Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA293566, William C. Ryan, Judge.
Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Defendant Pablo Orrostieta appeals from the judgment entered following his conviction by jury of first degree murder with the finding that a principal personally used and discharged a firearm which proximately caused great bodily injury or death to the victim. (Pen. Code, §§ 187, subd. (a), 12022.53, subds. (b), (c), (d), (e)(1).) The jury also found the murder was committed for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1)(A). Defendant was sentenced to prison for a term of 50 years to life. He appeals, contending there is insufficient evidence to support the jury finding on the gang allegation and he was prejudiced by the admission of gang evidence and testimony explaining the absence of witnesses. We affirm.
Defendant was jointly tried with Alex Flores, who was acquitted of the same charges.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution’s first witness, Herberth Castro, testified under a grant of use immunity, made necessary by his admission that he had committed perjury at the preliminary hearing.
Castro, whose nickname is “Ice,” told the jury that on November 8, 2005, he was in the area of 43rd Street and Central Avenue with Obed Perez and Jose Magana. Castro referred to them as “O.B.” and “Beaver,” respectively. Castro and Perez were members of a tagging crew called “DLK.” A tagging crew is a group of individuals who put graffiti on walls, but, unlike gangs, is not involved in committing serious crimes. Magana belonged to “HF” or “Hoodlum Family,” a tagging crew that is aligned with the 38th Street gang. Defendant is Magana’s uncle and a member of the 38th Street gang. Defendant’s gang moniker is “Menace.” Castro had seen defendant’s moniker painted under graffiti in the neighborhood. Castro knew codefendant Flores as “Fate” or “Fade.” Castro believed Flores is also a HF member.
A homicide detective testified Magana’s first name is Alejandro.
Defendant’s nickname is spelled in the reporter’s transcript as “Menace” and “Menes.” The information lists defendant’s aka as “Menes.”
While Castro, Perez, and Magana were on 43rd Street, they became involved in a shouting match with Jeremy Moreno and an African-American male Castro did not know. Moreno and the male were yelling, “SCK,” which stands for South Central Klaneros, a rival tagging crew. Castro and Perez responded by shouting, “DLK,” and Magana yelled, “HF.” The screaming match lasted no more than a minute and no threats were made. Castro’s group left and went to a nearby park. Castro conceded that it was a sign of weakness to merely leave a location when members of a rival crew were yelling their name at them. At the park, Magana took Castro’s bicycle and said he was going home. Magana returned a short time later in the company of defendant and Flores.
The group of five individuals left the park and began walking to 43rd Street, the scene of the prior confrontation. Castro believed there was going to be a fistfight. He did not hear anyone mention the presence of a gun. Castro did not see Moreno or the unknown African-American male. The group came upon the victim, Shawn Jefferson, who was riding a bicycle. Defendant and Flores confronted Jefferson. Castro, who had known Jefferson for some time, yelled to defendant and Flores that Jefferson was “not him,” and said Jefferson was a friend. Castro believed Jefferson was going to get jumped by the members of Castro’s group. Flores pushed Jefferson off of the bicycle and defendant shot him five or six times.
Castro admitted that when he first spoke to police, he was not completely truthful because he was scared. He was afraid to testify because of the 38th Street gang, who he believed had written “38th Street,” “Fuck Rique” (another name Castro is known by), and “Fuck Ice” on his house. He was concerned the gang had labeled him a snitch. His parents later moved the family home because they were concerned for their safety. Castro acknowledged that he lied at the preliminary hearing when he testified he did not witness the shooting and had only heard about it.
Jamie Wilson, the victim’s mother, testified that she had known Castro for about two years. Castro and her son had been friends, and Castro would come by the house and spend time with Shawn.
Dr. Solomon Riley, a deputy medical examiner with the Los Angeles County Coroner’s Office, performed an autopsy on Shawn Jefferson. Jefferson suffered five gunshot wounds and succumbed as a result.
Detective Richard Arciniega was assigned to investigate Jefferson’s killing. At the scene of the shooting, six .22 caliber shell casings were recovered. He identified a photograph of an area near defendant’s home which depicted 38th Street graffiti and the name “Menes.” Arciniega testified that Menes is defendant’s gang nickname. The detective corroborated Castro’s testimony that he was fearful, noting that when Castro was interviewed a few days prior to trial, he was visibly shaken, crying, and expressing fear for his and his family’s safety. Arciniega stated that he had interviewed Magana and Perez, however, by the time of trial, he was unable to locate Magana and Perez was dead. He said he had no information whatsoever that either defendant or Flores was responsible for Perez’s death.
Detective Johnny Villa served a search warrant on Flores’s home about a week after the shooting. In Flores’s bedroom, Villa found papers that showed Flores was either a member or an associate of the 38th Street gang. He also discovered a sweatshirt that bore the words “Felon 38 PWS” and “R.I.P., Our big Homie, Woody, 38, TLS.”
Officer Ruben Garcia testified that he is a gang investigator. One of the gangs he is responsible for tracking is the 38th Street gang. The gang has approximately 330 documented members, and 150 to 160 members have been served with a gang injunction. The gang is involved in crimes ranging from “homicide all the way down to misdemeanor crimes . . . like drinking in public or vandalism.”
He recognized defendant, having first come in contact with him in 2005. Garcia saw him in various locations where other 38th Street gang members congregated. Defendant admitted to Garcia that he was a member of HF, a clique of the 38th Street gang. Garcia identified photographs depicting 38th Street gang graffiti and defendant’s gang moniker under it. He noted that the graffiti was near defendant’s home and on a liquor store wall located in 38th Street territory. He opined that defendant was a member of the 38th Street gang, based on his contacts with defendant and defendant’s admission.
Garcia also recognized Flores, who admitted to Garcia that he was a 38th Street gang member. Garcia referred to the writings which were found during the search of Flores’s home, and said they showed Flores was an active member of the gang. Garcia testified that the letters on the sweatshirt found in Flores’s bedroom and the letters tattooed on Flores’s back represented different cliques of the 38th Street gang. Based on the above, Garcia believed Flores was a 38th Street gang member.
Garcia testified to the requisite predicate acts committed by 38th Street gang members.
The prosecutor asked Garcia to consider the following hypothetical scenario. Members of two tagging crews, DLK and HF, become involved in a shouting match with two members of a rival crew, SCK. After the confrontation, the HF member leaves and returns with two members of the 38th Street gang. The group returns to the scene of the confrontation and accosts a person it mistakenly believes is a SCK member. One of the 38th Street gang members pushes the person off of his bicycle and the other member shoots the person five times. The prosecutor asked Garcia if he had an opinion as to whether the crime was committed for the benefit of the 38th Street gang.
Garcia opined that the shooting was committed for the benefit of the gang. He based his opinion on the following: 1) shootings are the type of crimes 38th Street gang members commit; 2) such crimes instill fear in the community; 3) a shooting communicates to anyone who crosses the gang that the gang is willing to kill such an offender; and 4) participation in such crimes enhances the reputation of the individual members within their gang.
Neither defendant nor Flores presented defense witnesses.
DISCUSSION
I. The Admission of Gang Evidence
Defendant contends that the court should not have allowed the prosecution to present any gang evidence, asserting the testimony concerning the 38th Street gang was irrelevant and inflammatory. The Attorney General argues that defendant forfeited his claim by failing to object below. We agree. In order to preserve a claim of error, a party is required to object to the admission of the challenged evidence in the trial court. (People v. Hinton (2006) 37 Cal.4th 839, 894.) Although Flores sought to bifurcate the gang allegation from the trial on the substantive charge, neither he nor defendant objected to the admission of the gang evidence.
Defendant suggests his failure to object can be excused because it was futile for him to do so. He asserts, with no authority, that the denial of his motion to dismiss the charges for insufficiency of the evidence at the preliminary hearing rendered a later objection to the admissibility of the evidence at trial futile. We are not persuaded. Setting aside whether an objection during a preliminary hearing could ever preserve a claim of trial error, defendant fails to grasp the difference between admissibility and sufficiency. The former relates to whether evidence should be considered. The latter goes to the question whether a party has presented enough evidence to sustain its burden of proof. Defendant’s motion at the preliminary hearing addressed the issue of sufficiency. He objected to the admission of the gang evidence for the first time on appeal. It is too late. (People v. Hinton, supra, 37 Cal.4th at p. 894.)
Moreover, on the merits, defendant’s contention fails. We conclude the gang evidence was relevant to the charges against defendant and its probative value was not substantially outweighed by its prejudicial effect.
Two cases upon which defendant relies are distinguishable. In People v. Avitia (2005) 127 Cal.App.4th 185 (Avitia), the defendant was charged with discharging a firearm in a grossly negligent manner and possession of an assault weapon. The information did not contain a gang allegation. Nonetheless, the prosecution was allowed to introduce evidence of gang graffiti found in the defendant’s room.
The appellate court held that admission of the evidence relating to the graffiti was an abuse of discretion. It noted that the charged crimes were not alleged to be gang related. Nor did the graffiti provide evidence that the guns in the room belonged to the defendant. The court concluded there was “no evidentiary link between the gang graffiti and the ownership of the guns. The gang evidence was completely irrelevant to any issue at trial.” (People v. Avitia, supra, 127 Cal.App.4th at p. 193.)
Here, the evidence was relevant to several issues at trial. Unlike Avitia, the prosecution alleged the charged crime was committed with the intent to promote criminal gang activity. Moreover, the gang evidence was relevant to the murder charge for two reasons. One, it provided motive for the shooting. The testimony revealed that a dispute between rival tagging crews precipitated the events which led to the shooting. After the shouting match ended, Magana left and returned with defendant and Flores. The group returned to 43rd Street, the site of the earlier confrontation, and Garcia admitted he thought a fistfight might ensue. Two, testimony relating to the gang explained why Garcia was afraid to testify. “Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness’s fear is likewise relevant to [his or] her credibility and is well within the discretion of the trial court. [Citations.]” (People v. Burgener (2003) 29 Cal.4th 833, 869.)
Citing People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), defendant argues the gang evidence was unduly prejudicial. In that case, the trial court allowed substantial gang evidence, believing it was relevant on the issue of motive and intent as to the underlying charges and to the charged gang enhancement. After the jury returned a guilty verdict and found the gang allegation true, the defendant moved for a new trial. He alleged the evidence was insufficient to support the jury finding on the gang allegation and that absent the allegation, the gang evidence was irrelevant and prejudicial. The court granted the new trial motion as to the gang enhancement, but denied it as to the underlying charges. (Id. at p. 222.)
The Albarran court concluded the gang evidence was irrelevant to the underlying charges. On the issue of motive, although the gang expert testified that the shooting took place at a gang member’s home, he was unaware of any rivalries between the host’s gang and any others. Thus, the expert’s conclusion that the shooting was carried out to enhance defendant’s gang’s respect had no foundation. (149 Cal.App.4th at p. 227.) The court went on to note that even if it “were to conclude that evidence of Albarran’s gang membership and some evidence concerning gang behavior were relevant to the issue of motive and intent, other extremely inflammatory gang evidence was admitted, which had no connection to these crimes.” (Ibid.) The court referred to evidence of a specific threat other members of Albarran’s gang made in their grafitti to kill police officers, descriptions of other crimes committed by various members of his gang, and testimony relating to the Mexican Mafia. It determined that none of this evidence was relevant to the underlying charges against Albrarran and undermined his right to a fair trial. It ordered a new trial. (Id. at p. 232.)
In the present case, the gang enhancement remains. Thus, the analysis whether the gang evidence was relevant is in a different posture than that in Albarran. In addition, the Albarran court concluded that the gang evidence was irrelevant to the underlying charges, contrary to our finding here. The question that remains is whether the trial court in our case was required to exclude the gang evidence because it was unduly prejudicial.
“Under Evidence Code section 352, a trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time. ‘Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable “risk to the fairness of the proceedings or the reliability of the outcome [citation].”’ [Citation.] On appeal, we review the trial court’s rulings concerning the admissibility of the evidence for abuse of discretion. [Citations.]” (People v. Riggs (2008) 44 Cal.4th 248, 290.)
Unlike Albarran, the gang evidence in this case was fairly limited and was not unduly inflammatory. The testimony revolved around the existence of the tagging crews, which explained the rivalry between them, defendant’s membership in the 38th Street gang, and the generic gang graffiti in the neighborhood and on Castro’s house. The jury also heard that one 38th Street gang member was convicted of carjacking and another was convicted of assault with a firearm. All of the testimony was necessary to prove defendant’s participation in the crime and his gang motive. We conclude the prejudicial effect of this evidence did not substantially outweigh its probative value and its admission did not result in a miscarriage of justice. (See Evid. Code, § 353.)
II. Sufficiency of the Evidence
Defendant argues the evidence is insufficient to support the jury finding on the gang enhancement. He contends “there was no evidence offered, other than evidence regarding [his] membership in a criminal street gang, to establish that the offense committed in this case was done for the benefit of that gang.”
“‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Tafoya (2007) 42 Cal.4th 147, 170, quoting People v. Kipp (2001) 26 Cal.4th 1100, 1128.) We must presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Smith (2005) 37 Cal.4th 733, 739.) This standard applies to a claim of insufficiency of the evidence to support a gang enhancement. (People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
We conclude sufficient evidence supports the finding that Shawn Jefferson’s murder was committed with the intent to promote the 38th Street gang’s criminal activities. A shouting match ensued between members of DLK and HF, on the one hand, and SCK, on the other. The SCK member was accompanied by an African-American male. While the members “dissed” each other’s tagging crew, Castro’s group, which included Magana and Perez, walked away. Castro admitted it was a sign of weakness to merely leave an area when a rival tagging crew was yelling its name. After going to the park, Magana left and returned with defendant and Flores, two members of the 38th Street gang. Castro and Officer Garcia, the gang expert, testified that the 38th Street gang was the gang force in the neighborhood, far more powerful than the tagging crews. As Garcia put it, tagging crews, unlike gangs, were not known for committing murders or carrying handguns.
Immediately, defendant and the group returned to the street where the confrontation had taken place minutes before. They saw Shawn Jefferson riding his bicycle. As defendant and Flores accosted Jefferson, Castro yelled that Jefferson was “not him.” The jury could reasonably conclude that Castro meant to communicate that Jefferson was not the African-American male who had accompanied the SCK member. Nonetheless, Flores pushed Jefferson off of his bicycle and defendant shot Jefferson five times. The facts support Garcia’s opinion that the shooting was committed because defendant believed Jefferson had crossed the gang and that his brazen killing would communicate to others that such intransigence would not be tolerated, thus instilling fear in the community.
Defendant counters by claiming that the only evidence of motive suggests the killing was personal, as Magana summoned defendant, his uncle, to the scene. He also notes that no one announced the gang’s presence prior to the shooting and there was no evidence anyone in the gang communicated the details of the killing to the community. While such evidence may support a conclusion other than the one reached by the jury, that does not mean its finding is unreasonable. Our task is not to reweigh the evidence. Reversal on the ground of insufficiency of the evidence is “unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) Substantial evidence supports the jury’s implied finding that Jefferson’s killing was a mistaken attempt to exact gang revenge.
III. The Admission of the Evidence Concerning the Absence of the Witnesses
Over defense objection, the trial court allowed the prosecution to present evidence that two people who were at the scene of the shooting were unavailable. The jury was told Magana could not be located and Perez was dead. Defendant argues the court erred in allowing this evidence because it was irrelevant to any issue the jury had to decide. We agree.
While a court has broad discretion in determining whether evidence is relevant, it “lacks discretion to admit irrelevant evidence.” (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.) The test of relevance is whether the evidence tends “‘“‘“logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive. [Citations.]’”’” (Id. at p. 1166.)
The Attorney General suggests the testimony regarding why Magana and Perez were not present was relevant because without an “explanation as to their unavailability, the jury might have wondered why these logical witnesses were not called, and why the prosecutor presented only Castro’s account of the events.” Perhaps so. The question, however, is what relevant fact did the evidence relating to Magana’s and Perez’s absence tend to establish? We cannot discern one. The fact that a witness is unavailable is relevant only if a party wishes to introduce that witness’s prior statements. In that case, the party is required to establish the witness’s unavailability pursuant to Evidence Code section 240 to the court’s satisfaction, not the jury’s.
The Attorney General argues that juries are informed that witnesses are unavailable when such a witness’s prior testimony is read. (See CALCRIM No. 317.) We agree. However, the jury is not told why the witness is not available, unlike the jury in our case. As to the Attorney General’s contention that a prosecutor may comment on the absence of logical witnesses, we agree that is appropriate during closing argument. This does not address the issue confronting us here. On our record, we conclude the evidence that the police could not locate Magana and that Perez was dead was simply not relevant to any issue in this case.
We do not suggest that the evidence would have been irrelevant if the defense had challenged the thoroughness of the detectives’ investigation through its questions. In that situation, the evidence would have been relevant to forestall the insinuation that the police had conducted a shoddy investigation in an effort to nab the first available suspect.
Defendant argues the admission of the evidence violated his right to a fair trial. We disagree. We recognize reversal may be required if the admission of the testimony “rendered defendant’s trial so ‘fundamentally unfair’ [citation] as to constitute a deprivation of due process.” (People v. Holloway (2004) 33 Cal.4th 96, 128.) That is not the case here. The entire testimony consisted of five questions and answers. The prosecution was careful to establish that the detective had no reason to believe defendant was responsible for either Magana’s absence or Perez’s death. Defendant asserts the jury was left with the impression that Magana, who had been arrested and released, gave the police evidence that incriminated defendant and then absconded. That is pure speculation. As Castro testified that he saw Magana with a .22 caliber handgun a week before the shooting, the police knew Magana carried a .22 caliber handgun, and that .22 caliber shell casings were found at the murder scene, it is just as likely the jury believed Magana was in hiding because he was afraid he would be implicated in the shooting. The admission of the challenged evidence did not abridge defendant’s right to due process.
The prosecutor asked these questions and Detective Arciniega gave these answers:
In our view, the testimony had a limited effect on the outcome of the case. The trial boiled down to whether the jury believed Herberth Castro. The defense had ample opportunity to discredit Castro by pointing out his admitted lies, some of which were told under oath. As the Attorney General noted, the jury exhibited its ability to judge the case based on the evidence by acquitting Flores. Since we cannot conclude it is reasonably probable the jury would have reached a different verdict had the testimony relating to Magana’s and Perez’s absence not been admitted, defendant also has failed to establish prejudice under state law. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.
“Q Detective, have you attempted to locate Alejandro Magana?
“A Yes.
“Q Have you been successful?
“A No, sir.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Q Okay. Do you know whether it is possible to call O.B. Perez as a witness?
“A No.
“Q And why is that?
“A He’s deceased.
“Q And do you have any information whatsoever that either of these defendants have anything to do with the fact that he’s deceased?
“A No, not at all.”