Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. SA050432. Katherine Mader, Judge.
Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Herbert S. Tetef, Joseph P. Lee and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendant Michael Jason Ware appeals from a judgment of conviction following a jury trial. The jury found defendant guilty of second degree robbery (Pen. Code, § 211) and found true the allegation that he personally used a firearm in the commission of the crime (id., § 12022.53, subd. (b)). The trial court found true the allegations that defendant suffered two prior serious felony convictions (id., §§ 667, subds. (a)(1), (b)-(i), 1170.12) and four prior felony convictions for which defendant served prison terms (id., § 667.5, subd. (b)). It sentenced defendant to 25 years in state prison.
On appeal, defendant claims insufficient evidence to support a personal firearm use enhancement, error in the prosecutor’s use of peremptory challenges to remove three Black prospective jurors, evidentiary and instructional error, and error in imposing an upper term sentence based upon facts not found true by the jury. We affirm.
FACTS
Prosecution Evidence
On September 23, 2003, about 10:20 p.m., Arobindo Banerji (Banerji) and his girlfriend, Deanna Aho (Aho), were walking from Banerji’s workplace to his home. At the intersection of Pickford Street and La Cienega Boulevard in the City of Los Angeles, they noticed three men standing around a small, white car with black detailing parked in an alley. The men walked toward them, stopping them on the street. Defendant approached Banerji and pointed what appeared to be a small black handgun at the left side of Banerji’s chest. He ordered Banerji to look at defendant’s hand and not his face. The gun was a foot to a foot and a half away from Banerji. Defendant was noticeably older than the other two men, about forty or in his late thirties. Defendant demanded Banerji’s wallet and took the money in it, about $10.
A second man pulled Aho by the arm to the side, about seven to eight feet from Banerji. When Banerji looked up to see what was happening to Aho, he saw defendant’s face. The second man demanded Aho’s purse. She gave him all the cash in it, roughly $70.
The third man acted as a “lookout, ” standing about ten feet in front of them, looking towards the busy street. When the other two men had taken the cash, the lookout told Banerji and Aho to walk straight ahead and go. As they began walking, they saw the white car pull out of the alley and drive south on La Cienega Boulevard.
Shortly after the couple reached their residence, Banerji called 911 and reported that they had been robbed at gunpoint by three men. About an hour later, two Los Angeles police officers came to their residence and took their statements. Banerji described defendant as roughly 35 years old. Banerji described the firearm defendant had pointed at him as a small, black handgun with a square muzzle like the muzzle on a semi-automatic gun.
About two weeks after the robbery, Detective Corbin Rheault met first with Banerji and then Aho at their residence. He showed Banerji three “six-packs” of photographs. Banerji “instantly” identified defendant and indicated he was 100 percent certain of his identification because he had looked at defendant straight in the eyes when defendant was a foot and a half away from him. Banerji took four to five minutes to identify Antoine Joiner (Joiner) as the man who robbed Aho, with only 60 percent certainty. Banerji later made a 100 percent certain identification of defendant at the preliminary hearing and then at trial.
When the detective showed two six-packs to her, Aho identified Joiner as the man who pulled her aside and robbed her and said that she was “pretty sure, ” or 70 percent certain, of the identification. However, when shown a six-pack that included defendant’s photo, Aho indicated that two of the men in the photos looked very similar to her, and ultimately she said defendant looked like the man who approached her and another man looked like the one who had approached Banerji. At trial, Aho identified defendant as the person who held the gun on Banerji and indicated that she was “very sure, ” about 70 percent certain, that defendant was the one who robbed Banerji.
Pursuant to a stolen car report, the police located the white car six days after the robbery. It was near Joiner’s residence. Both Banerji and Aho recognized the white car from photographs shown to them some time later by another police officer, particularly by the distinctive black stripe on the side. Defendant was arrested on October 24, 2003.
Defense Evidence
Defendant testified on his own behalf. Defendant denied committing the robbery. On September 19, 2003, Michael Puhjolo (Puhjolo) contracted with defendant to have defendant deliver some items, using Puhjolo’s mother’s car, a small white car. Defendant completed the deliveries by early evening on September 20. Defendant did not return the car to Puhjolo at that time. On September 21, in the middle of the day, three teen-aged men carjacked defendant as he was returning to the car from a liquor store. One had a gun—black, about seven inches long. Defendant did not know the men. After returning home by bus, defendant telephoned Puhjolo and told him about the carjacking. Puhjolo told him that he would report the car stolen. Defendant did not report the carjacking to the police at that time because he feared for his life if he were labeled a snitch. When defendant was arrested, he did not inform the police that he had been carjacked on September 21 and did not have possession of the car on September 23, the day of the robbery.
On September 22, Los Angeles Police Officer Gabriel Cabrera took a telephonic report of a stolen white Toyota Paseo from someone who identified himself as Michael Puhjolo. Puhjolo indicated he had given defendant permission to use the car to transport some items for him and return the car to him, but defendant had not returned the car to him. Puhjolo did not mention anything about defendant being carjacked.
Defendant was arrested on October 24 at his sister’s home, which was near where the white car had been found and near Joiner’s residence. He knew nothing, however, about the location of the white car.
Defendant testified that, in 1991, he was convicted of robbery. He also had three other felony convictions, from 2000 and 2002.
On cross-examination, defendant acknowledged that he wrote a letter to the prosecutor from jail on December 20, 2003, a letter to the FBI dated November 2, 2004 and another letter to the prosecutor dated November 10, 2004. In one or more of the letters, defendant indicated that he had been carjacked by three members of the Rolling 30s Crips before the robbery. He identified the gang members by their gang monikers and names —“Jaybird” as Anthony Hunter (Hunter) in one letter and as Eric Davis (Davis) in another letter, and “Infini Te loc” as “Antwone Joyner.” Defendant wrote that both Hunter and Joiner were “juvies.” On September 22, 2003, Hunter and Joiner picked up another gang member, “Infint Dutch, ” and the three of them committed a robbery at a liquor store in Long Beach. Then on September 23, 2003, Davis, Joiner and “there [sic] leader Maxwell” robbed a man and a woman, and an hour later, robbed another couple in Hollywood. Defendant wrote that he did not report the carjacking to the police for fear of retaliation by the gang members. Defendant added that he had been mistakenly identified, that Maxwell resembled him, and that Joiner had told defendant that he and Maxwell committed the armed robbery.
In his letters, defendant used the spelling “Antwone Joyner, ” but in all other references in this opinion, we use the correct spelling “Antoine Joiner.”
Defendant testified at trial that he did not know Davis, Joiner or Hunter previously. He talked with Davis in the jail holding tank after seeing Davis while meeting with his attorney in a jail conference room and obtaining Davis’ name from his attorney. Davis told him the three of them had been arrested for robbery and were Rolling 30s gang members. Defendant stated that he met Maxwell in jail and Maxwell told him the robbery he was accused of had been committed by Joiner, Davis and “Infint Dutch, ” whose name defendant could not recall.
Defendant testified that Davis was the man with the gun in the carjacking. Defendant reiterated that he did not report the carjacking because he feared retaliation from these gang members. He had never seen the three men before and did not know who they were. He also testified that he had been a member of the Rolling 30s Crips from the time when he was 13 or 14 until he was 28, and he had been an ex-member about 8 years.
C. Rebuttal
The prosecution’s gang expert, Los Angeles Police Officer Corey Farell opined that defendant and Joiner were both members of the gang known as the Rolling 30s Harlem Crips. He identified the source of the information he used as Cal Gangs, a database of California gang members statewide as documented by officers on field information cards when they come in contact with gang members. The officers identify persons as gang members if they meet at least two specified criteria, such as by their tattoos or their self-admission of gang membership.
According to Officer Farell, defendant had been documented twice as a member of the Rolling 30s. In the course of traffic stops in September 2001and June 2003, defendant gave a self-admission of gang membership and the officer observed a gang tattoo, “H.C.” on his left hand, signifying the Harlem Crips. Also, the June 2003 entry indicated that defendant was detained at a residence at which Officer Farell had personally experienced more than 100 contacts with various Rolling 30s gang members. Before the trial court began giving the jury instructions, the parties stipulated on the record that defendant “does, in fact, have a tattoo on his left hand between the thumb and the forefinger that says ‘H.’ ‘C.’”
DISCUSSION
Sufficiency of the Evidence as to Firearm Use Enhancement
Pursuant to Penal Code section 12022.53, subdivision (b), the trial court imposed a ten-year sentence enhancement based upon the jury’s finding that defendant personally used a firearm in the commission of the robbery. Defendant contends that there was insufficient evidence to support such a finding. Specifically, defendant contends there was no proof that the gun he used in the robbery was in fact a “firearm, ” as defined in Penal Code section 12001, subdivision (b): “As used in this title, ‘firearm’ means any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.” No gun was admitted into evidence and there was no evidence that the gun was fired at the scene or ever recovered.
Defendant argues that the only evidence offered to prove the firearm enhancement allegation was the testimony of each of the victims that defendant had a handgun pointed at one of them, and their testimony was insufficient evidence that the gun was real, and not a toy or replica. Defendant asserts that, therefore, there was no substantial evidence to support the jury’s determination that, beyond a reasonable doubt, defendant used a real gun in committing the robbery.
When the sufficiency of the evidence is challenged, our task is to “‘determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.’” (People v. Johnson (1980) 26 Cal.3d 557, 576; accord, People v. Cunningham (2001) 25 Cal.4th 926, 1010.) We must view the record in the light most favorable to the judgment to determine whether there is substantial evidence to support such a conclusion by a reasonable trier of fact. (Johnson, supra, at p. 578.) We “must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The same standards apply when reviewing the sufficiency of the evidence as to findings of an enhancement. (People v. Fielder (2004) 114 Cal.App.4th 1221, 1232.)
In applying the substantial evidence standard of review, our authority to reject testimony of a witness accepted as credible by the trier of fact is limited to circumstances in which “that testimony is inherently improbable or impossible of belief . . . [or] ‘inherently implausible in light of the whole record.’” (People v. Jackson (1992) 10 Cal.App.4th 13, 21.) As to credibility issues, “‘it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.’” (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
As previously noted, both victims testified that defendant had a gun and held it toward the ribs under the left side of Banerji’s chest. Banerji testified that defendant said to him, “I have a gun.” Banerji and Aho both described it as a small black handgun, and their descriptions were consistent in the various statements made to law enforcement and at trial. Banerji made his description more specific by stating that the gun had a square muzzle like a semi-automatic gun.
Defendant argues that their testimony is insufficient, in that they have no expertise in identifying firearms, and the gun was never introduced into evidence. We disagree. Substantial evidence to support a firearm use enhancement does not require either a victim who is a firearms expert or the introduction of the firearm that was personally used by a defendant. (People v. Dominguez (1995) 38 Cal.App.4th 410, 421; People v. Green (1985) 166 Cal.App.3d 514, 517.) Defendant has cited no authority to support his theory to the contrary. The testimony of the victims here, Banerji and Aho, was not inherently improbable or impossible of belief. (People v. Jackson, supra, 10 Cal.App.4th at p. 21.) Thus, a rational trier of fact could conclude, beyond a reasonable doubt, from the victims’ testimony alone, that defendant personally used a firearm in committing the robbery. (People v. Johnson, supra, 26 Cal.3d at p. 576.) Therefore, we conclude that the jury’s finding of personal use of a firearm as an enhancement is supported by sufficient evidence. (People v. Cunningham, supra, 25 Cal.4th at p. 1010; Johnson, supra, at p. 576.)
Wheeler/Batson Claim of Racial Discrimination in Jury Selection
Defendant’s claim rests upon the impermissible discriminatory exclusion of prospective jurors, under the equal protection clause of the Fourteenth Amendment to the United States Constitution as set forth in Batson v. Kentucky (1986) 476 U.S. 79 (Batson), and article I, section 16 of the California Constitution as set forth in People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). Defendant made his objections at trial under Wheeler, and did not specifically invoke Batson. The California Supreme Court has recognized, however, that an objection under Wheeler preserves a federal constitutional objection because the legal principles that are applied are the same. (See People v. Yeoman (2003) 31 Cal.4th 93, 117.) For ease of reference, each motion defendant made based upon such discriminatory exclusion is referred to herein as his Wheeler motion.
Defendant contends that the trial court erred in denying his Wheeler motions challenging the prosecutor’s use of three out of his first four peremptory challenges to remove prospective jurors who were Black, Prospective Jurors Nos. 5888, 7713 and 3723. Specifically, defendant claims that the trial court erred in ruling that defendant did not make a prima facie showing of racial discrimination in his Wheeler motion as to Nos. 5888 and 7713. Defendant asserts further that, in response to defendant’s subsequent Wheeler motion as to No. 3723, the trial court erred in failing to require the prosecutor to give reasons for all three challenges. Defendant claims that, as a result of the actions of the prosecutor and the trial court, his constitutional rights were violated, specifically, his rights under the equal protection clause of the Fourteenth Amendment to the United States Constitution and article I, section 16 of the California Constitution.
The accurate figures are three out of the first five peremptory challenges. At the time of defendant’s first Wheeler motion, the prosecution had excused a Black man, No. 5888; a Black woman, No. 7713; a White man, No. 8629; and a White woman, No. 6219. Defendant’s second Wheeler motion was made after the prosecution excused the fifth juror, a Black man, No. 3723.
All references hereinafter to a numbered Amendment are to an Amendment to the United States Constitution.
The exercise of peremptory challenges based on group bias such as racial discrimination violates both the California and United States Constitutions. (Batson, supra, 476 U.S. at pp. 84-89; People v. Lancaster (2007) 41 Cal.4th 50, 74; Wheeler, supra, 22 Cal.3d at pp. 276-277.) If a defendant establishes a prima facie case of racial discrimination by the People in using their peremptory challenges, then the burden shifts to the People to articulate a neutral explanation for each challenge. (Batson, supra, at pp. 96-98.) If the People meet their burden, then the trial court, taking into consideration all relevant circumstances, determines whether defendant has established purposeful discrimination and thus, whether to grant the Wheeler motion. (Ibid.)
To make a prima facie case of unconstitutional discriminatory exclusion of prospective jurors, a defendant bears the burden of showing that the persons excluded are a cognizable group and that the totality of the relevant facts of the case give rise to a reasonable inference that the persons are excluded because of their group association. (Johnson v. California (2005) 545 U.S. 162, 168-169; accord, People v. Avila, supra, 38 Cal.4th 491, 552, 554.) In short, the moving party establishes a prima facie case of discrimination “by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson, supra, at p. 170.)
At the time the trial court made its rulings on defendant’s Wheeler motions, the trial court was required to apply the holding of the California Supreme Court in People v. Johnson (2003) 30 Cal.4th 1302 at page 1306, that “Wheeler’s terms, a ‘strong likelihood’ and a ‘reasonable inference, ’ refer to the same test, and this test is consistent with Batson. Under both Wheeler and Batson, to state a prima facie case, the objector must show that it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias.” In 2005, after defendant’s trial ended and prior to his sentencing, the United States Supreme Court issued its decision in Johnson v. California, supra, 545 U.S. 162, disapproving the use of People v. Johnson’s “more likely than not” standard as being unconstitutionally high. (Id. at pp. 168-169, 173; see also People v. Avila (2006) 38 Cal.4th 491, 553.) We, therefore, apply the federal constitutional rules established in Johnson v. California, supra, in our consideration of this appeal. (Griffith v. Kentucky (1987) 479 U.S. 314, 322-323; see People v. Murtishaw (1989) 48 Cal.3d 1001, 1013-1014 [acknowledging the applicability of Griffith to changes in federal constitutional rules].)
It is undisputed that defendant met his burden of showing that the prospective jurors were members of a cognizable group—Black people. (People v. Alvarez (1996) 14 Cal.4th 155, 193.) Thus, the issue presented in this appeal is whether defendant met his additional burden of showing evidence sufficient to support an inference of racial discrimination. (Johnson v. California, supra, 545 U.S. at p. 170.)
In denying defendant’s Wheeler motions, the trial court indicated it did not see a discriminatory pattern in the prosecutor’s peremptory challenges. (Batson, supra, 476 U.S. at pp. 96-97.) Without regard to any reasons given by the trial court, however, we review the record in order to “‘resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race.’” (People v. Gray (2005) 37 Cal.4th 168, 187.)
As stated in People v. Griffin (2004) 33 Cal.4th 536, “[w]hen a trial court denies a Wheeler motion with a finding that the defendant failed to establish a prima fac[i]e case of purposeful discrimination, we review the record on appeal to determine whether there is substantial evidence to support the ruling. [Citations.] The record includes voir dire [citations] as well as any juror questionnaires [citation]. We sustain the ruling when the record discloses grounds upon which the prosecutor properly might have exercised the peremptory challenges against the prospective jurors in question. [Citations.]” (Id. at p. 555.) If review of the voir dire and questionnaires discloses substantial evidence of an obvious race-neutral reason for a challenge to a prospective juror, the defendant has failed to raise a reasonable inference of racial discrimination and thus, failed to establish a prima facie case. (Ibid.; People v. Avila, supra, 38 Cal.4th at pp. 553-554.)
Defendant asserts that he made the required prima facie showing of racial discrimination based upon the statistics applicable to his Wheeler motions—three out of the first four peremptory challenges by the prosecutor were against Black people. Review of the record discloses that the accurate ratio is three out of the first five challenges. As the People point out, the prosecutor’s peremptory challenges were evenly divided—two White and two Black prospective jurors—at the time defendant made his first Wheeler motion. When he made the second motion, the numbers had become two White and three Black prospective jurors. This was akin to merely showing that Black prospective jurors had been excluded, a showing which has been recognized as an insufficient basis for establishing a prima facie case. (People v. Box (2000) 23 Cal.4th 1153, 1188-1189; People v. Trevino (1997) 55 Cal.App.4th 396, 406.) It was not a circumstance in which there was clear statistical disparity between the number of White and Black prospective jurors excluded by the prosecutor. (See People v. Lancaster, supra, 41 Cal.4th at p. 76.) Defendant does not present any other facts or circumstances, such as the racial composition of the jury finally seated, in support of his claims of racial discrimination. We conclude that there is no substantial evidence in the record to support a reasonable inference of impermissible racial discrimination on the statistical basis proffered by defendant.
In any event, our inquiry has a different focus. As previously noted, we review the record for substantial evidence of a race-neutral reason for the exclusion of each of the three prospective jurors. (People v. Avila, supra, 38 Cal.4th at pp. 553-554.) The record of the voir dire of the three prospective jurors discloses substantial evidence to support a finding that the prosecutor’s peremptory challenge was race-neutral as to each prospective juror. (People v. Griffin, supra, 33 Cal.4th at p. 555; People v. Avila, supra, 38 Cal.4th at p. 554.) The trial court questioned each prospective juror about facts related to a race-neutral reason specific to him or her. (See People v. Roldan (2005) 35 Cal.4th 646, 703.)
Prospective Juror No. 7713, a Black woman, told the trial court that when she was leaving the courtroom, defendant said “hello, ” called her by her first name, and gestured to her, but she did not think she knew defendant. Although No. 7713 indicated that she would be comfortable serving as a juror and could be impartial, the fact remains that she was sufficiently concerned to take the initiative to inform the court clerk about defendant’s actions. Defendant’s ex parte communication to the prospective juror raised the possibility that he created a personal connection with the juror that could influence her to make decisions favorable to him or, by identifying her by name, he gave the juror cause to have concerns for her safety if she voted against his interests. Like ex parte tampering with the selection of jurors, both potential effects would be likely to interfere with the prospective juror’s objectivity and impartiality in determining her decision as to guilt or innocence. (See Noland v. State Bar (1965) 63 Cal.2d 298, 302.) An impartial jury is a constitutional requirement in criminal trials. (See Wheeler, supra, 22 Cal.3d at p. 281, fn. 28.) Defendant’s direct communication and the content of the communication, therefore, provided a reasonable race-neutral basis for the prosecutor to exclude No. 7713.
Prospective Juror No. 5888, a Black man, reported that his son was in prison for armed robbery, he had visited him in prison, and he did not go to the trial because he knew something about the case from communicating with his son prior to trial. The use of a peremptory challenge to exclude a prospective juror whose family member has had negative experiences with the criminal justice system has been recognized as consistent with a defendant’s constitutional rights. (People v. Lancaster, supra, 41 Cal.4th at pp. 77-78; People v. Roldan, supra, 35 Cal.4th at p. 703.) Thus, there is substantial evidence in the record to support such a race-neutral reason for peremptory challenge of No. 5888.
Prospective Juror No. 3723, a Black man, indicated that he had some negative feelings about police officers in relation to experiences he and members of his family had in encounters with police. He reported that, “in the seventies, ” his sister trained with the L.A.P.D. academy, but did not pursue being a police officer because “[a]t that time, there was a lot of stuff going on with the L.A.P.D.” He also said that he “had negative feelings about [police officers] for what has been going on lately.” Specifically, first “L.A.P.D. and then Hawthorne” had been “rude” toward his parents and him in “a couple of instances within the last year” in connection with their reporting a crime. Negative experiences of a prospective juror or his or her family with law enforcement and the criminal justice system constitute a reasonable basis for a prosecutor’s exercise of a peremptory challenge. (People v. Lancaster, supra, 41 Cal.4th at p. 78; People v. Roldan, supra, 35 Cal.4th at p. 703.) Thus, there is substantial evidence in the record to support finding such a race-neutral reason for peremptory challenge of No. 3723.
In summary, our review of the voir dire discloses substantial evidence of a race-neutral reason for the People’s peremptory challenge of each prospective juror at issue. (People v. Griffin, supra, 33 Cal.4th at p. 555.) On that basis, we determine that defendant has failed to raise a reasonable inference of purposeful discrimination and thus failed to establish a prima facie case. (Batson, supra, 476 U.S. at pp. 96-97; People v. Avila, supra, 38 Cal.4th at pp. 553-554.) The trial court, therefore, did not err in denying defendant’s Wheeler motions based upon the lack of a prima facie showing of racial bias.
For that reason, we also reject defendant’s contention that the trial court erred in not requiring the People to provide explanations for each of the prospective jurors who was excluded. The prosecution must provide race-neutral explanations for its peremptory challenges only if the defense establishes a prima facie case. (Batson, supra, 476 U.S. at p. 97.)
Relevance of Gang Evidence
Defendant contends that the trial court erroneously admitted irrelevant and prejudicial gang evidence in violation of defendant’s due process rights. The gang evidence included the opinion of a gang expert that defendant and Joiner were members of the same gang near the time of the robbery.
It should be noted that evidence of the “H.C.” tattoo on defendant’s hand signifying the same gang and referred to by the gang expert as part of the basis for his opinion was admitted by stipulation after the gang expert’s testimony concluded.
Prior to defendant’s testimony, the prosecutor had requested the trial court to allow the prosecution to call a gang expert as a witness in order to show defendant and Joiner were members of the Rolling 30s gang and impeach defendant’s claims that he was not a participant in the robbery because he had been carjacked before the robbery and did not know the gang members who carjacked him. The trial court had initially declined to admit the gang evidence on the basis that it was more prejudicial than probative under Evidence Code section 352.
After defendant’s testimony on direct examination, the prosecutor renewed his request to cross examine defendant and to call a gang expert in rebuttal regarding defendant’s gang membership and acquaintance with Joiner to support the prosecution’s claim that defendant’s alibi was not credible and defendant was a participant in the robbery. The trial court acknowledged the probative value of such gang evidence for the reasons the prosecution had indicated and, over defendant’s objection, ruled that gang evidence would be admissible for those limited purposes.
The trial court admonished the jury as to the limited purposes for which they could use the gang evidence. As to the gang evidence related to Joiner, the trial court gave the following admonition: “The evidence in this case of gang affiliation is being admitted for the limited purpose of determining the identity of the participants in the robbery that this case is all about. It should not be considered for any other purpose.” As to gang evidence related to defendant, the trial court gave the following admonition: “[E]vidence of gang affiliation is being admitted actually for two limited purposes. In this instance one is to determine the identity of who was involved in the robbery in this case. And it’s also being admitted so that the jurors can better evaluate the credibility of any of the witnesses in the case.” Later, in instructing the jury just prior to the beginning of deliberations, the trial court included CALJIC No. 2.09, which provides: “Certain evidence was admitted for a limited purpose. [¶] At the time this evidence was admitted you were instructed that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. [¶] Do not consider this evidence for any purpose except the limited purpose for which it was admitted.”
We review the trial court’s admission of the gang evidence for abuse of discretion. (People v. Carter (2003) 30 Cal.4th 1166, 1194.) For reasons discussed more fully below, we conclude that the gang evidence was both relevant and more probative than prejudicial, and that the trial court did not abuse its discretion in admitting the evidence. (People v. Smithey (1999) 20 Cal.4th 936, 973.)
Evidence Code section 210 defines “relevant evidence” as “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Only relevant evidence is admissible. (Evid. Code, § 350.) “The test of relevancy is whether the evidence tends, logically, naturally, or by reasonable inference to establish a material fact, not whether it conclusively proves it.” (People v. Yu (1983) 143 Cal.App.3d 358, 376.) “[A]ll relevant evidence is admissible unless excluded under the federal or California Constitution or by statute.” (People v. Scheid (1997) 16 Cal.4th 1, 13; see Evid. Code, §§ 350, 351.)
As to relevancy of the gang evidence, defendant was responsible for opening the evidentiary door through which gang evidence became relevant. Prior to trial, defendant wrote letters to the prosecutor and the FBI claiming that specific named gang members had carjacked him and were responsible for the robbery and that he was not involved. During the trial, defendant testified regarding the same matters. He cannot now complain that gang-related evidence was irrelevant. Accordingly, we conclude that the gang evidence was relevant to impeach defendant’s claims regarding the carjacking and strengthen the evidence that defendant was a participant in the robbery. (People v. Yu, supra, 143 Cal.App.3d at p. 376.)
Defendant also claims that admission of the gang evidence was error, in that the evidence was more prejudicial than probative. Evidence Code section 352 provides that a trial court has discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . .” The requisite prejudicial effect is not simply any “damaging” effect. (People v. Coddington (2000) 23 Cal.4th 529, 588, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Rather, it is an effect which “‘“uniquely tends to evoke a emotional bias against a party as an individual, while having only slight probative value with regard to the issues.”’” (People v. Smithey, supra, 20 Cal.4th at p. 974.)
A trial court has broad discretion in determining the admissibility of evidence, including such questions as relevance and undue prejudice. (People v. Smithey, supra, 20 Cal.4th at p. 973.) To overturn the trial court’s determination, it must be shown that the trial court abused its discretion, in that it made the determination in an arbitrary, capricious, or patently absurd manner which resulted in a manifest miscarriage of justice. (Evid. Code, § 353; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
In the instant case, substantial evidence in the record supports a conclusion that the trial court’s admissibility ruling was reasonable and not an abuse of discretion. First, the record shows that the trial court carefully considered the question of admissibility of the gang evidence under Evidence Code section 352 on more than one occasion during the trial proceedings and initially denied the prosecution’s request to admit it. The trial court ruled the gang evidence was admissible only after defendant voluntarily testified on direct examination regarding the gang-related carjacking that he claimed showed his absence from the robbery scene. His testimony covered essentially the same gang-specific information he included in his pretrial letters to the prosecutor and the FBI.
Secondly, the trial court recognized that the gang evidence was probative on the issues of defendant’s presence at and participation in the robbery and, collaterally, impeachment of his voluntary oral and written statements offered to show that he was not involved in the robbery. That defendant was a participant in the robbery was, of course, a material fact necessary to prove the elements of the crime with which he was charged. (Pen. Code, § 211.)
Defendant contends the gang evidence’s prejudicial effect, however, outweighed its probative value. Given that evidence of gang membership is potentially inflammatory, before allowing it to be admitted, the trial court should carefully scrutinize a request for its admission, using the balancing test in Evidence Code section 352 while taking into consideration the circumstances in the case. (People v. Williams (1997) 16 Cal.4th 153, 250.) The probative value of gang evidence for establishing identity has been recognized. “Although evidence of a defendant’s gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged[, ] . . . such evidence is admissible when relevant to prove identity or motive, if its probative value is not substantially outweighed by its prejudicial effect. [Citation.]” (People v. Carter, supra, 30 Cal.4th at p. 1194.)
To limit the potential prejudicial effect of the gang evidence, the trial court found it to be admissible for limited purposes. The purposes were to establish the identities of the participants in the robbery, which was essentially the same purpose for which defendant had provided gang information, and to evaluate the truthfulness of defendant’s oral and written statements regarding his claim of not being involved in the robbery, some of which written statements the trial court had previously ruled were admissions by defendant. At the time the evidence was admitted, the trial court admonished the jury about its limited use, and then, the jury instructions given at the close of the trial included CALJIC No. 2.09, that certain evidence was admitted for a limited purpose and the jury could not consider it for any other purpose.
In support of its decision to admit the gang-related evidence for identity purposes, the trial court cited People v. Hernandez (2004) 33 Cal.4th 1040, and People v. Carter, supra, 30 Cal.4th 1166. Hernandez dealt with admissibility of gang evidence where gang enhancements are alleged. There are no gang enhancements in the instant case. The Hernandez court also acknowledged, however, that gang evidence is “often relevant to, and admissible regarding, the charged offense, ” and cited cases in which it was relevant to identity. (Hernandez, supra, at p. 1049.) In Carter, gang evidence was held to be more probative than prejudicial and, thus, admissible to prove that the defendant was present with fellow gang members for whom the eyewitnesses’ identification was stronger than for the defendant. (Carter, supra, at p. 1195.) Similar circumstances were present in the instant case. Photographic identification of defendant by one of the victims, Aho, had been equivocal, but both victims had positively identified defendant’s fellow gang member, Joiner. The prosecution sought to have the gang evidence admitted to provide further evidentiary support that defendant was a participant.
In summary, the record is sufficient to support determinations that the gang evidence was relevant (People v. Yu, supra, 143 Cal.App.3d at p. 376) and that it was more probative than prejudicial for the identification and credibility limited purposes for which it was admitted (Evid. Code, § 352; People v. Carter, supra, 30 Cal.4th at pp. 1195-1196). Accordingly, we conclude that the trial court did not abuse its discretion and affirm its admission of the gang evidence. (People v. Smithey, supra, 20 Cal.4th at p. 973; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Gang Expert Testimony
Defendant contends that the trial court denied his constitutional rights to confront witnesses, due process and fair trial by erroneously admitting hearsay testimony by a gang expert to show that defendant and Joiner were members of the same gang. The People contend that defendant waived his right to assert such a challenge on appeal by failing to make such an objection at the trial. Defendant concedes that he failed to object to the hearsay testimony at trial, but claims the failure was due to ineffective assistance of counsel. We agree with the People that defendant waived his claim by his failure to object to the evidence. (Evid. Code, § 353; People v. Pinholster (1992) 1 Cal.4th 865, 935.) We reject defendant’s claim of ineffective assistance of counsel.
The gang expert testified as to his opinion that defendant and Joiner were active members of the same gang at the time of the robbery. The testimony to which defendant objects as hearsay was the gang expert’s explanation of the sources on which he relied in forming his opinion. The sources were limited to the California Gangs database and field information cards on which the data was originally recorded. The expert admitted he had no personal knowledge of the database and card information he used to determine that, near the time of the robbery, both defendant and Joiner were self-admitted gang members. He also acknowledged that he had not communicated directly with the officers who had reported the self-admissions and thus, presumably had personal knowledge of them.
In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), at pages 61 through 69, the United States Supreme Court “held that, pursuant to the confrontation clause of the Sixth Amendment of the United States Constitution, a hearsay statement that is ‘testimonial’ in nature cannot be used against a criminal defendant unless the declarant is available to testify at trial or has been available previously for defendant’s cross-examination, regardless of a judicial determination about its reliability.” (People v. Houston (2005) 130 Cal.App.4th 279, 295.) The confrontation clause, however, does not bar “the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” (Crawford, supra, at p. 60, fn. 9.)
In the instant case, the People assert that there was no Crawford error, in that the information given by the gang expert as the basis for his opinions was not ‘testimonial’ in nature and was not offered to establish the truth of the matter asserted. We agree. Recently, Division Two of our Court has stated that “Crawford was concerned with the substantive use of hearsay evidence that was admitted within an exception to the hearsay rule. It did not suggest that the confrontation clause was implicated by admission of hearsay for nonhearsay purposes.” (People v. Cooper (2007) 148 Cal.App.4th 731, 747.) “Hearsay relied upon by experts in formulating their opinions is not testimonial because it is not offered for the truth of the facts stated but merely as the basis for the expert’s opinion.” (Ibid.; accord, People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.) As an expert witness, the gang expert could properly testify as to the information on which his opinion was based, even if the information was hearsay, provided it was reliable hearsay. (Evid. Code, § 802; People v. Gardeley (1996) 14 Cal.4th 605, 618-619.) Information reported in writing by police officers and maintained for reference by the police department, such as field information cards from which the Cal Gangs database was generated, has been recognized as a permissible basis for another officer to rely on when forming an expert opinion. (Evid. Code, § 801; People v. Ruiz (1998) 62 Cal.App.4th 234, 241-242 and fn. 3.) The gang expert testified that the California Gangs database on which he was relying was from field information cards written by police officers from their personal knowledge and observations and routinely was used for reference by the police department. Accordingly, having determined that the hearsay was the basis for the gang expert’s opinion and was reliable, we conclude the hearsay was admissible. (People v. Ruiz, supra, at pp. 241-242 and fn. 3 [hearsay in gang expert’s testimony that the defendant and another person involved were both members of the same gang].) Inasmuch as there was no error in admitting the hearsay included in the gang expert’s testimony as evidence, defendant was not denied the effective assistance of counsel by the failure to object. (People v. Frank (1985) 38 Cal.3d 711, 730-731 and fn. 4.)
Sua Sponte Instruction on “Material”
The trial court instructed the jury with CALJIC No. 2.21.2, as follows: “If a witness is willfully false in one material part of his or her testimony, it is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point unless from all the evidence you believe the probability of truth favors his or her testimony in other particulars.”
Defendant contends the trial court erred by failing to define sua sponte the term “material” as used in CALJIC No. 2.21.2. Defendant claims that, pursuant to a trial court’s obligation to define sua sponte those terms which have a “‘technical meaning peculiar to the law’” (People v. Kimbrel (1981) 120 Cal.App.3d 869, 872), the trial court had a duty to define “material.” Defendant concedes that a trial court has no duty, however, to define a word sua sponte where it appears in its common usage. (Ibid.) The People claim that “material” appeared in the jury instruction in its common usage, and, therefore, the trial court did not err in not defining the term.
Both defendant and the People acknowledge that, in the only appellate opinion that deals with the issue presented here, the reviewing court concluded that “material” is used in CALJIC No. 2.21.2 in its ordinary meaning of “‘substantial, essential, relevant or pertinent, ’” and that the trial court did not err by failing to define it. (People v. Wade (1995) 39 Cal.App.4th 1487, 1494-1496.) Defendant discusses other opinions that concluded that the trial court had a duty to define sua sponte the term “material.” Defendant concedes, however, that they dealt with different factual circumstances and governing law than presented in Wade, supra, or the instant case. We conclude that the trial court had no duty to define sua sponte the term “material.” (Ibid.)
Upper Term Sentence
As the basis for sentencing defendant to the upper term for his conviction on count one, the trial court gave the following reasons: Defendant used a weapon; his violent conduct indicates a serious danger to society; he has numerous adult convictions and has served a prior prison term. Defendant contends that the upper term sentence was imposed in violation of his constitutional rights, in that it was the result of factual determinations made by the court, not the jury, under the preponderance of the evidence standard rather than the reasonable doubt standard.
The California Supreme Court recently held in People v. Black (2007) ___ Cal.4th ___ at page ___ that to the extent there are proper recidivist factors on which the trial court relied, a defendant is eligible to receive the upper term sentence without an additional jury finding, and imposition of that sentence does not violate his Sixth Amendment right to a jury trial. In the instant case, two aggravating factors used by the trial court as the basis for imposing the upper term sentence were defendant’s numerous prior convictions and his prior prison term. Defendant’s numerous prior convictions and service of a prior prison term are recidivist factors justifying imposition of the upper term sentence. (Id. at p. ___; People v. Yim (2007) 152 Cal.App.4th 366, 369; People v. Morton (2007) 152 Cal.App.4th 323, 336.) Defendant’s upper term sentence consequently is constitutional. (Black, supra, at p. ___.)
DISPOSITION
The judgment is affirmed.
We concur:
VOGEL, Acting P. J. ROTHSCHILD, J.