P. v. Alonzo

Filed 9/28/06 P. v. Alonzo CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Francis J. Hourigan, III, Judge. Modified and, as so modified, affirmed.

J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Joseph P. Lee and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

INTRODUCTION

Defendant and appellant Gabriel Alonzo appeals from the judgment entered following a jury trial that resulted in his conviction for willful, deliberate, premeditated attempted murder. The trial court sentenced Alonzo to a term of life with the possibility of parole, plus 35 years to life in prison.

Alonzo contends the trial court erred by: (1) admitting gang evidence; (2) allowing impeachment of a defense witness; and (3) imposing a 10-year-term on the gang enhancement. We agree that the trial court erred by imposing a 10-year sentence rather than a 15-year parole eligibility minimum on the gang enhancement, and modify the judgment accordingly. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. People’s case.

Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence presented at trial established the following. Alonzo was a member or associate of the Crazy Riders street gang, an active gang which claimed territory in the area of Vermont and 97th Streets in Los Angeles. Alonzo’s moniker was “Gato.” Alonzo’s brother Carlos was a Crazy Riders member with the moniker Capus. Miguel Rodriguez owned two auto body shops, both named “Poncho’s,” in Crazy Riders territory. Rodriguez and his five sons were members of the Crazy Riders gang, and Rodriguez’s shops were Crazy Riders “strongholds.” Rodriguez’s son Morro was a “shot caller,” i.e., a well-established gang member.

(i) February 28, 2002 incident.

On February 28, 2002, Damon Donaldson, his girlfriend Lashawnda Robertson, and Robertson’s mother, Linda Davis, were in Donaldson’s residence when they heard a crashing noise emanating from the carport area. Outside, Donaldson discovered his car window had been broken and clothing, compact discs, and a cellular telephone had been taken from the vehicle. Donaldson saw three Hispanic youths running away. Donaldson followed the boys in his car, while Robertson and her mother followed them on foot. The youths were joined by other youngsters and headed to one of Rodriguez’s nearby auto body shops.

Donaldson confronted the youths outside the auto body shop and demanded return of his property. Four or five Hispanic men, including Alonzo, Morro, and other Rodriguez brothers, exited the shop. Morro told Donaldson that the youths did not have his property. Donaldson continued to argue with Morro. Morro retrieved a gun from the shop and handed it to Alonzo, who pointed it at Donaldson. Morro and some of the other men told Alonzo to shoot Donaldson, but Alonzo did not. Meanwhile, Davis had telephoned police. When Robertson yelled that Davis was calling police, Alonzo handed the gun back to Morro and the men jumped into a van and drove off. After the incident, Crazy Riders graffiti was placed on Donaldson’s residence.

(ii) May 30, 2002, shooting.

Approximately three months later, on May 30, 2002, Donaldson passed Rodriguez’s other auto body shop while running an errand. He saw several Hispanic men, including Alonzo and Morro, standing in front of the shop. Donaldson asked Alonzo, “Aren’t you the guy that pointed that gun at me?” The men huddled together, and Donaldson yelled his question again. Suddenly the group parted and Alonzo began firing a gun at Donaldson. Donaldson ran, but was shot eight times.[1] Donaldson was transported to a hospital, where he underwent surgery. When Donaldson returned home after spending over a month in the hospital, “Crazy Riders” graffiti and gang names were written on his residence. As a result, he moved in with a relative the next day.

(iii) Identification of Alonzo as the shooter.

Immediately after he was shot, Donaldson told Robertson that the same individual who pointed the gun at him in the earlier encounter was the shooter. Donaldson subsequently identified Alonzo in a 12-page “mug book” which contained photographs of 136 individuals. Donaldson recognized Alonzo as soon as he saw the photograph, and indicated he was 100 percent certain Alonzo was the shooter. Donaldson again identified Alonzo as the shooter in a six-pack photographic array containing other photographs. Robertson failed to identify anyone in either the photographic lineup or the mug shot book. Both Donaldson and Robertson positively identified Alonzo as the shooter at trial.

(iv) Additional gang evidence.

Officer Tony Fitzsimmons and Sheriff’s Deputy Michael Valento testified as gang experts for the prosecution. The Crazy Riders gang was “involved in” committing “serious violent felonies.” Gang members identified themselves with the letters “CRSX3” and typically wore blue, baggy clothing and had shaved heads. The graffiti found on Donaldson’s residence after the shooting was Crazy Riders graffiti.

To join a gang, a person was generally “jumped in” (beaten for 13 seconds by other gang members), and had to complete a “mission” (a violent crime) for the gang. After completing the “mission” and being jumped in, a person became a “full-fledged” gang member and received a gang name. A gang associate was a person who engaged in criminal activity with the gang but had not yet been jumped in. Alonzo was documented in the police computer as a Crazy Riders member. Alonzo also wore a belt with the initial “C” on the buckle, indicating Crazy Riders membership.

A gang member might show loyalty to the gang by committing acts of violence, extorting “rent” money from narcotics dealers, and engaging in similar activities, known as “putting in work.” “Respect” was “the ultimate thing” in gang culture. “Disrespecting” a gang or gang member usually precipitated violence. When presented with a hypothetical, Officer Fitzsimmons opined that yelling at Crazy Riders members was a sign of disrespect to the gang. Alonzo’s failure to shoot under the circumstances of the February 28 incident would be perceived by gang members as a sign of weakness. “It’s a level of disrespect. That he wasn’t able to show his allegiance to the gang. That he wasn’t able to be relied upon in that situation.” Fitzsimmons opined that if given a second chance, Alonzo would have to shoot in order to prove himself.

Alonzo’s jail cell was searched in March 2003. Letters written by Alonzo were obtained in the search. The letters contained Crazy Riders lingo and the names of various Crazy Riders members. “CRSX3” and the monikers “Gato” and “Capus” were written on the cell wall.

b. Defense case.

The crux of Alonzo’s defense was mistaken identity. During the People’s case, Donaldson testified that approximately two days after he was released from the hospital, he saw an individual he believed to be Alonzo in the passenger seat of a white Ford Probe in an Inglewood Target store parking lot. Donaldson recorded the license plate number. Although Donaldson transmitted the information to police, the police department failed to follow up on it. When the information came to light during trial, Detective Valento determined the Ford was registered to Genaro Koh. Undisputed evidence showed Koh was not a Crazy Riders gang member and had no involvement in the shooting. When shown a photograph of Koh, Donaldson did not recognize him.

Rodriguez’s secretary, Griselda Castaneda, testified that she had observed the shooting, and Alonzo was not the shooter.[2]

Alonzo denied being “jumped in” to the Crazy Riders gang or shooting Donaldson. Alonzo’s brother-in-law testified that Alonzo was not a gang member and was a non-violent person. Both Alonzo and his sister testified that they did not have a brother named Carlos. Alonzo’s “C” belt buckle had been a birthday gift; the “C” stood for Alonzo’s father’s last name, “Canche.” Alonzo’s nickname “Gato” was not a gang moniker, but had been given to him when he was a child because he liked to wear a sweater with a kitten motif.

Alonzo wrote “CRSX3”, and gang monikers “Gato” and “Capus,” on his county jail bunk on the advice of a friend who was a Crazy Riders gang member, in order to avoid violence while in jail.

A criminology professor opined Alonzo was not a gang member, but simply lived in gang territory and was profiled by police for this reason.

Dr. Scott Fraser testified regarding eyewitness identification. When given a hypothetical based upon the facts of the case, Fraser testified that several factors would have affected the accuracy of Donaldson’s identification of Alonzo, including that the crime occurred during a heated discussion, the identification was cross-racial, and the weapon was distracting. According to Fraser, a witness’s certainty of an identification is not a reliable indicator of accuracy. The misidentification of Koh suggested the original identification was unreliable.

2. Procedure.

Trial was by jury. Alonzo was originally tried in August 2003. The jury deadlocked at 11 to 1, and a mistrial was declared. Prior to Alonzo’s subsequent trial, Alonzo admitted the Penal Code section 186.22[3] gang allegation. Alonzo was convicted of willful, deliberate, premeditated attempted murder (§§ 664, 187, subd. (a)). The jury further found a principal personally and intentionally discharged a firearm, proximately causing great bodily injury to Donaldson. (§ 12022.53, subd. (d).) The trial court sentenced Alonzo to a term of life with the possibility of parole, plus 35 years to life in prison. It also imposed a restitution fine and a suspended parole revocation fine. Alonzo appeals.

DISCUSSION

1. Admission of the challenged gang evidence was proper.

a. Additional facts.

Prior to trial, Alonzo offered, as a strategic decision, to stipulate to the section 186.22 gang allegation if the court excluded all evidence “related to gang membership or activities.” The trial court conducted an Evidence Code section 402 hearing, at which the parties made offers of proof. The prosecutor argued the gang evidence was relevant to show motive and identity. Defense counsel argued there was insufficient evidence Alonzo was a Crazy Riders gang member or associate, and given Alonzo’s offer to stipulate to the gang allegation, further gang evidence was irrelevant.

The trial court ruled that the evidence was more probative than prejudicial under Evidence Code section 352. While recognizing the potential prejudice inherent in gang evidence, the court concluded that on the facts of the case, the evidence was highly probative on the issues of intent and motive. It reasoned, “[i]t would be very hard to see a better show of motive than the shots weren’t fired in February, and now we’re back in the same situation, and this time, giving the People’s evidence the benefit of the doubt, Mr. Alonzo is going to carry through and fire the weapon this time, according to the People[‘s] theory, thereby enhancing his position within the gang.” Accordingly, the trial court ruled certain gang evidence admissible, including, inter alia, that the Crazy Riders were a criminal street gang and engaged in violent conflict. It excluded evidence of particular predicate crimes and details of the gang’s violent conduct.

The trial court instructed the jury that Fitzsimmons’s and Valento’s testimony could be considered only on the issues of intent and motive.

b. Discussion.

Alonzo contends his “entire trial was infected by the improper presentation of gang evidence,” resulting in a due process violation. In particular, Alonzo complains about admission of evidence that the Crazy Riders gang engaged in “violent criminal activities” and initiated new members by beating them up for 13 seconds. We discern no abuse of discretion.

Gang evidence is admissible if it is logically relevant to some material issue in the case, is not more prejudicial than probative, and is not cumulative. (Evid. Code, §§ 210, 352; People v. Carter (2003) 30 Cal.4th 1166, 1194; People v. Avitia (2005) 127 Cal.App.4th 185, 192-193; People v. Ruiz (1998) 62 Cal.App.4th 234, 239-240; People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) “Evidence 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. [Citations.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049, italics added; People v. Olguin (1994) 31 Cal.App.4th 1355, 1370.) A properly qualified gang expert may, where appropriate, testify to a wide variety of matters, including a gang’s activities and the defendant’s gang membership. (See generally People v. Gonzalez (2006) 38 Cal.4th 932, 945; People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657, and authorities cited therein.)

However, gang evidence is inadmissible if introduced only to “show a defendant’s criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.]” (People v. Sanchez, supra, 58 Cal.App.4th at p. 1449; People v. Avitia, supra, 127 Cal.App.4th at p. 192; People v. Ruiz, supra, 62 Cal.App.4th at p. 240.) Even if gang evidence is relevant, it may have a highly inflammatory impact on the jury. Thus, “trial courts should carefully scrutinize such evidence before admitting it. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 193; People v. Gurule (2002) 28 Cal.4th 557, 653; People v. Avitia, supra, at pp. 192-193.) A trial court’s admission of evidence, including gang testimony, is reviewed for abuse of discretion. (People v. Brown (2003) 31 Cal.4th 518, 547; People v. Carter, supra, 30 Cal.4th at p. 1194; People v. Waidla (2000) 22 Cal.4th 690, 723.)

Here, the trial court did not abuse its discretion by admitting evidence regarding Alonzo’s gang membership, and the culture, territory, and activities of the Crazy Riders gang. The alleged motive for, and the circumstances surrounding, the crime were clearly gang-related. The People’s theory was that Donaldson “disrespected” the Crazy Riders gang by confronting and arguing with gang members at Rodriguez’s auto body shop, a Crazy Riders “hang-out” owned by a Crazy Riders member; that Alonzo, a gang associate or member, had disrespected the gang and shown weakness by failing to shoot Donaldson when told to do so by a gang “shot-caller”; and that Alonzo shot Donaldson two months later in order to rehabilitate himself in the eyes of the gang and prove he was not “weak.” As is obvious, evidence about the gang’s existence, activities, territory, and customs was highly probative and necessary to establish this theory. Whether a prospective gang member would earn “respect” by shooting an innocent victim is sufficiently beyond common experience that expert testimony was highly probative and necessary to the jury’s understanding of the case. (Cf. People v. Gonzalez, supra, 38 Cal.4th at p. 945; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551; People v. Olguin, supra, 31 Cal.App.4th at p. 1384 [“It is difficult to imagine a clearer need for expert explication than that presented by a subculture in which this type of mindless retaliation promotes ‘respect.’ “].) California courts routinely admit gang evidence “when the very reason for the crime, usually murder, is gang related. [Citations.]” (People v. Sanchez, supra, 58 Cal.App.4th at p. 1449.) Such was the situation here.

Nor was the evidence unduly prejudicial. Evidence that the Crazy Riders generally engaged in violent conduct and initiated new recruits by beating them up was not, on the facts of the case, particularly inflammatory. The trial court excluded evidence about any specific incidences of crimes committed by Crazy Riders members. Moreover, where an alleged gang member is charged with a nonviolent or minor crime, the admission of evidence that his fellow gang members have committed more egregious crimes carries a greater risk of prejudice than did the evidence in the instant case. Alonzo was charged with attempted murder; it was undisputed that the assailant shot the unarmed, unresisting victim eight times. Under these circumstances, where the evidence of the charged crime was far more inflammatory than generalized statements that gang members engage in violent conduct, the gang evidence simply cannot have prejudiced Alonzo. Likewise, the fact that gang members are often “jumped in” as an initiation rite would not have prejudiced jurors against defendant. There was no evidence Alonzo ever participated in such an initiation rite, nor were any further details about the initiation rite elicited. “Prejudice,” for purposes of Evidence Code section 352, is not synonymous with “damaging.” (People v. Zapien (1993) 4 Cal.4th 929, 958; People v. Bolin (1998) 18 Cal.4th 297, 320.)

Alonzo appears to argue the evidence was improperly admitted because there was insufficient evidence he was a gang member at all. However, as our recitation of the facts, supra, demonstrates, there was ample evidence of Alonzo’s gang association. Alonzo presented evidence suggesting he was not a gang member. The jury was free to credit either the People’s or Alonzo’s evidence. Had the jury credited evidence Alonzo was not a gang member, the gang evidence could have had no prejudicial effect.

The fact Alonzo stipulated to the gang enhancement did not necessitate exclusion of all gang evidence. Neither the People nor the trial court made exclusion of all gang evidence a condition of the stipulation. (See generally People v. Waidla, supra, 22 Cal.4th at p. 723, fn. 5 [the general rule is that the People cannot be compelled to accept a stipulation if the effect would be to deprive their case of its persuasiveness and forcefulness].) The trial court appropriately excluded certain evidence relevant only to proof of the gang enhancement, such as the existence of predicate crimes. It could not properly have required, however, exclusion of probative gang evidence relating to commission of the charged crime itself.

People v. Bojorquez (2002) 104 Cal.App.4th 335, People v. Maestas (1993) 20 Cal.App.4th 1482, and In re Wing Y. (1977) 67 Cal.App.3d 69, cited by Alonzo, do not assist him. Alonzo overlooks the central fact that here -- unlike in the cited cases -- the motivation for the crime was alleged to have been entirely gang-related. In contrast, in Bojorquez, the charged crime was not alleged to have been gang-related; instead it arose from a dispute between former roommates. The trial court in Bojorquez erred by admitting “wide-ranging” evidence about gangs’ criminal tendencies, because that evidence had little or no probative value with respect to the disputed issues in the case and served only to imply the defendant had a propensity to engage in robbery. (People v. Bojorquez, supra, at pp. 337-338, 343-344.)

In People v. Maestas and In re Wing Y., evidence of the defendant’s and witnesses’ common gang membership was introduced to show bias. The charged crimes were not alleged to have been committed for the benefit of a criminal street gang. In Maestas, the gang membership evidence was cumulative to other evidence that more compellingly established a close personal friendship between the defendant and witness. (People v. Maestas, supra, 20 Cal.App.4th at pp. 1494-1495.) In In re Wing Y., evidence of witnesses’ membership in the defendant’s gang had no tendency in reason to prove any disputed fact, but instead allowed an inference of guilt by association. (In re Wing Y., supra, 67 Cal.App.3d at p. 79.) Here, in contrast, the gang evidence was not admitted to demonstrate a witness’s bias, and the crime was gang-related. The trial court did not abuse its discretion by admitting the limited gang evidence.

2. Impeachment of defense expert.

a. Additional facts.

Identification expert Dr. Scott Fraser, a professor of psychiatry at the University of Southern California (USC), testified for the defense. During cross-examination, the prosecutor sought to examine Dr. Fraser regarding a finding made by Los Angeles County Superior Court Judge William R. Pounders, in an unrelated matter, that Fraser’s testimony in regard to a motion for new trial had been misleading. The prosecutor intended to offer this evidence to undercut Dr. Fraser’s credibility. Defense counsel argued that Dr. Fraser “felt that [the incident] was extremely personal between him and Judge Pounders. And there was actually no basis for it whatsoever. And there has been no substantiation for it.” Defense counsel represented that the incident had been reviewed by the Attorney General’s office, which had concluded Judge Pounders’s finding lacked merit. Accordingly, the Attorney General had declined to file charges against Dr. Fraser. The prosecutor countered that the Attorney General had failed to file charges because of the passage of time. The trial court in the instant matter concluded the information was material on the issues of Dr. Fraser’s reliability and expertise. It denied defense counsel’s request for an Evidence Code section 402 hearing.

When cross-examination resumed, the People queried, “Dr. Fraser, isn’t it true that Judge Pounders, a judge with the superior court in Los Angeles, downtown, made a finding that you made false and misleading statements under oath as to material issues during your testimony in a defense motion in the case of People v. Adam Anthony Noriega, case BA201786?” Fraser replied, “That’s correct.” Judge Pounders’s minute order, containing the finding that Dr. Fraser had made “false and misleading statements under oath as to material issues during his testimony” in regard to the defense motion in the Noriega case, was introduced into evidence. The minute order also stated, “The court will refer the matter of possible perjurious conduct of Scott Fraser during his testimony before this court to the State Attorney General for investigation and possible prosecution for perjury.” The remainder of the prosecutor’s lengthy cross-examination of Fraser focused only on the substance of his testimony regarding eyewitness identification issues.

On redirect, defense counsel asked Fraser to “explain the situation with Judge Pounders.” Fraser responded, “Surely. The night before I was scheduled to testify in a criminal case, the deputy district attorney called our office. It was closed. [A] secretary answered the phone. [The p]erson asked a number of personal questions about me. They were informed by the secretary that we didn’t give information on the phone. And she asked if this person was an attorney trying to retain us, and if he was a public defender, and could she have his name, and can she have the address and send him a resume. The person just said yes, yes, yes, yes. And then she said Dr. Fraser is down the hall . . . . She said the person then hung up. Then called back about five, ten minutes later, and asked to talk to me. [The] [s]ecretary came down to me and said there’s this strange call before, and now this person asked to talk to you. So I said I would talk to him. Anyway, I talked to this gentleman. And he was asking for some information about my personal finances and some other things. I interpreted this in the context of my knowledge of this individual as an attempt at intimidation. I never testified in that legal case. Subsequent to the trial, the defense attorneys moved for retrial. And they argued in part that there was prosecutorial misconduct. They argued that in fact the deputy district attorney had attempted to intimidate their alibi witness, who evidently had become uncooperative after a conversation with him. And as corroboration of that, they argued [the deputy district attorney] tried to intimidate me. So I was asked to testify about my experiences in that phone call, which I did. And I recalled as best I could, memory decay and everything, what the conversation was about. And my judgment that it was in fact an attempt to intimidate me. Judge Pounders listened to a secret tape recording that was done without my awareness and permission, [and] as I understand it, illegal. But that’s neither here nor there. And he listened to the tape recording. He judged it was not intimidating. So he made a ruling, a minute order that in fact I had misrepresented the facts under oath about my experience in this phone call. He also recommended that the Attorney General’s office be asked to file perjury charges against me. And in fact, those documents were sent to the Attorney General’s office, State of California. They reviewed them, and they refused to file. So they made a judgment that it didn’t have the merit for a filing.”

Defense counsel further elicited that after the incident in question, Fraser had testified under court appointment in numerous counties, including Los Angeles, Tulare, San Francisco, San Diego, and Sacramento, as well as in federal court. The prosecutor declined to conduct further cross-examination on the issue.

b. Discussion.

The trial court has broad discretion in determining the relevance of evidence, and we review its rulings for abuse. (People v. Harris (2005) 37 Cal.4th 310, 337; People v. Waidla, supra, 22 Cal.4th 690, 723.) We examine whether the challenged evidence was relevant; and, if so, whether the trial court abused its discretion under Evidence Code section 352 in finding the probative value of the evidence was not substantially outweighed by the probability its admission would create a substantial danger of undue prejudice. (People v. Carter (2005) 36 Cal.4th 1114, 1166; People v. Heard (2003) 31 Cal.4th 946, 972.)

Here, evidence of the trial court’s findings in the Noriega case was relevant. Evidence is relevant if it relates to witness credibility. (Evid. Code, § 210; People v. Harris, supra, 37 Cal.4th at p. 337; People v. Cain (1995) 10 Cal.4th 1, 32.) “In determining the credibility of a witness, the jury may consider any matter that has a tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to: a witness’s character for honesty or veracity or their opposites; the existence or nonexistence of a bias, interest, or other motive; his attitude toward the action in which he testifies or toward the giving of testimony; and his admission of untruthfulness. (Evid. Code, § 780.) Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court’s discretion under Evidence Code section 352. [Citation.]” (People v. Harris, supra, 37 Cal.4th at p. 337.) Evidence a witness has previously lied under oath is clearly relevant to the issue of the witness’s character for honesty. (See, e.g., People v. Ayala (2000) 23 Cal.4th 225, 271 [evidence a witness once lied to a probation officer about owning a gun was evidence of dishonesty with which he could have been impeached]; cf. People v. Castro (1985) 38 Cal.3d 301, 315-316 [noting that it is easier to infer a witness is lying if the felony of which he or she has been convicted involves dishonesty as a necessary element]; People v. Rollo (1977) 20 Cal.3d 109, 118 [“different felonies have different degrees of probative value on the issue of credibility. Some, such as perjury, are intimately connected with that issue . . . .”].)

The fact charges were never brought against Dr. Fraser did not mandate exclusion of the evidence. Evidence of criminal conduct involving moral turpitude is admissible to impeach whether or not the conduct resulted in a conviction. (People v. Wheeler (1992) 4 Cal.4th 284, 295-296, 297 fn. 7; People v. Lepolo (1997) 55 Cal.App.4th 85, 89.) “Misconduct involving moral turpitude may suggest a willingness to lie [citations], and this inference is not limited to conduct which resulted in a felony conviction . . . .” (People v. Wheeler, supra, at pp. 295-296.) Subject to the moral turpitude requirement, immoral conduct is admissible for impeachment even though the witness was not convicted, or even if the conduct did not constitute a criminal offense. (Id. at p. 297, fn. 7.) Unlike in People v. Sapp (2003) 31 Cal.4th 240, 288-290, the evidence was not unsubstantiated. Unlike the claims of Medi-Cal fraud at issue in Sapp, in the instant matter the evidence was the Noriega trial court’s express findings, apparently made after the Noriega trial court heard both Dr. Fraser’s testimony and a tape recording of the telephone conversation at issue.

Nor can we conclude the trial court clearly abused its discretion by finding the evidence was not unduly prejudicial under Evidence Code section 352. The Noriega incident was, indeed, entirely collateral to the instant case. Nonetheless, the nature of the misconduct -- a judicial finding the witness made false and misleading statements under oath -- was such that the evidence retained high probative value. On the other hand, the fact the incident was collateral tended to decrease the danger of undue prejudice to Alonzo. The prior incident did not cast any doubt on the veracity of Dr. Fraser’s research or scientific conclusions. From Dr. Fraser’s unrebutted explanation of the incident, it would have been readily apparent to the jury that the prior incident involved a dispute between Dr. Fraser and the District Attorney’s office, not an attack on his credentials, knowledge, scientific studies, or findings. Thus, there was little danger the evidence would have adversely affected the jury’s view of Dr. Fraser’s research and scientific conclusions in the area of eyewitness identification, the key aspect of his testimony for the defense in the instant case. Further, the prosecutor’s treatment of the issue was brief and limited. The prosecutor did not attempt to rebut Dr. Fraser’s explanation or bring in additional evidence to prove he was actually untruthful. In short, as presented the evidence did not transform the trial into a “nitpicking war[ ] of attrition over collateral credibility issues.” (People v. Wheeler, supra, 4 Cal.4th at p. 296.)

Finally, the erroneous admission of evidence requires reversal only if it is reasonably probable that the appellant would have obtained a more favorable result had the evidence been excluded. (Evid. Code, § 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878; People v. Whitson (1998) 17 Cal.4th 229, 251; People v. Avitia, supra, 127 Cal.App.4th at p. 194.) We cannot conclude that the challenged evidence seriously undercut Dr. Fraser’s credibility. Dr. Fraser’s impressive academic credentials remained unchallenged.[4] The prosecutor did not argue, explicitly or implicitly, that Dr. Fraser had fabricated or falsified any of his research data or scientific conclusions. The unrebutted evidence before the jury was that the Attorney General’s office declined to bring perjury charges against Dr. Fraser because Judge Pounders’s finding was unfounded. It was also undisputed that Dr. Fraser had been appointed by various courts to testify on numerous occasions after the incident. Finally, Dr. Fraser’s unchallenged explanation of the incident was that someone acting on behalf of the District Attorney’s office telephoned him and asked inappropriate questions while secretly taping the conversation -- conduct which most jurors would likely view as unbecoming the District Attorney’s office.[5] Dr. Fraser’s explanation of the incident was clear and unrebutted. Under these circumstances, we cannot conclude that the minute order in a collateral matter had any significant impact on the jury’s view of the substance of Dr. Fraser’s expert testimony.

3. Imposition of the 10-year sentence on the section 186.22 gang enhancement.

At sentencing, the trial court imposed a sentence of life with the possibility of parole for the attempted murder, a 25-years-to-life term for the section 12022.53, subdivision (d) firearm enhancement, and a 10-year term for the section 186.22, subdivision (b)(1)(C) gang enhancement. Alonzo argues that the 10-year term for the gang enhancement was imposed in error. Instead, he urges, he should be subject to the section 186.22, subdivision (b)(5) 15-year minimum parole eligibility requirement. (People v. Lopez (2005) 34 Cal.4th 1002, 1004, 1010.) The People concede the point.

We agree. “Penal Code section 186.22, subdivision (b) establishes alternative methods for punishing felons whose crimes were committed for the benefit of a criminal street gang. Section 186.22, subdivision (b)(1)(C) . . . imposes a 10-year enhancement when such a defendant commits a violent felony. Section 186.22(b)(1)(C) does not apply, however, where the violent felony is ‘punishable by imprisonment in the state prison for life.‘ (Pen. Code, § 186.22, subd. (b)(5).) Instead, section 186.22, subdivision (b)(5) . . . applies and imposes a minimum term of 15 years before the defendant may be considered for parole.” (People v. Lopez, supra, 34 Cal.4th at p. 1004.) A gang-related first degree murder is a violent felony punishable by a life term, and therefore is not subject to the 10-year enhancement. (Id. at p. 1004.) Instead, the 15-year minimum parole eligibility term under section 186.22, subdivision (b)(5), applies. (Id. at pp. 1004, 1007.) Accordingly, we strike the 10-year sentence and order the 15-year-minimum parole eligibility requirement imposed instead.

DISPOSITION

The 10-year section 186.22 enhancement is stricken. A 15-year minimum parole eligibility requirement is imposed instead. (§ 186.22, subd. (b)(5).) In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

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[1] As a result of the shooting, Donaldson had to undergo three surgeries, and lost a kidney and half his small intestine. At the time of trial, he still had bullets lodged in his spine and hip, walked with a limp, had stomach problems, and had pain in his leg and back.

[2] Casteneda testified she had never had personal relationships with, or visited the homes of, Rodriguez’s sons. She was subsequently impeached with evidence, including a videotape, showing she had, in fact, been at the sons’s residences on two occasions when search warrants were served.

[3] All further undesignated statutory references are to the Penal Code.

[4] Among other things, Fraser testified that he had obtained a bachelor’s degree from Stanford University and a doctoral degree from New York University; had trained at Good Samaritan Hospital; and had been a full-time faculty member in medical school psychiatric departments at the University of Washington, Stanford, and USC. His studies had focused on eyewitness memory processes. He had taught M.D.’s, Ph.D.’s, and law enforcement personnel at USC; had performed research in the area of eyewitness identification for over 25 years; had written for scientific journals and co-authored textbooks; and was a fellow of various psychological associations.

[5] We, of course, express no opinion on the accuracy of the explanations given by the prosecutor, defense counsel, or Dr. Fraser. Instead, we simply examine the record to evaluate the prejudicial nature of the evidence actually put before the jury.