P. v. Martinez

`Filed 4/18/07 P. v. Martinez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Stephen Kane, Judge.

Linda M. Leavitt, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian G. Smiley and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On July 7, 2005, the Fresno County District Attorney filed a first amended information in superior court charging appellant with murder (Pen. Code,  187) with personal use of a firearm ( 12022.5, subd. (a)(1)) and intentional discharge of a firearm causing the death of another ( 12022.53, subd. (d)).

On the same date, appellant was arraigned, pleaded not guilty to the substantive count, and denied the special allegations.

On October 4, 2005, jury trial commenced.

On October 11, 2005, the superior court denied appellants motion for acquittal on the charge of first degree murder (Pen. Code,  1118.1).

On October 13, 2005, the jury returned a verdict finding appellant guilty of second degree murder and finding the special allegations to be true.

On November 18, 2005, the trial court denied appellant probation and sentenced him to a total term of 40 years to life in state prison. The court imposed the term of 15 years to life on the substantive count and the term of 25 years to life on the Penal Code section 12022.53, subdivision (d) special allegation. The court imposed a $10,000 restitution fine ( 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole ( 1202.45), awarded 434 days of custody credits, and declined to award conduct credits ( 2933.2).

On December 6, 2005, appellant filed a timely notice of appeal.

STATEMENT OF FACTS

At 1:45 a.m. on September 11, 2004, appellant and his friend, Jesus Guizar, left a drinking establishment after a night of consuming beer. They went to a liquor store and bought malt liquor and then returned to the Villa Hermosa apartment complex on North Marks Avenue. Appellant resided there with his sister. After they arrived at the complex, some people who were drinking outside began to yell, What, whats up? The people then barked at appellant and Guizar. The group included Juan Gonzales, Jennifer Salinas, Israel Serna, and two other women named Melissa and Roxanne.

Appellant disclaimed any gang membership and avoided a confrontation with Serna and Gonzalez. Appellant and Guizar then entered the formers apartment. Once appellant entered the apartment, however, he became angry, went to his bedroom, and retrieved a firearm. Guizar spoke to appellant, persuaded him not to do anything with the firearm, and suggested they should simply go outside and talk to the group.

Appellant and Guizar stepped out of the apartment and took beer to offer to the group. They went to Sernas group and began a conversation. Appellant and Guizar then mentioned marijuana, either soliciting it from someone in Sernas group or soliciting the name of a person who might have marijuana. Several members of the group had a pleasant reaction when appellant and Guizar broached the subject of marijuana.

The encounter ended in an argument. At one point, Serna addressed appellant and Guizar in a fighting tone of voice. Serna said he did not appreciate the presence of appellant and Guizar and did not appreciate their interest in marijuana. Serna said such things as, This is a family thing, You have no business over here, Aint no weed around here, We dont smoke that shit, and Get the fuck out of here. Serna also referred to the Bulldog gang and someone made the sound of barking. After appellant and Guizar went back inside the formers apartment, Serna said something to the effect of, Hes full of shit, and I was going to beat him down.

Appellant and Guizar re-entered the apartment and appellants sister and her children were present. Appellant found his guitar, a musical instrument he used to relieve stress. Appellant then went outside with his guitar. Guizar was concerned because the troublesome group was still outside. Guizar tried to persuade appellant to come back inside. Appellant nevertheless stayed outside, played his guitar, and said in a loud voice, Fuck bulldogs.

At some point, Serna and Gonzales left the outdoor group to get more beer. Sometime later Serna and Gonzales came upon appellant. He was still outside with his guitar. Serna and Gonzales tried to take the guitar away from appellant. Appellant resisted and Serna ultimately struck him in the face with the instrument. Serna and Gonzales also passed an aluminum baseball bat back and forth.

Appellant regained possession of the guitar and re-entered the apartment. Serna and Gonzales stayed outside and stood as if they were waiting for him. Appellant retrieved a .44-caliber weapon, walked outside, and told the pair, What the fuck is your problem man? Dont tell me youre just going to come over here and start beating me down for just, mere words? Serna and Gonzales began to walk away. When they were 15 to 20 feet away, appellant advanced toward them with his firearm concealed from view. Serna and Gonzales then started coming back toward him. After they got closer, appellant displayed the firearm and Serna and Gonzales took off.

Gonzales fled with the baseball bat and appellant did not pursue him. Serna was unarmed and began backing away. He ducked his head as he moved. Appellant advanced on Serna. Within a short time, appellant pointed the firearm at Serna, who was cowering behind a bush with his hands raised. Serna told appellant something to the effect of You dont got to do this, man. While Serna remained in that position, appellant shot Serna in the head from a distance of 30 inches or less. Appellant later told officers he was just in a rage and pointed it at him and pulled the trigger. Sernas body fell forward and appellant turned and started walking back. Guizar had trailed behind appellant but walked away from the direction of the shooting.

Fresno Police Officer Ryan Engum was working on patrol duty that day and received a dispatch to go to the Villa Hermosa Apartments. The police dispatcher noted a loud party taking place at the complex. Officer Engum went in the early morning hours and met up with Fresno Police Officer Steven Depew, who arrived a short time after Engum did. They first sought to find the apartment from which the call originated. The two officers heard a male voice yelling and they walked in the direction of the voice. They heard more yelling and then a gunshot. They illuminated a person with their flashlights and saw Jesus Guizar. They detained Guizar, not knowing whether he was involved or not.

Officer Depew saw a gun tossed and Officer Engum drew his weapon. The two officers saw appellant and told him to get on the ground. They then handcuffed appellant. Officer Engum asked what was going on and appellant said, I took his life. The officers could not see an injured person at that point. Officer Engum then found an injured individual in the bushes but did not touch him.

Venu Gopal, M.D., a forensic pathologist, conducted an autopsy on the body of Israel Serna and said the cause of death was perforation of the brain due to a gunshot wound to the head. Dr. Gopal noted a graze gunshot wound on the outer aspect of the left hand. He also noted gunpowder stippling caused by the location of the gun less than 36 inches from where Serna was hit. Sernas body bore several tattoos, including the number 14 on his left middle finger, a partially-completed acronym, BDS, on his chest, a second partially-completed BDS acronym on his back, the name Serna over the front of the left elbow, and two dog paws on the back of the chest. Dr. Gopal said a toxicologist analyzed a sample of Sernas blood and found a blood alcohol level of .28. Dr. Gopal said such a level would impair the sensory and motor functions of the individual.

Jennifer Salinas testified she was acquainted with Israel Serna and his family. On September 11, 2004, she was visiting Roxanne Gonzales who lived on the second floor of the apartment complex. Salinas was in the company of Roxanne, Juan Gonzales, Israel Serna, and Melissa. The group went downstairs, moved to the lawn in front of Melissas apartment, and sat on chairs and drank. Salinas said she had her 21st birthday two days earlier and drank about six pony cans of Budweiser beer.

Salinas said she did not know appellant or Jesus Guizar. Salinas said she had seen appellant and Guizar walking to the apartments about 10 minutes before the shooting. They were coming from the front of the complex and were walking toward the swimming pool. Salinas did not hear any yelling at that point. Appellant and Guizar walked up to the group and demanded marijuana. Serna told them, We dont smoke that shit. Get the fuck out of here. She said their encounter lasted about five minutes. Serna and Juan Gonzales then went to a store for beer, even though they had previously bought beer.^[1] Salinas recalled that appellant came by the apartment a second time and engaged in a conversation.

About 10 minutes later, appellant came back to them. Roxanne said they did not want any problems and told him to get out of there. About 20 minutes later, appellant came running out of his apartment with a gun. She and Roxanne then ran into Melissas apartment, which was located on the first floor. The women heard a gunshot. Juan and Roxanne went upstairs and looked for Serna. Appellant was yelling but his friend was not.

Judith Tucker, a senior homicide investigator in the District Attorneys Office, testified she interviewed Jennifer Salinas on September 21, 2005. Salinas said that when Serna came up to the apartment, Serna told Juan Gonzales that appellant and his friend were talking about them (Serna and Gonzales). Fresno Police Detective Robert Collins also interviewed Salinas. She said that Serna told Guizar and appellant, We dont know about that. We are only dogs over here. According to Salinas, Guizar told Serna, Hey, your man, your homeboy, Juan Gonzalez looks like he had too much to drink. Serna replied, If you dont like it dont worry about it. If you dont like it, leave. Appellant later yelled, Fuck you guys. Fuck Bulldogs.

Daniel Rood lived in the Villa Hermosa complex. His apartment was located in the first building by the front gate. Rood said his neighbors were partying outside with a next-door neighbor from 1:00 a.m. until about 2:30 or 3:00 a.m. At that point, he called the police because an argument broke out next to his living room window. Rood said the argument was between two second-floor neighbors and two men he did not know.

Rood said his neighbor upstairs was hopped up and arguing with somebody else. The neighbor removed his shirt and two guys got up as if they were going to fight. Two other men walked away. The upstairs neighbor spoke first and exchanged words with the others. The argument lasted for six or seven minutes but there was no physical fighting. Rood continued to watch television after that argument. When the upstairs neighbor removed his shirt, another manknown to Rood as Johnnyalso tried to take off his shirt but was too drunk and could not stand. The neighbor shouted Bulldogs and barked [t]his is a family thing and [y]ou have no business over here. Rood later heard his next-door neighbor say [h]ere he comes with a gun and everyone dropped down. Rood called the police after that comment. Rood heard a gunshot and the police arrived. Rood looked out his window and saw a long barrel gun about 30 feet away.

The person with the gun walked down a walkway from building No. 10. Rood heard some words but was not sure what was uttered. Rood then saw someone cowering behind a bush next to building No. 10 and someone else pointing the gun. Rood heard a shot and saw the cowering man drop to the ground. The shooter turned around and walked away.

Rood said the taller male argued with the victim first but he was not the shooter. Rood said the shooter stood with a beer in his hand. After the taller male argued with the victim, the shooter and the taller person walked away. Rood heard barking sounds but did not know their source. Rood believed that 30 to 45 minutes elapsed between the time of the argument and the time of the shooting. He did not recall the victim say [h]es full of shit, and I was going to beat him down. However Rood did remember that the victim was ready to fight and uttered the words [w]hats up, dog. Rood testified the victim uttered the latter words when he removed his shirt and got ready to fight. According to Rood, the victim was drunk and acting in an aggressive manner. Rood remembered someone asking for weed but said the request was not aggressive. Rood said the person who responded [a]int no weed around here did so with a bit of attitude.

Jesus Guizar testified that he was 28 years old and had known appellant for 14 years. Appellant was living at the Villa Hermosa apartments with his sister Elizabeth at the time of the instant offenses. On September 10, 2004, Guizar met appellant at 9:30 or 10:00 p.m. They went to a bar and shared three pitchers of beer. The pair left the bar at 1:30 a.m., went to a store, bought three 40-ounce liquor bottles, and took them back to the apartment. When they entered the apartment complex, they heard people drinking and barking. The two men kept walking and exchanged no words with others. They went to Elizabeths apartment and appellant went to his room.

Guizar said appellant was angry or upset and grabbed a firearm. Guizar persuaded appellant to change his mind and to simply talk with the people who were drinking. The pair went outside to talk and tried to make a truce. Guizar said they took the people a beer and started talking to them. The group included two men and three women. Guizar and appellant recognized the woman named Jennifer but did not know either man in the group. Guizar said the small male in the group seemed intoxicated and the larger male was rambling. Guizar detected some tension as they talked, said, Lets just go, and departed with appellant. The conversation lasted five minutes or less. One of the males in the drinking group took up a fighting stance and that is when Guizar said Lets just go.

Appellant and Guizar returned to the apartment. Appellant retrieved his guitar and began to play it outside. Guizar told him to come back inside the apartment because the other guys were around the corner. Two children were at the kitchen table playing cards and Elizabeth was in the back bedroom of the apartment. Guizar did not hear appellant yell anything. After a few minutes, the two men from the drinking group came around the corner and tried to take the guitar from appellant. Guizar did not see any weapons or bats. Guizar assumed that appellant shook them off and came back inside. Guizar heard a lot of things but claimed everything was out of focus. Guizar also heard yelling but did not know its source.

Guizar said appellant had been playing the guitar about 12 feet from the front door of apartment No. 152. One man was at arms length and the other was standing behind him. Appellant turned to walk back and the other males followed him. The other males came up to the door as appellant walked in. Guizar said appellant did not walk all the way into the apartment. Rather, he turned back around to confront them. The other males tried to walk in through the front door and Guizar said they were trying to push the door open. At that point, appellant went after the two males and they started to go away. Guizar believed the two males realized that appellant had a firearm. Guizar followed appellant but at a slower pace. Appellant and the other males turned a corner and Guizar heard a gunshot. The next thing Guizar knew, some police officers threw him on the ground and arrested him.

The parties stipulated that appellant had a blood alcohol level of .05 percent on the morning of September 11, 2004.

Defense

Appellants sister, Elizabeth Farias, said she was in her apartment bedroom when appellant shot Serna. She and Serna shared the apartment with her boyfriend, Jose Ramirez, and her six children. Appellant and Guizar first arrived at the apartment around 5:00 p.m. and departed between 8:00 p.m. and 9:00 p.m. on September 11, 2004. They left and returned after 10:00 p.m. She heard people come to her door and yell on two occasions after 10:00 p.m. The voices of the people sounded the same each time. During the first incident of yelling, two of Fariass sons became scared and came into her bedroom. They told her there were some guys at the door trying to beat up appellant. During the second incident, the two boys returned to her room and were again scared.

Farias believed that 5 or 10 minutes passed between the first incident at her apartment door and the sound of the gunshot. Farias said she was not in appellants presence and did not interact with him during the two incidents at the door of her apartment. Farias said she learned about the killing the following morning. Although Farias knew that appellant kept a gun in his room, she lied to police officers when they inquired about the presence of a weapon in the apartment. She said she lied because she did not want to get involved.

Appellant testified in his own defense. Prior to September 11, 2004, he had a number of encounters with Bulldog gang members. In 1991 or 1992, one Larry sought to fight appellant over a female. Appellant believed Larry was affiliated with the Bulldog gang because he subsequently saw Larry and others barking in a vehicle. On that occasion, Larry looked at appellant with raised hands and appellant said this engendered fear in him.

On another occasion, when appellant was 14, he gave a ride to a Bulldog gang member who lived nearby. Sometime later, others from that group kidnapped appellant at gunpoint and terrorized him. On a third occasion, appellant was enrolled at Fresno City College in 2001 or 2002. Gang members accosted him and aggressively warned him not to enter their area.

Appellant said a fourth incident occurred in 2002, just before appellant relocated to the Villa Hermosa complex. After an incident involving our kids and their kids, a drunken gang member named Rudy sought to fight appellant. Appellant said two Bulldog members administered a beating to his neighbor, Adam.

On September 11, 2004, Jesus Guizar came to appellants apartment at 9:30 or 10:00 p.m. to watch television. They decided to go to a nearby gas station and get some beer. They ended up going to a nearby bar and splitting three or four pitchers of beer. They left the bar at about 1:45 a.m. The two men then went to an Arco gas station and bought three 40-ounce containers of Country Club malt liquor to share at appellants apartment. They returned to the complex shortly after 2:00 a.m. and heard people barking and yelling at them Whats up? The barking came from a group in the complex. The group was drinking downstairs and asked appellant and Guizar why they had stopped. Appellant said they did not want to fight or anything. However, Sernaa member of the groupexhibited a great deal of aggression. Serna kept running his mouth and barking at appellant and Guizar while they were trying to walk away. Appellant admitted he was angry and upset and said, Man, they are stupid, as he and Guizar approached his apartment. Once inside the apartment, appellant put the beer in the freezer and commented on the stupidity of Serna and Juan Gonzalez.

Approximately 10 or 15 minutes after appellant entered the apartment, he heard barking and banging at his front door. Guizar went to the door and the two males were in front of the door calling appellant and Guizar out. Serna and Gonzalez stuck their heads in the door. Appellant told them to get out of the apartment. Appellant became upset because his sisters children were in the apartment when Serna and Gonzalez attempted to enter. One nephew asked appellant why the other two men were doing this. Appellant told Guizar that they should go outside and make peace with the two men.

Appellant and Guizar took some beer as a peace offering to Serna and Gonzalez. The latter two were sitting in adjacent chairs. Appellant started talking with the drinking group and sat on the lawn with them. According to appellant, everything seemed fine, although Serna looked kind of mad. Gonzalez looked as if he had too many beers. Appellant admitted they had a discussion about marijuana but [e]verything seemed fine. At one point, Guizar said of Gonzalez, Your boy looks like he had one too many beers, or Hes had one too many beers. Serna jumped up, started removing his shirt, and tried to fight Guizar. Gonzalez jumped up also and appellant said, What the hell is wrong with you? He didnt say anything disrespectful to you or anything for you to get all worked up about.

Appellant said he was both angry and scared by the response of Serna and Gonzalez. He was scared because of their aggressiveness and angry because he and Guizar did not say anything to upset them. Serna and Gonzalez started barking and saying all kinds of gang words, such as dog and homeys. Appellant grabbed Guizar and started taking him back to the apartment. Serna and Gonzalez followed appellant and Guizar for a short distance and called them punks or pussies.

Appellant and Guizar made it back to the apartment and appellant was mad. He went into his room, grabbed his guitar, played it a bit, and then went outside with it, despite Guizar telling him not to go outside. Appellant stayed outside and played his guitar for about 30 minutes. Guizar urged him to come back inside because Serna and Gonzalez might return. Appellant yelled at Guizar, Fuck them Bulldogs, because he believed he should not have to be afraid to sit outside.

Five minutes later, Serna and Gonzalez approached appellant from his left side. Gonzalez was carrying an aluminum baseball and said, Who said that? When appellant feigned ignorance, Serna grabbed the guitar while Gonzalez stood behind appellant with the bat. Serna hit appellant in the face with the bottom of the guitar as they struggled. Appellant finally pulled the guitar away from Serna, ran into his apartment room, and grabbed his gun. Appellant heard Guizar argue with Serna and Gonzalez at the front door. When appellant came out of his room with the gun, Guizar had opened the front door. Appellant said he was scared and the children were also scared.

Appellant had placed the barrel of the gun in the waistband of his shorts and went outside. Serna and Gonzalez started approaching him and he started going in their direction. Appellant pulled the gun with his right hand and saw the baseball bat in Juan Gonzalezs hand. After appellant pulled his weapon, Serna and Gonzalez started backing up. Gonzalez took off running. Serna backed off, turned a corner, went to the end of a fence, and then ran straight for a bush. Appellant was both scared and mad and followed Serna to the bush. Appellant had his gun pointed down at that point. When appellant reached the bush, Serna was crouched behind it. Serna put one of his hands up above his head. He did not have anything in either hand. Appellant cocked the hammer on his weapon, aimed it at Serna, and fired.

Appellant said he was angry because Serna and Gonzalez brought violence to his doorstep on two occasions. He pointed out he had already tried to make peace with them. Appellant had grabbed the gun because he was scared and the two men had attacked him outside of his front door. Appellant said he was concerned for his safety because Serna and Gonzalez were Bulldog gang members. He based this on their tattoos and barking noises. When appellant first heard the barking near his apartment, he concluded these guys were just going to keep coming back. When appellant grabbed the gun from his room, he was afraid because there were gang members outside his door. He explained that when you have problems with one gang member, you basically have a problem with a bunch of them.

When Fresno Police Detective Richard Byrd questioned appellant about the crime prior to trial, appellant said he was just in a rage. At trial, appellant explained his response to Detective Byrd, stating: [M]y emotions were mixed. I didnt know how to describe them at the time. ... I still had some alcohol in me. I was tired. Thats why I said I was in a rage.

On cross-examination in the defense case, appellant admitted he had no problems with Juan Gonzalez prior to this incident. He also admitted he never had any contact with Israel Serna before September 11, 2004. He further acknowledged that Jennifer Salinas and Melissa had never caused him any trouble and that Roxanne Gonzalez and her children used to visit at appellants apartment [a]ll the time. Appellant also said he was about 5 feet 10 inches tall and weighed between 230 and 250 pounds on the day of the offense. Appellant admitted that Serna was at least 10 inches shorter and 100 pounds lighter than appellant. Appellant conceded that he was not worried that Serna was carrying a concealed weapon when Serna ran from the corner to the bush.

California Highway Patrol Officer Anthony Gates testified he was a Hispanic gang investigator with the Multi-Agency Gang Enforcement Consortium (MAGEC) in Fresno County. Officer Gates said he had been with this agency for five years and gathered intelligence on Hispanic and White street gangs. Gates said the Bulldog gang is one of the Fresno gangs with which he is familiar. The gang began in the mid-1980s and is the largest street gang in Fresno. He said it is located in virtually every part of the city and also in areas of the County of Fresno. Gates said the gang has exhibited assaultive, violent, and threatening behavior in the past. According to Gates, if an insult is uttered, it cannot go unanswered from any rival gang member. Gates said it also makes a difference when a non-gang member insults a gang member. Disrespect is usually met with some form of retaliation.

Officer Gates explained that Bulldog members associate with the color red and have several known tattoos. The tattoos include the word Bulldog, the word Fresno, and illustrations of dog paws. The letters BDS stand for Bulldogs. Gates said barking can be a greeting to fellow gang members or a challenge to rival gang members. Barking at a non-gang member is a form of intimidation.

DISCUSSION

I.

FAILURE TO INSTRUCT THE JURY ON ANTECEDENT THREAT UNDER

CALJIC NO. 5.50.1

Appellant contends the trial court committed reversible error by refusing to instruct on the theory of antecedent threats based on gang behavior known to appellant. He maintains the jury was instructed only with the ordinary person theory and this gave the jury no help in analyzing how an ordinary person would react if he or she had been the subject of lifelong threats by gang members.

At the time of trial CALJIC No. 5.50.1 (prior threats/assaults by victim) stated:

Evidence has been presented that on [a] prior occasion[s] the alleged victim [threatened] [or] [assaulted] [or participated in an assault or threat of physical harm upon] the defendant. If you find that this evidence is true, you may consider that evidence on the issues of whether the defendant actually and reasonably believed [his] [her] life or physical safety was endangered at the time of the commission of the alleged crime.

In addition, a person whose life or safety has been previously threatened, or assaulted by [another] [others] is justified in acting more quickly and taking harsher measures for self protection from an assault by [that person] [those persons], than would a person who had not received threats from or previously been assaulted by the same person [or persons].

Appellant requested CALJIC No. 5.50.1 and the superior court refused the request, stating:

I took a look at People vs. Moore, 43 Cal.2d, 517, a four to three California Supreme Court decision in 1954; and People vs. Pena, 1984 opinion at 151 Cal.App.3d 462. And I came to the conclusion that this instruction was unnecessary and probably not applicable because the threats that the defense is relying on in asking for this instruction relate to alleged threats and behavior that occurred that same evening when this shooting occurred.

And my review of the cases indicate, indicates to me that by prior threats and previously threatened they are referring to completely different occasions in time and place which we dont have here, and I also think that the language of 5.50.1 is essentially subsumed in other self-defense instructions.

On appeal, appellant notes the trial court instructed the jury with standard self-defense and unreasonable self-defense instructions (CALJIC Nos. 5.12 [justifiable homicide in self-defense], 5.14 [homicide in defense of another], 5.15 [charge of murderburden of proof re justification or excuse], 5.17 [actual but unreasonable belief in necessity to defendmanslaughter], 5.50 [self-defenseassailed person need not retreat], 5.51 [self-defenseactual danger not necessary], and 5.52 [self-defensewhen danger ceases]) but did not give an instruction on antecedent danger.

Appellant submits the court should have instructed the jury to consider all elements, including antecedent fears, which might be expected to operate on the defendants state of mind to determine whether he acted with malice or in unreasonable self-defense:

In the instant case, the defendant testified that over his lifetime he had had several run-ins with members of the Bulldog gang. He had observed violent acts by Bulldogs on his close friends. He had been personally threatened in the past by members of the Bulldog gang. In his neighborhood, it was common knowledge that members of the Bulldog gang committed violent offenses against both gang members and non-gang members alike.

On the night in question, while he was walking to his home where he lived with his sister and her six children, members of the Bulldog gang barked at him and his friend. Over the next several hours, he was threatened with aggressive body language from Bulldogs gang members Serna and Gonzlez, struck by Serna with his guitar while he observed Gonzlez carrying a baseball bat, and had both of these two men begin to enter the family home. Appellant testified that his experience in the past with the Bulldog gang was that once you start striving with one you were going to have a whole bunch of them coming at you the next day. He further explained striving as if you have a problem with one, you have a problem with a bunch of them. On that evening, appellant summarized his four confrontations and that he did not take the gun out until the others confronted him at his front door and were kicking in the door.

Although a court has no duty to give on its own motion a pinpoint instruction on specific evidence developed at trial (People v. Michaels (2002) 28 Cal.4th 486, 529-530), it must give a requested instruction if the instruction correctly states the law and relates to a material question upon which there is evidence substantial enough to merit consideration. (People v. Barajas (2004) 120 Cal.App.4th 787, 791.) Here, the evidence upon which defendant relies does not support the giving of the requested instruction. The instruction is about a prior attack by a victim, while much of appellants evidence was of a prior attack by someone else, i.e., other members of the Bulldog gang. CALJIC No. 5.50.1 is based on People v. Pena (1984) 151 Cal.App.3d 462, 477-478, People v. Moore (1954) 43 Cal.2d 517, 527-529, and People v. Gonzales (1992) 8 Cal.App.4th 1658, 1663-1664. Consistent with the language of the instruction, none of these cases required an instruction of this kind to be given where the defendant was attacked by someone other than the victim of the current offense. Appellant has not cited, and we have not found, any authority requiring a comparable instruction for a prior attack by persons absent at the time of the current offense. Thus, to the extent appellant is relying upon evidence of his encounters with Bulldog gang members unrelated to the Serna incident, his claim must be rejected.

In fact, in People v. Gonzales, supra, 8 Cal.App.4th at page 1664, the court held that the instruction was not required precisely because (among other reasons) the victim of the current offense was not the person who perpetrated the prior attack. The court also suggested a powerful reason why the instruction is limited to situations where the victim is the prior attacker: None of the cases cited stands for the proposition that one previously assaulted is entitled, for that reason, to shoot first and ask questions later in all situations. (Ibid.) An additional consideration is that, in the form in which appellant tendered the instruction, it did not even refer to an attack by a third party. Appellant simply submitted CALJIC No. 5.50.1 unaltered. Even if it had been possible to craft a legally correct instruction directing the jurys attention to appellants prior encounters with Bulldog gang members, the trial court would have been under no obligation to craft it sua sponte. [A] court has no duty to correct a proposed instruction which is partially incorrect . (People v. Gonzales, supra, 8 Cal.App. 4th at p. 1664.)

Appellant nevertheless contends the instruction was applicable to Sernas antecedent threats from earlier in the evening of September 11, 2004. CALJIC No. 5.50.1 uses the term prior occasion but, as appellant observes, does not differentiate between threats that occurred earlier on the day in question and those that occurred on a different date. As noted above, CALJIC No. 5.50.1 is based on the cases of People v. Moore, supra, 43 Cal.2d 517, People v. Pena, supra, 151 Cal.App.3d 462, and People v. Gonzales, supra, 8 Cal.App.4th 1658. In Moore, the proffered instruction on antecedent threats referred to threats that occurred on a date prior to the date of the charged offense, murder. (People v. Moore, supra, 43 Cal.2d at pp. 521, 527-528.) In Pena, the threats again occurred prior to the date of the charged offense, murder. (People v. Pena, supra, 151 Cal.App.3d at pp. 468-474.) In Gonzales, the antecedent threats occurred three days prior to the charged offense, attempted murder. (People v. Gonzales, supra, 8 Cal.App.4th at p. 1660.)

Appellant has not cited and we have been unable to find any authority supporting the use of CALJIC No. 5.50.1 in a situation where the antecedent threats occurred just shortly before the commission of the alleged crime. The trial court did not err in denying the requested instruction under all of the circumstances of the instant case.

II.

EXCLUSION OF EXPERT TESTIMONY ABOUT SPECIFIC ACTS OF

VIOLENCE COMMITTED BY THE BULLDOG GANG

Appellant contends the trial court committed reversible error by excluding expert testimony about specific acts of violence committed by the Bulldog gang.

On October 4, 2005, appellant filed supplemental motions in limine seeking to introduce the criminal record of the victim and expert testimony of Officer Gates as to the violent reputation of the Bulldog gang. During the testimony of appellant in the defense case, the court and counsel met outside the presence of the jury to discuss the admissibility of evidence of appellants motivation at the time of the charged offense. The court noted that one of the primary difficulties of the line of questioning arose from defense counsels use of leading questions during the examination of appellant. The court nevertheless outlined several nonleading questions that defense counsel could pose to his client on the topic of his fear at the time of the offense.

Later in the proceedings, the court and counsel held an extended discussion outside the presence of the jury on the topic of expert testimony. Defense counsel said Officer Gates would just give generally that they [the Bulldogs] have been known for many murders, assaults, robberies, things like that, and that their reputations of violence. The court ultimately ruled:

So Im going to allow Officer Gates to testify. I think the more difficult or another difficult aspect of this is the scope of his testimony. I dont have any trouble with him testifying as to what the indicia of Bulldog gang membership are, but the more difficult question is how detailed can he be in describing his opinions about the violent tendencies of the gang?

I dont think it would be appropriate for him to recount in detail isolated, miscellaneous incidents regarding Bulldogs over time that have nothing to do with this case, nothing to do with Mr. Martinez, nothing to do with Mr. Serna. So Im almost inclined to view this as a situation where he should be limited to stating his opinions about general propensities and behaviors rather than getting into specific conduct on specific dates involving specific incidences.

After further discussion, the court cited Evidence Code section 352 and observed, Its [the expert testimony] just to corroborate, you know, the testimony of the defendant. Its not really independent itself. Defense counsel stated, for the record, he disagreed with the evidentiary limitations imposed by the court but would follow those limitations in questioning Officer Gates. The court subsequently admonished Officer Gates:

You are going to be asked some questions about the reputation of the Bulldog gang and specifically any reputation about their criminal or violent behaviors. [] And the order that Im making is ... that you may answer those questions, but were going to ask that rather than your answering those by giving specific examples of specific crimes, specific conduct that in your experience Bulldog members have committed, that instead you and counsel refer where appropriate to ... assaultive behavior, violent behavior, terms like that rather than getting into ... murder, mayhem, torture, kidnapping, carjacking, assault with a deadly weapon, or getting into specific crimes that have been committed by Bulldog gang members.

Appellant now contends:

In the instant case, the excluded testimony would have corroborated appellants belief that members of the Bulldogs gang have in fact attacked others in retaliation or after being insulted. If the jury had known that the Bulldogs gang in the last year ahead committed multiple violent attacks, appellants defense would have been strengthened and his actions in shooting Serna would probably have been seen as based on his actual fear, even if that fear at that moment was unreasonable under legal doctrines. Additional testimony, expert or otherwise, was necessary regarding the Bulldogs gang to make it clear that Gonzlez might have returned with a lethal weapon, although he had left with his baseball bat. This would, however, have resulted in a verdict of voluntary manslaughter rather than second-degree murder. The absence of this evidence deprived appellant of his right to present evidence of his theory of the case and violated his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments.

The culture and habits of criminal street gangs are proper subjects for expert testimony. This includes testimony about the size, composition, or existence of a gang; gang turf or territory; an individuals membership in or association with a gang; the primary activities of a specific gang; motivation for a particular crime, generally retaliation or intimidation; whether and how a crime was committed to benefit or promote a gang; rivalries between gangs; gang-related tattoos, gang graffiti, and hand signs; and gang colors or attire. (People v. Killebrew (2002) 103 Cal.App.4th 644, 654, 656-657.)

Officer Gates testified that Bulldog gang members have exhibited assaultive and violent behavior in the past. He said he had known them to display that type of behavior in a threatening manner. He said that in gang culture, insults are always addressed. If a rival gang member offers an insult, then the recipient of the insult has to answer that or lose face within his or her own gang. If a non-gang member offers an insult, the gang member usually responds with some form of retaliation.

Generally, a trial court has wide discretion in determining the admissibility of evidence, i.e., in deciding whether the evidence is relevant and whether Evidence Code section 352 precludes its admission. The trial courts ruling in exercising such discretion will not be disturbed on appeal absent an abuse of discretion. (People v. Mobley (1999) 72 Cal.App.4th 761, 792-793, disapproved on another point in People v. Trujillo (2006) 40 Cal.4th 165, 181, fn. 3.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Catlin (2001) 26 Cal.4th 81, 122.)

In the instant case, the court considered the question of expert testimony and its scope at great length. The court engaged in a lengthy colloquy with both counsel and implicitly considered the proffered expert evidence in light of the elements of Evidence Code section 352. After a lengthy exchange, the trial court indicated it had no trouble with the expert testifying as to indicia of Bulldog gang membership. However, the court considered it inappropriate for the expert to recount in detail isolated, miscellaneous incidents ... that have nothing to do with this case. Nevertheless, the court permitted the expert to offer opinions about general propensities and behaviors of the Bulldog gang. Thus, contrary to appellants claim on appeal, the court did allow the defense, through its expert, to present its theory of the case by exploring the nature of the Bulldog gang and its reputation for aggressive, violent conduct and retaliatory behavior. We cannot say the courts ruling fell outside the bounds of reason under these circumstances.

DISPOSITION

The judgment is affirmed.

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HARRIS, Acting P.J.

WE CONCUR:

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LEVY, J.

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GOMES, J.

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^[1] Justin Beal, a Fresno police identification technician, testified he found a sparkling wine bottle and more than thirty opened and unopened beer cans in the vicinity of the gathering.