Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BF128167A Gary T. Friedman, Judge.
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Tennant Nieto and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DETJEN, J.
Defendant Jarvis V. Thomas was charged with attempted dissuasion of a victim or witness (Pen. Code, § 136.1, subd. (b)(1); count 1), possession of cocaine base for sale (Health & Saf. Code, § 11351.5; count 2), active participation in a criminal street gang (§ 186.22, subd. (a); count 3), and resisting arrest (§ 148, subd. (a)(1); count 4). As to counts 1 and 2, it was further alleged that defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(4), count 1; (id., subd. (b)(1), count 2); and, as to counts 1 through 3, that he had served a prior prison term (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise stated.
Defendant was charged in count 2 and tried with Jonathan Rae Knight. Knight, who was convicted of the lesser included offense of simple possession, is not before us on this appeal.
Defendant’s motion to suppress evidence (§ 1538.5) was denied, and he proceeded to jury trial. During trial, he pled guilty to count 4. The jury subsequently acquitted him of counts 1 and 2 and found not true the gang enhancement allegations. The jury convicted him of the lesser included offense to count 2, possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and convicted him of count 3. Defendant then admitted the section 667.5, subdivision (b) allegations.
Defendant was sentenced to a total unstayed term of three years in prison and ordered to pay various fees, fines, and assessments. He now appeals, raising claims of insufficient evidence and evidentiary and instructional error. For the reasons that follow, we will affirm.
FACTS
I. PROSECUTION EVIDENCE
On the evening of June 6, 2009, Officers Finney, Stratton, and other members of the Bakersfield Police Department’s gang unit, went to a fourplex in the 1700 block of Orange Street to conduct a search of a specific apartment and of defendant. Upon his arrival, Finney made contact with Wendell Johnson who was on the sidewalk in front of the apartment. Johnson was heavily tattooed with Westside Crip gang tattoos.
Officers forced entry into the residence and searched it. No occupants were found, but the officers did find a couple of pipes used to smoke cocaine base, four boxes of clear plastic sandwich-style baggies, a digital-gram scale, a razor blade, and some syringes. The razor could be used to cut larger rocks into smaller pieces that fit into the end of the crack pipe, while the plastic bags were consistent with packaging used in drug sales. At some point, Johnson told Stratton that he was staying at the premises; some of his belongings were inside.
Defendant, Jonathan Knight, and D.D., a minor, were contacted as they were leaving the courtyard of the Orange Street complex and walking northbound toward Blanche. Finney never ascertained whether defendant had any relationship to the apartment on Orange other than being seen leaving the courtyard of that complex.
Finney advised Knight of his constitutional rights and Knight agreed to talk to him. Knight, who had $85 on his person, said he was not working at the time, and that his girlfriend had given him the money. He could not provide the girlfriend’s telephone number and was unable to remember her address. Knight denied belonging to a gang, but admitted “hang[ing] out” with people he believed to be Westside Crips.
Finney also advised defendant of his rights. Defendant declined to give any statement other than his address. At some point, Finney advised defendant that the officers intended to search his person. Defendant became uncooperative and resisted officers’ attempts to walk him to the apartment on Orange where Finney told him they planned to conduct the search. Eventually, however, officers got him inside and Stratton searched him. Between defendant’s buttocks, Stratton found a clear plastic baggie containing cocaine base. There were five or six rocks, with a net weight of 5.23 grams. For someone currently involved in selling crack cocaine, Finney would expect to find multiple small rocks, possibly individually packaged, that could be handed to the buyer, not everything wadded up together in a plastic bag and secreted internally. Finney saw no signs that defendant, Knight, or D.D. were under the influence of cocaine.
Defendant, Knight, and D.D. were transported to the police station. As Finney was escorting Knight past defendant’s holding cell to the interview room, defendant whistled, causing Knight and Finney to look toward the holding cell. Defendant was looking out the cell window. He said, “you better not tell them shit, don’t say any names, and tell them you ain’t no fucking gangster.” When Finney escorted D.D. to the interview room, defendant was again standing by the cell window. He whistled and stated, “don’t tell them shit, cuz, better not say a fucking word, and tell them you ain’t no Westsider.” Crips commonly refer to each other as “cuz.”
As a gang officer, Finney had the opportunity on several occasions to investigate drug-related offenses, specifically involving cocaine sales. In his training and experience, group sales, or a team sale, —meaning more than one person involved in a particular sale of narcotics—was common among Kern County gangs. Finney did not see defendant or Knight engage in activity consistent with a group sale, however, he believed they were so involved and that they possessed the narcotics with the intent to sell. Based on the way the cocaine was packaged, he opined that they had not sold any yet, although the fact Knight had money in low denominations was an indicator of sales.
Bakersfield Police Officer Beagley had training and experience in recognition of narcotics and of narcotics possessed for sale. In his opinion, five-plus grams of cocaine was a usable amount and was consistent with possession for street-level sales. In answer to a hypothetical question based on the evidence in this case, Beagley opined that defendant, Knight, and D.D. were engaged in group sales and that they directly, or by aiding and abetting one another, possessed the cocaine for the purpose of sales.
Officer King, a member of the Bakersfield Police Department’s gang unit, testified as an expert on gangs in Bakersfield. He explained that people who have been in a gang a long time are commonly referred to as “OG’s” or original gangsters. Youngsters, who are trying to make their name with the gang, are below them. There are also associates—people who are friends of members of the gang. Older gang members often have very explicit gang tattoos. Youngsters, on the other hand, do not tend to have tattoos that are as self-explanatory because officers document these things and use it against them in court.
King was familiar with the Westside Crips, a local criminal street gang. The 1700 blocks of Orange and Blanche Streets were just outside the gang’s traditional territory. The Westside Crips commonly commit drug sales, weapons possession, assaults with deadly weapons, robberies, burglaries, carjackings and auto thefts. King described five cases in which crimes were committed by individuals associated with the Westside Crips. Two cases involved gang members possessing cocaine base for sale; one involved a gang member who was a convicted felon possessing a firearm; one involved two gang members committing murder, attempted murder, assault with a firearm, robbery, and carjacking; and one involved a gang member killing a member of a rival gang.
Based on the information King possessed and on his training and experience, he opined that the Westside Crips were an ongoing group of at least three individuals; the gang’s primary activities included drug sales and witness intimidation; Westside Crip members engaged, either individually or collectively, in a pattern of criminal gang activity; members of the gang promoted, furthered, or assisted other members in felonious conduct; and the Westside Crips was a criminal street gang. He further opined that the five specific cases he described were consistent with a pattern of criminal activities committed by the Westside Crips street gang; that the gang’s pattern of criminal activities was common knowledge among gang members; and that the individuals involved in those specific cases were active members of the Westside Crips at the time they committed those crimes.
King explained that the proceeds received from drug trafficking would definitely benefit the gang, because the money would be used to buy additional narcotics, pay for weapons, pay bail money for friends, and pay for ordinary necessities such as cars and houses. Weapon possession would benefit the gang because a weapon could be used offensively or defensively and an individual’s status within the gang is enhanced if that individual is known as someone who carries a weapon or narcotics to sell. Witness intimidation is of great benefit to the gang because it prevents the reporting of crimes and makes investigation of crimes harder for police.
The Bakersfield Police Department uses six criteria for validating someone as a member of a gang. Two or more of the criteria must be met, although someone can be documented as an associate based on fewer criteria. King reviewed defendant’s gang packet. It contained 27 street checks, of which approximately 20 had varying degrees of significance regarding gang membership. The most significant were:
A “street check” is a documented nonadversarial contact between an officer and an individual, as when officers simply approach suspected gang members on the street and talk to them.
●On February 22, 2009, a search of a suspected Westside Crip member’s residence, located within Westside Crip territory, revealed a letter containing Crips’ verbiage. The letter was from the subject of the search, under his moniker, to defendant, who was addressed by the moniker of Jarmice.
● On January 2, 2008, at a location within Westside Crip territory, defendant was contacted with a documented, self-admitted member of the Westside Crips.
● On October 21, 2007, at a Westside Crip hangout, defendant was contacted with a heavily documented member of the Westside Crips.
● On August 2, 2007, defendant was contacted during a traffic stop. He was wearing a shirt that memorialized a documented member of the Westside Crips who had been killed during a shooting. The shirt bore a photograph of that individual and another person making hand signs referring to Westside Crips and a subset of the gang.
● On January 30, 2007, defendant was contacted during a traffic stop inside Westside Crip territory. Defendant was wearing a Washington Nationals baseball hat. The hat, which had a “W” on the front, was consistent with clothing worn by Westside Crips.
King also reviewed 22 general offense reports. Approximately 16 of them had some degree of significance. Beside the present case, the most significant were:
● On August 24, 2007, officers responded to a report of shots being fired at two individuals in the Carnation Tract portion of Westside Crip territory. Defendant fled, but a self-admitted member of the Westside Crips informed police that he and defendant were hanging out in the area when they became the target of a drive-by shooting.
● On June 30, 2007, defendant was involved in a vehicle stop in the Carnation Tract portion of Westside Crip territory. A vehicle search revealed that defendant was in possession of a loaded firearm. Defendant, who did not live in the area, was asked why he was there; he said he just liked driving in the west side. During the investigation, an officer found a video posted on the MySpace page of an associate of defendant. The video showed defendant and several documented members of the Westside Crips rapping and making gang-related references: in the rap, defendant referred to himself as being from the Westside and from the CT. “CT” stands for “Carnation Tract, ” a subset of the Westside Crips. Defendant was also shown making a “W” with his hand; such a gesture is a Westside Crip gang sign.
This and another video, called “A Day in the Life, ” were played for the jury. They are discussed in greater detail, post.
● On April 12, 2006, defendant was the driver of a vehicle stopped within Westside Crip territory. His companion, who admitted being an associate of the Westside Crips, was arrested for being in possession of cocaine base.
● On February 7, 2006, during another traffic stop in the Carnation Tract section of Westside Crips territory, a subject in defendant’s vehicle was arrested for possession of cocaine base. The subject was one of the people involved in the murder-robbery case King previously referenced in his testimony regarding Westside Crip activities.
● On August 1, 2005, the person in the photograph on defendant’s shirt was shot and killed. The investigation showed that defendant was the first one notified of the killing after it occurred; such action demonstrated the trust the gang had for defendant.
In all the information King reviewed, there was no indication that defendant was under the influence of cocaine or possessed the paraphernalia necessary to ingest cocaine. With respect to the current case, King found it significant that defendant was found to be in possession of cocaine base consistent with sales because the sale of cocaine base is one of the primary criminal activities of the Westside Crips. The location of the contact was within one block of Westside Crip territory; moreover, defendant was with Knight and D.D., who were documented as Westside Crip associates. The fact that one subject was holding the cocaine, one was holding the money, and three people were present, demonstrated a group sale.
In King’s opinion, defendant was an active member of the Westside Crips on the date of the present offense, as were Knight and D.D. In answer to hypothetical questions based on the evidence, King opined that the fact pattern was consistent with a group sale associated with gangs, while the possession of the cocaine was committed in association with and for the benefit of the Westside Crips. The crime would benefit the gang monetarily while enhancing the gang status of the individual who committed it. King also opined that the possession for sale was committed with the specific intent to promote, further, or assist felonious criminal conduct by other Westside Crip members. The individuals involved were aiding and abetting one another in order to further, assist, or promote each other’s conduct.
King conceded members of criminal street gangs often have a strong motive to honestly declare their affiliation when they are arrested and placed in custody. Although defendant had been incarcerated on four occasions, he never told authorities that he was a member of the Westside Crips, asked to be housed with members of his gang, or asked to be segregated from rival gang members. According to King, however, gang members are less likely nowadays to admit association with a specific gang or to request to be kept away from a specific gang.
II. DEFENSE EVIDENCE
Reginald Pace had been active in the music industry since 1991 or 1992. Specializing in hip-hop, gangster rap, and the like, he wrote, produced, and performed. Pace testified to alternative, nongang-related explanations for the rap lyrics in the video. Pace had seen a fictitious business name statement issued to defendant and Bryson Blair on November 1, 2007, for a music group called Cash Talks. Pace assumed the term CT, as used in the video, referred to Cash Talks. Pace started living in Bakersfield only four weeks prior to his testimony, however, and, not being a gang expert, did not know whether any of the language in the video referred to any of the local gangs.
Danny Cain had used crack cocaine for about 22 years and considered himself addicted to it. Cain had never seen a transaction for rock cocaine in which the money was given to one person, who then directed the buyer to a second person for the drug. Instead, the buyer hands the seller money, and the seller hands back a piece of rock cocaine. Cain considered the amount of rock cocaine in this case to be “nothing” in terms of what he personally could use. Additionally, Cain smoked rock cocaine with defendant, who was the son of a friend, on about two occasions. On the last occasion, which was recently, Cain had to use defendant’s pipe because he did not have one of his own.
Knight presented testimony from his girlfriend that she gave him $100 on June 6, 2009.
DISCUSSION
I. Active Participation in a Criminal Street Gang
A. Sufficiency of the Evidence; Felonious Criminal Conduct.
Defendant claims the evidence presented at trial was insufficient to sustain his conviction on count 3, active participation in a criminal street gang in violation of section 186.22, subdivision (a).
The evidence adduced at trial is set out in the statement of facts, ante, and we need not repeat it here. It was clearly sufficient to permit a reasonable trier of fact to find each element of count 3 beyond a reasonable doubt.
The elements of a violation of section 186.22, subdivision (a) are “‘actively participat[ing] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity’ and ‘willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of that gang.’ [Citation.]” (People v. Robles (2000) 23 Cal.4th 1106, 1115.)
Defendant argues, however, that in order to establish he willfully promoted, furthered, or assisted in any felonious criminal conduct by members of the gang, there must be proof that he committed gang-related felonious criminal conduct. He points out that the trial court instructed the jury that “‘felonious criminal conduct’” meant committing or attempting to commit possession of cocaine base for sale, a violation of Health and Safety Code section 11351.5, or witness intimidation, a violation of section 136.1, yet the jury acquitted defendant of both of those charges and found not true the allegation that each offense was 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 any gang member (§ 186.22, subd. (b)). Defendant acknowledges that the jury convicted him of possession of cocaine base, a felony, but notes that the prosecutor stipulated the gang enhancement was inapplicable to that offense because he could not see how possession for personal use could benefit a gang. As a result, defendant concludes: “Without a jury finding that simple possession constituted gang related, felonious criminal conduct, there was insufficient evidence to support a conviction under section 186.22, subdivision (a).”
As the trial court noted, the jury did not need to reach the enhancement allegations once they found defendant not guilty of the substantive offenses.
After briefing was completed in this case, the California Supreme Court decided People v. Albillar (2010) 51 Cal.4th 47 (Albillar). There, the state’s high court rejected the argument that the offense defined by section 186.22, subdivision (a) includes “an unwritten requirement that the ‘felonious criminal conduct’ that is promoted, furthered, or assisted be gang related[.]” (Albillar, at p. 51.) The court explained: “The gravamen of the substantive offense set forth in section 186.22(a) is active participation in a criminal street gang.… [T]he phrase ‘actively participates’ reflects the Legislature’s recognition that criminal liability attaching to membership in a criminal organization must be founded on concepts of personal guilt required by due process: ‘a person convicted for active membership in a criminal organization must entertain “guilty knowledge and intent” of the organization’s criminal purposes.’ [Citation.] Accordingly, the Legislature determined that the elements of the gang offense are (1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang’s members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang. [Citation.] All three elements can be satisfied without proof the felonious criminal conduct promoted, furthered, or assisted was gang related.” (Albillar, at pp. 55-56.)
The applicable standard of review is settled. The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid value.” (People v. Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). Furthermore, an appellate court can only reject evidence accepted by the trier of fact when the evidence is inherently improbable and impossible of belief. (People v. Maxwell (1979) 94 Cal.App.3d 562, 577.)
The evidence here amply established that defendant actively participated in the Westside Crips, a criminal street gang, with knowledge that the gang’s members engaged in a pattern of criminal gang activity, and that he possessed cocaine base, a felony. “[A] gang member who perpetrates a felony by definition also promotes and furthers that same felony.” (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1307.) As there is no requirement that the felony must be gang related (Albillar, supra, 51 Cal.4th at p. 59) or a predicate crime listed in subdivision (e) of section 186.22 (People v. Salcido (2007) 149 Cal.App.4th 356, 370), defendant’s claim of insufficient evidence fails.
B. Instructing the Jury.
In a related argument, defendant contends the trial court erred by failing to instruct the jury that a necessary element of count 3 was that the offense itself was gang related. Although we agree that an instruction that omits an element of the crime constitutes federal constitutional error (see United States v. Gaudin (1995) 515 U.S. 506, 522-523; People v. Lamas (2007) 42 Cal.4th 516, 526), defendant concedes this argument stands on an interpretation of section 186.22, subdivision (a) as requiring that the underlying felonious criminal conduct be gang related. That interpretation having been rejected in Albillar, supra, 51 Cal.4th at pages 51, 55-56, 59, it is likewise rejected here.
Pursuant to CALCRIM No. 1400, jurors were instructed, in part, that in order to prove that defendant was guilty of violating section 186.22, subdivision (a), the People had to prove that “One, the defendant actively participated in a criminal street gang; [¶] Two, when the defendant participated in the gang he knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; [¶] And, third, the defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by: A, directly or actively committing a felony offense; or, B, aiding and abetting a felony offense.”
II. WENDELL JOHNSON’S TATTOOS
Defendant contends the trial court abused its discretion by ruling that photographs of Wendell Johnson’s tattoos were admissible evidence, and that the error deprived him of his right to confrontation under the federal and state Constitutions. We find the first claim to be without merit, and the second claim forfeited.
Defendant moved, in limine, to exclude the approximately 20 photographs the police took of the “very obvious gang-related tattoos” covering Wendell Johnson’s body “from head to toe.” Defense counsel acknowledged this was a gang case, but argued there was no connection between Johnson and defendant; hence, Johnson’s tattoos did nothing to prove defendant or Knight—neither of whom had tattoos similar to Johnson’s—were gang members. Defense counsel noted that Johnson was not going to be a witness at trial and so counsel would not have a chance to ask him about his tattoos. In response, the prosecutor argued that Johnson was an admitted Westside Crip who was at the Orange Street residence when the officers arrived to conduct the search, that the residence was inside Westside Crip territory, and that this was something experts rely on when dealing with gang-type crimes. The prosecutor noted that the expert would be able to discuss Johnson’s gang membership through his gang packet and that the evidence was probative of the section 186.22, subdivision (a) charge and the section 186.22, subdivision (b)(1) enhancement allegations. After clarifying that the officers saw defendant and Knight leaving the area of the Orange Street residence, the trial court concluded the probative value outweighed any prejudicial impact. The trial court noted that normally, there would not be gang members allegedly dealing with nongang members.
Defense counsel agreed the People could put on evidence that Johnson was an admitted Westside Crip member, but argued there was no evidence defendant ever saw Johnson or his tattoos; hence, the photographs were not relevant. The prosecutor responded that Johnson’s tattoos and membership, the location where he was and where the evidence of packaging and trafficking was, and defendant’s and Knight’s location right across the alley, were all relevant to show an association between the individuals as Westside Crips and the activity in which they were engaged at the time, which was also consistent with gangs. The trial court again found the probative value of the proffered evidence outweighed any prejudicial impact; hence, the evidence was admissible.
During the hearing on Knight’s in limine motions, the prosecutor submitted three photographs of Johnson’s tattoos. The first was of Johnson’s inside forearm, and showed “805” for the old Bakersfield area code, and “WSGC” for Westside Gangster Crip”; the second was of Johnson’s back and showed “Goin’ Westside”; and the third was the back of Johnson’s head and showed “6” with a hand sign of a “W.” As to each, the trial court found the probative value outweighed any prejudicial impact.
During cross-examination of Officer Finney, defendant’s attorney elicited testimony concerning the role tattoos play in gang culture, and how there were typical tattoos that would signify if a person was a Crip or a Blood. Defense counsel then questioned Finney about Johnson’s tattoos. Defense counsel asked Finney about the tattoos in the three photographs and whether Johnson had any other tattoos (to which Finney responded, in part, that Johnson had “BK” for “Blood Killer” on his left leg and “ESK” for “Eastside Killer”—a reference to the rival Eastside Crips—on his outer right leg); elicited that Johnson was tattooed essentially from head to toe with Westside Crip gang tattoos; and then elicited that defendant had no tattoos. Subsequently, at defense counsel’s request, the three photographs were admitted into evidence. Defense counsel then questioned Officer Stratton about the significance of Johnson’s tattoos and elicited that, in Stratton’s opinion, Johnson was a gangster.
The trial court subsequently gave a limiting instruction concerning the gang evidence: “You may consider evidence of gang activity only for the limited purpose of deciding whether the defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes and enhancements charged or the defendant had a motive to commit the crimes charged. You may also consider this evidence when you consider the facts and information relied on by an expert witness in reaching his or her opinion. You may not consider this evidence for any other purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.”
Defendant now contends the photographs of Johnson’s tattoos were not relevant, or were more prejudicial than probative under Evidence Code section 352, because (1) defendant himself had no tattoos, and (2) there was no evidence defendant had any connection to Johnson or the Orange Street residence.
The People assert that defendant is estopped from now challenging the admission of evidence he introduced at trial. (See People v. Williams (1988) 44 Cal.3d 883, 912.) We will assume that defendant’s decision in this regard “was an instance of a party making the best of an allegedly erroneous ruling, and therefore does not bar his claim on appeal. [Citation.]” (People v. Riggs (2008) 44 Cal.4th 248, 289.) Nonetheless, we note that defendant’s decision to question witnesses at some length about Johnson’s tattoos to his own advantage and to introduce the photographs thereof into evidence severely undercuts his claims on appeal that the photographs were either irrelevant or unduly prejudicial. (See ibid.)
A. Relevancy.
“Only relevant evidence is admissible [citations], and all relevant evidence is admissible unless excluded under the federal or state Constitution or by statute. [Citations.] The test of relevance is whether the evidence ‘tends “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive.’ [Citation.] The trial court has broad discretion in determining the relevance of evidence, but lacks discretion to admit irrelevant evidence. [Citation.] We review for abuse of discretion a trial court’s rulings on the admissibility of evidence. [Citations.]” (People v. Benavides (2005) 35 Cal.4th 69, 90.) These principles apply equally to testimonial and photographic evidence. (See People v. Carter (2005) 36 Cal.4th 1114, 1166-1167; People v. Crittenden (1994) 9 Cal.4th 83, 132.) They also apply to gang evidence. (See People v. Albarran (2007) 149 Cal.App.4th 214, 224-225.)
An abuse of discretion occurs only when the court “exceeds the bounds of reason, all of the circumstances being considered. [Citations.]” (People v. Giminez (1975) 14 Cal.3d 68, 72.) “It is appellant’s burden on appeal to establish an abuse of discretion and prejudice. [Citation.]” (People v. Albarran, supra, 149 Cal.App.4th at p. 225.)
In the present case, evidence that defendant was found in possession of cocaine base assertedly for purpose of sale, just outside traditional Westside Crip gang territory, in the company of two Westside Crip associates and in close proximity to an admitted Westside Crip member (and inferentially “original gangster”), was relevant to both the substantive gang offense (§ 186.22, subd. (a)) and the gang enhancements (id., subd. (b)(1)). The photographs of Johnson’s tattoos were relevant to his gang membership and, insofar as the tattoos may have been readily visible, to defendant’s knowing association with gang members. Although defendant may have been willing to stipulate to the fact of Johnson’s gang membership, the visibility and nature of the tattoos were relevant information that the prosecutor was entitled to present to the jury through visual evidence. (See People v. Cain (1995) 10 Cal.4th 1, 33; People v. Karis (1988) 46 Cal.3d 612, 639.)
“Nonetheless, even if the evidence is found to be relevant, the trial court must carefully scrutinize gang-related evidence before admitting it because of its potentially inflammatory impact on the jury. [Citations.]” (People v. Albarran, supra, 149 Cal.App.4th at p. 224.) 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.” Under this statute, “the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) “Prejudicial in this context is ‘evidence that uniquely tends to evoke an emotional bias against a party as an individual’ and has only slight probative value. [Citation.]” (People v. Carey (2007) 41 Cal.4th 109, 128.) “‘The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption “‘substantially outweigh’” the probative value of relevant evidence, a[n Evidence Code] section 352 objection should fail. [Citation.]’” (People v. Doolin (2009) 45 Cal.4th 390, 439.)
In the present case, the photographs had probative value, as discussed ante. They were not photographs of defendant’s tattoos, however, and so were unlikely to evoke an emotional bias against defendant. Moreover, they were no more disturbing than any of the other gang evidence, including the video in which defendant himself was shown performing rap with, according to the prosecution’s evidence, gang-related and violent connotations. In addition, the trial court’s limiting instruction rendered it unlikely the jury would use the photographs—or any of the other gang evidence—for an illegitimate purpose. (See People v. Doolin, supra, 45 Cal.4th at p. 439; People v. Garceau (1993) 6 Cal.4th 140, 178-179, disapproved on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.) Under the circumstances, the trial court did not exceed the bounds of reason by concluding that the probative value of the photographs outweighed any prejudicial effect.
The jury’s acquittal of defendant on counts 1 and 2 demonstrates “that it ‘considered the evidence dispassionately in reaching its verdict.’ [Citation.]” (People v. Chatman (2006) 38 Cal.4th 344, 370.)
C. Confrontation.
Defendant says, however, that the photographs were the functional equivalent of testimonial hearsay and so, because he was unable to cross-examine Johnson, their admission violated his constitutional right to confrontation under Crawford v. Washington (2004) 541 U.S. 36, 68 (Crawford) and its progeny. (See, e.g., Davis v. Washington (2006) 547 U.S. 813, 822; People v. Cage (2007) 40 Cal.4th 965, 984.) Although we assume tattoos might constitute hearsay, depending on what they are offered to prove (see People v. Lewis (2008) 43 Cal.4th 415, 496-498), it has been held that photographs are neither testimonial nor hearsay (People v. Cooper (2007) 148 Cal.App.4th 731, 746). It has also been held that Crawford does not apply to hearsay used as the basis for an expert’s opinion. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.)
In any event, defendant forfeited this claim by failing to make the necessary objection in the trial court. (See Evid. Code, § 353.) His objection at trial was based on relevancy and, as the trial court interpreted it, Evidence Code section 352 grounds. In passing, defense counsel stated, “And Mr. Johnson himself is not going to be a witness in this case. So even if -- you know, even if they -- I can’t get a chance to ask him about his tattoos because he’s not going to come in and testify.” This statement was not interpreted by the trial court or parties as even raising a hearsay objection, let alone a constitutional claim under the confrontation clause. (See People v. Redd (2010) 48 Cal.4th 691, 731, fn. 19; People v. Chaney (2007) 148 Cal.App.4th 772, 777, 779-780.)
“‘It is, of course, “the general rule”’—to which we find no exception here—‘“that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.”’ [Citations.]” (People v. Alvarez (1996) 14 Cal.4th 155, 186.) A “‘bare reference’” to an inability to cross-examine is insufficient to satisfy the requirement of a timely and specific objection on constitutional grounds. (People v. Waidla (2000) 22 Cal.4th 690, 726, fn. 8.) “Under these circumstances, a constitutional claim is not cognizable on appeal unless (1) it ‘is of a kind (e.g., failure to instruct sua sponte; erroneous instruction affecting defendant’s substantial rights) that required no trial court action by the defendant to preserve it, or (2) the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court’s act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution.’ [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 353, italics omitted.)
Defendant’s constitutional claim does not fall under the first exception. Because a claim under Crawford clearly involves facts or legal standards different from those defendant asked the trial court to apply in determining relevance and probative value versus prejudicial effect, defendant’s claim has been forfeited for purposes of appellate review. (People v. Redd, supra, 48 Cal.4th at p. 731, fn. 19; People v. Zamudio, supra, 43 Cal.4th at p. 353; People v. Partida (2005) 37 Cal.4th 428, 435.)
III. THE “DAY IN THE LIFE” VIDEO
Last, defendant claims the “Day in the Life” video was never authenticated. He says its admission into evidence constituted prejudicial error and violated his constitutional right to confrontation. Again, we find the first claim to be without merit and the second to be forfeited.
The prosecutor sought to have admitted into evidence two videos that were downloaded by a law enforcement officer from a MySpace Web page belonging to an individual who was linked to the Westside Crips. The first, titled “Freestyle Shit, ” was a rap video in which defendant and other individuals, identified by Officer King as members of the Westside Crips, used what King identified as gang-related expressions.
Defendant did not object to the admission of this video, which we will refer to as the rap video. He did object, as irrelevant, to the second video, which was titled “Day in the Life” and to which we will refer as the DITL video. Defense counsel argued that the DITL video simply showed a bunch of people shouting at each other and acting stupid. When the court sought to clarify whether the videos were contemporaneous, defense counsel responded, “As far as I know, they could have been 10 years apart. I don’t even see the same people in the video. It’s just a video of a bunch of guys yelling stupid stuff at each other and it doesn’t even have any gang references to it.” Defense counsel argued that there would be no witness to testify the videos were filmed at the same time, and that as for defendant’s clothing and hair style being the same in each, for all he knew defendant “walks around on the streets in white T-shirts and braids every day he’s not in custody.” Defense counsel further argued that the DITL video was more prejudicial than probative, as it showed a bunch of individuals “acting the way that is going to appeal to the prejudices of the white folks on the jury and has nothing to do with anything we’re talking about in this case.”
The prosecutor asserted that the DITL video was a prelude to the rap video and depicted individuals gathering around in front of the garage before they went inside and actually recorded the rap video. He represented that defendant was present in the DITL video, and that the gang expert would identify others present as Westside Crips, that the individuals were dressed the same and had the same hair styles in both videos, and the garage in the background of the DITL video was where the prosecution believed the rap video was made. The prosecutor further represented that individuals could be seen throwing gang signs in the DITL video, and that one of the participants talked about what they were going to do in the garage. The prosecutor stated his belief that the videos were made at the same time. He related that the gang expert would testify to the gang-related meanings of the various terms used in the rap video, and he argued that both videos were significant in relation to the substantive gang charge and the enhancements. Specifically with respect to the DITL video, the prosecutor argued that there were gang signs being thrown, that the individuals would be identified by the expert as documented Westsiders, and that the expert would testify that the references in the video to “G’s” meant gangsters or original gangsters, while “YG’s” meant young gangsters. As far as prejudicial effect was concerned, the prosecutor argued that any gang evidence was prejudicial, and that this evidence had substantial probative value with respect to count 3 and the enhancement allegations. The prosecutor conceded that the expert would not be able to say the videos were made at the same time, but argued that the DITL video itself would allow the jury to draw that inference, especially since it showed one individual saying they were going to go in and get “on the mike” and then turning and heading toward the garage in the background.
The court viewed both videos. It ruled that if the prosecution’s gang expert could identify common people dressed similarly in both videos, then the probative value would outweigh any prejudicial impact. If the prosecutor was unable to show some indicia of contemporaneous activity between the videos, however—some nexus in terms of time and common individuals—then the prejudicial effect would outweigh any probative value. The prosecutor subsequently contacted his expert, after which he represented to the court that there were a total of 11 individuals and that the expert would talk about the most important three.
During the testimony of Officer King, the prosecutor had the DITL video played for the jury. King described the gang references in the video, identified defendant and two individuals with whom King had contact as a gang officer (one of whom admitted Westside Crip membership), and identified photographs showing individuals in the video then entering the garage door. The rap video was then played for the jury; King agreed with the prosecutor that it appeared to have been filmed inside the same building. King identified defendant and the other two particular individuals in the DITL video who were also in the rap video, and testified to the gang-related references in their raps. King also testified to defendant making a “W” with one of his hands during the rap video.
The prosecutor subsequently questioned King about when law enforcement became aware of the rap video. King testified that the Kern County Sheriff’s Office found the video on October 25, 2007. Although there was no indication on the video as to when it had been made, officers from King’s agency went to the location at which the video was shot and spoke to the homeowner, who indicated that it had been shot in the summer of 2007.
A. Authentication.
As a preliminary matter, there is some question whether defendant adequately raised the issue of authentication in the trial court. A defendant may not do so for the first time on appeal. (People v. Williams (1997) 16 Cal.4th 635, 661-662; People v. Sims (1993) 5 Cal.4th 405, 448, overruled on another ground in People v. Storm (2002) 28 Cal.4th 1007, 1031-1032.) Here, although defendant objected to admission of the DITL video as irrelevant and as more prejudicial than probative under Evidence Code section 352, the court and counsel addressed when and where the video was made. Accordingly, we will conclude the subject was sufficiently raised. (See, e.g., People v. Lewis, supra, 43 Cal.4th at p. 497, fn. 21; People v. Padilla (1995) 11 Cal.4th 891, 924, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Significantly, however, it was raised strictly in the context of probative value versus prejudicial impact. No question was brought up concerning the fact that law enforcement obtained the video from a MySpace page on the Internet, nor was there any suggestion the video had been, or could have been, altered or faked. (Compare People v. Beckley (2010) 185 Cal.App.4th 509, 514-516 (Beckley).)
Only relevant evidence is admissible. (Evid. Code, § 350; People v. Lucas (1995) 12 Cal.4th 415, 466.) A writing is relevant only if it is shown to be authentic, since, without proof of authenticity, the writing has no tendency in reason to prove or disprove a fact at issue in the case. (Beckley, supra, 185 Cal.App.4th at p. 518; Poland v. Department of Motor Vehicles (1995) 34 Cal.App.4th 1128, 1135; see Evid. Code, § 210.) Accordingly, authentication of a writing is required before either the writing or secondary evidence of its content may be received into evidence. (Evid. Code, § 1401.) “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Id., § 1400.) “A video recording is authenticated by testimony or other evidence ‘that it accurately depicts what it purports to show.’ [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 747.) “Circumstantial evidence, content and location are all valid means of authentication [citations].” (People v. Gibson (2001) 90 Cal.App.4th 371, 383.)
The video recording at issue here constitutes a “writing” under the Evidence Code. (Evid. Code, § 250; People v. Rich (1988) 45 Cal.3d 1036, 1086, fn. 12.)
The authenticity of a writing is a preliminary fact that must be proven before the proffered evidence is admissible. (Evid. Code, § 403, subd. (a)(3); People v. Phillips (1985) 41 Cal.3d 29, 76 (plur. opn. of Reynoso, J.).) “When, as here, the relevance of proffered evidence depends upon the existence of a foundational fact, the proffered evidence is inadmissible unless the trial court determines it ‘is sufficient to permit the jury to find the preliminary fact true by a preponderance of the evidence.’ [Citations.]” (People v. Tafoya (2007) 42 Cal.4th 147, 165; Evid. Code, § 403, subd. (a)(1).) “In other words … there [must] be sufficient evidence to enable a reasonable jury to conclude that it is more probable that the fact exists than it does not. [Citations.]” (People v. Herrera (2000) 83 Cal.App.4th 46, 61.) “The court should exclude the proffered evidence only if the ‘showing of preliminary facts is too weak to support a favorable determination by the jury.’ [Citations.]” (People v. Lucas, supra, 12 Cal.4th at p. 466.) “As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the [writing’s] weight as evidence, not its admissibility. [Citations.]” (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321 & cases cited.) Again, a trial court’s ruling on the sufficiency of the foundational evidence is reviewed for abuse of discretion (People v. Tafoya, supra, 42 Cal.4th at p. 165; People v. Lucas, supra, 12 Cal.4th at p. 466), keeping in mind, of course, that the court has no discretion to admit irrelevant evidence (Evid. Code, § 350; People v. Poggi (1988) 45 Cal.3d 306, 323).
In Beckley, supra, 185 Cal.App.4th 509, on which defendant now relies, at issue was a photograph, downloaded from a MySpace Web page, that purported to show a defense witness flashing a gang sign. The Court of Appeal found the record lacking in evidence sufficient to sustain a finding that the photograph was an accurate depiction of the witness actually flashing a gang sign. The detective who downloaded the photograph could not testify from his personal knowledge that the photograph was a truthful portrayal, and no expert testified that the picture was not a composite or faked. (Id. at p. 515.) The appellate court found such expert testimony “critical” to prevent the admission of manipulated images, in light of the relative ease with which digital images today can be altered. The court further noted that anyone can put anything on the Internet. (Id. at pp. 515-516.)
In the present case, defendant made no claim that the DITL video did not accurately depict what it purported to show; instead, the argument concerned whether the video’s contents constituted gang-related evidence. The case is thus distinguishable from Beckley. With respect to the questions of where and when the video was made, the contents of the video itself, when viewed in conjunction with the rap video, were sufficient to enable the jury to conclude the two videos were made at the same time and place. (See People v. Mayfield, supra, 14 Cal.4th at p. 747.) In addition, defendant did not object to Officer King’s hearsay testimony concerning information obtained from the homeowner at the location at which the video was filmed. Accordingly, the trial court did not abuse its discretion in admitting the DITL video.
Even assuming error, it is not reasonably probable, in light of the unobjected-to rap video and other gang evidence, that defendant would have obtained a more favorable result had the DITL video been excluded. (See People v. Lucas, supra, 12 Cal.4th at p. 468 [applying test of People v. Watson (1956) 46 Cal.2d 818, 836]; Beckley, supra, 185 Cal.App.4th at p. 517 [same].) In light of that evidence, moreover, the DITL video “could not conceivably have rendered the trial fundamentally unfair. [Citation.]” (People v. Chatman, supra, 38 Cal.4th at p. 371; compare People v. Jimenez (2008) 165 Cal.App.4th 75, 81-82.)
B. Confrontation.
Defendant claims, however, that admission of the DITL video violated his federal constitutional right to confrontation. He may not raise this argument on appeal for the reasons discussed in part II. of the Discussion, ante. A claim of confrontation clause error constitutes an argument that the trial court “erred in failing to conduct an analysis it was not asked to conduct.” Such an argument may not be made for the first time on appeal. (People v. Partida, supra, 37 Cal.4th at p. 435.)
We do not deem defendant to have raised, pursuant to this court’s February 11, 2010, “Order Regarding Penal Code section 4019 Amendment Supplemental Briefing, ” issues concerning the amendments to section 4019 that became effective January 25, 2010. Regardless of whether those amendments apply retroactively, they do not operate to modify defendant’s entitlement to credit, as he was committed for a serious felony. (Former § 4019, subds. (b)(2) & (c)(2); People v. Johnson (2010) 183 Cal.App.4th 253, 289, fn. 6; see § 1192.7, subd. (c)(28); People v. Briceno (2004) 34 Cal.4th 451, 459-460, 462.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HILL, P.J., VORTMANN, J.
Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Section 4019 has since been further amended by urgency legislation, operative on September 28, 2010. (Stats. 2010, ch. 426, § 2.) This amendment does not alter this result.