Opinion
D040244.
10-15-2003
THE PEOPLE, Plaintiff and Respondent, v. LONNIE D. PERKINS, Defendant and Appellant.
A jury convicted Lonnie D. Perkins of first degree murder. Perkins thereafter admitted allegations in the information that he had suffered two prior strike convictions for robbery and three other prior convictions (escape from jail, prisoner in possession of a weapon, and possession of marijuana for sale). The trial court sentenced him to prison to an indeterminate prison term of 25 years to life, tripled under the three strikes law to 75 years to life, plus three consecutive one-year terms for each of his three nonstrike prior convictions, for a total sentence of 78 years to life.
The jury could not reach a verdict as to codefendant Danny Lewis, and the court declared a mistrial as to him. Lewis is not a party to this appeal.
Perkins appeals, contending (1) the court violated his state and federal constitutional rights by denying his motion under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), and his defense counsel provided ineffective assistance related to that motion; (2) there is insufficient evidence that he was the one who stabbed the victim because speculation is not substantial evidence; (3) the court prejudicially erred by admitting evidence of his gang membership; and (4) reversal is required by the cumulative effect of the errors. We affirm.
FACTUAL BACKGROUND
The Peoples Case
In July 2000, Perkins was an inmate at the California Correctional Institute in Calipatria (the prison). The prison houses its inmates in three sections designated "A section," "B section" and "C section." Perkins was housed with Danny Lewis in A section, cell 107.
The murder victim in this case, Steven Kato Brown, was also an inmate at the prison. He had a blood clot and a long history of migraine headaches. He could not stand the noise of people walking by his cell and would shout and scream out the cell door when people walked by. Browns cellmate was Anthony Hereford. They had been cellmates for nine months. Hereford looked after Brown and tried to make sure he took his medications so he could sleep at night. Brown and Hereford were housed in B Section, cell 200, upper.
Perkins was convicted of robbery in 1984, possession of marijuana for sale in a county jail in 1991, attempted escape from a county jail in 1991, and inmate possession of a weapon in San Quentin in 1987. In 1993 he was also convicted of a second robbery, as well as possession of an assault weapon, being an ex-felon in possession of a firearm, and unlawfully taking a vehicle.
Perkins is a member of the Hoover Criminals gang. Orange is the signature color of that gang. In his cell in the prison, Perkins had pictures with orange borders and a piece of orange cloth on which there was the letter "H" for "Hoover."
On the evening of July 10, 2000, Perkins walked by Brown and Herefords cell and "hollered" at Hereford. In apparent reaction, Brown "went off" and Brown and Perkins started arguing. When the argument ended, Perkins walked away, and Hereford told Brown he was stupid for arguing with people at the prison. Hereford had trouble sleeping that night because he was concerned about the incident.
The next morning, July 11, Hereford went to Perkinss cell and apologized for Browns actions the night before. He explained to Perkins that Brown had a blood clot and "goes off on a lot of people." Hereford told Perkins that Brown acted that way with everyone on their tier and he meant no harm.
That same morning, Officer Enrique Valencia was on duty in the control booth for the building. As the control booth officer, Officer Valencia opened and closed the cell doors. Officers Aguirre and Romero were the floor officers. Blind spots in the building made it difficult for the officers to see toward the back, behind and underneath the stairwells, the areas near the counselors and "COs" offices, and the wall where the televisions and telephones were located.
Officer Valencia received a telephone call from Hereford before 8:00 a.m. that morning. He knew Hereford and recognized his voice. Hereford told Officer Valencia that he could no longer deal with Browns problems, and he was concerned about Browns welfare. He informed Officer Valencia "there had been an arguing match" the night before between Brown and Perkins, Lewis and another inmate named Hyder. Hereford spoke to Officer Valencia in a very low tone, and his voice was quiet, secretive and concerned. During this conversation, Hereford said nothing about wanting a new cellmate.
At around 8:00 a.m., Officer Valencia observed Perkins walking toward his cell. Perkins picked up a tumbler or water bottle and showed it to Officer Valencia, who acknowledged the gesture.
Officer Aguirre was on duty in the Alpha yard, housing unit No. 1, providing additional coverage for the prisoners moving through the yard to and from breakfast in the dining hall. He was standing near the podium of housing unit A-1. The podium is a desk that is directly in front of the sally port.
At about 8:06 a.m., Officer Aguirre heard Brown shout, "Officer, officer!" Officer Aguirre turned and saw Brown "draped in blood on his right side," about eight to 10 feet away. Brown had been stabbed near the water fountain, and a trail of blood went from the water fountain to the front of the counselors desk where Brown had collapsed.
Officer Aguirre took a shirt from a nearby laundry bin and applied pressure to Browns wound. Brown was bleeding profusely and did not talk to the officer.
Officer Aguirre "put the building down" by yelling to all the inmates in a loud voice to get down. When such an order is given, the inmates are supposed to get down immediately. Officer Aguirre also yelled to Officer Valencia to set off his personal alarm, which would notify staff outside the building.
Officer Valencia in the control booth moved to a corner window of A section. He saw that Brown had a wound to the neck. He also saw Perkins, Lewis and Hyder in the area (A section). Officer Valencia saw no other inmates in the A section area.
Officer Aguirre observed Perkins and Lewis moving away from the area along with another person. They did not get down immediately as ordered. Officer Aguirre saw no other inmates in the area and saw no one going up the stairwell, nor did he see inmate Williams in the area. A quart water bottle with what appeared to be blood stains was found at the water fountain near Brown after the stabbing.
Officer Aguirre later found two inmate-manufactured weapons in the area near where Brown had called for help. One of the weapons (exhibit 47) was in a cart underneath the television. Brown was the inmate who was closest to the cart. This weapon had a bent plastic handle that was orange, black and white. The color of the handle was mostly orange. The weapon was sharpened on two edges that formed a point at the end. Most inmate-manufactured weapons have handles of electrical tape, pieces of cloth, or masking tape.
Another inmate-manufactured weapon (exhibit 48) was also recovered. This weapon, which was not bent, also had an orange plastic handle.
Officer Zachary Limas searched several cells for scrape marks, which are commonly associated with inmates sharpening weapons. He found scrape marks on the floor of Perkinss cell (cell 107).
Brown had suffered stab wounds to the right side of his neck and his upper left arm, and three stab wounds to his back. The stab wounds to his neck and back were fatal. The inmate-manufactured knives found at the crime scene could have been used to inflict Browns wounds.
After the incident, Lewis was handcuffed and patted down. He had blood on the front of his shirt and on his hands. All of the clothing worn by Perkins, Lewis and Hyder was collected and later examined by a criminalist. Blood was found on the outer left seam of Perkinss shorts. Blood was also found on Lewiss clothing and one of his shoes. The blood was Browns with the exception of the blood found on Lewiss shorts, which was a combination of Perkinss blood and Browns blood. The criminalist found no blood on Hyders clothes. The straight-bladed knife recovered at the crime scene tested positive for blood.
Metal particles and powdery substances were found in Perkinss cell. The composition of the metal particles was the same as the two inmate-manufactured knives found at the crime scene.
In August 2000, Imperial County deputy sheriffs found a five-inch-long inmate-manufactured shank concealed in the front seam of Perkinss boxer shorts. The weapon had a double-edged sharpened triangular blade, and an orange and black colored plastic handle. The knife was similar to the ones found near Perkins at the crime scene.
The Defense
Perkins testified that on the date of the murder, he had five months left to serve on his prison sentence. On the evening before Browns murder, Perkins heard yelling coming from cell 220 where Hereford was housed. Perkins knew Hereford and went to Herefords cell to see what was going on. He asked Hereford if everything was all right. Before Hereford could answer, Brown jumped off the top bunk and started cursing Perkins and told him to get away from his door. Perkins became angry and yelled back. Hereford was between Brown and the cell door. Perkins testified he realized Brown was not mentally right, told Hereford he would see him the next day, and left.
Perkins stated that early the next morning, Hereford stopped by his (Perkinss) cell and told him he wanted to apologize for Browns behavior. Hereford said he did not want anything to happen as a result of the argument. Perkins testified he told Hereford he was not going to pay any attention to it and was not going to do anything. Hereford asked Perkins to promise he would not do anything, but Perkins felt Hereford was questioning his integrity and refused to do so.
Perkins denied stabbing Brown and stated he did not see who stabbed him. He also denied making the scrape marks on the floor of his cell. Perkins testified he did not make any weapons in that cell because he was due to be released soon from prison.
Codefendant Lewis testified and denied stabbing Brown. He stated he had never manufactured a weapon in prison. He also testified the scrape marks in his cell were already there when he moved in with Perkins.
Inmate Jeffrey Moore testified (through a transcript read into evidence) that on the morning of the murder, he ate breakfast with Perkins and Lewis. He stated there was no discussion concerning any dispute Perkins or Lewis had with another inmate.
Michael Rush, also an inmate at the prison, testified that Hereford was always complaining about Brown. The arguments between Hereford and Brown worsened as time went on. Hereford had a major argument with Brown the night before Brown was murdered.
Hyder, another inmate at the prison, testified he heard arguments between Brown and several inmates the day before Brown was killed. Brown was suffering from migraines the night before the murder. When Brown had these headaches, he would become loud and belligerent to people near his cell. Perkins argued with Brown for several minutes that evening. Hyder stated he saw inmate Williams sweeping the floor inside the building the morning Brown was murdered.
Correctional Officer Ida Din testified that after Browns stabbing he found an inmate-manufactured weapon on an inmate other than Perkins that had a black-and beige-colored plastic handle.
Correctional Officer Tommy Romero testified he was involved in searching Perkinss clothing. Had any bloodstains been found, Perkinss clothes would not have been returned to him. His clothing was returned to him.
Robert Weekes, a defense investigator, testified that he interviewed Officer Valencia, who told Weekes that when he was in the control booth on the morning of Browns murder, he saw Perkins enter through the sally port, turn left, and walk in the direction of his cell.
Richard Whalley, a forensic scientist, testified that a bloody shoe print found at the scene of Browns murder could not have been made either by Perkinss, Hyders or Browns shoes, but could have been made by Williamss shoe. Whalley also opined that the blood stains on Perkinss shorts should have been observed by officials at the prison. Whalley stated that anyone within 25 feet of Browns stabbing could have had blood fall on them, either through close contact with the victim, the spurting of blood, or the flinging of the victims arms.
DISCUSSION
I.
WHEELER MOTION AND INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Perkins first contends the court violated his state and federal constitutional rights by denying his motion under Wheeler, supra, 22 Cal.3d 258, in which he claimed the prosecutor improperly exercised peremptory challenges to exclude women from the jury panel based on their gender. He also contends his defense counsel provided ineffective assistance by failing to make an adequate record for the Wheeler challenge. We reject these contentions.
A. Denial of Perkinss Wheeler Motion
1. Background
During voir dire, defense counsel made a Wheeler motion based on the prosecutors peremptory challenges because "the last five, maybe even six people he excluded were females, and [he cannot] articulate any reason to exclude them other than the fact that they are females." The prosecutor responded with his own Wheeler motion, claiming the defense had exercised peremptory challenges exclusively against males.
When neither the defense nor the prosecution were able to specify the names of the jurors in question, the court stated, "I have not perceived a pattern of excusal based on gender, and I have not received from either counsel sufficient information to make any type of prima facie case with regard to a Wheeler motion justifying a rationale on the part of either party." The court then denied both motions "at this point," stating, "[A]s a threshold issue, Im finding that there is not a prima facie showing, given the evidence, the content of the motions by both parties."
Later during voir dire, defense counsel renewed Perkinss Wheeler motion and informed the court he had obtained the names of five female jurors he believed the prosecution had challenged solely because of their gender. The court noted that the prosecution had exercised 12 peremptory challenges and, at that time, the jury panel had five females (jurors Nos. 12, 7, 6, 4 and 3). The court observed that the panel was "pretty balanced" and noted that defense counsel had "recited only half of the peremptory challenges exercised by the People." The court then denied Perkinss Wheeler motion, finding that the prosecutors exercise of peremptory challenges did "not appear to constitute any type of pattern of exclusion of any cognizable group based on the showing that has been presented by counsel at this point."
2. Applicable legal principles
Our Supreme Court "`[i]n Wheeler[, supra, 22 Cal.3d 258] . . . held that the use of peremptory challenges by a prosecutor to strike prospective jurors on the basis of group membership violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution. Subsequently, in Batson v. Kentucky (1986) 476 U.S. 79, 84-89 [(Batson)] . . . the United States Supreme Court held that such a practice violates, inter alia, the defendants right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution. . . . [Citation.] Whether a Wheeler or Batson claim . . . is raised, `the defendant need not be a member of the group in question to complain. [Citation.]" (People v. Catlin (2001) 26 Cal.4th 81, 116-117, fn. omitted.)
Essentially, the issue raised by a motion brought under Wheeler, supra, 22 Cal.3d 258 and Batson, supra, 476 U.S. 79, which protect a defendants constitutional right to be tried by a representative jury, is whether a pattern of systematic exclusion exists in the selection of the jury. (People v. Gore (1993) 18 Cal.App.4th 692, 705.) Once a party suspects the improper use of a peremptory challenge, he must timely object and "make a prima facie showing that one or more jurors has been excluded on the basis of group or racial identity." (People v. Jenkins (2000) 22 Cal.4th 900, 993.)
We presume that "a prosecutor uses his peremptory challenges in a constitutional manner. [Citation.] The defendant bears the burden to show prima facie, the presence of purposeful discrimination. [Citation.]" (People v. Alvarez (1996) 14 Cal.4th 155, 193.) To establish a prima facie case of group or racial bias, a defendant must show a "`strong likelihood" of group rather than individual bias. (People v. Howard (1992) 1 Cal.4th 1132, 1153-1154, italics omitted.)
"Once a prima facie showing has been made, the prosecutor then must carry the burden of showing that he or she had genuine nondiscriminatory reasons for the challenges at issue." (People v. Jenkins, supra, 22 Cal.4th at p. 993.) "While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection. [Citations.]" (People v. Turner (1994) 8 Cal.4th 137, 168.)
"An appellate court reviews a trial courts ruling on a motion under Wheeler and/or Batson for substantial evidence. [Citations.]" (People v. Alvarez, supra, 14 Cal.4th at p. 196.) In conducting such a review, we examine the record of the voir dire and defer to the trial courts factual findings because of its observation of the parties and circumstances at that time. (People v. Howard, supra, 1 Cal.4th at p. 1155.) If the record "`suggests grounds upon which the prosecutor might reasonably have challenged the juror[] in question, we affirm. [Citation .]" (Ibid.)
3. Analysis
Perkins asserts the court erroneously found he had failed to meet his burden of establishing a prima facie case of group bias regarding women. This assertion is unavailing.
The record of the voir dire shows that the prosecution exercised nine of its peremptory challenges to excuse females. However, the record also shows that at the time defense counsel criticized the prosecutors use of peremptory challenges and orally made the Wheeler motion on behalf of Perkins, five female jurors had already been seated on the jury panel. The court so found, and Perkins does not challenge this finding on appeal.
On appeal the People acknowledge that the prosecution exercised eight of its peremptory challenges to excuse females and assert that six of the challenges were consecutive.
The court stated, "I will note at this point that our panel of [12 jurors] contains Female Number 12, Female Juror Number 7, Female Juror Number 6, and Female Juror Number 4, Female Juror Number 3."
As already discussed, there is a presumption under Wheeler, supra, 22 Cal.3d at page 278, that the prosecutor used his peremptory challenges in a constitutional manner. (People v. Alvarez, supra, 14 Cal.4th at p. 193.) To overcome that presumption, Perkins bore the burden of showing, prima facie, the presence of purposeful discrimination. (Ibid.) To establish such a prima facie case of purposeful discrimination based on gender, he was required to show a "strong likelihood" of group rather than individual bias. (People v. Howard, supra, 1 Cal.4th at pp. 1153-1154.) Absent such a showing, the prosecutor was not required to show that he had genuine nondiscriminatory reasons for the peremptory challenges at issue here. (See People v. Jenkins, supra, 22 Cal.4th at p. 993.)
Here, substantial evidence supports the courts finding that Perkins failed to meet his burden of showing a strong likelihood that the prosecutors use of his peremptory challenges constituted purposeful discrimination against women. As already noted, the record shows the jury included five women at the time defense counsel made the Wheeler motion. This was an indication of the prosecutors good faith in exercising the peremptory challenges, and the court appropriately considered this fact when it denied the motion. (See People v. Turner, supra, 8 Cal.4th at p. 168.) The court stated that the jury panel at that point in time was "pretty balanced" and found there was no "pattern of exclusion of any cognizable group based on the showing that has been presented by [defense] counsel at this point."
On this record, we conclude Perkins failed to meet his burden of showing a strong likelihood the prosecutor engaged in purposeful discrimination against women during voir dire, and thus the court did not err by finding that he had failed to make the requisite prima facie showing of group bias.
B. Ineffective Assistance of Counsel Claim
Perkins also contends his trial counsel provided ineffective assistance by failing to make a proper record in support of the Wheeler motion. Specifically, he maintains his counsels representation was defective because he brought to the courts attention the names of only five challenged female prospective jurors, rather than the names of all nine such jurors who had been excused based on the prosecutors exercise of his peremptory challenges. We reject this claim.
1. Applicable legal principles
"The Sixth Amendment guarantees competent representation by counsel for criminal defendants[, and reviewing courts] presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions." (People v. Holt (1997) 15 Cal.4th 619, 703, citing Strickland v. Washington (1984) 466 U.S. 668, 690 & People v. Freeman (1994) 8 Cal.4th 450, 513.) "[I]n appropriate instances, trial judges . . . have the power to grant a new trial based on ineffective assistance of counsel." (People v. Lagunas (1994) 8 Cal.4th 1030, 1036.)
To prevail on a claim of ineffective assistance of counsel, the defendant must establish both "(1) that counsels representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsels unprofessional errors, a determination more favorable to defendant would have resulted." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) As to the prejudice component, the California Supreme Court has held that "[a] `reasonable probability is a probability sufficient to undermine confidence in the outcome" of the prosecution. (People v. Cox (1991) 53 Cal.3d 618, 656.)
"If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails." (People v. Rodrigues, supra, 8 Cal.4th at p. 1126.) "`[A] court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." (People v. Cox, supra, 53 Cal.3d at p. 656, quoting Strickland v. Washington, supra, 466 U.S. at p. 697.) "A court reviewing the conduct of counsel must in hindsight give great deference to counsels tactical decisions. [Citation.]" (People v. Holt, supra, 15 Cal.4th at p. 703.)
2. Analysis
Perkins maintains that if his trial counsel had made a complete record regarding the Wheeler motion by informing the court that the prosecutor had used nine, rather than five, of his 12 peremptory challenges against prospective female jurors, the court would have found a prima facie case sufficient to require an explanation by the prosecution and also would have found that the prosecution had unconstitutionally exercised its peremptory challenges. He also asserts that no trial strategy would account for counsels failure to bring this information to the courts attention. These assertions are unavailing.
Perkins acknowledges on appeal that "[a] review of the record indicates that there may have been reasons why [his] attorney did not question some of these challenges." Perkins concedes that prospective juror A2 "had many issues which may have concerned the prosecution." The record shows that juror A2 testified that two members of her family had been incarcerated, she was not sure she could sit in judgment of others because of her religious beliefs, and it would be "difficult" for her to view the bloody photographs of the murder victim that would be shown at trial.
Perkins acknowledges that prospective juror M "also had issues which may have concerned the prosecutor." He notes that juror M stated she had relatives who were the victims of crimes, she also had religious beliefs that brought into question her ability to judge others, and she questioned her ability to handle bloody photographs.
With respect to prospective juror D1, Perkins asserts she "was not as clearly objectionable, but had some issues." He notes that juror D1 knew both defense attorneys and either she or a friend had been the victim of a crime.
Prospective juror R2, Perkins states, was concerned about being away from her teaching position.
Based on this record, we conclude the failure of Perkinss counsel to mention these prospective female jurors in his objection to the prosecutions exercise of peremptory challenges does not indicate ineffective assistance of counsel. On the contrary, it shows that Perkinss trial counsel provided competent representation in that matter. Counsels objection to the prosecutors peremptory challenges would not have been strengthened by reference to these prospective jurors because their answers during voir dire questioning indicated (in Perkinss words) that they had "issues which may have concerned the prosecution." Perkins has failed to meet his burden of showing his trial counsel was incompetent in the presentation of the Wheeler motion. Even were we to assume his counsel provided ineffective assistance in this matter, Perkins has failed to demonstrate prejudice resulted therefrom given the strength of the Peoples case.
II.
SUFFICIENCY OF THE EVIDENCE
Perkins also contends there was no substantial evidence that he was the one who stabbed the victim because "speculation does not amount to substantial evidence." We reject this contention.
A. Standard of Review
"`"When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." [Citations.] When undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment. [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 848-849.)
The same standard of review applies in cases in which the People rely on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) "`Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. "`If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." [Citations.] [Citation.] `"Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt." [Citation.]" (Id. at pp. 792-793.)
B. Analysis
Having reviewed the whole record in the light most favorable to the judgment, we conclude it contains substantial evidence showing that Perkins had the motive, opportunity and means to fatally stab Brown, and that any rational trier of fact could have found beyond a reasonable doubt that Perkins either committed the crime himself or aided and abetted others in its commission, and thus was guilty of murder.
As a preliminary matter, we note the court instructed the jury on both the essential elements of first and second degree murder, and aiding and abetting liability. The court instructed the jury that murder is the unlawful killing of a human being with malice aforethought. It also instructed that deliberate and premeditated murder is murder in the first degree, and unpremeditated murder is murder in the second degree, a lesser included offense.
The court also instructed the jury that a person aids and abets the commission of a crime, and is equally guilty as a principal, when he, with knowledge of the unlawful purpose of the perpetrator, and with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and by act or advice aids, promotes, encourages or instigates the commission of the crime. The court further instructed that mere presence at the scene of the crime which does not itself assist in the commission of the crime does not amount to aiding and abetting, nor does mere knowledge that a crime is being committed and the failure to prevent it amount to aiding and abetting. The aider and abettors liability extends to any offense that is a "natural and probable consequence" of the crime aided and abetted. "[A] defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the `natural and probable consequence of the target crime." (People v. Prettyman (1996) 14 Cal.4th 248, 261, citing People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.)
Here, substantial evidence supports the jurys finding that Perkins was criminally liable for Browns murder. That Perkins had a motive is shown by evidence that he had argued with Brown the night before Browns murder. Perkins testified that Brown had screamed obscenities at him, and he (Perkins) "returned it just the way he served it to me." Perkins was a member of the Hoover Criminals gang. During closing statements, the prosecutor cited evidence showing that Browns cellmate, Hereford, believed that "disrespect" was the cause of Browns murder. The prosecutor also cited tape recording evidence showing that when the argument between Brown and Perkins ended and Perkins walked away, he told Brown, "Im leaving this alone. Ill see you in the morning." Hereford heard Browns response: "Ill be out in the morning. Ill be waiting for you." A jury could reasonably interpret Perkinss remarks as a threat.
The magnitude of the shouting and cursing incident between Brown and Perkins was shown by Herefords testimony that he had trouble sleeping that night because he was concerned about it. Officer Valencia testified he received a telephone call from Hereford before 8:00 a.m. the following morning. Hereford informed him that "there had been an arguing match" the night before between Brown and Perkins (and two other inmates, Lewis and Hyder), and said he was concerned about Browns welfare. Hereford spoke to Officer Valencia in a very low tone, and his voice was quiet, secretive and concerned.
Perkins testified that early that same morning, Hereford stopped by his cell and told him he wanted to apologize for Browns behavior. Hereford said he did not want anything to happen as a result of the argument between Brown and Perkins the night before. Hereford asked him to promise he would not do anything, but Perkins felt Hereford was questioning his integrity and refused to do so.
After Brown was stabbed and he called for the assistance of one of the correctional officers, Perkins, Lewis and Hyder were observed together about 10 to 15 feet from Brown. No other inmates were in the area. Officer Aguirre "put the building down" by yelling to all the inmates in a loud voice to get down. When such an order is given, the inmates are supposed to get down immediately. Perkins did not get down immediately as ordered.
Two unique inmate-manufactured weapons capable of inflicting the multiple stab wounds Brown suffered were found in the area. They had predominantly orange plastic handles that were distinctive in appearance. Orange is the signature color of the Hoover Criminals gang to which Perkins claimed membership. In his cell in the prison, Perkins had pictures with orange borders and a piece of orange cloth on which there was the letter "H" for "Hoover."
In August 2001, while Perkins was awaiting trial, Imperial County deputy sheriffs found a five-inch-long inmate-manufactured shank concealed in Perkinss boxer shorts. The weapon had an orange- and black-colored plastic handle. It was similar to the weapons found near Perkins at the crime scene.
Browns blood was found on the outer left seam of Perkinss shorts and on Lewiss clothing and one of his shoes. One of the inmate-manufactured knives recovered at the crime scene tested positive for blood.
Metal particles and powdery substances were found in the cell shared by Perkins and Lewis. The composition of the metal particles was the same as the two inmate-manufactured knives found at the crime scene. Scrape marks indicating the manufacture of a weapon were found on the floor of Perkins and Lewiss cell.
The foregoing circumstantial evidence is substantial and supports Perkinss conviction. We reject Perkinss assertion that the jurys submission to the court of 18 requests for answers to questions, readbacks of testimony, or playbacks of videotape indicates the case against him was weak. We conclude the jurys deliberative process was meticulous and lengthy, and their requests do not render insubstantial the incriminating evidence discussed, ante.
III.
EVIDENCE OF PERKINSS GANG MEMBERSHIP
Perkins also asserts the court prejudicially erred by admitting evidence of his gang membership. We reject this claim of error.
A. Applicable Legal Principles
"[A]dmission of evidence of a criminal defendants gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged. [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 193.) "[E]ven where gang membership is relevant, because it may have a highly inflammatory impact on the jury[,] trial courts should carefully scrutinize such evidence before admitting it. [Citation.]" (Ibid.) However, "gang evidence is admissible if relevant to motive or identity, so long as its probative value is not outweighed by its prejudicial effect. [Citation.]" (Ibid.)
A trial court has broad discretion in determining whether to admit or exclude evidence objected to on the basis of Evidence Code section 352, and rulings under this section will not be overturned absent an abuse of that discretion. (People v. Ramos (1997) 15 Cal.4th 1133, 1170.) "[T]he term judicial discretion `implies absence of arbitrary determination, capricious disposition or whimsical thinking. [Citation.]" (People v. Giminez (1975) 14 Cal.3d 68, 72.) "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered." (Ibid.)
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if 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."
"The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. `[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638, italics added.)
Error in the admission or exclusion of evidence following an exercise of discretion under Evidence Code section 352 is tested for prejudice under the Watson harmless error test. (See People v. Alcala (1992) 4 Cal.4th 742, 790-791.) Under the Watson test, the trial courts judgment may be overturned only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." (People v. Watson, supra, 46 Cal.2d at p. 836.)
People v. Watson (1956) 46 Cal.2d 818.
B. Analysis
Here, the record shows that throughout much of the trial, the court took the position that any reference to gang affiliation was inappropriate under Evidence Code section 352 because, as the court explained, "[there was] no evidence that gang activity in any way related to this offense[,] [a]nd were aware that gang activity . . . carries a strong prejudicial impact with the jury."
However, during Perkinss cross-examination, the court revisited the issue of the relevancy of gang evidence outside the presence of the jury. In response to the prosecutions offering of a photograph depicting a Hoover Criminals gang banner or insignia with orange and black colors in Perkinss cell, the court reversed its position and stated, "the relevance of that strongly outweighs the prejudicial impact in that the prosecution theory is that [the murder] weapon was created in these colors," and "the relevance increases to the point to where under [Evidence Code section] 352 its admissible."
We conclude the court did not abuse its legal discretion by admitting evidence of Perkinss gang membership. The evidence that Perkins was a member of the Hoover Criminals gang and orange was the signature color of the gang, that Perkins had pictures with orange borders and a piece of orange cloth on which there was the letter "H" for "Hoover," and that the two inmate-manufactured weapons found near Perkins and the victim had orange plastic handles was relevant with respect to the issue of identity, i.e., whether Perkins was either the perpetrator or an aider and abettor of the murder with which he was charged. We also conclude the court properly ruled that the probative value of that evidence was not substantially outweighed by a probability that its admission would create substantial danger of undue prejudice within the meaning of Evidence Code section 352. Because the gang membership evidence was relevant to the issue of identity, and its probative value was not substantially outweighed by a probability that its admission would create substantial danger of undue prejudice, the court properly admitted that evidence. (People v. Williams, supra, 16 Cal.4th at p. 193.)
Even were we to conclude the court did err, we would further conclude any such error was harmless. For reasons already discussed, the circumstantial evidence of Perkinss guilt was substantial and showed that he had the motive, means and opportunity to murder Brown. Perkins has failed to meet his burden under People v. Watson, supra, 46 Cal.2d at page 836, of showing it is reasonably likely the jury would have returned a more favorable verdict had the court excluded the gang membership evidence.
IV.
CUMULATIVE ERROR CLAIM
Last, Perkins contends reversal of his murder conviction is required by the cumulative effect of the courts errors. Because we have rejected Perkinss claims of error for reasons already discussed, we also reject this contention.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J. and AARON, J.