Opinion
D069143
01-18-2017
THE PEOPLE, Plaintiff and Respondent, v. RAMON WOODSON, Defendant and Appellant.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD262054) APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed. Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Charles C. Ragland, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted defendant Ramon Woodson of pimping, pandering, and providing false identification to a peace officer. The trial court sentenced defendant to six years in prison. Defendant contends the trial court erred by (1) admitting the content of text messages extracted from the prostitute's cell phone; (2) admitting testimony about gangs to explain certain language defendant used in conversations with the prostitute; and (3) denying a motion for mistrial that defendant made after the jury heard a recorded jail phone call in which the defendant stated he was the subject of two restraining orders. We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Thomas J. was working as a property manager for a motel in the Clairemont Mesa neighborhood of San Diego in May 2015. He had received police training on how to detect signs of prostitution. Based on that training, he suspected a motel guest, a woman we will refer to as T.G., was engaging in prostitution.
T.G. rented a room at the motel from mid-April to mid-May. A male who used the name "Patrick William" was listed as an authorized occupant. Thomas saw T.G. with a Black male at the motel on a daily basis. The man wore a black and orange San Francisco Giants baseball cap and always had a cell phone in his hand. T.G.'s motel room was initially next door to Thomas's, but he assigned her another room (room 233) after he constantly heard people coming and going from her room all night. A couple of days after this move, Thomas saw a Hispanic male enter room 233 and reemerge about 25 to 30 minutes later while putting on his shirt. This heightened Thomas's suspicions.
On May 13 Thomas visited a website that police had told him contained ads for prostitutes. He saw an ad for an escort that included a photo that looked like T.G. He sent a text message to the cell phone number listed in the ad indicating he had seen the ad and wanted to know where she was located. He received a response identifying his motel. He sent another message asking her rates, and received that information as well. Thomas then called 911.
Manuel Dominguez, a detective in the San Diego Police Department's vice unit, investigated the case. He confirmed T.G.'s identity through driver's license records, but was unable to identify "Patrick William." Dominguez found several recent online escort ads for T.G. with the telephone number Thomas had reported. Based on his training and experience, Dominguez believed T.G.'s ads were attempts to solicit prostitution.
Dominguez began an "in-call" sting operation, an operation in which an undercover law enforcement officer poses as a "John," contacts a suspected prostitute, and attempts to solicit an act of prostitution while under surveillance. Dominguez sent a text message from a police department cell phone to the number listed in T.G.'s escort ad asking if she was available for a date. T.G. responded, "Half hour, 100, full hour, 160." Dominguez responded, "An hour would be fun. Your place?" T.G. responded with the address for the motel in Clairemont Mesa. Dominguez texted he was on his way.
About 45 minutes later, with a surveillance team in place, Dominguez sent T.G. text messages to locate her at the motel. She replied with text messages asking him to wait and to park in the back. She twice texted asking, "Are you police?" Dominguez responded he was not, and indicated he was waiting behind the motel. As Dominguez continued texting T.G. from the motel parking lot, he spotted defendant walking toward the motel wearing a black and orange cap. Dominguez then spotted T.G. walking the same direction as defendant, about 40 to 50 feet behind him. Based on his training and experience, Dominguez recognized this as a "pimp walk" or "walking in trail," a practice that ensures a pimp is not "seen in public walking with his prostitutes as equals." Dominguez alerted his surveillance team.
Dominguez explained that prostitutes will often conduct a "cop check" by asking repeatedly if a person is a police officer or by asking the person to engage in intimate contact.
Another detective saw defendant approach room 233, which was on the second floor. Defendant stood outside the room, "positioned with his forearms out on the ledge of the balcony, just kind of waiting, looking around." A minute or two later, T.G. walked up to room 233 and went inside. Defendant followed her in and reemerged less than a minute later, resuming his position on the balcony. T.G. exited the room, spoke briefly with defendant, then walked away. About 10 or 15 seconds later, defendant walked off in the opposite direction, went downstairs, and sat facing back toward room 233.
Dominguez explained that pimps will often engage in "countersurveillance," looking around to spot an undercover surveillance team.
T.G. greeted Dominguez downstairs where they spoke briefly before going to room 233. Dominguez was wearing a wire, and a recording of his conversation with T.G. was played for the jury at trial. When Dominguez asked if T.G.'s rate included certain acts, she confirmed it was for "sex only." Dominguez disrobed and placed money on a table. When T.G. disrobed, Dominguez gave his team the arrest signal. Detective Joanna Makwana, another member of the vice unit, responded to the arrest signal and entered room 233. T.G. was naked from the waist down. Dominguez left the room to help locate defendant.
When the arrest signal was given, defendant ran through the parking lot. Dominguez, now in an unmarked police car with another detective, spotted defendant walking away from the motel, holding his black and orange baseball cap in his hand. Dominguez asked a uniformed officer in a marked patrol car to stop defendant. The officer got out of her patrol car, yelled at defendant to stop, and ran toward him. Defendant ran behind an SUV and crouched down as he reached for something. Defendant threw his cap and cell phone in the air, and they landed on the street. Officers detained defendant without further incident and recovered his cell phone on the street near him. The cell phone's screen was shattered and the back cover and battery had come off, but an officer was able to put the battery and back cover back into place.
The uniformed officer asked defendant for his name and date of birth. Defendant said his name was Kevin Tyrone Banks and provided a date of birth. A records check on that person showed a photograph that did not match defendant and advised of an outstanding arrest warrant. When the officer told defendant about the warrant, he admitted that was not him and gave his real name and date of birth. Defendant had $273 in cash on his person at the time of his arrest.
Meanwhile, in room 233, Makwana found a smartphone and an "older style" flip phone. With T.G.'s consent, Makwana looked through the text messages on the smartphone and saw messages that used language the detective "recognized from other investigations with regards to prostitution, [where] a prostitute . . . maybe would have a pimp involved." (We discuss these text messages in greater detail in part I.A., post.) In addition to the cell phones, Makwana found $160 in cash on a table, three packaged condoms, an empty package of condoms in the trash, five "Vanilla cards," a marijuana pipe, and a bag with male and female clothing.
Makwana described a "Vanilla card" as "effectively a gift card" that bears no personal identifying information and "can be re-upped" with more money. She said Vanilla cards are "very common[ly]" used by pimps and prostitutes to pay for social media advertising fees.
Defendant and T.G. were placed together in the back of a patrol car and their conversation was recorded and played for the jury. Defendant was aware their conversation was being recorded and advised T.G. of that fact. During portions of the conversation defendant and T.G. lowered their voices to the point where they could not be heard. During other portions, defendant spoke in a tone that Dominguez characterized as "matter-of-fact" and appeared to be giving T.G. instructions. Based on Dominguez's training and experience, he believed defendant and T.G. were speaking in code, which is common for pimps and prostitutes, and they appeared to be trying to align their stories.
Defendant and T.G. were separated at the police station. When Dominguez and another detective were escorting defendant to a restroom through the "sally port," defendant saw T.G. sitting about 60 feet away. He suddenly stopped, planted his feet, and leaned back as the detectives tried to move him forward. He shouted at T.G. in a loud, angry, and violent tone: "[T.G.], hey, what did you tell these motherfuckers? They're trying to put pimping and pandering on me." The officers tried to move defendant toward the restroom, but he tried to pull away from them and leaned back. He continued to yell toward T.G., saying, "Boo, you know you got my baby inside you. I know you didn't say anything. Truth." The officers restrained defendant in a seat-belted chair. He continued to yell toward T.G., who appeared to be in fear and responded in a shaken and scared voice. After defendant yelled "You didn't say anything" and "I know you wouldn't do that to me," Dominguez warned defendant he was "walking the border line of intimidating a witness" and needed to stop. Defendant continued trying to get T.G. to look at him; she lowered her head and appeared visibly scared. At one point defendant told T.G., "This ain't bool, baby. They're saying I'm pimping you out." Dominguez explained at trial that based on his training and experience, "individuals from particular gang sets, particularly the Blood gang set . . . . will use a particular vernacular" that "replace[s] the Cs with the Bs" to "avoid trying to use a C word" associated with their predominant rival gang, the Crips. Thus, "[i]nstead of saying, 'This isn't cool,' they'll say, 'This isn't bool.' " Surveillance cameras recorded the scene in the sally port without audio, and the recording was played for the jury.
Dominguez described the sally port as an area where police vehicles are parked, including a "prisoner transport unit" that takes female suspects to the women's county jail.
In violation of a restraining order in place, defendant spoke on the phone with T.G. several times while he was in jail. Recordings of two of those calls were played for the jury. In the calls, defendant and T.G. acted as though defendant was talking to his mother, though they frequently slipped up and it was apparent he was talking to T.G. Defendant indicated he had obtained the police reports in the case and accused T.G. of lying when she said she did not tell the police anything. Defendant frequently used the term "Blood" and sometimes referred to T.G. that way. Defendant also called T.G. a "faggot," which Dominguez explained is a derogatory term in the subculture of pimping and human trafficking that is "used to demean and chastise the prostitute[,] basically to lower her self-esteem again, to put her back in her place." Dominguez opined defendant was attempting to coach T.G. via the calls.
The People charged defendant with one count each of pimping (Pen. Code, § 266h, subd. (a)), pandering (Pen. Code, § 266i, subd. (a)(6)), attempting to dissuade a witness from reporting a crime (Pen. Code, § 136.1, subd. (b)(1)), and providing false identification to a peace officer (Pen. Code, § 148.9, subd. (a)). The People also alleged defendant had suffered a prison prior. (Pen. Code, §§ 667.5, subd. (b), 668.) The jury convicted defendant of pimping, pandering, and providing false identification to a peace officer, but was unable to reach a verdict on the count for attempting to dissuade a witness. The court declared a mistrial as to that count, and it was later dismissed on the People's motion. The trial court found true the prison prior allegation, and sentenced defendant to a total term of six years in prison.
T.G. was never charged with prostitution in connection with this case. She did not appear at defendant's trial. However, she appeared at his sentencing hearing and denied defendant was her pimp. When the court asked why she did not appear at trial (which began August 4, 2015), T.G. explained she had been hospitalized due to a miscarriage. This potentially contradicted defendant's statement to his probation officer that T.G. had given birth to his child in July 2015.
DISCUSSION
I. Text Messages
Defendant contends the trial court erred by admitting the content of the text messages from T.G.'s phones because they were inadmissible hearsay. We review this claim for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725.) We find no such abuse.
A. Background
A police detective trained in cell phone forensics and data extraction extracted data from the smartphone and flip phone recovered from room 233. He downloaded several hundred text messages (both outgoing and incoming) from the smartphone into a single exhibit (Exhibit 26). A single outgoing text message from the flip phone was downloaded as a separate exhibit (Exhibit 27).
Before trial, defendant moved in limine to exclude "any and all text messages and phone calls that are purportedly from a 'Ramon' unless there is proper authentication regarding the source of such messages and communications." The court held a hearing under Evidence Code section 402 and found the text messages were sufficiently authenticated. Defendant does not challenge this finding on appeal.
All undesignated statutory references are to the Evidence Code.
On a separate but related issue, the People moved in limine to deem admissible the statements made by defendant and T.G. during their recorded conversations in the back of the patrol car and in jail phone calls. Defendant objected on hearsay grounds. The prosecutor argued defendant's own statements were admissible as party admissions, and T.G.'s statements were admissible to provide context for defendant's statements. The trial court agreed defendant's own statements were admissible to prove the truth of the matter stated, but found T.G.'s statements were admissible only to provide context for defendant's statements and not for their truth. The court offered to provide a limiting instruction to this effect upon request by defense counsel, but observed that "[s]ometimes counsel doesn't want to do that for other tactical reasons. So I'm going to leave it in your hands." Later during trial, defense counsel confirmed she made the tactical decision not to request such a limiting instruction. Defendant does not challenge the admissibility of these recordings on appeal; however, we discuss the issue because it provides context for his challenge to the court's admission of the text messages.
During trial, after the detective explained how he extracted the text messages contained in Exhibits 26 and 27, defense counsel objected to their admissibility on hearsay grounds, arguing the exhibits did not fall within the business records exception. The prosecutor responded primarily that the messages were admissible because they were electronic records whose authenticity had been established. He did not directly address the business records exception. The trial court overruled the defense objection without explanation and admitted the exhibits without expressly offering to give a limiting instruction upon request.
As Makwana began testifying about the text messages contained in Exhibits 26 and 27, defense counsel objected on hearsay grounds, but the court overruled the objection. Thereafter, Makwana testified at length about the messages.
Many of the text messages were between T.G.'s phone and a contact named "Ramon," and the participants referred to one another in the messages as "[T.G.]" and "Ramon." Makwana testified the messages used language that she "recognized from other investigations with regards to prostitution, [where] a prostitute . . . maybe would have a pimp involved." She explained that when a pimp and prostitute communicate via phone, "the priority of the pimp is to know how much money is being made." Makwana found messages she interpreted as T.G. telling defendant how much money was made from an act of prostitution, such as "Done. He's getting dressed. 100." When T.G. texted "Done" and "60" in response to one of defendant's inquiries, defendant responded, "Okay. We're going to kill the late night." (Italics added.) Makwana interpreted this to mean that by "working through the night as a prostitute, they're going to earn a lot of money." (Italics added.)
Makwana noted that some of the messages were with third parties and related to prostitution negotiations (e.g., stating the prices for specific sex acts and identifying the location of the Clairemont Mesa motel).
T.G. also texted defendant to inform him she had transferred money onto her "card" and told him he could use it. On another day, defendant texted T.G., "Hurry up [and] transfer it [T.G.]" In another message that day, defendant texted, "[You] can send the card number[s]."
Makwana addressed a text exchange between defendant and T.G. regarding "the blade," which Makwana explained can refer to "an area in any city that is very well known for being an area where prostitutes work." After T.G. texted that she's "had barely [any] action," and, "No money[,] no call[,] nothing[,] but [defendant] [can] waste it on gas[] to a . . . fkn show we have [no money] for," T.G. wrote: "Then [answer] me this[:] so if I make no money I have to walk the blade with a warrant??? Right . . U see how u [don']t get it[?] [You're] foul." Defendant responded, " We gonna get it [back]." (Italics added.) Makwana explained that in the prostitution subculture this is a reference to getting money back.
Dominguez had explained earlier in the trial that walking the blade as a street prostitute "is a thousand times more dangerous" than working out of a hotel due to the increased risk of encountering law enforcement or being violently co-opted by a "gorilla pimp."
Makwana testified about other texts from T.G. to defendant that she believed indicated a prostitute-pimp relationship. For example, T.G. asked defendant to supply her with condoms, which is generally the pimp's responsibility. T.G. also asked defendant, "Can you post two to three CL on top of what I just posted, please? Sorry." Makwana interpreted this as T.G. asking defendant to post prostitution ads on Craigslist for her so that her listings would appear at the top of the site. Makwana said it is common for pimps to manage their prostitutes' online advertisements. Defendant responded, "Why would I be mad? We're going to be okay. How much money did you get from your call[?]" T.G. responded, "100." Defendant responded, "Okay."
Makwana explained that a "call" is a sex act performed by a prostitute.
Makwana interpreted another text exchange as defendant boasting that his prostitutes are always successful. Defendant texted, "How much money you got, [T.G.]?" She replied, "I have $260, [defendant]. Why?" Defendant replied, "Because I asked . . . . And just like I told you, I know that we would never not get that money. I didn't make a loser. I never have."
B. Applicable Legal Principles
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (§ 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (§ 1200, subd. (b).)
One exception to the hearsay rule is for a defendant's own statements. (§ 1220 ["Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party . . . ."]; see People v. Charles (2015) 61 Cal.4th 308, 323 (Charles) ["Thus authenticated as having been written by defendant, any inculpatory statements in the letter were admissible as party admissions."].) Statements admitted under this exception may be used to prove the truth of the matter stated. (See Charles, at p. 323; 1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 92, p. 916.)
The hearsay statements of a person with whom a defendant is communicating are admissible to give context or meaning to a defendant's statements admitted under section 1220. (People v. Turner (1994) 8 Cal.4th 137, 188-189 (Turner), disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) However, statements admitted for this purpose are not admitted for their truth. (Ibid.)
Some statements do not constitute hearsay because their truth or falsity is irrelevant; it is the making of the statement at all that is relevant. Thus, for example, the hearsay rule does not apply to directives or requests. (People v. Jurado (2006) 38 Cal.4th 72, 117 ["The request for the gun, by itself, was not hearsay . . . . Because a request, by itself, does not assert the truth of any fact, it cannot be offered to prove the truth of the matter stated."]; People v. Reyes (1976) 62 Cal.App.3d 53, 67 ["A declarant's words of direction or authorization do not constitute hearsay since they are not offered to prove the truth of any matter asserted by such words."].) Similarly, in cases involving prostitution, the hearsay rule does not apply to communications that constitute the negotiation of sex acts. (People v. Dell (1991) 232 Cal.App.3d 248, 262 ["Words of solicitation for prostitution are essentially words of offer and acceptance in the formation of a contract for sex in exchange for money."].) In this context, the statements are not offered for their truth; that is, "the content of the words spoken is irrelevant, the significance is in the fact the words were uttered at all. [Such] statements could be admitted as 'operative facts' or 'verbal acts' because they demonstrated an issue in the case: that the escorts were making verbal offers to enter into contracts of prostitution . . . ." (Ibid.)
"When evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." (§ 355.) Failing to request a limiting instruction when entitled to one forfeits the issue on appeal. (People v. Sanchez (2016) 63 Cal.4th 411, 460 (Sanchez).)
C. Analysis
The trial court did not abuse its discretion in admitting Exhibits 26 and 27 or by allowing Makwana to testify regarding their content. Defendant concedes, as he must, that his own text messages may have been admissible under the party opponent exception to the hearsay rule. (§ 1220.) He also concedes that some of T.G.'s texts—he does not specify which—"may have been admissible to provide context to [defendant]'s texts." (See Turner, supra, 8 Cal.4th at pp. 188, 190.) And he also concedes that "some of the texts in which [T.G.] allegedly negotiated sex acts with unknown texters . . . may have been admissible as operative facts or [as] verbal acts . . . ." (See People v. Dell, supra, 232 Cal.App.3d at p. 262.) Thus, the gravamen of defendant's challenge on appeal is not that all the texts were inadmissible altogether, but rather, that not all the texts were admissible for their truth. In other words, the texts were "admissible . . . for one purpose and . . . inadmissible . . . for another purpose . . . ." (§ 355.) In that event, it was incumbent upon defendant to request a limiting instruction advising the jury that certain of the text messages were not to be considered for their truth. (§ 355; Sanchez, supra, 63 Cal.4th at p. 460.) His failure to do so forfeits the issue on appeal. (Sanchez, at p. 460.)
"The very settled rule of appellate review is a trial court's order/judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record." (People v. Davis (1996) 50 Cal.App.4th 168, 172.)
To forestall any claim that defendant's trial counsel was constitutionally inadequate (see People v. Mattson (1990) 50 Cal.3d 826, 854), we note it is not apparent that defense counsel's failure to request such a limiting instruction was not the result of a tactical decision (see People v. Jones (2003) 29 Cal.4th 1229, 1254). As noted, in the closely analogous context of defendant's communications with T.G. in the patrol car and in the jail phone calls, the trial court indicated it would give a limiting instruction if defense counsel requested one. However, the court observed that, for tactical reasons, defense counsel may not wish to request one. Indeed, defense counsel confirmed that to be the case. It is reasonably likely counsel likewise did make (or would have made) the same tactical decision not to request a limiting instruction in the similar context of the text messages. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1053 [" 'A reasonable attorney may have tactically concluded that the risk of a limiting instruction . . . outweighed the questionable benefits such instruction would provide.' [Citation.]"].)
Because the trial court properly admitted the text messages as party admissions, for context, or as verbal acts/operative facts, we need not address whether the business records exception to the hearsay rule also applies. (See Charles, supra, 61 Cal.4th at p. 324 ["a trial court's ruling, if correct on any ground, will be affirmed"].)
II. Gang Evidence
Defendant contends the trial court erred by admitting certain gang-related testimony. He maintains the "evidence was inadmissible under . . . section 352 because it was highly prejudicial and either completely irrelevant or so minimally relevant to tangential issues in the case that its minimal relevance was outweighed by any probative value." The Attorney General counters that (1) defendant did not preserve the issue for appeal because he did not object on this ground at trial, and (2) alternatively, the trial court did not abuse its discretion in admitting the gang evidence because it was relevant to the count of attempting to dissuade a witness. We agree defendant forfeited this issue on appeal. Even if we were to reach the merits, we would find no error.
A. Background
At the outset of Dominguez's trial testimony, the prosecutor asked about his experience before joining the vice unit and whether he ever encountered gang activity. Dominguez responded that he previously worked patrol in the "Mid City" area and "responded to numerous assaults with deadly weapons involving gang violence, gang-on-gang violence. Responded to homicides involving gang or drug turf wars. I also made traffic stops, field interviews of numerous gang members and numerous associates of gang members." When the prosecutor asked Dominguez to elaborate on field interviews, defense counsel objected on relevance grounds, explaining: "I understand that there was some gang language used [in this case], but I just think it's irrelevant, and at this point, it's stuff the jury doesn't necessarily need to hear. And I don't think he needs to talk about [field interviews] to form an opinion on what gang language means." The trial court sustained the objection with the following explanation of the relevance of gang evidence: "[W]e haven't gotten to the gang language, but I believe we're going to get there. I'm going to sustain the objection as far as, at this particular point, it's not relevant. But as far as getting into it eventually, yes. I will be allowing it . . . . If there's an objection, I'll just rule on it. But I'm spending some time having a discussion about it now so we don't have to come back. If I start sustaining or overruling objections, you've had an opportunity to let me know your thoughts on it."
Later, the prosecutor asked Dominguez whether there has "been a marked transition from criminal street gangs that were previously primarily deriving profits from narcotics transactions to now more illicit sexual transactions." Defense counsel did not object. Dominguez responded, "Yes. We are starting to see and identify that particular trend."
Moments later, Dominguez testified that he is familiar with the predominant Black street gang sets in San Diego County (the Bloods and Crips), and is familiar "with the terminology that gang members may use in their common parlance," including to identify their affiliation with a particular gang set. Defense counsel did not object to this testimony.
When Dominguez was later explaining the dangers associated with working as a street prostitute versus working out of a hotel, he explained that law enforcement has "come to understand that gangs will actually not see each other's colors or boundaries when they're conducting that type of business. So you may be a Crip gang member or a Blood gang member, but you guys will not engage each other as long as the girls are walking and working and making you money. You won't engage each other in that. And there's almost an understanding where they come into that . . . ." Defense counsel did not object to this testimony.
Later, the prosecutor asked Dominguez to explain the role of the surveillance team on the in-call operation, adding that some members of that team would be testifying later in the trial. Dominguez responded, "[B]ecause of our training and experience and the dangers associated with prostitution, we have encountered pimps. Many of the pimps we have encountered have been gang members, and we've known through our training that, many times, they're armed and dangerous. And so what we will do is . . . look[] for any threats to that operator in the event they figure out he is police . . . ." Defense counsel did not object to this testimony.
The culmination of Dominguez's testimony about his familiarity with gangs was the prosecutor's questioning about defendant's use of certain gang language. As noted above, Dominguez explained defendant's use of the word "bool." The prosecutor then asked, "Now, when an individual is making statements like that, 'bool' or something in reference to possible gang affiliation or association, is that something that, based on your experience, would lead to the intimidation of witnesses?" Without objection, Dominguez responded, "Yes."
Finally, Dominguez testified, again without objection, that during recorded jail calls defendant repeatedly said and referred to T.G. as "Blood."
B. Forfeiture
Defendant forfeited his challenge to the admissibility of the gang evidence by failing to object to it at trial. "[S]ection 353, subdivision (a), provides that a court may not reverse a judgment based on error in admitting evidence unless 'an objection to or a motion to exclude or to strike the evidence . . . was timely made and so stated as to make clear the specific ground of the objection or motion.' 'In accordance with this statute, [the California Supreme Court has] consistently held that the "defendant's failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable. [Citations.]' [Citation.]" (People v. Valdez (2012) 55 Cal.4th 82, 130.) " 'Although no "particular form of objection" is required, the objection must "fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling." [Citation.]' " (Ibid.) Although defendant initially objected on relevance grounds to the question about field interviews of gang members, he did not object on any ground to the substantive questioning about gang culture and language. Thus, he forfeited the challenge on appeal.
Defendant argues his failure to object did not forfeit the issue because an objection would have been futile. (People v. Anderson (2001) 25 Cal.4th 543, 587 ["Counsel is not required to proffer futile objections."].) We disagree. Although the trial court indicated it "will be allowing" testimony about gang language, the court also indicated defense counsel was free to continue objecting, explaining: "If there's an objection, I'll just rule on it. But I'm spending some time having a discussion about it now so we don't have to come back. If I start sustaining or overruling objections, you've had an opportunity to let me know your thoughts on it." The fact the trial court indicated it might sustain objections to gang-related testimony makes clear that it would not have been futile to object to it. (People v. Holloway (2004) 33 Cal.4th 96, 133 ["A tentative pretrial evidentiary ruling, made without fully knowing what the trial evidence would show, will not preserve the issue for appeal if the appellant could have, but did not, renew the objection or offer of proof and press for a final ruling in the changed context of the trial evidence itself."].)
Alternatively, defendant argues his counsel rendered ineffective assistance by failing to object to the testimony regarding gangs. We disagree. To establish a claim of ineffective assistance of counsel, a defendant must show: (1) trial counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) the defendant suffered prejudice, i.e., there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 (Strickland); People v. Carter (2003) 30 Cal.4th 1166, 1211 (Carter).) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; Carter, at p. 1211.) A counsel's deficient performance results "in prejudice to defendant in the sense that it 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " (People v. Andrade (2000) 79 Cal.App.4th 651, 659-660.) "A defendant must prove prejudice that is a ' "demonstrable reality," not simply speculation.' [Citation.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
In examining whether a defendant met his burden on the first prong, courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." (Strickland, supra, 466 U.S. at p. 689; see People v. Hinton (2006) 37 Cal.4th 839, 876.) We will not find ineffective representation "unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.) " 'Whether to object to inadmissible evidence is a tactical decision; because trial counsel's tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel's incompetence.' " (People v. Williams (1997) 16 Cal.4th 153, 215.)
Defendant cannot establish either prong because, as discussed below, it was within the trial court's discretion to admit the gang-related testimony. Thus, counsel could reasonably have decided not to object to the evidence, and failing to do so was not prejudicial because the court likely would have overruled any objection.
C. Merits
Even if we were to reach the merits of defendant's objection to the gang evidence, we would find no abuse of discretion.
1. Applicable Legal Principles
"Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is broadly defined as that having a 'tendency in reason to prove or disprove any disputed fact that is of consequence' to resolving the case. (Evid. Code, § 210.)" (People v. Bryant (2014) 60 Cal.4th 335, 405.)
Gang-related evidence is generally admissible if it is relevant to a material issue in the case, is not more prejudicial than probative, and is not cumulative. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167.) "[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) For example, "[e]vidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (Ibid.) "[E]vidence of a defendant's gang membership . . . should be carefully scrutinized by trial courts" because it "creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged." (People v. Carter, supra, 30 Cal.4th at p. 1194.)
A trial court has discretion to exclude relevant evidence "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) "The prejudice which exclusion of evidence under . . . section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.)
We review the trial court's admission of gang evidence under section 352 for an abuse of discretion. (People v. Gonzalez (2012) 210 Cal.App.4th 724, 736; see People v. Peoples (2016) 62 Cal.4th 718, 743.)
2. Analysis
The trial court did not abuse its discretion in admitting limited gang-related testimony. The evidence was relevant and highly probative to the charge that defendant attempted to dissuade T.G. from reporting a crime. Indeed, Dominguez testified that based on his experience, a suspect's use of gang vernacular or indication of affiliation with a gang "would lead to the intimidation of witnesses." Dominguez's abstract recitation of the types of gang-related crimes he responded to while working patrol in the "Mid City" area was relevant to establish the foundation for his expert opinions and was not specific to defendant or any gang with which he may have been affiliated. Dominguez's discussion of gang involvement in pimping was relevant to explain the meaning of T.G.'s reference to "the blade" and to illuminate her likely awareness of the dangers associated with it. It also explained the role of the surveillance team members who testified at trial. Thus, the gang-related evidence was relevant for many reasons.
The prosecutor was aware defendant was affiliated with the Lincoln Park gang, but never elicited that information at trial.
Indeed, certain of defendant's arguments on appeal—that "it appears as if ["Blood"] was used by [defendant] to mean that [T.G.] was close to him like family or blood" or to further the ruse that "he was talking to his mother during the jail phone conversations," and that gang vernacular "would do nothing to intimidate a non-gang member, such as [T.G.] because they would have no way to know that this meant the speaker was a gang member"—make this evidence all the more necessary to establish that T.G. likely interpreted defendant's comments as a threat.
This multifaceted relevance was not substantially outweighed by the risk of undue prejudice. The cases defendant cites do not persuade us otherwise. In People v. Avitia (2005) 127 Cal.App.4th 185, the risk of prejudice from the "quite limited" gang evidence (the fact defendant had gang graffiti in his room) necessarily outweighed its probative value because the appellate court found it "lacked any probative value" (id. at p. 194, italics added) and was "completely irrelevant to any issue at trial" (id. at p. 193). By contrast, all the gang evidence here had probative value and was relevant to the charge that defendant attempted to dissuade T.G. from reporting a crime.
Defendant's reliance on People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran) is also misplaced. That case addressed "one of those rare and unusual occasions where the admission of [gang] evidence . . . violated federal due process and rendered the defendant's trial fundamentally unfair." (Id. at p. 232, italics added.) The prosecutor introduced evidence of the defendant's membership in a gang, but engaged in "overkill" by "consum[ing] the better part of an entire trial day" and 70 pages of the reporter's transcript with one police officer's testimony about the gang. (Id. at p. 228 & fn. 10.) The testimony identified other members of the defendant's gang, described their unrelated criminal activity, revealed a threat the gang had made in its graffiti to kill police officers, and referred to the Mexican Mafia, all of which was irrelevant to the underlying charges. (Id. at pp. 227-230.)
The Albarran court's split decision reversing the defendant's conviction was based on the existence of "a real danger that the jury would improperly infer that whether or not [the defendant] was involved in [the charged offenses], he had committed other crimes, would commit crimes in the future, and posed a danger to the police and society in general and thus he should be punished. Furthermore, [the] gang evidence was extremely and uniquely inflammatory, such that the prejudice arising from the jury's exposure to it could only have served to cloud their resolution of the issues." (Albarran, supra, 149 Cal.App.4th at p. 230, fn. omitted.) Therefore, "[g]iven the nature and amount of [the] gang evidence at issue, the number of witnesses who testified to [defendant's] gang affiliations and the role the gang evidence played in the prosecutor's argument," the majority of the appellate panel was not convinced beyond a reasonable doubt that the error did not contribute to the verdict. (Id. at p. 232.)
Unlike in Albarran, the gang evidence here was neither "irrelevant to the underlying charges"—it bore directly on the charge that defendant attempted to dissuade T.G.—nor "extremely and uniquely inflammatory"—it was nonspecific and general. (Albarran, supra, 149 Cal.App.4th at pp. 228, 230.) Dominguez's testimony regarding gangs was quite limited, did not specifically identify defendant as a member of a particular gang set, and did not identify specific unrelated crimes that other members of his gang committed. Moreover, Dominguez's abstract description of crimes he previously responded to were not as inflammatory as the references in Albarran to the Mexican Mafia or threats to kill the police. In short, this is not "one of those rare and unusual occasions where the admission of [gang] evidence . . . violated federal due process and rendered the defendant's trial fundamentally unfair." (Id. at p. 232.)
III. Motion for Mistrial
Defendant contends the trial court erred by denying his motion for a mistrial after the jury heard him say in a recorded jail call that T.G. and another woman had restraining orders against him. We are not persuaded.
A. Background
When defendant was arraigned, the trial court issued a restraining order prohibiting him from contacting T.G.
During trial, about 20 minutes into an approximately 28-minute-long recording of one of defendant's jail phone calls to T.G. (made in violation of the restraining order), defendant makes the following references to restraining orders against him: Defendant: "Make sure, make sure Brittney knows to text message, to e-mail me ASAP and don't listen to what nobody says but me. You know what I'm sayin'? [¶] . . . [¶] Period. And then what they asked me right now. They asked me for it and that's why I just gave 'em— I had to give 'em [T.G.]'s number and I had to give 'em Brittney's number because they tried so hard right now. They're like, 'Uh, we're trying to get in contact with the people who have a . . .' whatchamacallit on me. You know what I'm sayin'? They're trying to get a contact with people . . . ." T.G.: "Who have what?" Defendant: "Restraining orders on him. You know what I'm sayin'? The only people who got a restraining order on me. You know what I'm sayin'? A temporary restraining order on me is my mother-fuckin' uh Brittney. You know what I'm sayin'? Which is not on there no more and yours which is not on there no more. You know what I'm sayin'?"
[¶] . . . [¶] . . .
"I need my baby momma to write a letter. You know what I'm sayin'? . . . . Uh my baby momma never asked for no restraining order against me. It was the, there was an altercation while we was yelling, you know what I'm sayin'. The next door neighbors called the cops and then they put a restraining order on me through the police . . . not, not her putting a restraining order on."
During playback, defense counsel objected that the references to the restraining orders had no probative value and were unduly prejudicial. She moved for a mistrial, explaining, "I don't think an admonition would work at this point. You can't unring the bell."
The trial court denied the motion for mistrial. The court found the restraining order protecting T.G. was "relevant, probative to the intimidation aspect of" the witness-dissuasion count because it was in effect when defendant called her. However, the court found "[t]here's some prejudice" from the reference to the restraining order protecting Brittney. But the court concluded the prejudice was not "to the degree" that would warrant granting a mistrial. The court offered to strike the reference to Brittney's restraining order, but defense counsel declined for tactical reasons.
B. Applicable Legal Principles
" 'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' [Citation.]" (People v. Collins (2010) 49 Cal.4th 175, 198.) Accordingly, " '[w]e review a ruling on a motion for mistrial for an abuse of discretion, and such a motion should be granted only when a party's chances of receiving a fair trial have been irreparably damaged.' [Citation.]" (People v. Peoples, supra, 62 Cal.4th at p. 802.)
C. Analysis
The trial court did not abuse its discretion in denying defendant's motion for mistrial. As to the restraining order protecting T.G., the court found the evidence was relevant and probative with respect to the charge that defendant attempted to dissuade T.G. from reporting a crime. Defendant argues the restraining order violation is irrelevant to this count because the alleged conduct occurred the day of his arrest, not weeks later when he called T.G. from jail. However, the trial court could reasonably have concluded that defendant's subsequent violation of the restraining order constituted circumstantial evidence of his intent vis-à-vis dissuading T.G. on the day of his arrest.
Defendant similarly argues his violation of the restraining order has no probative value because he stated during a portion of the recorded jail call that he thought the order had expired and thus he was not violating it. This argument is unavailing because it credits defendant's self-serving assertion and ignores the fact he told T.G. during the call that their calls were being recorded and that he and T.G. were engaged in a ruse to conceal the fact he was communicating with her.
As to the restraining order protecting Brittney, the trial court offered to strike the testimony but defense counsel declined for tactical reasons. Any prejudice was mitigated by the fact the jury heard defendant's explanation in the recording that the restraining order was issued only because of a yelling altercation and not because Brittney requested one due to domestic violence.
In short, the trial court did not abuse its discretion in concluding that defendant's seconds-long reference to two restraining orders during a 28-minute recording did not irreparably damage his right to a fair trial.
DISPOSITION
Affirmed.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.