Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM024018
CANTIL-SAKAUYE, J.
During an encounter between two groups of young men at a gas station early in the morning, defendant yelled “Norte” and stabbed two men, killing one. A jury convicted him of first degree murder with a gang special circumstance (Pen. Code, §§ 187, 190.2, subd. (a)(22), and attempted murder (§§ 664/187). The jury found true allegations that both crimes were committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)(a)) and defendant personally used a dangerous weapon, a knife (§ 12022, subd. (b)(1)). Defendant was sentenced to life without possibility of parole for the murder, 15 years to life for the attempted murder, and two years for the weapon enhancements. Sentence on the gang enhancements was stayed under section 654.
Hereafter, undesignated statutory references are to the Penal Code.
On appeal defendant contends the trial court erred in (1) refusing to exclude his coerced statement; (2) permitting prejudicial testimony from the gang expert; and (3) refusing to let the defense question the prosecution’s investigator after the prosecution withheld crucial evidence. We find no error and affirm.
FACTS
On October 1, 2005, four friends from school, Brian Semore, William Caffey, Leonard Gonzales and Drew Sabin, went to parties at an apartment complex known as the Zoo in Chico. Semore drove Sabin’s Toyota 4Runner. After Sabin was arrested that night for being drunk in public, the others decided to return to Oroville to tell Sabin’s father about the arrest.
Another group of four young males was out drinking in Chico that night: the 16-year-old defendant, his brother Marcelino, Barnabe Lopez, and Ricardo Garcia. Early the next morning, defendant called Stephen Josh Russell for a ride. Russell, in his mid-20’s, was a felon on parole; he had associated with the Norteño street gang and had a gang tattoo. He had met defendant’s older brother, Larry, in prison. After picking up defendant and his companions in his Honda, Russell stopped at a 76 Union gas station for cigarettes.
In the early morning hours on the way back to Oroville, the group in the 4Runner stopped at the same gas station for a soda. Caffey went inside and encountered Russell, who asked if he “banged.” Caffey said no and then his attention was drawn to people confronting Semore in the parking lot outside. Caffey left the store and asked Semore what was going on. Semore responded the guys “were talking crap to me.”
John Campbell, a college instructor who suffered from insomnia, went to the same gas station in the early morning to visit with his friend who worked there. He saw the Honda and the 4Runner arrive and their occupants confront each other. He recognized Barnabe Lopez, a former student, and yelled to him. Campbell knew Lopez always wore red and referred to himself as a gangster. Lopez responded by telling his friends, “let’s go.”
A fight broke out and words were exchanged. During the commotion, defendant, who was wearing a red windbreaker, yelled, “Norte.” He told Caffey to get out of the cameras and stabbed him in the chest and the face. Defendant told Caffey he was going to kill him. Defendant then stabbed Semore. Semore collapsed, gasping for breath. Everyone from the Honda, except defendant, piled back in the car and took off. Defendant ran away, leaving his blood on a pickup nearby.
Some of the witnesses testified all of the men got back in the Honda. This version of events was refuted by defendant’s blood on the pickup.
Defendant ran to Russell’s, arriving before the Honda. He had cut his hand and Russell’s girlfriend Micaela bandaged it. Defendant had a knife covered in blood and told Micaela he had stabbed someone. He was scared and said he would burn his clothes. Both Russell and Micaela initially lied to the police; Micaela tried to hide the Honda by moving it to Burney. They told the truth about what happened that night when the police tried to blame Russell for the stabbings.
By the time of trial, Micaela had married Russell.
Caffey spent four days in the hospital recovering from his injuries. The police found brass knuckles in his pants pocket. Caffey claimed he carried them for protection, but forgot he had them that night.
Semore had stab wounds to his chest and his back. The stab wounds to his heart were fatal. Some of his wounds indicated multiple thrusts, made without removing the knife from his body. The pathologist opined the cause of death was a combination of sharp-force and blunt-force injuries inflicted with homicidal violence over a period of minutes.
Detective Michael Nelson, a gang expert, testified about the Norteño criminal street gang in Butte County. Defendant’s brothers, Larry, Edgar, and Marcelino were all documented Norteño gang members. Nelson explained that Norte was an abbreviation for Norteño; it also stood for Northern Organization Raza ‘til Eternity. To establish the elements of section 186.22, the gang enhancements, Nelson described previous criminal activities of Norteños, including an assault by defendant’s brother Larry. Defendant had committed a gang-related battery.
In Nelson’s opinion, defendant was an active participant in the Norteño criminal street gang. He further opined that defendant killed Semore and attempted to kill Caffey to further the Norteño street gang. On redirect examination, in answer to a hypothetical question, Nelson testified that if one, who is wearing red and accompanying known Norteño gang members, gets into a confrontation and yells “Norte” and stabs one man in the chest saying he will kill him and another in the back and the chest, killing him, he has committed crimes to promote the activities of the gang. He is identifying himself as a gang member and demonstrating his commitment to the gang.
Detective Matthew Madden testified about his interview with defendant. Defendant initially denied he was present at the gas station, but later admitted he stabbed Semore and Caffey and that he might have said, “Norte.” Defendant felt Caffey might have had a gun, so he removed a knife and stabbed him. Defendant sliced his hand in opening the knife. He burned his clothes and threw his knife in the river. Defendant said he went crazy with the knife and could have stabbed the second victim a thousand times.
The interview was recorded, but it was not played for the jury. The prosecutor asked to play the video during the cross-examination of Detective Madden, but the trial court ruled it would be an undue consumption of time.
The defense had DNA analysis performed on the brass knuckles in Caffey’s pocket and the fabric from his pockets. Blood on the brass knuckles was consistent with Caffey’s. There was a stain on his pocket containing a mixture of DNA; neither Caffey nor defendant could be excluded as donors.
DISCUSSION
I. The Trial Court Did Not Err in Denying Defendant’s Motion to Suppress His Statement To the Detective
Defendant contends the trial court erred in denying his motion to suppress his statement to Detective Madden. He contends he had invoked his right to counsel before the interview; he repeatedly invoked his right to remain silent; and the circumstances of the interview were inherently coercive.
Interview with Defendant
Detective Matt Madden interviewed defendant in November 2005. He began by noting it was cold in the interview room and reminding defendant that he had spoken with him at school. Madden explained defendant was in custody on a probation issue and a search warrant had been executed for a sample of his blood in connection with a fight at a Union 76 gas station. Madden gave defendant his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda). Defendant denied being at the gas station; he explained he cut his hand helping his sister cook dinner. He had heard about the incident at the gas station by reading the newspaper.
Defendant denied knowing Ricardo Garcia or Barnabe Lopez. He admitted he knew Josh Russell, and that Russell had a Honda and he had been in it. Defendant claimed he was home with his brothers when the incident occurred.
Madden told defendant that two people had identified him, as well as his brother Marcelino, as being at the gas station. The police had found blood that did not match anyone else’s, so they were testing defendant and his brother. Madden said after a month and a half investigation, he had a pretty good idea what happened, but he had heard only one side. The bottom line was that Marcelino was in a tough spot. They were checking the blood for DNA. Defendant needed to think about his brother, who was lying and would face serious trouble. Madden tried to impress upon defendant the importance of the situation. “It boils down to you in this room right here right now.” Madden understood protecting family--he had brothers too--but now he needed to clear things up. Defendant said he had nothing else to say. The following exchange occurred:
“Madden: You have nothing else to say?
“[Defendant]: No sir.
“Madden: Okay. So you’re gonna let your brother go down?
“[Defendant]: For what?
“Madden: For what? Your brother is currently getting charged with right now Accessory to Murder. Accessory to Murder. That holds the same charge as if he had the knife and killed the guy, Freddy. Accessory.
“[Defendant]: He didn’t do it.
“Madden: He didn’t do it?
“[Defendant]: No sir.
“Madden: You might want to clear this up, Freddy.
“[Defendant]: I don’t know who did it. You know? They never told me who did it. I have no idea. Did he tell you that he did it?
“Madden: What’s that?
“[Defendant]: Did he tell you he did it?
“Madden: You want to talk to me about this case?
“[Defendant]: No sir. I haven’t got anything to say. You know?
“Madden: Well, you should. We should talk about it.
“[Defendant]: No.”
Madden tried to impress upon defendant how serious the case was. It was not a juvenile case, but an adult case, a capital murder case. If defendant stuck to his “I wasn’t there” story, he would be proved wrong. Madden told him this was the opportunity to explain what happened, if someone tried to hurt him or his brother. Madden could not believe defendant would let his brother get charged with something he did not do. Madden said he knew what defendant did, but would not answer defendant’s questions about what he did.
The next portion of the interview is not questioning, but extended comments by Madden. Madden continued to talk about defendant’s brother and how it was unfair to let his brother take the fall. When Madden told defendant he was telling him the truth, defendant responded Madden’s word meant nothing to him. Madden described the evidence, but repeated he had only one side of the story. Madden told defendant he was not helping his brother and only defendant could save him.
When defendant still refused to talk, Madden asked defendant if that was where he wanted to leave it and defendant said yes. Defendant said he was tired and wanted to go back to the room. He understood his brother would be charged with accessory to murder.
Madden then told defendant he was under arrest for murder. Defendant asked, “You know what if--what if I was, you know, like scared for my life?” Madden said they should talk about that, but the interview was at an end. Defendant continued, “No I mean like--what if I’m literally scared for my life?” Madden said he was willing to listen, but the ball was in defendant’s court. Defendant said, “You don’t even know, man. I’m scared for my life, man, if I say something wrong someone kills me.”
Defendant asked if the others said he was the one with the knife. Then he expressed concern about his statement being videotaped. Madden assured him he would not tell anyone about the interview and offered to turn off the videotape.
Defendant asked Madden several questions about what the others said. He asked where Josh, Ricardo and Barnabe were now. Defendant expressed concern about getting out and “then they put a hit on me.” He said, “I’d rather be alive than dead.” He accused Madden of not caring about his life. Madden said he would not ask any more questions since defendant made it clear he did not want to talk. Defendant asked again if the others said he was there that night. He asked if they tried to pin it on him. Defendant asked if they could still talk. Madden told defendant he had no choice but to tell the truth as everything he had said Madden could prove wrong. Madden was not going to show defendant his whole case; he had nothing further to gain by talking to defendant. “But I think you got something to say and I want to hear what it is, cause I think it sounds potentially important.”
Defendant began talking about that night. They were getting ready to go home. Josh wanted to stop for cigarettes. Defendant was looking at a black car; he thought it was a nice car and wondered who was inside. A guy stepped out and told defendant no one was looking at him. Defendant said he was just looking at the car. The biggest guy started saying “Blood” this and “Blood” that. He said he had a gun and had shot someone that night. He said he needed to do it again. Defendant told the guy they were outnumbered five to three.
The guy started hitting defendant and his brother Marcelino also got in a fight. Defendant was scared; he thought he saw a gun. He pulled out a knife and stabbed the other guy. The other guys started hitting him. Defendant cut himself with the knife. They were beating Marcelino and defendant was “slashing.” His group took off in the car and he and Marcelino took off running.
Madden reminded defendant that he said he did not want to talk and asked, “Is it cool that we’re talking now.” Defendant said, “yeah” and continued to talk about the events that night. Defendant said he was just swinging the knife; he did not know what he was doing. Defendant said he did not intend to kill anyone and no one else had a knife. He threw the knife in the Sacramento River and burned his clothes. Defendant did not know how many times he stabbed the big guy; he just kept swinging. “I got him a thousand times, you know.”
Defendant said he was hungry; he had not eaten since noon. It was then about 6:00 p.m. Madden agreed to get defendant some food and the interview ended.
Motion and Ruling
Defendant moved to exclude his statements to the police, contending they were obtained in violation of Miranda and Massiah v. United States (1964) 377 U.S. 201 [12 L.Ed.2d 246]. Defendant argued Massiah prohibited admission of any statement by a charged defendant without the presence of counsel or a waiver of counsel. Defendant did not assert he had invoked his right to counsel, but contended he had invoked his right to remain silent.
The People responded that defendant’s statements were voluntary and that Massiah did not apply because defendant had not been charged. In supplemental opposition, the People explained that defendant was in custody for a violation of juvenile probation when he was interviewed. Although he had invoked his right to remain silent, he had not invoked the right to counsel. Under Edwards v. Arizona (1981) 451 U.S. 477 [68 L.Ed.2d 378] (Edwards), once the right to counsel has been invoked, the police may not question the suspect about any crime unless the suspect initiates further communication. The People argued the Edwards rule did not apply when the suspect invoked only the right to remain silent. In that circumstance, if the police wait a significant period of time and give new Miranda advisements, they can interrogate the suspect.
At the hearing on the motion to suppress, Detective Madden testified that once defendant invoked his right to remain silent, he stopped asking questions. Madden said he continued to explain the case to defendant, but denied he was trying to get defendant to talk.
Madden testified defendant had been advised of his Miranda rights when he was arrested on violation of juvenile probation and invoked his right to remain silent. When asked if defendant invoked his right to counsel, Madden responded, “I was told that.” The defense objection that the answer was nonresponsive was overruled. Madden continued, “I was told that he invoked--the right to--.” The court sustained a hearsay objection. The prosecutor indicated the officer who knew that information, Karen Young, would be presented later. When the court later asked the defense if it needed to cross-examine Young, the defense said no.
The trial court found there was no express invocation of the right to remain silent, but on more than at least two occasions there was an implied invocation. The detective had the right to clarify defendant’s intentions. The court did not find the detective’s questioning was coercive, threatening or high-handed. It found defendant’s statement voluntary.
Defendant Did Not Invoke His Right to Counsel
Defendant contends the trial court erred in denying his motion to suppress because he had invoked his right to counsel in the juvenile probation proceedings and the subsequent interrogation was conducted without his counsel present. He contends that to the extent trial counsel misunderstood this claim and failed to question the officer about his invocation of the right to counsel, he was denied effective assistance of counsel. The record does not support defendant’s contention.
Trial counsel was confused as to the difference between the right to counsel and the right to remain silent, suggesting that invocation of one served as invocation of the other. “Miranda delineates two separate rights--the right to remain silent, and the right to have counsel present during interrogation. Later cases make clear that there are distinctions in the scope of these rights.” (People v. DeLeon (1994) 22 Cal.App.4th 1265, 1269.) The right to remain silent concerns only the right to cut off questioning, while the right to counsel affords broader protection. (Id. at pp. 1269-1270.) Once an accused has invoked his right to counsel, there is to be no further interrogation until counsel is available, unless the accused initiates further communication. (Edwards v. Arizona, supra, 451 U.S. 477, 484-485 [68 L.Ed.2d 378, 386-387].)
While trial counsel was confused about the nature and scope of these two rights, and consequently the proper case law that applied, the issue was clearly set forth in the prosecution’s supplemental brief, which asserted defendant had not invoked his right to counsel in the juvenile matter. Defense counsel did not dispute this clear assertion and rejected the opportunity to question the appropriate officer about the matter. The only reasonable inference from counsel’s conduct is that counsel knew the record was as the prosecutor represented and would not demonstrate an invocation of the right to counsel. Since defendant had not invoked his right to counsel, admitting defendant’s statement was not a violation of that right.
Defendant’s Right to Remain Silent Was Not Violated: Defendant Continued to Seek Information
Defendant contends his statement should have been suppressed because Madden ignored his repeated invocation of his right to remain silent.
After initially waiving his Miranda rights and answering some of Madden’s questions, defendant then refused to talk about the case. Defendant still hoped to learn what information the police had; he asked what his brother had said he did. When Madden asked if he wanted to talk about the case, defendant said no. Madden then talked about the seriousness of the case. Even after a defendant has invoked his right to remain silent, the police may tell him of evidence against him or other information to help him decide how to proceed. (United States v. Washington (9th Cir. 2006) 462 F.3d 1124, 1134.) During this portion of the interview defendant continued to try to get Madden to tell him what he knew that defendant had done.
Madden talked about defendant’s brother and how defendant should help him. This portion of the interview might be troubling if it had been effective in getting defendant to talk. It was not; defendant maintained he did not want to talk. Madden then quit trying and told defendant he was under arrest for murder. “Far more is required to constitute ‘the functional equivalent of questioning’ than merely advising a person he is under arrest for a specific offense. [Citations.]” (People v. Celestine (1992) 9 Cal.App.4th 1370, 1374.) At that point defendant initiated further conversation. First, he asked what would happen if he was scared for his life. Then he asked questions about the others. When Madden then tried to end the interview, defendant asked, “can we still talk?” It was only at this point that defendant talked about the events that night. When Madden later asked “if it was cool” they were talking, defendant said yes.
Once a defendant has invoked his constitutional rights under Miranda, further interrogation is not to occur unless defendant initiates further contact. (Edwards v. Arizona, supra, 451 U.S. 477, 484-485 [68 L.Ed.2d 378, 385-386]; People v. Sims (1993) 5 Cal.4th 405, 440.) The United States Supreme Court considered what constitutes initiating contact in Oregon v. Bradshaw (1983) 462 U.S. 1039 [77 L.Ed.2d 405]. The court indicated routine inquiries by defendant, such as a request for water or to use the telephone, would be insufficient; defendant must show a desire to open up a more generalized discussion relating directly or indirectly to the investigation. (Id. at p. 1045 [77 L.Ed.2d at p. 412].) The court found defendant’s ambiguous statement--“what is going to happen to me now?”--could be understood as a desire to talk about the investigation. (Ibid.)
Here defendant was not ambiguous. Once faced with the actuality of arrest for murder, he clearly desired to talk about the case, to tell his self-defense side and his fears. Even when reminded that he had invoked the right to remain silent and did not have to talk, defendant indicated he wanted to talk. Defendant’s Miranda rights were not violated; he initiated the discussion that lead to the statements used against him.
Defendant’s Statement Was Not Coerced
Defendant contends his statement was coerced. He claims that Madden used coercive interrogation techniques. He asserts he was a vulnerable teenager kept in a cold, uncomfortable room and lied to, deceived, and threatened.
In order for a confession to be admissible as evidence, the confession must have been made voluntarily and without coercion. (Jackson v. Denno (1964) 378 U.S. 368, 385-386 [12 L.Ed.2d 908, 920-921].) A confession is involuntary if an individual’s will was overborne. (Rogers v. Richmond (1961) 365 U.S. 534, 544 [5 L.Ed.2d 760, 768].) In deciding if a defendant’s will was overborne, courts examine “all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation.” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226 [36 L.Ed.2d 854, 862].)
The circumstances of the interrogation do not support a finding of coercion. While Madden remarked the room was cold, defendant, who was wearing a sweater, never complained. When defendant asked for water, the request was quickly granted. Defendant had eaten at noon and when the interview ended at 6:00, Madden made arrangements for defendant to eat.
Defendant was hardly the inexperienced, vulnerable teenager he attempts to portray. Although only 16 years old, he had a prior gang-related offense and had violated probation. Rather than being frightened or intimidated by the circumstances, defendant appears manipulative in the interview. He used it to obtain information about the police’s case and repeatedly complained Madden was not answering his questions. In a bit of bravado, defendant told Madden his word meant nothing to him and later accused the detective of not caring if he died.
It is true that Madden deceived defendant about the strength of the case against him, particularly that witnesses had identified him as the stabber. In fact, witnesses had failed to make a positive identification of defendant from a photo lineup. “Lies told by the police to a suspect under questioning can affect the voluntariness of an ensuing confession, but they are not per se sufficient to make it involuntary.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1240.) “Where the deception is not of a type reasonably likely to procure an untrue statement, a finding of involuntariness is unwarranted.” (People v. Farnam (2002) 28 Cal.4th 107, 182.) Since Madden’s deception about the strength of the case was not likely to procure an untrue statement, it did not make defendant’s statement involuntary.
Defendant contends Madden threatened him. Seizing upon Madden’s reference to “a capital murder case” and speaking of putting needles in defendant’s arm, defendant contends Madden threatened him with the death penalty. Further, when defendant expressed fear for his life, Madden responded those fears could be allayed only by giving a statement. The record does not support these contentions. Madden did refer to the case as “a capital murder,” but later clarified that he could send defendant to prison for life. Madden spoke of putting a needle in defendant’s arm, but these references were to obtaining a blood sample. Madden’s point was there was probable cause or a judge never would have permitted the procedure on juveniles. When defendant expressed concern that others might find out what he was saying, Madden assured him he would not “go blabbing to people,” and offered to turn off the camera. Madden did tell defendant, “The fact is this, Freddy, is I can’t help you unless you talk to me.” However, he offered no leniency in exchange for a confession. This isolated incident from which one might infer the police implied a benefit from confessing is distinguishable from In re Shawn D. (1993) 20 Cal.App.4th 200, in which the court found the juvenile’s confession was involuntary because the police repeatedly suggested he would be treated more leniently if he confessed. There, “[t]he promise of leniency in exchange for a confession permeated the entire interrogation.” (Id. at p. 216.)
Defendant contends this case is similar to People v. Neal (2003) 31 Cal.4th 63, and Madden’s interrogation techniques were “unethical” and should be “strongly disapproved” by reversing the judgment. We find Neal distinguishable.
In Neal, an officer deliberately violated Miranda by continuing an interrogation despite defendant’s repeated invocation of his right to remain silent and nine requests to speak to an attorney. Further, the officer badgered and threatened defendant, and kept him in custody overnight without food, drink or toilet facilities. (People v. Neal, supra, 31 Cal.4th at p. 68.) The court found defendant’s subsequent confessions were inadmissible because they were obtained in violation of Edwards and they were involuntary. (People v. Neal, supra, at p. 68.)
The circumstances here are entirely different. Madden did not threaten or badger defendant and he was given food and water. While defendant indicated at times that he did not want to speak, he never asked for an attorney and continued to try to obtain information from Madden. When Madden attempted to end the interview, defendant wanted to keep talking.
The “totality of the circumstances” indicates defendant’s confession was voluntary, not coerced. (Withrow v. Williams (1993) 507 U.S. 680, 689 [123 L.Ed.2d 407, 418].) The trial court did not err in admitting defendant’s statements to Detective Madden.
II. The Trial Court Did Not Err in Admitting Gang Expert Testimony
Defendant contends the testimony of Detective Nelson, the gang expert, exceeded the scope of proper expert opinion testimony. He contends Nelson’s testimony about irrelevant matters and his opinion that the crimes were gang related created a climate of fear, rendering the trial unfair. He contends the jury’s fear was shown by the jurors’ request to be referred to by number rather than by name and by one juror’s request to be relieved after her daughter encountered a member of defendant’s family. While some of Nelson’s testimony might have included irrelevant material, defendant has forfeited this claim by failing to object in the trial court. We find no abuse of discretion in admitting Nelson’s opinion testimony that the crimes were gang related.
Background
Prior to trial, the defense submitted a trial brief on the admissibility of gang evidence. The defense requested a copy of the CD presentation that would be played to the jury. The trial brief argued gang evidence was subject to the Kelly-Frye standard for new scientific evidence and the prosecution’s expert testimony appeared not to meet these standards. A copy of the presentation was given to the defense.
People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F. 1013; see People v. Leahy (1994) 8 Cal.4th 587, 611 [referring to test as the “Kelly” test].
Following a hearing under section 402 of the Evidence Code, the trial court qualified Detective Michael Nelson as a gang expert. Nelson presented a PowerPoint presentation on gangs, defining a gang, and discussing their influences, warning signs, membership, clothing and some of the crimes they commit. Nelson told the jury that criminal street gangs date from the 1950’s when the Mexican Mafia attempted to control illegal activities in prison. Beginning about 1968, there was an increase in Hispanics in Northern California being incarcerated. They formed the Nuestra Familia for protection from the Mexican Mafia. The northern gangs identified themselves with the color red and the number 14, while the southern gangs used blue and the number 13. Nelson continued in narrative form describing gangs without objection. When he began to describe gang problems in Los Angeles, a defense objection was sustained.
Nelson then turned to Chico street gangs. The police had identified 712 members; Nelson believed the number was now over 800. At this point the defense objected that Nelson “was going to stay with the March stuff. Now he’s augmenting up. . . . [¶] . . . [¶] So what we have . . . is an avalanche coming forward.” After a discussion, the prosecutor agreed Nelson would stick to the March numbers.
After further discussing gang culture, Nelson opined that defendant was an active member of the Norteño criminal street gang. In an affirmative response to a direct question from the prosecutor, Nelson opined that defendant killed Semore to further the activities of the gang. The court overruled the defense objection that this testimony invaded the province of the jury. After giving the reasons for his opinion, Nelson reiterated his opinion that defendant killed Semore and attempted to kill Caffey “in or[der] to promote, further, and assist in criminal conduct by the other gang members.”
Analysis
“A trial court’s admission of evidence, including gang testimony, is reviewed for abuse of discretion. [Citations.] The trial court’s ruling will not be disturbed in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. [Citation.]” (People v. Avitia (2005) 127 Cal.App.4th 185, 193.)
Expert testimony about the “‘culture and habits’” of criminal street gangs is admissible, “including testimony about the size, composition or existence of a gang [citations], gang turf or territory [citations], an individual defendant’s membership in, or association with, a gang [citations], the primary activities of a specific gang [citations], motivation for a particular crime, generally retaliation or intimidation [citations], whether and how a crime was committed to benefit or promote a gang [citations], rivalries between gangs [citation], gang-related tattoos, gang graffiti and hand signs [citations], and gang colors or attire [citations].” (People v. Killebrew (2002) 103 Cal.App.4th 644, 657, fns. omitted.)
Defendant contends it was error to admit expert opinion testimony on the spread of gangs, that children were raised in gang culture, the legitimate money-making activities of gangs, their hierarchy and structure, the efforts of gangs to confuse law enforcement, the problems gangs pose for communities due to fear and retaliation, and that gang violence often affects innocent victims.
Much of Nelson’s testimony was a narrative description accompanying a slide show that had been provided in advance to the defense. Most of it was admitted without defense objection. Defendant’s failure to object in the trial court to the areas he now finds prejudicial precludes his raising the issue on appeal. (Evid. Code, § 353, subd. (a).) Defendant contends any objection would have been futile. The record does not support this contention. When the defense objected to Nelson’s discussion of gangs in Los Angeles, the reasons youth join gangs and gang graffiti, the trial court sustained the objections. There is no reason to believe the trial court would have ruled differently on other well-taken objections.
The trial court overruled defense objections to pictures of gang posture, tattoos, and that “SK,” such as on Sacramento Kings clothing, stood for “Scrap Killer,” and “Scrap” is a derogatory term for Sureños, a rival of the Norteño gang. On appeal defendant does contend admission of this testimony was error.
Nor has defendant shown the irrelevant gang evidence caused such fear as to render the trial unfair. Expert testimony on gang retaliation and intimidation is admissible. (People v. Killebrew, supra, 103 Cal.App.4th at p. 657.) Evidence that gangs often strike innocent victims was relevant to motive in this case. The excused juror was concerned her daughter might be “blamed” for the verdict. This concern arose from a chance encounter with a member of defendant’s family, not from the gang expert’s testimony.
Defendant contends it was error to permit Nelson to testify that defendant committed murder for the benefit of the gang. He contends this testimony told the jury defendant had the specific intent necessary for murder and how the case should be decided. He contends this testimony raised the same concerns that resulted in reversal in People v. Albarran (2007) 149 Cal.App.4th 214.
In Albarran, the court found it prejudicial error to admit extensive gang evidence in a murder case. “This case presents one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendant’s trial fundamentally unfair.” (People v. Albarran, supra, 149 Cal.App.4th at p. 232.) There was insufficient evidence to sustain the gang enhancements. (Id. at p. 217.) Rather than showing motive and intent, the gang evidence served only to inflame the jury and show defendant’s dangerous and criminal disposition. (Id. at p. 230.)
We find Albarran distinguishable. Here the gang evidence was relevant to establishing the gang enhancements. The evidence in support of such enhancements was ample; defendant does not challenge its sufficiency on appeal. A gang expert may testify as to whether a crime was committed to benefit the gang. (People v. Killebrew, supra, 103 Cal.App.4th at p. 657.)
An expert may not express an opinion on whether a defendant is guilty or whether a crime has been committed. (People v. Torres (1995) 33 Cal.App.4th 37, 46-47.) The prosecution’s questionasking Nelson if defendant killed Semore to further gang activities was improper. The trial court erred in overruling the defense objection to this question. While the context of the questioning assumed defendant was the killer, the prosecutor’s question was aimed at eliciting Nelson’s opinion that the killing was gang related, not that Nelson believed defendant was the killer. This error in framing the question was corrected in redirect examination when the prosecutor properly framed the question as a hypothetical based on the facts of the case. Thus, Nelson’s opinion that the crime was committed to further the gang came out in proper testimony. That the erroneous framing of the question also elicited Nelson’s opinion that defendant was guilty might have been overlooked by the jury except for the defense focus on this aspect of his testimony framing it as murder in cross-examination.
In any event, we find the error in the prosecutor’s question and the trial court’s error in overruling the defense objection were harmless in this case. (People v. Watson (1956) 46 Cal.2d 818, 836-837; see also People v. Adan (2000) 77 Cal.App.4th 390, 393 [applying Watson standard to claim expert testimony improperly admitted].) That defendant was the one who stabbed Semore was not seriously in dispute. Campbell, Russell, Gonzales and Caffey all identified defendant as the perpetrator at trial. Although some of these witnesses failed to select his photograph and gave differing descriptions of his clothing, they all described the stabber as a Hispanic teenager with short hair, a description that matched defendant, but not Russell, an adult. Further, Micaela Russell testified defendant said he stabbed someone and defendant told Detective Madden that he had stabbed two people.
The defense agreed, in exchange for the exclusion of evidence that Marcelino pled guilty to accessory, “not to infer, mention, imply, state that there was a stabber other than Freddy Siordia or Josh Russell in his closing arguments.”
There was no prejudicial error in admitting the testimony of the gang expert.
III. Defendant Fails to Establish a Brady Violation
In the course of the trial, the defense asked the trial court to entertain a motion for sanctions because “there appears to be a very significant Brady violation.” Counsel explained that Caffey and Gonzales were prepped by the prosecutor and her investigator; counsel was “appalled” to learn of this meeting. During that session, these witnesses, who had been unable to select defendant’s photograph, indicated they would change their prior testimony and identify defendant. Defendant wanted to conduct a hearing under Evidence Code section 402 with the investigator. He argued this surprise deprived the defense of a key witness, an expert on eyewitness identification.
Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215].
The prosecutor explained it was her common practice to conduct a pretrial interview with witnesses and she learned no new information. The trial court denied the request to add the investigator to the witness list and conduct a 402 hearing. It took the motion for sanctions for a Brady violation under submission, but never issued a ruling.
Defendant contends the trial court’s refusal to allow the defense to question the investigator was an abuse of discretion and violated due process. Defendant contends the nondisclosure of the interview with Caffey and others was a violation of Brady v. Maryland, supra, 373 U.S. 83 [10 L.Ed.2d 215] because evidence that there would be a dramatic in-court identification would have allowed the defense to counter such evidence with expert testimony on the problems with eyewitness testimony.
“A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused. [Citation.]” (Youngblood v. West Virginia (2006) 547 U.S. 867, 869 [165 L.Ed.2d 269, 272].) The duty under Brady applies to impeachment evidence as well as to exculpatory evidence. (Youngblood v. West Virginia, supra, at p. 869 [165 L.Ed.2d at p. 272].) “There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” (Strickler v. Greene (1999) 527 U.S. 263, 281-282 [144 L.Ed.2d 286, 302].)
Defendant has failed to show a Brady violation. First, he cannot establish that Caffey revealed in the pre-trial meeting that he would identify defendant in court; the prosecution denied that happened. Second, a change in identification from a photographic lineup to a live viewing is not so unexpected that the defense could not have anticipated it. Madden testified Caffey was 80 percent certain defendant was the perpetrator at the lineup. Third, even if caught unawares by Caffey’s testimony, the defense still could have called an expert after Caffey testified, requesting a continuance if necessary. Fourth, to show the prejudice necessary for a Brady violation, defendant must show a reasonable probability of a different result. (People v. Salazar (2005) 35 Cal.4th 1031, 1043.) He cannot make this showing as to the alleged suppression of identification evidence because he admitted he stabbed Caffey and Semore.
The trial court did not err in denying defendant’s motion to question the investigator and failing to impose sanctions.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, Acting P. J., ROBIE, J.