Opinion
B158264.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSE GUILLERMO MARTINEZ, Defendant and Appellant.
I. Mark Bledstein, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General and Adrian N. Tigmo, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Jose Guillermo Martinez appeals from the judgment entered following a jury trial that resulted in his conviction for first degree murder. Martinez was sentenced to a term of 50 years to life in prison, with the possibility of parole.
Martinez contends the trial court erred by: (1) failing to sua sponte instruct the jury that provocation could be considered in determining the degree of murder; (2) admitting gang evidence; and (3) admitting a photograph of the victims body. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. Murder of Luis Esquida.
Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11), the relevant evidence established the following. Maria R. and the victim, Luis Esquida, worked together selling newspaper subscriptions. Thanks to Maria, her friend Aida C. also obtained employment with the same organization. When Aida began work, she was dating appellant Martinez, who went by the moniker of "Wolfie." Martinez visited Aida at the workplace and drove Maria and Aida to work on several occasions.
After beginning her employment with the newspaper, Aida broke off her relationship with Martinez and subsequently began to date Esquida. On one occasion, Martinez confronted Aida and Esquida at the newspaper company. Aida informed Martinez that the relationship between them "was over." Martinez, who was holding a lug wrench, stated that he loved Aida and argued with her. Esquida and two of his friends calmly suggested to Martinez that he should leave because his relationship with Aida was over. Martinez was upset over the loss of Aidas affections and threatened that her other boyfriends would "pay their dues" to him. Esquida and Aida subsequently broke off their relationship.
On April 11, 2001, Aida informed Esquida she wished to reconcile and asked him to visit her for that purpose. On April 12, 2001, at approximately 10:30 p.m., Esquida drove to Aidas home. Maria accompanied him as far as the intersection of Chase and Tobias streets, near the Panorama City Mall. At that point, Esquida dropped Maria off so she could visit a friend.
After Maria exited Esquidas car, she stayed at her friends house for approximately five minutes. She then began walking to her boyfriends home. As she was crossing the intersection of Chase and Tobias streets, she saw Esquida in his car, about to turn on Chase. She waved to him. Esquida stopped the car. Aida ran towards Maria, calling her name. Another vehicle pulled alongside Esquidas car. Maria, who was standing in the middle of the street near the vehicles, heard several gunshots fired in rapid succession. She turned and saw a man standing next to Esquidas car, pointing a gun towards the drivers side window. Maria did not see the shooters face, but based upon her view of his back, was convinced it was Martinez. The shooter, like Martinez, was bald, short, and skinny. Esquida appeared to have placed the car in reverse, but became stuck on the sidewalk.
Aida told Maria to run. As Aida and Maria fled the scene, Maria asked, "Why did Wolfie shoot him?" Aida replied that the shooter was not Martinez, who was "in L.A.," but that if it was Martinez, Maria should not tell the police because she would be shot.
Esquida suffered two fatal wounds, one to his head near the left eyebrow, and one to his shoulder that exited above his spine. Firearms evidence indicated that the murder weapon was a .38-caliber revolver.
Martinez and Aida reconciled and resumed their relationship.
Maria did not initially tell police that Martinez was the shooter because she was afraid, after hearing Aidas warning, that she would be sought out, shot and killed. Maria, who had been a member of a gang, believed that "snitches . . . die." Unidentified members of the Mara Salvatrucha gang subsequently threatened Maria and her family with physical harm if she testified. As a result, Maria disobeyed a subpoena to appear at the preliminary hearing. Maria moved away from the Los Angeles area, but at the time of trial, she was still afraid for her safety.
b. Evidence of Martinezs confessions and admissions, and witnesses recantations of their statements to police.
Three of Martinezs friends or acquaintances told detectives that Martinez had admitted to them that he had committed the shooting. A fourth witness informed a detective of facts establishing that Martinez had a motive to kill Esquida. At trial, all four recanted their statements to police.
(i) Erick Salinas.
Erick Salinas was a member of the Mara Salvatrucha street gang. Erick and his brother, Jonathan Salinas, both told Los Angeles Police Detective John Fleming that Martinez had admitted shooting Esquida. Martinez gave Erick the following information. Martinez killed Esquida because Esquida was "trying to mess with" Aida. Aida had assisted in setting up the murder. On the night of the murder, Martinez had followed Esquida but lost track of Esquidas car. Aida told Esquida to wait for her at a certain location and then telephoned Martinez to inform him of Esquidas whereabouts. Martinez then pulled his car next to Esquidas and shot Esquida three to four times through the drivers side, hitting him in the head. Esquida had his car in reverse. Fleming videotaped Ericks interview and the tape was played for the jury.
For ease of reference, we will hereinafter refer to Erick and Jonathan Salinas by their first names.
At trial, Erick testified that he had fabricated Martinezs confession because the police pressured him. Seven officers, with guns drawn, had broken down his front door, handcuffed him, and transported him to the police station, where he was interviewed by several officers who yelled at him and threatened him with a 15-year prison sentence. He made up the details about the crime because that was what the police "wanted to hear." Erick "might have" told a district attorney that "anybody who testifies in this case has a 187 on their back," an apparent reference to the Penal Code section for murder. Erick personally knew people who had been killed because they had testified in court.
(ii) Jonathan Salinas.
Jonathan told Fleming that Martinez had stated he killed a man at the Panorama Mall, had laughed about the shooting, and possessed a .38-caliber handgun. Jonathan told the prosecutor, during an out-of-court interview, that Martinez "had confessed to [him] that he had shot the victim in this case and that it had to do with Aida, that the guy was messing with Aida." Jonathan disavowed these statements at trial, variously claiming that he had lied or had not made them. He admitted executing a signed statement for the police but claimed he was unable to read. He denied that corrections made to the document and the adjacent initials were his. He had lied because he had been nervous. During redirect examination, Jonathan testified that he might have heard Martinez admit the shooting to someone else. During further cross-examination, Jonathan stated that he had been drunk and was unsure whether he had, in fact, overheard Martinez admit the shooting to another person.
Jonathan was aware that "snitches" were sometimes killed, and personally knew of witnesses who had been killed because they had testified. He was concerned about his familys safety, would have preferred not to attend Martinezs trial, and had told the prosecutor that he could not "get up in court and face" Martinez knowing that his testimony would help convict him.
(iii) Susana B.
Susana B. worked with both Esquida and Aida. She told Los Angeles Police Detective Christine Holroyd that Martinez had stated the following. He had followed Aida and had gone by Aidas house the day before the murder. Martinez saw Esquida with Aida. Martinez stopped and told Esquida that he did not want Esquida to see Aida again. Esquida laughed, and Martinez "didnt think that was right." The next day Martinez followed Esquida and Aida. When Aida exited the car, Martinez crept up to the drivers side and "started blasting," i.e., shooting, with a revolver.
The day before Susana testified, the prosecutor told her she would be needed to testify in court the next morning, and that a detective would pick her up at her home and transport her to court. She agreed. That night, Aida spoke to Susana. The next morning, Susana did not wait for an officer to pick her up but instead went to Aidas house. Susana knew that Aida was a suspect in Esquidas murder.
At trial, Susana was unable to recall whether she had ever told police that Martinez admitted the shooting, because she was a frequent drug user and was often intoxicated with "[m]arijuana, methamphetamines, rock, acid, shrooms, ecstasy[,]" which caused her to have difficulty perceiving reality and resulted in her commitment to a mental institution. Martinez had either never told her, or she could not recall, that he was involved in Esquidas shooting.
At trial, Susana stated she was not afraid to testify. She had been in a gang and knew that "rats" were "jumped" or killed. If she told police that Martinez had committed the murder, she would be considered a rat.
(iv) Mario Calles.
Mario Calles told police Martinez had stated: he could not live without Aida; he was "gonna get" Aidas boyfriends, who would "pay their dues" to him; and that Aida "[was] for [Martinez and] no one else." Martinez was depressed over losing Aida, would give Aida anything she wanted and would do anything for her. He gave her a pager and was angry when she received pages from other men. He had stated that he would kill for Aida. In approximately February 2001, Martinez "checked up" on Aida at work and saw her in a car with "another guy," apparently Esquida. Martinez followed but lost the car. Approximately one week later, Martinez was "driving around [Aidas] apartment checking up on her" and again saw Esquida in a car outside Aidas apartment. Martinez told Esquida that he "better not be waiting for my girl." Martinez reportedly told Esquida, "You know what, Im from M.S., if I ever see you close to my girl again, Ill fuck you up." Martinez had stated he was afraid his "clique" might find out that "he had tripped on someone who is not a gangster." Calles had signed a statement containing this information.
However, Calless statements to police were lies, the result of police pressure. Ten police officers had come to his home and transported him to the police station, where they screamed at him and questioned him in a small room for six hours. An officer threatened him with a 15-year sentence if he failed to provide incriminating evidence about Martinez. He was frightened, and the police "put . . . words in [his] mouth." He never told police that Martinez admitted the shooting.
Detective Fleming denied threatening any of the witnesses or suggesting facts to them.
2. Procedure.
Trial was by jury. Martinez was found guilty of first degree murder (Pen. Code, § 187, subd. (a)). The jury also found true the allegation that Martinez personally and intentionally discharged a firearm, resulting in death. (§ 12022.53, subd. (d).) The trial court sentenced Martinez to a term of 50 years to life in prison with the possibility of parole, and imposed a restitution fine and a suspended parole revocation fine. Martinez appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. The trial court did not err by failing to instruct with CALJIC No. 8.73.
The trial court instructed the jury on first and second degree murder, malice aforethought, and deliberate and premeditated murder. CALJIC No. 8.20, which discussed deliberate and premeditated murder, informed the jury "[i]f you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree." Martinez did not request instructions regarding provocation.
Martinez contends that the trial court had a sua sponte duty to further instruct in accordance with CALJIC No. 8.73 that if the evidence showed provocation insufficient to make the crime manslaughter, the jury might nevertheless consider that provocation when deciding whether the offense was first or second degree murder. We discern no error.
The standard version of CALJIC No. 8.73 provides, "If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation."
A trial court must instruct the jury on every theory of the case supported by substantial evidence (People v. Montoya (1994) 7 Cal.4th 1027, 1047), and has a sua sponte duty to instruct on lesser included offenses when the evidence raises a question regarding whether all the elements of the charged offense were present and the evidence would justify a conviction on the lesser offense. (People v. Hughes (2002) 27 Cal.4th 287, 365; People v. Lewis (2001) 25 Cal.4th 610, 645; People v. Breverman (1998) 19 Cal.4th 142, 148-149.) "On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman, supra, at p. 162.) Substantial evidence, in this context, means evidence that a reasonable jury could find persuasive. (People v. Hughes, supra, at pp. 366-367; People v. Lewis, supra, at p. 645; see also People v. Middleton (1997) 52 Cal.App.4th 19, 33, disapproved on other grounds in People v. Gonzalez (2003) 31 Cal.4th 745, 752-753 fn. 3 [trial court need not instruct on an issue when the evidence in support is merely minimal and insubstantial].)
Our Supreme Court has held that "CALJIC No. 8.73 is a `pinpoint instruction [citation] that relates particular facts to an element of the charged crime and thereby explains or highlights a defense theory. [Citation.] The trial court is not required to give such an instruction on its own initiative, and if the instruction as given is adequate, the trial court is under no obligation to amplify or explain in the absence of a request that it do so. [Citations.]" (People v. Mayfield (1997) 14 Cal.4th 668, 778; see also People v. Middleton, supra, 52 Cal.App.4th at pp. 28-33.) More recently, the court appears to view the issue as undecided. (People v. Steele (2002) 27 Cal.4th 1230, 1250-1251 [declining to decide whether CALJIC No. 8.73 must be given sua sponte, and contrasting Mayfield with People v. Johnson (1993) 6 Cal.4th 1, 42-43 and People v. Perez (1992) 2 Cal.4th 1117, 1129, which suggested the instruction should be given sua sponte].)
Assuming arguendo that a trial court has a sua sponte duty to give CALJIC No. 8.73, such a duty only arises " `where the evidence of provocation would justify a jury determination that the accused had formed the intent to kill as a direct response to the provocation and had acted immediately to carry it out. [Citation.]" (People v. Johnson, supra, 6 Cal.4th at pp. 42-43; People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1705.)
Here, no evidence supporting CALJIC No. 8.73 existed. Contrary to Martinezs contentions, there was no evidence of any provocation, reasonable or unreasonable. (People v. Steele, supra, 27 Cal.4th at p. 1251 [CALJIC No. 8.73 not required where there was no evidence of provocation]; People v. Johnson, supra, 6 Cal.4th at pp. 43-44 [same].) There was no evidence Martinez and Esquida quarreled or fought immediately before the murder. Instead, Martinez crept up on Esquida and shot him while he was in his vehicle and attempting to flee. There was no evidence Martinez was acting in the heat of passion when he shot. Indeed, all the evidence pointed to a coldly calculated killing perpetrated in retaliation for Esquidas supposed transgression of dating Aida. There was no evidence Martinez coincidentally happened upon, or was surprised or enraged by, Aida and Esquida riding together on the night of the murder. To the contrary, the evidence established that Aida assisted Martinez in luring Esquida to a particular location where Martinez, having come prepared with a firearm, murdered him. Martinez never presented evidence to support a provocation defense, did not indicate he was relying upon such a defense, and never argued that the murder was the result of provocation. His theory was that he had been misidentified by Maria, and the other witnesses had been coerced by police into falsely inculpating him. Based upon the evidence presented at trial, it would have been error for the trial court to have given the instruction.
Martinez argues, however, that the evidence supported a finding that he killed out of jealousy. He urges that "[w]hen jealousy is offered to negate premeditation, the provocation need only be sufficient to yield an inference that the killing was impulsive rather than calculated." The problem with this theory is twofold. First, while there was indeed evidence of Martinezs jealousy, there was no showing of provocation by the victim. (People v. Lee (1999) 20 Cal.4th 47, 59 [provocation that incites defendant to homicidal conduct must be caused by the victim or be reasonably believed by the defendant to have been engaged in by the victim].) Second, the evidence did not suggest that jealousy negated premeditation; to the contrary, all the evidence pointed to the conclusion that Martinezs jealousy impelled him to plan and execute a cold-blooded revenge killing. The evidence was irreconcilable with a conclusion that the killing was impulsive.
People v. Berry (1976) 18 Cal.3d 509, 515-516, People v. Borchers (1958) 50 Cal.2d 321, 329, and People v. Wickersham (1982) 32 Cal.3d 307, 328-329, cited by Martinez, are inapposite. Unlike in those cases, in the instant matter there was no comparable long-continued course of provocatory conduct by the victim, no evidence that Martinez was in a state of uncontrollable rage or intense emotion when he committed the murder, and no evidence that Esquida engaged in a struggle over the gun.
Martinezs reliance upon evidence that Esquida laughed when Martinez told him, the day before the murder, not to see Aida is likewise unavailing. This event, occurring the day prior to the murder, did not support the use of CALJIC No. 8.73. The trial court must instruct on the effect of provocation on premeditation and deliberation only when "there is evidence from which the jury could find that the defendants decision to kill was a direct and immediate response to the provocation such that the defendant acted without premeditation and deliberation. [Citations.]" (People v. Fenenbock, supra, 46 Cal.App.4th at p. 1705.) The encounter with Esquida occurred the day prior to the murder, and therefore the jury could not have found Martinezs decision to kill Esquida was an immediate response. As we have set forth, supra, the evidence showed Martinez used Aida to lure Esquida to a place where he could murder him, brought a gun to the encounter, and killed him in an unprovoked shooting unaccompanied by any argument or fight. These facts are irreconcilable with a finding that Martinez acted as the result of an unconsidered impulse stemming from the encounter the previous day.
In any event, the omission of CALJIC No. 8.73 did not prejudice Martinez. "[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility." (People v. Breverman, supra, 19 Cal.4th at p. 165.) Such an error is not subject to reversal unless, upon an examination of the entire record, it appears "reasonably probable" the defendant would have obtained a more favorable result had the error not occurred. (Id. at p. 149 [citing People v. Watson (1956) 46 Cal.2d 818, 836].) There is no reasonable probability that the jury would have rendered a verdict more favorable to Martinez had CALJIC No. 8.73 been given. As we have discussed, there was no evidence of provocation, and a provocation theory was not part of Martinezs defense. Therefore, the absence of the instruction was harmless.
Because we conclude that the instruction was not warranted, we necessarily reject Martinezs contention that his attorney was ineffective for failing to request that the trial court instruct the jury with CALJIC No. 8.73. (People v. Steele, supra, 27 Cal.4th at p. 1251.) To secure reversal of a conviction based upon the ineffective assistance of counsel, a defendant must establish both that defense counsels performance fell beneath an objective standard of reasonableness, and that there is a reasonable probability that the defendant would have obtained a more favorable result absent counsels shortcomings. (Strickland v. Washington (1984) 466 U.S. 668, 687-694; People v. Cunningham (2001) 25 Cal.4th 926, 1003.) Because the instruction was not warranted, counsel did not err by failing to request it. (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091 [defense counsel is not required to make futile motions or indulge in idle acts to appear competent].) Furthermore, as we have discussed, Martinez cannot establish that he was prejudiced by the absence of the instruction.
2. The trial court properly admitted gang evidence.
Prior to trial the prosecutor moved to admit evidence of Martinezs gang affiliation to explain why the witnesses had recanted their statements to police. Defense counsel objected that the evidence was unduly prejudicial. The trial court found the evidence probative and admitted it subject to a limiting instruction. That instruction informed the jury that it "should draw no negative inference from testimony relating to gangs. However[,] such testimony, if believed, is a factor in evaluating the credibility of any such witness."
Martinez argues the trial court improperly admitted evidence related to gangs, including: (1) testimony that the Salinas brothers were affiliated with the Mara Salvatrucha gang; (2) testimony that "snitches" are subject to gang retaliation; (3) Calless testimony that Martinez threatened Esquida by stating, "you know what, Im from M.S., if I ever see you close to my girl again, Ill fuck you up"; (4) Ericks statements that word had gotten around that "anybody who testifies in this case has a 187 on their back," i.e., would be murdered; and (5) Susanas testimony that "rats" are either "jumped" or killed, and that if she told police that Martinez shot Esquida, she would be considered a rat. Martinez points out that the prosecutor did not contend the crime was gang-related and no section 186.22 gang enhancement was alleged. He contends that this evidence, which we refer to collectively as "gang evidence," was unduly prejudicial, cumulative, and of minimal probative value. We disagree.
Martinez does not challenge admission of the evidence that Maria received threatening telephone calls from Mara Salvatrucha members; she had been a gang member; and she was aware that witnesses could face retaliation for testifying.
Gang evidence is not admissible if introduced only to "show a defendants criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.]" (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449; cf. People v. Jordan (2003) 108 Cal.App.4th 349, 365.) However, such evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative. (Evid. Code, § 352; People v. Ruiz (1998) 62 Cal.App.4th 234, 240; Evid. Code, §§ 210, 780; People v. Sanchez, supra, at p. 1449.) Even if gang evidence is relevant, it may have a highly inflammatory impact on the jury. Thus, "trial courts should carefully scrutinize such evidence before admitting it. [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 193; People v. Gurule (2002) 28 Cal.4th 557, 653; People v. Jordan, supra, 108 Cal.App.4th at p. 365 ["Evidence of gang membership, if only tangentially relevant, is inadmissible due to its highly inflammatory impact."].)
A trial courts admission of evidence, including evidence related to a defendants gang membership, is reviewed for abuse of discretion. (People v. Carter (2003) 30 Cal.4th 1166, 1194; People v. Barnett (1998) 17 Cal.4th 1044, 1118; People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) "The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial courts decision exceeds the bounds of reason. [Citation.]" (People v. Olguin, supra, at p. 1369.)
The trial court did not abuse its discretion. The challenged evidence was of much more than tangential relevance. First, Calless statement that Martinez had told Esquida he was "from M.S." and would harm Esquida if he was ever near Aida again, was directly relevant to the issues in the case. This evidence demonstrated a threat of physical harm made by Martinez to the victim. It showed Martinezs motive and willingness to commit the murder. Its probative value clearly outweighed any prejudicial effect.
Second, as Martinez concedes, a witnesss fear of testifying is relevant to the jurys determination of the witnesss credibility. (Evid. Code, § 780, subd. (j).) "Testimony a witness is fearful of retaliation . . . relates to that witnesss credibility and is . . . admissible. [Citation.]" (People v. Sanchez, supra, 58 Cal.App.4th at pp. 1449-1450.) The trial court here allowed limited gang evidence for legitimate purposes: to show the basis for Ericks, Jonathans, Susanas, and Calless denials that the statements they made to detectives were true, and to explain why Maria did not initially tell police that she believed Martinez was the shooter. (Ibid; People v. Olguin, supra, 31 Cal.App.4th at p. 1368.) Evidence the witnesses were afraid of retaliation by Martinezs gang — despite their averments to the contrary — was relevant to assist the jury in determining whether the witnesses were, in fact, telling the truth at trial or when they spoke to police. The information contained in the witnesses statements to detectives was crucial to the Peoples case.
The gang evidence was limited to matters relevant to the witnesses states of mind. No gang expert testified to the activities of gangs in general. There was no evidence of other activities of or crimes committed by the Mara Salvatrucha gang or of any gang-related crimes committed by Martinez. The limited nature of the gang evidence reduced the risk of prejudice. (E.g., People v. Brown (2003) 31 Cal.4th 518, 547.) The jury was instructed as to the limited purposes for which it might evaluate the gang evidence, further minimizing the potential for prejudice. We presume jurors follow the trial courts instructions. (People v. Waidla (2000) 22 Cal.4th 690, 725; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
Martinez contends, however, that the evidence was cumulative. His argument runs as follows. Erick, Jonathan, Susana, and Calles stated they were not afraid to testify and no evidence suggested they changed their stories due to fear of gang retaliation. Therefore, the gang evidence could not have been admitted to show they recanted due to fear of gang retaliation. Instead, the gang evidence could have been admitted only to show the witnesses were Martinezs associates, and were therefore biased to testify in his favor. Because other evidence showed the witnesses were Martinezs friends, the gang evidence was cumulative.
We are unpersuaded. The premise underlying Martinezs argument is not sound. The jury could have inferred from the evidence presented at trial that the four witnesses recanted due to fears of gang reprisals, whether or not they disavowed such fears at trial. Contrary to Martinezs assertion, there was indirect evidence that the witnesses were afraid of gang retaliation. Martinez stated to the victim that he was a Mara Salvatrucha gang member. One of the witnesses — Maria — had received threatening phone calls from purported Mara Salvatrucha members, warning her not to testify. Erick admitted he had told authorities that the word was out that "anybody who testifies in this case has a 187 on their back." (Italics added.) Jonathan had told the prosecutor that he could not face Martinez in court, knowing his testimony would help convict him. He also admitted that his "major concern" was that the People arrange to move his family from the area. The morning Susana was scheduled to testify, she failed to wait for an officer to pick her up but went to Aidas home instead. Four witnesses testified that they believed "rats" or "snitches" were subject to retaliation from gangs. From these facts, the jury could have readily inferred that the four witnesses were lying when they recanted their statements to police, because they were afraid of gang retaliation.
People v. Cardenas (1982) 31 Cal.3d 897, does not assist Martinez. There, the defendant offered testimony from several alibi witnesses. The prosecution was allowed to offer evidence that the defendant and the alibi witnesses were all members of the same gang. Cardenas found the gang evidence should have been excluded under Evidence Code section 352. (Id. at pp. 904, 906.) The court explained that the probative value of the gang membership evidence was minimal at best. It was offered to establish that the witnesses and the defendant lived in the same neighborhood and had the same circle of friends, and therefore the alibi witnesses were biased in favor of the defendant. These facts, however, had already been "amply established" by other testimony. Therefore, the gang evidence was cumulative and lacked probative value. (Id. at pp. 904-905; see also People v. Maestas (1993) 20 Cal.App.4th 1482, 1494-1495 [evidence that defendant and witness were members of the same gang to show that the witness was biased in the defendants favor was improperly admitted where other evidence more compellingly established a close personal friendship between the witness and defendant].)
In contrast to Cardenas, the evidence here was not cumulative. The gang evidence was not offered merely to show that the witnesses were Martinezs associates and therefore had a motive to lie for him. The evidence was offered for a much more compelling purpose: to explain the witnesses recantation of their damning statements to police officers, and to rebut the testimony that police had pressured several witnesses into making untrue inculpatory statements. Martinez was not entitled to force the exclusion of evidence of the witnesses fear of gang retaliation simply because other evidence might have shown an entirely different reason to mistrust their testimony that they lied to police. "[E]vidence does not become irrelevant solely because it is cumulative of other evidence." (People v. Smithey (1999) 20 Cal.4th 936, 975.) We conclude that the trial court did not err by admitting the gang evidence.
3. Admission of the photograph of the victims body was harmless.
a. Additional facts.
The prosecutor sought to introduce two photographs of the victims body showing his head wound. Defense counsel objected on the grounds the photographs were inflammatory. Defense counsel argued that in the photographs, the victims eyes were closed, his mouth was gaping open, and his face was covered in blood. The trial court agreed that the photographs were "not pleasant." The prosecutor explained that the photographs were relevant because Erick had testified that he had made up the details of the crime when he spoke to police. The photographs would show that the shooting transpired as Erick described to police, and therefore would impeach Ericks trial testimony that Martinez had not told him about the killing. The trial court found Evidence Code section 352 did not preclude admission because the photographs had substantial probative value, but limited the prosecutor to using one of the two photographs.
b. Discussion.
"The rules pertaining to the admissibility of photographic evidence are well settled. Only relevant evidence is admissible [citations], and all relevant evidence is admissible, unless excluded under the federal or California Constitution or by statute. [Citations.]" (People v. Scheid (1997) 16 Cal.4th 1, 13.) Evidence is relevant if it tends logically, naturally, and by reasonable inference to establish material facts. (Ibid.) " ` "The admission of photographs of a victim lies within the broad discretion of the trial court when a claim is made that they are unduly gruesome or inflammatory. [Citations.] The courts exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect. [Citations.]" [Citation.] [Citation.]" (People v. Smithey, supra, 20 Cal.4th at p. 974; People v. Gurule, supra, 28 Cal.4th at p. 624.) Evidence that "uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues . . . ." is prejudicial within the meaning of Evidence Code section 352. (People v. Smithey, supra, at p. 974.) As our Supreme Court has observed, " ` "victim photographs and other graphic items of evidence in murder cases always are disturbing. [Citation.]" [Citations.] [Citation.]" (Ibid.; People v. Gurule, supra, at p. 624.)
We have reviewed the photograph in question and do not believe it is unduly gruesome. The photograph had considerable probative value, in that it tended to rebut the defenses case. Martinezs theory was that the witnesses had all been coerced by police into making false statements about his confessions and admissions. Erick, in particular, told police that Martinez had described standing at the drivers side of Esquidas car and shooting Esquida in the face. Erick testified at trial, however, that he had made up the details the police wanted to hear. However, only the shooter would have known exactly how the crime was carried out. The photograph corroborated Ericks statements to police that Martinez had described how he committed the crime. Erick would have been unlikely to have made up facts that accurately reflected how the crime occurred.
Martinez argues that the photograph was cumulative, in that the cause of death was not disputed and the medical examiner testified about the extent and location of the injuries. However, the medical examiners testimony about the location of the wound would not have been as probative as the photograph, in light of the defense that the authorities had coerced the witnesses to lie. Moreover, " `The prosecutor " `was not obliged to prove these details solely from the testimony of live witnesses [citation] or to accept antiseptic stipulations in lieu of photographic evidence. "[T]he jury was entitled to see how the physical details of the scene and the [body] supported the prosecution theory . . . . " [Citations]." " (People v. Scheid, supra, 16 Cal.4th at p. 16; People v. Gurule, supra, 28 Cal.4th at p. 624.) The "fact that the photographic evidence may have been cumulative to other evidence does not render it inadmissible [citation], although the trial court should consider that fact when ruling on a motion to exclude evidence pursuant to Evidence Code section 352." (People v. Gurule, supra, at p. 625.)
Moreover, the photograph was not unduly prejudicial. It was "not unduly gory or inflammatory," nor was it a "revolting portraiture that conceivably could inflame a jury." (People v. Smithey, supra, 20 Cal.4th at p. 974.) While the photograph does show considerable blood, in light of the testimony regarding the nature of the crime, "the photographs were not so gruesome as to have impermissibly swayed the jury. [Citation.]" (Ibid.) Moreover, the photograph was not used at trial in such a way as to inflame the passions of the jury. We conclude there was no error.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.