Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA095753, Robert J. Higa, Judge.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Mark Angelo Santa Anna (appellant) was charged with a number of crimes that took place during the period from April 2006 through July 2006 in the Pico Rivera area. After a jury trial, he was convicted of two counts of attempted premeditated murder (Pen. Code, §§ 664/187, subd. (a), counts 1 & 10), one count of attempted second degree robbery (§§ 664/211, count 2), two counts of assault with a firearm (§ 245, subd. (a)(2), counts 4 & 13), three counts of robbery (§ 211, counts 5, 6, & 7), one count of residential burglary (§ 459, count 8), one count of first degree murder (§ 187, subd. (a), count 9), and two counts of being a felon in possession of a firearm (§ 12021, subd. (a)(1), counts 11 & 12). The jury found true the allegations that he had committed each of the offenses for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of section 186.22, subdivision (b), and that he had committed the robbery alleged in count 7 with two other principals and had entered a structure within the meaning of section 213, subdivision (a)(1). The jury also found true the allegations that he personally used a firearm in the commission of counts 4, 8, and 13 (§ 12022.5, subd. (a)); inflicted great bodily injury in the commission of counts 7 and 8 (§ 12022.7, subd. (a)); personally used a firearm in the commission of counts 2, 5, 7, 9, and 10 (§ 12022.53, subd. (b)); personally and intentionally discharged a firearm in the commission of counts 9 and 10 (§ 12022.53, subd. (c)); and personally and intentionally discharged a firearm proximately causing great bodily injury in the commission of counts 9 and 10 (§ 12022.53, subd. (d)). It also found that a principal personally used a firearm in counts 1 and 2 (§ 12022.53, subd. (b) & (e)) and personally and intentionally discharged a firearm in counts 1 and 2 (§ 12022.53, subds. (c) & (e)). In a separate proceeding, appellant admitted that he had suffered one prior conviction within the meaning of sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), and one prior serious felony conviction within the meaning of section 667, subdivision (a)(1). He was sentenced to 243 years to life. He appeals, raising numerous contentions, all of which we find to be without merit. We affirm the judgment.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Prosecution Evidence
The Suazo Murder and Banuelos Assault (Counts 9 & 13)
On April 20, 2006, at approximately 8:45 p.m., Jorge Suazo and his girlfriend Veronica Banuelos were walking on Whittier Boulevard near Durfee Avenue, past a Tommy Burger restaurant. A car pulled up and a male jumped out and asked Suazo where he was from. Suazo said he did not “do that.” The male pulled out a gun. Banuelos began to run and the male fired his gun. Suazo later died from a gunshot wound and Banuelos sustained a gunshot wound to her back.
Police recovered a.38 caliber bullet from Suazo’s body and determined that it was fired from a revolver. No other casings or firearm evidence was found.
Banuelos was able to describe her assailant’s height but said she could not see his face clearly.
The Assault of Aguirre (Count 4)
On May 14, 2006, at approximately 8:30 p.m., Richard Aguirre was working as a security guard at the La Cocina restaurant on Durfee Avenue in Pico Rivera, close to the Tommy Burger restaurant. Aguirre was in front of the restaurant with Rene Osuna. Appellant rode up on a bike with another person. Aguirre, who had grown up in Pico Rivera, knew appellant. Appellant made eye contact with Aguirre and called him derogatory names. Aguirre responded by calling appellant a derogatory name. Appellant pulled out a gun, dismounted the bike, and pointed the gun at Aguirre and Osuna. Osuna saw that the gun was a chrome revolver. Appellant asked, “What did you call me, you motherfucker?” Osuna heard appellant say, “This is my varrio, Pico Nuevo.” Aguirre ran inside the restaurant and locked himself in the bathroom until police arrived. Appellant left the scene, but returned later and threw a gun on top of the roof of a neighboring building. Police officers later retrieved a revolver loaded with three live bullets and two casings.
The Attempted Murder of Marquez (Count 10)
On May 25, 2006, Louie Marquez was riding his bike on Passons Street in Pico Rivera, not far from the Tommy Burger and La Cocina restaurants. Marquez was a member of the La Puente gang and had tattoos signifying that gang on various parts of his body. A male asked him where he was from, then shot him in the face. Marquez survived but was in the hospital for two weeks. At trial, he testified that even if he could identify the shooter, he would not.
The Attempted Murder and Robbery of Insuasti (Counts 1 & 2)
On May 29, 2006, at approximately 2:00 a.m., William Insuasti was walking on Cord Street after having an argument with his wife. A van approached and appellant, the driver of the van, asked Insuasti where he was from. Insuasti replied that he did not “bang.” Appellant said “Varrio Pico Nuevo” and displayed a gun. Insuasti ran down the street and the van followed him with its lights extinguished. The van stopped and the door opened. A second male exited and demanded Insuasti’s phone. Insuasti refused, and the man swung an object at Insuasti, hitting him in the neck. Insuasti ran, and the man chased him on foot with the van following. When Insuasti stopped to cross the street, the van swerved and tried to hit him. Insuasti continued to run while the van stopped. Insuasti heard a gunshot. He sustained a bullet wound to his right shoulder. Insuasti identified appellant as the driver of the van at a lineup and at trial.
The Robberies of Garcia and Medina (Counts 5 & 6)
On July 8, 2006, at approximately 10:15 p.m., Diego Garcia and Albert Medina were standing on the sidewalk near Garcia’s car on Pico Vista Road in Pico Rivera. Three men approached. One of them, appellant, asked for a cigarette and reached for a pack of cigarettes in Garcia’s hand. Garcia refused to give the pack to appellant. Appellant pressed a gun against Garcia’s head and hit him on the nose with it. Appellant then pressed the gun against Medina’s chest and told him to empty his pockets. When Medina said he did not have pockets, appellant hit him in the face and the back of his head with the gun. Medina fell and appellant kicked him in the chest. When Garcia told appellant to stop, appellant’s companion kicked Garcia in the chest. Appellant hit Medina again on the back of his head with the gun. He took Garcia’s and Medina’s keys, Garcia’s wallet and cigarettes. As appellant walked away he said to Medina, “Tell your sister to watch out.” When appellant was about 25 feet away, he fired four shots at Garcia and Medina. The bullets did not hit them. The next morning, Garcia noticed a bullet in the tire of his car. Medina and Garcia identified appellant at trial.
The Robbery and Burglary of Rivera (Counts 7 & 8)
Gilda Rivera had met appellant sometime in June 2006 at a friend’s house and had given him a ride. On July 8, 2006, she parked her car in front of her house in Pico Rivera and went inside. Appellant broke in, followed by two males. He asked Rivera for her car keys and when she did not immediately hand them to him, he became angry and put a handgun to her head. While one of the other males held her hands back, appellant hit her in the head and on the face with the gun. He then took her cell phone and left. Rivera sustained bruises on her arms and on her face. She needed stitches in her forehead and three staples in the back of her head. Appellant’s cell phone was recovered from the roof of a house near Rivera’s residence.
Appellant’s Arrest
In August 2006, appellant was observed riding in a car in Rosemead. When officers followed the car, appellant and the driver got out of the car and ran. Police found appellant in a nearby house. Appellant refused to participate in subsequent lineups.
Gang Expert Testimony
At trial, Detective Kevin Lloyd from the Los Angeles Sheriff’s Department testified that he had previously been assigned to the Los Angeles County jail and became familiar with certain gang members. When he became a detective, he was assigned to a task force that specifically dealt with the Pico Nuevo gang. Later, he received a special assignment in Pico Rivera locating and arresting gang members. He has known appellant and his family members for many years. Appellant is a member of the Pico Nuevo gang.
Detective Lloyd testified that the Pico Nuevo gang has 250 to 300 members. Their territory is in Pico Rivera. Durfee Avenue, where the La Cocina restaurant is located, is on the border of the territory claimed by a rival gang, Pico Viejo. Pico Nuevo’s primary activities are graffiti, drug sales, robberies, and assaults. Gang members typically victimize people they know because the victims are afraid of retaliation and will not identify the perpetrators. The gang also intimidates witnesses so that they will not report crimes, even if committed in public.
Based on his experience and the circumstances of the offenses, Detective Lloyd believed that all of the crimes with which appellant was charged were committed for the benefit of the gang. They showed the gang’s dominance and served to intimidate others. Appellant’s status and reputation in the gang were also enhanced by the crimes he committed.
Kimberly Brown’s Testimony
Kimberly Brown was a friend of appellant and his family. She had grown up in Pico Rivera and knew Pico Nuevo gang members. She knew that appellant was a member of Pico Nuevo. On June 21, 2006, Los Angeles Sheriff Department deputies went to Brown’s house to interview her. The interview was recorded. Brown said that appellant told her he had committed a murder at Tommy Burger and had used something called “Big Bertha” to shoot the victim.
At the preliminary hearing in December 2007, Brown testified that she did not remember talking to appellant about the Tommy Burger incident or Big Bertha. A tape of her June 2006 interview was played at the hearing. One of the deputies who interviewed Brown testified at the preliminary hearing that she said she was afraid for her safety and her family’s safety. Brown feared that appellant’s friends could “come over here and blow up my house.” The deputy’s preliminary hearing testimony was read at trial.
A recording of the preliminary hearing, including the tape of the June 2006 interview, was played at trial.
A conditional examination of Brown took place in August 2009. A recording of this examination was played at trial and the jury received transcripts of the recording. During the examination, Brown testified that she was pressured by the deputies into saying that appellant admitted killing a man. The deputies told her that she could go to prison and lose her son if she did not cooperate. She testified that appellant asked her only if she had heard of “a hot one there at Tommy’s.” She admitted telling the police that she knew where appellant was. She felt that the Pico Nuevo gang would harm her or her family in retaliation for her talking to police.
Jailhouse Conversations
While in custody, appellant had several conversations with Joseph Gonzales, a fellow Pico Nuevo gang member, and another conversation with someone by the name of Theodore Edgin. The conversations were taped and the recordings were played for the jury.
Detective Lloyd testified that during the conversation with Edgin, appellant was explaining various aspects of gang life. Appellant told Edgin how deeply entrenched the gangs were all over Los Angeles and how many people get killed every day. Appellant said that he had family members in gangs and some of them had been killed. Pico Viejo gang members were his enemies. Appellant told Edgin that he had a gun.
During the conversations with Gonzalez, appellant said he was “[s]mashing up the var fool, when I got out, fool and I put a G on every block, fool.” Detective Lloyd told the jury that “var” means neighborhood, that appellant meant he was causing havoc or violence in his neighborhood, and that he had used a stolen car in the crimes.
In another conversation, appellant told Gonzalez when he was caught, “I was on the run already for like two months, for a hot one” and “I had my heat, jumped the fence.... I got away.... [T]here’s a three hour standoff. It came out on the news and shit.... Yeah, they didn’t find the heat though. I had cleaned it up.” Detective Lloyd explained that appellant meant he was armed with a handgun, was on the run for a murder, and police were unable to locate the gun he had used. Detective Lloyd confirmed that when appellant was apprehended the deputies did not find a gun.
Appellant said to Gonzalez that “the first day I got out, ... I go straight to the var fool.... I seen two little vatos, man.... I ran up those two blocks, Where you from ese? Some two little schmucks.... Smacked ’em right. Then I started beating his ass right there, right. The other little homies like, I told him this is my varrio man, this is Pico Nuevo. Right? All kinds of cars are stopping.... I’m gone, fool and I jumped in the car and took off.” Detective Lloyd testified that appellant detailed how he asked two younger males to identify what neighborhood they were from. Detective Lloyd explained that there is usually no correct answer to that question and what follows is that the persons being asked will be beaten or shot.
Appellant then said, “I had just capped some vato in the face right there, I’ll tell you that one after. So, ... we’re going on Durfee and you know about that little bar ‘La Cocina?’ There’s a fuckin’ big ass tall security guard. He’s doggin me, so I jump out. This my var, where you from?... He took off running.... So I was planning on coming back, all the juras are there, they fuckin’ surrounded me.... I jumped on the motherfucking roof.... They’re all fuckin’ juras straight there looking at me.... I left the gun and I jumped off the roof, all sick.... I started running, the fuckin’ jura is trying to hit me, and I got away and I just started hopping a gang of apartment and ended up at my grandma’s pad. But he was there, fool. And then they said that the security guard said my name was Mark Santa Anna.... I called my partner right when I got out. Did you hear about when I capped that fool from Puente? Yeah? You know across the street.” Detective Lloyd explained that to “cap a vato” means to shoot a male in the face, “Puente” means the Puente 13 gang, and “jura” means police.
Appellant also said to Gonzalez, “So a little later I go to Little Roy’s pad first.... [H]e pulls out a nine Berretta, right. I grabbed it. This is mine, I’m taking this back from you, fuck that. He’s all, no, bro, naw, you can’t.... And I told him, fuck you homey, I’ll kill for your brother and your best friend and the fuckin’ rats and you ain’t gonna strap me down motherfucker?.... So I cut him off, fuck him. So I went over there, right. End up getting another heat over there.... I’m all tatted up too, fool. I got inked up, too.... So I’m kicking it, shotgun... [w]ith locs, straight vato’d down in the car right.... Right, I jumped out the car, I said, ‘You niggers aren’t from my varrio!’ Uh, socked him in his head. Fuck you, this is my neighborhood.” Detective Lloyd explained that appellant was trying to take a semiautomatic handgun from Little Roy, and Little Roy declined to give it to him. Appellant asked Roy why he refused to give appellant a gun and told him he has to respect appellant. Then appellant jumped out of a car and confronted other Hispanic gang members.
II. The Defense Evidence
Appellant did not testify at trial.
The defense called Joseph Gonzalez as a witness. He testified that while they were in custody together, appellant did not admit to shooting anyone or to committing any other crime.
Julian Sanderson, a private investigator who interviewed Brown in May 2008, testified that Brown told him she did not believe appellant committed the murder at the Tommy Burger restaurant and that she had been “dragged into this” because police had stopped her a month prior to the shooting. Brown told Sanderson that she told police what they wanted to hear because they threatened to take her son away and put her mother in a convalescent home. Appellant did not confess to her. She said the name “Big Bertha” was first mentioned by police.
DISCUSSION
I. The Evidentiary Rulings
A. The Jailhouse Conversations
Appellant contends that the evidence of the jailhouse conversations was highly prejudicial and, with the exception of the assault of Aguirre, shed no light as to the identity of the perpetrator of the alleged crimes. He claims that although the conversations supported the gang allegations, they were unnecessary as his gang membership was never disputed. He asserts the admission of the evidence violated his state and federal constitutional right to a fair trial.
The court admitted the evidence over appellant’s objection, concluding it was “very probative” of appellant’s gang motive for committing the crimes. ~(RT 1802)~
Evidence Code section 352 provides that, “[t]he 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.” “[E]vidence is probative if it is material, relevant, and necessary. ‘[H]ow much “probative value” proffered evidence has depends upon the extent to which it tends to prove an issue by logic and reasonable inference (degree of relevancy), the importance of the issue to the case (degree of materiality), and the necessity of proving the issue by means of this particular piece of evidence (degree of necessity).’” (People v. Thompson (1980) 27 Cal.3d 303, 318, fn. 20, disapproved on another point in People v. Rowland (1992) 4 Cal.4th 238, 260.) A trial court’s broad discretion to determine whether to admit or exclude evidence under Evidence Code section 352 will not be overturned on appeal absent an abuse of that discretion. (People v. Minifie (1996) 13 Cal.4th 1055, 1070.)
Appellant’s statements in these conversations provided factual support for the gang allegations. They demonstrated how deeply entrenched he was in the gang, how important it was to protect his territory and to identify his fellow gang members, and gave valuable insight into appellant’s motives for committing so many violent acts. They also contained incriminating and relevant information about the crimes he was accused of committing: the shooting of Marquez (shooting someone from La Puente in the face); the murder of Suazo (committing a “hot one”); the robberies of Garcia and Medina (that he “[s]macked” “two little vatos”); and the assault of Aguirre (the security guard). Appellant complains that the conversations portrayed him as a “foul-mouthed gangster.” The statements did not subject appellant to undue prejudice. The evidence of the underlying crimes included the victims’ and other witnesses’ testimony that contained expletives and descriptions of violent acts. Appellant’s recorded statements pale in comparison. The trial court did not abuse its discretion in admitting the recordings of the jailhouse conversations. No constitutional violation occurred. (People v. Cudjo (1993) 6 Cal.4th 585, 611.)
B. Brown’s Statement to Police
When Los Angeles County Sheriff’s Deputies Shannon Laren and Shawn McCarthy interviewed Kimberly Brown at her house, Brown told them she had been friends with appellant for a few years. Appellant got angry with her and after he was released from custody, he wrote some graffiti on her house. She saw him at his grandmother’s house after Suazo was murdered and he said to her, “Oh they’re gonna... get me for a hot one.” Brown said that appellant called her on her cell phone, and she told the deputies, “And, I’m going to be very honest, like I was scared. He came and wrote on my house, like he’s a crazy guy and beat the hell out of his baby’s mom.” She described appellant as a “crazy gangster” and claimed that he “worships the devil.” Brown stated, “He’s nuts. He’s, he’s not all there in his mind.”
Defense counsel objected to several portions of Brown’s interview. The parties discussed Brown’s references to appellant’s prior incarceration, his devil worship, and his writing graffiti on her house. The prosecutor argued that some of this evidence had to be admitted to explain why Brown was afraid of appellant. The court agreed to strike the portions of the interview that referred to appellant’s prior incarceration and devil worship but left in Brown’s claim that appellant beat the mother of his child.
Appellant contends that the reference to the beating was inadmissible character evidence which tended to invoke an emotional bias. He argues the evidence was not necessary and was unduly prejudicial. He urges that its admission violated his constitutional right to a fair trial.
The reference was the only evidence left in Brown’s interview after the court excised the portions referring to appellant’s prior incarceration and devil worship that explained why Brown was afraid of appellant and changed her story several times. The reference to the beating was therefore probative and relevant. (People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1588.) Furthermore, the evidence was not unduly prejudicial when weighed against its probative value, especially in light of the other violent acts appellant was shown to have committed. Appellant’s constitutional right to a fair trial was not infringed. (People v. Cudjo, supra, 6 Cal.4th at p. 611.)
C. Cumulative Effect
Appellant argues that even if we find the evidentiary rulings resulted in harmless error when considered individually, the cumulative effect of the rulings deprived him of a fair trial. We are satisfied that the two rulings to which appellant objects did not affect the fairness of the trial whether considered individually or collectively. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.)
II. Sufficiency of the Evidence
A. Attempted Murder of Marquez
Appellant contends that there is insufficient evidence to show that appellant tried to kill Marquez. In evaluating his contention, we view the evidence in the light most favorable to the prosecution and presume the existence of every fact the jury could have reasonably deduced from the evidence. “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
The prosecution presented evidence that Marquez had several visible tattoos that identified him as a member of the La Puente gang. When he was shot, he was riding his bicycle in Pico Rivera, in Pico Nuevo territory, and he was asked, “[w]here are you from, ” a gang challenge. Significantly, Marquez was shot in the face. Appellant told Gonzalez that he had “capped some vato in the face” and “capped that fool from Puente.” Detective Lloyd testified that Marquez was the only La Puente gang member he knew who lived in Pico Rivera. Detective Lloyd also testified that people are afraid of testifying against gang members out of fear of retaliation. There is sufficient evidence from which the jury could reasonably infer that appellant was the shooter and Marquez was afraid to identify him.
B. Attempted Robbery and Attempted Murder of Insuasti
Appellant argues that although there is evidence that he made gang overtures and displayed a gun to Insuasti, there is nothing to indicate that he knew that his companion would commit attempted robbery or attempted murder. Instead, appellant asserts, the inference is that he sought to leave the area after Insuasti said he did not “bang.”
“‘Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.’ (People v. Mitchell (1986) 183 Cal.App.3d 325, 329.)” (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
“‘All persons concerned in the commission of a crime, ... whether they directly commit the act constituting the offense, or aid and abet in its commission, ... are principals in any crime so committed.’ (Pen. Code, § 31, [citations].) Thus, a person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts. [Citation.]” (People v. McCoy (2001) 25 Cal.4th 1111, 1116 1117.) “Factors to be considered by the trier of fact in determining ‘whether one is an aider and abettor include presence at the scene of the crime, failure to take steps to attempt to prevent the commission of the crime, companionship, flight, and conduct before and after the crime.’ (People v. Jones (1980) 108 Cal.App.3d 9, 15.)” (People v. Garcia (2008) 168 Cal.App.4th 261, 273; In re Juan G. (2003) 112 Cal.App.4th 1, 5.)
Appellant was driving his companion in the van that approached Insuasti. Appellant showed a gun to Insuasti and issued a gang challenge. When Insuasti tried to flee, appellant turned off the van’s lights, followed Insuasti, and stopped the van so appellant’s companion could exit. The accomplice tried to take Insuasti’s phone and struck him when he refused to surrender it. Insuasti again tried to escape. Appellant followed Insuasti as he was running down the street, cut off his path, attempted to strike Insuasti with the vehicle, and stopped the van a second time, after which a gunshot was fired. At this point appellant was the only one in the van. Moreover, appellant was the only person Insuasti observed with a gun.
From this evidence, the jury could reasonably conclude that appellant had the requisite intent to aid and abet in the attempted robbery and attempted murder of Insuasti and that his conduct facilitated the crimes. (People v.Garcia, supra, 168 Cal.App.4th at p. 274.)
C. Gang Allegations
Appellant contends that there is insufficient evidence to show that the crimes against Riviera (counts 7 & 8), Medina (count 5), and Garcia (count 6) were committed for the benefit of a criminal gang. He argues that the only pertinent facts testified to by the victims in these counts were that the crimes took place in Pico Rivera, were committed by appellant and two companions, and were apparently unprovoked.
Section 186.22, subdivision (b)(1) imposes additional punishment for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” To support a true finding under this section, “the record must provide some evidentiary support, other than merely the defendant’s record of prior offenses and past gang activities or personal affiliations, for a finding that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang.” (People v. Martinez (2004) 116 Cal.App.4th 753, 762.)
The testimony of Detective Lloyd and the statements contained in appellant’s jailhouse conversations with Gonzalez contained ample evidence from which the jurors could reasonably infer that these crimes were committed for the benefit of the Pico Nuevo gang. Appellant told Gonzalez that he would seek out confrontations and assault people simply because they were in his neighborhood. He explained in his jailhouse conversations that he was defending his territory and often confronted potential gang enemies by asking them what gang they were from. Detective Lloyd explained how appellant’s intimidation of individuals in his community enhanced appellant’s reputation within the gang as well as that of the gang. Detective Lloyd’s testimony helped the jury interpret appellant’s statements and understand his motivation for committing the crimes. The jury had sufficient evidence upon which to base its findings on the gang allegations at issue.
III. Jury Instructions on Aiding and Abetting
Appellant contends there is no evidence that he knew his companion would try to rob and shoot Insuasti and claims it was error not to instruct the jury that the requisite intent for aider and abettor liability must occur before or during the crime. Appellant argues that the jury may have mistakenly concluded that because he drove the vehicle after the shot was fired at Insuasti, appellant aided and abetted the shooter. Appellant claims this error implicated his constitutional rights to due process and a fair trial.
We deem the contention forfeited. Appellant does not claim that the instruction the jury received defining aiding and abetting (CALJIC No. 3.01) is an inaccurate statement of the law. Instead, he asserts the instruction did not specifically inform the jury to consider whether he formed the intent to facilitate the attempted robbery and attempted murder prior to or during their commission. Appellant “did not request the clarifying language he now contends was crucial and may not now ‘complain on appeal than an instruction correct in law and responsive to the evidence was too general or incomplete.’ [Citations.]” (People v. Valdez (2004) 32 Cal.4th 73, 113.)
In any event, the claim is without merit. At trial, appellant did not attempt to convince the jury that any intent he formed to aid and abet the attempted robbery and attempted murder occurred after the crimes were committed. He did not for good reason. There is not a shred of evidence to support his belated suggestion on appeal.
Appellant drove the van that approached Insuasti. He asked Insuasti where he was from and displayed a firearm. Insuasti fled. Appellant responded by turning off the lights on the van and pursuing Insuasti. Appellant stopped the van, the door to the vehicle opened, and appellant’s companion alighted and demanded Insuasti’s phone. When he refused to relinquish the phone, appellant’s cohort struck him in the neck and Insuasti ran. As he ran, appellant and his accomplice chased him, the former in the van and the latter on foot. Appellant tried to cut Insuasti off and veered and attempted to strike him with the vehicle. The van stopped and Insuasti immediately heard a gunshot. On these facts, there is no question the evidence established that the driver of the van had the requisite intent to aid the commission of an attempted robbery and attempted murder. Appellant’s trial counsel wisely recognized intent was not an issue and argued instead that Insuasti’s identification of appellant was suspect and that no one attempted to take Insuasti’s life. Further clarifying instructions with respect to aiding and abetting were simply not warranted because there was no substantial evidence that appellant formed the intent to aid his accomplice until after the crimes were completed. (See People v. Young (2005) 34 Cal.4th 1149, 1200 [“The trial court need not give instructions based solely on conjecture and speculation.”].)
IV. Prosecutorial Misconduct
After the jury was given preliminary instructions, the prosecutor gave a closing argument. During the portion in which he discussed the testimony of Kimberly Brown, he stated, “You saw her demeanor on the video. She did not want to be there. She was crying. We had to take breaks all the time. At the preliminary hearing, all she wanted to do was get off the stand and go home.... She had an alibi. ‘I was with my family at the time of the murder. I can prove it, ’ thereby eliminating her as a suspect in the murder. But this is what she says. ‘Because the cops wanted to interview me about the murder, I framed the defendant for the murder. I put myself in the position where I would have to testify against him.’ That is pretty much the argument she is saying today. That is the last thing she said when she testified in August. Now, this makes absolutely no sense. Read this three times in a row and put them together, and logically this does not flow, because it makes no sense. It is disjointed. It’s illogical. It defies reason. Really, if you summarize and capsulize what she is saying, that’s what she is trying to say. It makes no sense. It doesn’t hold water. It’s like a house of cards. It blows over in the slightest wind. Now, this is the truth. If you use your common sense — and you all have common sense. Take a step back, look at what she said before, look at what she’s saying now, and look what’s happened. She was honest with the detectives in June of ’06 in her kitchen from her tone of voice, from how quickly she volunteered the information. There was no pressure, no threats. She was honest with the police in 2006, but somehow by January of ’07, the defendant and/or his family got to her, because by then, she’s back on the team.” (Italics added.)
Defense counsel then objected, stating, “Your Honor, there’s no evidence of this, and the prosecutor’s opinion that this is the truth is irrelevant.” The court then instructed the jury, “Ladies and gentlemen, rely upon your own memory regarding the evidence.”
Later, the prosecutor addressed the Marquez shooting, stating, “Now, Marquez, he’s a gang member. And remember I said before, you never, ever testify, even against rival gangs, so Marquez would never identify the person who shot him in the face. But I don’t know if you noticed this or not, but when Marquez came to court, when he sat down, as he was settling in, the first thing he did, he looked at the defendant. He was glaring at him.”
Defense counsel objected again, and the court admonished the jury that, “what the lawyers say is not evidence.”
After the prosecutor concluded his argument, and the jurors were excused, defense counsel moved for a mistrial based on prosecutorial misconduct, citing prosecutor’s statement, “The truth is....” The court denied the motion, stating, “I’ve continually told the jury what you all say is not evidence and that they are to rely upon their own memories regarding the evidence. That motion is denied.”
“‘“[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]....”’ Nevertheless, ‘[a] prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of [his] office behind a witness by offering the impression that [he] has taken steps to assure a witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief, ” [his] comments cannot be characterized as improper vouching. [Citations.]’ (People v. Frye (1998) 18 Cal.4th 894, 971.)” (People v. Ward (2005) 36 Cal.4th 186, 215.)
“‘“‘“A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’”’ [Citations.]” (People v. Abilez (2007) 41 Cal.4th 472, 494.)
Considered in context, the prosecutor’s statement, “Now, this is the truth, ” was a comment on the changing testimony of Brown and the prosecutor’s expression of his view of the evidence. Defense counsel objected and the jury was admonished. The jurors listened to the recordings of Brown’s statements during each of her interviews and at the preliminary hearing and were fully capable of evaluating her credibility. It is highly unlikely the jury took the prosecutor’s statement, “Now, this is the truth, ” as vouching for her credibility.
The prosecutor’s comments that Marquez was glaring at appellant did not amount to prosecutorial misconduct. The prosecutor was merely commenting on what he perceived to have taken place in the courtroom and was not employing deceptive methods. Even if the jurors’ observations did not match the prosecutor’s, they were instructed that the lawyers’ statements did not constitute evidence. No misconduct or constitutional error occurred. (People v. Chatman (2006) 38 Cal.4th 344, 385; People v. Welch (1999) 20 Cal.4th 701, 753.)
V. The Pitchess Motion
Prior to trial, appellant filed a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, requesting information on three of the officers based upon claims that Detective Lloyd had a vendetta against appellant and his family members, and that witnesses were coerced into making certain statements. The court granted the request to discover any information on allegations of false arrest, improper tactics, and dishonesty brought against the officers. A separate hearing was held and the court concluded that there was no relevant discoverable information in the personnel files. On appeal, appellant requests that we conduct an independent review of the Pitchess proceedings.
We review the trial court’s decision regarding the discoverability of material in police personnel files under the abuse of discretion standard. (People v. Cruz (2008) 44 Cal.4th 636, 670.) “A trial court abuses its discretion when its ruling ‘fall[s] “outside the bounds of reason.”’ [Citation.]” (People v. Waidla (2000) 22 Cal.4th 690, 714.) The trial court’s ruling here does not fall outside the bounds of reason.
The record indicates that the court complied with the procedural requirements of a Pitchess hearing. There was a court reporter present and the custodian of records was sworn prior to testifying. (People v. Mooc (2001) 26 Cal.4th 1216, 1228, 1229, fn. 4; People v. White (2011) 191 Cal.App.4th 1333, 1339-1340.) The custodian of records complied with the requirement to bring all the relevant personnel records and submit them for the court to review and determine which documents were relevant. (People v. Wycoff (2008) 164 Cal.App.4th 410, 414-415.)
We have conducted an independent review of the transcript and the documents, and find no error occurred during the Pitchess hearing in chambers.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P.J., WILLHITE, J.