P. v. Holguin

Filed 8/16/06 P. v. Holguin CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Horan, Judge. Affirmed.

Law Offices of Chris R. Redburn and Chris R. Redburn, 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, Senior Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant Christopher Holguin of the first degree murder of Eric Robles, in violation of Penal Code section 187, subdivision (a).^[1] The jury made special findings that defendant personally and intentionally discharged a firearm to kill Robles (§ 12022.53, subd. (d)), and the murder was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) In addition, defendant was convicted of shooting at an occupied motor vehicle in violation of section 246, with the jury again finding the offense was for the benefit of a criminal street gang. Defendant was sentenced to 50 years to life in state prison--consecutive terms of 25 years to life for the murder and the section 12022.53, subdivision (d) firearm finding. Sentence on the second count was stayed under section 654.

In his timely appeal, defendant raises three sets of contentions. In the first, he argues the trial court prejudicially erred in admitting photographs of gang-related graffiti, which he contends amounted to improper hearsay. In a related contention, defendant argues that the trial court prejudicially erred in admitting numerous photographic exhibits in support of the gang allegation because the defense stipulated that defendant was a member of a criminal street gang, rendering the additional evidence cumulative and unduly prejudicial. Defendant also asserts that admission of this gang evidence violated his right to due process under the federal Constitution by rendering his trial fundamentally unfair. In his second set of contentions, defendant argues the trial court prejudicially erred in admitting an unauthenticated audiotape and transcript of a series of telephone messages. In a related contention, defendant argues his trial counsel rendered constitutionally ineffective assistance by failing to object to the admission of that evidence. Third, defendant contends the trial court prejudicially erred in giving pattern jury instruction CALJIC No. 2.62, permitting the jury to consider whether the testifying defendant failed to explain or deny evidence presented against him. Defendant further asserts that even if the above errors were not sufficient independently to warrant reversal, their cumulative effect resulted in a miscarriage of justice. We reject these contentions and affirm.

STATEMENT OF THE FACTS

The prosecution's primary witness was Charles Flexen. According to Flexen, defendant, who was known by his gang moniker, â€