Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA058117. Harvey Giss, Judge.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Appellant Lorenzo Moran appeals from a judgment entered after a jury returned a guilty verdict on count 3, unlawfully taking or driving a vehicle in violation of Vehicle Code section 10851, subdivision (a). The trial court dismissed the gang enhancement allegation (Pen. Code, § 186.22, subd. (b)(1)). The trial court found true that appellant had suffered two prior serious felony convictions (§§ 667, subd. (a)(1); 1170.12, subds. (a)-(d)) (the Three Strikes law). The jury found appellant not guilty of count 1, carjacking (§ 215, subd. (a)) and count 2, robbery (§ 211).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court imposed a term of 25 years to life pursuant to the Three Strikes law. We affirm the judgment.
CONTENTIONS
Appellant contends that: (1) the trial court violated his rights to due process and a fair trial by permitting unduly prejudicial gang evidence to be admitted; (2) the trial court deprived appellant of his right to present a defense by not permitting Valerie Espinoza (Espinoza) to testify about appellant’s statements regarding a car that was parked in her family’s assigned parking space; and (3) the trial court abused its discretion when it refused to strike one of appellant’s prior convictions.
FACTS AND PROCEDURAL HISTORY
On December 22, 2006, at 4:00 a.m., Maria Salinas (Salinas) was waiting in her new 2007 Honda Civic to drive her husband to work. The car was parked on the street. A man with a silver gun knocked on the driver’s side window and told her to get out of the car. When Salinas got out of the car, the man put the gun to her head and demanded her wallet. Salinas said she did not have a wallet. The first man then handed the gun to a second man and searched Salinas. Both men were wearing blue pants, white tennis shoes, a hooded black sweatshirt, and gloves. Finding nothing, the first man ordered her to start walking. The men then drove away in her car.
At 6:30 a.m., police officers located Salinas’s car in a parking lot by using Salinas’s LoJack security system. The officers parked down the street so they could monitor the car. About 20 minutes later, appellant drove the car out of the parking lot. The officers pursued appellant, lost sight of the car for a moment, then spotted it parked on the street. Appellant got out of the car wearing blue pants, a blue and white flannel jacket, gloves and a grey beanie. He ran into an apartment building. Officers eventually apprehended appellant on Orion Street. Appellant had taken off the flannel jacket and grey beanie. Officers found a flannel jacket, beanie, and a glove inside a cubbyhole in a carport on Langdon Street, which was across the street from where appellant was apprehended.
Salinas was unable to positively identify appellant at a field showup from 50 feet away, stating that “He looks a little like him. I am not sure.” Immediately afterward, Salinas viewed 50 to 60 photographs at the police station and picked out two photographs, including appellant’s. At trial, Salinas testified that appellant looked like the robber but that she was not sure if he was the robber.
The trial court granted appellant’s pretrial motions to bifurcate the gang allegations and the prior conviction allegations, cautioning that if the defense attempted to establish that appellant owned a couple of cars and had no reason to steal a car, then the People’s gang expert would be permitted to testify as to gang culture.
Prior to the testimony of defense witness Espinoza, the trial court held an Evidence Code section 402 hearing. The People argued that Espinoza’s testimony would open the door to gang evidence because she would testify that she had a conversation with appellant at 7:00 a.m. on December 22, 2006, while she was throwing out trash at her mother-in-law’s apartment on Langdon Street. She intended to testify that appellant asked her who owned the Honda, then left to find the owner. She would testify that he returned to tell Espinoza that he intended to move the car which belonged to “a guy in another building.” The trial court tentatively held that expert testimony regarding gang culture and evidence about Espinoza’s brother, Jose “Little Peanut” Velasquez (Velasquez), a Langdon Street Gang member, might be relevant depending on Espinoza’s testimony. The trial court also held that the hearsay rule precluded Espinoza from testifying about appellant’s conversation with her. The trial court concluded that the defense wanted the statement admitted for the truth of the matter asserted; the defense wanted to use the testimony for final argument; and the testimony was irrelevant because it did not lead to the conclusion that appellant actually innocently drove the car away.
Espinoza then testified. She stated that at 7:00 a.m. on December 22, 2006, she was throwing out trash when she noticed a Honda parked in her in-laws’ parking space. Appellant, who works with her brother, talked to her for about five minutes. Appellant returned and spoke to her for a few minutes before he left. Espinoza never saw appellant in the Honda. On redirect examination, and in response to defense counsel’s question, Espinoza testified that appellant had his own car. The trial court then ruled that the People could impeach Espinoza with gang evidence. On cross-examination, Espinoza testified that her in-laws’ apartment building is a Langdon Street hangout and that her boyfriend Oscar Garaby is a Langdon Street gang member. She denied that appellant or Velasquez were connected to the Langdon Street gang or that she was asked to testify to protect a member of the gang.
Velasquez testified on appellant’s behalf that appellant worked with him at a construction company. Velasquez denied ever being a member of the Langdon Street gang. Appellant testified that he was a long time member of the Langdon Street gang. He did not try to rob Salinas, but was merely moving the car that he believed belonged to Langdon Street gang members, after Espinoza told him she did not know who owned the Honda. He stated that he ran from the police because he was violating his parole by associating with and remaining in an area frequented by Langdon Street gang members. Appellant also testified that he owned three cars.
Los Angeles Police Department Officer Shawna Green, a gang expert, testified that appellant is a Langdon Street gang member and has a large Langdon Street gang tattoo across his neck. She also stated that Espinoza’s brother Jose “Little Peanut” Velasquez, and Espinoza’s boyfriend, Oscar “Dopey” Garaby, are members of the Langdon Street gang. Officer Green testified that even if they have their own cars, Langdon Street gang members steal cars so that they can use them to commit crimes that cannot be traced to them. Officer Green testified that Langdon Street gang members hang out at a particular parking lot and building on Langdon Street. She also testified that gang members protect their gang and their families.
DISCUSSION
1. The trial court did not abuse its discretion in admitting expert testimony regarding gangs
Appellant complains that the trial court abused its discretion in admitting evidence that: appellant was a gang member; the apartment complex on Langdon Street was a gang hangout; several defense witnesses were current or former gang members; and Langdon Street gang members steal cars to commit other crimes. We disagree.
Evidence Code section 352 provides that a trial court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice. Expert testimony concerning the culture, habits, and psychology of gangs, is admissible as subject matter which is sufficiently beyond common experience so that the opinion of an expert would assist the trier of fact. (People v. Gardeley (1996) 14 Cal.4th 605, 616–617.) “‘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.]’ [Citation.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 224.) We review the trial court’s decision to admit gang evidence over an Evidence Code section 352 objection for abuse of discretion. (People v. Gardeley, supra, at p. 619.)
We conclude that the probative value of the gang evidence was not substantially outweighed by the probability of undue prejudice. Espinoza testified that appellant owned three cars, which could lead the jury to infer that appellant did not have the motive to steal a car. Thus, expert testimony that gang members will protect each other was highly relevant. The evidence that Espinoza’s boyfriend and brother, as well as appellant, were Langdon Street gang members was relevant to the credibility of the defense witnesses, including appellant, Espinoza, and Velasquez. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550 [gang sociology and psychology is a proper subject for expert testimony].) The People were also entitled to cross-examine Espinoza regarding any bias that she might have. (People v. Ruiz (1998) 62 Cal.App.4th 234, 240 [evidence of a gang relationship between a witness and a defendant is relevant to show bias].) Moreover, the testimony that Langdon Street gang members will steal cars in order to commit crimes that cannot be traced to them was relevant to appellant’s motive in stealing the car, even though, as Espinoza testified, he had three cars of his own. (People v. Ramirez (2009) 172 Cal.App.4th 1018, 1028 [evidence of defendant’s gang participation established motive to sell narcotics].)
And, the trial court allowed only limited gang evidence, refusing to allow Officer Green to testify regarding the meaning of appellant’s tattoos and excluding the 50 or 60 photos in the gang book shown to Salinas, as irrelevant, immaterial, and unduly time consuming.
We conclude that the trial court did not abuse its discretion in admitting the gang evidence. In any event, any error was harmless because it is not reasonably probable that the verdict would have been more favorable to appellant absent the admission of the gang evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.) Appellant testified that he was a long-time gang member on parole, which was no more prejudicial than the evidence elicited by the People. And the evidence that appellant committed the crime was very strong. The police located Salinas’s car within two or three hours after it was stolen. Appellant drove Salinas’s car away 20 to 30 minutes after police began monitoring the car. Appellant ran from the police and shed some clothing, indicating consciousness of guilt, when he noticed the police. Furthermore, Salinas picked appellant’s photograph from a book of 50 or 60 photographs and at trial testified that he looked like the robber.
2. The trial court did not abuse its discretion in excluding Espinoza’s testimony regarding appellant’s statements
Appellant next contends that the trial court denied his right to present a defense by not permitting Espinoza to testify regarding appellant’s statements that he wanted to find the person who had parked in Espinoza’s family’s assigned parking space in order to ask that the car be moved. We conclude that the trial court did not abuse its discretion by refusing to admit the testimony, which was hearsay evidence.
Pursuant to Evidence Code section 1200, subdivision (a) “‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Except as provided by law, hearsay evidence is inadmissible. (Evid. Code, § 1200, subd. (b).)
Evidence Code section 1250, subdivision (a) states that: “... evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.” Further, Evidence Code section 1252 states: “Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness.” We review the trial court’s decision regarding admissibility of evidence under the abuse of discretion standard. (People v. Rowland (1992) 4 Cal.4th 238, 264; People v. Edwards (1991) 54 Cal.3d 787, 820.)
A criminal defendant cannot introduce hearsay evidence for the purpose of testifying while avoiding cross-examination. (People v. Edwards, supra, 54 Cal.3d at p. 820.) Here, the trial court acted within its discretion in determining that the statements purportedly made by appellant to Espinoza were hearsay because they were offered for the truth of the matter asserted, and that it was “patently unfair to deprive the People of cross-examination [of appellant so that the defense could] build an entire argument with no factual basis.” Moreover, the trial court determined that Espinoza’s testimony was inherently unreliable because there was no other proof appellant had such a conversation with Espinoza, and the statements, even if believed, did not necessarily prove that appellant actually drove the car with an innocent intent.
We conclude the trial court did not abuse its discretion in refusing to allow the statements into evidence.
3. The trial court did not abuse its discretion in refusing to strike one or more of appellant’s prior strikes
Appellant urges that the trial court abused its discretion in denying his motion to strike his prior strikes because his prior offenses were remote in time; he used a BB gun rather than a real gun in one of the prior convictions; he had been abused as a child; the charge of which he was convicted, unlawfully taking or driving a vehicle, was not a serious crime; he committed no further violent offenses after he was paroled; and punishment as a second strike defendant would have been more than adequate. We disagree.
Section 1385 authorizes the trial court to strike prior convictions in “furtherance of justice.” The term “‘in furtherance of justice,’ requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.]” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530 (Romero).) The courts must recognize society’s legitimate interest in the fair prosecution of crimes properly alleged by refraining from arbitrarily cutting those rights without a showing of detriment. (Id. at p. 531.) A trial court abuses its discretion if it strikes a prior conviction allegation simply because a defendant pleads guilty; or because it may have a personal antipathy for the harsh sentencing result that the Three Strikes Law would have on the defendant while ignoring the defendant’s background, the nature of his present offense, and other individualized considerations. (Ibid.)
However, our role is not to substitute our judgment for the trial court but to determine whether the trial court acted in an arbitrary, capricious, or patently absurd manner that results in the manifest miscarriage of justice. (People v. Romero (2002) 99 Cal.App.4th 1418, 1433–1434.) In the absence of such a showing we must presume that the trial court acted to achieve legitimate sentencing objectives and we may not set aside the trial court’s discretionary determination to impose a particular sentence. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978 [disapproved on other grounds in People v. Williams (2005) 35 Cal.4th 817, 832].)
We conclude that the trial court did not abuse its discretion in refusing to strike one of appellant’s prior convictions. Our review of the record shows that the trial court was well aware of its discretion under section 1385 and carefully considered all the relevant factors, including the testimony presented by the defense at a hearing on the Romero motion. The witnesses testified that: appellant had been abused as a child by his mother’s female roommate; he had grown up in a poverty-stricken neighborhood where criminal street gangs abounded; he joined the Langdon Street gang when he was 13; he was a good worker and a caring and giving person; he shot at police officers when he was 17 because his friend Gomez was being beaten by two plainclothes police officers; and appellant had been abused by police officers prior to the Gomez incident.
On the other hand, the People presented the testimony of retired Los Angeles Police Department Officer Frank Flores who stated that in 1991, while responding to a call regarding an ambulance shooting, he arrested Gomez. He was standing with Gomez by the police car. Appellant shouted “I’m going to shoot you fucking pigs.” Officer Flores heard a shotgun blast and was hit in the eye with a pellet, requiring surgery. His partner was shot in the arm. Officer Flores denied beating Gomez.
The trial court noted that attempted murder of two police officers was a serious crime. Furthermore, appellant was the direct perpetrator rather than an aider or abettor who could argue that his convictions arose out of circumstances beyond his control. Despite appellant’s attempt to minimize the seriousness of the prior convictions by urging that appellant used a BB gun, and “neither real ammunition nor a real gun,” we note that appellant and the officer testified that appellant had used a shotgun. And despite appellant’s argument that the current crime was nonviolent, the nonviolent or nonthreatening nature of a felony cannot alone take the crime outside the spirit of the Three Strikes law. (People v. Strong (2001) 87 Cal.App.4th 328, 344].) The trial court noted that although appellant committed the crimes 16 years ago, remoteness or youth is not a circumstance that would bring him outside the Three Strikes law. He was in prison for a long period of that time, and was free only for a little over a year before he committed this particular offense. He violated parole twice, including once during the commission of the instant crime. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [while a prior conviction may be stricken if it is remote in time, the trial court did not abuse its discretion where a defendant led a continuous life of crime after the prior].) The trial court also took into consideration appellant’s difficult childhood, his artistic abilities, and that he was a caring person.
We conclude that the trial court did not abuse its discretion in refusing to strike a prior conviction.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.