Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CF2812, Gary S. Paer, Judge.
Sharon M. Jones, 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, Assistant Attorney General, Steve Oetting and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
A jury convicted Chris Silva Martinez of three counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a) [counts 1-3]) and one count of possession of a firearm by a felon (id., § 12021, subd. (a)(1) [count 4]). The jury found true the special allegations Martinez inflicted great bodily injury and personally discharged a firearm causing great bodily injury in committing count 1 (id., §§ 12022.53, subd. (d), 12022.7, subd. (a)), acted with willful premeditation and deliberation in committing counts 2 and 3 (id., § 664, subd. (a)), and personally discharged a firearm while committing counts 2 and 3 (id., § 12022.53, subd. (c)). The trial court sentenced Martinez to a total prison term of seven years with a consecutive indeterminate sentence of 25 years to life.
Martinez contends: (1) the trial court erred by permitting a prosecution gang expert to testify on “tagging crews” and “tag banging crews”; (2) the trial court erred by failing sua sponte to give the jury an instruction based on Penal Code section 1097; and (3) the use of CALCRIM Nos. 603 and 604 intruded into the jury’s deliberative process, thereby depriving him of his constitutional rights of due process and trial by jury. We reject these contentions and affirm.
Facts
We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)
I. The Crimes
During the afternoon of July 20, 2005, Alex Arcos was standing with his friend Daniel Garcia outside of Arcos’s house on Stanford Street in Santa Ana. A blue, four-door Toyota Corolla with tinted windows and four people inside drove up in front of the house and stopped. Baldemar Ramos, who had been driving, stepped out of the car from the driver’s door, and Martinez stepped out of the car from the rear passenger side door. Martinez and Ramos asked Arcos and Garcia where they were from. Arcos and Garcia replied saying, “what’s the problem?” and “[w]hat’s the beef?”
Arcos, realizing he was being “hit-up,” said, “I don’t bang . . . . What are you looking for? You looking for problems[?]” Martinez and Ramos responded, “oh, so you guys want to beef? You want to get down? . . . [Y]ou guys are looking for problems.”
After hearing the commotion, Arcos’s mother, Rosa Gutierrez, came outside and threatened to call the police. Martinez and Ramos returned to the car and drove away.
During the confrontation, Ricardo Gutierrez was at the front door of the house while his brother Saul Gutierrez was inside sleeping. After Martinez and Ramos drove off, Ricardo Gutierrez awakened his brother, and told him “something is going to happen” and to meet him at Garcia’s house. Ricardo Gutierrez then joined Arcos and Garcia in the driveway of Garcia’s house, which was just around the corner.
Martinez was angry over the confrontation and had Ramos drive to a house where Martinez frequently stayed. After Ramos drove into the driveway, Martinez told him to “wait up,” then quickly got out of the car and went inside the house. When Martinez returned to the car a few minutes later, wearing a hat and a different shirt, he told Ramos, “[l]et’s go back, let’s go back.” Ramos drove back to the area of Arcos’s home.
While standing with Garcia and Ricardo Gutierrez in the driveway of Garcia’s house, Arcos saw the same blue Toyota Corolla drive slowly past them. About 10 minutes had elapsed since the prior confrontation. The car made a U-turn, and came to a stop in the middle of the street in front of the Garcia house. Ramos stepped out of the car from the driver’s door and yelled out, “SMS,” the short name for a tag banging group (defined in the next part) called “Still Mobbing the Streets.” Martinez stepped out of the car from the rear passenger side door. Both Ramos and Martinez started screaming, “[y]ou guys do want problems.” Garcia became angry and started swearing at Ramos and Martinez. As Arcos, Garcia, and Ricardo Gutierrez walked toward the car, Saul Gutierrez arrived. Martinez yelled, “so you want to play,” pointed a gun in their direction, and fired. The first shot misfired, and only smoke came from the barrel. Martinez looked at the gun, then fired it four or five more times.
Martinez fired first in the direction of Garcia and Ricardo Gutierrez, who tripped and fell over each other trying to run away, and then fired in the direction of Arcos and Saul Gutierrez. As soon as the shooting was over, Ramos and Martinez got back in the blue Toyota Corolla and sped away.
Saul Gutierrez had been shot by a bullet entering his arm near his right elbow. The bullet had exited his arm and lodged in the right side of his torso. Arcos helped Saul Gutierrez into Garcia’s house, and Ricardo Gutierrez called 911. Police and paramedics arrived, and Saul Gutierrez was transported to a hospital where the bullet was surgically removed.
The Arcos and Gutierrez families moved out of the house on Stanford Street about three months after the shooting. About one month later, Saul Gutierrez visited the vacant house and noticed it had been vandalized and “tagged” with SMS graffiti from the floor to ceiling on every wall.
II. Expert Testimony on Tagging Crews and Tag Banging Crews
Detective Matthew McLeod of the Santa Ana Police Department investigations section testified at trial as an expert on tagging crews and tag banging crews, such as SMS. He defined a tagging crew is a close-knit group of two to 60 people who band together to commit acts of graffiti and vandalism. A tag banging crew, he explained, also uses graffiti, but is more violent than a tagging crew. Unlike tagging crews, tag banging crews claim territories and maintain rivalries with tagging crews and other tag banging crews.
McLeod testified that SMS started as a tagging crew but by July 2005 had evolved into “being more of a tag banging [crew].” SMS had 10 to 15 active members, claimed an area around Windsor Park in Santa Ana, and maintained rivalries and alliances with other tag banging crews in the area. Based on his investigation of this case and his experience, McLeod believed Martinez was a member of SMS in July 2005.
McLeod testified about the culture and behavior of tag banging crews like SMS. He explained a significant means for achieving respect in tag banging crews is “through the constant ebb and flow o[f] battling for dominance in a certain area.” Tag banging crews typically meet any form of disrespect with immediate and often violent acts of retaliation. Challenging a tag banging crew member to a fight is considered a brazen act of disrespect, particularly when the challenge is made in front of other crew members. Violence has a significant role in tag banging culture as a means of asserting dominance over a claimed territory and of gaining respect. McLeod explained the graffiti found on the vacant Arcos house was consistent with crimes committed by tagging and tag banging crews, was a form of intimidation, and signified that the tagging or tag banging crew has asserted dominance over the neighborhood.
McLeod described a “hit-up” as follows: “In a tagging or tag banging culture, a hit-up is a verbal—or it could be a gesture challenge given from one individual to another in order to ascertain where their allegiance lies, or to what tagging crew or tag banging crew their allegiance lies. A hit-up can be as common as just a shrugging of the shoulder and placing the palms upward . . . . [¶] Also, it can be a verbal challenge such as stating the words, ‘where you from? Who do you bang with? What do you write? What pieces do you do?’ Any kind of questions which definitely tell everyone’s allegiance would be seen as a hit-up.”
Discussion
I. Expert Testimony on Tagging Crews and Tag Banging Crews Was Admissible.
Martinez argues the trial court erred by denying codefendant Ramos’s motion (in which Martinez joined) to exclude gang-related evidence and by permitting McLeod to testify about tagging crews and tag banging crews. Martinez argues McLeod’s testimony was irrelevant, or if relevant, its probative value was outweighed by its prejudicial effect. We disagree.
Courts have consistently upheld admission of evidence of gang affiliation and activity when relevant to an issue of motive or intent. (People v. Carter (2003) 30 Cal.4th 1166, 1194; People v. Williams (1997) 16 Cal.4th 153, 193; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550; People v. Olguin (1994) 31 Cal.App.4th 1355, 1369 (Olguin); People v. Martin (1994) 23 Cal.App.4th 76, 81.) In cases not involving a gang enhancement, evidence of gang membership should not be admitted if its probative value is minimal. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) “But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s [claimed] 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.” (Ibid.)
“The admission of gang evidence over an Evidence Code section 352 will objection will not be disturbed on appeal unless the trial court’s decision exceeds the bounds of reason.” (Olguin, supra, 31 Cal.App.4th at p. 1369.)
In Olguin, the defendant confronted the victim, whom defendant believed had crossed out his gang-related graffiti. (Olguin, supra, 31 Cal.App.4th at pp. 1366-1367.) The defendant and the victim yelled their rival gang names at each other. (Id. at p. 1367.) A fight ensued, and the defendant pulled out a gun he had tucked in his waistband and shot the victim. (Id. at pp. 1366, 1367.) At trial, a criminal street gang expert testified gangs used graffiti to mark claimed territory, respect is of paramount importance to gangs, signs of disrespect include crossing out a gang’s graffiti and calling out a gang’s name to rival gang members, disrespect often results in violent confrontation, and mutual challenges as occurred in that case “become the expected prelude for violent confrontations between gang members.” (Id. at p. 1367.) A panel of this court upheld admission of the expert testimony, concluding it was relevant to explain the defendant’s intent and motive and the defendant’s violent reaction to hearing the victim yell the name of a rival gang. (Id. at p. 1370.)
Although Martinez was not charged with gang enhancements, evidence of his membership and participation in the SMS tag banging crew was relevant to the charged crimes. As in Olguin, McLeod’s testimony was relevant to show Martinez intended to commit murder and his motive for doing so. McLeod’s testimony provided meaning and context to evidence that Martinez and Ramos hit-up Arcos, Garcia, and the Gutierrez brothers, who, by quarreling, engaged in conduct perceived as “disrespect.” McLeod’s testimony was relevant to prove Martinez, a member of the SMS tag banging crew, returned armed to the area of the Arcos house with the intent to kill in retaliation for disrespect during the hit-up. McLeod’s testimony about the SMS graffiti later found at the Arcos home was relevant to show the confrontation was part of a violent retaliation.
As in Olguin, evidence of Martinez’s membership and activity in the SMS tag banging crew was prejudicial “to a certain degree” (Olguin, supra, 31 Cal.App.4th at p. 1370); however, the probability of undue prejudice did not substantially outweigh the probative value of the evidence (Evid Code, § 352). “‘[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.’” (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1550.) Here, the trial court gave measured consideration to the defense motion to exclude McLeod’s testimony and concluded: “Most people that come into court as jurors, they have no idea what this term ‘hit-up’ means. It is beyond someone’s common experience. And it’s a ripe topic, in the court’s opinion.” We find no abuse of discretion.
II. An Instruction Based on Penal Code Section 1097 Was Unnecessary.
Martinez argues the trial court erred by failing to instruct the jury sua sponte, based on Penal Code section 1097, that if the jurors have a reasonable ground of doubt about which degree of the crime applied, then they must convict the defendant of the lowest degree. We conclude the court properly instructed the jury with CALCRIM No. 3517, and no sua sponte instruction based on section 1097 was necessary.
Penal Code section 1097 reads: “When it appears that the defendant has committed a public offense, or attempted to commit a public offense, and there is reasonable ground of doubt in which of two or more degrees of the crime or attempted crime he is guilty, he can be convicted of the lowest of such degrees only.”
The trial court instructed the jury pursuant to CALCRIM No. 3517 and explained attempted voluntary manslaughter is a lesser crime of attempted murder, as charged in counts 1, 2, and 3. As read to the jury in this case, the first paragraph of CALCRIM No. 3517 stated: “If all of you find that the defendant is not guilty of a charged crime, you may convict him of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime.”
Relying on People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry), Martinez argues the trial court also should have instructed the jury sua sponte pursuant to Penal Code section 1097. In Dewberry, supra, 51 Cal.2d at page 555, the court held: “[W]hen the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense.”
In People v. Aikin (1971) 19 Cal.App.3d 685, 703-705, the court concluded that under Dewberry, the trial court had a duty to instruct the jurors that “if they had a reasonable doubt whether the offense was manslaughter or murder in the second degree their verdict should be for manslaughter.” In People v. Reeves (1981) 123 Cal.App.3d 65, 69, the court concluded CALJIC No. 17.10, which is substantially the same as CALCRIM No. 3517, violates Dewberry. (See also People v. Crone (1997) 54 Cal.App.4th 71, 76-78 [concluding CALJIC No. 17.03 violates Dewberry].)
The first paragraph of CALJIC No. 17.10 (Spring 2008 ed.) reads: “If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, you may nevertheless convict [him] [her] of any lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime.”
However, a line of cases starting with People v. St. Germain (1982) 138 Cal.App.3d 507, 521-522 (St. Germain) have concluded CALJIC No. 17.10 complied with Dewberry and Penal Code section 1097. The court in St. Germain reasoned CALJIC No. 17.10 covered section 1097 by telling the jury that if the prosecution had not proven the elements of the greater offense beyond a reasonable doubt, then the jury may find the defendant guilty of the lesser offense if the prosecution proved that offense beyond a reasonable doubt. (St. Germain, supra, 138 Cal.App.3d at p. 522.) In People v. Gonzalez (1983) 141 Cal.App.3d 786, 794 and footnote 8, disapproved on another ground in People v. Kurtzman (1988) 43 Cal.3d 322, the court expressly disagreed with People v. Reeves, and held once CALJIC No. 17.10 is given, further instruction based on the Penal Code 1097 would be cumulative and unnecessary.
In People v. Barajas (2004) 120 Cal.App.4th 787, 793-794 (Barajas), the court agreed with St. Germain’s reasoning and held CALJIC No. 17.10 satisfied the requirements of Dewberry. The Barajas court stated: “If a jury is convinced beyond a reasonable doubt that a defendant is guilty of either a greater or a lesser offense, this can only be because it has a reasonable doubt about elements of the greater offense and no reasonable doubt about any elements of the lesser. Under these circumstances, CALJIC No. 17.10 instructs the jury to convict of the lesser offense.” (Barajas, supra, 120 Cal.App.4th at p. 793.)
We agree with St. Germain, People v. Gonzalez, supra, 141 Cal.App.3d 786, and Barajas. Because the trial court in this case instructed the jury with CALCRIM No. 3517, which is substantially the same as CALJIC No. 17.10, the court did not err by failing to give an instruction based on Penal Code section 1097.
III. CALCRIM Nos. 603 and 604 Do Not Intrude into the Jury’s Deliberative Process.
Martinez argues CALCRIM Nos. 603 and 604 deprived him of due process of law and the right to a jury trial by interfering with the jury’s deliberative process. We conclude the instructions are constitutionally sound.
The first part of CALCRIM No. 603, as read to the jury in this case, stated: “[An a]ttempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion.” The first part of CALCRIM No. 604, as read to the jury in this case, stated: “[An a]ttempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill a person because he acted in imperfect self-defense or defense of another.”
Martinez does not contend CALCRIM Nos. 603 and 604 incorrectly state the law. He argues instead those instructions interfere with the jury’s deliberative process by telling the jurors they should presume his conduct to have constituted murder unless they are persuaded to “reduce” the crime to attempted voluntary manslaughter. Neither CALCRIM No. 603 nor No. 604 told the jury to presume Martinez committed murder. Both accurately explain that “[an a]ttempted killing that would otherwise be attempted murder” must be reduced to attempted voluntary manslaughter if the jury found Martinez acted in a sudden quarrel or heat of passion, or imperfect self-defense.
Martinez asserts CALCRIM Nos. 603 and 604 are slanted toward the prosecution in much the same way as the instruction struck down in People v. Owens (1994) 27 Cal.App.4th 1155. The challenged instruction in Owens stated, “‘[t]he People have introduced evidence tending to prove’” conduct on which a conviction could be based. (Id. at p. 1158.) The court concluded the instruction was erroneous because it carried the inference the prosecution had established guilt. (Ibid.) CALCRIM Nos. 603 and 604, in contrast, do not raise such an inference, but expressly state the prosecution has the burden of proving each element of the charged offenses beyond a reasonable doubt.
Relying on People v. Kurtzman, supra, 46 Cal.3d 322, Martinez argues CALCRIM Nos. 603 and 604 had the impermissible effect of setting an order of deliberations, with attempted murder as the starting point. In Kurtzman, the California Supreme Court held the trial court erred by telling a deadlocked jury it had to unanimously agree on the second degree murder charge before it could consider voluntary manslaughter. (People v. Kurtzman, supra, 46 Cal.3d at p. 328.) Here, the jury was not told it first had to unanimously agree on attempted murder before it could consider attempted voluntary manslaughter. The jurors were instructed pursuant to CALCRIM No. 3517, “[i]t is up to you to decide the order in which you consider each crime and the relevant evidence.”
Disposition
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., MOORE, J.