P. v. Monteros

Filed 6/7/07 P. v. Monteros CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Francisco Monteros was convicted of first degree murder and attempted murder. On appeal, he alleges a multitude of errors, including instructional error, wrongful admission of evidence, and cumulative error. We affirm.

I. PROCEDURAL BACKGROUND

A jury convicted defendant of one count of murder in the first degree (Pen. Code,^[1] 187, subd. (a)) and one count of attempted murder ( 187, subd. (a), 664).^[2] With respect to the murder count, the jury found that defendant had personally used a firearm ( 12022.5, subd. (a), 12022.53, subd. (b)), intentionally and personally discharged a firearm causing great bodily injury ( 12022.53, subd. (c)), personally discharged a firearm causing great bodily injury ( 12022.53, subd. (d), 12022.7, subd. (a)), and had committed the murder for the benefit of, at the direction of, or in association with a criminal street gang ( 186.22, subd. (b)(1)). The jury further found true the special circumstances allegation that defendant intentionally killed Mario Ulloa while defendant was an active participant in a criminal street gang and that the murder was carried out to further the activities of the criminal street gang ( 190.2, subd. (a)(22)).

With respect to the attempted murder count, the jury found that defendant had personally used a firearm and had intentionally and personally discharged a firearm in the attempted murder of Linda Rodriguez. ( 12022.5, subd. (a), 12022.53, subds. (b), (c).) However, the jury found that defendant did not personally discharge a firearm causing great bodily injury ( 12022.53, subd. (d), 12022.7, subd. (a)), and had not committed the attempted murder for the benefit of a criminal street gang ( 186.22, subd. (b)(1)).

As to the first degree murder count, the trial court sentenced defendant to life in prison without the possibility of parole, plus an additional consecutive term of 25 years to life for personal discharge of a firearm causing great bodily injury ( 12022.53, subd. (d)). The trial court stayed the imposition of sentence as to the other enhancements ( 12022.53, subds. (b), (c), 12022.5, subd. (a), 12022.7, subd. (a)). With respect to the attempted murder count, the trial court sentenced defendant to a consecutive term of seven years, plus an additional consecutive 20-year term for personal and intentional discharge of a firearm ( 12022.53, subd. (c)). The trial court stayed the imposition of sentence as to the personal use enhancement ( 12022.5, subd. (a), 12022.53, subd. (b)). Defendant received a total sentence of life without the possibility of parole, plus 52 years.

II. FACTS

A. Prosecution Evidence

1. Events Prior to the Murder and Attempted Murder

The victim, Mario Ulloa (Mario),^[3]was affiliated with a branch of the Sureos gang. Defendant was affiliated with a gang known as Dont Give a Fuck (DGF), which is a branch of the rival Norteos gang. In the fall of 2001, Mario and his girlfriend, Linda Rodriguez (Linda), lived with his family at 27761 Pensacola Way, on the corner of Sumatra Street in Hayward, which was considered to be the heart of DGF territory. Mario and his family had moved to Pensacola Way in April 2001. Linda began living with Mario and his family in September 2001.

Joanna Ulloa (Joanna), Marios younger sister, testified about an incident between defendant and Mario occurring in late September 2001. Joanna saw defendant outside of her house and heard him yelling at Mario. Mario had been alone in the front yard. When Joanna went outside to join Mario, she saw defendant spit in his face. Mario told defendant that he did not want any problems and asked defendant to leave. Defendant angrily told Joanna to watch out for her brother and to take care of him. Joanna then screamed at defendant and told him to leave. After telling Joanna to  shut up,  defendant yelled to Mario that he should take care of his sister.

Joanna saw defendant three more times after the incident in the front yard. Approximately two weeks before the murder, defendant stopped Joanna and her two friends as they were walking to school and asked them if a Sureo was living at the house on the corner. All three girls said no. On another occasion, defendant stopped Joanna as she walking home from school and told her to take off the blue scrunchie she was wearing in her hair. Defendant told Joanna not to wear the color blue and offered to buy her some red clothes.^[4] Joanna declined the offer and told defendant that she did not like the color red. On a third occasion, Joanna saw defendant as she was walking to the drugstore with Linda. Joanna and Linda kept walking as defendant tried to talk to them. As they were walking, Linda told Joanna that defendants name was Francisco Monteros. Joanna told Linda that she already knew defendants name.

Fernando Ulloa (Fernando), Marios younger brother, saw defendant in the neighborhood [a] lot prior to the murder. Fernando said that defendant had thrown gang signs at him on numerous occasions. Two days before the murder, four men came to the Ulloa family home looking to fight with Mario. Defendant was not part of the group. The men confronted Mario and told him that he had come to the wrong hood. They told him, get out of here, youre going to get killed, you better watch your back, scrap. Fernando explained that scrap, which means garbage, is a derogatory term used by Norteos against Sureos. Mario said that he did not want to fight. The four men left when they heard the police. After Marios death, Fernando joined the Sureos gang.

Juan Carlos Ulloa (Juan Carlos), Marios older brother, testified about an incident that took place a few days before the murder.^[5] Defendant, along with three other individuals, came to the Ulloa family home in a brown Honda Accord. The driver of the car was Greg Ignacio, who also went by the name of G. Defendant threatened to kill Mario. Defendant told Mario, Youre going to die very soon.

2. The Murder and Attempted Murder

On November 14, 2001, at approximately 7:40 p.m., Mario and Linda were returning home by bicycle, after Mario had submitted a job application for a position at a local movie theater. Mario was pedaling the bicycle and Linda was sitting on the cross-bar. As Mario turned onto Pensacola Way, he told Linda that he hoped there were no Norteos out on the street. Immediately, Linda saw a group of five or six men standing in front of a house.

Defendant emerged from the group of men and ran in front of Marios bicycle, and said,  Whats up[?]  The other men were on the sidewalk. Defendant was wearing a hooded sweatshirt with the hood down. The first thing that drew Lindas attention to defendant was his hair. Defendant had an Afro hairstyle, which Linda further described as being big hair on his head. Linda had an unobstructed view of defendants face and hair.

In response to defendant, Mario said,  Whats up[?]  As Mario began pedaling faster, defendant started chasing Mario and Linda. Defendant was the only person chasing after the bicycle. At one point, defendant was as close as five feet from Linda. Mario pulled out a knife from his pants and told defendant to  back up.  Defendant stopped running, and Mario and Linda continued riding the bicycle to Marios home.

Three seconds later, Linda heard three gunshots. Mario screamed, and both he and Linda fell off the bicycle. Linda got up and started running toward Marios house. She heard Mario say,  Its cool, its cool, its cool.  Approximately 15 seconds after she heard the first three shots, Linda heard six more shots. As Linda was running, a bullet dropped from her pants. While she was still running, Linda touched herself and felt blood on the right side of her back. Upon reaching Marios house, she told his family what had happened.

On cross-examination, Linda testified that she did not see anyone with a gun and did not know who shot Mario. She described defendant as being stocky, not skinny or slender. She said that defendant was not in the group of men who threatened Mario two days before his death.

Deverie Andrade lived at 27706 Pensacola Way. On the evening of November 14, 2001, she heard a succession of four gunshots, a pause, and then several more gunshots. Andrade looked out her front door and saw a man standing at the end of her driveway; the man was shooting a gun at a twitching body on the ground. She identified defendant as the person firing the shots. She did not see anyone else in the street.

Andrade had known defendant for approximately four to five years. She knew defendant by his nickname, Paquito. Defendant had been a close friend of her nieces boyfriend. Defendant had been in Andrades home on several occasions. Andrade described defendant as being tall and slender.

Andrade did not like DGF members hanging out and dealing drugs on her street. She knew defendant was involved with the DGF gang. On almost a daily basis, she saw defendant selling drugs on her street. Andrade had urged appellant to change his lifestyle, but he was not responsive to her suggestions.

At the time Andrade saw defendant standing over the body, she did not see his face. She described him as wearing jeans and a dark-colored hooded sweatshirt that partially covered his face. Although she could not see his face, Andrade knew it was defendant just by looking at his body type and the way he moved. As she saw defendant firing the shots, she also heard him yelling. She described the voice as very loud and very angry. Andrade did not recognize the voice as defendants voice. She further explained, I didnt say, oh, well, thats Paquitos voice. I just thought that was Paquito.

Andrade called 911 to report the shooting. While she was on the phone with the 911 dispatcher, the gunshots stopped and Andrade went outside. She saw a body lying partially under her sisters car that had been parked in the driveway. As she was standing outside, Andrade saw a green Focus drive past her. She saw defendant sitting in the drivers seat. Andrade saw defendants face and hair. Defendant was no longer wearing the hood on his head. Andrade surmised that defendant was leaving the scene of the crime.

Andrade had seen defendant in the same green car earlier the same day. She also had observed defendant in the green Focus on several other occasions. Over a period of months, Andrade had seen defendant in at least four different cars. On the night of the murder, Andrade told the police that she heard gunshots but did not see anything. Andrade explained that she initially was reluctant to tell the police what she had witnessed because she worried about retaliation from DGF and feared for her life.

Juan Carlos was near his house, sitting in his parked car, when he heard gunshots. He heard a pause and then more gunshots. Juan Carlos thought of Mario. Juan Carlos drove toward the sound of the gunshots. As he was driving, Linda crossed in front of him. She was crying and screaming,  Mario, Mario.  Upon seeing Mario on the ground, Juan Carlos stopped his car in the middle of the street. Juan Carlos saw defendant firing the shots and then saw him running off to get into a car. Juan Carlos described the car as a brown Honda Accord; it was the same car defendant had been in when he came to the Ulloa home and threatened Mario. As he stopped his car, Juan Carlos almost hit the brown Honda Accord, which was making a three-point turn. In making the three-point turn, the brown Honda Accord drove near Marios body. Juan Carlos saw defendant and two other individuals get into the car; the driver was already inside of the car. Juan Carlos ran to Mario, hugged him and closed his eyes.

On cross-examination, Juan Carlos admitted that initially he told the police he did not see anything. Juan Carlos explained that he did not tell the police that defendant was the shooter because he wanted to kill defendant. Approximately six hours after the murder, Juan Carlos told an officer in a patrol car that he knew who did it. However, Juan Carlos did not tell the officer that he saw the actual shooting. Juan Carlos denied that he told the officer that he thought the gunshots came from a small, green car. He further denied that he told the officer that he saw defendant get into a green car. Rather, Juan Carlos explained that he saw a small green car pass by many times before he heard the shots.

Ruth Winters, who lived at 27671 Pensacola Way, heard four shots, a pause, and then seven more shots. After the shooting stopped, she opened her door and saw a small dark car. A man with kind of poofy hair was on the passenger side of the car, saying,  I cant get in, its locked.  The man started to go to the back of the car, but returned to the same side and got in. Winters could not see the mans face. She told the police that the man sounded Latino. She could see the silhouettes of two people sitting inside of the car.

Paramedics unsuccessfully tried to revive Mario. Linda was taken to the hospital for treatment of a bullet wound.

3. The Investigation

a. Evidence at the Scene

Michelle Combs, a crime scene technician with the Hayward Police Department, recovered four .40-caliber cartridge casings, and eight .45-caliber cartridge casings, as well as unfired rounds, near Marios body and in the street. The .45-caliber evidence suggested that the shooter was standing close to the victim or the nearby car. The .40-caliber evidence suggested the shooter was on the driveway of the residence. Combs explained that a .40-caliber gun is designed to fire only .40-caliber bullets, and a .45-caliber gun is designed to fire only .45-caliber bullets. A knife with a black plastic handle and a four and one-half inch serrated blade was found in the middle of the street. Combs did not take an actual measurement of the distance between the knife and Marios body. However, based on other measurements of the scene, she estimated that the knife was a minimum of 26 feet away from Marios body.

b. Cause of Death

An autopsy revealed that Mario had suffered a total of 22 entrance and exit wounds. The pathologist explained that some bullets caused more than one entrance and exit wound. Mario sustained four serious wounds to his torso. Any one of the torso wounds alone could have caused Marios death. The pathologist opined that the cause of death was multiple gunshot wounds.

c. Identification of Defendant

Shortly before midnight on November 14, 2001, Hayward Police Inspectors Steven Schwartz and Robert Coffey spoke to Linda at the police station. Linda was shown six photographic lineups, each containing six different photographs. She described the suspect as a male, who was neither black nor white, but possibly Samoan or Pacific Islander. Among the 36 photographs that she examined, Linda selected a photograph of defendant. Linda said that the person in the photograph was the same person who had cut in front of the bicycle and had challenged Mario. Linda had not seen a gun in the persons hand. Linda also recognized a photograph of someone she knew as Miguel, but said that he had nothing to do with the crime. Linda identified defendant in a subsequent photographic lineup on March 15, 2002.

At trial, Linda said that she was certain defendant had been the person chasing the bicycle. However, she was not certain that the photograph, which she had selected in the first photographic lineup, was, in fact, a photograph of defendant. On cross-examination, Linda admitted that after selecting the photograph of defendant she asked Schwartz and Coffey,  What about if Im confusing him and the guy that looks like him[?]  In total, Linda had made three in-court identifications of defendant, and had selected him in two photographic lineups.

At approximately 2:50 a.m. on November 15, 2001, Schwartz and Coffey interviewed Juan Carlos at the police station. At the time of the interview, Juan Carlos was extremely upset about Marios death. He was sobbing and had his head down with his hands covering his face. Juan Carlos explained that, although he understood and spoke some English, he was more comfortable speaking in Spanish. However, given the time of the interview, no Spanish translators were available, so the interview was conducted in English.

Juan Carlos told the inspectors that he was parked near his house when he heard shots. As he drove in the direction of where he thought the shots were coming from, he saw a small green car making a three-point turn in front of him. Juan Carlos said that he recognized defendant and defendants brother in the car. Schwartz explained that, although defendant and Ignacio were not related, many people thought they were brothers because they looked alike. Ignacio, however, was shorter and heavier than defendant. Juan Carlos told the inspectors that he previously had purchased drugs from Ignacio, who he knew as G. Juan Carlos also said that Mario had had problems with a Francisco Monteros.

The inspectors showed Juan Carlos a photographic lineup. Juan Carlos selected Ignacios photograph and identified him as the person he knew as G and as the person he thought was defendants brother. Juan Carlos thought that G had been sitting in the green car in the rear passenger seat. Juan Carlos also pointed to defendants picture and said that he thought Mario had had problems with him as well. Schwartz stated that Juan Carlos was unable to put that together with this [the photograph] being Francisco Monteros. The interview ended at 3:30 a.m., with the understanding that the interview would be repeated with a Spanish-speaking officer.

On November 16, 2001, two days after the murder, Andrade attended a luncheon where she saw Deputy Chief Dennis Houghtelling, with whom she previously had done community work. At that point, she decided to take responsibility for her neighborhood and tell the truth about what she had witnessed. She told Houghtelling that she had some pretty important information about the shooting that had occurred on Pensacola. Houghtelling told Andrade that he would contact the detectives at the Hayward Police Department and arrange a meeting.

Later that evening, Andrade met Schwartz and Coffey. She told them she knew a lot of young people in the neighborhood, including defendant, who she knew as Paquito. On the day of the murder, Andrade had seen defendant driving a new, green car with paper license plates.

Andrade told the inspectors that when she heard shots fired, she looked out her front window and saw a man standing over Marios body and firing a gun. She said the shooter was wearing a hood. Although Andrade could not see the shooters face, she believed the shooter was defendant. Andrade told the inspectors that she had seen defendant on the street for many years and believed he was the shooter based on his body movements. She further explained that she had been a nurse for 18 years and had been trained to look at body types and body movements.

Andrade told Schwartz and Coffey that, approximately two minutes after hearing the shots and seeing the shooter, she saw defendant drive by in the same green car she had seen him in earlier in the day. Defendant was no longer wearing the hood over his face, which allowed Andrade to see his face and his long, curly, frizzy hair. Andrade said she was positive that the person in the green car was defendant.

Andrade selected defendants photograph from a photographic lineup. She placed her initials, as well as a happy face, on the photocopy of defendants picture. Andrade explained that she drew the happy face because she was scared and sad, and the drawing helped her to stay positive. Andrade subsequently identified defendant as the shooter at the preliminary hearing, and at another pretrial hearing. At trial, Andrade positively identified defendant as the shooter. At the time of trial, defendant wore his hair in a very short, shaved hairstyle. He also appeared to be much heavier at the time of trial.

On cross-examination, Andrade admitted that she told Schwartz and Coffey that she did not like defendant. She thought he was big trouble. Andrade admitted that she heard the shooter yelling, but could not recognize the voice. Andrades first thought was whats Paquito doing? However, when Andrade called 911 to report the shooting, she did not mention that she had seen the shooter. She also did not mention seeing the shooter in her signed statement, which she gave to the police on the night of the murder. She further admitted that her exact words to Schwartz and Coffey about what she had said to Houghtelling were,  I can tell you, off the record, my gut feeling is its Paquito or somebody that was with him. But, on the record, if you were to say, theres no way I can tell you, you know, I didnt see his face.  Andrade recalled that she previously had described defendants hair as being somewhat of a pageboy-type look. She agreed that defendants exhibit I, which depicted a pageboy hairstyle, reflected the hairstyle of the driver of the car.

4. Defendants Arrest

Defendant was arrested on February 15, 2002, after running from several uniformed police officers. One of the arresting officers yelled,  Hayward Police, stop.  However, defendant continued to run even after being ordered to stop. In the course of the chase, defendant jumped a cyclone fence and threw away a gun. The gun was a nine-millimeter weapon, which was not capable of firing .40- or .45-caliber rounds. Further investigation revealed that the nine-millimeter gun had been stolen in a burglary of a gun store on October 2, 2001. At the time of his arrest, defendant wore his hair shaved close to his head.

5. Gang Enhancement

Inspector John Lage testified as an expert on criminal street gangs, particularly Norteos and Sureos gangs. He explained that South Side Hayward (SSH), Latin Crew (LC), and DGF were Norteos gangs that aligned themselves under the subset umbrella of South Side Hayward. He stated that SSH/DGF/LC had more than 200 members and affiliates at the time of the murder. He further stated that SSH/DGF and the Sureos were rival gangs.

Lage stated that members of SSH/DGF claim the south side of Hayward as their turf. He stated that the area of Pensacola Way between Mantilla and Sumatra was the traditional heart of DGF. He further explained this area had the strongest concentration of DGF gang members.

Lage opined that the SSH/DGF/LC Norteno gang engaged in a pattern of criminal gang activity. Before Lage provided the basis for his opinion, the trial court instructed the jury that the evidence could not be considered as proof of defendants bad character, but was to be considered for the limited purpose of determining, if it tends to show, that the crime or crimes charged were committed for the benefit of, at the direction of or in association with a criminal street gang with the specific intent to promote, further, or assistant in any criminal conduct by gang members.

Lage testified about the following four predicate offenses committed by SSH/DGF/LC Norteos gang members: (1) In February 1999, Harold David Matus was convicted of attempted murder with a firearm. (2) In April 1999, Ruben Bocanegra, Ruben Chaves, and Frank Florez were convicted of possession of rock cocaine for sale. (3) On January 26, 2001, Rohan Haroon and Kayvon Mortazavi attempted to murder Mario with a firearm. Mario was scheduled to testify at the trial beginning on November 15, 2001, the day after he was killed. In December 2001, Haroon entered a plea of guilty/no contest. (4) In November 2003, Frank Albert Florez, who had committed the second predicate offense, was convicted of shooting into an inhabited dwelling in April 2001.

Lage further opined that defendant was an active member of the SSH/DGF/LC gang on November 14, 2001. Lages opinion was based, in part, on his review of police reports of incidents between 1996 and 2005 that involved defendant. He also reviewed field contact cards, which reflected that defendant had claimed membership in both SSH and DGF on numerous occasions in 1999 and 2001.

Lage also based his opinion on an assault that defendant allegedly committed on January 17, 2005, while he was in custody at the Santa Rita Jail. According to Lage, there had been a confrontation between one of defendants associates and another man. The two men  squashed it,  which meant the confrontation was resolved without violence. The resolution included an apology by defendants associate, which was viewed with disfavor by defendant and other Norteos. As a result, defendant and the other Norteos beat the associate. Lage opined that this incident suggested defendant had remained an active gang member even after November 14, 2001.

Additionally, Lage based his opinion on an October 17, 2001, assault of Carlos Barajas, an admitted Sureos gang member. A witness stated that defendant hit Barajas over the head with a pipe.

Lage took into consideration an October 2, 2001, burglary of a gun shop. Approximately 15 handguns were stolen, including a .40-caliber handgun and a nine-millimeter handgun. The .40-caliber handgun was recovered from Ignacio after his home had been searched in December 2001, which resulted in Ignacios arrest and conviction for possession of stolen guns. The nine-millimeter handgun that defendant discarded at the time of his arrest was also listed as being stolen from the same gun shop on October 2, 2001. Lage testified that gun burglaries reflect a pattern of criminal gang activity.

B. Defense Evidence

The defense called Rhoda Benson, Andrades mother. Benson lived in the same house as Andrade. She testified that on November 14, 2001, she did not recall seeing any vehicle speed by when she and her daughter opened the door after the shooting had stopped. On cross-examination, Benson stated that she had no reason to believe that Andrade hated defendant. However, Benson admitted that she and Andrade did not like the gang activity on their street.

Officer David Dorn interviewed Andrade on the night of the shooting. Andrade reported seeing a dark green Focus-type vehicle, but did not identify the driver. She also did not mention that she saw someone shooting at an object on the ground.

Coffey interviewed Fernando on February 28, 2002. Fernando said that defendant would come by his house every two or three days and would taunt his family. Fernando described defendant as having a [c]hubby build. He told Coffey about the incident that occurred two days before the murder, when four Norteos came to his house and confronted Mario with sticks and bats. Fernando said that defendant was not part of the group.

Officer Fraser Ritchie interviewed Linda on the night of the murder. She described the man who ran out in front of the bicycle and chased her and Mario as a Samoan, Filipino male, late teens, early 20s. 59[] to six-foot [tall], medium to stalky [sic] build with one-inch to two-inch loose Afro last scene [sic] wearing a red 49er sweatshirt with silver writing on the front of it, dark pants and dark shoes.

Inspector John Paul Guimaraes interviewed Juan Carlos on February 28, 2002. He conducted the interview in Spanish. Juan Carlos described defendant as having a large build, similar to a Samoan. Juan Carlos described the incident between defendant and Mario, when Mario was outside working on the lawn. Juan Carlos said defendant arrived in a brown Ford-type vehicle. Juan Carlos said that defendant challenged Mario to a fist fight, but did not mention defendant had threatened to kill Mario.

On the night of the murder, Juan Carlos saw a light green or blue vehicle make a three-point turn. He saw defendant in the right front passenger seat and G (Ignacio) in the right back passenger seat. Juan Carlos did not recognize the driver or the other rear passenger.

III. DISCUSSION

A. Exclusion of Andrades Identification

Prior to trial, defendant moved to exclude eyewitness identifications on the ground that the identifications were the products of unduly suggestive police procedures. The trial court conducted a lengthy Evidence Code section 402 hearing to determine the admissibility of the evidence and heard foundational evidence from Andrade, and other eyewitnesses, regarding the identification of defendant.

On appeal, defendant contends that Andrades identification should have been excluded as being speculative and lacking foundation under Evidence Code section 702, subdivision (a). To testify, a witness must have personal knowledge of the subject of the testimony, i.e., a present recollection of an impression derived from the exercise of the witness own senses. (Cal. Law Revision Com. com., reprinted at 29B pt. 2 Wests Ann. Evid. Code (1995 ed.) foll.  702, p. 300; Evid. Code,  702, subd. (a).) In order to have personal knowledge, a witness must have the capacity to perceive and recollect. [Citation.] (People v. Lewis (2001) 26 Cal.4th 334, 356 (Lewis).) The trial court  may exclude the testimony of a witness for lack of personal knowledge only if no jury could reasonably find that he [or she] has such knowledge.  (People v. Anderson (2001) 25 Cal.4th 543, 573.) If there is evidence that the witness has the capacity to perceive and to recollect,  the determination whether he [or she] in fact perceived and does recollect is left to the trier of fact. [Citation.] [Citations.] (Id. at pp. 573-574.)

Defendant did not object to Andrades testimony on the ground that she lacked personal knowledge. Rather, defendant filed a motion to suppress Andrades identification as being the product of unduly suggestive police procedures. It is the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.  (People v. Raley (1992) 2 Cal.4th 870, 892; see also People v. McPeters (1992) 2 Cal.4th 1148, 1188 [by failing to object to evidence of other crimes on constitutional grounds below, defendant waived his federal due process and equal protection challenges on appeal]; Evid. Code,  353.) Defendant, nonetheless, claims that this rule does not impede his claim on appeal.

Citing People v. Yeoman (2003) 31 Cal.4th 93 (Yeoman), defendant asserts that his claim has been adequately preserved for appeal because it merely restates, under alternative legal principles, the same issue raised in the trial court. Defendants reliance on Yeoman is misplaced. There, the People contended a defendant had waived his claim under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) by only citing People v. Wheeler (1978) 22 Cal.3d 258 at trial. (Yeoman, supra, 31 Cal.4th at p. 117.) Our Supreme Court held that the defendant did not forfeit his Batson claim and addressed the merits of the claim on appeal. (Yeoman, at pp. 117-118.) In so holding, the court provided the following rationale: As a general matter, no useful purpose is served by declining to consider on appeal a claim that merely restates, under alternative legal principles, a claim otherwise identical to one that was properly preserved by a timely motion that called upon the trial court to consider the same facts and to apply a legal standard similar to that which would also determine the claim raised on appeal. Defendants Batson claim is of that type. His motion under Wheeler . . . required the trial to conduct the same factual inquiry required by Batson into the possibly discriminatory use of peremptory challenges, and to apply a standard identical to Batsons for determining whether defendant had stated a prima facie case. [Citation.] (Ibid.)

Here, unlike in Yeoman, supra, 31 Cal.4th 93, the claim on appeal is not otherwise identical to the one that was raised in the trial court.   In deciding whether an extrajudicial identification is so unreliable as to violate a defendants right to due process, the court must ascertain (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification was nevertheless reliable under the totality of the circumstances.  [Citation.] The defendant bears the burden of demonstrating the existence of an unreliable identification procedure. [Citation.] (People v. Gonzalez (2006) 38 Cal.4th 932, 942-943 (Gonzalez).) A photographic lineup is unduly suggestive if  anything caused defendant to stand out from the others in a way that would suggest the witness should select him. [Citation.] (Id. at p. 943.)

Thus, defendants motion to suppress Andrades identification required the trial court to initially determine whether the photographic lineup caused defendant  to stand out from the others in a way that would suggest the witness should select him.  (Gonzalez, supra, 38 Cal.4th at p. 943.) This inquiry is factually and legally dissimilar to defendants claim on appeal, which challenges Andrades qualifications to testify. Thus, defendants failure to object on the basis of Evidence Code section 702, subdivision (a), constitutes a waiver of this claim on appeal. (Lewis, supra, 26 Cal.4th at p. 357.)

In any event, even assuming that defendant had preserved the issue for appeal, his claim fails on the merits. Defendant argues that Andrade lacked actual knowledge he was the shooter, but instead impermissibly identified him based on speculation and her gut feeling. A witnesss uncertainty about his or her recollection of events does not preclude admitting his or her testimony. [Citation.] (Lewis, supra, 26 Cal.4th at p. 357.) Rather, a witness may testify that in her belief the accused is the person who perpetrated the crime, and the lack of certainty goes only to the weight of such testimony. (People v. Rist (1976) 16 Cal.3d 211, 216 (Rist), superseded by statute on another ground as stated in People v. Collins (1986) 42 Cal.3d 378, 393; People v. Gonzales (1968) 68 Cal.2d 467, 472 (Gonzales) [applying former Code Civ. Proc.,  1870, subd. 9, superseded by Evid. Code, 720, 800, 801, 1416]; People v. Avery (1950) 35 Cal.2d 487, 492 (Avery) [applying former Code Civ. Proc., 1845, superseded by Evid. Code, 702, 800, 801, 1200].) In other words, the fact that a witness is unable to identify the defendant positively and is not free from doubt does not render inadmissible the witnesss testimony based on the witnesss belief. (Avery, supra, 35 Cal.2d at p. 497.)

For example, in Gonzales, supra, 68 Cal.2d at page 472, a police officer saw a man he believed to be the defendant leave a bar. The officer testified that in his opinion the man he saw leave the bar was defendant, that clothing and specified characteristics of the man appeared to be the same as those of defendant, but that [he] did not see the facial characteristics of the man and could not positively identify defendant as the man. (Ibid.) Our Supreme Court held that the trial court did not err in admitting the testimony. The court explained that the [l]ack of positiveness as to the mans identity went to the weight and not to the competency of the evidence. (Ibid.)

Here, Andrade testified that her gut feeling was that the man she saw shooting the gun was defendant, that the clothing and body type of the man appeared to be those of defendant, whom she had known for approximately five years. However, Andrade could not positively identify defendant as the man with the gun because a hood obscured his face. Minutes later, Andrade clearly saw defendant drive by wearing a similar hooded sweatshirt, with the hood down. Any lack of certainty as to her identification of defendant goes to the weight and not the admissibility of the evidence. (Rist, supra, 16 Cal.3d at p. 216; Gonzales, supra, 68 Cal.2d at p. 472; Avery, supra, 35 Cal.2d at p. 492.)

The cases cited by defendant do not compel a contrary conclusion. In People v. Daniels (1991) 52 Cal.3d 815, 837 (Daniels), a jury convicted a defendant of, among other things, cocaine possession. At trial, defendant called his roommates employer to support the theory that his roommate had been dealing cocaine. (Id. at pp. 838, 861.) At an Evidence Code section 402 hearing, the employer said that he had seen defendants roommate, James Cornish, give packages to people at work, but the employer did not know the contents of the packages, nor had he seen a package given in return for money. (Daniels, at p. 861.) The employer had spoken to Cornish about Cornishs drug use, but he was not sure if he had, in fact, witnessed drug deals involving Cornish. (Ibid.) When asked whether he had any personal knowledge that Cornish was dealing cocaine, the employer stated that he could only speculate based upon rumors he had heard. (Id. at p. 861, fn. 16.) The trial court excluded the employers testimony on the grounds that it was based on rumors, hearsay, and speculation; and found that the employer did not have personal knowledge of the cocaine sales. (Id. at p. 861.) On appeal, the defendant cited to evidence that Cornish had been involved with cocaine at other times. (Id. at p. 862.) Rejecting the contention that personal knowledge could be inferred through hindsight, the Supreme Court held that the trial court did not err in excluding the employers testimony for lack of personal knowledge. (Ibid.)

Here, unlike in Daniels, supra, 52 Cal.3d 815, Andrades testimony was not based solely on speculation. Andrade was clear in her testimony that she witnessed a man she believed to be defendant shooting a gun. She based this opinion on the fact that she had been acquainted with defendant for approximately five years and knew his body type and the way he moved. The fact that she did not use facial features to identify defendant is not improper. (People v. Barrett (1968) 267 Cal.App.2d 135, 141, 146 [proper for witness to identify two masked defendants by their actions and their height].) Andrade also based her identification on the fact that she saw defendant drive by her home immediately after the shooting had stopped.

In People v. Farmer (1989) 47 Cal.3d 888, 903 (Farmer) (overruled on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6), a dying victim gave a very general description of his assailant to a police officer, which identified the assailants race, weight, height, and age. The defendant asserted that the description more closely fit a third party who defendant claimed killed the victim. (Farmer, supra, 47 Cal.3d at pp. 907-908.) At the preliminary examination, defense counsel asked the officer to choose whether the defendant or the third party more closely matched the victims description of his assailant. The officer selected the third party. (Ibid.) When defense counsel asked the same question at trial, the prosecutor objected; the trial court sustained the objection on the ground that it was  pure speculation and opinion.  (Id. at p. 908.) The Supreme Court rejected the defendants contention that the excluded testimony should have been admitted as opinion testimony (Evid. Code, 800), which supported the theory that the third party killed the victim. (Farmer, at p. 908.) The court explained, [t]he weak link in this chain of reasoning is the assertion that [the officers] opinion was of special value to the jury. . . . [The officers] selection of [the third party], based purely on the information he had received from [the victim], was speculation. [The victims] physical description of his assailant was so general that countless men in the Riverside area would have matched it. (Ibid.)

Defendant contends that the analysis in Farmer, supra, 47 Cal.3d 888 applies here. We disagree. Although Andrade did provide a general description of the shooter as being tall, slender, and wearing jeans and a dark-colored hooded sweatshirt, she did provide specific details as to his hairstyle. Defendant makes much of the fact that Andrade described defendants hairstyle as a pageboy type, whereas other witnesses testified that he had an Afro. However, inconsistencies or contradictions in a witnesss testimony as to defendants identity, and his presence at the time of the offense, is a factual question for the jury. (People v. Ramirez (1958) 163 Cal.App.2d 590, 593 [discrepancies regarding color and description of defendants car was factual question for jury]; People v. Finkel (1945) 70 Cal.App.2d 508, 513-514 [inconsistencies about a defendants race was jury question; strength or weakness of identification was jury question].) Moreover, Andrade, unlike the police officer in Farmer, was a percipient witness.

Finally, People v. Redmond (1969) 71 Cal.2d 745, 757, 760, involved the reversal of a conviction on the ground that there was insufficient evidence of identification to support the defendants robbery conviction. Here, however, defendant does not challenge the sufficiency of the evidence, but asserts that Andrades testimony should had been excluded for lack of personal knowledge. As discussed, a witnesss uncertainty in her identification goes to the weight of the evidence, not its admissibility. (Rist, supra, 16 Cal.3d at p. 216; Gonzales, supra, 68 Cal.2d at p. 472; Avery, supra, 35 Cal.2d at p. 492.) Thus, we reject defendants claim of ineffective assistance of counsel for failing to timely object to Andrades testimony. Where  there was no sound legal basis for objection, counsels failure to object to the admission of the evidence cannot establish ineffective assistance [of counsel]. [Citation.] (Lewis, supra, 26 Cal.4th at p. 359.)

B. Failure to Instruct the Jury on Lesser Included Offenses

The trial court instructed the jury on premeditated and deliberate first degree murder, along with the special circumstances regarding an intentional killing by an active street gang member. The court also instructed on second degree murder. Additionally, the court instructed on attempted murder and on concurrent intent to kill a person within a particular zone of risk. The trial court refused defendants request to instruct on voluntary manslaughter and attempted voluntary manslaughter based on sudden quarrel or heat of passion. Defendant contends that the failure to instruct on voluntary manslaughter and attempted voluntary manslaughter as lesser included offenses was prejudicial error requiring reversal. We disagree.

In a criminal case, a trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154 [Breverman] . . . .) Therefore, even without a request, the court must instruct on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present. (Ibid.) (People v. Earp (1999) 20 Cal.4th 826, 885 (Earp).) However, the existence of any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. [Citations.] Substantial evidence in this context is  evidence from which a jury composed of reasonable [persons] could . . . conclude[]  that the lesser offense, but not the greater, was committed. [Citations.] (Breverman, supra, 19 Cal.4th at p. 162.)

Murder is the unlawful killing of a human being with malice aforethought. ( 187, subd. (a).) Voluntary manslaughter and attempted manslaughter are lesser included offenses of murder when the requisite mental element of malice is negated by a sudden quarrel or heat of passion, or by an unreasonable but good faith belief in the necessity of self-defense. (People v. Lee (1999) 20 Cal.4th 47, 59; Breverman, supra, 19 Cal.4th at p. 154; People v. Gutierrez (2003) 112 Cal.App.4th 704, 708; see also  192, subd. (a).) Here, self-defense, imperfect or otherwise, is not argued. A homicide is voluntary manslaughter under a heat of passion theory only if the killers reason was actually obscured as the result of a strong passion aroused by a provocation sufficient to cause an  ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.  [Citations.] (Breverman, supra, 19 Cal.4th at p. 163.) Accordingly, for voluntary manslaughter, provocation and heat of passion must be affirmatively demonstrated. [Citations.] (People v. Steele (2002) 27 Cal.4th 1230, 1252 (Steele).)

The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. . . . [T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, because no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. [Citation.] (Steele, supra, 27 Cal.4th at pp. 1252-1253.)

On appeal, defendant argues that a voluntary manslaughter instruction was warranted because Mario pulled a knife on him and threatened him with it.^[6] However, at trial, the voluntary manslaughter instructions were not requested on this basis. Rather, defense counsel half-heartedly asserted that Marios sudden arrival in rival gang territory triggered the kind of passion that could lead to . . . very violent conduct. In any event, assuming defendants alternate claim on appeal has not been waived, it, nonetheless, fails on the merits.

Defendant relies on People v. Barton (1995) 12 Cal.4th 186 (Barton) to support his assertion that the instant case is a classic, textbook example of provocation, warranting manslaughter instructions. In Barton, a defendant was convicted of voluntary manslaughter. (Id. at p. 194.) There, the court found the following evidence warranted instructions on voluntary manslaughter despite the defendants objection: Defendant testified that shortly before the killing of Sanchez, his daughter Andrea had come to him, extremely upset, and told him that [Sanchez] had threatened her with serious injury by trying to run her car off the road, and that he had spat on the window of her car. When defendant and his daughter confronted Sanchez about his conduct, Sanchez called defendants daughter a bitch and he acted as if he was berserk. Defendant and Sanchez angrily confronted each other and Sanchez assumed a fighting stance, challenging defendant. After defendant asked his daughter to call the police, Sanchez started to get into his car; when defendant asked Sanchez where he was going, Sanchez replied, none of your fucking business, and taunted defendant by saying, Do you think you can keep me here? Screaming and swearing, defendant, before firing, ordered Sanchez to drop the knife and to get out of his car, threatening to shoot if Sanchez did not do so. (Id. at p. 202.)

Quite obviously, given the defendants own testimony in Barton, supra, 12 Cal.4th 186, there was a basis for a heat of passion instruction. The victim provoked the defendant by threatening injury to his daughter, by challenging the defendant physically, by taunting the defendant, and by swearing at and arguing with the defendant while holding a knife. These actions supported a finding that the victim had acted in a way that would have provoked a reasonable person to act rashly or without deliberation under the circumstances. (Id. at p. 202.) The evidence also supported a finding that the defendant was, in fact, goaded into a state of rage or extreme passion. The defendant testified that he was [s]creaming and swearing when he fired the fatal shot. (Ibid.)

Defendant argues that the provocation in the instant case was far greater than that involved in Barton, supra, 12 Cal.4th 186, because Mario was a known enemy from a rival gang. This contention is without merit. There is no reasonable gang member standard of conduct. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1087.) Rather, the relevant question is whether a reasonable person in defendants circumstances, not a reasonable person from a rival gang, would have been provoked into homicidal conduct. (Steele, supra, 27 Cal.4th at pp. 1252-1253.)

Here, unlike in Barton, the evidence demonstrates neither adequate provocation by Mario nor that defendant was in a state of rage or extreme passion at the time of the shooting. (See People v. Sinclair (1998) 64 Cal.App.4th 1012, 1015 (Sinclair).) What the evidence showed is that Mario and defendant were from rival gangs and had at least two prior altercations, where defendant physically challenged Mario and threatened to injure and/or kill him. Linda testified that, on the night of the murder, she and Mario were riding home on a bicycle, when defendant crossed their path. It was only after defendant began chasing the bicycle that Mario pulled out a knife, which has been described as a standard kitchen knife, and told defendant to  back up.  There is no evidence that Mario provoked defendant by challenging defendant physically, by taunting defendant, or by swearing at or arguing with defendant. The sole provocative act is that Mario pointed the knife at defendant, who was approximately five feet away from the bicycle. The fact that Mario used the words  back up  suggests that he was acting defensively, and was not trying to goad defendant into a state of rage or extreme passion. These actions do not support a finding that Mario had acted in a manner that would have provoked a reasonable person to act rashly or without deliberation under the circumstances. (Breverman, supra, 19 Cal.4th at p. 163.)

Even assuming that these bare facts constitute sufficient provocation, the grounds for reducing murder to voluntary manslaughter on a heat of passion theory focus on the state of the mind of the accused. (Sinclair, supra, 64 Cal.App.4th at p. 1015.) Under this theory, the fundamental   inquiry is whether or not the defendants reason was, at the time of his act, so disturbed or obscured by some passionnot necessarily fear and never, of course, the passion for revengeto such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.   (People v. Wickersham (1982) 32 Cal.3d 307, 326 (Wickersham), disapproved on another point in Barton, supra, 12 Cal.4th at pp. 200-201.)

Our Supreme Court has explained the need for evidence that the defendants reason be obscured by passion as follows: Because the existence of malice is presumed when the circumstances of a killing suggest an intent to kill or that  the killing proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life  [citation], provocation and heat of passion must be affirmatively demonstrated. [Citations.] It is not enough that provocation alone be demonstrated. There must also be evidence from which it can be inferred that the defendants reason was in fact obscured by passion at the time of the act. [Citations.] (People v. Sedeno (1974) 10 Cal.3d 703, 719 (Sedeno), overruled on another ground in Breverman, supra, 19 Cal.4th at p. 149.)

Here, aside from Andrades testimony that she heard the shooter yelling in a very loud and very angry voice, there was no other evidence of defendants emotional state at the time of the killing, nor was there evidence that his reason was in fact obscured by passion.^[7] (Steele, supra, 27 Cal.4th at pp. 1252-1253; Wickersham, supra, 32 Cal.3d at pp. 326-327; Sedeno, supra, 10 Cal.3d at p. 719.) [T]o justify the giving of voluntary manslaughter instructions it is not enough that there is some evidence of heat of passion. [Citation.] There must be evidence substantial enough to merit consideration. [Citations.] (People v. Williams (1995) 40 Cal.App.4th 446, 454.) While there may have been some heat of passion in this case, the evidence was not substantial enough to merit consideration.

Defendant contends that an attempted voluntary manslaughter instruction was warranted because the heat of passion created by Mario was transferred to Linda, who was in the kill zone. First, as discussed, defendant has failed to affirmatively demonstrate provocation and heat of passion created by Marios conduct. Second, the doctrine of transferred intent does not apply to attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 326-327.) To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. The defendants mental state must be examined as to each alleged attempted murder victim. (Id. at p. 328, italics added.) Here, there is absolutely no evidence that Linda provoked the defendant.

We conclude there is nothing in the record  substantial enough to merit consideration  (Breverman, supra, 19 Cal.4th at p. 162) by the jury of the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter under a theory of sudden quarrel or heat of passion. Accordingly, the court did not err, under California law, in failing to instruct on voluntary manslaughter and attempted voluntary manslaughter. (Ibid.; Barton, supra, 12 Cal.4th at pp. 194-195, 199-201.)

Nor, contrary to defendants claim, did the trial court deprive defendant of any right under the Fifth Amendment to the federal Constitution in failing to give instructions on all elements of a crime, for no fundamental unfairness results from the lack of instructions on a lesser included offense that is unsupported by any evidence upon which a reasonable jury could rely. (People v. Holloway (2004) 33 Cal.4th 96, 141.) While [our Supreme Court] in People v. Breverman, supra, 19 Cal.4th at page 170, footnote 19, . . . declined to decide whether failure to instruct on a lesser offense of voluntary manslaughter supported by the evidence is federal constitutional error (see also id. at pp. 189-190 (dis. opn. of Kennard, J.) [arguing failure to instruct violates Constitution [w]here . . . there is sufficient evidence of heat of passion to support a voluntary manslaughter verdict]), nothing in either the majority or dissenting Breverman opinion suggests that the federal Constitution, any more than the California Constitution, is infringed when a theory of voluntary manslaughter unsupported by any substantial evidence is omitted from the law presented to the jury. (Ibid.)

Finally, given the jurys finding on the premeditation allegation, which necessarily demonstrates rejection of the theory that defendant acted in a heat of passion, any error in failing to instruct on voluntary manslaughter was harmless under any standard of review. (People v. Bradford (1997) 14 Cal.4th 1005, 1056 (Bradford).)

C. Other Evidentiary Issues

Defendant contends that the trial court erroneously admitted evidence regarding his flight from police and possession of a stolen handgun at the time of his arrest. He also asserts that the trial court erred in admitting evidence of the January 2005 assault at the Sa