P. v. Martinez

Filed 8/14/07 P. v. Martinez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara L. Burke, Judge. Affirmed.

Andrew Reed Flier; and John F. Schuck, the latter 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, Assistant Attorney General, Margaret E. Maxwell and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.

introduction

Defendant Paul Isaac Martinez appeals from a judgment of conviction entered after a jury convicted him of two counts of attempted willful, deliberate, and premeditated murder and one count of shooting at an occupied motor vehicle. Appellant raises various claims of error with regard to admission of testimony from a tardily disclosed witness, refusal to bifurcate trial on gang enhancement allegations, permitting an expert witness to exceed the permissible scope of expert testimony, prosecutorial misconduct, instructional error, and erroneous discharge of a juror. We find no error requiring reversal, and affirm the judgment.

procedural background

The Los Angeles County District Attorney filed an information charging appellant with two counts of attempted willful, deliberate, and premeditated murder (Pen. Code,  664/187, subd. (a) (counts 1 & 2)),[1]and one count of shooting at an occupied motor vehicle ( 246 (count 3)). It was alleged as to all counts that appellant personally and intentionally discharged a firearm causing great bodily injury ( 12022.53, subd. (d)), personally inflicted great bodily injury ( 12022.7, subd. (a)), personally used a firearm ( 12022.5), discharged a firearm at an occupied motor vehicle causing great bodily injury ( 12022.5, subd. (b)(1)), and committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct of gang members ( 186.22, subd. (b)). It was also alleged as to all counts that a principal personally and intentionally discharged a firearm causing great bodily injury ( 12022.53, subds. (d), (e)(1)). As to the first two counts, it was further alleged that appellant personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (c), and that a principal personally used a firearm within the meaning of section 12022.53, subdivisions (b), (c), and (e)(1). Appellant pleaded not guilty and denied the special allegations.

At the conclusion of a jury trial, appellant was convicted on all counts. The jury found true the firearm use and great bodily injury allegations, but found not true the gang enhancement allegations.

The trial court denied probation, and sentenced appellant to state prison for a period of 50 years to life. On count 1, the court imposed a term of life imprisonment, plus 25 years to life pursuant to section 12022.53, subdivision (d). An identical, consecutive sentence was imposed as to count 2, and the court stayed sentence on count 3.

This timely appeal followed.

factual background

Prosecution Evidence

On July 19, 2003, Daniel Hernandez and Egriselda Suastegui were operating the drive-through window at a Jack-in-the-Box restaurant in Glendale. At around 12:30 a.m., a red, two-door Honda with three male occupants came to the drive-through window. Hernandez and Suastegui heard yelling, then saw the people in the front passenger seat and the backseat of the Honda get out of the car. The front passenger, later identified as appellant, walked toward the street where a blue BMW was stopped and began shooting in the direction of the BMW, firing numerous times. As he did so, the BMW drove away. The two men walked back to the Honda and got back in their respective seats. As the Honda drove away, appellant fired several more times into the air.

Edwin Aguilar, who was the passenger in the backseat of the Honda, identified Jason Mirzaie as the driver of the Honda, and appellant as the front seat passenger. Aguilar testified that the two occupants of the BMW had been dogging appellant, meaning they were looking at him in a weird way, and the BMW driver flipped off appellant. Appellant became angry and took out a handgun. Aguilar tried to stop him, telling him to forget about it. Appellant ignored him and got out of the car, then fired multiple shots at the BMW. Aguilar pulled appellant back inside the car because he wanted to avoid getting caught. Appellant fired a few more shots into the air as they drove away. They drove to Aguilars house. When Aguilar said he thought they were going to get caught, appellant told Aguilar to keep [his] mouth shut, but otherwise seemed unconcerned.

Argisht Karamian was the driver and Gagik Savadians the front passenger in the BMW. While stopped at a red light, they looked over at the Jack-in-the-Box drive-through and saw appellant looking at them and yelling, What? What? Karamian asked, Is he talking to us? He rolled down his window and said, What? What? Neither occupant of the BMW said anything threatening. Appellant racked the gun and got out of the Honda, and the person in the backseat also got out. Savadians yelled, Hes got a gun. Go. Go. Go. At that moment the traffic light turned green and Karamian began to accelerate, just as appellant began walking toward them and firing approximately four times. The backseat passenger seemed to be trying to pull appellant back toward the Honda. After the second shot was fired, Karamians left arm fell down from the steering wheel, and Karamian yelled that he had been shot. Savadians heard a bullet whistle by his ear and saw it break through the front windshield. Karamian kept driving and soon thereafter they happened to see police and paramedics who were responding to another incident. They stopped and Savadians told them Karamian had been shot. Karamian was taken to a hospital and treated for a bullet wound to his upper left arm. The bullet fractured his humerus as it traveled through his tricep muscle and exited through the front of his arm.

Within minutes of the shooting, the police searched the area around the drive-through and found seven spent nine-millimeter shell casings. The casings were easily observed because the area was well-lit. They also found glass fragments just beyond the adjacent intersection.

Police obtained the surveillance videotape recorded by security cameras trained on the drive-through window at the Jack-in-the-Box. From the videotape, still-frame photographs of the Honda and its occupants were prepared. Appellant could be seen standing outside the passenger side of the Honda, holding a gun. The license plate of the Honda was visible in part of the surveillance videotape. At trial, Aguilar identified himself, appellant and Mirzaie in the still-frame photographs. Karamian, Savadians, and Hernandez also identified appellant as the shooter shown in the still photographs. Five days after the shooting, Savadians and Karamian separately identified appellant from a photographic lineup.

Immediately after the shooting, the police examined Karamians BMW and observed bullet holes in the drivers door and the windshield. They recovered a bullet that was lodged between the drivers seat and the center console, as well as a shirt that had bullet holes in the upper left sleeve and a considerable amount of blood on the left arm and chest area. No guns, knives, bats or other weapons were found in the car.

The police executed a search warrant at Mirzaies house on July 22, 2003. They recovered various objects from his bedroom that had gang references written on them, such as WSL for the West Side Locos gang, and the monikers Drifter and Stretch. They also printed out several photographs stored on his computer. In the garage, they found a box containing three types of ammunition, including nine-millimeter Winchester rounds, and a shoulder holster. They recovered from Mirzaies red Honda an expended nine-millimeter shell casing.

On the same day, police officers also searched Aguilars residence and a car parked at the residence, and found numerous photographs depicting known West Side Locos gang members, standing in classic gang poses and throwing gang signs. Appellant was in many of the photographs, including several in which he is making gang signs with his hands.

When appellant was arrested, he had with him some photographs of himself, including one in which he is making gang signs. A search of appellants car recovered photographs of West Side Locos gang members.

Appellant had tattoos on his face, back, chest, arms, and left leg. He had a roll call tattooed on the back of his leg, first listing his moniker, Drifter, followed by the monikers of several known West Side Locos gang members and, finally, the phrase Fuck the world. The phrase, Pay backs a bitch was tattooed on his chest. He also had a NELA life tattoo, which refers to gang life in Northeast Los Angeles.

Glendale Police Officer Keith Soboleski testified that there are three dominant gangs in Glendale, West Side Locos, Toonerville, and Armenian Power. West Side Locos and Armenian Power are rival gangs. In 2000, Raul Aguirre, who was not a gang member, was shot by a member of Armenian Power when he came to the aid of a West Side Locos member who was being confronted by members of Armenian Power. Tensions between the two gangs, and between Hispanics and Armenians in general, had increased as a result of this incident.

Soboleski stated that gang members showed allegiance to a gang by posing for photographs wearing gang attire and throwing gang signs.

Based on appellants tattoos, the photographs of appellant that were found, and the objects bearing gang writing that were recovered in the investigation of this case, Soboleski opined that appellant is a member of the West Side Locos gang. He stated that the shooting was gang-related because it took place on West Side Locoss turf. In addition, the victims purported actions in mad-dogging appellant, saying What, and flipping him off were considered to be a challenge to which appellant would feel the need to respond in order to maintain respect and bolster his reputation.

Glendale Police Officer Marilyn Cisneros testified that she served as a school resource officer at Hoover High School from 1996 until 2003. Appellant attended Hoover for a few months in 1996 or 1997, and she saw him frequently, often in the company of a member of West Side Locos known as Bubba. Cisneros opined that appellant was a member of West Side Locos at the time of the offense because he associated with known gang members, he wore gang attire, he flashed gang signs, he had gang-related tattoos, and he was in possession of a handgun at the time of the offense.

Defense Evidence

Valentine Lozano served as an interpreter when defense counsel interviewed Jack-in-the-Box employee Suastegui on August 12, 2004. Two police detectives were also present during the interview. Suastegui could not recall how many people were in the car at the time of the shooting. She described the shooter as having spiky hair, and the driver as being a bald, Hispanic male (reversing the descriptions given by other witnesses); she could not describe the backseat passenger. She recalled that three people got out of the car. She said she was very scared during the incident.

Appellants gang expert, Dr. Jose Lopez, testified that appellant was not a gang member because he did not have a tattoo for West Side Locos or any other gang. He testified that appellants NELA Life tattoo referred to northeast Los Angeles; he described NELA as an area where sometimes young kids want to have the freedom to move around and dont want to be associated to a gang because of its limitations. He said that the West Side Locos gang is not within the area considered to be NELA. He also said that some of the names tattooed on appellants leg did not refer to West Side Locos gang members, though some did, and that having a gang members name tattooed on ones body did not necessarily mean one was a gang member. According to Lopez, one of the names listed on appellants tattoo was a member of a rival gang. He further testified that gang culture--such as baggy clothing, shaved hair, gang hand signs, and tattoos--has been exported to the general public. As to the W hand sign displayed by appellant in various photographs, Lopez said it was not significant in determining whether appellant was a West Side Locos gang member because many different gangs use the same sign, as do performers, professional athletes, and other non-gang members.

discussion

I. Admission of Testimony of Late-Disclosed Witness

The Proceedings

On June 2, 2004, after a jury panel had been sworn but prior to voir dire, the prosecutor informed the court that he had just obtained a supplemental report from his investigator, stating that Suastegui had identified appellant as the shooter from a still photograph taken from the security surveillance videotape. The investigator had interviewed Suastegui five days after the shooting, and at that time she had erroneously identified Aguilar as the driver of the Honda. She had been unable to identify the shooter from a photographic lineup.

Because defense counsel had just informed the prosecutor that his theory of the case was that a juvenile at the scene was the shooter, the prosecutor had instructed the investigator to reinterview Suastegui on June 1, 2004, to determine if Aguilar might have been the shooter. When the investigator interviewed her again, she said Aguilar was not the shooter. She identified appellant, the bald person in the photograph, as the shooter. The investigator prepared a supplemental report, and the prosecutor immediately turned it over to the defense.

Defense counsel requested a continuance of the trial in order to interview Suastegui. Counsel stated that this was the first mention of Suastegui; she had not been mentioned in any of the police reports received by the defense. The defense had not been given a copy of the investigators initial report of his interview with Suastegui, and had not received a copy of the photo six-pack shown to Suastegui.

The prosecutor responded that Suastegui had not been interviewed by any of the police officers who responded to the scene of the shooting, and therefore was not in any of the police reports. Acknowledging the importance of Suasteguis testimony, the prosecutor stated that he would not oppose appellants request for a continuance of the trial.

The court granted the motion for a continuance. Defense counsel then requested that sanctions be awarded against the prosecution for failure to disclose this witness. She specified that the prosecution should be precluded from introducing any evidence relating to Suastegui. The prosecutor stated that discovery had been provided to appellants prior defense attorney, and it was possible that the initial investigators report was provided to prior defense counsel, who inadvertently failed to pass it along to successor counsel. The prosecutor argued that sanctioning the prosecution for something that might not be attributable to any act by the prosecution was not appropriate, particularly the draconian sanction requested by defense counsel.

The court declined to exclude Suastegui as a witness, noting that the prosecutor had offered a possible explanation for why defense counsel did not have a copy of the investigators first report. The trial date was reset to July 12, 2004 as 0 of 30, and the parties then stipulated that, for scheduling reasons, the case would be sent out for trial August 4, 2004.

Defense counsel interviewed Suastegui on August 12, 2004. Trial began on November 9, 2004.

Analysis

Section 1054 et seq. concerns discovery in criminal matters. Certain of these sections impose a duty on the People to timely disclose materials and information to the defense. This duty includes the disclosure of the names and addresses of persons the prosecution intends to call as witnesses at trial at least 30 days before trial. ( 1054.1, subd. (a); 1054.7.) When a witness or evidence is discovered late or during the trial, the People may satisfy their burden of providing discovery by immediately disclosing the information to the defense. ( 1054.7; People v. Hammond (1994) 22 Cal.App.4th 1611, 1622-1624.)

There is no dispute that the prosecution timely disclosed the supplemental report regarding the investigators second interview with Suastegui. The purported failure to disclose concerned the investigators first report of his initial interview with Suastegui. However, we are unconvinced that the record shows any discovery violation. The trial court did not make such a finding, and in fact noted that the change in defense counsel could account for the fact that trial counsel for appellant did not have the initial report. Any inadvertence might have been on the part of prior defense counsel. Even if the error was the prosecutions, there was no indication that the report was deliberately withheld. The exclusion of testimony is not an appropriate remedy absent a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial. (People v. Jordan (2003) 108 Cal.App.4th 349, 358; People v. Gonzales (1994) 22 Cal.App.4th 1744, 1758.) The record does not establish any willful misconduct by the prosecution, and we therefore conclude that the trial court did not abuse its discretion in denying the discovery sanction requested by appellant: exclusion of Suasteguis testimony. (See People v. Lamb (2006) 136 Cal.App.4th 575, 581; People v. Jackson (1993) 15 Cal.App.4th 1197, 1203 [trial courts ruling on discovery sanctions reviewed for abuse of discretion].)

Furthermore, appellant has not shown he was prejudiced by the ruling. He argues that the trial continuance did not cure the harm caused by the late disclosure. He contends that he was prejudiced by prolonging his defense, by having to change his defense strategy once it had been established, and by having to empanel a new jury. He does not explain, however, how any of these things resulted in any prejudice. Rather, the continuance gave defense counsel ample time to interview Suastegui and decide on an appropriate defense strategy in light of her anticipated testimony. Based on the other evidence against appellant, we readily conclude that it is not reasonably probable that appellant would have received a more favorable result absent the alleged error. (See People v. Watson (1956) 46 Cal.2d 818, 836.) The defendant bears the burden of showing that the failure to timely comply with discovery is prejudicial (People v. Pinholster (1992) 1 Cal.4th 865, 941), and appellant has not fulfilled that burden here.

Furthermore, appellants failure to raise an objection at trial based on federal constitutional grounds under Brady v. Maryland (1963) 373 U.S. 83 (Brady) has resulted in forfeiture of this issue on appeal. (People v. Kipp (2001) 26 Cal.4th 1100, 1130.)

II. Refusal to Bifurcate Trial of Gang Enhancement Allegations

Appellant contends the trial court erred by denying his motion to bifurcate the trial of the substantive offenses from the trial of the criminal street gang enhancements because the introduction of evidence on the West Side Locos gang prejudiced his case. We disagree.

The Proceedings

Prior to trial appellant moved to bifurcate the guilt phase of the trial from the trial on the criminal street gang enhancement under section 186.22, subdivision (b)(1), which the People had specially alleged as to all counts, because no gang was identified at the time the offenses were committed. Alternatively, appellant requested a limiting instruction regarding the permissible use of gang evidence introduced at trial. The prosecution argued in opposition that the gang evidence was independently relevant to issues of identity, motive, and intent, and to show why some witnesses were reluctant to testify. The trial court ruled that the facts underlying the gang enhancement allegations were inextricably intertwined with the facts underlying the substantive offenses, and denied the motion to bifurcate. I agree with the Peoples assessment that the average juror, just hearing about a stare and an exchange of the words What? and then What? What? would be totally bewildered without some kind of a context in which to consider those exchanges.[2]

The parties stipulated that the West Side Locos was a criminal street gang as defined by section 186.22, subdivision (f), whose members had engaged in an unspecified pattern of criminal gang activity. The stipulation was read to the jury without further elaboration.

The court gave the following limiting instruction at trial: You have heard testimony and received evidence relating to [appellants] alleged membership in the West Side Locos street gang. That testimony and evidence were admitted for a limited purpose. You may consider that testimony and evidence as it relates to the special gang allegation. You may also consider this testimony and evidence for the purposes of determining motive and intent, and also for the purpose of evaluating the reluctance, if any, of any witness from giving testimony in this case. The weight and significance of this testimony and evidence is for you to decide.

Analysis

The trial courts ruling is consistent with the Supreme Courts decision in People v. Hernandez (2004) 33 Cal.4th 1040 (Hernandez). In Hernandez the Court recognized the authority of the trial court to bifurcate trial of a gang enhancement from trial of guilt in a case in which the evidence necessary to establish the requirements of section 186.22, subdivision (b), may be unduly prejudicial. The Court, however, held that evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendants gang affiliation--including evidence of the gangs 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 the guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.] (Id. at pp. 1049-1050.) Although a trial court has discretion to bifurcate trial of a gang enhancement, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation. [Citation.] (Id. at p. 1048.)

The propriety of the trial courts ruling is judged by the record as it existed when the bifurcation motion was made. (People v. Catlin (2001) 26 Cal.4th 81, 110 [severance of counts].) Appellants gang affiliation, including his gangs territory, was highly relevant to prove the intent behind and motive for the crimes, including intimidating non-gang members in gang territory, maintaining respect within the gang, establishing the gangs dominance on its turf, and demonstrating the degree of violence to which the gang would resort to achieve those objectives. On the other hand, appellant did not meet his burden to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. [Citation.] (Hernandez, supra, at p. 1051.) Thus, on the record as it existed at the time of the trial courts ruling, there was clearly no abuse of discretion in denying the bifurcation motion.

In any event, considering the overwhelming evidence of appellants guilt, the denial of appellants motion to bifurcate trial of the gang enhancement from trial of guilt was not prejudicial under any harmless error standard of review. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson, supra, 46 Cal.2d at p. 836.) Most notably, he was identified from the still-frame photographs taken from the surveillance camera videotape as being the shooter by Hernandez, Suastegui, Aguilar, Karamian, and Savadians, and could be seen in those photographs and the videotape holding a gun as he exited the car.

Based on the significant and largely undisputed evidence of appellants guilt, the joint trial of the charged offenses and the criminal street gang enhancement did not prejudice appellant in the jurys verdicts of guilt. Indeed, the jury showed it was able to distinguish between the gang evidence for purposes of deciding the gang enhancements versus the substantive offenses when it returned not true findings on the gang enhancement allegations. The jurys verdict demonstrates the jury engaged in a dispassionate assessment of the evidence, and was not motivated by unduly prejudicial evidence.

Furthermore, any potential for prejudice was mitigated by the trial courts limiting instruction. We find no abuse of discretion in the courts decision not to bifurcate the gang enhancement allegation.

III. Cisneross Testimony Did Not Exceed the Permissible Scope of Expert Testimony

Appellant contends that the court erred by admitting the testimony of Glendale Police Officer Marilyn Cisneros because her testimony exceeded the permissible scope of expert testimony. While appellants argument in this regard is rambling and unfocused, to the extent we can ascertain the bases for his contentions of error, we disagree that the court erred in admitting Cisneross testimony.

The Proceedings

During the discussion on appellants motion to bifurcate trial of the gang enhancement allegations, the prosecutor stated its intention to call Cisneros to testify regarding appellants gang membership. He explained that Cisneros was a school police officer who had numerous contacts with appellant in which, the prosecutor believed, he admitted to her that he was a member of the West Side Locos.[3]Cisneros had been listed as a potential witness in the prosecutions trial brief filed five months earlier. Appellant objected that he had not received discovery with regard to Cisneros, but did not oppose the nature of her anticipated testimony. The prosecutor stated that he did not have any discovery to provide, but would make available to the defense contact information and any other written material from Cisneros as soon as possible.

Appellant contends on appeal that the trial court ruled prior to trial that Cisneross testimony was admissible. However, the citation to the record provided by appellant does not refer to any such evidentiary hearing.

Several days after Cisneros testified, appellant filed a motion to exclude Peoples gang expert testimony, in which he objected to admission of opinion testimony that appellant had committed the crime of attempted murder for the benefit of a criminal street gang. He argued that such testimony was so highly prejudicial that it will render the trial so fundamentally unfair as to violate Defendants Federal and State due process rights. He added that [s]ince such law enforcement and expert testimony carries such great weight with the jury, testimony that the Defendant had the intent to commit the crime of attempted murder and that he did so to benefit a street gang are not necessarily inferences that the jury would make on its own. The court denied the motion.

Analysis

In contrast to the written motion filed by appellant during trial in which he argued that the prosecutions expert testimony regarding gangs would carry too much weight with the jury and would result in the jury making inferences it would not make on its own, appellant now contends on appeal that Cisneros testified as to conclusions a lay jury could draw for itself. He argues that portions of her testimony did not relate to matters upon which she was more skilled than the jury. Specifically, according to appellant, Cisneros testified to commonplace matters, such as appellants posture and clothing, and said these factors were useful in determining gang membership, although she acknowledged the same posture and clothing are common in todays culture. However, the habits of gangs, including their use of particular hand signals, carriage, and clothing, is precisely the subject matter recognized to be within the realm of expert testimony, and as being sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Evid. Code,  801, subd. (a); People v. Gardeley (1996) 14 Cal.4th 605, 617; People v. Olguin [(1994)] 31 Cal.App.4th [1355], 1370.) (People v. Valdez (1997) 58 Cal.App.4th 494, 506.)

At trial, Cisneros explained that her opinion that appellant was a gang member was based in part on her belief that a person shown next to him in a picture, and with whom Cisneros knew appellant frequently associated, Andrew Legaspi, was a gang member.[4] Appellant now contends that this testimony exceeded the permissible scope of expert testimony because [a]ny juror with common knowledge can judge for themselves what type of relationship is shown in a photo, and does not need an expert to influence the decision. This contention does not withstand scrutiny. Both Legaspi and appellant were personally known to Cisneros. Cisneros had seen Legaspi flash the W sign for West Side Locos, and his overall involvement with street activity involve[d] the West Side Locos gang. Legaspis gang moniker was Bubba. Cisneros was testifying as an expert witness whose expert opinion was based in part on her personal observations. Matters within her personal experience led her to believe, when viewed through the lens of her specialized knowledge of gang culture and behavior, that appellant was also a gang member. Appellant cites no authority to support the notion that such testimony is impermissible. Rather, the testimony given by Cisneros is typical of that given by experts on gang culture and behavior. (See, e.g., People v. Gamez (1991) 235 Cal.App.3d 957, 966 [characterizing officers personal observations of and discussions with gang members and information from other officers as establishing a much stronger foundation for their expert testimony; opinions properly admitted] ,disapproved on other grounds in People v. Gardeley, supra, 14 Cal.4th at p. 624, fn. 10.) Evidence Code section 801 limits expert opinion testimony to an opinion that is [b]ased on matter . . . perceived by or personally known to the witness or made known to [the witness] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates. (People v. Gardeley, supra, 14 Cal.4th at pp. 617, citing Evid. Code  801, subd. (b), italics added.)

Similarly, appellant contends it was error to allow Cisneros to identify him from the still frame photographs taken from the surveillance videotape, because this identification had nothing to do with her expertise as to gang membership. Appellant objected on this basis at trial. In this instance, Cisneros was testifying based on her personal experience of having had frequent contact with appellant and those with whom he associated. It is true that identification of appellant in the still photographs did not require expertise in gang behavior, however it was not error for the court to permit Cisneros to identify appellant from the photographs based on her previous contact with him.

To the extent appellant argues that any and all evidence regarding gang membership was more prejudicial than probative, we disagree. Evidence about appellants gang affiliation was highly relevant to explain the intent behind and motive for the crimes: to intimidate non-gang members in gang territory, maintain respect within the gang, establish the gangs dominance on its turf, and demonstrate the degree of violence to which the gang would resort to achieve those objectives. It was, of course, also relevant to the gang enhancement allegations. The prosecution did not present testimony to establish the existence of the West Side Locos gang and regarding specific crimes in which the gang had engaged; rather, the parties stipulated that the West Side Locos was a criminal street gang within the meaning of the gang enhancement statute, whose members had engaged in an unspecified pattern of criminal gang activity. Thus, the probability of the jury being unduly prejudiced by this information was minimized.

In any event, the jury exhibited its ability to remain dispassionate by finding not true the gang enhancement allegations. Hence, even if admission of Cisneross testimony was erroneous, there is little or no likelihood that the testimony had a prejudicial effect on the jurys verdict on the substantive offenses. Thus, we conclude that it is not reasonably probable that appellant would have received a more favorable outcome in the absence of her testimony. (People v. Watson, supra, 46 Cal.2d at p. 836.)

IV. Prosecutorial Misconduct

Appellant contends that the prosecutor engaged in misconduct when he questioned witnesses Mirzaie and Aguilar about their reluctance to testify, and again during closing argument when he had a police officer perform a demonstration for the jury involving racking a firearm.

The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] (People v. Ochoa (1998) 19 Cal.4th 353, 427, quoting People v. Samayoa (1997) 15 Cal.4th 795, 841.) Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Ochoa, supra, 19 Cal.4th at p. 427.) As we explain, the claim of misconduct was not properly preserved for appeal; in any event, we conclude there was no prejudicial misconduct.

A. Reluctance of Witnesses to Testify

1. Jason Mirzaie

When Mirzaie took the stand, the prosecutor greeted him, but he did not respond. The prosecutor asked how he felt about being there, and he said, Shocked. Scared. The prosecutor told him to answer questions the best he could, and inquired about the night of the shooting. Mirzaie said, I dont want to answer no questions. The prosecutor asked why he did not want to answer, and he said he did not know. The prosecutor asked, Are you afraid? Mirzaie said, Dont want to talk. The court inquired whether Mirzaie feared incriminating himself, and the prosecutor then asked for a sidebar. The prosecutor explained that Mirzaie had already pleaded as a juvenile in this case, but had not made any statements under oath, and therefore perjury and self-incrimination were not at issue. The court and counsel agreed that Mirzaie should be given the opportunity to consult with his attorney. On the following court day, Mirzaies counsel appeared and informed the court outside the jurys presence that Mirzaie did not wish to testify, but acknowledged that self-incrimination was not at issue. Mirzaie elected to be held in contempt and taken into custody for the duration of the trial rather than testify.

At defense counsels request, the court ordered stricken any testimony Mirzaie had given the previous day, and admonished the jury not to consider that testimony for any purpose.

Thus, the prosecutor merely asked Mirzaie, Are you afraid? The jury was told to entirely disregard Mirzaies testimony, and was not informed that he had been held in contempt. Under these circumstances, appellants contention that the prosecutor engaged in misconduct is specious.

2. Edwin Aguilar

Aguilar initially refused to testify. The prosecutor asked him twice what he had done on July 19, 2003, and Aguilar responded both times, Im not going to talk. The court held him in contempt and ordered that he be taken into custody. The court ordered stricken Aguilars brief testimony, and directed the jury to entirely disregard what he had said.

Aguilar agreed to testify after spending one day in custody.

Appellant contends the prosecution was permitted to ask leading and suggestive questions of Aguilar regarding his reluctance to testify. To wit, the prosecutor asked, Edwin, why didnt you want to answer any questions in this case? Aguilar replied, Because I was scared. I didnt want to go to jail. Thats not me, you know? The prosecutor clarified that he was asking why Aguilar did not want to answer questions before he went to jail. Aguilar said he just didnt want to do it, that [i]t was just peer pressure, and that he didnt want to deal with court stuff. He then made reference to his probation officer warning him he could be locked up. The prosecutor asked, Were you scared? Aguilar replied, I was scared going over there. The prosecutor said, Ill ask you this: When I first asked you the questions, were you scared of retaliation if you testified? Aguilar replied, Yeah. The prosecutor asked, Were you scared what might happen to your family if you told the truth? Aguilar said, Yeah.

The prosecutor continued, What did you think might happen to your family if you told the truth? Aguilar said, Something will happen to my family or something will happen to me. The prosecutor: Something violent? Defense counsels objection that the question was leading and suggestive was overruled, and the defense motion to strike was denied. Aguilar said he did not know what would happen. Aguilar denied that he had ever been threatened with any kind of retaliation if he told the truth. The prosecutor asked, But you felt that that was a possibility if you told the truth? Another defense objection that the question was leading and suggestive was sustained, and the prosecutor was directed to rephrase the question. The prosecutor asked, Did you think it was a possibility that you or your family would be retaliated against if you told the truth? Aguilar said, I was scared that would happen. Aguilar agreed that that was why he said he did not want to answer any questions.

Aguilar acknowledged that the judge told him he had to answer the questions and that he would be placed in custody if he did not answer. The court sustained a defense objection of leading and suggestive when the prosecutor asked And you decided that youd rather go into custody at that time than answer the questions? The prosecutor then asked, Were you more afraid of the retaliation that might happen to you and your family than you were afraid of going into custody? Aguilar answered in the affirmative, and then agreed that was why he chose to go into custody rather than answer questions.

We note that defense counsel did not object at trial that the prosecutors questions constituted misconduct, and did not request an admonition. Counsels objections were that the questions were leading and suggestive; hence, they were not sufficient to preserve an appellate claim of prosecutorial misconduct. (People v. Ochoa, supra, 19 Cal.4th at p. 427 [defendant may not complain on appeal of prosecutorial misconduct unless timely request made, on same ground, for assignment of misconduct and for admonition to jury to disregard impropriety].)

Furthermore, the questioning did not constitute misconduct. Evidence of a witnesss fear of retaliation by gang members is relevant to show bias and to assist the jury in evaluating the credibility of the witness. In determining credibility, the jury may consider any matter that has any tendency to prove or disprove the truthfulness of the witnesss testimony, including the existence of a bias, interest, or other motive. (Evid. Code,  780, subd. (f). See, e.g., People v. Olguin, supra, 31 Cal.App.4th at pp. 1368-1369 [evidence witness testified despite fear of recrimination relevant to credibility].)

Without explication, and without citation to either the record or any authority, appellant claims prosecutorial misconduct based on the prosecutors playing for the jury an audiotape of an interview with Aguilar (by the police, although appellants brief does not so indicate). We need not address this assertion since it is unaccompanied by legal argument or even citation to the record. (See People v. Wilkinson (2004) 33 Cal.4th 821, 846, fn. 9; People v. Stanley (1995) 10 Cal.4th 764, 793.)

B. Improper Demonstration During Closing Argument

During closing argument, the prosecutor addressed the defense argument that Savadians could not have heard, from inside the BMW stopped in the intersection, the sound of a firearm being racked in the area of the drive-through. He asked a detective to step up with your firearm and rack your firearm. Defense counsel immediately objected that this was highly improper, totally inappropriate, and completely outrageous conduct, and moved for a mistrial. The court denied the motion for mistrial. The prosecutor did not press the point, and merely stated to the jury that the sound of a gun being racked was unmistakable.

The record clearly indicates that there was no demonstration to the jury of the firearm being racked, and thus no support for appellants contention that [o]ver defense objection, Breckenridge immediately rose to his feet, quickly walked to the jury, raised his firearm and pointed it directly at the jurors placing them in fear.[5] Nor is there support for the contention that the trial court allowed the prosecution to introduce evidence during closing argument that was not previously introduced. In fact, at sidebar, the trial court expressed disappointment that the prosecutor had attempted to present additional evidence during argument, and had not sought approval from the court before conducting an experiment in the jurys presence. The court made clear, however, that while the prosecutors attempted demonstration was improper, it did not rise to the level of requiring a mistrial. The police detective did not assault the jury for the purpose of frightening them, and appellants contention on appeal that he did so is completely unfounded. In short, the prosecutors intended experiment was ill-advised, but he was prevented from carrying out the demonstration. What the jury actually saw--the detective walking a certain distance--amounted to nothing more than fair commentary on the evidence previously presented as to the distance between the shooter and the victims car in the intersection. Thus, the trial court did not abuse its discretion in denying the motion for mistrial.

V. Use of Modified Language of CALJIC No. 6.40

Appellant contends that the trial court erred by instructing the jury with regard to evaluating a witnesss reluctance to testify because that portion of the instruction on permissible use of the gang evidence was not supported by any evidence presented at trial. We disagree.

Specifically, the jury was instructed as follows: You have heard testimony and received evidence relating to the Defendants alleged membership in the West Side Locos street gang. That testimony and evidence were admitted for a limited purpose. You may consider that testimony and evidence as it relates to the special gang allegation. You may also consider this testimony and evidence for the purposes of determining motive and intent, and also for the purpose of evaluating the reluctance, if any, of any witness from giving testimony in this case. The weight and significance of this testimony and evidence is for you to decide.[6] (Italics added.)

Clearly there was evidence to justify giving the italicized portion of the instruction. Aguilar denied being threatened with any kind of retaliation if he told the truth, but he admitted he was scared that he or his family could suffer

retaliation if he testified truthfully. Gang expert Soboleski testified that victims and witnesses to gang crimes were often reluctant to testify out of fear of gang retaliation. We have concluded that no prosecutorial misconduct occurred with regard to the questioning of Aguilar, and that Aguilars reluctance to testify out of fear of retribution was relevant. The foregoing evidence having been properly elicited and admitted, it follows that we find the instruction was properly given.

VI. Excusal of Juror During Deliberations

Appellant also contends that the trial court committed reversible error when it discharged a juror who refused to deliberate out of fear of retaliation by gang members, and declined to declare a mistrial. Appellant points to the jurors reaction as confirmation of his assertion that the gang evidence was erroneously admitted and so highly prejudicial that a miscarriage of justice resulted. According to appellant, the prejudicial impact of the cumulative, repetitive, biased and inflammatory nature of this evidence irreparably tainted the proceedings in this matter to the extent that the appellant was denied his due process rights to a fair trial.

The Proceedings

On the first day of deliberations, one juror did not return after the lunch break. The jury foreperson sent a note to the court stating that: [o]ne of the jurors is refusing to vote out of fear of retaliation by the gang members. The foreperson told the court and counsel that the juror was adamant in his refusal to deliberate. The clerk informed the trial court that the juror had telephoned the clerk and said he was sick and would not be coming back; he initially declined to leave his phone number. The juror then called back and said he could return on Monday, and gave the clerk his phone number.

Defense counsel moved for a mistrial on the ground that the jury had been tainted, and asked that the jury be polled to determine what effect the jurors statement may have had. The trial court denied the motion for a mistrial, noting that from the forepersons statements it did not appear that a sense of fear had been instilled in the other jurors. The court stated that if anyone else was affected or in fear, they would probably volunteer that information.

The trial court determined that it was appropriate to remove the juror and to substitute one of the alternates. Counsel stipulated that the court should add to CALJIC No. 17.51 a statement that the jury was not to consider for any reason any statement made by the juror who was excused.

Analysis

We conclude that the court did not err in discharging the juror, or in denying the motion for a mistrial. There was no evidence the juror tainted the view of the other jurors, as they proceeded to deliberate without hesitation. As we have previously determined, the gang evidence was highly relevant to appellants motive and intent, among other issues, and it was not presented in unduly prejudicial fashion. Furthermore, the trial court correctly declined to poll the jury, as doing so would only have served to highlight the issue to the other jurors. The curative instruction given by the court was properly gauged to direct the remaining jurors to disregard any statements made by the discharged juror, and to begin deliberations anew, without calling further attention to the circumstances that led to the jurors discharge.

Indeed, it is not the jurors statements that appellant here asserts were prejudicial. Rather, he complains that the admission of the gang evidence was prejudicial, and the jurors reaction was merely symptomatic of that prejudice. As we have previously stated, we disagree. Further, we find illogical appellants assertion that [b]y convicting the appellant on all but the gang enhancement allegations, the jurors demonstrated their fear of the gang related issues and the improper and prejudicial effect of that evidence during their deliberations. Rather, by its verdict the jury demonstrated that it was not carried away either by fear of retaliation, or by a desire to convict appellant on all counts and on every enhancement allegation, simply because evidence was introduced that he belonged to a gang.

VII. Refusal to Give Pinpoint Instruction

Appellant requested a jury instruction concerning the effects of hallucinogens on a witnesss ability to recall events, based on Aguilars testimony that he drank a substantial amount of alcohol and ingested several hallucinogenic mushrooms the night of the incident. The proposed instruction stated as follows: Hallucination is a perception that has no objective reality. If the evidence establishes that a witness suffered from a hallucination, you should view that witness testimony with caution and close scrutiny.

The trial court refused the proposed defense instruction, and instead instructed the jury as follows: If you find that the evidence established that a witness suffered from the effects of hallucinogens and/or the effects of alcohol, you may consider this fact in evaluating this witnesss testimony.

Appellant now contends on appeal that [e]ven if the wording of the proposed instruction was inept or technically improper, the court had a duty to correct the instruction because the theory was made clear. (People v. Brady (1987) 190 Cal.App.3d 124, 136, disapproved on other grounds in People v. Montoya (1994) 7 Cal.4th 1027, 1039-1040; People v. Kegler (1987) 197 Cal.App.3d 72, 80.)

The wording of the proposed instruction was indeed inept; the definition of hallucination in the proffered instruction was vague and nonsensical. The court appropriately rejected the proposed instruction.

Assuming, without deciding, that the court was obligated to correct the instruction, we find that it did so. The court instructed the jury pursuant to CALJIC No. 2.20 that [i]n determining the believability of a witness you may consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness, including . . . [t]he extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness testified [and] [t]he ability of the witness to remember or to communicate any matter about which the witness has testified. In conjunction with the instruction given by the court, that you may consider [the fact, if so found, that a witness suffered from the effects of hallucinogens and/or the effects of alcohol] in evaluating this witnesss testimony, the jury was adequately instructed.

In any event, there is no reasonable probability that a different outcome would have ensued if the instruction had been given as requested by defense counsel. (People v. Watson, supra, 46 Cal.2d at p. 836.)

disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

[1] All undesignated section references are to the Penal Code.

[2] Appellant filed a petition for writ of mandate challenging the denial, which this court denied by order dated October 26, 2004 (Martinez v. Superior Court (B178737)).

[3] Cisneros did not in fact testify to any admission of gang membership by appellant.

[4] Cisneros was asked by the prosecutor if she had an opinion whether a person shown standing next to appellant in a photograph was a gang member. Defense counsels objection for lack of foundation and as calling for matter beyond her field of expertise was overruled.

[5] As described by defense counsel, The harm, Your Honor, is that the detective walked from his seat next to the jury all the way across to indicate the distance. The court agreed, Yes, he did. Defense counsel continued, And clearly, the inference was that you are going to hear whatever hes going to do. (Italics added.)

[6] Defense counsel requested that a limiting instruction be given with regard to the gang evidence, but the full text of the proposed, five-paragraph instruction is not in the record. However, it appears that the trial court agreed to give some portions of the instruction as proposed by defense counsel. The court rejected an alternate instruction proposed by the prosecution.

Defense counsel took the position that the portion of the instruction regarding reluctance of a witness to testify could confuse the jury because they could infer from it that they could consider the gang evidence with regard to Mirzaies testimony. The court found that because Mirzaie refused to testify, and everything he said was ordered stricken, the jury would not likely be confused. Notably, defense counsel did not dispute the prosecutors statement that the instruction pertained to Aguilars reluctance to testify.