40 Cal.4th 582, 608.) Thus, on defendant’s timely objection on Evidence Code section 352 grounds, the court had an obligation to weigh the probative value of that hearsay evidence against its potential to inflame the jury or to cause it to judge defendant’s guilt of the current offenses based on his prior conduct.
We agree with defendant that the court failed to recognize that it could exercise discretion under Evidence Code section 352 to limit the expert witness’s testimony. In ruling on defendant’s objection to the use of the prior assault to prove the gang enhancement, the court stated, “I think one could argue that’s -- I was going to say the problem or the trouble with gang evidence, and specifically 186.22, [s]ubdivision (b), is it’s all prejudicial. I don’t care what comes in, it’s all prejudicial. . . . [¶] But the People are required to prove that these crimes were committed within the meaning of Penal Code [s]ection 186.22, [s]ubdivision (b). And, geez, I mean, oftentimes the defense objects because the officer is testifying about incidents that have previously occurred or situations that have occurred wherein there was no criminal filing or there was no conviction. And they are arguing, ‘How probative is that?’ Here we have a conviction and an admission to a gang allegation, which is extremely significant and probative. [¶] And I am not aware of any case law or authority that stands for the proposition that I can basically hog-tie or restrict or limit the gang expert’s testimony with respect to that issue. I mean, the case law that I am familiar with with [sic] regard to these issues basically holds for the proposition that a gang expert is entitled to testify with respect to any issue as -- even hearsay material, as long as it’s reliable. And certainly here when we have a conviction and an admission of a gang allegation, I don’t know how much more reliable that can get.”
The latter portion of the court’s statement makes it clear that the court did not believe that it had any discretion to limit the expert’s use of the prior incident, unless it found it to be unreliable. The court clearly did not believe that it had any authority to limit it or exclude the evidence for any of the reasons set forth in Evidence Code section 352—undue prejudice, confusing the issues, or misleading the jury. (Evid. Code, § 352.) The fact that the court was aware of its discretion under Evidence Code section 352 generally, or with respect to the use of the same evidence for purposes of Evidence Code section 1101, subdivision (b), does not, contrary to the Attorney General’s position, indicate that the court also recognized any Evidence Code section 352 discretion with respect to limiting the expert’s testimony. Nor does the fact that the court mentioned the probative value of the evidence for purposes of the expert’s testimony or the inherently prejudicial nature of gang evidence indicate an understanding that those factors applied to its decision in this instance.
Failure to exercise judicial discretion, when such an exercise is called for, is itself an abuse of discretion. (Truck Ins. Exchange v. Fireman’s Fund Ins. Co. (1992) 6 Cal.App.4th 1050, 1055.) We review a court’s failure to exercise its discretion under Evidence Code section 352 using the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Crandell (1988) 46 Cal.3d 833, 864-865; People v. Goodwillie (2007) 147 Cal.App.4th 695, 716 [error in failing to exercise discretion is reviewed under Watson if the error is not of constitutional dimension].) In this context, applying the Watson standard, we must affirm the judgment unless there is a reasonable probability that the outcome of the trial would have been more favorable to defendant if the court had exercised its discretion to preclude testimony concerning his prior assault conviction to prove the gang allegation. (People v. Crandell, supra, at pp. 864-866; People v. Goodwillie, supra, at pp. 716-718.)
Defendant argues that if the inflammatory evidence which “portrayed” him as having a propensity for unprovoked violence had been excluded, it is reasonably probable that the jury would have accepted his self-defense theory. He does not address the effect of the court’s instruction limiting the jury’s consideration of this evidence, however. As noted above, prejudice from inflammatory evidence admitted in the course of an expert’s testimony can be cured in most cases by an appropriate limiting instruction. (People v. Montiel, supra, 5 Cal.4th at p. 919.) Here, the court instructed the jury that it could use the “evidence of gang activity” only for certain purposes, and that it could not use that evidence to conclude that “defendant is a person of bad character or that he has a disposition to commit crime.” Jurors are presumed to follow instructions. (People v. Smith (2007) 40 Cal.4th 483, 517-518.) It is the defendant’s burden to demonstrate that the instruction was inadequate to prevent any prejudice from the court’s failure to exercise its discretion to exclude the evidence concerning the prior assault. (Id. at p. 518.) Defendant has not met this burden.
THE RECORD IS INSUFFICIENT TO PERMIT REVIEW OF DEFENDANT’S CLAIM OF PROSECUTORIAL MISCONDUCT
Defendant contends that the prosecutor committed prejudicial misconduct when he referred, in his closing argument, to evidence the prosecutor knew to be false. The defense forfeited review of the alleged misconduct by failing to make an adequate record for review.
“To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury.” (People v. Brown (2003) 31 Cal.4th 518, 553.) Here, defense counsel objected when the prosecutor referred to the evidence in question. However, the basis for his objection was not stated on the record but in an unreported sidebar conference. Defense counsel did not thereafter make a record of his objection. Because we have no record of the basis of the objection, review of this issue is forfeited. (Ibid.)
DISPOSITION
The judgment is affirmed.
We concur: Richli J., Gaut J.
“(f) As used in this chapter, ‘criminal street gang’ means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subds. (e), (f).)