Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA057247, George G. Lomeli, Judge.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
The jury convicted defendant and appellant Jose Mojarro, Jr., of two counts of first degree murder and found true as to each count the special circumstance allegations that he committed more than one murder, and that he intentionally committed the crimes for the benefit of a criminal street gang. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(3), (22).) The jury also found true the firearm and gang enhancement allegations in each count. (§§ 12022.53, subds. (b)-(e), 186.22, subd. (b)(1).) The trial court imposed two consecutive terms of life without the possibility of parole, two consecutive terms of 25 years to life, a restitution fine (§ 1202.4, subd. (b)), and a parole revocation fine that was stayed (§ 1202.45).
All further undesignated statutory references are to the Penal Code.
In this appeal from the judgment, Mojarro raises numerous issues concerning the denial of his Wheeler/Batson motions, the admission and exclusion of evidence, the failure to disclose impeachment evidence, the sufficiency of the evidence to support the gang-related special circumstance and enhancement allegations, the denial of his new trial motion, the imposition of fines, and the award of custody credits. After striking the parole revocation fine and granting an additional day of custody credit, we affirm the judgment as modified.
People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79.
STATEMENT OF FACTS
On March 5, 2005, Jonathan Hernandez (the victim in count 1) and Hector Bonilla (the victim in count 2) were fatally shot while attending a birthday party at the Moose Lodge in Santa Monica. The prosecution initially filed identical charges against three individuals regarding the shootings: appellant Mojarro and Erick Nunez, who were jointly tried in the proceedings below, and William Vasquez, who was tried separately.
At trial, the prosecution’s theory was that Mojarro and Vasquez were the shooters, and that Nunez was the aider and abettor. The prosecution dismissed the special circumstance allegation that Nunez intentionally committed the crimes for the benefit of a criminal street gang. (§ 190.2, subd. (a)(22).)
The jury convicted Mojarro and Nunez of two counts of first degree murder. It found true the two special circumstance allegations against Mojarro (§§ 190.2, subd. (a)(3) [multiple murders], (22) [intentional gang killing]), and the remaining special circumstance allegation against Nunez (§ 190.2, subd. (a)(3) [multiple murders]). (§ 187, subd. (a).) However, in a prior appeal, we reversed the special circumstance finding as to Nunez, based on the absence of a finding that he acted with an intent to kill. (People v. Nunez (Sep. 29, 2010, B215886) [nonpub. opn.].) We modified Nunez’s sentence and affirmed the judgment as modified.
As a result of the prior appeal, we are familiar with the record of Mojarro’s joint trial with Nunez. The following statement of facts is taken from our prior opinion (People v. Nunez, supra, B215886 [at pp. 2-5]):
“On the evening of March 5, 2005, several individuals hosted a birthday party at the Moose Lodge in Santa Monica. Over 100 people attended the party, including members of the 18th Street, Santa Monica 17th Street, and Venice 13 gangs. At approximately 11:00 p.m., a fight broke out between several young men. Two of the participants were Jonathan Hernandez [the victim in count 1] and Hector Bonilla [the victim in count 2], who were members of the Santa Monica 17th Street gang. According to one witness, Hernandez and Bonilla were getting the better of the fist fight. At that point, two of the men who were fighting with Hernandez and Bonilla pulled handguns and began firing. When the dust settled, Hernandez and Bonilla had been shot several times. They died from their wounds.
Two people told police there was only one shooter.
“After the shooting, police officers arrived at the Lodge and began investigating. Several bullet casings, strikes, and fragments were found in the Lodge. Forensics experts determined that two semiautomatic handguns were used in the shooting, with 12 bullets being fired from one gun and 14 from the other.
“Eventually, [Mojarro, Nunez, and Vasquez, ] members of the 18th Street gang, were arrested and charged with the two murders. Mojarro and [Nunez] were jointly tried. As was evident from the testimony, eyewitness accounts varied widely. Several said that one of the shooters wore a red T-shirt and red hat, and some identified that individual as William Vasquez. Witnesses stated that the second shooter wore a blue jacket or sweatshirt over a white shirt. Some [witnesses, including Ramon Mendoza, ] identified Jose Mojarro as that shooter. Two witnesses testified that [Nunez] was at the party. One, Ramon Mendoza, testified that he originally told police that [Nunez] was one of the shooters. Prior to the preliminary hearing, [Mendoza] informed officers that he had been mistaken. At trial, [Mendoza] said [Nunez] was one of the participants in the fight, but was not a shooter.
“Officer Edgar Hernandez testified as a gang expert for the prosecution. He stated that the 18th Street gang was from Los Angeles, with several different sets or cliques. ‘Alsace’ and ‘Smiley Drive’ were two of the cliques and their territories were in West Los Angeles. The 18th Street gang did not have any territory in Santa Monica. The members of the gang used common symbols such as ‘18’ and ‘XVIII.’ [Nunez] belonged to the Smiley Drive clique, as evidenced by tattoos of ‘XVIII, ’ ‘18, ’ ‘SD, ’ ‘Smiley Drive, ’ and ‘West Side’ on his chest and arms. Mojarro and Vasquez belonged to the Alsace clique. The gang’s primary activities included robbery, extortion, narcotics sales, and assault. Given a hypothetical fact pattern based on this case, Officer Hernandez opined that the instant murders were committed for the benefit of the 18th Street gang and that the three gang members were acting in concert.
“Los Angeles County Deputy Sheriff Russell Helbing told the jury that on January 25, 2006, he and his partner stopped [Nunez’s] car for failing to stop at a red light. As the deputies approached [Nunez’s] vehicle, [Nunez] quickly exited and began firing at them. The deputies returned fire and [Nunez] sped away. The police vehicle was struck by gunfire five times. A pursuit ensued, during which [Nunez] drove at excessive speed and ran red lights. He was subsequently taken into custody. When [Nunez] was advised by a detective that he was being arrested for the Moose Lodge shooting, he responded, ‘My run has ended.’
“[Nunez] testified in his defense. [Nunez] admitted that he was a member of the Smiley Drive clique of the ‘infamous 18th Street’ gang and that he would kill anyone who disrespected him. [Nunez] stated that his reputation for being dedicated to the gang was important to him. [Nunez] acknowledged he was at the party at the Moose Lodge on the night of the shooting. [Nunez] claimed that he mingled with friends and was under the influence of Ecstasy, a drug. At one point, a man approached and asked [Nunez] what his gang affiliation was. After [Nunez] responded that he was from 18th Street, the man disrespected him by saying, ‘So what?’ The male stated that [Nunez] was in his hood. [Nunez] became angry and ‘socked’ him, and they started to fight. [Nunez] said he pulled out his two handguns and shot the man he was fighting and another male who ran toward them. [Nunez] denied that Vasquez or Mojarro was with him. [Nunez] said he did not know Vasquez personally, although he was aware that Vasquez was an 18th Street gang member. [Nunez] admitted he had been convicted of robbery in 2002 and attempted murder in 2006. [Nunez] told the jury that he had been sentenced in the attempted murder case to a term of 194 years to life.
“[Nunez] called an expert, who testified about factors that affect the accuracy of eyewitness identifications.
“Mojarro called Rachel Herrera and Michael Espindola. Herrera said she saw a person wearing a red shirt and red hat pointing a handgun toward the ground. She was able to describe only one shooter. Espindola was at the party and he noticed that Mojarro, whom he had seen on prior occasions, was present. Espindola did not see Mojarro shoot either of the victims.
“Officer Michael Bambrick testified that Mendoza, the witness who identified [Nunez], told him that one person shot the victims. Mendoza described the shooter as wearing a white T-shirt and a dark sweatshirt.
“Mojarro’s mother testified that on the night of the shooting she saw her son at home at 8:00 p.m. and again at 11:30 p.m. At 11:30 p.m., Mojarro was asleep on the couch. She recalled that on the day of the shooting, her son wore blue jeans and a gray T-shirt.”
DISCUSSION
I. The Wheeler/Batson Motions
During voir dire, the prosecutor exercised peremptory challenges against four prospective jurors who were presumed to be Hispanic (juror numbers 6, 33, 29, 27). Mojarro contends the court erred in denying his Wheeler/Batson motions concerning those challenges. The contention lacks merit.
A. The Applicable Law
When a party makes a Wheeler motion, “First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.]” (People v. Lenix (2008) 44 Cal.4th 602, 612-613.) A defendant establishes a prima facie case “by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson v. California (2005) 545 U.S. 162, 170.)
“‘Jurors may be excused based on “hunches” and even “arbitrary” exclusion is permissible, so long as the reasons are not based on impermissible group bias.’ [Citations.]” (People v. Watson (2008) 43 Cal.4th 652, 670.) Counsel also may properly rely on a juror’s body language or manner of answering questions in exercising a challenge. (People v. Reynoso (2003) 31 Cal.4th 903, 917.)
“Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions.” (People v. Lenix, supra, 44 Cal.4th at p. 613.)
B. The Prosecutor’s Stated Explanations for the Four Disputed Challenges
In this case, after each of the four disputed challenges, the trial court asked the prosecutor to provide reasons for excusing each juror. As the court did not declare otherwise, we will assume that it found a prima facie case of discrimination.
1. Juror Number 6
Juror number 6 stated that he was a customer service representative who explained the rules of immigration law to “[p]eople who have problems with immigration law, coming to this country, residents, work permits, citizenship, stuff like that.” However, he was not a lawyer and did not give legal advice. In response to questioning by defense counsel, juror number 6 said that he could be fair and that he would not judge a witness’s credibility on the manner in which the witness dressed. He acknowledged that he would not convict a person on less evidence simply because that person was a gang member.
The prosecutor explained his peremptory challenge by saying that juror number 6 worked “with immigration law, the issue of deportation, ” and that the subject of Nunez’s deportation would arise in the case. The prosecutor noted the juror counseled people about immigration, which “makes me feel as though he’s more sympathetic to individuals within that area.” The prosecutor also asserted that juror number 6 shook “his head in a very strong manner” in response to a question about whether a defendant’s status as a gang member lessened the People’s burden of proof and this led him to believe that the juror was defense-oriented.
2. Juror Number 33
Juror number 33 said that his stepson had been shot and killed by a stray bullet in a gang-related shooting in East Los Angeles. His stepson was not a gang member. The juror did not remember the name of the gang involved. He attended the trial of the person arrested for the shooting. The accused was found not guilty. Juror number 33 said the outcome disturbed him, but he did not form any negative impressions about the attorneys involved.
The prosecutor explained that he had excused this juror because he doubted that the juror had not formed any negative impressions about the legal system. He also did not believe the juror had forgotten the name of the gang involved in the shooting.
3. Juror Number 29
Juror number 29 stated that she had family members, friends, and coworkers who were former gang members, but she assured the court that she could be fair in deciding this case. She noted that because of where she grew up and where she then lived, gang members were “inevitably... part of the culture.”
The prosecutor explained that he had excused this juror because of her many ties to former gang members.
4. Juror Number 27
Juror number 27 explained that during the 1970’s, he and an African-American friend were in a liquor store when sheriff’s deputies called them over. The juror did not obey them, but his friend did. The deputies struck and taunted his friend. Juror number 27 stated that nonetheless he did not harbor any resentment toward officers. The juror had a daughter who did social work for the Los Angeles County Department of Mental Health.
When the prosecutor challenged this juror, he cited the juror’s experience with the police officer, noting that the juror “watched a cop beating” and “defied the police’s authority” by failing to comply with the officer’s command. The prosecutor also stated the juror’s “wife” (we assume he meant daughter) had a job in the mental health profession and opined the juror’s background “predisposed” him toward the defense.
C. Analysis of the Trial Court’s Rulings
Mojarro contends the prosecutor’s stated reasons for excusing the four panelists were not supported by the record, but were pretextual and gave rise to an inference of discriminatory intent. We disagree.
As previously stated, we review the trial court’s denial of a Wheeler/Batson motion under a deferential standard, and examine “only whether substantial evidence supports its conclusions.” (People v. Lenix, supra, 44 Cal.4th at p. 613.) As long as the prosecutor’s reason is nondiscriminatory, we need not agree with its logic. (See People v. Cruz (2008) 44 Cal.4th 636, 655 [“‘A reason that makes no sense is nonetheless “sincere and legitimate” as long as it does not deny equal protection.’”].)
Under this standard, we conclude the trial court’s determination that the prosecutor’s peremptory challenges were not racially motivated was within the court’s discretion, as supported by the record.
1. The Record Supports the Trial Court’s Ruling
Juror Number 6.
The prosecutor cited several race-neutral reasons for believing that juror number 6 would be sympathetic to the defense: He counseled individuals who had problems with immigration issues, and there would be evidence that Nunez was deported after he was arrested for a parole violation; he said he did not believe a witness’s appearance on the stand was a relevant factor in judging credibility and the prosecutor disagreed, stating that factors such as how a witness dresses or acts on the stand are highly relevant in weighing the truthfulness of a witness’s testimony; and the juror responded strongly in agreeing that a defendant’s gang status had no bearing on the People’s burden of proof. The combination of these factors reasonably supports the prosecutor’s belief that the juror was likely to be pro-defense. Even if reasonable minds could disagree, the trial court acted within its discretion in concluding that the prosecutor’s belief was sincere and legitimate, and was not racially motivated. (See People v. Cruz, supra, 44 Cal.4th at p. 655.)
Juror Number 33.
The prosecutor stated that juror number 33 had experienced the tragedy of losing a stepson to a gang-related shooting and had sat through a trial where the accused shooter was acquitted. The juror also claimed he did not recall the name of the gang involved. Although he professed not to have formed any negative impressions about the legal system, the prosecutor could reasonably have concluded otherwise.
Juror Number 29.
The prosecutor’s justification for excusing juror number 29 was that she had many family members, friends, and coworkers who were former gang members. In a comparative analysis argument, Mojarro contends that the prosecutor accepted other non-Hispanic jurors, numbers 49 and 50, with similar ties. However, the prosecutor ultimately excused juror number 50; and unlike juror number 49, who simply “thought” that she had relatives who were gang members, juror number 29 said that “everybody” she knew, from family, friends, and coworkers, was a former gang member. In addition to recognizing that “comparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination” (People v. Lenix, supra, 44 Cal.4th at p. 622), the disparity in the number of gang members they knew and their descriptions of the relationships demonstrated a lack of similarity. Accordingly, the trial court did not abuse its discretion in crediting the prosecutor’s excusal of juror number 29.
Comparative analysis would require us to examine whether the prosecutor’s proffered reason for striking a Hispanic juror applied to a non-Hispanic juror who was allowed to serve. (See People v. Lenix, supra, 44 Cal.4th at p. 621.) There is nothing in the record that allows us to determine the race of juror number 49. However, as the Attorney General assumes the juror was not Hispanic, we address appellant’s claim on the merits.
Juror Number 27.
The prosecutor cited juror number 27’s prior bad experience with the police, during which he witnessed a friend get beaten. The race-neutral reason for challenging this juror from a prosecutor’s point of view is self-evident. In his reply brief, Mojarro abandons this issue by conceding that “a prospective juror’s prior negative experience with law enforcement may justify a prosecutor’s strike of that juror.”
2. Further Inquiry Was Not Required
Mojarro contends that the prosecutor’s failure to engage in further voir dire to clarify his stated concerns demonstrates that his explanations were a sham and a pretext for discrimination. The contention lacks merit.
In the case cited by Mojarro, Miller-El v. Dretke (2005) 545 U.S. 231 (Miller-El), the prosecutor had removed a Black juror who, according to his voir dire testimony, was an “outspoken” advocate of the death penalty. (Id. at p. 244.) Given that the juror had spoken in favor of the death penalty, the Supreme Court found the prosecutor’s stated reasons for removal—that the juror would not vote for the death penalty if rehabilitation was possible—were based on either a misunderstanding or a mischaracterization of the voir dire testimony and therefore were not credible. In light of the discrepancy between the voir dire testimony and the prosecution’s stated reasons, the Court questioned the prosecutor’s failure to engage in further voir dire to clarify the matter, stating: “Thus, [the prosecutor] simply mischaracterized [the prospective juror’s] testimony. [The prosecutor] represented that [the prospective juror] said he would not vote for death if rehabilitation was possible, whereas [the prospective juror] unequivocally stated that he could impose the death penalty regardless of the possibility of rehabilitation. Perhaps [the prosecutor] misunderstood, but unless he had an ulterior reason for keeping [the prospective juror] off the jury we think he would have proceeded differently. In light of [the prospective juror’s] outspoken support for the death penalty, we expect the prosecutor would have cleared up any misunderstanding by asking further questions before getting to the point of exercising a strike.” (Ibid.)
In contrast with Miller-El, where the prosecutor’s explanation for dismissing a juror was at odds with the voir dire responses, in this case, the prosecutor’s stated reasons for dismissing juror numbers 6, 33, 29, and 27 are supported by the record. Accordingly, we have no reason to question the lack of further voir dire in this case. In the absence of a discrepancy as in Miller-El, a prosecutor’s failure to ask further questions does not in itself give rise to a reasonable inference that the stated reasons were a sham and a pretext for discrimination.
3. The Trial Court Properly Exercised Its Discretion
Based on Mojarro’s view that (1) the prosecutor’s stated “justifications for disproportionately exercising his peremptory challenges against Hispanics were riddled with errors, unrelated to the case to be tried, and contradicted by the prosecutor himself in the remainder of his voir dire, ” and (2) “the trial court did little to correct the prosecutor’s errors, never questioned the prosecutor’s explanations, and even failed to respond to the defense’s refutations of the prosecutor’s reasons, ” Mojarro contends his convictions must be reversed. (Citing People v. Silva (2001) 25 Cal.4th 345, 385-386.) For the reasons previously discussed, we are not persuaded. Because the record in this case does not reasonably support a finding that the prosecutor either misunderstood or mischaracterized the voir dire responses, there is no reasonable basis to conclude that the trial court failed to make a sincere and reasoned attempt to evaluate the prosecutor’s explanation.
II. Exclusion of Evidence
Ramon Mendoza testified that a few days after the incident, he was unable to identify the shooters out of hundreds of photographs of possible suspects. Detective John Henry then showed Mendoza an additional six-pack of photographs from which he identified Mojarro as the first shooter. A few weeks later, Mendoza identified photographs of Nunez and Vasquez. At the preliminary hearing in 2006, Mendoza testified that Vasquez was the second shooter and was wearing red, and that Nunez was involved in a physical altercation with one of the victims, but stepped away when the shooting began. Mendoza repeated this testimony at trial.
Detective Henry also showed photographs to Adriana Garcia. She said that she had a difficult time identifying anyone even though she was shown seven groups of six-packs. She narrowed her selection to two photographs and then circled Mojarro’s picture, but she testified that she was only “30 percent” certain of her identification of Mojarro as the shooter in the white shirt.
Mojarro’s counsel sought to introduce the testimony of Lisa Roth, a crime victim in an unrelated case. According to counsel’s offer of proof, Roth would testify that in order to pinpoint the suspect he wanted her to select, Detective John Henry had manipulated the photographs in a six-pack that was shown to her. The court ruled that this evidence was inadmissible, because there was no evidence in this case that the photographic lineups had been manipulated. The court stated that, having watched the videotape of Garcia’s tentative identification of Mojarro’s photograph, it disagreed with “the claim by defense counsel that [Detective Henry’s] interview tactics were unduly suggestive. And, of course, counsel and the court will disagree on this point, but for purposes of preserving the record at this point, I didn’t see, after reviewing the tape, that it was undu[]ly suggestive.... If Ms. Garcia or Mr. Mendoza, who made identifications, whatever weight they made them on, claimed that they were manipulated and/or stated that Detective Henry somehow suggested the identifications, then of course your argument would be better suited.”
Mojarro contends the court’s ruling was erroneous. He argues that Roth’s testimony would have called into doubt the accuracy of Garcia’s and Mendoza’s identifications.
In reviewing the trial court’s evidentiary rulings, we apply the abuse of discretion standard. The trial court has the discretion to determine whether evidence is relevant, and on appeal we will not disturb the exercise of that discretion unless it was arbitrary, capricious, or patently absurd, resulting in a miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
In this case, the court’s determination that the evidence was irrelevant was proper because there was no suggestion that Detective Henry manipulated the photographs shown to Garcia or Mendoza. Thus, Roth’s belief that the detective tried to influence her identification of the suspect in an isolated and unrelated incident had no place in this trial.
Mojarro contends this error amounted to a violation of his federal constitutional rights. Apart from whether he forfeited his claim by failing to object on federal constitutional grounds, the trial court’s exercise of its discretion under ordinary rules of evidence does not implicate federal constitutional rights. (People v. Partida (2005) 37 Cal.4th 428, 438-439; People v. Cudjo (1993) 6 Cal.4th 585, 611.)
III. Admission of Evidence
At trial, the jury heard Garcia’s testimony and watched Garcia’s videotaped interview in which she stated that she was “30 percent” certain of her photographic identification of Mojarro as the shooter in the white shirt. She also stated, both in her testimony and taped interview, that she did not see the shooter’s face. In light of the questionable aspects of Garcia’s identification, Mojarro contends that Detective Henry’s cues, suggestive tactics, and pressure to identify the shooter created “a substantial likelihood of irreparable misidentification.” We are not persuaded.
As previously discussed, before the trial court overruled Mojarro’s objection to Garcia’s photographic identification, it watched the videotape of her interview. Based on the videotape, the court disagreed that Detective Henry had influenced or pressured Garcia to identify a certain photograph: “What the court did see with respect to... Ms. Garcia’s identification was her being unsure, her being unable to identify this individual if a live lineup were presented to her, the distance being a factor, her vantage point, being able to identify with certainty was affected, not being able to identify a face but rather someone with a white t-shirt, possibly. All of those issues go to the weight of the evidence. I watched the officer’s demeanor. I think counsel, Ms. Whitfield, thought that — or at least it’s her position that at one point, the detective, upon Ms. Garcia making an identification, nodded his head. What the court was — the way I interpreted that is he said ‘Okay’ when she said ‘This looks like the same individual I selected in the first photograph, ’ or ‘one of the photographs previously shown to me, ’ and he said ‘Okay.’ And I think it’s counsel’s contention that by his nodding his head, he was assenting to her selection. I didn’t see it that way. You can certainly argue that to the jury....”
After Mojarro’s attorney further argued that Detective Henry had provided unduly suggestive cues and manipulated the photo lineup, the trial court again disagreed, stating: “All right. And let’s make sure the record is straight, at least from the court’s eyes. [Detective Henry] didn’t boil it down to any photograph, [Garcia] boiled it down. And after she did that, he covered the photographs, or at least exposed the photographs that she boiled it down to. When he said ‘Look at that, ’ he didn’t say ‘Look at that photo again, ’ he said ‘Look at the six-pack again.’ He was showing the whole six-pack. The fact that he resembles the individual or had facial hair all goes to the weight of the evidence, but you have made a record for purposes of review.”
Unless “under all the circumstances of this case there is ‘a very substantial likelihood of irreparable misidentification[, ’ the] evidence is for the jury to weigh.” (Manson v. Brathwaite (1977) 432 U.S. 98, 116.) In this case, the record fails to support Mojarro’s contention that there is a very substantial likelihood of irreparable misidentification. Mojarro relies heavily on Garcia’s testimony that she did not see the shooter’s face. However, on this record, a reasonable trier of fact could conclude that the statement was not meant literally. Given that Garcia had described the shooter as a “Latino, ” “in his early 20’s, ” who had “no mustache, ” “was bald, ” and had a “long” and “thin” face, a jury could reasonably infer that Garcia had seen enough to select the photograph that most resembled the shooter. The prosecution made no secret of the fact that Garcia was only “30 percent” certain of her identification. Having been informed that the identification was tentative, the jury was capable of determining what weight, if any, to give to Garcia’s testimony. (See ibid. [“Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.”].) We find no abuse of discretion.
IV. Withholding of Impeachment Evidence
Mojarro contends that the prosecution withheld impeachment evidence pertaining to Detective Mark Morgan of the Los Angeles Police Department (LAPD). Detective Morgan’s role in the prosecution’s case was as follows:
On August 19, 2005, Detective Morgan conducted a custodial interrogation of Crispin Yanez regarding an unrelated double homicide in Culver City (interrogation). Before the interrogation, Morgan learned from another LAPD officer that Yanez, while being transported, had mentioned a shooting in Santa Monica (the present case) and that Yanez knew William Vasquez, a suspect in other homicides under investigation by the LAPD. During the interrogation, Detective Morgan asked Yanez about William Vasquez. Yanez identified Vasquez as the shooter in the present case, but did not mention Mojarro or Nunez. Detective Morgan concluded that Yanez was not a suspect in the Culver City shootings and, before releasing him, told him to go to the Santa Monica Police Department (SMPD) to discuss the present case. Later that day, Yanez met with SMPD detectives and looked at several sets of photographs from which he identified two men—Vasquez and, for the first time, Mojarro—as the shooters in this case (SMPD interview).
On August 19, 2005, Yanez went to the SMPD and spoke with Detectives Lewis and Henry. During the videotaped SMPD interview, which was played for the jury, Yanez stated as follows. Yanez was at the Moose Lodge for a birthday party for his brother and “a couple of other guys.” His brother is affiliated with the 18th Street Gang, and he knows Vasquez through his brother. He saw two shooters at the party. One was Vasquez, who was wearing a red hat and a red shirt. The other, whom he does not know, was wearing a t-shirt and was Hispanic, bald, in his late teens or early twenties, maybe five feet eight inches or five feet seven inches tall, and approximately 150 pounds.
However, at the preliminary hearing and trial in this case, Yanez recanted his identifications of Vasquez and Mojarro, and testified that he did not see the shootings and therefore could not identify the shooters. In light of Yanez’s inconsistent statements, the prosecution treated him as a hostile witness and introduced his taped interrogation and interview statements and the testimony of Detective Morgan, who conducted the LAPD interrogation (part A below).
At trial, Yanez recanted his pretrial identifications of Vasquez and Mojarro as lies: “I was trying to look out for myself. I lied about everything.” Yanez testified that he had selected Mojarro’s photograph because it was the only one that appeared in two different six-packs. Yanez did not see the shooting, nor did he see either defendant at the party. Yanez denied even knowing Mojarro: “I have never seen him before. I don’t even know who he is.” “The two pictures that I saw, he look like the same person. I thought — this is the thing. Let me just — I’ll tell them this, and they will let me go. That is why I said that. I feel bad. I never seen Mr. [Mojarro].” Yanez explained that during the SMPD interview, he “might have said something even though I didn’t see that person, ” because he “wanted to get rid of this as soon as possible, ” and “had just been in jail for another situation.” “I said that just to save my ass, you know. I shouldn’t have done that. I mean, that’s what I heard people telling that had happened. I mean, I never even saw it.”
Following the jury verdicts in this case, Mojarro moved to discover Detective Morgan’s personnel and disciplinary records upon receiving information from the prosecution concerning Detective Morgan’s falsification of an affidavit of probable cause in another case (part B below). The motion was granted. After reviewing Detective Morgan’s records, Mojarro moved for a new trial on several grounds, including a Brady claim that the prosecution had withheld evidence relevant to the impeachment of Detective Morgan’s credibility as a witness (part C below). The trial court rejected the Brady claim on the ground that Detective Morgan’s testimony was not material to this case (part D below). We conclude that this ruling was correct (part E below).
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
A. The Prosecution’s Impeachment of Yanez
In order to show that Yanez had repudiated his earlier identifications of Mojarro and Vasquez out of fear of retaliation, the prosecution introduced portions of his audiotaped LAPD interrogation, the testimony of Detective Morgan who conducted the interrogation, and the videotape of the SMPD interview during which Mojarro was identified by Yanez, for the first time, as one of the shooters in this case.
In addition to establishing Yanez’s motive to lie at trial, the prosecution relied on the above evidence to show that Yanez’s identification of Mojarro was spontaneous and truthful. The audiotape and Detective Morgan’s testimony concerning the LAPD interrogation were consistent with the prosecution’s position that Yanez’s identification of Mojarro was untainted by anything that had occurred during the LAPD interrogation, and that Mojarro’s name was not mentioned during the interrogation. The videotaped SMPD interview indicated that when Yanez was shown several sets of photographs, he identified Vasquez and, upon spotting Mojarro’s photograph, spontaneously exclaimed, “Oh, God, this guy. He was the guy.” “I saw him walk in with Willie [Vasquez] and I saw him shooting.”
On August 19, 2005, Yanez was arrested by the LAPD as a suspect in an unrelated double homicide in Culver City. Detective Morgan, the investigator of the Culver City shootings, interrogated Yanez on that date. Before the interrogation, Detective Morgan was told by another LAPD officer that Yanez had mentioned a shooting at a party, and had mentioned that William Vasquez (a suspect in other LAPD homicide investigations) had once spent the night at his house. During the interrogation, Morgan asked Yanez about his statement concerning Vasquez, and showed him a six-pack containing Vasquez’s photograph. After looking at the six-pack, Yanez stated, “I know this guy, he used to hang with my brother a long time ago.” Yanez stated that “this guy” (Vasquez) “shot some people. I saw what he did. Everything.” “It was my brother’s birthday, and my neighbor’s birthday... it was all, like 3 or 4 birthdays... nobody’s gonna find out, please....” Yanez stated that Vasquez had spent the night at his house about a year ago, but that he did not know, prior to being told by other officers, that Vasquez was a killer. Morgan released Yanez from custody, but “directed him to go over to the Santa Monica Police Department and speak with those detectives.”
B. The Motion to Examine Detective Morgan’s Personnel File
The jury returned verdicts against Mojarro and Nunez on March 4, 2009. On June 16, 2009, Mojarro filed a posttrial motion to examine Detective Morgan’s personnel and disciplinary records under Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535(Pitchess), and Brady, supra, 373 U.S. 83. The motion was precipitated by the prosecutor’s disclosure on June 2, 2009, of a May 28, 2009 Los Angeles Times article concerning Detective Morgan. According to the article, LAPD Officer Randolph Franklin had sued Detective Morgan and others for deliberately providing false information in a probable cause affidavit that was filed to obtain a warrant to search Franklin’s home. (Franklin v. City of Los Angeles (Super. Ct. L.A. County, 2008, BC373559).) On November 14, 2008, the jury in the Franklin lawsuit found that Morgan had deliberately falsified information in the probable cause affidavit, that his conduct was outrageous, but that he did not intend to cause emotional distress.
The trial court granted the motion to produce Detective Morgan’s personnel and disciplinary records on November 13, 2009.
C. The Motion for New Trial
On January 21, 2010, Mojarro moved for new trial on several grounds, including a Brady claim that the prosecution had failed to disclose impeachment evidence concerning Detective Morgan. As to the Brady claim, Mojarro cited both the Franklin lawsuit in which Morgan was found to have deliberately falsified information in a probable cause affidavit, and an August 22, 2000 confidential memorandum to the District Attorney’s Special Circumstances Committee that recommended, for reasons including Detective Morgan’s conduct, the dismissal of an unrelated special circumstances murder case (the unrelated prosecution). The memorandum stated in relevant part that the unrelated prosecution should be dismissed because “Detective Morgan will have to testify as to many credibility calls, regarding several witness interviews. He will be impeached as to his search warrant affidavit, particularly as it relates to ‘Spider.’ It seems apparent that the Detectives wanted to get ‘Spider’ into custody to hopefully get a confession. [¶]... [¶] Both Detectives will also be further impeached as to their failure to turn over discovery, particularly of Brady material, including: [witnesses’] statements; the canvass statements; the FI cards; the [interview] tape; and [a witness’s] statement.”
In support of the Brady claim, Mojarro argued: “Had the defense been in possession of the subsequently acquired Brady evidence reflecting how Detective Morgan has consistently engaged in repeated acts of misleading and falsifying evidence, the defense would have destroyed the alleged credibility of Morgan, particularly in light of his attempt to destroy the credibility of Crispin Yanez’s testimony, which arguably exonerated defendant Mojarro, Jr.”
In opposition to the Brady claim, the prosecutor argued that when Detective Morgan was called as a “last-minute” witness, he was unaware of Detective Morgan’s involvement in either the Franklin case or the unrelated prosecution (the prior incidents). In any event, the prosecutor stated that Detective Morgan was not a material witness because there was no reasonable possibility that the jury would have reached a different verdict had the prior incidents been disclosed before trial. The shootings in this case occurred in Santa Monica and were investigated by the SMPD. Detective Morgan, who is with the LAPD, did not investigate the shootings in this case. When Detective Morgan learned that Yanez had information relevant to this case, he sent Yanez to the SMPD. From the audiotape of the LAPD interrogation and the videotape of the SMPD interview, the jury could independently assess whether Yanez’s identification of Mojarro was spontaneous and untainted by what had occurred during the LAPD interrogation. Accordingly, Detective Morgan’s credibility as a witness was not a material issue in this case.
D. The Trial Court’s Ruling
The trial court denied the motion for new trial. As to the Brady claim, the court concluded that, based on its review of the trial transcripts, Detective Morgan was not a material witness. The court found there was no evidence that Detective Morgan had tainted, coerced, influenced, or prompted the testimony of any of the percipient witnesses in this case, including Yanez.
E. Analysis
Mojarro contends that the trial court erred in rejecting the Brady claim. We disagree.
In Brady, the United States Supreme Court held that the prosecution’s suppression of evidence favorable to the accused is a violation of “due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady, supra, 373 U.S. at p. 87.) The duty to disclose evidence favorable to the accused exists even without a request by the accused, and regardless of whether the suppression was intentional, negligent, or inadvertent. (Ibid.) The requirement applies to impeachment evidence as well as to exculpatory evidence. (Youngblood v. West Virginia (2006) 547 U.S. 867, 869.)
The three components of a Brady violation are that: (1) the evidence was favorable to the accused, either because it was exculpatory or impeaching; (2) the evidence was suppressed by the state, either willfully or inadvertently; and (3) prejudice must have ensued from the suppression of the evidence. (In re Sodersten (2007) 146 Cal.App.4th 1163, 1226.)
On appeal, Brady claims, which present mixed questions of fact and law, are subject to independent review. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.) “Because the [judge] can observe the demeanor of the witnesses and their manner of testifying, findings of fact, though not binding, are entitled to great weight when supported by substantial evidence. [Citation.]” (Ibid.) Evidence is material under Brady “‘“if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”’ [Citation.] In order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.’ [Citations.]” (Ibid.)
In this case, the trial court rejected the Brady claim based on its determination that Morgan was not a material witness and, therefore, the defense was not prejudiced by the suppression of the prior incidents. “Prejudice, in this context, focuses on ‘the materiality of the evidence to the issue of guilt or innocence.’ [Citation.] Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction ‘more likely’ [citation], or that using the suppressed evidence to discredit a witness’s testimony ‘might have changed the outcome of the trial’ (ibid.). A defendant instead ‘must show a “reasonable probability of a different result.”’ (Banks v. Dretke (2004) 540 U.S. 668, 699.)” (People v. Salazar, supra, 35 Cal.4th at p. 1043.)
We conclude that Mojarro is incapable of showing that, had evidence of Detective Morgan’s prior incidents been timely disclosed, there is a reasonable probability of a different result. Detective Morgan had no official role in the SMPD’s investigation of this case. His sole contact with a percipient witness occurred when he interrogated Yanez concerning the Culver City shootings. Detective Morgan had no contact with the other percipient witnesses, Mendoza and Garcia, who identified Mojarro as a shooter. The audiotape of Detective Morgan’s interrogation of Yanez contained no mention of Mojarro. In short, the evidence failed to support a reasonable inference that Detective Morgan had tainted or influenced the percipient witnesses’ identifications of Mojarro. Accordingly, it is not reasonably probable that the jury would have reached a different result had it been informed of the prior incidents.
V. Gang-Related Enhancement Allegations
Mojarro contends that the evidence was insufficient to support the jury’s findings on the gang-related enhancement allegations. (§ 186.22, subd. (b)(1).) He argues that “there was no evidence describing what criminal activity of the gang was intended to be furthered by the murders. While the incident involved three members of the 18th Street gang, there was no evidence that the perpetrators made any gang-related statements, threats, or signs prior to or after the shooting. There was no evidence they wore identifiable gang clothing. There was no evidence they or any other member of their gang took credit for the shooting, either verbally or in graffiti. The shooting at the birthday party bestowed no plausible benefit to the 18th Street gang. The only evidence presented on these issues was the fact of Mojarro’s membership in the 18th Street gang and gang expert Officer Hernandez’s theory. No proof of a connection between the shootings and the gang was produced, therefore there was insufficient evidence to support the jury’s true finding. This was nothing more than a personal fight with fists that escalated when Bonilla went to join in and threw a chair in the direction of the fight. [¶] Moreover, the prosecutor expressly told the jury that the motive for the shooting was personal. [Internal record reference omitted.] Even though others joined in, ‘[w]hile it is possible [they] were acting for the benefit of the gang, a mere possibility is nothing more than speculation. Speculation is not substantial evidence.’ [Citations.]”
The shooting occurred after a fight between rival gang members. Mojarro, Nunez, and Vasquez were members of the 18th Street gang and the victims were members of the Santa Monica 17th Street gang. Coupled with the expert’s testimony, Nunez’s testimony provided ample evidence “from which the jury could reasonably infer the crime was gang related.” (People v. Ferraez (2003) 112 Cal.App.4th 925, 931.) Nunez testified that one of the victims, Hernandez, had approached and asked him for his gang affiliation. When Nunez responded that he was from 18th Street, Hernandez had disrespected him by saying, “So what?, ” and telling him that the location of the party was in Hernandez’s gang area and Nunez was in Hernandez’s hood. As a result, Nunez struck Hernandez and the altercation erupted. Nunez admitted that he would kill any rival gang member who disrespected him. Nunez’s gang partners shot the victims after it appeared that they were gaining an advantage in the fist fight.
Mojarro contends that the jury disbelieved Nunez’s entire testimony. He claims that by returning true findings on the personal firearm use allegations against him, the jury necessarily rejected Nunez’s testimony in its entirety. We disagree. We believe that a reasonable jury could accept Nunez’s testimony that Hernandez had asked about his gang affiliation and disrespected him by saying, “So what?, ” and telling him that the location of the party was in Hernandez’s gang area and Nunez was in Hernandez’s hood.
We thus find there was substantial evidence to establish that the fist fight and the shooting that followed were committed for the benefit of the 18th Street gang.
VI. Gang-Related Special Circumstance Allegations
Mojarro contends that even if the evidence is sufficient to support the true findings on the gang-related enhancement allegations under section 186.22, subdivision (b)(1), the evidence is insufficient to support the true findings on the gang-related special circumstance allegations under section 190.2, subdivision (a)(22). Mojarro argues that unlike section 186.22, subdivision (b)(1), which merely requires that a felony be 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, ” section 190.2, subdivision (a)(22) requires a more specific finding that “the murder was carried out to further the activities of the criminal street gang.” Mojarro contends that the record contains insufficient evidence to support such a finding.
The record belies Mojarro’s contention. Officer Hernandez testified that for gang members, respect is fear. Gang members seek to instill fear so that the gang will have “a strong grip” on the community and discourage people from contacting the police or testifying against gang members. When gangs engage in violence against rival gangs or police, the intimidation and fear of the entire community is magnified, which facilitates further criminal activity.
In this case, Nunez admitted that he would kill any rival gang member who disrespected him, and that Hernandez had disrespected him by saying, “So what?, ” and by telling him that the location of the party was in Hernandez’s gang area and that Nunez was in Hernandez’s hood. When Nunez’s testimony is added to Officer Hernandez’s expert testimony that the purpose of a gang is to instill respect or fear in the community, it is clear that the record contains ample evidence to support the finding that “the murder was carried out to further the activities of the criminal street gang.” (§ 190.2, subd. (a)(22).)
VII. The New Trial Motion and Admission of Gang-Related Evidence
Mojarro moved for a new trial on several grounds, including the erroneous admission of gang-related evidence. In denying the motion, the trial court stated in relevant part that “gang evidence was germane to this case. In fact, it formed the motive for the shootings that occurred at the Moose Lodge... [a]nd it was not overly prejudicial. It is [in] keeping within the parameters set by prevailing case law.”
On appeal, Mojarro argues that although “some of the gang evidence was arguably admissible to prove the prosecutor’s theory of the case, a significant portion of the gang evidence was inflammatory, cumulative, and marginally relevant at best, and introduced solely for the purpose of prejudicing the jury against the defendants to bolster the weakness of the identification evidence. The trial court erred when it denied Mojarro’s new trial motion.” We conclude the contention lacks merit.
A. The Motion for New Trial Was Properly Denied
“A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ‘“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. ”’ (People v. Williams (1988) 45 Cal.3d 1268, 1318.)” (People v. Davis (1995) 10 Cal.4th 463, 524.)
We conclude that Mojarro has failed to establish that the denial of his motion for new trial constituted an abuse of discretion. Contrary to his assertion, the gang-related evidence was relevant to show that the altercation was triggered by Hernandez’s inquiry into Nunez’s gang affiliation and his disrespectful response, “So what?” The incident was also fueled by Hernandez’s statement that the party was in Hernandez’s gang area and Nunez was in Hernandez’s hood.
“Cases have repeatedly held that it is proper to introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent. (People v. Woods (1991) 226 Cal.App.3d 1037, 1054; People v. Burns (1987) 196 Cal.App.3d 1440, 1456; People v. Harris (1985) 175 Cal.App.3d 944, 957; People v. Frausto (1982) 135 Cal.App.3d 129, 140.) Here, the evidence of gang membership and activity was clearly relevant to defendant[s’] motive for attacking [Hernandez and Bonilla] and [their] intent in doing so. Consequently, as a general proposition, the trial court did not err in admitting the gang affiliation and activity evidence.” (People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) We conclude that the trial court properly exercised its discretion in both admitting gang-related evidence relevant to the issue of motive and intent, and denying the motion for new trial.
B. Evidence Was Properly Admitted
Mojarro contends that the trial court should have excluded the following evidence as irrelevant and inflammatory: (1) Vasquez’s statements upon arrest; (2) Nunez’s shoot-out with the police upon arrest; (3) Mendoza’s statement about his feelings after the shooting; and (4) a stabbing committed by Leskin, an 18th Street gang member, following the shootings in this case. He asserts that the erroneous admission of the above evidence rendered the trial fundamentally unfair, resulting in a denial of due process.
1. Statements Made by Vasquez
Vasquez, who was tried separately, made several statements upon his arrest that the prosecution introduced to show consciousness of guilt and the gang-related nature of the crimes. The statements were: “I know someone snitched on me, ” “Fuck a snitch, ” “I hate a snitch, ” “You just remember it’s your guys’ fault someone is going to die.” “Fuck all snitches, ” “I hate rats, ” “Fuck the rats, ” and “Alsace, Alsace.” “Alsace” is the name of Vasquez’s clique within the 18th Street gang.
Mojarro’s counsel objected, presumably on hearsay grounds, that Vasquez’s statement, “Alsace, Alsace, ” was inadmissible to prove Mojarro’s membership in the clique. Mojarro’s counsel also objected that Vasquez’s statements were not admissible as declarations against penal interest. In response, the prosecutor argued that because the statements were incriminating, they were clearly admissible as declarations against penal interest.
On appeal, Mojarro argues that because the statements were irrelevant and inflammatory, they should have been excluded as unduly prejudicial under Evidence Code section 352. As the Attorney General correctly points out, however, Mojarro did not object on section 352 grounds at trial. Accordingly, the objection was forfeited. (Evid. Code, § 353, subd. (a); People v. Williams (1997) 16 Cal.4th 153, 206.)
In any event, the statements were admissible to establish the prosecution’s theory that Mojarro, Nunez, and Vasquez were committed members of the 18th Street gang, and that the gang’s code of respect called for violent retaliation against snitches and rivals. The statements were relevant to show that Hernandez and Bonilla were killed to benefit the 18th Street gang by instilling fear in the community.
The jury was instructed to consider the statements solely for the limited purpose of determining intent, motive, or whether the crimes were committed for the benefit of a criminal street gang. Because the jury is presumed to follow the instructions that were given (People v. Cain (1995) 10 Cal.4th 1, 34), it could not have been misled to consider the statements for improper purposes.
2. Nunez’s Shoot-out With Police
In order to demonstrate Nunez’s consciousness of guilt, the prosecution introduced Deputy Helbing’s testimony that upon his arrest, Nunez engaged in a shoot-out with the police. Although Nunez objected to the admission of this evidence under Evidence Code section 352, Mojarro did not object.
On appeal, Mojarro contends that the issue was not forfeited because an objection would have been futile. (See People v. Wilson (2008) 44 Cal.4th 758, 793 [failure to join in a codefendant’s objection generally constitutes a forfeiture of the issue on appeal, unless an objection would have been futile].) Given that Nunez’s objection under Evidence Code section 352 was discussed at considerable length, we conclude that it would have been futile for Mojarro to object.
Turning to the merits, we conclude that the trial court did not abuse its discretion in admitting the evidence. The fact that Nunez went so far as to shoot at police in order to avoid capture demonstrates his consciousness of guilt. The evidence was therefore admissible. (See People v. Garcia (2008) 168 Cal.App.4th 261, 283-285 [evidence of defendant’s SWAT standoff was admissible to show consciousness of guilt].)
3. Mendoza’s Statement About His Feelings After the Shooting
The prosecutor asked Mendoza how he felt after observing the shooting. Mojarro’s counsel objected on relevance grounds. The trial court overruled the objection and Mendoza responded that the shootings had changed his life, that he felt “terrified” on the night of the shooting, and that the level of violence he had witnessed was “inhumane” and “just horrible.”
Mojarro contends on appeal that Mendoza’s victim-impact evidence was irrelevant to any of the issues before the jury. We disagree. The fact that Mendoza was terrified after the shootings confirmed Officer Hernandez’s testimony that, for gang members, respect is fear. The evidence was relevant to show that the shootings were committed in order to instill fear in the community and to discourage people from contacting the police or testifying against gang members.
Even assuming error, Mendoza’s description of his feelings was brief. We are satisfied that appellant would not have received a more favorable outcome had the evidence been excluded. Thus, error, if any, was not prejudicial. (People v. Partida, supra, 37 Cal.4th at p. 439.)
4. Nunez’s Conduct During Trial
During trial, Nunez claimed to be in pain from a broken leg that was suffered “some months ago.” He stated that he was taking pain medications and that he “was doing great... until I got here. It’s been acting up on me.” He stated that the medication had upset his stomach, and he vomited twice during the proceedings.
During his cross-examination, Nunez was asked if his gang kills rival gang members. Nunez expressed some confusion over the question and inquired, “what the hell you’re asking me?” The question was repeated and Nunez partially replied, “like if you would disrespect me....” The prosecutor then asked, “You would kill me for it?” Nunez answered, “If you would disrespect me, yeah. [¶] Q Okay. And you’d also kill any rival gang member, correct? [¶] A What — what — yes. I don’t understand, but yes, whatever.”
After the jury returned its verdict, Nunez stated, “Fuck all you motherfuckers. Guilty? 18th Street (indicating), man.”
On appeal, Mojarro contends that he was unduly prejudiced by Nunez’s testimony and conduct at trial. He argues that “[w]hen Nunez took the stand to take the blame for both murders, the jury did not believe him, and conversely, quite likely inferred Mojarro’s guilt from Nunez’s lies because the only reason for Nunez’s last minute confession would have been to cover up, or at the very least, to cast a reasonable doubt on Mojarro’s complicity in the crimes.”
The Attorney General argues that the issue was forfeited as a result of Mojarro’s failure to object below (citing Evid. Code, § 353), that Mojarro had no right to avoid a joint trial with Nunez, that Nunez had a right to testify, and that Nunez’s conduct during the trial did not constitute evidence (citing Evid. Code, § 140). In addition, the jury was properly instructed not to be swayed by passion, prejudice, public opinion, or public feeling, and that it could consider the character and quality of a witness’s testimony, including the witness’s demeanor and manner.
Assuming that the issue was not forfeited, we conclude that Nunez’s conduct was not so disruptive as to prejudice Mojarro. Mojarro has portrayed some incidents out of context. For example, he states that, “Nunez said he would kill the prosecutor if the prosecutor disrespected him.” As we read the transcript, however, Nunez did not spontaneously threaten to kill the prosecutor, but was responding to a question, with some difficulty, by stating that those who disrespect his gang will be killed. In addition, Mojarro states that “Nunez disrupted the trial proceedings numerous times.” As we read the record, however, Nunez was not unduly disruptive. There is nothing to suggest that Nunez’s vomiting was more than a reaction to the pain medication he was taking.
As to the effect of Nunez’s testimony on the jury, we make two observations. First, Nunez had an absolute right to testify. Second, if Mojarro believed that Nunez’s presence at trial would be prejudicial, his remedy was to seek separate trials. He failed to do so. This suggests Mojarro hoped Nunez’s acceptance of responsibility would deflect blame from him. If so, the gambit failed. He cannot be heard to complain now.
5. Leskin’s Stabbing Incident
In order to establish a pattern of criminal gang activity under section 186.22, subdivision (b)(1), the prosecution must show that the gang committed two or more enumerated predicate offenses during a statutorily-defined period. (§ 186.22, subd. (e).) In this case, Officer Hernandez testified that in April 2005, he arrested Leskin, an 18th Street gang member, for stabbing a victim over 20 times while stating, “‘Don’t snitch, I’m 18th Street.”
Mojarro contends, for the first time on appeal, that Leskin’s stabbing incident does not qualify as a predicate offense because it occurred after the charged offenses. “Crimes occurring after the charged offense cannot serve as predicate offenses to prove a pattern of criminal gang activity. [Citations.]” (People v. Duran (2002) 97 Cal.App.4th 1448, 1458.) Mojarro argues that “[i]ntroduction of this evidence was particularly inflammatory and heinous.”
However, Mojarro objected below solely on the grounds of “hearsay, no foundation.” The Attorney General argues that because no objection to the admission of the incident as a predicate offense was raised below, the issue was forfeited. We agree.
In any event, the evidence of the attempted murder was no more inflammatory and heinous than the testimony concerning the underlying crimes. Moreover, Officer Hernandez mentioned the incident only briefly and provided no further details or photographs of the victim’s injuries. Viewing the record as a whole, we are confident that in light of the strong evidence of Mojarro’s guilt, it is not reasonably probable that the jury would have reached a different result if the Leskin stabbing incident had been excluded. (People v. Partida, supra, 37 Cal.4th at p. 439.)
Having rejected the contentions of evidentiary error, we reject Mojarro’s assertion that his trial was rendered fundamentally unfair by the introduction of gang-related evidence.
VIII. Parole Revocation Fine
The trial court imposed a $200 parole revocation fine that was stayed. (§ 1202.45.) Mojarro contends that because he was sentenced to two terms of life without the possibility of parole, he is not eligible for parole and, therefore, the parole revocation fine must be stricken. The Attorney General concedes the issue. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1185.)
We conclude that Mojarro’s sentence must be modified to delete the parole revocation fine.
IX. Victim Restitution Fine
The trial court ordered Mojarro to pay $10,000 in direct restitution for the funeral expenses of the victims. (§ 1202.4, subd. (f).) He argues the judgment must be modified to reflect that the order is joint and several. In support of this proposition, Mojarro cites People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535, which states that the “trial court had the authority to order direct victim restitution paid by both defendants jointly and severally. [Citations.]”
The purpose of ordering joint and several liability is to ensure that there is no double recovery. Our record does not disclose whether the other defendants were ordered to pay direct restitution to the victims. Thus, at this juncture, relief is not warranted.
X. Custody Credits
Mojarro contends, and the Attorney General agrees, that he is entitled to an additional day of presentence custody credits and that he should have been credited with 1, 807 days. (People v. Bravo (1990) 219 Cal.App.3d 729, 735 [custody credits must be awarded for all days in custody up to and including the day of sentencing].) We therefore conclude that Mojarro’s sentence must be amended to include an additional day of presentence custody credit.
XI. Cumulative Error
In light of our rejection of Mojarro’s contentions, we need not discuss his claim of cumulative error.
DISPOSITION
The judgment is modified as follows. The parole revocation fine is stricken and the presentencing custody credits are increased from 1, 806 days to 1, 807 days. As modified, the judgment is affirmed. The superior court clerk is directed to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation.
We concur: EPSTEIN, P.J., WILLHITE, J.