Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA092944. John A. Torribio, Judge.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Mallano, P. J.
Defendant Stephen Patterson appeals from the judgment entered following a jury trial in which he was convicted of first degree murder with firearm-discharge findings. Defendant contends the trial court erred by failing to instruct sua sponte on heat of passion and the limited purpose for which gang evidence was admitted, admitting gang evidence, and omitting a factor from CALJIC No. 2.92. He also argues his trial attorney rendered ineffective assistance by failing to request a limiting instruction regarding the gang evidence. We find no error and affirm.
BACKGROUND
On the afternoon of April 15, 2005, Colleen Enriquez watched from her front porch as Yair Oliva and other Latino men shouted “racial slurs” and “the ‘N’ word” at, and made gang hand signs to, an approaching African-American man, who returned gang signs. Enriquez described the group of Latino men as members of the locally predominant Florencia 13 gang. Enriquez did not recognize the African-American man. He continued walking and turned on 66th Street.
About 15 to 20 minutes later, Enriquez saw the same African-American man return from 66th Street, accompanied by defendant Patterson. Enriquez recognized defendant because she had seen him on 66th Street on three prior occasions and knew that he lived in a particular house on 66th Street. Enriquez and her mother, Esther Gonzalez, went inside their house and watched the rest of the incident while peeking through blinds on their windows. From both outside and inside the house, Enriquez had a “full” view of defendant’s face. Defendant and his companion drew guns and began firing toward the group of Latino men. Enriquez testified she heard about five shots. Oliva fell to the ground, and the gunmen ran toward 66th Street. Oliva died from a single gunshot wound to his face.
Enriquez told the police defendant was one of the gunmen and told them where he lived. She subsequently identified defendant from photographs and at trial.
Gonzalez testified to a somewhat different version of the events leading up to the shooting. She saw two African-American men and a group of about six Latino men exchange gang hand signs. The two African-American men left and returned after 15 or 20 minutes. From inside the house, Gonzalez saw the two African-American men fire guns toward the group of Latino men, then run toward 66th Street. Gonzalez was unable to identify either gunman but testified that one of them wore his hair in “tight twisters.”
Gonzalez told the police about graffiti on the wall outside her house. She testified that the Florencia 13 graffiti was put on the wall first. Earlier on the day of the shooting, “SHHC” appeared on the same wall in red paint. Gonzalez did not see who painted the graffiti.
Juan Sedano testified that he was drinking alcohol and taking pills on the day of the shooting. He remembered only that he had spent some time with Oliva, he heard about four distant gunshots, and he saw Oliva lying dead on the ground after the shooting. He denied arguing with any African-American man but admitted he was an associate of the Florencia 13 gang. On the day of the shooting, Detective Brian Steinwand interviewed Sedano. Steinwand testified that Sedano did not appear to be under the influence. Sedano told Steinwand that he was standing in front of an apartment building with Oliva and another man when they saw an African-American man with corn rows. Sedano said the man made gang hand signs and Sedano and Oliva “flipped him off” in response. Oliva, Sedano, and the third man went behind the building for a time. When they returned to the front, Sedano walked across the street to a friend’s house. He went inside the house when he heard gun shots and did not see who fired the shots.
The prosecution’s gang expert, Detective Richard Martinez, testified that the site of the shooting was within territory claimed by both the Florencia 13 gang and the 66th Street clique of the East Coast Crips gang. In April 2005, there was an ongoing feud between the Florencia 13 and the East Coast Crips gangs.
Martinez viewed photographs of the graffiti on the wall outside Gonzalez’s home. He testified that the graffiti referred to several cliques of the Florencia 13 gang, the 66th Street clique of the East Coast Crips gang, and the Southside Hustler Crips gang, which was not part of the East Coast Crips gang. Most Crips gangs would assist one another and share rivalries. The competing graffiti indicated that the Florencia 13 and East Coast Crips gangs were challenging each other.
Martinez also viewed photographs of defendant’s tattoos and testified that several of the tattoos referred to the 66th Street clique of the East Coast Crips: two “6” tattoos, “166% East,” and characters that were “possible sixes” on one of defendant’s hands. A “$$HC” tattoo was consistent with the “SSHC” graffiti on the wall and referred to the Southside Hustler Crips gang.
Martinez testified that, although he had worked as a gang officer in the area where the charged shooting occurred for more than seven years, he had never had any contact with defendant. Martinez had also searched police records and databases pertaining to gangs but had found no references to defendant.
Defendant’s grandfather, Y.C. Pryor, testified that defendant was at home with him at the time of the shooting.
Defendant’s neighbor on the opposite side of 66th Street, Karla Chacon, testified that she heard the shooting and looked out her front window. She saw a lot of her neighbors, including defendant and Pryor, emerging from their houses. Defendant walked out through his front door seconds after the shots were fired.
Trinidad Leyva testified that he was working at Edison High School on the day of the shooting and heard the shots. After about five seconds, he peeked from behind some containers and saw two African-American men running. Although Leyva did not know defendant, he was certain that defendant was not one of the men he saw running. The two men stopped at the third house from the corner on 66th Street, spoke to someone, and ran on to an apartment building.
Enriquez testified the school was actually Edison Middle School.
The jury convicted defendant of first degree murder and found that he had personally and intentionally fired a gun, causing Oliva’s death. The trial court sentenced defendant to prison for 50 years to life.
DISCUSSION
1. Failure to instruct sua sponte on heat of passion
Defendant contends that the trial court erred by failing to instruct sua sponte on voluntary manslaughter on a heat of passion theory. He bases his heat of passion claim upon the racially based taunting of the first African-American man who walked through the neighborhood.
A trial court must instruct sua sponte on a lesser included offense if there is substantial evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser. (People v. Blair (2005) 36 Cal.4th 686, 745.) Substantial evidence in this context is “evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist.” (Ibid.) This obligation extends to all theories of a lesser included offense that find substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) We independently review the necessity of instructing on a lesser included offense. (People v. Manriquez (2005) 37 Cal.4th 547, 584 (Manriquez).)
“Where an intentional and unlawful killing occurs ‘upon a sudden quarrel or heat of passion’ ([Pen. Code,] § 192, subd. (a)), the malice aforethought required for murder is negated, and the offense is reduced to voluntary manslaughter—a lesser included offense of murder.” (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) Heat of passion has both objective and subjective components. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) The defendant must subjectively act in the heat of passion. (Ibid.) But the claimed provocation must be sufficient to cause a reasonable person under the same circumstances to act rashly, without deliberation and reflection, from passion rather than from judgment. (Carasi, at p. 1306.) A defendant may not “‘“set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused.”’” (Cole, at pp. 1215–1216, quoting People v. Steele (2002) 27 Cal.4th 1230, 1252.)
Although provocation may be verbal, derogatory name-calling has been held to be insufficient provocation to inflame the passions of a reasonable person to reduce murder to voluntary manslaughter. (Manriquez, supra, 37 Cal.4th at pp. 585–586; People v. Najera (2006) 138 Cal.App.4th 212, 226; People v. Dixon (1961) 192 Cal.App.2d 88, 91 [“Words or gestures, no matter how grievous or insulting, are not sufficient provocation....”].)
Here, the purported provocation amounted to highly offensive name-calling. While the taunts were odious, they would not “arouse feelings of homicidal rage or passion in an ordinarily reasonable person.” (See People v. Pride (1992) 3 Cal.4th 195, 250.) The purported provocation does not satisfy the objective aspect of the heat of passion standard.
Nor was there any evidence showing that defendant’s reason was in fact obscured by passion at the time he fired the gun. The record contains no testimony or statement by defendant regarding his state of mind, inasmuch as he offered an alibi offense. And none of the eyewitnesses’ testimony described defendant’s conduct or demeanor in a fashion that suggested he was acting in the heat of passion. Only conjecture supports an inference that defendant acted in the heat of passion.
In addition, heat of passion is inapplicable where the evidence shows that the defendant’s passion cooled after the provocation. (People v. Golsh (1923) 63 Cal.App. 609, 617.) This may be shown by his “‘transaction of other business in the meantime, rational conversations upon other subjects, evidence of preparation for the killing, etc.’” (Ibid.) Enriquez and Gonzalez testified there was a 15 to 20 minute interval between the taunt and the shooting. During this interval, the taunted man or men left the area, obtained an accomplice (according to Enriquez’s testimony), and returned with loaded guns to the area where the taunting incident took place. This preparation for killing strongly suggests a subjective cooling of passions. Defendant argues that, under the version of facts presented by Enriquez’s testimony, a shorter period actually elapsed for defendant because the taunted man would have repeated the taunt to defendant when they met. This argument reveals the speculative nature of the claimed provocative conduct. If, as Enriquez testified, there was just one African-American man present when the racial taunting occurred, he may or may not have told defendant about the racial taunt. Or he may have given defendant another motivation for participating in the shooting, such as the presence of rival gang members. If defendant was not present at the time of the racial taunt, his heat of passion theory is premised solely on conjecture.
For all of these reasons, substantial evidence did not support a lesser included offense of voluntary manslaughter on a heat of passion theory, and the trial court was not required, either as a matter of state law or federal constitutional law, to instruct upon the theory sua sponte. (People v. Ayala (2000) 23 Cal.4th 225, 283; Hopper v. Evans (1982) 456 U.S. 605, 611 [102 S.Ct. 2049].)
2. Admission of gang evidence and denial of new trial motion
Defendant contends that the trial court “erred by permitting the People to present inflammatory gang evidence to support speculation that a gang-related motive prompted the shooting despite the absence of evidence that [defendant] belonged to a gang.” He further contends that the admission of the gang-related evidence violated due process, and that the trial court erred by denying his motion for a new trial based upon the purportedly erroneous admission of the gang evidence.
Defendant’s briefs fail to identify the particular evidence he contends was erroneously admitted. This is significant because several categories of gang-related evidence were introduced at his trial, most without objection. First, eyewitnesses Enriquez and Gonzalez testified that members of Oliva’s group and the African-American man or men exchanged gang hand signs during the initial confrontation. Similarly, Sedano told the police that the African-American man gestured with a gang hand sign. Defense counsel told the trial court he did not contest the admissibility of the gang hand sign evidence, and he did not object when any of the witnesses testified about gang hand signs.
The parties stipulated that defendant’s tattoos, some of which were gang-related, were accurately depicted in photographs contained in People’s exhibit 10, and defendant did not oppose admission of the exhibit.
Another category of gang evidence was Gonzalez’s testimony regarding graffiti on the wall outside her home. Defendant did not object to her testimony.
The final category of gang-related evidence was Martinez’s expert testimony. Just before Martinez testified, defense counsel asked to approach the bench. The trial court stated that it had “discussed the admissibility of the gang activity” with counsel. After summarizing the state of the evidence indicating that the crime was gang-related and the prosecutor’s offer of proof regarding Martinez’s proposed testimony, the trial court overruled defendant’s objection to the expert testimony; while the objection is not on the record, it must have been made in light of the court’s ruling. The objection may have been relevance and lack of foundation based on the theory that defendant was not affiliated with a gang inasmuch as defendant successfully asserted these objections to preclude the prosecutor from discussing gang evidence in his opening statement.
Defendant forfeited his evidentiary and constitutional claims with respect to all of the categories of the gang-related evidence except Martinez’s testimony by failing to specify the particular evidence he sought to exclude and object on the grounds asserted on appeal. (People v. Williams (1997) 16 Cal.4th 153, 208, 250 (Williams); Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1260.) With respect to Martinez’s testimony, defendant forfeited his claims by failing to provide a record demonstrating the basis of his objection. (Platzer, at p. 1261.)
Had defendant not forfeited his claims, the trial court did not err by admitting the gang-related evidence. On appeal, defendant argues that the gang evidence was irrelevant because there was no proof he belonged to a gang. He also seemingly argues that the trial court should have excluded the evidence under Evidence Code section 352.
In a gang-related case, evidence of gang affiliation and activity is admissible where it is relevant to an issue in the case such as identity, motive, or intent. (Williams, supra, 16 Cal.4th at p. 193.) This includes testimony by a police officer who qualifies as an expert regarding criminal street gangs. (Id. at p. 196.)
The exchange of gang hand signs in the initial confrontation had a strong tendency to show that the motive for the shooting was gang-related. Under Gonzalez’s version of the facts, defendant participated in making gang hand signs. Defendant’s “$$HC” tattoo tended to show that he was a member of, or otherwise affiliated with the Southside Hustler Crips gang. His “166% East” and multiple “6” tattoos tended to show that he was a member of, or otherwise affiliated with the 66th Street clique of the East Coast Crips gang. Defendant’s tattoos representing two gangs were unusual but did not negate the clear implication of the tattoos that defendant was affiliated with one or both of the Crips gangs. Defendant’s absence from police gang records and databases merely established that the police had no information about his gang affiliation, not that such affiliation did not exist. Defendant’s gang affiliation may have been of recent origin or he may have simply avoided police contact.
Other evidence supported a strong inference that the shooting was gang-related. It occurred at a site claimed by both the 66th Street East Coast Crips gang and the Florencia 13 gang. Enriquez described Oliva’s group as members of the Florencia 13 gang and testified, without objection, that this was a matter of common knowledge in the neighborhood. Sedano admitted that he was an associate of the Florencia 13 gang. Martinez testified that at the time of the charged shooting these two gangs were feuding over control of the area, and the graffiti on Gonzalez’s wall, along with Gonzalez’s testimony about its progression and significance, showed that the Florencia 13 gang was contending with both the Southside Hustler Crips and 66th Street gangs for neighborhood supremacy.
The probative value of the gang evidence was strong. It was relevant to show both the motivation for the shooting and defendant’s identity as a participant, which was a hotly contested issue. In contrast, the evidence did not create a substantial danger of undue prejudice, that is, a tendency to prejudge a person or cause on the basis of extraneous factors. (People v .Zapien (1993) 4 Cal.4th 929, 958.) Martinez’s testimony was short and limited in scope to the territories claimed by the 66th Street East Coast Crips and Florencia 13 gangs, their rivalry for control of the area where the charged shooting occurred, and the meaning of the graffiti and defendant’s tattoos. The gang-related characteristics of the crime itself were introduced by the eyewitness testimony, which also touched upon the gang aspects only briefly. There was no evidence of the types of activities conducted by any of the gangs, apart from writing graffiti. In short, the gang evidence was part of the case because the crime and the participants appeared to be gang-related. It had considerable probative value that was not substantially outweighed by the risk of undue prejudice. If the trial court overruled an Evidence Code section 352 objection by defendant, it did not abuse its discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
For all of these reasons, the trial court properly admitted all of the gang evidence and properly denied defendant’s new trial motion to the extent it was based upon the admission of the gang evidence.
3. Failure to instruct sua sponte on limited purpose of gang evidence
Defendant contends that “[b]ecause this was an extraordinary case” the trial court was required to instruct sua sponte on the limited purposes for which the gang evidence could be considered.
Defendant acknowledges the general rule that the trial court has no duty to give a limiting instruction sua sponte. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051 (Hernandez).) But he relies upon a hypothetical exception suggested in People v. Collie (1981) 30 Cal.3d 43 (Collie). There, the defendant was charged with attempting to murder his wife, and evidence of his prior acts of violence against her was admitted. The Supreme Court rejected the defendant’s claim that the trial court erred by failing to give a limiting instruction sua sponte. The court stated, “There may be an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. In such a setting, the evidence might be so obviously important to the case that sua sponte instruction would be needed to protect the defendant from his counsel’s inadvertence. But we hold that in this case, and in general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct.” (Id. at p. 64.)
This is not one of the occasional extraordinary cases hypothesized in Collie. The gang evidence was highly significant to the prosecution’s case and it was arguably highly prejudicial to defendant but only in the sense of being damaging to his case. (People v. Woods (1991) 226 Cal.App.3d1037, 1054 [even though gang evidence was the focal point of the case, trial court had no sua sponte duty to give limiting instruction because the evidence was also critical to prove motive and intent to kill].) But the gang evidence was not “minimally relevant to any legitimate purpose.” (Collie, supra, 30 Cal.3d at p. 64.) It was extremely probative of both the motive for the charged shooting and defendant’s identity as one of the two perpetrators. It was a significant aspect of the prosecution’s case. The hypothetical Collie exception does not apply, and the trial court had no sua sponte duty to give a limiting instruction.
4. Defense counsel’s failure to request limiting instruction
Defendant contends that his trial attorney rendered ineffective assistance by failing to request a limiting instruction regarding the gang evidence.
A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsel’s errors, the defendant would have obtained a more favorable result. (In re Jones (1996) 13 Cal.4th 552, 561.) The defendant must overcome presumptions that counsel was effective and that the challenged action might be considered sound trial strategy. (Ibid.)
In order to prevail on an ineffective assistance of counsel claim on appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Majors (1998) 18 Cal.4th 385, 403.) The record in this case does not affirmatively show that defense counsel could not have entertained a rational tactical reason for forgoing a limiting instruction. Counsel may have believed that a limiting instruction would emphasize the gang evidence or focus the jury’s attention on it, thereby enhancing the persuasiveness of the prosecution’s theory that the gang evidence proved both the motive for the charged shooting and defendant’s identity as a participant. Because the defense was entirely premised on mistaken identity and alibi, it was especially important for the defense to avoid drawing attention to or enhancing the prosecution’s implicit theory that defendant’s apparent gang affiliation supported Enriquez’s testimony identifying him as one of the gunmen. “The gang evidence was not admissible, and the jury could not consider it, solely to show that defendants were persons of bad character or had a disposition to commit crimes, but an instruction on use of this testimony properly might explain how it could be used as well as how it could not be used.” (Hernandez, supra, 33 Cal.4th at p. 1053 [gang evidence introduced to prove gang enhancement allegation, no limiting instruction requested].) Under the circumstances, defense counsel might reasonably have concluded it was better for the defense if the trial court did not explain how the evidence could be used. (Ibid.) Because counsel could have made a reasonable tactical choice to refrain from requesting a limiting instruction, defendant’s ineffective assistance claim has no merit.
5. Modification of CALJIC No. 2.92
The trial court instructed the jury with CALJIC No. 2.92, setting forth nonexclusive factors to be considered by the jury in determining the accuracy of a witness’s identification testimony. The trial court deleted from the instruction the following factor: “Evidence relating to the witness’ ability to identify other alleged perpetrators of the criminal act.” Defendant contends that the omitted factor was pertinent to, and necessary for, a proper evaluation of Enriquez’s identification testimony. He argues its omission constituted instructional error and violated due process.
A “proper instruction on eyewitness identification factors should focus the jury’s attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence.” (People v. Wright (1988) 45 Cal.3d 1126, 1141 (Wright).) Here, the omitted factor was irrelevant and unsupported by the evidence. Nothing in the record indicates that anyone conducted an identification procedure in which Enriquez failed to identify someone suspected of being the other gunman. The only evidence “relating” to her “ability to identify other alleged perpetrators” was her uncontradicted testimony that she did not recognize the other gunman and had never seen him before. Omission of the factor constituted neither instructional nor constitutional error.
For essentially the same reasons, omission of the factor in controversy was harmless. Its inclusion would have added nothing to the jury’s evaluation of Enriquez’s testimony that was not encompassed by jurors’ common sense. Enriquez was familiar with defendant, told the police where he lived, and subsequently identified him when the police showed her photographs. She did not know who the other gunman was. As far as the record reveals, the other gunman’s identity remained unknown to the police and Enriquez did not fail to select him in any identification procedure. The parties’ arguments informed the jury that the accuracy of Enriquez’s identification testimony was a contested issue, and the trial court instructed the jury both that the prosecution had the burden of proving beyond a reasonable doubt that defendant was the person who committed the crime (CALJIC No. 2.91) and that the list of factors in CALJIC No. 2.92 was not exhaustive. It is not reasonably probable that a result more favorable to defendant would have been reached if the trial court had included the factor in issue. (Wright, supra, 45 Cal.3d at p. 1144.)
DISPOSITION
The judgment is affirmed.
We concur: CHANEY, J., JOHNSON, J.