Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. H34045
RIVERA, J.
Defendant Francisco Monteros was convicted of first degree murder and attempted murder. On appeal, he alleges a multitude of errors, including instructional error, wrongful admission of evidence, and cumulative error. We affirm.
I. PROCEDURAL BACKGROUND
A jury convicted defendant of one count of murder in the first degree (Pen. Code, § 187, subd. (a)) and one count of attempted murder (§§ 187, subd. (a), 664). With respect to the murder count, the jury found that defendant had personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)), intentionally and personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (c)), personally discharged a firearm causing great bodily injury (§§ 12022.53, subd. (d), 12022.7, subd. (a)), and had committed the murder for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The jury further found true the special circumstances allegation that defendant intentionally killed Mario Ulloa while defendant was an active participant in a criminal street gang and that the murder was carried out to further the activities of the criminal street gang (§ 190.2, subd. (a)(22)).
All further statutory references are to the Penal Code unless otherwise indicated.
The jury found defendant not guilty of criminal threats (§ 422).
With respect to the attempted murder count, the jury found that defendant had personally used a firearm and had intentionally and personally discharged a firearm in the attempted murder of Linda Rodriguez. (§§ 12022.5, subd. (a), 12022.53, subds. (b), (c).) However, the jury found that defendant did not personally discharge a firearm causing great bodily injury (§§ 12022.53, subd. (d), 12022.7, subd. (a)), and had not committed the attempted murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
As to the first degree murder count, the trial court sentenced defendant to life in prison without the possibility of parole, plus an additional consecutive term of 25 years to life for personal discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)). The trial court stayed the imposition of sentence as to the other enhancements (§§ 12022.53, subds. (b), (c), 12022.5, subd. (a), 12022.7, subd. (a)). With respect to the attempted murder count, the trial court sentenced defendant to a consecutive term of seven years, plus an additional consecutive 20-year term for personal and intentional discharge of a firearm (§ 12022.53, subd. (c)). The trial court stayed the imposition of sentence as to the personal use enhancement (§§ 12022.5, subd. (a), 12022.53, subd. (b)). Defendant received a total sentence of life without the possibility of parole, plus 52 years.
II. FACTS
A. Prosecution Evidence
1. Events Prior to the Murder and Attempted Murder
The victim, Mario Ulloa (Mario), was affiliated with a branch of the Sureños gang. Defendant was affiliated with a gang known as Don’t Give a Fuck (DGF), which is a branch of the rival Norteños gang. In the fall of 2001, Mario and his girlfriend, Linda Rodriguez (Linda), lived with his family at 27761 Pensacola Way, on the corner of Sumatra Street in Hayward, which was considered to be the heart of DGF territory. Mario and his family had moved to Pensacola Way in April 2001. Linda began living with Mario and his family in September 2001.
Because there is more than one person with the last name of Ulloa, we will refer to them by their first names; we mean no disrespect thereby.
Joanna Ulloa (Joanna), Mario’s younger sister, testified about an incident between defendant and Mario occurring in late September 2001. Joanna saw defendant outside of her house and heard him yelling at Mario. Mario had been alone in the front yard. When Joanna went outside to join Mario, she saw defendant spit in his face. Mario told defendant that he did not want any problems and asked defendant to leave. Defendant angrily told Joanna to “watch out” for her brother and to “take care” of him. Joanna then screamed at defendant and told him to leave. After telling Joanna to “ ‘shut up,’ ” defendant yelled to Mario that he should “take care” of his sister.
Joanna saw defendant three more times after the incident in the front yard. Approximately two weeks before the murder, defendant stopped Joanna and her two friends as they were walking to school and asked them if a Sureño was living at “the house on the corner.” All three girls said “no.” On another occasion, defendant stopped Joanna as she walking home from school and told her to take off the blue “scrunchie” she was wearing in her hair. Defendant told Joanna not to wear the color blue and offered to buy her some red clothes. Joanna declined the offer and told defendant that she did not like the color red. On a third occasion, Joanna saw defendant as she was walking to the drugstore with Linda. Joanna and Linda kept walking as defendant tried to talk to them. As they were walking, Linda told Joanna that defendant’s name was Francisco Monteros. Joanna told Linda that she already knew defendant’s name.
Norteños claim red as their color; Sureños claim the color blue.
Fernando Ulloa (Fernando), Mario’s younger brother, saw defendant in the neighborhood “[a] lot” prior to the murder. Fernando said that defendant had thrown gang signs at him on numerous occasions. Two days before the murder, four men came to the Ulloa family home looking to fight with Mario. Defendant was not part of the group. The men confronted Mario and told him that he had come to the “wrong hood.” They told him, “get out of here, you’re going to get killed, you better watch your back, scrap.” Fernando explained that “scrap,” which means garbage, is a derogatory term used by Norteños against Sureños. Mario said that he did not want to fight. The four men left when they heard the police. After Mario’s death, Fernando joined the Sureños gang.
Juan Carlos Ulloa (Juan Carlos), Mario’s older brother, testified about an incident that took place a few days before the murder. Defendant, along with three other individuals, came to the Ulloa family home in a brown Honda Accord. The driver of the car was Greg Ignacio, who also went by the name of “G.” Defendant threatened to kill Mario. Defendant told Mario, “You’re going to die very soon.”
Juan Carlos testified through an interpreter.
2. The Murder and Attempted Murder
On November 14, 2001, at approximately 7:40 p.m., Mario and Linda were returning home by bicycle, after Mario had submitted a job application for a position at a local movie theater. Mario was pedaling the bicycle and Linda was sitting on the cross-bar. As Mario turned onto Pensacola Way, he told Linda that he hoped there were no Norteños out on the street. Immediately, Linda saw a group of five or six men standing in front of a house.
Defendant emerged from the group of men and ran in front of Mario’s bicycle, and said, “ ‘What’s up[?]’ ” The other men were on the sidewalk. Defendant was wearing a hooded sweatshirt with the hood down. The first thing that drew Linda’s attention to defendant was his hair. Defendant had an “Afro” hairstyle, which Linda further described as being “big hair on his head.” Linda had an unobstructed view of defendant’s face and hair.
In response to defendant, Mario said, “ ‘What’s up[?]’ ” As Mario began pedaling faster, defendant started chasing Mario and Linda. Defendant was the only person chasing after the bicycle. At one point, defendant was as close as five feet from Linda. Mario pulled out a knife from his pants and told defendant to “ ‘back up.’ ” Defendant stopped running, and Mario and Linda continued riding the bicycle to Mario’s home.
Three seconds later, Linda heard three gunshots. Mario screamed, and both he and Linda fell off the bicycle. Linda got up and started running toward Mario’s house. She heard Mario say, “ ‘It’s cool, it’s cool, it’s cool.’ ” Approximately 15 seconds after she heard the first three shots, Linda heard six more shots. As Linda was running, a bullet dropped from her pants. While she was still running, Linda touched herself and felt blood on the right side of her back. Upon reaching Mario’s house, she told his family what had happened.
On cross-examination, Linda testified that she did not see anyone with a gun and did not know who shot Mario. She described defendant as being stocky, not skinny or slender. She said that defendant was not in the group of men who threatened Mario two days before his death.
Deverie Andrade lived at 27706 Pensacola Way. On the evening of November 14, 2001, she heard a succession of four gunshots, a pause, and then several more gunshots. Andrade looked out her front door and saw a man standing at the end of her driveway; the man was shooting a gun at a twitching body on the ground. She identified defendant as the person firing the shots. She did not see anyone else in the street.
Andrade had known defendant for approximately four to five years. She knew defendant by his nickname, “Paquito.” Defendant had been a close friend of her niece’s boyfriend. Defendant had been in Andrade’s home on several occasions. Andrade described defendant as being tall and slender.
Andrade did not like “DGF members hanging out and dealing drugs” on her street. She knew defendant was involved with the DGF gang. On almost a daily basis, she saw defendant selling drugs on her street. Andrade had urged appellant to change his lifestyle, but he was not responsive to her suggestions.
At the time Andrade saw defendant standing over the body, she did not see his face. She described him as wearing jeans and a dark-colored hooded sweatshirt that partially covered his face. Although she could not see his face, Andrade knew it was defendant just by looking at his body type and the way he moved. As she saw defendant firing the shots, she also heard him yelling. She described the voice as “very loud and very angry.” Andrade did not recognize the voice as defendant’s voice. She further explained, “I didn’t say, oh, well, that’s Paquito’s voice. I just thought that was Paquito.”
Andrade called 911 to report the shooting. While she was on the phone with the 911 dispatcher, the gunshots stopped and Andrade went outside. She saw a body lying partially under her sister’s car that had been parked in the driveway. As she was standing outside, Andrade saw a green Focus drive past her. She saw defendant sitting in the driver’s seat. Andrade saw defendant’s face and hair. Defendant was no longer wearing the hood on his head. Andrade surmised that defendant was leaving the scene of the crime.
Andrade had seen defendant in the same green car earlier the same day. She also had observed defendant in the green Focus on several other occasions. Over a period of months, Andrade had seen defendant in at least four different cars. On the night of the murder, Andrade told the police that she heard gunshots but did not see anything. Andrade explained that she initially was reluctant to tell the police what she had witnessed because she worried about retaliation from DGF and feared for her life.
Juan Carlos was near his house, sitting in his parked car, when he heard gunshots. He heard a pause and then more gunshots. Juan Carlos thought of Mario. Juan Carlos drove toward the sound of the gunshots. As he was driving, Linda crossed in front of him. She was crying and screaming, “ ‘Mario, Mario.’ ” Upon seeing Mario on the ground, Juan Carlos stopped his car in the middle of the street. Juan Carlos saw defendant firing the shots and then saw him “running off to get into a car.” Juan Carlos described the car as a brown Honda Accord; it was the same car defendant had been in when he came to the Ulloa home and threatened Mario. As he stopped his car, Juan Carlos almost hit the brown Honda Accord, which was making a three-point turn. In making the three-point turn, the brown Honda Accord drove near Mario’s body. Juan Carlos saw defendant and two other individuals get into the car; the driver was already inside of the car. Juan Carlos ran to Mario, hugged him and closed his eyes.
On cross-examination, Juan Carlos admitted that initially he told the police he did not see anything. Juan Carlos explained that he did not tell the police that defendant was the shooter because he wanted to kill defendant. Approximately six hours after the murder, Juan Carlos told an officer in a patrol car that he knew “who did it.” However, Juan Carlos did not tell the officer that he saw the actual shooting. Juan Carlos denied that he told the officer that he thought the gunshots came from a small, green car. He further denied that he told the officer that he saw defendant get into a green car. Rather, Juan Carlos explained that he saw a small green car pass by many times before he heard the shots.
Ruth Winters, who lived at 27671 Pensacola Way, heard four shots, a pause, and then seven more shots. After the shooting stopped, she opened her door and saw a small dark car. A man with “kind of poofy” hair was on the passenger side of the car, saying, “ ‘I can’t get in, it’s locked.’ ” The man started to go to the back of the car, but returned to the same side and got in. Winters could not see the man’s face. She told the police that the man sounded Latino. She could see the silhouettes of two people sitting inside of the car.
Paramedics unsuccessfully tried to revive Mario. Linda was taken to the hospital for treatment of a bullet wound.
3. The Investigation
a. Evidence at the Scene
Michelle Combs, a crime scene technician with the Hayward Police Department, recovered four .40-caliber cartridge casings, and eight .45-caliber cartridge casings, as well as unfired rounds, near Mario’s body and in the street. The .45-caliber evidence suggested that the shooter was standing close to the victim or the nearby car. The .40-caliber evidence suggested the shooter was on the driveway of the residence. Combs explained that a .40-caliber gun is designed to fire only .40-caliber bullets, and a .45-caliber gun is designed to fire only .45-caliber bullets. A knife with a black plastic handle and a four and one-half inch serrated blade was found in the middle of the street. Combs did not take an actual measurement of the distance between the knife and Mario’s body. However, based on other measurements of the scene, she estimated that the knife was a minimum of 26 feet away from Mario’s body.
b. Cause of Death
An autopsy revealed that Mario had suffered a total of 22 entrance and exit wounds. The pathologist explained that some bullets caused more than one entrance and exit wound. Mario sustained four serious wounds to his torso. Any one of the torso wounds alone could have caused Mario’s death. The pathologist opined that the cause of death was multiple gunshot wounds.
c. Identification of Defendant
Shortly before midnight on November 14, 2001, Hayward Police Inspectors Steven Schwartz and Robert Coffey spoke to Linda at the police station. Linda was shown six photographic lineups, each containing six different photographs. She described the suspect as a male, who was neither black nor white, but possibly Samoan or Pacific Islander. Among the 36 photographs that she examined, Linda selected a photograph of defendant. Linda said that the person in the photograph was the same person who had cut in front of the bicycle and had challenged Mario. Linda had not seen a gun in the person’s hand. Linda also recognized a photograph of someone she knew as “Miguel,” but said that he had nothing to do with the crime. Linda identified defendant in a subsequent photographic lineup on March 15, 2002.
At trial, Linda said that she was certain defendant had been the person chasing the bicycle. However, she was not certain that the photograph, which she had selected in the first photographic lineup, was, in fact, a photograph of defendant. On cross-examination, Linda admitted that after selecting the photograph of defendant she asked Schwartz and Coffey, “ ‘What about if I’m confusing him and the guy that looks like him[?]’ ” In total, Linda had made three in-court identifications of defendant, and had selected him in two photographic lineups.
At approximately 2:50 a.m. on November 15, 2001, Schwartz and Coffey interviewed Juan Carlos at the police station. At the time of the interview, Juan Carlos was extremely upset about Mario’s death. He was sobbing and had his head down with his hands covering his face. Juan Carlos explained that, although he understood and spoke some English, he was more comfortable speaking in Spanish. However, given the time of the interview, no Spanish translators were available, so the interview was conducted in English.
Juan Carlos told the inspectors that he was parked near his house when he heard shots. As he drove in the direction of where he thought the shots were coming from, he saw a small green car making a three-point turn in front of him. Juan Carlos said that he recognized defendant and defendant’s “brother” in the car. Schwartz explained that, although defendant and Ignacio were not related, many people thought they were brothers because they looked alike. Ignacio, however, was shorter and heavier than defendant. Juan Carlos told the inspectors that he previously had purchased drugs from Ignacio, who he knew as “G.” Juan Carlos also said that Mario had had problems with “a Francisco Monteros.”
The inspectors showed Juan Carlos a photographic lineup. Juan Carlos selected Ignacio’s photograph and identified him as the person he knew as “G” and as the person he thought was defendant’s brother. Juan Carlos thought that “G” had been sitting in the green car in the rear passenger seat. Juan Carlos also pointed to defendant’s picture and said that he thought Mario had had problems with him as well. Schwartz stated that Juan Carlos was unable to “put that together with this [the photograph] being Francisco Monteros.” The interview ended at 3:30 a.m., with the understanding that the interview would be repeated with a Spanish-speaking officer.
On November 16, 2001, two days after the murder, Andrade attended a luncheon where she saw Deputy Chief Dennis Houghtelling, with whom she previously had done community work. At that point, she decided to take responsibility for her neighborhood and tell the truth about what she had witnessed. She told Houghtelling that she had some “pretty important” information about the shooting that had occurred on Pensacola. Houghtelling told Andrade that he would contact the detectives at the Hayward Police Department and arrange a meeting.
Later that evening, Andrade met Schwartz and Coffey. She told them she knew a lot of young people in the neighborhood, including defendant, who she knew as “Paquito.” On the day of the murder, Andrade had seen defendant driving a new, green car with paper license plates.
Andrade told the inspectors that when she heard shots fired, she looked out her front window and saw a man standing over Mario’s body and firing a gun. She said the shooter was wearing a hood. Although Andrade could not see the shooter’s face, she believed the shooter was defendant. Andrade told the inspectors that she had seen defendant on the street for many years and believed he was the shooter based on his body movements. She further explained that she had been a nurse for 18 years and had been trained to look at body types and body movements.
Andrade told Schwartz and Coffey that, approximately two minutes after hearing the shots and seeing the shooter, she saw defendant drive by in the same green car she had seen him in earlier in the day. Defendant was no longer wearing the hood over his face, which allowed Andrade to see his face and his long, curly, frizzy hair. Andrade said she was positive that the person in the green car was defendant.
Andrade selected defendant’s photograph from a photographic lineup. She placed her initials, as well as a happy face, on the photocopy of defendant’s picture. Andrade explained that she drew the happy face because she was scared and sad, and the drawing helped her to stay positive. Andrade subsequently identified defendant as the shooter at the preliminary hearing, and at another pretrial hearing. At trial, Andrade positively identified defendant as the shooter. At the time of trial, defendant wore his hair in a very short, shaved hairstyle. He also appeared to be much heavier at the time of trial.
On cross-examination, Andrade admitted that she told Schwartz and Coffey that she did not like defendant. She thought he was “big trouble.” Andrade admitted that she heard the shooter yelling, but could not recognize the voice. Andrade’s first thought was “what’s Paquito doing?” However, when Andrade called 911 to report the shooting, she did not mention that she had seen the shooter. She also did not mention seeing the shooter in her signed statement, which she gave to the police on the night of the murder. She further admitted that her exact words to Schwartz and Coffey about what she had said to Houghtelling were, “ ‘I can tell you, off the record, my gut feeling is it’s Paquito or somebody that was with him. But, on the record, if you were to say, there’s no way I can tell you, you know, I didn’t see his face.’ ” Andrade recalled that she previously had described defendant’s hair as being “somewhat of a pageboy-type look.” She agreed that defendant’s exhibit I, which depicted a pageboy hairstyle, reflected the hairstyle of the driver of the car.
4. Defendant’s Arrest
Defendant was arrested on February 15, 2002, after running from several uniformed police officers. One of the arresting officers yelled, “ ‘Hayward Police, stop.’ ” However, defendant continued to run even after being ordered to stop. In the course of the chase, defendant jumped a cyclone fence and threw away a gun. The gun was a nine-millimeter weapon, which was not capable of firing .40- or .45-caliber rounds. Further investigation revealed that the nine-millimeter gun had been stolen in a burglary of a gun store on October 2, 2001. At the time of his arrest, defendant wore his hair shaved close to his head.
5. Gang Enhancement
Inspector John Lage testified as an expert on criminal street gangs, particularly Norteños and Sureños gangs. He explained that South Side Hayward (SSH), Latin Crew (LC), and DGF were Norteños gangs that aligned themselves under the subset umbrella of South Side Hayward. He stated that SSH/DGF/LC had more than 200 members and affiliates at the time of the murder. He further stated that SSH/DGF and the Sureños were rival gangs.
Lage stated that members of SSH/DGF claim the south side of Hayward as their turf. He stated that the area of Pensacola Way between Mantilla and Sumatra was “the traditional heart” of DGF. He further explained this area had the strongest concentration of DGF gang members.
Lage opined that “the SSH/DGF/LC Norteno gang” engaged in a pattern of criminal gang activity. Before Lage provided the basis for his opinion, the trial court instructed the jury that the evidence could not be considered as proof of defendant’s bad character, but was to be considered “for the limited purpose of determining, if it tends to show, that the crime or crimes charged were 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 assistant in any criminal conduct by gang members.”
Lage testified about the following four predicate offenses committed by SSH/DGF/LC Norteños gang members: (1) In February 1999, Harold David Matus was convicted of attempted murder with a firearm. (2) In April 1999, Ruben Bocanegra, Ruben Chaves, and Frank Florez were convicted of possession of rock cocaine for sale. (3) On January 26, 2001, Rohan Haroon and Kayvon Mortazavi attempted to murder Mario with a firearm. Mario was scheduled to testify at the trial beginning on November 15, 2001, the day after he was killed. In December 2001, Haroon entered a plea of guilty/no contest. (4) In November 2003, Frank Albert Florez, who had committed the second predicate offense, was convicted of shooting into an inhabited dwelling in April 2001.
Lage further opined that defendant was an active member of the SSH/DGF/LC gang on November 14, 2001. Lage’s opinion was based, in part, on his review of police reports of incidents between 1996 and 2005 that involved defendant. He also reviewed field contact cards, which reflected that defendant had claimed membership in both SSH and DGF on numerous occasions in 1999 and 2001.
Lage also based his opinion on an assault that defendant allegedly committed on January 17, 2005, while he was in custody at the Santa Rita Jail. According to Lage, there had been a confrontation between one of defendant’s associates and another man. The two men “ ‘squashed it,’ ” which meant the confrontation was resolved without violence. The resolution included an apology by defendant’s associate, which was viewed with disfavor by defendant and other Norteños. As a result, defendant and the other Norteños beat the associate. Lage opined that this incident suggested defendant had remained an active gang member even after November 14, 2001.
Additionally, Lage based his opinion on an October 17, 2001, assault of Carlos Barajas, an admitted Sureños gang member. A witness stated that defendant hit Barajas over the head with a pipe.
Lage took into consideration an October 2, 2001, burglary of a gun shop. Approximately 15 handguns were stolen, including a .40-caliber handgun and a nine-millimeter handgun. The .40-caliber handgun was recovered from Ignacio after his home had been searched in December 2001, which resulted in Ignacio’s arrest and conviction for possession of stolen guns. The nine-millimeter handgun that defendant discarded at the time of his arrest was also listed as being stolen from the same gun shop on October 2, 2001. Lage testified that gun burglaries reflect a pattern of criminal gang activity.
B. Defense Evidence
The defense called Rhoda Benson, Andrade’s mother. Benson lived in the same house as Andrade. She testified that on November 14, 2001, she did not recall seeing any vehicle speed by when she and her daughter opened the door after the shooting had stopped. On cross-examination, Benson stated that she had no reason to believe that Andrade hated defendant. However, Benson admitted that she and Andrade did not like the gang activity on their street.
Officer David Dorn interviewed Andrade on the night of the shooting. Andrade reported seeing a dark green Focus-type vehicle, but did not identify the driver. She also did not mention that she saw someone shooting at an object on the ground.
Coffey interviewed Fernando on February 28, 2002. Fernando said that defendant would come by his house every two or three days and would taunt his family. Fernando described defendant as having a “[c]hubby” build. He told Coffey about the incident that occurred two days before the murder, when four Norteños came to his house and confronted Mario with sticks and bats. Fernando said that defendant was not part of the group.
Officer Fraser Ritchie interviewed Linda on the night of the murder. She described the man who ran out in front of the bicycle and chased her and Mario as a “Samoan, Filipino male, late teens, early 20s. 5’9[”] to six-foot [tall], medium to stalky [sic] build with one-inch to two-inch loose Afro last scene [sic] wearing a red 49er sweatshirt with silver writing on the front of it, dark pants and dark shoes.”
Inspector John Paul Guimaraes interviewed Juan Carlos on February 28, 2002. He conducted the interview in Spanish. Juan Carlos described defendant as having a “large build, similar to a Samoan.” Juan Carlos described the incident between defendant and Mario, when Mario was outside working on the lawn. Juan Carlos said defendant arrived in a brown Ford-type vehicle. Juan Carlos said that defendant challenged Mario to a fist fight, but did not mention defendant had threatened to kill Mario.
On the night of the murder, Juan Carlos saw a light green or blue vehicle make a three-point turn. He saw defendant in the right front passenger seat and “G” (Ignacio) in the right back passenger seat. Juan Carlos did not recognize the driver or the other rear passenger.
III. DISCUSSION
A. Exclusion of Andrade’s Identification
Prior to trial, defendant moved to exclude eyewitness identifications on the ground that the identifications were the products of unduly suggestive police procedures. The trial court conducted a lengthy Evidence Code section 402 hearing to determine the admissibility of the evidence and heard foundational evidence from Andrade, and other eyewitnesses, regarding the identification of defendant.
On appeal, defendant contends that Andrade’s identification should have been excluded as being speculative and lacking foundation under Evidence Code section 702, subdivision (a). “To testify, a witness must have personal knowledge of the subject of the testimony, i.e., ‘a present recollection of an impression derived from the exercise of the witness’ own senses.’ (Cal. Law Revision Com. com., reprinted at 29B pt. 2 West’s Ann. Evid. Code (1995 ed.) foll. § 702, p. 300; Evid. Code, § 702, subd. (a).) In order to have personal knowledge, a witness must have the capacity to perceive and recollect. [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 356 (Lewis).) The trial court “ ‘may exclude the testimony of a witness for lack of personal knowledge only if no jury could reasonably find that he [or she] has such knowledge.’ ” (People v. Anderson (2001) 25 Cal.4th 543, 573.) If there is evidence that the witness has the capacity to perceive and to recollect, “ ‘the determination whether he [or she] in fact perceived and does recollect is left to the trier of fact. [Citation.]’ [Citations.]” (Id. at pp. 573-574.)
Defendant did not object to Andrade’s testimony on the ground that she lacked personal knowledge. Rather, defendant filed a motion to suppress Andrade’s identification as being the product of unduly suggestive police procedures. “It is ‘the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.’ ” (People v. Raley (1992) 2 Cal.4th 870, 892; see also People v. McPeters (1992) 2 Cal.4th 1148, 1188 [by failing to object to evidence of other crimes on constitutional grounds below, defendant waived his federal due process and equal protection challenges on appeal]; Evid. Code, § 353.) Defendant, nonetheless, claims that this rule does not impede his claim on appeal.
Citing People v. Yeoman (2003) 31 Cal.4th 93 (Yeoman), defendant asserts that his claim has been adequately preserved for appeal because it merely restates, under alternative legal principles, the same issue raised in the trial court. Defendant’s reliance on Yeoman is misplaced. There, the People contended a defendant had waived his claim under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) by only citing People v. Wheeler (1978) 22 Cal.3d 258 at trial. (Yeoman, supra, 31 Cal.4th at p. 117.) Our Supreme Court held that the defendant did not forfeit his Batson claim and addressed the merits of the claim on appeal. (Yeoman, at pp. 117-118.) In so holding, the court provided the following rationale: “As a general matter, no useful purpose is served by declining to consider on appeal a claim that merely restates, under alternative legal principles, a claim otherwise identical to one that was properly preserved by a timely motion that called upon the trial court to consider the same facts and to apply a legal standard similar to that which would also determine the claim raised on appeal. Defendant’s Batson claim is of that type. His motion under Wheeler . . . required the trial to conduct the same factual inquiry required by Batson into the possibly discriminatory use of peremptory challenges, and to apply a standard identical to Batson’s for determining whether defendant had stated a prima facie case. [Citation.]” (Ibid.)
Here, unlike in Yeoman, supra, 31 Cal.4th 93, the claim on appeal is not otherwise identical to the one that was raised in the trial court. “ ‘ “In deciding whether an extrajudicial identification is so unreliable as to violate a defendant’s right to due process, the court must ascertain (1) ‘whether the identification procedure was unduly suggestive and unnecessary,’ and, if so, (2) whether the identification was nevertheless reliable under the totality of the circumstances.” ’ [Citation.] ‘The defendant bears the burden of demonstrating the existence of an unreliable identification procedure.’ [Citation.]” (People v. Gonzalez (2006) 38 Cal.4th 932, 942-943 (Gonzalez).) A photographic lineup is unduly suggestive if “ ‘anything caused defendant to “stand out” from the others in a way that would suggest the witness should select him.’ [Citation.]” (Id. at p. 943.)
Thus, defendant’s motion to suppress Andrade’s identification required the trial court to initially determine whether the photographic lineup caused defendant “ ‘to “stand out” from the others in a way that would suggest the witness should select him.’ ” (Gonzalez, supra, 38 Cal.4th at p. 943.) This inquiry is factually and legally dissimilar to defendant’s claim on appeal, which challenges Andrade’s qualifications to testify. Thus, defendant’s failure to object on the basis of Evidence Code section 702, subdivision (a), constitutes a waiver of this claim on appeal. (Lewis, supra, 26 Cal.4th at p. 357.)
In any event, even assuming that defendant had preserved the issue for appeal, his claim fails on the merits. Defendant argues that Andrade lacked actual knowledge he was the shooter, but instead impermissibly identified him based on speculation and her “gut feeling.” “A witness’s uncertainty about his or her recollection of events does not preclude admitting his or her testimony. [Citation.]” (Lewis, supra, 26 Cal.4th at p. 357.) Rather, a witness may testify that in her belief the accused is the person who perpetrated the crime, and the lack of certainty goes only to the weight of such testimony. (People v. Rist (1976) 16 Cal.3d 211, 216 (Rist), superseded by statute on another ground as stated in People v. Collins (1986) 42 Cal.3d 378, 393; People v. Gonzales (1968) 68 Cal.2d 467, 472 (Gonzales) [applying former Code Civ. Proc., § 1870, subd. 9, superseded by Evid. Code, §§ 720, 800, 801, 1416]; People v. Avery (1950) 35 Cal.2d 487, 492 (Avery) [applying former Code Civ. Proc., § 1845, superseded by Evid. Code, §§ 702, 800, 801, 1200].) In other words, the fact that a witness is unable to identify the defendant positively and is not free from doubt does not render inadmissible the witness’s testimony based on the witness’s belief. (Avery, supra, 35 Cal.2d at p. 497.)
For example, in Gonzales, supra, 68 Cal.2d at page 472, a police officer saw a man he believed to be the defendant leave a bar. The officer testified that “in his opinion the man he saw leave the bar was defendant, that clothing and specified characteristics of the man appeared to be the same as those of defendant, but that [he] did not see the facial characteristics of the man and could not positively identify defendant as the man.” (Ibid.) Our Supreme Court held that the trial court did not err in admitting the testimony. The court explained that the “[l]ack of positiveness as to the man’s identity went to the weight and not to the competency of the evidence.” (Ibid.)
Here, Andrade testified that her “gut feeling” was that the man she saw shooting the gun was defendant, that the clothing and body type of the man appeared to be those of defendant, whom she had known for approximately five years. However, Andrade could not positively identify defendant as the man with the gun because a hood obscured his face. Minutes later, Andrade clearly saw defendant drive by wearing a similar hooded sweatshirt, with the hood down. Any lack of certainty as to her identification of defendant goes to the weight and not the admissibility of the evidence. (Rist, supra, 16 Cal.3d at p. 216; Gonzales, supra, 68 Cal.2d at p. 472; Avery, supra, 35 Cal.2d at p. 492.)
The cases cited by defendant do not compel a contrary conclusion. In People v. Daniels (1991) 52 Cal.3d 815, 837 (Daniels), a jury convicted a defendant of, among other things, cocaine possession. At trial, defendant called his roommate’s employer to support the theory that his roommate had been dealing cocaine. (Id. at pp. 838, 861.) At an Evidence Code section 402 hearing, the employer said that he had seen defendant’s roommate, James Cornish, give packages to people at work, but the employer did not know the contents of the packages, nor had he seen a package given in return for money. (Daniels, at p. 861.) The employer had spoken to Cornish about Cornish’s drug use, but he was not sure if he had, in fact, witnessed drug deals involving Cornish. (Ibid.) When asked whether he had any personal knowledge that Cornish was dealing cocaine, the employer stated that he could only speculate based upon rumors he had heard. (Id. at p. 861, fn. 16.) The trial court excluded the employer’s testimony on the grounds that it was based on rumors, hearsay, and speculation; and found that the employer did not have personal knowledge of the cocaine sales. (Id. at p. 861.) On appeal, the defendant cited to evidence that Cornish had been involved with cocaine at other times. (Id. at p. 862.) Rejecting the contention that personal knowledge could be inferred through hindsight, the Supreme Court held that the trial court did not err in excluding the employer’s testimony for lack of personal knowledge. (Ibid.)
Here, unlike in Daniels, supra, 52 Cal.3d 815, Andrade’s testimony was not based solely on speculation. Andrade was clear in her testimony that she witnessed a man she believed to be defendant shooting a gun. She based this opinion on the fact that she had been acquainted with defendant for approximately five years and knew his body type and the way he moved. The fact that she did not use facial features to identify defendant is not improper. (People v. Barrett (1968) 267 Cal.App.2d 135, 141, 146 [proper for witness to identify two masked defendants by their actions and their height].) Andrade also based her identification on the fact that she saw defendant drive by her home immediately after the shooting had stopped.
In People v. Farmer (1989) 47 Cal.3d 888, 903 (Farmer) (overruled on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6), a dying victim gave a very general description of his assailant to a police officer, which identified the assailant’s race, weight, height, and age. The defendant asserted that the description more closely fit a third party who defendant claimed killed the victim. (Farmer, supra, 47 Cal.3d at pp. 907-908.) At the preliminary examination, defense counsel asked the officer to choose whether the defendant or the third party more closely matched the victim’s description of his assailant. The officer selected the third party. (Ibid.) When defense counsel asked the same question at trial, the prosecutor objected; the trial court sustained the objection on the ground that it was “ ‘pure speculation and opinion.’ ” (Id. at p. 908.) The Supreme Court rejected the defendant’s contention that the excluded testimony should have been admitted as opinion testimony (Evid. Code, § 800), which supported the theory that the third party killed the victim. (Farmer, at p. 908.) The court explained, “[t]he weak link in this chain of reasoning is the assertion that [the officer’s] opinion was of special value to the jury. . . . [The officer’s] selection of [the third party], based purely on the information he had received from [the victim], was speculation. [The victim’s] physical description of his assailant was so general that countless men in the Riverside area would have matched it.” (Ibid.)
Defendant contends that the analysis in Farmer, supra, 47 Cal.3d 888 applies here. We disagree. Although Andrade did provide a general description of the shooter as being tall, slender, and wearing jeans and a dark-colored hooded sweatshirt, she did provide specific details as to his hairstyle. Defendant makes much of the fact that Andrade described defendant’s hairstyle as a pageboy type, whereas other witnesses testified that he had an Afro. However, inconsistencies or contradictions in a witness’s testimony as to defendant’s identity, and his presence at the time of the offense, is a factual question for the jury. (People v. Ramirez (1958) 163 Cal.App.2d 590, 593 [discrepancies regarding color and description of defendant’s car was factual question for jury]; People v. Finkel (1945) 70 Cal.App.2d 508, 513-514 [inconsistencies about a defendant’s race was jury question; strength or weakness of identification was jury question].) Moreover, Andrade, unlike the police officer in Farmer, was a percipient witness.
Finally, People v. Redmond (1969) 71 Cal.2d 745, 757, 760, involved the reversal of a conviction on the ground that there was insufficient evidence of identification to support the defendant’s robbery conviction. Here, however, defendant does not challenge the sufficiency of the evidence, but asserts that Andrade’s testimony should had been excluded for lack of personal knowledge. As discussed, a witness’s uncertainty in her identification goes to the weight of the evidence, not its admissibility. (Rist, supra, 16 Cal.3d at p. 216; Gonzales, supra, 68 Cal.2d at p. 472; Avery, supra, 35 Cal.2d at p. 492.) Thus, we reject defendant’s claim of ineffective assistance of counsel for failing to timely object to Andrade’s testimony. Where “ ‘there was no sound legal basis for objection, counsel’s failure to object to the admission of the evidence cannot establish ineffective assistance [of counsel].’ [Citation.]” (Lewis, supra, 26 Cal.4th at p. 359.)
B. Failure to Instruct the Jury on Lesser Included Offenses
The trial court instructed the jury on premeditated and deliberate first degree murder, along with the special circumstances regarding an intentional killing by an active street gang member. The court also instructed on second degree murder. Additionally, the court instructed on attempted murder and on concurrent intent to kill a person within a particular zone of risk. The trial court refused defendant’s request to instruct on voluntary manslaughter and attempted voluntary manslaughter based on sudden quarrel or heat of passion. Defendant contends that the failure to instruct on voluntary manslaughter and attempted voluntary manslaughter as lesser included offenses was prejudicial error requiring reversal. We disagree.
“In a criminal case, a trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154 [Breverman] . . . .) Therefore, even without a request, the court must instruct on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present. (Ibid.)” (People v. Earp (1999) 20 Cal.4th 826, 885 (Earp).) However, “the existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could . . . conclude[]” ’ that the lesser offense, but not the greater, was committed. [Citations.]” (Breverman, supra, 19 Cal.4th at p. 162.)
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Voluntary manslaughter and attempted manslaughter are lesser included offenses of murder when the requisite mental element of malice is negated by a sudden quarrel or heat of passion, or by an unreasonable but good faith belief in the necessity of self-defense. (People v. Lee (1999) 20 Cal.4th 47, 59; Breverman, supra, 19 Cal.4th at p. 154; People v. Gutierrez (2003) 112 Cal.App.4th 704, 708; see also § 192, subd. (a).) Here, self-defense, imperfect or otherwise, is not argued. A homicide is voluntary manslaughter under a heat of passion theory only “if the killer’s reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘ “ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” ’ [Citations.]” (Breverman, supra, 19 Cal.4th at p. 163.) “Accordingly, for voluntary manslaughter, ‘provocation and heat of passion must be affirmatively demonstrated.’ [Citations.]” (People v. Steele (2002) 27 Cal.4th 1230, 1252 (Steele).)
“The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. . . . ‘[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,’ because ‘no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.’ [Citation.]” (Steele, supra, 27 Cal.4th at pp. 1252-1253.)
On appeal, defendant argues that a voluntary manslaughter instruction was warranted because Mario “pulled a knife” on him and “threatened” him with it. However, at trial, the voluntary manslaughter instructions were not requested on this basis. Rather, defense counsel half-heartedly asserted that Mario’s “sudden arrival” in rival gang territory triggered “the kind of passion that could lead to . . . very violent conduct.” In any event, assuming defendant’s alternate claim on appeal has not been waived, it, nonetheless, fails on the merits.
Defendant also argues that a manslaughter instruction was warranted because Mario’s threat with the knife was sufficient provocation to cause: (1) “one of the six Nortenos who had been standing on the sidewalk to shoot at Mario in the heat of passion, without premeditation or malice”; (2) “the second shooter . . . (whether that second shooter was [defendant] or someone else)” to fire at Mario while he was lying on the ground; and (3) defendant, acting as an aider and abettor, to act in a heat of passion.
Defendant relies on People v. Barton (1995) 12 Cal.4th 186 (Barton) to support his assertion that the instant case “is a classic, textbook example of provocation, warranting manslaughter instructions.” In Barton, a defendant was convicted of voluntary manslaughter. (Id. at p. 194.) There, the court found the following evidence warranted instructions on voluntary manslaughter despite the defendant’s objection: “Defendant testified that shortly before the killing of Sanchez, his daughter Andrea had come to him, extremely upset, and told him that [Sanchez] had threatened her with serious injury by trying to run her car off the road, and that he had spat on the window of her car. When defendant and his daughter confronted Sanchez about his conduct, Sanchez called defendant’s daughter a ‘bitch’ and he acted as if he was ‘berserk.’ Defendant and Sanchez angrily confronted each other and Sanchez assumed a ‘fighting stance,’ challenging defendant. After defendant asked his daughter to call the police, Sanchez started to get into his car; when defendant asked Sanchez where he was going, Sanchez replied, ‘none of your fucking business,’ and taunted defendant by saying, ‘Do you think you can keep me here?’ Screaming and swearing, defendant, before firing, ordered Sanchez to ‘drop the knife’ and to get out of his car, threatening to shoot if Sanchez did not do so.” (Id. at p. 202.)
Quite obviously, given the defendant’s own testimony in Barton, supra, 12 Cal.4th 186, there was a basis for a heat of passion instruction. The victim provoked the defendant by threatening injury to his daughter, by challenging the defendant physically, by taunting the defendant, and by swearing at and arguing with the defendant while holding a knife. These actions supported a finding that the victim had acted in a way that would have provoked a reasonable person to act rashly or without deliberation under the circumstances. (Id. at p. 202.) The evidence also supported a finding that the defendant was, in fact, goaded into a state of rage or extreme passion. The defendant testified that he was “[s]creaming and swearing” when he fired the fatal shot. (Ibid.)
Defendant argues that the provocation in the instant case was far greater than that involved in Barton, supra, 12 Cal.4th 186, because Mario was a known enemy from a rival gang. This contention is without merit. There is no reasonable gang member standard of conduct. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1087.) Rather, the relevant question is whether a reasonable person in defendant’s circumstances, not a reasonable person from a rival gang, would have been provoked into homicidal conduct. (Steele, supra, 27 Cal.4th at pp. 1252-1253.)
Here, unlike in Barton, the evidence demonstrates neither adequate provocation by Mario nor that defendant was in a state of rage or extreme passion at the time of the shooting. (See People v. Sinclair (1998) 64 Cal.App.4th 1012, 1015 (Sinclair).) What the evidence showed is that Mario and defendant were from rival gangs and had at least two prior altercations, where defendant physically challenged Mario and threatened to injure and/or kill him. Linda testified that, on the night of the murder, she and Mario were riding home on a bicycle, when defendant crossed their path. It was only after defendant began chasing the bicycle that Mario pulled out a knife, which has been described as a standard kitchen knife, and told defendant to “ ‘back up.’ ” There is no evidence that Mario provoked defendant by challenging defendant physically, by taunting defendant, or by swearing at or arguing with defendant. The sole provocative act is that Mario pointed the knife at defendant, who was approximately five feet away from the bicycle. The fact that Mario used the words “ ‘back up’ ” suggests that he was acting defensively, and was not trying to goad defendant into a state of rage or extreme passion. These actions do not support a finding that Mario had acted in a manner that would have provoked a reasonable person to act rashly or without deliberation under the circumstances. (Breverman, supra, 19 Cal.4th at p. 163.)
Even assuming that these bare facts constitute sufficient provocation, the grounds for reducing murder to voluntary manslaughter on a heat of passion theory focus on the state of the mind of the accused. (Sinclair, supra, 64 Cal.App.4th at p. 1015.) Under this theory, the fundamental “ ‘ “inquiry is whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion—not necessarily fear and never, of course, the passion for revenge—to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” ’ ” (People v. Wickersham (1982) 32 Cal.3d 307, 326 (Wickersham), disapproved on another point in Barton, supra, 12 Cal.4th at pp. 200-201.)
Our Supreme Court has explained the need for evidence that the defendant’s reason be obscured by passion as follows: “Because the existence of malice is presumed when the circumstances of a killing suggest an intent to kill or that ‘ “the killing proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life” ’ [citation], provocation and heat of passion must be affirmatively demonstrated. [Citations.] It is not enough that provocation alone be demonstrated. There must also be evidence from which it can be inferred that the defendant’s reason was in fact obscured by passion at the time of the act. [Citations.]” (People v. Sedeno (1974) 10 Cal.3d 703, 719 (Sedeno), overruled on another ground in Breverman, supra, 19 Cal.4th at p. 149.)
Here, aside from Andrade’s testimony that she heard the shooter yelling in a “very loud and very angry” voice, there was no other evidence of defendant’s emotional state at the time of the killing, nor was there evidence that his reason was in fact obscured by passion. (Steele, supra, 27 Cal.4th at pp. 1252-1253; Wickersham, supra, 32 Cal.3d at pp. 326-327; Sedeno, supra, 10 Cal.3d at p. 719.) “[T]o justify the giving of voluntary manslaughter instructions it is not enough that there is some evidence of heat of passion. [Citation.] There must be ‘evidence substantial enough to merit consideration.’ [Citations.]” (People v. Williams (1995) 40 Cal.App.4th 446, 454.) While there may have been “some” heat of passion in this case, the evidence was not substantial enough to merit consideration.
There was no evidence whatsoever regarding the emotional states of the so-called first and second shooters involved in defendant’s alternate scenarios.
Defendant contends that an attempted voluntary manslaughter instruction was warranted because the heat of passion created by Mario was transferred to Linda, who was in the “kill zone.” First, as discussed, defendant has failed to affirmatively demonstrate provocation and heat of passion created by Mario’s conduct. Second, the doctrine of transferred intent does not apply to attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 326-327.) “To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. The defendant’s mental state must be examined as to each alleged attempted murder victim.” (Id. at p. 328, italics added.) Here, there is absolutely no evidence that Linda provoked the defendant.
We conclude there is nothing in the record “ ‘substantial enough to merit consideration’ ” (Breverman, supra, 19 Cal.4th at p. 162) by the jury of the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter under a theory of sudden quarrel or heat of passion. Accordingly, the court did not err, under California law, in failing to instruct on voluntary manslaughter and attempted voluntary manslaughter. (Ibid.; Barton, supra, 12 Cal.4th at pp. 194-195, 199-201.)
Nor, contrary to defendant’s claim, did the trial court deprive defendant of any right under the Fifth Amendment to the federal Constitution in failing to give instructions on all elements of a crime, for no fundamental unfairness results from the lack of instructions on a lesser included offense that is unsupported by any evidence upon which a reasonable jury could rely. (People v. Holloway (2004) 33 Cal.4th 96, 141.) “While [our Supreme Court] in People v. Breverman, supra, 19 Cal.4th at page 170, footnote 19, . . . declined to decide whether failure to instruct on a lesser offense of voluntary manslaughter ‘supported by the evidence’ is federal constitutional error (see also id. at pp. 189-190 (dis. opn. of Kennard, J.) [arguing failure to instruct violates Constitution ‘[w]here . . . there is sufficient evidence of heat of passion to support a voluntary manslaughter verdict’]), nothing in either the majority or dissenting Breverman opinion suggests that the federal Constitution, any more than the California Constitution, is infringed when a theory of voluntary manslaughter unsupported by any substantial evidence is omitted from the law presented to the jury.” (Ibid.)
Finally, given the jury’s finding on the premeditation allegation, which necessarily demonstrates rejection of the theory that defendant acted in a heat of passion, any error in failing to instruct on voluntary manslaughter was harmless under any standard of review. (People v. Bradford (1997) 14 Cal.4th 1005, 1056 (Bradford).)
C. Other Evidentiary Issues
Defendant contends that the trial court erroneously admitted evidence regarding his flight from police and possession of a stolen handgun at the time of his arrest. He also asserts that the trial court erred in admitting evidence of the January 2005 assault at the Santa Rita Jail. We review the trial court’s evidentiary rulings for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 197.) We must affirm in the absence of a showing the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Avitia (2005) 127 Cal.App.4th 185, 193.) We find no such abuse of discretion.
1. Flight and Gun Possession; Uncharged Act
Defendant contends that evidence of his attempt to escape arrest, which occurred three months after the crimes, was inadmissible to prove flight within the meaning of CALJIC No. 2.52. The basis for giving a flight instruction is section 1127c, which provides as follows: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.”
CALJIC No. 2.52 provides as follows: “The [flight] [attempted flight] [escape] [attempted escape] [from custody] of a person [immediately] after the commission of a crime, or after [he] [she] is accused of a crime, is not sufficient in itself to establish [his] [her] guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.”
Here, the trial court gave the following modified version of CALJIC No. 2.52: “The flight or attempted flight of a person after the commission of crime or after he is accused of a crime is not sufficient in itself to establish his guilt[, b]ut is a fact, which if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.”
Defendant does not argue that the trial court erred in so instructing the jury on flight. Rather, defendant contends that his flight three months after the crimes does not constitute flight “immediately” after the commission of the crime; therefore, evidence of his flight is not admissible under section 1127c.
In People v. Mason (1991) 52 Cal.3d 909, 918-919, 924, 941, a defendant argued that the trial court should have excluded evidence of his flight from police four weeks after the murder of his fourth victim because it was of marginal probative value. Rejecting this contention, our Supreme Court explained, “Common sense, however, suggests that a guilty person does not lose the desire to avoid apprehension for offenses as grave as multiple murders after only a few weeks. Nor do our decisions create inflexible rules about the required proximity between crime and flight. Instead, the facts of each case determine whether it is reasonable to infer that flight shows consciousness of guilt.” (Id. at p. 941.)
So too here, common sense suggests that defendant would not have lost the desire to avoid apprehension for offenses as grave as murder and attempted murder after three months had elapsed. “ ‘ “[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.” ’ [Citations.]” (Bradford, supra, 14 Cal.4th at p. 1055.) The fact that defendant was not apprehended until three months after the murder and attempted murder includes the possibility that he was absent in an effort to avoid arrest. The evidence of defendant’s flight at that time was relevant to the issue of consciousness of guilt.
People v. Watson (1977) 75 Cal.App.3d 384 (Watson), cited by defendant, does not compel a different conclusion. There, less than 48 hours after a brutal murder, police officers saw the defendant standing on a street corner and arrested him. (Id. at pp. 390-392.) The appellate court held that the trial court erroneously instructed the jury on flight. (Id. at p. 403.) In so holding, the court explained: “[S]ection 1127c mandates an instruction on flight ‘where evidence of a defendant’s flight is relied upon as tending to show guilt.’ [Citation.] Flight becomes relevant because it may demonstrate consciousness of guilt and has no other probative value. [Citation.] But the mere fact of defendant’s arrest nearly two days later and miles away from the crime scene—standing alone—is not evidence of flight . . . . Under the circumstantial-evidence-reasoning process [citations], it is clear that such evidence, without more, cannot logically tend to support an inference of guilt.” (Ibid.)
Here, unlike in Watson, supra, 75 Cal.App.3d 384, the flight instruction was not premised solely on the fact that defendant was arrested three months after the crimes. Rather, the record reflects that defendant attempted to avoid arrest by running from uniformed police officers. Defendant continued to run even after a police officer ordered him to stop. In fleeing, defendant jumped a cyclone fence and discarded a weapon. This evidence was relevant to show defendant’s consciousness of guilt. Accordingly, we conclude the trial court did not abuse its discretion in admitting the evidence that defendant ran from the police at the time of his arrest.
Defendant also claims admission of evidence that he possessed a stolen handgun at the time of his arrest constituted improper character evidence because: (1) the handgun was not used in the murder and attempted murder, and (2) the jury was informed of an uncharged act regarding the burglary of the gun shop. He further argues that it was improper to introduce evidence regarding his possession of a stolen weapon three months after the crimes to prove the gang enhancement or the gang special circumstances allegation, because evidence reflecting crimes occurring after the charged offenses cannot serve as predicate offenses to prove a pattern of criminal gang activity.
With respect to the evidence regarding possession of the nine-millimeter gun, defendant relies upon authority holding that evidence of a defendant’s possession of a weapon not used in the crime is ordinarily inadmissible. (See People v. Riser (1956) 47 Cal.2d 566, 577 (Riser), overruled on other grounds in People v. Chapman (1959) 52 Cal.2d 95, 98 and People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2, 648-649; People v. Gilbert (1963) 63 Cal.2d 690, 709-710, reversed on another ground in Gilbert v. California (1967) 388 U.S. 263, 272-274; People v. Rinegold (1970) 13 Cal.App.3d 711, 720-721; People v. Clayton (1963) 218 Cal.App.2d 364, 367-368; U.S. v. Hitt (9th Cir. 1992) 981 F.2d 422, 424-425.) We conclude that even if error, admission of this evidence was harmless.
Evidence that a defendant possessed weapons not used in the commission of the offense is inadmissible for the purpose of showing the defendant is the type of person who surrounds himself with weapons. (Riser, supra, 47 Cal.2d at p. 577.) Our Supreme Court stated the rule of admissibility as follows: “When the specific type of weapon used to commit a homicide is not known, it may be permissible to admit into evidence weapons found in the defendant’s possession some time after the crime that could have been the weapons employed. There need be no conclusive demonstration that the weapon in defendant’s possession was the murder weapon. [Citations.] When the prosecution relies, however, on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons. [Citations.]” (Ibid.) On the other hand, evidence of ammunition and weapons other than the murder weapon is admissible when relevant for other purposes. (People v. Cox (2003) 30 Cal.4th 916, 956-957 [murder weapon unknown or weapon used in furtherance of criminal plan]; People v. Smith (2003) 30 Cal.4th 581, 613-614 [circumstantial evidence of defendant’s state of mind].)
In the instant case, respondent argues that the gun evidence was properly admitted because it was relevant to show the circumstances surrounding defendant’s flight and arrest, and therefore tended to establish defendant’s consciousness of guilt. Respondent points to People v. Hall (1926) 199 Cal. 451, 459-460, in which the trial court admitted evidence the defendant possessed a sawed-off rifle and cartridges that were unconnected with the charged murder. The court reasoned, “It is permissible, in proof of the fact of flight, to show all of the facts and circumstances attending the flight either to increase or decrease, as the case may be, the probative force of the fact of flight. In other words, when testimony as to flight is resorted to, it is proper to show the extent of the flight and the circumstances thereof, including the acts and doings of the defendant, which tend to characterize and increase its significance. It was, therefore, proper for the prosecution to show, as bearing upon this question, that the defendant had ammunition and firearms in his possession which were adapted to further his flight and thereby accentuate the fact of flight.” (Id. at p. 460.)
Here, the nine-millimeter gun was not the murder weapon, was not found until three months after the crimes, was not otherwise linked to the charged offenses, and was linked to an uncharged burglary of a gun shop. Although this evidence was probative of defendant’s consciousness of guilt because it was part of the circumstances of his flight, it was also prejudicial. Nonetheless, assuming admission of the evidence was error, it was harmless. We do not reverse a judgment for the erroneous admission of evidence unless it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (Earp, supra, 20 Cal.4th at p. 878.) There was no such likelihood here. The presentation of evidence regarding the firearm and burglary of the gun shop was very brief and limited. There was no evidence defendant participated in the uncharged burglary. Similarly, any error in admitting the evidence to serve as a predicate offense to prove a pattern of criminal gang activity was harmless. Given the eyewitness accounts, the ample evidence regarding the four other predicate offenses and defendant’s gang membership, and defendant’s past confrontations with Mario, there is no reasonable probability that defendant would have obtained a more favorable result if the trial court had excluded evidence that he discarded a stolen gun, as he was running from the police officers.
Finally, contrary to defendant’s contention, the trial court did not deprive defendant of his due process rights under the Fifth Amendment of the federal Constitution in admitting this evidence. (People v. Samuels (2005) 36 Cal.4th 96, 114 [violations of state evidentiary rules generally do not constitute federal constitutional error].)
2. Incident at Santa Rita Jail
Defendant contends that the trial court erred in admitting evidence of the January 2005 assault at the Santa Rita Jail to prove he was a gang member in November 2001. He relies on authority holding that evidence of crimes occurring after the charged offense cannot serve as predicate offenses to prove a pattern of criminal gang activity. (People v. Duran (2002) 97 Cal.App.4th 1448, 1458; People v. Godinez (1993) 17 Cal.App.4th 1363, 1365, 1368-1370; see also People v. Sengpadychith (2001) 26 Cal.4th 316, 322-323 [evidence of past or present conduct admissible]; People v. Gardeley (1996) 14 Cal.4th 605, 615-617 [predicate offenses committed during statutorily defined period].) Respondent maintains that the trial court did not abuse its discretion in admitting evidence of the subsequent assault because this evidence was not introduced as a predicate offense to prove a pattern of criminal gang activity, but was introduced as part of the expert opinion that defendant was an active gang member at the time of the charged offenses.
We conclude that even if error, admission of the January 2005 assault to prove defendant’s gang membership in November 2001 was harmless. The presentation of evidence regarding the assault was very brief and limited. Moreover, the details of the assault were not highly inflammatory, and were certainly no more prejudicial than the details of Mario’s brutal, execution-style slaying, which resulted in 22 entry and exit wounds. Additionally, Lage’s opinion that defendant was a gang member in November 2001, was based on his review of police reports of incidents involving defendant that went back as far as 1996. Lage also reviewed field contact cards, which reflected that defendant claimed gang membership on numerous occasions in 1999 and 2001. He also based his opinion on defendant’s October 2001 assault of an admitted Sureños gang member.
Given the eyewitness accounts, the ample evidence regarding the four predicate offenses and defendant’s gang membership, and defendant’s past confrontations with Mario, there is no reasonable probability that defendant would have obtained a more favorable result if the trial court had excluded evidence of the January 2005 assault.
D. Bifurcation
Defendant moved in limine to bifurcate trial of the gang enhancement (§ 186.22, subd. (b)(1)) and the special circumstances allegation (§ 190.2, subd. (a)(22)). Defendant initially sought to exclude “any and all evidence presented to prove the technical requirements of the gang enhancements . . . .” Defense counsel later clarified that defendant was asking the trial court to exclude only evidence that had no relevance to the charged offenses. The trial court denied defendant’s motion, concluding that the gang enhancement was attached to and “interconnected” with the charged offenses.
Defendant contends that the trial court abused its discretion in denying his motion to bifurcate the gang enhancement and the special circumstances allegation, because the gang evidence was highly inflammatory and raised a substantial danger of prejudice through the risk the jury relied on that evidence to find proof of defendant’s identity as the perpetrator of the crimes, even though the prosecution’s identification evidence was weak, and defendant had no personal history of firearms use. He further claims the evidence that other gang members were due to stand trial for the attempted murder of Mario the day after Mario was killed, permitted the inference that defendant killed Mario to eliminate him as a witness.
Section 1044 gives a trial court discretion to bifurcate proceedings. (People v. Calderon (1994) 9 Cal.4th 69, 74-75.) With respect to whether bifurcation of gang enhancement allegations generally should be ordered, the California Supreme Court has distinguished between a prior conviction allegation, which relates to the defendant’s status and may have no connection to the charged offense, and a criminal street gang allegation, which “is attached to the charged offense and is, by definition, inextricably intertwined with that offense.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) Because of this difference, there is generally less need for bifurcation of a gang enhancement than of a prior conviction allegation. (Ibid.)
Section 1044 provides: “It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.”
As our Supreme Court explained, however, this does not mean bifurcation should never be ordered. (Hernandez, supra, 33 Cal.4th at p. 1049.) “The predicate offenses offered to establish a ‘pattern of criminal gang activity’ [citation] need not be related to the crime, or even the defendant, and evidence of such offenses may be unduly prejudicial, thus warranting bifurcation. Moreover, some of the other gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant’s actual guilt. [¶] In cases not involving the gang enhancement, we have held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.] But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]” (Id. at pp. 1049-1050.)
The court further explained that “[e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself—for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged—a court may still deny bifurcation.” (Hernandez, supra, 33 Cal.4th at p. 1050.) The court analogized the issue to the severance of charged offenses, in which judicial economy is a factor to be considered. “ ‘When the offenses are joined for trial the defendant’s guilt of all the offenses is at issue and the problem of confusing the jury with collateral matters does not arise. The other-crimes evidence does not relate to [an] offense for which the defendant may have escaped punishment. That the evidence would otherwise be inadmissible may be considered as a factor suggesting possible prejudice, but countervailing considerations that are not present when evidence of uncharged offenses is offered must be weighed in ruling on a severance motion. The burden is on the defendant therefore to persuade the court that these countervailing considerations are outweighed by a substantial danger of undue prejudice.’ [Citation.]” (Ibid.) The court recognized that “[t]he analogy between bifurcation and severance is not perfect,” but concluded that “the trial court’s discretion to deny bifurcation of a charged gang enhancement is . . . broader than its discretion to admit gang evidence when the gang enhancement is not charged. [Citation.]” (Ibid.)
We review the trial court’s ruling on the bifurcation motion for abuse of discretion (Hernandez, supra, 33 Cal.4th at pp. 1048, 1050-1051), and find none here. In the present case, the prosecution proceeded on the theory that Mario had been a victim of the rivalry between the Norteños and Sureños, and that defendant committed the charged offenses “for the benefit of, at the direction of, or in association with” SSH/DGF/LC, a criminal street gang, and that he acted “with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1).) “The People are entitled to ‘introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.’ [Citation.] ‘[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.’ [Citations.] [¶] Expert testimony repeatedly has been offered to show the ‘motivation for a particular crime, generally retaliation or intimidation’ and ‘whether and how a crime was committed to benefit or promote a gang.’ [Citation.]” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) “[T]he motive here was relevant and important, both to the actual crime committed . . . and to the requisite intent for the enhancement. Case law holds that where evidence of gang activity or membership is important to the motive, it can be introduced even if prejudicial. [Citations.]” (People v. Martin (1994) 23 Cal.App.4th 76, 81.)
Here, none of the gang evidence was unduly prejudicial. The fact that other gang members had been convicted of attempted murder and shooting at an inhabited dwelling was not particularly inflammatory. It took up very little time at trial. Lage testified about the predicate offenses in a very straightforward manner. Moreover, the jury was twice given limiting instructions with respect to such evidence. On cross-examination, defense counsel questioned Lage about each of the predicate offenses, and made clear to the jury that defendant was not involved in any of them. Under these circumstances, and given the indisputable relevance of the gang evidence to the prosecution’s theory of motive and intent, the trial court did not err in denying bifurcation of trial on the gang enhancement and special circumstances allegation.
Prior to Lage’s testimony regarding the predicate offenses, the trial court instructed the jury as follows: “Evidence is about to be introduced for the purpose of showing criminal street gang activities and of criminal acts by gang members other than the crimes for which the defendant is on trial. [¶] Except as you will be otherwise instructed, this evidence, if believed, may not be considered by you to be proof that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you for the limited purpose of determining, if it tends to show, that the crime or crimes charged were 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. [¶] For the limited purpose for which you may consider this evidence, you must weigh it in the same manner as you do other evidence in this case. You will receive this instruction again when I give the general instructions.” The jurors were again given a similar limiting instruction as part of the general instructions.
E. Cumulative Error
Defendant contends that even if the errors alleged above are not individually prejudicial, their “cumulative prejudice warrants reversal.” But we have rejected nearly all of defendant’s assignments of error. When we have found error, we have concluded defendant was not prejudiced. Defendant “ ‘has merely shown that his “ ‘trial was not perfect—few are.’ ” ’ [Citation.]” (Bradford, supra, 14 Cal.4th at p. 1057.)
IV. DISPOSITION
We affirm the judgment in its entirety.
We concur:
RUVOLO, P.J.
SEPULVEDA, J.