Opinion
C051082
4-27-2007
THE PEOPLE, Plaintiff and Respondent, v. ALISHA MILLER, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Alisha Miller appeals following her conviction for possession of methamphetamine for sale (Health & Saf. Code, § 11378), participation in a criminal street gang (Pen. Code, § 186.22, subd. (a); undesignated section references are to the Penal Code), and felon in possession of a firearm (§ 12021), plus enhancements. Defendant claims improper denial of her motion to suppress evidence seized in a warrantless search, evidentiary error, insufficiency of the evidence, instructional error, sentencing error, and prosecutorial misconduct. We shall affirm the judgment.
Codefendant Jesus Carrillo is not a party to this appeal but filed a separate appeal (C051056).
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged as follows:
Count One — unlawful possession of methamphetamine for sale (Health & Saf. Code, § 11378), while personally armed with a firearm (§ 12022, subd. (c)).
Count two — active participation in a criminal street gang and promotion/assistance in felony conduct by gang members (§ 186.22, subd. (a) ), while armed with a firearm not an element of the offense (§ 12022, subd. (a)(1)).
Section 186.22, subdivision (a), provides: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years."
Count three — possession of a firearm by a felon (§ 12021, subd. (a)(1)), for the benefit of, at the direction of, and in association with a criminal street gang with intent to promote criminal gang conduct (§ 186.22, subd. (b)(1) ).
In 2004, defendant pled nolo contendere to a charge of assault with a deadly weapon (§ 245, subd. (a)(1)) in trial court case number 03F06493. The trial court at that time dismissed gang allegations and placed defendant on probation for five years, during which she was subject to warrantless searches and was required to notify her probation officer of any intended change of address.
In addition to the current offenses, the prosecutor filed a petition for violation of probation, which was continued to trail the current offenses.
Section 186.22, subdivision (b)(1), provides in part that "any person who is convicted of a felony committed 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished [as specified]."
Defendant was also alleged to have a prior conviction (the 2004 assault with deadly weapon) for purposes of sections 667, subdivisions (b) through (i) and 1170.12. This was bifurcated.
The pleading also charged codefendant Jesus Carrillo with counts one and two.
Evidence adduced at trial included the following:
The police, responding to a gang-related shooting which is not the subject of this prosecution, went to a house at 7324 Pritchard Road on February 24, 2005. The police seized photographs depicting various persons, including defendant, "throwing up [gang] hand signals." The police later learned that defendant and Jesus Carrillo had been at the house at the time of the shooting but fled before the police arrived. The police determined ("validated") that Carrillo was a Sureño gang member.
Detective Ramos testified that the week after the shooting, in a March 1, 2005, interview at the sheriffs station, defendant told him she was living at the Pritchard address. However, at the end of the interview, when the detective tried to ascertain that he would be able to reach her if he had more questions, she said she was not sure where she would be staying. Detective Raymon Mendoza testified that in telephone conversations between February 24 and March 9, 2005, defendants step-sister, Amanda Biagi, indicated defendant was still living at the Pritchard address.
On March 9, 2005, Detectives Ramos and Mendoza went to the Pritchard address to talk to defendant. They knocked on the door. The door opened slightly, then closed. The detectives announced themselves as law enforcement. The door opened, and the detectives entered. The interior of the house was small, about 500 square feet. In the living room were Scott Silliman, Peter Wijesekara, David Kuhl, and Carol Parel-Filary. Defendant was standing inside the bedroom doorway, with Carrillo in the doorway of the adjoining bathroom. A search of the house yielded (1) in the bathroom trashcan, 24.2 grams of methamphetamine packaged in envelopes, an electronic scale, a small bowl containing white powder residue, and a wallet containing photographs but no identification (which Carrillo claimed as his); (2) a loaded .22 caliber revolver under one of two mattresses in the bedroom; (3) Carrillos identification on the living room table; and (4) under that table, a black case containing 13 plastic baggies and a bag with 60 rounds of live .22 caliber ammunition.
The trial court denied defendants suppression motion, on the ground the search was justified as a probation search.
An officer testified he did not remember whether anything was found in the house with defendants name and address on it. He did not think it was important at the time.
Silliman testified (under a grant of immunity) that he was a methamphetamine addict and went to the Pritchard address with his girlfriend (Parel-Filary) to buy methamphetamine from Carrillo. Silliman had previously met with Carrillo at a different location to discuss buying methamphetamine, but Carrillo did not have any. When Silliman and Parel-Filary arrived at the Pritchard Road house, defendant was cleaning the kitchen (according to the testimony of both Silliman and Parel-Filary). Carrillo said he did not have anything but they (he and Wijesekara) were going to get it and invited the couple along. Wijesekara dropped off Carrillo (who gave him a wad of cash), Silliman and Parel-Filary at a market, picked them up 15 minutes later, and drove back to Pritchard. Wijesekara handed Carrillo a bag of methamphetamine. Back at the house, Carrillo handed to defendant several plastic bags of groceries. Defendant put them away. Silliman testified defendant asked Carrillo, "did you get it" or "did you get the shit." Carrillo said yes, and defendant said, "oh great" or "oh yeah." Defendant approached the bag of methamphetamine in Carrillos hand and looked at it. As some of those present discussed smoking some of the methamphetamine, the police knocked on the door. At trial, neither Silliman nor Parel-Filary could say where defendant was when the detectives arrived.
Defense counsel argued to the jury that defendant may have been referring to some grocery item when she asked, "did you get it." When asked how he knew defendant was referring to the drugs, Silliman nonresponsively said he saw Carrillo with the drugs in the car.
Wijesekara, who also testified under immunity, denied seeing or supplying any contraband. When he arrived at Pritchard, defendant was cleaning the kitchen (wiping the walls and counter). Wijesekara drove Carrillo and the others to the store and went to visit his sister before returning to pick them up. Wijesekara was not sure where defendant was when the detectives knocked on the door, but he thought she was in the kitchen.
A narcotics expert testified the possession of 24.2 grams of methamphetamine (which could furnish 240 doses), along with the electronic scale, cellular phone, baggies and loaded revolver, was consistent with possession for sale. Drug traffickers commonly carry guns.
Scot Wilson, a probation officer specializing in Hispanic gangs, testified that in March 2002, he encountered defendant during a search of a Sureño "crash pad" where she then resided. He found a tablecloth on which was written, "Lonely Girl" (which is defendants street name) and a "roll call" of 145 members of various Sureño subsets. Defendant told Wilson the tablecloth belonged to her.
Robert Tette testified he was assigned as defendants probation officer in July 2004, after she was convicted of assault. In January 2005, defendant reported her address as 7324 Pritchard Road, indicating she would live there with her sister. Tette visited defendant at that address on February 7, 2005. She was with a known Sureño gang member. She sported gang tattoos and previously admitted to other officers that she was an active member of the Sureños. Defendant admitted to past methamphetamine use and that she had no job or source of income.
The defense considered it necessary to identify Sureños by subsets, asserting there is no one cohesive gang. The appellate contentions do not require us to discuss subsets.
Tette also testified as an expert on Sureños, the primary functions of which include shootings, theft, burglary, murder, and drug trafficking. Defendant and Carrillo are Sureño gang members. Tette testified about the Sureños pattern of criminal activity, including crimes in which defendant had participated. Thus, in February 2002, defendant and others (who were known to be Sureño members or associates) were drinking at her (former) residence and decided to take revenge for the shooting of a Sureño gang member. They drove to a house, with defendant guiding the driver. One of the cars occupants, Jerry Egure, shot at a person standing in front of the house. Police stopped the car in which defendant was riding and found .38 caliber shell casings. They found a gun nearby. Egure, a Sureño gang member, was convicted of assault with a firearm. In July 2003, defendant and other Sureño members confronted one Gordie Adomie, who they perceived to be a member of the rival Norteño gang. Defendant accused him of invading the Sureños turf. Defendants group hit Adomie in the head with a bottle, chased him, beat him, and stabbed him 17 times. Defendant was arrested in February 2004 and was later convicted of assault with a deadly weapon. Defendant was also investigated for three separate auto thefts. Tette opined defendant was a very active member of the gang.
Among other incidents not directly involving defendant, Sureño member Brandon Ruiz was convicted of double murder after he stabbed and shot Rene Herrera and Ian Duarte in September 2002 in revenge for their using counterfeit money to buy methamphetamine from Sureño Andrew Limones. Ruiz and other Sureños lured the victims to a house, stabbed and shot them, dumped the bodies in the victims car, and tried unsuccessfully to set the bodies on fire.
In other incidents, Sureño member Gerardo Rodrigues was convicted of a September 2003 assault with a firearm on Frederick Nuñez, who referred to himself as a rival gang member. Sureño gang member Pancho Betancourt was convicted for the December 2003 attempted murder of Elena Estrada, who was shot in the stomach when Betancourt shot a gun into a crowd of persons, one of which said something derogatory about Sureños. Two Sureños were convicted of assault with great bodily injury in the stabbing of a Norteño in January 2005.
The prosecution introduced into evidence a letter from defendant to Brandon Ruiz when he was in jail being tried for murder in 2002. The letter, which we discuss post, discussed Sureño business and, in the opinion of the gang expert, showed defendant was a high ranking Sureño, a "shot caller."
In the defense case, defendant did not testify. Step-sister Amanda Biagi testified she rented the Pritchard house with her ex-boyfriend Edgar Garcia. Defendant was not on the lease but at some point moved in. Defendant usually slept on the sofa but sometimes slept in Biagis bed. Biagi said she and defendant moved out a few days after the shooting. Biagi found someone to take over her lease. Biagi went to the house to meet with the new tenant (Victor, last name unknown) a few days before defendants arrest. Biagi denied telling the police that defendant was living at the Pritchard house at any time after the February 24 shooting.
Defendants father testified that about a week before her arrest, defendant moved back to his house "permanently" and was at his house "predominantly," i.e., at least every other day.
Defense gang expert, university professor James Hernandez, opined that if six people were in a house with less than an ounce of methamphetamine and a gun in the bedroom, and four of the persons were not gang members, he (the expert) could not say that possession of the drugs and the gun were for the benefit of the gang.
The police found 24.2 grams of methamphetamine. One gram equals 1/28 ounce. (Websters New World Dict. (3d college ed. 1988) p. 585.)
The jury found defendant guilty on all three counts, found true the firearm enhancements on counts one and two (the drug offense and gang offense), but found not true the allegation that the possession of a firearm by a felon in count three was gang-related.
The trial court denied defendants motion for a new trial. Defendant admitted the prior conviction. The court revoked probation in the prior case.
The trial court sentenced defendant to prison for nine years, computed as follows: Four years for the count one drug offense (two-year midterm doubled under section 667); four years (consecutive) for the firearm enhancement in count one; one year (consecutive) as one-third the midterm of the assault conviction for which probation was revoked; and concurrent sentences on count two (four years) and count three (two years).
DISCUSSION
I. Suppression Motion
Defendant argues the warrantless search of the Pritchard Road house (where she claimed she was an overnight guest) violated her Fourth Amendment right, because the search was conducted based on her searchable probation status, without reasonable suspicion of criminal wrongdoing, and police should not be allowed to conduct a search of a person on searchable probation unless they have a reasonable suspicion of wrongdoing — an issue that at the time of defendants opening brief was pending before the United States Supreme Court in the context of parolees. Defendants opening brief said the Supreme Court opinion would likely be dispositive of this case, since there was no practical reason to distinguish between probationers and parolees.
Several days after defendant filed her opening brief, the United States Supreme Court issued its opinion in Samson v. California (2006) ___ U.S. ___ , holding that "suspicionless" searches of parolees conducted pursuant to California law do not violate the Fourth Amendment.
Defendants reply brief says nothing about this issue.
Accordingly, we treat the contention as abandoned and need not consider it further.
II. Claims of Evidentiary Error
A. Admission of Evidence Re: Predicate Gang Acts
Defendant argues the trial court abused its discretion in admitting evidence of her numerous uncharged and prejudicial violent offenses to establish the "predicate" acts for the gang offense and enhancement under section 186.22. Defendant also argues the erroneous admission of evidence violated her Fifth and Fourteenth Amendment rights of due process. She fails to show grounds for reversal.
Section 186.22, subdivision (e), states: "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 [specified offenses committed in specified time periods]."
Outside of the presence of the jurors, the prosecution submitted the prior acts sought to be admitted as predicate street gang offenses under section 186.22. Defendant moved to exclude or limit the evidence to two predicate acts under Evidence Code sections 352 and 1101 (on appeal, she discusses only Evidence Code section 352). The trial court excluded some of the predicate acts as unduly prejudicial but determined evidence of six predicate acts was neither cumulative nor unnecessarily prejudicial. At trial, the court also allowed the probation officer to testify, over defendants objection, about three investigations of defendant for automobile theft.
On appeal, defendant contends the trial court abused its discretion under Evidence Code section 352 because the number and violence of the predicate crimes constituted "overkill." We find no abuse of discretion.
Evidence Code section 352 provides: "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."
In order to subject defendant to the penal consequences of section 186.22 as charged in count two (active participation in criminal street gang), the prosecutor had to prove defendant actively participated in a criminal street gang, the members of which engaged in a pattern of criminal gang activity with defendants knowledge, and defendant either directly and actively committed or aided and abetted other gang members in committing the offense of possession of methamphetamine for sale. In order to subject defendant to the penal consequences of the section 186.22 enhancement appended to the charge of firearm possession, the prosecutor had to prove the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.
Evidence of gang membership is relevant to offenses charged under section 186.22. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Evidence of the defendants gang affiliation, including the gangs practices and criminal enterprises can help prove identity, motive, modus operandi, specific intent, or other issues pertinent to guilt of the charged crime. (Id. at pp. 1049-1050 [trial court did not abuse its discretion in denying bifurcation of gang enhancement allegation].)
The trial courts exercise of discretion under Evidence Code section 352 will not be disturbed on appeal absent a clear showing of abuse of discretion. (People v. Ramos (1982) 30 Cal.3d 553, 598, fn. 22.) "Prejudice" in Evidence Code section 352 is not synonymous with "damaging." (People v. Bolin (1998) 18 Cal.4th 297, 320.) The statute is not designed to avoid the prejudice or damage to a defense that naturally flows from relevant, probative evidence; rather, "prejudice" as used in the statute refers to prejudging a person on the basis of extraneous factors. (People v. Harris (1998) 60 Cal.App.4th 727, 737.) The factors the court should consider are the inflammatory nature of the evidence, the probability of confusion, remoteness, consumption of time, and probative value. (Id. at pp. 738-740.)
Defendant argues the prosecutor engaged in overkill, using evidence of heinous predicate acts by gang members (a double murder, a drive-by shooting, and stabbings) and evidence of defendants personal participation (defendants guiding the driver during a drive-by shooting) to show defendants disposition to commit violent offenses, in order to inflame the jury and obtain a conviction in this weak case for relatively minor offenses of drugs and gun possession. Repeating the same points, defendant argues the evidence probably confused the jury. Defendant complains the evidence was too time-consuming and took up 100 pages of transcript. Defendant characterizes the evidence as unduly prejudicial and cites federal case law that introduction of unduly prejudicial evidence violates due process and fundamental fairness, requiring reversal unless the error is harmless beyond a reasonable doubt.
However, the evidence was not unduly prejudicial, as shown by the fact the jury found "not true" the section 186.22 allegation appended to the charge of firearm possession. The predicate crimes were extremely relevant as elements the prosecutor was required to prove and were not likely to confuse the jury. Defendant fails to substantiate her claim that the testimony consumed 100 pages of transcript, and our review of the record indicates far fewer pages. Moreover, in ruling on the predicate acts, including a later ruling affirming admissibility of the auto theft investigations, the trial court indicated the defense was trying to muddy the waters with its experts testimony that the Sureños may not be a gang, though perhaps subsets are. The court also said, "Based on the representations of [the prosecutor], it appears that all six acts, whether or not they were involved with 47th Street Sureños or some other subsect [sic], appear to all be connected in some way with either the 47th Street Sureños or [defendant], whether or not its a loose or a tight group of individuals who call themselves Sureños." Defendant fails to mention these points, which justify the admission of more than the bare minimum of two predicate acts.
Defendant also complains the probation officer supplied grisly details of the predicate crimes, i.e., attempts to set murder victims bodies on fire and shooting into a crowd, hitting a victim in the stomach. However, omission of those details would not have made much of a difference.
Defendant says the expert was permitted to testify in narrative fashion to the lurid details of the predicate acts and other matters unrelated to this case or the predicate acts. Defendant neglects to acknowledge the other matters (e.g., references to persons who carried firearms, were stabbed, or were arrested for crimes) came up during the experts explanation of a letter defendant wrote to a fellow gang member. In any event, defendants failure to object in the trial court forfeits these contentions. (Evid. Code, § 353.) Defendant argues her counsel rendered ineffective assistance by failing to object. However, we need not consider this argument because she develops no legal analysis, other than to assert there could be no tactical reason for not objecting.
We conclude defendant fails to show any reversible evidentiary error regarding predicate acts.
B. Admission of Letter
Defendant contends the trial court erred in overruling her evidentiary objection (on the grounds of hearsay and lack of foundation) to a letter she assertedly wrote to Brandon Ruiz while he was in jail during his trial for the 2002 killing (which was used as one of the predicate crimes in this case). In a subheading, defendant argues her attorney was ineffective for failing to object to the letter on other grounds, i.e., Evidence Code section 352. We shall conclude defendant fails to show prejudicial error warranting reversal of the judgment.
The dispute on appeal turns on the question of authentication of the letter. (Evid. Code, § 1400 et seq.) Defendant says there was no evidence the handwriting was hers, and therefore the letter was not properly authenticated and should have been excluded.
However, defendant fails to acknowledge what happened in this case under the appropriate standard of review. As we shall explain, the trial court merely admitted the evidence conditionally under Evidence Code section 403 (though the statute was not expressly mentioned), subject to redetermination by the jury. Yet defendant never pursued the matter with the jury.
Defendant does not argue her attorney rendered ineffective assistance in failing to pursue the matter with the jury. We note such argument would require defendant to show there was no rational purpose for counsels omission. (People v. Pope (1979) 23 Cal.3d 412, 426.) One obvious reason for not pursuing the matter before the jury was that defendant did indeed write the letter.
1. Background
Defense counsel asked for an offer of proof when the prosecutor sought to call as a witness Deputy District Attorney Robin Shakely, who prosecuted one of the Sureños (Brandon Ruiz) for one of the predicate crimes. The prosecutor in this case said Shakely monitored Ruizs jail mail during the trial of the predicate crime and intercepted a letter defendant sent to Ruiz, where defendant talked about her own case (the prior assault for which she received probation) and made numerous comments showing knowledge of Sureño activity. The following discussion ensued:
"THE COURT: And I take it the content of that letter is to establish some relationship between [defendant] and Mr. Ruiz, who is involved in one of the predicate acts?
"[Prosecutor]: Right.
"THE COURT: And is there something in the content of that letter that potentially would — could be interpreted to show some other indicia of gang involvement?
"[Prosecutor]: Absolutely.
"THE COURT: All right. It would appear that I would permit it in for that purpose. . . .
[¶] . . . [¶]
"[Defense counsel]: And my objection is, one, thats hearsay; two, I dont believe theres any foundation that can be laid, evidentiary foundation that can be laid to admit this into evidence.
"THE COURT: When you say `this, what are we referring to?
"[Defense counsel]: The letter.
"[Prosecutor]: The letter itself is
"THE COURT: I dont have a problem with that. I mean, Im — I dont see a problem in that testimony. The question I have is in terms of what is the extent of her [Shakelys] testimony in terms of other aspects of that case, things that are within her personal knowledge actually I dont have a problem with. Her general opinion that this case involved a gang case, I dont have a problem with. [¶] Obviously, any other specifics that would be objectionable on the basis of hearsay or some other — and obviously there is no way for me to know in advance, but I would have a problem because if the objection is on relevancy, which was your objection, then
"[Defense counsel]: I have a number of objections.
"THE COURT: — that objection is overruled.
"[Defense counsel]: And I object on hearsay. I object on lack of foundation. You know, you say she can testify as to what she has personal knowledge to. All that she has personal knowledge to is someone handed her a letter and said, here.
"THE COURT: Well, if — if — and I havent seen the letter. If it turns out the letter is written by Alisha Miller who happens to live in the State of Florida within 12 months before this case, I would agree it has no relevancy. But given sort of the limited information that I know about this letter, there appears to be at least a circumstantial case to be made that this letter is somehow connected to the Alisha Miller sitting in this court.
"[Prosecutor]: I can give you — she puts her fathers address as the address.
"THE COURT: So there would appear to be some nexus between this letter and your client. Am I incorrect about that?
"[Defense counsel]: I think there is a difference between there being a nexus and then being able to prove through competent evidence that theres a nexus.
"THE COURT: Well, but — right. But there appears to be a sufficient foundation for that to get in front of a jury.
"[Defense counsel]: So what is your ruling is [sic] the scope of her — Robin Shakelys testimony?
"THE COURT: What I am indicating is that Ms. Shakely can testify in terms of the nature of the allegation — things that are within her person [sic]. What I dont want her doing is coming in and saying, you know, I read a police report that said, you know, Jose was involved in this, this and this.
"[Defense counsel]: Well, I think — I mean, what else can she do?
"THE COURT: But this is what Im telling [the prosecutor], that I would find that objectionable. Well deal with it on a question-and-answer basis, but at this point in terms of your relevancy objection, that objection is overruled. Ms. Shakely can testify as to the scope of the matters that we have discussed here. If, in fact, there is something else that she says during the course of her testimony that is otherwise objectionable, make the objection at that time, and I will rule at that time."
Defendant did not make any further objection when Shakely testified about the letter or when the trial court admitted the letter into evidence.
The letter (with envelope) is found as an appendix to this opinion, post.
2. Analysis
Authenticity of a writing is a preliminary fact which is an ultimate jury question. (Evid. Code, § 403.)
Evidence Code section 403 provides in part: "(a) The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: . . . [¶] (3) The preliminary fact is the authenticity of a writing; . . . . [¶] (b) Subject to Section 702 [witnesss personal knowledge], the court may admit conditionally the proffered evidence under this section, subject to evidence of the preliminary fact being supplied later in the course of the trial. [¶] (c) If the court admits the proffered evidence under this section, the court: [¶] (1) May, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist. [¶] (2) Shall instruct the jury to disregard the proffered evidence if the court subsequently determines that a jury could not reasonably find that the preliminary fact exists."
The foundation of authentication is laid by the introduction of evidence sufficient to sustain a finding. (Evid. Code, § 1400; 2 Witkin, Cal. Evidence (4th ed. 2000) Documentary Evidence, § 7, p. 140.) "In other words, the preliminary fact of authenticity is first determined by the judge in ruling on admissibility, but is then subject to redetermination by the jury. [Citations.]" (2 Witkin, supra, at p. 140.) "In determining admissibility in cases in which the jury ultimately determines a preliminary fact [citation], the judge must admit the proffered evidence if any showing of preliminary facts is made `sufficient to sustain a finding of their existence." (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation At Trial, § 52, p. 85.) The jury must then make the final determination and should disregard the proffered evidence if it finds the preliminary fact has not been established. (Id. at pp. 86, 90-91.) The trial court has no sua sponte duty to so instruct the jury. (People v. Lewis (2001) 26 Cal.4th 334, 362.)
The decision whether the foundational evidence is sufficiently substantial is a matter within the trial courts discretion. (People v. Lucas (1995) 12 Cal.4th 415, 466.)
On appeal, defendant fails to acknowledge Evidence Code section 403 or the abuse of discretion standard of review.
Defendant instead argues the trial court erred because there was no evidence the handwriting was hers, and therefore the letter was not properly authenticated under Evidence Code section 1400, which provides: "Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law."
Although various means of authentication appear in Evidence Code sections 1411 to 1421, Evidence Code section 1410 states "Nothing in this article shall be construed to limit the means by which a writing may be authenticated or proved."
The People note the preliminary fact of authentication of a writing need not necessarily be shown by handwriting analysis or direct evidence; it may also be shown by such matters as content, location, or other circumstantial evidence. (People v. Gibson (2001) 90 Cal.App.4th 371, 383.)
In People v. Olguin (1994) 31 Cal.App.4th 1355, the prosecution sought to prove a street gang enhancement in a murder case by offering into evidence handwritten rap lyrics found in a search of the defendants home three weeks after the homicide. (Id. at p. 1372.) One song referred to its composer as "Vamp" (which was the defendants gang name), and the second song purported to be composed by "Franky" (the defendants first name was Francisco). The songs included references to Southside gang membership and could be interpreted as referring to disc-jockeying, which was the defendants part-time job. (Ibid.) The defendant argued the songs were inadequately authenticated. (Ibid.) The Fourth Appellate District disagreed, noting writings could be authenticated by means other than those specified in the Evidence Code, and the content and location of the lyrics pointed to the defendant as their creator. (Ibid.)
Defendant notes Jeffersons Evidence Benchbook is critical of Olguin. Jefferson said: "The courts decision [in Olguin] is faulty because Evid C § 1410, which makes clear that the statutes are not the exclusive means of authenticating writings, must be read in conjunction with Evid C § 1400, which defines authentication. Thus, under the facts of the case, the controlling question in Olguin must be whether sufficient evidence was introduced to sustain a finding that the rap lyrics were written by D [the defendant]. Apparently, no evidence was introduced to show that the handwriting in fact was Ds. Nor was there any genuine exemplar belonging to D. Without such preliminary showings, there could not possibly have been the requisite `evidence sufficient to sustain the trial courts conclusion that the songs were written by D. Because the songs could not be authenticated, they were clearly irrelevant and thus inadmissible." (1 Jefferson, Cal. Evidence Benchbook (3d ed.) § 30.25, p. 667.)
However, we think Olguin correctly applied Evidence Code section 1410, allowing authentication by evidence other than handwriting.
In this case, the letter and envelope contain adequate indicia pointing to defendant as the author. The return address on the envelope contained defendants name and the address of defendants father. The letter discussed defendants assault case and was signed Lonely (part of defendants nickname Lonely Girl). The record contains no evidence suggesting why someone other than defendant would write such a letter. These indicia suffice for purposes of Evidence Code section 403. (People v. Lucas, supra, 12 Cal.4th at p. 466 ["The court should exclude the proffered evidence only if the `showing of preliminary facts is too weak to support a favorable determination by the jury"].) We see no error in admission of the letter into evidence.
However, even assuming for the sake of argument the trial court abused its discretion in admitting the letter, defendant has not shown prejudice warranting reversal. Defendant argues the letter was prejudicial because it (1) connected her to a double-murderer (Ruiz), (2) revealed defendant avoided a 13 to 18 year sentence with a strike by taking a deal on the prior conviction (which defendant argues the jurors may have viewed as too lenient), and (3) indicated the Sureños planned to kill specified individuals viewed as "rats." However, there was other evidence connecting defendant to Ruiz and describing Sureño culture, and there was other evidence that defendant was on probation for a prior conviction upon which count three (felon in possession of firearm) was based. We reject as farfetched defendants speculation that the jury would have punished defendant in this case for having received lenient treatment in a prior case.
In the letter, the names of individuals who "ratted" on Ruiz were written and then crossed out which, according to the gang expert, meant the Sureños wanted to kill those persons.
Moreover, the record shows the letter did not prejudice defendant, because the jury found "not true" the gang enhancement attached to the gun possession count, thus rejecting the prosecutors attempt to use the letter and other evidence to show gang-related intent with respect to the gun possession.
This lack of prejudice also disposes of defendants argument that her trial counsel was ineffective for failing to object to the letter on the ground of Evidence Code section 352. In order to show ineffective assistance of counsel, a defendant must establish (1) counsels performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsels deficiency, the defendant would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 686, 691-692 ; People v. Holt (1997) 15 Cal.4th 619, 703.) Defendant cannot meet this test. We know the letter was not unduly prejudicial to defendant because, although the prosecution sought to use the letter to show defendant was a "shot caller" within the gang, the jury found "not true" the allegation that defendants gun possession was gang-related.
We conclude defendant fails to show grounds for reversal of the judgment based on admission of the letter into evidence.
III. Sufficiency of Evidence
A. Possession of Firearm — Sufficiency of Evidence
Defendant contends the prosecution failed to present substantial evidence to establish that she possessed a firearm, in order to support the conviction of felon in possession of a firearm (§ 12021). We disagree.
In reviewing the sufficiency of the evidence on appeal, we ask whether, considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) This standard also applies where the prosecution relies primarily on circumstantial evidence. (People v. Sanchez (1995) 12 Cal.4th 1, 32; People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.)
The elements of felon in possession of a firearm are conviction of a felony and ownership, possession, custody or control of a firearm. (§ 12021; People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) Knowledge is also an element of the offense. (People v. Snyder (1982) 32 Cal.3d 590, 592.) Possession may be constructive, which occurs when the defendant has a right to control the contraband or has dominion and control over the place where it is found, even if his or her right to exercise dominion and control over the place is shared with others. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) Constructive possession may be found when contraband is found in a place to which the defendant and others have access and over which none has exclusive control. (People v. Hutchinson (1969) 71 Cal.2d 342, 345.) Mere presence at the place where contraband is found, or proof of opportunity of access to a place where contraband is found, without more, will not support a finding of possession. (Id. at p. 346; People v. Redrick (1961) 55 Cal.2d 282, 285.) Possession may be proved by circumstantial evidence and inferences drawn from such evidence. (People v. Glass (1975) 44 Cal.App.3d 772, 774.)
Section 12021, subdivision (a)(1), provides that any person who has been convicted of a felony "who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony."
Here, there was evidence of defendants occupancy of the Pritchard address since January 2005 — two months before the contraband was seized by the police on March 9, 2005. Although the defense suggested at trial that defendant moved out after the February 24, 2005, shooting (including evidence the furniture was different on March 9 than on February 24 and the toilet did not work on March 9, defendant does not cite this evidence under this heading. Instead, she argues that, although there was evidence she lived there, there was no evidence she lived there alone. Rather, she shared the residence with others, including Biagi, who was the one who rented the house. Defendant did not have her own set of keys and slept on the sofa. Others had access to the bedroom. The gun was found under one of two mattresses on the bedroom floor, which according to defendant indicated at least two people slept in the bedroom. There was no evidence that any personal effects of defendant were found in the house.
However, on March 1, 2005, less than two weeks before the arrest in this case, defendant told Detective Ramos that she was living at the Pritchard address. Moreover, the house was small — about 500 square feet. Defendant was seen cleaning the kitchen shortly before the police arrived, from which it could be inferred she lived there and was involved in the housecleaning generally. The detective found defendant standing just inside the bedroom doorway; Carrillo was in the doorway of the adjoining bathroom. Defendant says in her appellate brief that Carrillo did not live at the Pritchard address. There was also evidence that defendant was involved in the drug-trafficking, because she asked Carrillo if he got it, and she came over to look at the bag of drugs. Law enforcement witnesses testified drug traffickers commonly have guns, and guns are commonly maintained by gang members who are involved in selling drugs — for the sellers protection and for use in committing additional gang-related crimes. Gun possession represents a mark of prestige in gang culture. There was evidence that defendant was a Sureño gang member and lived in a tiny house where gang members gathered and participated in methamphetamine sales. She was involved in the housekeeping and in the drug activity.
From this evidence, a reasonable trier of fact could find defendant possessed the firearm.
Defendants reply brief argues her cleaning of the kitchen on one occasion does not indicate she was responsible for general housekeeping. She also says it cannot be logically inferred that someone who cleans a house has knowledge of all objects within it. Defendant worries this would make culpable mothers of sons who hide contraband in their bedroom closet. However, we do not rely on the cleaning evidence alone. We look at the totality of the evidence, including the evidence that this was a tiny house, and that defendant was a gang member and was involved in the drug activity.
Defendant argues the People improperly cite their experts testimony that, in a house occupied by an identified gang member, with narcotics inside the house, one would reasonably expect to find a gun present. Defendant cites People v. Killebrew (2002) 103 Cal.App.4th 644, which said it was improper for a gang expert to opine that all gang members in three cars constructively possessed guns that were in two of the three cars. However, in Killebrew, the problems were that (1) the expert improperly testified to the subjective knowledge and intent of each occupant, rather than permissibly testifying about expectations of gang members in general, and (2) the experts testimony was the only evidence offered by the People to establish the elements of the crime. (Id. at pp. 658-659.) Here, the expert testified about expectations and was not the sole evidence on this point.
The federal cases cited by defendant do not govern here.
United States v. Highsmith (9th Cir. 2001) 268 F.3d 1141, vacated an enhancement on the ground there was insufficient evidence of constructive possession of a gun, where the gun was found on the day of the defendants arrest in a cohorts bedroom, along with drugs, and the evidence clearly established that the defendant dealt drugs from the bedroom but did not establish that he knew of the gun. (Id. at p. 1142.)
United States v. Ramirez (9th Cir. 1999) 176 F.3d 1179, reversed a conviction for marijuana offenses for insufficiency of the evidence, where the defendant was a mere passenger in a vehicle rented by a third party and driven by a codefendant; 46.4 pounds of marijuana was found in a spare tire; and there was no evidence the defendant participated in the drug activity or had dominion or control over the marijuana. The Ninth Circuit said the even if it deemed the evidence of the defendants nervousness to reveal his knowledge of the presence of the marijuana, mere knowledge was not enough without evidence of dominion or control. The defendant was not connected to the marijuana by any fingerprint evidence. He had no connection to the vehicle other than as a mere passenger. No drugs or cash were found on his person, and he did not attempt to evade arrest. (Id. at pp. 1181-1182.)
United States v. Kelso (9th Cir. 1991) 942 F.2d 680, vacated an enhancement, holding the presence of a gun in a bag with drugs found behind the drivers seat of a car was insufficient to establish possession by the passenger.
United States v. Rodriguez (9th Cir. 1985) 761 F.2d 1339, reversed a conviction for possession of counterfeit bills with intent to defraud, on the ground there was insufficient evidence of possession, where the defendants only demonstrated connection with the contraband was his presence in a motel room with counterfeit money, and there was no showing that the defendant had rented the room or that anything in the room belonged to him, and there was no other evidence from which it could be inferred that he was in any way connected to the contraband other than his ability to observe it. Rodriguez affirmed the conviction of the codefendant, however, because she exercised actual dominion and control over the contents of the room by taking steps characterized as "covering up." (Id. at p. 1340, 1341.)
United States v. Terry (9th Cir. 1990) 911 F.2d 272, which discussed instructional error regarding constructive possession, said, "All Ninth Circuit case law requires that the defendant have knowledge of the presence of the contraband as an element of constructive possession. The cases also add some element that distinguishes possession from mere presence or accessibility. It is not enough that a person has the power to control the contraband, in the sense that he simply is in the presence of the contraband and could reach out and take it." (Id. at p. 280.) The evidence here is stronger that in the federal cases cited by defendant.
We conclude substantial evidence supports defendants conviction for possession of a firearm.
B. Sufficiency of Evidence — Drug Offense
Defendant contends the evidence was insufficient to establish the prosecutions theory that she aided and abetted possession of methamphetamine for sale, providing "shelter for the transaction." We disagree.
The elements of possession of controlled substances for sale are dominion and control of the substance in a quantity usable for sale, with knowledge of the presence and restricted character of the substance. (People v. Martin (2001) 25 Cal.4th 1180, 1184.) A person aids and abets the commission of a crime when she, acting with (1) knowledge of the perpetrators unlawful purpose, and (2) intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates the commission of the crime. (People v. Croy (1985) 41 Cal.3d 1, 12; People v. Beeman (1984) 35 Cal.3d 547, 561.) Direct evidence of the mental state is rarely available and may be shown with circumstantial evidence. (Ibid.) To "aid" means to assist, to supplement the efforts of another, while "abet" means merely to incite or encourage. (People v. Elliott (1993) 14 Cal.App.4th 1633, 1641.) Mere presence at a crime scene or mere failure to prevent a crime does not make one guilty of aiding and abetting, but such factors may be circumstances that can be considered by the jury with the other evidence in passing on the defendants guilt or innocence. (People v. Durham (1969) 70 Cal.2d 171, 181.) In re Michael T. (1978) 84 Cal.App.3d 907, held evidence that the defendant was seen with the person who shot the victim, discussed the murder and said, "[w]e got him" was not sufficient evidence to support a murder conviction on an aiding and abetting theory. (Id. at p. 911.)
Defendant argues the evidence showed at most that she was present and knew the drug possession was occurring, not that she aided the crime. She says her mere presence at the house and her query ("did you get it") cannot support her conviction for aiding and abetting the possession of methamphetamine. She says her residence at the house was insufficient to establish that she provided "shelter for the transaction" (as argued by the prosecutor), because she did not rent the house (Biagi did), and there was no evidence defendant engaged in any "act" to aid the crime. Defendant argues if these facts suffice, then any person living at a shared residence with knowledge of a visitors possession of drugs would be guilty of aiding and abetting the drug offense.
However, as we have explained, we have more than mere presence and residence in a place used for drug sales. Defendant not only asked Carrillo, "did you get it," she also said, "oh great," or "oh yeah" and came over to look at the bag of methamphetamine. There was sufficient evidence that she provided shelter for the drug transaction in which her fellow gang member was engaged.
We conclude substantial evidence supports the drug conviction.
C. Sufficiency of Evidence — Criminal Street Gang
Defendant argues that, because there was insufficient evidence she aided and abetted the possession of methamphetamine for sale, her conviction for active participation in a criminal street gang (which was predicated on the drug offense) must also be reversed for insufficient evidence. Since we conclude there was sufficient evidence for the drug offense, this contention necessarily fails.
D. Sufficiency of Evidence — Section 12022(c) Enhancement
Defendant contends the evidence was insufficient to prove the enhancement in count one, that she was armed with a firearm in the commission of possession of methamphetamine for sale. We disagree.
Section 12022, subdivision (c), states, "any person who is personally armed with a firearm in the commission of a violation or attempted violation of Section . . . 11378 . . . of the Health and Safety Code, shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years."
The test for sufficiency of the evidence to support an enhancement is whether, after viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the elements of the enhancement beyond a reasonable doubt. (People v. Alvarez (1996) 14 Cal.4th 155, 225 [personal use of a deadly weapon].)
Defendant first argues the enhancement must be stricken because there was no evidence she possessed the firearm. We have already rejected defendants view of the evidence of gun possession.
Defendant argues there was no evidence showing a "facilitative nexus" between the gun and the drugs, as required by People v. Bland (1995) 10 Cal.4th 991 (Bland). However, Bland (which we address further post) indicated a sufficient nexus is shown if the defendant had the gun available for use in furtherance of the drug offense at some point during the possession of the drugs. Here, this test was met. It does not matter that defendant did not need to use the gun.
We conclude substantial evidence supports the enhancement.
IV. Claims of Instructional Error
A. Jury Instruction Re: Firearm Enhancement
Defendant argues the trial court erred in failing to instruct the jury sua sponte that the firearm enhancement on count one for "any person who is personally armed with a firearm in the commission of" the Health and Safety Code offense (§ 12022, subd. (c)) requires a "facilitative nexus" between the firearm and the underlying offense. We find no reversible error.
The trial court instructed the jury with CALJIC No. 17.16.1, as follows:
"It is alleged in Count One that in the commission of the felony therein described, defendants Jesus Carrillo[] and Alisha Miller were personally armed with a firearm. [¶] If you find a defendant guilty of the crime thus charged, you must then determine whether the defendant was personally armed with a firearm at the time of the commission of the crime. [¶] The term `armed with a firearm means knowingly to carry a firearm or have it available for offensive or defensive use. [¶] The word `firearm includes a revolver. The `firearm need not be loaded or operable. [¶] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true. [¶] Include a special finding on that question using a form that will be supplied for that purpose."
Defendants appellate brief says the instruction also referred to other types of firearms, but it did not.
Defendant complains CALJIC No. 17.16.1 failed to instruct the jury on the requirement of a "facilitative nexus" between the firearm and the drug possession. Citing People v. Bland, supra, 10 Cal.4th 991, defendant argues that, in order to prove the enhancement, the prosecutor was required to prove not only contemporaneous possession of illegal drugs and a gun but also evidence that "shows a nexus or link between the firearm and the drugs." (Id. at pp. 1001-1002.) Defendant argues no such nexus was present in this case, because Carrillos arrival with the drugs was fortuitous, Carrillo did not live at the house, and the drugs and the gun were never in the same room together. Defendant also cites her evidence that she did not live at the house or sleep in the bedroom, and she says there was no evidence that she knew a gun was in the house.
The parties note a similar issue concerning CALJIC No. 17.15 is currently pending in the California Supreme Court, in People v. Pitto (2005) 133 Cal.App.4th 1544, S139609, review granted February 8, 2006 (briefing completed June 6, 2006). The jury here was also instructed with CALJIC No. 17.15 (for the count two enhancement).
Even assuming defendant has not forfeited this contention by failing to request an instruction in the trial court, defendant fails to show grounds for reversal.
Bland does not help defendant. Bland held the trial court properly enhanced a defendants sentence for being armed with a firearm under section 12022, subdivision (a)(2), where the defendant was outside the house when the police found the gun under the defendants bed, in the same room where they found the drugs. Bland said drug possession is a crime that continues throughout the time the defendant has possession of the drugs, and the enhancement applies to a defendant who has been found guilty of drug possession and who, at some point during the illegal drug possession, had a gun available for use in furtherance of the drug offense. (Id. at p. 1001.)
Bland said: "Of course, contemporaneous possession of illegal drugs and a firearm will satisfy the statutory requirement of being `armed with a firearm in the commission of felony drug possession only if the evidence shows a nexus or link between the firearm and the drugs. The federal courts, in interpreting the federal counterpart to Californias weapons enhancement law [citation] have described this link as a `facilitative nexus between the drugs and the gun. [Citation.] Under federal law, which imposes specified prison terms for using or carrying a firearm `"during and in relation to" a crime of drug trafficking, `the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence. [Citation.] So too in California.
". . . With respect to felony drug possession, a defendant is armed `in the commission of that crime so long as the defendant had the firearm available for use in furtherance of the drug offense at some point during the defendants possession of the drugs. Thus, by specifying that the added penalty applies only if the defendant is armed with a firearm `in the commission of the felony offense, section 12022 implicitly requires both that the `arming take place during the underlying crime and that it have some `facilitative nexus to that offense. Evidence that a firearm is kept in close proximity to illegal drugs satisfies this `facilitative nexus requirement: a firearms presence near a drug cache gives rise to the inference that the person in possession of the drugs kept the weapon close at hand for `ready access to aid in the drug offense.
"To summarize, when the prosecution has proved a charge of felony drug possession, and the evidence at trial shows that a firearm was found in close proximity to the illegal drugs in a place frequented by the defendant, a jury may reasonably infer (1) that the defendant knew of the firearms presence, (2) that its presence together with the drugs was not accidental or coincidental, and (3) that, at some point during the period of illegal drug possession, the defendant was present with both the drugs and the firearm and thus that the firearm was available for the defendant to put to immediate use to aid in the drug possession. These reasonable inferences, if not refuted by defense evidence, are sufficient to warrant a determination that the defendant was `armed with a firearm in the commission of a felony within the meaning of section 12022." (Bland, supra, 10 Cal.4th at pp. 1002-1003, fn. omitted.) Bland noted the facilitative nexus is not an intent requirement. (Id. at p. 1003, fn. 5.)
Here, the evidence was that a firearm was kept in close proximity to illegal drugs, and there was no contrary evidence. Defendant characterizes the presence of drugs as completely fortuitous and unconnected to the weapon. However, this supposes Carrillo acted alone, whereas the evidence indicated Carrillo and defendant were both involved in the drug activity which took place in the tiny shelter provided by defendant and furnished with a gun.
Defendant cites case law that the failure to instruct on an element of an enhancement is federal constitutional error, requiring reversal unless it can be shown beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324 [failure to instruct on primary activities element of criminal street gang enhancement provision was subject to Chapman standard (Chapman v. California (1967) 386 U.S. 18) because the enhancement increased the penalties for the underlying crimes].)
However, facilitative nexus is not an element of the enhancement. Even assuming the Chapman standard applies, the absence of an instruction on facilitative nexus was harmless beyond a reasonable doubt. The jury rejected defendants theory that Carrillo acted on his own in selling drugs. Although the gun and the drugs were not in the same room, they were in close proximity in an extremely small house. Moreover, the ammunition for the gun was found right next to the baggies indicating sale.
Defendant fails to show reversible instructional error.
B. Jury Instruction — Constructive Possession
Defendant contends the trial court erred in refusing to instruct the jury with her proffered instruction that mere proximity to contraband (the drugs or the gun) on shared premises does not constitute constructive possession. We see no grounds for reversal of the judgment.
Defendants proffered instruction said:
"When premises are shared by more than one person, mere proximity to contraband, presence on the property where it is found, and association with a person or persons having control of it are all insufficient to establish constructive possession. However, these factors may be considered, in conjunction with other evidence, in determining whether the defendant had dominion and control over the contraband."
The trial court rejected this instruction (as well as the prosecutors proffered pinpoint instruction), expressing concern that "by giving that laundry list of factors to the jury, the juror may have a tendency to believe that [the] Court is somehow finding that those factors exist."
Defendant cites People v. Wharton (1991) 53 Cal.3d 522 at page 570, that a defendant is entitled upon request to an instruction pinpointing the defense theory. In a footnote, with citation to federal case law, defendant asserts the failure to instruct on the elements of an offense or a relevant defense compromises the federal constitutional right to trial by jury under the Sixth Amendment.
We find it unnecessary to address the Peoples contention that defendants proffered instruction was confusing, incomplete, and otherwise improper. Even assuming the instruction was proper, the trial courts refusal of a pinpoint instruction is harmless where other instructions adequately cover the appropriate principles. (People v. Ledesma (2006) 39 Cal.4th 641, 720-721; Wharton, supra, 53 Cal.3d at p. 572 [applying Watson standard of harmless error to trial courts refusal to give pinpoint instruction].)
Here, the trial court instructed the jury as follows:
"The law recognizes two kinds of possession: actual possession and constructive possession.
"`Actual possession requires that a person knowingly exercise direct physical control over a thing.
"`Constructive possession does not require actual possession but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons.
"The law recognizes that one person may have possession alone, or that two or more persons together may share actual or constructive possession."
The court also instructed the jury with similar language regarding possession of the drugs.
Thus, the jury was properly and adequately instructed on the appropriate legal principles. Moreover, it is not reasonably probable that defendant would have obtained a more favorable result had her proffered instruction been given. Her claim that she was a mere visitor was undercut by the evidence that, less than two weeks earlier, she had told a police detective she lived there, and she was cleaning the house on the day in question. There was no evidence the gun belonged to anyone else. There was evidence defendant was involved in drug activity and gang activity, as we have recounted.
Defendant fails to show she was prejudiced by the trial courts refusal to give the instruction. Her appellate brief gives scant attention to the question of prejudice. She merely says the court prejudicially erred in failing to give the instruction, since the principle covered was basic to the jurys determination of the case, and the evidence was very weak.
We conclude defendant fails to show reversible instructional error.
V. Claim of Prosecutorial Misconduct
Defendant claims the prosecutor engaged in egregious misconduct depriving her of a fair trial, in violation of the Fifth and Fourteenth Amendments to the United States Constitution. We see no grounds for reversal.
The prosecutor in closing argument has broad discretion to state his or her views as to what the evidence shows and what inferences may be drawn from the evidence. (People v. Sims (1993) 5 Cal.4th 405, 463.) A prosecutors improper remarks or intemperate behavior can infect the trial with unfairness so as to render the resulting conviction a denial of due process. (People v. Valdez (2004) 32 Cal.4th 73, 122.) However, actions by a prosecutor that do not render a criminal trial fundamentally unfair will violate a defendants state law due process right only if the actions involve the use of deceptive or reprehensible methods to attempt to persuade the jury. (Ibid.)
To preserve for appellate review a claim of prosecutorial misconduct, the defendant must make a timely objection and request an admonition. (People v. Valdez, supra, 32 Cal.4th at p. 122.) Absent such an objection and request, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. (Ibid.)
To prevail on a claim of misconduct based on a prosecutors statements to the jury, the defendant must show a reasonable likelihood the jury understood or applied the statements in an improper or erroneous manner. (People v. Frye (1998) 18 Cal.4th 894, 970.) The appellate court considers the contested statements in context and does not lightly infer that the jury drew the most damaging meaning from the words. (Ibid.; People v. Dennis (1998) 17 Cal.4th 468, 522.)
Defendant breaks down the alleged misconduct into the following categories.
A. Matters Not in Evidence
Defendant complains the prosecutor committed prejudicial misconduct by comparing her case to O.J. Simpsons and the movie character Scarface in closing argument to the jury.
In arguing the jury should disregard the defense expert witness, the prosecutor argued:
"[E]xperts can make or break a case.
"Theres a very, very famous case that all of you are well aware of because i[t] happened in our life time. And its People v. OJ Simpson. [¶] A case, as a prosecutor, we are just in awe of the amount of evidence they had in that case, incredible evidence to suggest that he, beyond any doubt decapitated both his wife and Mr. Goldman. Okay. [¶] There was blood on his socks. There was, there was blood in the car. There was, there were hairs — there was all kinds of evidence. Its a frightening case. [¶] Well, in that case, the Defense called an expert, a pathologist who is probably the most immanent [sic] pathologist in the world, Doctor Baden to testify in the Defense of O.J. Simpson. [¶] And Doctor Baden had a CV, a curricula vitae that . . . was as large as Mount Olympus. He had done everything. He had done so many, autopsies, criminal investigations, testified for DAs office in LA, New York. You name the organization he belonged to it in the medical pathological field. [¶] He was, he has an incredible CV. We see him on TV all the time. Hes on all the shows. He testified for two days in that case. And his testimony was, it was, in essence, uh, it ended up being very damaging to the Peoples case because he was able to suggest by being inconclusive about this window of time between the jugular vein being cut and blood seeping into the lungs of the two victims, he tried to expand it.
"[Codefendants counsel]: Object. Improper argument, your Honor.
"THE COURT: Sustained.
"[Prosecutor]: He argued — he, he was able to suggest that this cut on OJs finger was from when a glass was broken in this sink in a hotel room, and that he somehow whirled it on the back of his hand. Totally unreasonable conclusion.
"[Defendants counsel]: I object improper argument.
"THE COURT: Sustained. [¶] Counsel why dont you approach.
"[Side bar conference.]
"[Prosecutor]: The jury acquitted in that case. And the expert testimony was very damaging to the Peoples case. There was a lot of other problems in that case in terms of how it was presented.
"Thats kind of where I see Doctor Hernandez [the defense expert]. Okay. Hes just a hired gun. You name a price, hell come in here and say these are just misguided youth, and they are not."
Defendant says the prosecutor also called the defense expert a "whore" and "quack," but those words were used earlier in closing argument, not in connection with the O.J. Simpson comparison.
As to Scarface, the prosecutor argued to the jury:
"Its a little bit like the movie Scar Face [sic] with Al Pacino, where you have a financier who finances this giant crime drug operation. That financier never touches the dope, never even sees the dope, but hes obviously an aider and abettor in that crime. [¶] The question is not: Did Alisha Miller aid and abet the possession for sale of methamphetamine in a frozen moment in time. Its did she aid and abet in this crime. And of course she did. You know it. [¶] She may not be the financier of Scar Face [sic], okay, but shes the one with the connection to that house. Shes the one with the strongest connection to that house. Every time law enforcement is there, shes there. Every time we have pictures from that house, shes in those pictures. All right. [¶] Shes the one who provides a cover for this operation. Shes the one who provides shelter for the transaction that you saw in this case."
Defendant complains the prosecutor thus argued matters not in evidence. Defendant acknowledges a prosecutor may refer to non-evidentiary matters of common knowledge, or to illustrations drawn from common experience, history or literature, but defendant argues the prosecutor may not dwell on the particular facts of unrelated unsubstantiated cases. (People v. Hill (1998) 17 Cal.4th 800, 819; People v. Mendoza (1974) 37 Cal.App.3d 717, 725.)
We agree with defendant that the O.J. Simpson case had no place in this case. However, the trial court sustained defendants objections. Defendant did not request that the jury be admonished. The failure to seek an admonition generally forfeits a contention of prosecutorial misconduct, except where admonition would be futile or where the trial court does not provide defense counsel with the opportunity to seek an admonition. (People v. Farnham (2002) 28 Cal.4th 107, 167.) Here, there is no indication that an admonition would be futile or that the trial court prevented a request for admonition.
As to the references to Scarface, defendant failed to object and fails to show an objection would have been futile. She has therefore forfeited the contention. (Valdez, supra, 32 Cal.4th at p. 122.)
B. Gang Evidence
Defendant argues the prosecutor urged the jury to use the gang evidence for an improper purpose.
Defendant cites the following remarks of the prosecutor:
"When gang members get guns, its not to go duck hunting. All right. They get guns to kill people with. Thats what guns are for in a gang culture."
"[Y]ou can fold down her lower lip or [sic] see NK for Norteño killer [a tattoo on defendants lip]. Thats something thats very much in her mind. In order to be a Norteños killer, you need a gun, depending how youll perpetrate that crime. [¶] Guns are her. Its part of her life."
"Shes sitting next to the shooter [in one of the predicate crimes], for Gods sake in the drive-by shooting. Shes the one who instigates, who starts the stabbing of Gordy Adame [sic ]. Shes not in the peripheral. Shes at the end of those two operations. Okay. Shootings. Stabbings. [¶] She is not in the peripheral. Shes not some innocent girl who walks into that house at Pritchard with her eyes closed, with her ears shut. Shes got her eyes wide open. Okay. [¶] She is, in Tettes word, shes a good gangster. She knows what it is to be a gangster. She knows what it is to teach the young kids, the young up and coming gangsters. And she knows how to get away with crime. Okay. Thats who she is."
"[L]ets talk about the limiting instruction [that Carrillos counsel obtained] on gangs. It does not say that you can only consider these predicate offenses for the presence of a gang, thats not only what it says. Im going to read through it and talk a little bit about it. Bare [sic] with me. [¶] [`]Evidence has been introduced for the purpose of showing criminal street gang activities, and of criminal acts by gang members other than the crimes for which the defendants are on trial. [¶] This evidence if believed may not be considered by you to prove that the defendant is a person of bad character, or that he or she has a disposition to commit crimes.[] [¶] Thats not what we are introducing here. Im not trying to scare you into convicting these individuals. . . . [¶] Its not about either of them being bad people. Thats not what we are here for. Its: Did they break the law. Okay. [¶] And, and it [the instruction] goes on to say: [`]It may be considered by you only for limited purpose of determining if it tends to show that the crime or crimes charged were committed for the benefit of, at the discretion [sic] of, or in association with a criminal street gang.[] Et cetera, et cetera. [¶] All that stuff that you heard about Alisha Miller, her involvement in thefts, her involvement in the stabbing and the shooting, her letter to Brandon Ruiz, whatever, it goes to her intent, it goes to her mind as shes committing these crimes. [¶] All of the crimes except the drug allegation itself, has, has a gang allegation, or is a substantive gang charge. [¶] The gun, in order to talk about whether she possessed that gun for the benefit of a gang, you have to talk about this stuff. Okay. [¶] It goes to her intent and motive as to this whole operation as to whether this crime was committed, this predicate itself, the crime that you are about to decide was committed, is a predicate offense. [¶] So do not think that you can, you can only consider all that evidence for the limited purpose of whether theres a gang, and then just leave it, ignore it."
Even assuming the prosecutors remarks were improper, defendant failed to object and fails to show an objection would have been futile. She has therefore forfeited the contention that the prosecutor urged the jury to use the gang evidence for an improper purpose. (Valdez, supra, 32 Cal.4th at p. 122.)
Moreover, we cannot help but observe the jury found "not true" the allegation that the possession of the firearm was gang-related. This finding renders harmless the prosecutorial misconduct asserted by defendant, that the prosecutor improperly urged the jury to convict defendant of the firearm offense because she needed the gun to kill Norteños.
C. Vouching for or Insulting the Witnesses
Defendant complains of the following remarks by the prosecutor in closing argument:
1. "I ask that you take this case seriously, and that you give it the kind of effort that [prosecution gang expert] Rob Tette does when hes out there on the street monitoring these gang members at the behest of this Court." (Italics added.)
2. "This is not some witch hunt. Okay. Its based on discriminating officers investigating." The trial court sustained defendants "vouching" objection.
3. "You know he [the defense expert] gets $1900 on this case, $ 1900 from the county while collecting a salary from the State to come in and tell you these are not gang members, they are misguided youth. That is down right offensive. [¶] His testimony is worthless. He is what we in the profession call a whore. Hes a quack."
Defendant failed to object to these comments, except for one "vouching" objection, which was sustained but for which defendant did not request an admonition.
Defendant argues objections and admonitions would not have cured the harmful effect of the repeated acts of prosecutorial misconduct. We disagree. Defendant seeks to compare her case to People v. Johnson (1981) 121 Cal.App.3d 94, where the prosecutor told the jurors he investigated the case and found a defense witness was lying. However, the prosecutors conduct in our case did not rise to that level. The prosecutor did not suggest he had information undisclosed to the jury bearing on witness credibility or veracity. Moreover, harsh and colorful attacks on the credibility of opposing witnesses are permissible. (People v. Sandoval (1992) 4 Cal.4th 155, 180; People v. Cummings (1993) 4 Cal.4th 1233, 1302.)
Defendant cites People v. Buchtel (1963) 221 Cal.App.2d 397 at page 403, which noted trial lawyers are aware that admonitions to a jury can be counterproductive, transforming the inconsequential into indelibility. However, Buchtel found no grounds for reversal, and defendant fails to persuade that reversal is warranted in this case.
Defendant summarily argues that, if objections and admonitions would have been effective, then her counsel rendered ineffective assistance by failing to make objections. However, defendant fails to develop an analysis on this point. We therefore need not consider it. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [reviewing court may disregard contentions perfunctorily asserted without development].)
Since we conclude defendant has failed to preserve any issue of prosecutorial misconduct by failing to object or by failing to request admonitions when she did object, we need not address defendants argument that the prosecutors misconduct was prejudicial.
We conclude defendant fails to show any grounds for reversal based on prosecutorial misconduct.
VI. Prior Conviction
Defendants opening brief on appeal argued the trial court failed to conduct a court trial on the prior conviction allegation. After the filing of the respondents brief, defendant filed an "errata" withdrawing this contention. We therefore need not consider it.
DISPOSITION
The judgment is affirmed.
We concur:
HULL, J.
ROBIE, J.