Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCD209562, William C. Gentry, Jr., Judge.
BENKE, Acting P. J.
In this gang case, Michael Palma contends: (1) he was denied his right to due process and a fair trial when the court refused to bifurcate gang allegations from allegations he committed substantive crimes; (2) the prosecution's gang expert testified on an ultimate issue to be decided by the jury; (3) his Sixth Amendment right to confrontation was violated by the gang expert's use of testimonial hearsay; and (4) the prosecutor committed Griffin error, based on Griffin v. State of California (1965) 380 U.S. 609 [85 S.Ct. 1229] (Griffin), by improperly commenting on Palma's failure to testify at trial.
We reject Palma's bifurcation contention because the evidence admissible to prove the gang allegation would have been cross-admissible to prove the substantive assault allegation. Furthermore, there was no showing the charges were joined with an eye toward inflaming the jury, there was no evidence weak charges were brought together with strong charges to make for a stronger case and there was no gross unfairness such that Palma was deprived of due process.
With respect to the prosecution's gang expert, the record shows the expert testified as to the culture and habits of gangs in general. As such, we conclude it was not an improper opinion on an ultimate issue. In addition, an expert may base his or her opinion on hearsay when the evidence is not offered for the truth of the matter asserted. Because the expert here did not offer the evidence for the truth of the matter asserted, we conclude there was no violation of Palma's Sixth Amendment right to confrontation.
Finally, we conclude there was no Griffin error. The record shows the prosecutor did not comment on Palma's failure to testify, but instead only made reference to what Palma knew at the time of the assault.
We therefore affirm the judgment of conviction.
STATEMENT OF THE CASE
A jury convicted Palma of three counts of assault with a semi-automatic firearm (Pen. Code, § 245, subd. (b)) and one count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury also found each of the above acts was committed within the meaning of the criminal street gang allegation under section 186.22, subdivision (b)(1). The court sentenced Palma to prison for 11 years.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL BACKGROUND
On September 2, 2007, Palma and several others, including at least one female, walked by Gabriel Ruiz Martinez's house in East San Diego (Martinez house). Palma at the time was a documented member of the FMK criminal street gang. The Martinez house is located in territory that was claimed by FMK. Martinez's cousins, Anthony Nevarez (Anthony) and Jesus Nevarez (Jesus), were seated on the front steps of the house with their uncle, Ulysses Figueroa. Francisco Estrada was in front of the house sitting on the tailgate of his truck.
We refer to these individuals, which included Palma, as "group A."
We refer in this opinion to Martinez, Anthony, Jesus, Figueroa and Estrada as "group B."
There are divergent accounts of what happened between group A and either Anthony or Jesus, but fighting words were exchanged. A short time later, Palma and between 15 and 30 individuals approached the Martinez house in order to engage the occupants in a fight. Several of the members of group C carried weapons, including rocks, sticks, a baseball bat, a metal pole and a hammer. Palma challenged Jesus to a one-on-one fist fight. Someone from group C yelled "FM" or "FMK." Someone else from group C asked words to the effect "where you from" and stated something about crossing out FMK graffiti.
We refer to this group as "group C."
At some point, Anthony ran inside and asked Martinez to come outside; Martinez did so. Once Anthony returned outside, a female from group C approached him and accused Anthony of "messing" with her nephew. The female started to slap Anthony. He defended himself by pushing her away. Group C, including Palma, then attacked group B. During the fight, Jorge Luis Guerrero, another documented FMK gang member, emerged from a nearby alley and yelled something about "messing with his homeys." Guerrero drew a handgun, fired at members in group B, and injured four people: Jesus, Anthony, Martinez and a neighbor of Martinez, Jonathan Arreguin.
DISCUSSION
I
Bifurcation
Palma contends he was denied his right to a fair trial when the court refused to bifurcate trial of the gang enhancements from trial of the substantive offenses. He further contends that even if the court did not abuse its discretion at the time it ruled on his motion, the result of the joint trial amounted to gross unfairness which violated his constitutional right to due process.
A. Pre-Trial Denial of Bifurcation
A trial court has broad discretion to grant or deny the bifurcation of an enhancement from the determination of the defendant's guilt of the charged offense. (People v. Hernandez (2004) 33 Cal.4th 1040, 1050.) The trial court abuses its discretion only when the defendant can establish there is a substantial danger of prejudice requiring the charges be tried separately from the enhancement. (Id. at p. 1051.) Even if some of the evidence offered to prove the enhancement would be inadmissible at a trial on the substantive crime, a court may still deny the motion for a bifurcated trial if the evidence is likely to be cross-admissible or where the defendant has injected his gang status into the crime. (Ibid.) Evidence of the defendant's gang affiliation is often admissible to prove identity, motive, modus operandi, specific intent, means of applying force or fear or other issues pertinent to guilt of the charged crime. (Id. at p. 1049.)
For example, under Evidence Code section 352, admissible evidence may be excluded where "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Here, the court found "that gang affiliation is very tightly wound into the factual scenario of this case and is highly relevant, particularly to motive and intent." Moreover, the court instructed the jury not to consider the gang evidence as proof of the defendant's bad character. The court found that trying the allegation and the substantive crime together would not be substantially more prejudicial than probative under Evidence Code section 352.
CALCRIM No. 1403 was given to the jury. It provides, in pertinent part: "You may not conclude from this evidence that the defendant is a person of bad character or that (he/she) has a disposition to commit crime."
We conclude the trial court did not abuse its discretion when it denied Palma's motion for a bifurcated trial. The evidence surrounding the incident, including the yelling of gang jargon and facts relating to motive and intent, would have been cross-admissible in a bifurcated trial. Because cross-admissibility of evidence dispels the inference of prejudice, and because Palma went to Martinez's residence with 30 people and someone from group C yelled gang jargon, the status of the gang was necessarily injected into the incident. (See People v. Hernandez, supra, 33 Cal.4th at pp. 1050-1051.) Thus, the court did not abuse its discretion in denying Palma's bifurcation motion.
B. Due Process
Even when a trial court properly denies a motion to bifurcate, if the failure to bifurcate actually results in gross unfairness so as to deprive the defendant of a fair trial or due process of law, then reversal is required. (People v. Johnson (1988) 47 Cal.3d 576, 590, unrelated rule abrogated in People v. Reyes (1998) 19 Cal.4th 743, 752-754; see also People v. Arias (1996) 13 Cal.4th 92, 127 (Arias) [reconfirming the rule in People v. Johnson, supra, 47 Cal.3d at p. 590].) Palma contends he suffered such gross unfairness. We disagree.
To determine if gross unfairness has occurred, we examine four factors: (1) the cross-admissibility of the evidence in bifurcated trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. (People v. Mendoza (2000) 24 Cal.4th 130, 161 (Mendoza).)
The first factor is whether gang evidence was cross-admissible. As discussed ante, the circumstances of the fight and eventual shooting involved facts relating to the activity and mentality of criminal street gangs. This same activity and mentality was conjoined with Palma's motive and intent.
For example, the prosecutor asked Detective John Harberth, the People's gang expert, about one of the phrases someone shouted during the fight "where you from?" Harberth explained: "In a gang case, whenever someone asks where are you from, it's usually a precursor to violence... [b]ecause there is no right answer to that question." This question simultaneously proves the gang enhancement and shows that Palma, a gang member, was at the residence with the knowledge and intent that violence might ensue. Thus, even in a bifurcated trial a significant amount of gang evidence would have been cross-admissible.
The only evidence that would have been exclusive to the gang allegation was proof of predicate gang acts. The predicate gang acts included an assault, a robbery, a felon carrying a firearm and a stabbing. These are all crimes of a less-serious nature than the crime for which Palma was eventually convicted. Although Harberth also noted the FMK street gang had been involved in an attempted homicide as well as a kidnapping, those predicate acts were not offered to prove the gang enhancement, and thus the inflammatory nature of those crimes was kept from the jury. We conclude that even if predicate act evidence was prejudicial to Palma, it was also highly probative and withstands an Evidence Code section 352 analysis.
Section 186.22 punishes "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity...." (§ 186.22, subd. (a).) It further defines a " 'pattern of criminal gang activity' " as "the commission of... two or more of the following offenses...." (§ 186.22, subd. (e).) The section then goes on to list various crimes. These qualifying crimes are referred to as "predicate acts" because they are a predicate to alleging and proving a violation of section 186.22.
The second Mendoza factor—the risk joined allegations will unfairly inflame the jury—was also not present. Palma was charged with four counts of assault under section 245. Because all of the charges were similar and were more serious than the predicate acts used to prove the enhancement, it is unlikely the gang allegation inflamed the jury against Palma.
The fact that one charge was under a different subdivision does not change our analysis.
In Arias the defendant was charged with murder in one count and rape in another count. The crimes occurred on two separate dates and involved two separate victims. (Arias, supra, 13 Cal.4th at p. 127.) Despite the danger the jury would use evidence of the rape to convict for the murder, the trial was not bifurcated. (Id. at p. 121.) Our Supreme Court held the failure to sever the charges did not result in gross unfairness because the evidence from each of the charges was so strong it was unlikely the jury convicted based on evidence from a different crime. (Id. at p. 130.)
Here, the charges are not nearly as polarizing as they were in Arias; all the substantive charges involved assault, and each of the assaults occurred on the same date. Though there were separate victims, three of the four victims were from group B opposing Palma's group C. Furthermore, the enhancement allegation was closely connected to the substantive charges. (See People v. Hernandez, supra, 33 Cal.4th at p. 1048.) Thus, we conclude there was little risk the jury was unduly inflamed by the joinder.
The fourth victim was a neighbor, Jonathan Arreguin.
As to the third Mendoza factor, here a weak case was not joined with a strong case or another weak case so that the total evidence altered the outcome of some or all of the charges. Again, a comparison to Arias is apt.
In Arias the prosecution had very strong evidence the defendant had committed a rape (among other charges); the prosecution had strong, but less evidence he had committed murder. (See Arias, supra, 13 Cal.4th at pp. 128-130.) Before trial, the defendant in Arias wanted to plead guilty to rape, but wanted to challenge the prosecution on the murder charge based on a lack of intent theory. The defendant argued that powerful evidence from the rape joined with circumstantial evidence from the murder would encourage the jury to convict for the murder based on evidence from the rape. (Id. at pp.129-130.) The trial court disagreed, and the Supreme Court affirmed. (Id. at p. 130.)
In so doing, our Supreme Court reasoned the murder evidence was independently strong enough to support a conviction. It also reasoned the cross-admissibility of evidence dispelled any chance the rape evidence tipped the balance for the murder conviction. (Arias, supra, 13 Cal.4th at pp.129-130.)
Here, unlike Arias, the charges all arise from one set of facts. The gang issues in this case were, as the trial court found, "tightly wound" into the underlying crime. Moreover, a reasonable jury, considering the facts of this case, would necessarily see the implication of gang involvement. Finally, independent of the gang enhancement, the evidence from the substantive crime was strong enough to support a conviction. We thus conclude the third Mendoza factor also does not favor Palma.
We need not consider the final Mendoza factor as this was not a capital case.
Palma, however, relies on People v. Albarran (2007) 149 Cal.App.4th 214 to support his contention gang evidence should not be admitted at trial where its sole relevance is to show a defendant's criminal disposition or bad character as a means of creating an inference the defendant committed the crime. Although we agree with the holding in Albarran, the evidence here was offered for no such purpose. Rather, the gang evidence highlighted the pack mentality of gangs and went directly to the question of Palma's motive and intent. People v. Albarran is thus inapposite here.
In sum, none of the Mendoza factors support Palma's argument. Thus, the court's denial of bifurcation did not result in any gross unfairness to Palma.
II
Gang Expert Testimony on an Ultimate Issue
Palma argues Harberth, the People's gang expert, testified to Palma's subjective knowledge and intent, and thus his testimony was an improper opinion on an ultimate issue. We review admission of the expert gang testimony for abuse of discretion. (People v. Ward (2005) 36 Cal.4th 186, 210.)
Gang experts may testify regarding the culture and habits of criminal street gangs. (People v. Ward, supra, 36 Cal.4th at p. 209; see also People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew).) This testimony may include discussion of the size, composition or existence of a gang, an individual defendant's membership in or association with a gang, the primary activities of a specific gang, motivation for a particular crime, whether and how a crime was committed to benefit or promote a gang, rivalries between gangs, gang-related tattoos, graffiti and hand signs and gang colors or attire. (Killebrew, supra, 103 Cal.App.4th at pp. 656-657.)
Evidence Code section 801 sets out the requirements for offering the opinion of an expert. Evidence of a criminal street gang's culture and habits is significantly beyond common experience such that the opinion of an expert would assist the trier of fact, and therefore meets the criterion of Evidence Code section 801. (See People v. Gardeley (1996) 14 Cal.4th 605, 617.)
With respect to culture and habits, gang experts may also testify to how a gang may retaliate against a perceived wrong, how gangs may travel in large groups if expecting trouble, and how oftentimes gang members traveling together may know if one of their group is armed. (Killebrew, supra, 103 Cal.App.4th at p. 658.) However, an expert may not testify as to the subjective knowledge and intent of an individual defendant. (See id. at p. 647 [expert went beyond culture and habit of gangs when he testified that individuals knew there was a gun and each of the individuals constructively possessed the gun with every other person].)
Palma points out the prosecutor asked the expert on direct examination: "[D]o individuals in the group usually know who's got the gun... ?" Palma argues that this question went to his subjective intent and therefore usurped the jury's function. We disagree.
The record shows that before asking the above question, the prosecutor was discussing a predicate act and not Palma. During that predicate act, a group of several males approached and fought with a smaller group. The larger group yelled out the gang name and challenged the smaller group to a one-on-one fist fight. The prosecutor then asked the expert if this is common for gangs in general. The prosecutor and expert then continued to discuss gangs in general and what gangs might expect in situations similar to the predicate act. The expert stated gangs like to tilt the odds in their favor by bringing unconventional weapons, and usually at least one gang member will carry a gun, pushing the odds greatly in the gang's favor. The only time Palma's case was discussed in this exchange was when the expert drew the comparison that Palma's group, like the group from the predicate act, carried unconventional weapons. By the time the prosecutor asked the expert if individuals in the group would know about a gun, the questioning had returned to a discussion of gangs in general.
Because the testimony was tied to gangs in general and not about Palma specifically, the expert witness's testimony was not about Palma's subjective knowledge or intent. In fact, Killebrew expressly approved of the type of expert testimony given here regarding the fact that "gang members traveling together may know if one of their group is armed." (Killebrew, supra, 103 Cal.App.4th at p. 658.) Thus, the expert's statement was not an improper opinion on an ultimate issue, and we conclude the trial court did not abuse its discretion in admitting the evidence.
III
Expert's Use of Hearsay
Palma next contends the gang expert's use of hearsay violated his Sixth Amendment right to confront the witnesses against him. Palma contends the information relied on by Harberth was (1) hearsay, (2) testimonial and (3) was offered for the truth of the matter asserted. We disagree.
Palma phrases this contention as "Without the ability to cross-examine the officer who recorded the field interview, appellant is denied the right to confront the person who now provides, through a report as testified to by the expert, facts that will determine whether appellant is convicted of the crimes charged."
The Sixth Amendment guarantees a defendant's right "to be confronted with the witnesses against him...." (U.S. Const., Sixth Amend.) The United States Supreme Court has held that "out-of-court statements that are testimonial in nature are inadmissible unless the declarant is unavailable and the accused has had a prior opportunity to cross-examine the declarant." (People v. Thomas (2005) 130 Cal.App.4th 1202, 1208 (Thomas), citing Crawford v. Washington (2004) 541 U.S. 36, 68 [124 S.Ct. 1354] (Crawford).)
The Sixth Amendment is made applicable to the states through the Fourteenth Amendment. (Pointer v. Texas (1965) 380 U.S. 400, 403 [85 S.Ct. 1065].)
However, "Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions, and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert's opinion." (Thomas, supra, 130 Cal.App.4th at p. 1210.) Moreover, Crawford itself explicitly states the confrontation clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Crawford, supra, 541 U.S. at p. 59, fn. 9.)
Palma asks us to reconsider Thomas in light of the recent United States Supreme Court decisions of Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527] (Melendez-Diaz)and Briscoe v. Virginia (Jan. 25, 2010, No. 07-11191) ____U.S. ____ 2010 U.S. LEXIS 767. We conclude Melendez-Diaz is inapposite to our analysis of this case and does not change our reasoning as stated in Thomas.
Briscoe v. Virginia reaffirmed the court's opinion in Melendez-Diaz. (See Briscoe v. Virginia, supra, ____ U.S. ____ 2010 U.S. LEXIS 767.)
In Melendez-Diaz prosecutors sought to introduce evidence of a "certificate of analysis" from scientists at the Massachusetts Department of Public Health that a substance seized from the defendant was cocaine. (Melendez-Diaz, supra, 557 U.S. ___ [129 S.Ct. at p. 2531].) The defendant argued the confrontation clause required the prosecution to put the scientist who created the report on the witness stand to testify against him. (Id. at p. 2530.) The United States Supreme Court agreed, holding that the certificate was a "testimonial statement[], and the analysts were 'witnesses' for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ' "be confronted with" ' the analysts at trial." (Id. at p. 2532.)
Melendez-Diaz lends no support to Palma's contention here. The report in Melendez-Diaz was offered to prove the information contained in the report was true—that the substance tested was in fact cocaine. Here, Harberth's use of other officer's field interviews, which contained testimonial hearsay, was not offered to prove the truth of the matter. The field interviews were used by Harberth in forming his expert opinion. Palma had, and seized, the opportunity to cross-examine Harberth about how his opinion was formed, and his qualifications for forming such an opinion. Thus, Melendez-Diaz does not undermine Thomas, as Palma suggests, with respect to an expert's reliance on hearsay in forming his opinion.
Indeed, after Melendez-Diaz, experts may still testify to their opinions on relevant matters, and relate the information and sources—including hearsay sources—upon which they rely in forming those opinions. Experts are subject to cross-examination about their opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents—they only go to the weight of the expert's opinion. (Thomas, supra, 130 Cal.App.4th at p. 1210.) Thus, we conclude Harberth's testimony did not infringe upon Palma's Sixth Amendment right to confront the witnesses against him.
IV
Griffin Error
Finally, Palma contends the prosecutor during closing argument committed Griffin error by improperly commenting on Palma's failure to testify. (See Griffin, supra, 380 U.S. at pp. 611-613.) Palma's contention is based on the tense of the verb "to know." Palma argues the prosecutor suggested to the jury that Palma currently knew what had happened, and by implication, had failed to share what he currently knew with the jury, which again, by implication, showed guilt.
To be clear, the prosecution stated:
A defendant forfeits Griffin error when he or she fails to object to that error or seek admonition in the trial court. (People v. Lancaster (2007) 41 Cal.4th 50, 84.) Palma neither objected to the prosecutor's comments during trial nor did he seek an admonition for the jury. Thus, he has failed to preserve the issue for appeal.
Defense counsel did, however, argue the Griffin error after trial during a motion for a new trial.
In any event, the prosecutor's statement was a fair comment on the state of the evidence, rather than a comment on defendant's failure to provide personally an alternative explanation. (People v. Turner (2004) 34 Cal.4th 406, 420.) Palma's argument focuses on the prosecutor's use of the word "know" in the present tense, rather than "knew" in the past tense. Palma believes that using phrases like "he knows it now" and "come back and tell the defendant what he already knows" creates the implication the defendant has information which he refused to share with the jury, and again by implication, the jury should infer guilt. We conclude the argument is without merit.
The appropriate test to determine whether Griffin error occurred is the reasonable likelihood standard. (People v. Clair (1992) 2 Cal.4th 629, 662.) The test focuses on whether there is a reasonable likelihood the jury misconstrued or misapplied the words in violation of the Constitution. (Id. at p. 663.)
Here, there was no reasonable likelihood the jury misconstrued the prosecutor's statements. Again, we view the prosecutor's comments in the context of the whole statement, as set forth in the record. The prosecutor stated: "Mr. Palma, with his friends, went over there with an intent to assault, with weapons, with a gun. And he knew it. He knows it now. He knows why he went there. And you also know it based on the evidence." The inference is that Palma, at the time of the incident, knew what he was doing, and Palma cannot now change what he intended then. Even though the prosecutor is using the present tense of "know," he is still referring to what Palma knew in the past.
The prosecutor continued with this theme: "Come back and tell the defendant what he already knows. Come back and tell him that he's guilty of every one of these charges." Again, the inference is Palma cannot change now what he knew then.
It is also important to note that during closing argument defense counsel paid close attention to the subjective intent element, stating: "What was in [the defendant's] mind is what they have to prove, what they must prove for any count of conviction." "[A] prosecutor is justified in making comments In rebuttal, perhaps otherwise improper, which are fairly responsive to argument of defense counsel that are based on the record." (People v. Hill (1967) 66 Cal.2d 536, 560.) Here, the prosecutor's comments occurred during rebuttal, after defense counsel had commented that the prosecutor must prove "Quite literally what is in [Palma's] mind." The prosecutor responded with the inference that evidence proved what was in his mind then, and it is still in his mind now.
In making this argument, counsel also used the present tense of the verb "to be." Nevertheless, defense counsel is referring to what was known in the past.
Palma asks us to believe the prosecutor's comments relegated the jury to thinking about Palma only in the present tense and then construing his present failure to respond against him despite being instructed by the court otherwise. This argument is unconvincing. We thus conclude there was no Griffin error.
The jury received CALCRIM No. 355. It states: "A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way."
DISPOSITION
The judgment of conviction is affirmed.
I CONCUR: HUFFMAN, J. I concur in the result. McDONALD, J.
"Mr. Palma, with his friends, went over there with an intent to assault, with weapons, with a gun. And he knew it. He knows it now. He knows why he went there. And you also know it based on the evidence.
"What I'm going to ask for you to do is to come back and to tell him what he already knows. Don't be fooled by what has been said to you. Don't be fooled by the dispatch tapes. Don't be fooled by the fact that it was a one on one challenge. Don't be fooled by any of that. Come back and tell the defendant what he already knows. Come back and tell him that he's guilty of every one of these charges."