Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA289013, Patricia M. Schnegg. Affirmed.
Lori E. Kantor, 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, Scott A. Taryle, Supervising Deputy Attorney General, Kenneth J. Kao and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
In a three-count information, appellant Michael Jurado was charged with second degree robbery in violation of Penal Code section 211 (count two) and carjacking in violation of section 215, subdivision (a) (count three). It was further alleged that he personally used a handgun. After a jury trial, appellant was found guilty of both counts, and the gun use allegation was found true.
Count one, charging kidnapping for carjacking in violation of section 209.5, subdivision (a), was set aside by the trial court pursuant to section 995.
Appellant was sentenced to 15 years imprisonment, consisting of the mid-term on count three, plus ten years for the gun enhancement. A sentence of one year (one-third the mid-term) on count two was stayed pursuant to section 654.
In his appeal, appellant contends the trial court (1) erroneously failed to instruct the jury concerning the penalty a prosecution witness faced had he not been offered use immunity and (2) admitted improper evidence of gang affiliation. We conclude there is no basis for reversal and affirm the judgment.
Pretrial Proceedings
Prior to trial, during the course of an Evidence Code section 402 hearing, the prosecution moved to allow inquiry into a statement allegedly made by appellant to the victim, John Charamonte. The prosecution expected Charamonte to testify that during the alleged robbery and carjacking, appellant asked Charamonte where he was “from.” Charamonte said “nowhere,” to which appellant responded, “‘Maravilla,’” which the victim understood to be a gang name. The prosecution contended the evidence was relevant to show the victim’s state of mind, specifically, his fear of appellant, who had identified himself as a gang member, in order to prove the fear element of robbery and carjacking. The court ruled the testimony would be admitted “solely for the purpose of showing [Charamonte’s] state of mind,” and that the jury would be so instructed.
Evidence at Trial
Charamonte testified under a grant of use immunity with respect to narcotics found in his car. He testified that he was the owner of a black Honda Civic automobile. In the early morning hours of August 21, 2005, he became lost while trying to get home to Covina from Whittier after a date. Charamonte spotted a motel near a freeway exit and decided to ask directions from the night clerk.
After Charamonte left his car and began walking toward the motel office, he heard a voice behind him say, “‘Hey, get back in the car,’” indicating the passenger side. As he turned, a man pointing a small chrome pistol approached him. The man had tattoos of horns on his head and “resemble[d]” appellant. In addition to the gun, appellant was carrying a laptop computer and case. Charamonte obeyed the instruction. Appellant got into the driver’s seat.
Charamonte later testified that the man was appellant, and defense counsel told the jury and the court there was no issue as to identity.
Once the two were in the car, appellant instructed Charamonte to put the laptop into the case. He then told Charamonte, “Give me everything you have.” Charamonte handed appellant his cell phone, watch, and the contents of his wallet -- five one-dollar bills. Charamonte tried not to look at appellant’s face during the encounter. Appellant asked Charamonte where he was “from.” Charamonte said “‘nowhere, just nowhere.’” Appellant said “‘Maravilla.’” Charamonte was not sure what that word meant but assumed it was a gang name.
Charamonte informed appellant how to start the Honda which was equipped with an antitheft device. Once the car started, appellant told Charamonte, “‘Get out now.’” Charamonte did so and, still in fear, ran toward the motel. As appellant turned the Honda toward the entrance to the motel parking lot, a police car pulled into the lot and turned on its flashing lights. Charamonte observed his Honda collide with another vehicle. He ran toward the police officer, yelling “‘That’s my car, I’m the owner,’” and told the police officer that he had been robbed at gunpoint and carjacked.
Charamonte admitted having pled guilty to 50 counts of vandalism in 2001 and said that he was not sure whether he was on probation for a misdemeanor at the time of the incident. He knew he was not supposed to use any controlled substance, but was not sure if this was a condition of probation. On the morning of the incident, he was arrested but never charged with any crime. He denied having used drugs on the day in question or having had anything to drink.
Joseph Sullivan testified he was driving his pick-up truck on Telegraph Road in Los Angeles at about 3:20 a.m. on August 21, 2005. A Honda Civic came out of a motel parking lot and collided with him. Someone got out of the car and ran away. Another man, who appeared to have gotten out of the passenger side, went toward a police officer. Later, the same man asked to use Sullivan’s cell phone.
Rex Yap, a uniformed Montebello police officer, testified he was cruising on Telegraph Road near the motel in a marked patrol vehicle on the day in question at around 3:20 a.m. He noticed a black Honda with its headlights on, parked facing a retaining wall in the back of the motel’s parking lot. He saw a man he later identified as Charamonte running from the passenger side of the vehicle. As this was an area where criminal activity often took place, Officer Yap became suspicious and activated his overhead flashing lights. The Honda began to drive away. Using his spot light, Officer Yap got a look at the driver as the Honda passed him. He identified the driver as appellant. Appellant was looking at Officer Yap through the side view mirror rather than watching where he was going. The Honda collided with a pickup truck as it left the driveway of the motel. By the time Officer Yap maneuvered his vehicle near the accident, appellant had exited the Honda and was running in a northwest direction toward a nearby iron fence.
Officer Yap first checked on Sullivan. He was then approached by Charamonte, who was crying and trembling. Charamonte blurted out “that guy just took my car” and also said his assailant had a gun. Officer Yap called in other units to secure a perimeter. Searching the iron fence near the motel, Officer Yap found a knife, a razor handle, and some cell phones. There was a picture of appellant on one of the cell phones. Officer Yap’s search of the Honda revealed a laptop computer, a pool stick, and a black pool stick case. There was a small bag of methamphetamine in the case. Charamonte initially denied that the pool stick and case were his, but eventually admitted ownership. Charamonte was placed under arrest.
Appellant was apprehended approximately two hours after the incident. A canine unit located him hiding in a nearby industrial building. Appellant had eight .25-caliber bullets, a cell phone, and a brown wallet in his pockets. Located nearby were a computer cable, a watch, five one-dollar bills, and three lottery tickets. No gun was recovered. Charamonte later identified the cell phone, the watch, and the one-dollar bills as his.
The defense called Detective Haydee Garcia and examined her concerning Charamonte’s original statement. Defense counsel also asked Detective Garcia about the meaning of the term “Maravilla.” Detective Garcia confirmed it was a gang name. Defense counsel asked if she found any information to “affiliate” appellant with Maravilla. Detective Garcia responded: “Not with Maravilla, no.” On cross-examination, the following exchange took place: “Q. [by the prosecutor]: Did you find any information that affiliated [appellant] with a gang. A. Yes. Q. And did you find a moniker, gang name, that he goes by? [Defense Counsel]: Objection. Relevancy. The Court: Overruled. Q. [by the prosecutor]: You can answer. A. Yes. Q. What’s his gang name? A. I believe it’s Worm. Q. Does he have any gang tattoos? [Defense Counsel]: Objection. Relevancy. The Court: Overruled. Q. [by the prosecutor]: You can answer. A. I didn’t see any gang tattoos. I saw other tattoos on him, but not, per se, gang. I just saw some of the ones that are visible.”
After Detective Garcia was dismissed, defense counsel stated outside the presence of the jury: “I want the record to be clear I have objected throughout to the gang officer.” The court responded that the reason the objection was overruled was that defense counsel “opened the door” by asking “whether or not [appellant] had a gang affiliation to Maravilla and [the officer] said [‘]not Maravilla.[’]” The court stated that when defense counsel asked “Did you have any evidence?” he “asked a question which [the court] basically told [the prosecutor] he could not ask.”
After the witness testimony was presented, the court took judicial notice and informed the jury of the fact that Charamonte had pleaded guilty to a misdemeanor charge and had been placed on probation from November 17, 2003 to November 16, 2005. Defense counsel asked the court to also take judicial notice that the maximum penalty for the crime of possession of methamphetamine is three years. The court refused, stating that because there was no evidence that Charamonte was familiar with the penalty, the information was irrelevant.
Instructions and Argument
The court instructed the jury that “evidence of alleged gang membership was introduced solely for the purpose of its possible effect on [Charamonte’s] state of mind at the time of the incident. Such evidence, if believed, shall not be considered for any purpose except the limited purpose for which it was admitted.” The court further informed the jurors that in determining the believability of a witness, they could consider “past criminal conduct of a witness amounting to a misdemeanor[] [a]nd whether the witness is testifying under [a] grant of immunity.”
The prosecution argued that the statement made concerning appellant’s gang membership established that Charamonte was fearful at the time of the robbery and carjacking. He also referred to the statement concerning gang membership to explain why Charamonte was reluctant to positively identify appellant at the preliminary hearing. Later, the prosecution stated that Detective Garcia’s testimony that appellant was a gang member had “corroborate[d] what [Charamonte] said about [appellant] speaking kind of gang lingo.”
DISCUSSION
I
Immunity Instruction
As discussed, the jury was informed that Charamonte’s testimony was under a grant of use immunity with respect to the methamphetamine found in his car. The trial court instructed the jury that it could consider that fact in determining his believability. Appellant contends that the jury should also have been informed of the maximum penalty for possession of methamphetamine.
The only authority cited by appellant to support the proposition that jurors should be informed of the potential term of the crime for which a witness has received use immunity is People v. Ervin (2000) 22 Cal.4th 48. The defendant there contended that the testimony of a witness who received $700 for food and lodging from authorities, as well as reduced charges or “‘pardons’” for his own criminal conduct, should not have been admitted. (Id. at pp. 85-86.) The court held that to the extent the defendant made no objection at trial on the ground that undue benefits had been provided, the point was waived and that in any event, “current case law permits giving benefits, either financial or in the form of reduced sentences, to witnesses or informants to secure their truthful testimony, provided those benefits are disclosed to the defense for impeachment purposes.” (Id. at p. 85.) The court did not discuss the specific charges the witness potentially faced, and nothing in the Ervin holding suggests that the rule requiring disclosure of benefits received by a witness mandates informing the jury of the potential sentence avoided by the witness. On the other hand, several courts, including this one, have held that the language read to the jury here concerning credibility is the appropriate instruction where a witness testifies under a grant of use immunity. (People v. Hampton (1999) 73 Cal.App.4th 710, 721-724; People v. Echevarria (1992) 11 Cal.App.4th 444, 449-451; see People v. Hunter (1989) 49 Cal.3d 957, 977-978.) As appellant provides no rationale for expanding the instruction approved in such cases and no authority to support the giving of a broader instruction, we find no basis for his claim of error.
Appellant alternatively contends his “right to impeach Charamonte with the benefits he received in exchange for his testimony was improperly compromised and constrained . . . .” Defense counsel’s request for judicial notice concerning the penalty for methamphetamine possession came after Charamonte had been dismissed as a witness. During his cross-examination of Charamonte, counsel never attempted to ask him whether he was aware of the penalty. As the trial court noted, the lack of evidence that Charamonte was aware of the penalty meant there was no factual basis for believing that the length of the potential sentence might have influenced his testimony.
II
Evidence of Gang Membership
Appellant contends the trial court erred in permitting Detective Garcia to testify that appellant was a member of gang other than Maravilla and to inform the jury of his gang nickname.
The general rule is that “gang evidence is inadmissible if introduced only to ‘show a defendant’s criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.]’” (People v. Avitia (2005) 127 Cal.App.4th 185, 192, quoting People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) In cases not involving a gang enhancement, “it has been recognized that ‘evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.]’” (People v. Avitia, supra, 127 Cal.App.4th at p. 192, quoting People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) “[E]ven where gang membership is relevant, because it may have a highly inflammatory impact on the jury[,] trial courts should carefully scrutinize such evidence before admitting it.” (People v. Williams (1997) 16 Cal.4th 153, 193.)
Appellant does not contend that the court erred in permitting Charamonte to testify that appellant spoke of membership in “Maravilla” during the incident. He argues only that the further testimony from Detective Garcia supporting appellant’s membership in some other gang and appellant’s gang nickname was inappropriate.
A verdict or judgment cannot be set aside due to the erroneous admission of evidence in the absence of any indication on the record that a specific objection to the evidence was raised or a motion to strike was made. (Evid. Code § 353; People v. Demetrulias (2006) 39 Cal.4th 1, 20-22; see People ex rel. Dept. of Public Works v. Alexander (1963) 212 Cal.App.2d 84, 98 [“The general principle is well established that evidence which is technically incompetent and immaterial under the exclusionary rules, if offered and received without proper objection or motion to strike, may be considered in support of a judgment.”].) Here, the record reflects that after eliciting from Detective Garcia that she had no information to suggest appellant was affiliated with Maravilla, defense counsel failed to object when the prosecutor asked whether Detective Garcia had information that appellant was affiliated with another gang. Nor was a motion made to strike the testimony after the answer was received. Defense counsel attempted to rectify the oversight by stating after the witness was dismissed that the record should reflect he had “objected throughout.” But where an objection is not made “at the earliest opportunity, i.e., before the improper question is answered, or, if this is not feasible, by motion to strike immediately thereafter,” the objection is forfeited for purposes of appeal. (3 Witkin, Calif. Evidence (4th ed. 2000) Presentation at Trial, § 372, p. 461; cf. People v. Perry (1972) 7 Cal.3d 756, 781, overruled in part on another ground in People v. Green (1980) 27 Cal.3d 1, [“[w]hen the nature of a question indicates that the evidence sought is inadmissible,” a subsequent motion to strike is not sufficient to preserve the issue for appeal in the absence of an immediate objection].)
Defense counsel did raise a timely objection to the question whether appellant had a gang nickname. Evidence that appellant had a gang nickname does not appear to be relevant to any issue in the case and, under the rule discussed above, should not have been admitted. But the erroneous admission of gang evidence -- or any improperly admitted evidence -- requires reversal only “if it is reasonably probable that [the defendant] would have obtained a more favorable result had the evidence been excluded.” (People v. Avitia, supra, 127 Cal.App.4th at p. 194.) Here, there could have been no prejudice. The jury had already been told that appellant had identified himself as a member of a gang to Charamonte. It was also aware, due to defense counsel’s failure to object to the prior question, that Detective Garcia believed appellant was a member of a gang. The unremarkable fact that he had a gang nickname could not have influenced the jury’s decision, particularly in light of the instruction to use evidence of gang membership only for the limited purpose of establishing Charamonte’s state of mind. (See People v. Van Winkle (1999) 75 Cal.App.4th 133, 148 [juries are presumed to have followed the instructions given].)
Even without the prosecutor’s questioning, the jury might well have drawn an inference of alternative gang membership from Detective Garcia’s response -- “Not with Maravilla, no” -- to defense counsel’s question whether there was “any information to affiliate [appellant] with Maravilla.”
Moreover, the evidence supporting the guilty verdict was overwhelming and uncontradicted. Defense counsel tried to undermine Charamonte’s testimony by suggesting in his opening and closing statements that Charamonte might have been trying to cover up a drug deal with appellant. But there was no evidence to support that allegation. Charamonte’s testimony of being a victim of armed robbery and carjacking was corroborated by the observations of the other witnesses, who saw him running from the car and heard his excited utterances, and by the physical evidence. Officer Yap recovered a cell phone with appellant’s picture on it near a fence appellant had climbed in his escape attempt. Appellant was found hiding in a nearby building with bullets fitting a small handgun, as well as Charamonte’s watch and cell phone, in his pockets. Although defense counsel called Detective Garcia in an attempt to show that Charamonte had changed his story over time, no significant discrepancies were uncovered between Charamonte’s original statement to the police and his trial testimony. Accordingly, regardless of whether Detective Garcia’s responses to the prosecution’s gang questions were erroneously admitted, their admission provides no basis for overturning the jury’s verdict.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J. WILLHITE, J.
Unless otherwise specified, statutory references herein are to the Penal Code.