P. v. Gonzales

Filed 8/7/07 P. v. Gonzales CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

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

Thomas I. McKnew, Jr., Judge. Affirmed.

Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Appellant Daniel Gonzalez appeals from the judgment entered following his convictions by jury on count 1 first degree murder ( 187)^[1]with personal use of a firearm ( 12022.53, subd. (b)), personal and intentional discharge of a firearm ( 12022.53, subd. (c)), and personal and intentional discharge of a firearm causing death ( 12022.53, subd. (d)), two counts of possession of a firearm by a felon (counts 2 & 3), and count 4 possession of ammunition by a felon ( 12316, subd. (b)(1)) with court findings that he suffered four prior felony convictions ( 667, subd. (d)) and four prior serious felony convictions ( 667, subd. (a)). The court sentenced appellant to prison for 170 years to life. Appellant claims various trial errors occurred. We affirm the judgment.

FACTUAL SUMMARY

1. Peoples Evidence.

a. Olivas Testimony.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established as follows. On September 5, 2003, Tiffany Oliva and her sister went to an Arco gas station at Rosecrans and Bloomfield in Santa Fe Springs. She and her sister went there to meet appellant, from whom they intended to buy drugs. Oliva had known appellant for perhaps a month. Oliva knew appellant was a Lil Valley gang member because he told her so. Oliva knew appellant had the moniker Bullet, and tattoos. Appellant knew Olivas former husband, and had been to her house and had seen her children. Oliva had bought drugs from appellant once or twice before.^[2]

Oliva knew appellants phone number and it was programmed into her cell phone under the name Bullet. En route to the gas station, she used her cell phone to call appellant because she got lost on the freeway. Oliva spoke with appellant and continued to do so until she arrived at the gas station. Once she arrived, appellant told her to wait and he would be there.

Appellant drove up in a black Expedition belonging to Javier, later identified as Javier Mena, also known as Skinny. Appellant and Mena had been to Olivas home in the past. Appellant was wearing a blue L.A. jersey. At some point, appellant told Oliva that Mena let appellant use the Expedition.

Appellant exited the Expedition and later conversed with a person subsequently identified as Ruben Serrano, the decedent. Serrano had been attending to his vehicle. According to Los Angeles County Sheriffs Deputy Mario Castro, a gang expert, Serrano was from the Hawaiian Gardens gang.

According to Oliva, Serrano gestured that he did not want any problems with appellant. Appellant went to the Expedition, retrieved something from it, and returned. Appellant then repeatedly fired a gun, shooting Serrano and mortally wounding him. After the first couple shots, appellant, who was facing Oliva, looked at her as if he wanted to shoot Oliva. A woman was in Serranos car. After the shooting, appellant returned to the Expedition and left. Oliva left in her car.

Within minutes of the shooting, appellant repeatedly called Oliva on her cell phone. Oliva knew the calls were from appellant because the name of the person calling her would appear on a screen on her cell phone, and the name Bullet appeared on the screen. Appellant called perhaps five times. Oliva did not answer because she was afraid. Oliva later, using a pay telephone, called appellant. Appellant told her that if she told anyone what had happened, he would kill her and her children.

Appellant asked Oliva if she still wanted drugs from him, and Oliva said she did. Oliva said this because she was afraid that if she did not, appellant would think she was going to report him to the police. Appellant told her to meet him at a Target store in Santa Fe Springs.

The two later met in the parking lot of the Target store. Appellant was wearing a white T-shirt instead of a blue L.A. Dodger jersey, and he was driving a silver or beige car. Another car was with appellant. Oliva did not see the Expedition. Oliva saw appellant face to face and bought drugs from him. Appellant told Oliva to remember what he had told her, and Oliva replied that she knew. Appellant and Oliva were together in the parking lot for about three minutes.

After Oliva drove away, appellant chased Oliva on the freeway. At that time, appellant was driving a car other than the one he had driven to the Target parking lot. Appellant called Oliva on her cell phone and asked her to look over. Oliva looked over and saw appellant in a car alongside hers. Oliva was a passenger in a car which her sister was driving, and appellant tried to run them off the road. At some point, Oliva stopped at a house to drop off her baby. Oliva remained in the house about 10 minutes. When she exited, appellant was waiting for her in a silver car on the street. Oliva drove into a California Highway Patrol facility.

Appellant called Oliva during the days following the murder. Oliva knew it was appellant because the name Bullet appeared on the screen of her cell phone. Sometimes she answered because she did not want appellant to know she was scared. Appellant would ask her what was she doing. Oliva tried moving from her residence, but appellant told her by phone that wherever she went, he had connections and she better not tell anyone what had happened.

Oliva received a threatening text message from appellant on her cell phone. The threat referred to killing. Once when Oliva was visiting her husband in the county jail, a woman told Oliva that she better not come to court, and someone wanted to say hello to Oliva. The woman told Oliva to look back. Oliva did so and saw appellant.

Oliva spoke with Whittier Police Detective Michael Redmon after the shooting. In her initial statement to Redmon, Oliva lied to him, telling him that she did not know anything about what had happened. She lied because she was scared. Oliva called Redmon back because she had found God and was trying to change her life. She then told Redmon essentially what she had testified to at trial.

Oliva knew Mena, the owner of the Expedition. During the time that Oliva had known appellant and Mena, she had seen appellant in the Expedition before.

Oliva did not see Mena at the gas station that night. The woman who had talked to Oliva when Oliva was visiting her husband in jail was in court when Oliva was testifying on redirect examination, and the woman had been in court the day before. Oliva pointed out the woman to the court. The womans presence in court made Oliva feel uncomfortable.^[3]

b. Detective Jim Azpilicuetas Testimony.

Whittier Police Officer Jim Azpilicueta testified that about 10:58 p.m. on September 5, 2003, he received a call that shots had been fired at the gas station and a male victim had been hit and was down. Azpilicueta went there and saw Serrano lying on his back. While there, Azpilicueta spoke with Yesenia Simon, Serranos girlfriend.

Simon indicated as follows to Azpilicueta. Simon and Serrano drove into the gas station to put air in Serranos tires. Once there, Serrano apparently argued with a male. It appeared there was animosity between them. Serrano then returned to his car. The male went to a black Expedition and returned with a black handgun. Serrano loudly asked why the male needed a gun. The male pointed the gun at Serrano, who ducked behind his car. Simon intervened and told the male to put the gun away. However, the gunman fired two or three shots at Serrano, reloaded, then fired three or four shots at Serrano. The gunman then entered the Expedition and left.

Before the Expedition left, Serrano told Simon to get its license plate information. Simon wrote down partial license plate information from the Expedition, and later gave to Azpilicueta the paper on which she had written the information. Simon told Azpilicueta that the gunman was a Hispanic male, 25 to 26 years old, and about six feet tall. She also said the gunman had a thin mustache and short shaved hair, and that the gunman was wearing a blue windbreaker with the letters LA in the middle. The paper on which Simon wrote the partial license plate information was admitted in evidence. The information was 4CZL.

c. Additional Evidence.

Police recovered from or near the crime scene two bullets and four .40-caliber casings. The four casings had been ejected from the same weapon. Three of the four bore the name Federal and one bore another name.

Phone records were admitted in evidence. Considered with other evidence, the phone records provided evidence that on September 5, 2003, appellant and Oliva conversed by cell phones. In particular, appellant and Oliva conversed multiple times between 10:14 p.m. and 10:50 p.m. At 10:55 p.m., Oliva called appellant and, at 10:58 p.m., he called a third party. Twice at 11:01 p.m., and twice at 11:02 p.m., appellant called Oliva. He also called her at 11:32 p.m.

Testimonial and documentary evidence established that on September 5, 2003, Daniel Gonzalez checked into the Ramada Inn at 12500 Firestone in Norwalk, and checked out on September 6, 2003. On the registration form, signed by Gonzalez, he listed his address as 5810 Brookfield Street, Los Angeles, California. He listed his car as a Ford Expedition, license plate number 4ZCL863. The hotel required a person checking in to identify himself or herself. An Arco gas station was across the street from the hotel. Gonzalez also stayed in the room on other days during September 2003.^[4]

About 2:26 a.m. on September 6, 2003, police saw a black Expedition with license plate number 4ZCL863, parked in a parking lot of a mall located at Telegraph and Carmenita. The mall, located about three miles from the Arco gas station, contained a Target store. The Expedition was registered to Javier Mena. A blue Nike windbreaker with the letters LA on the front and Dodgers on the back was draped over the Expeditions backseat. DNA recovered from the jackets collar matched appellants DNA. There was also DNA on the Expeditions steering wheel. As to that DNA, all of it could not be attributed to appellant, but he also could not be excluded as a contributor to some of it.

On September 30, 2003, police searched a Burbank apartment to which appellant had access and from which appellant was seen leaving on that date. Police found, in a duffle bag located between the living room and kitchen, Federal .40-caliber ammunition, plus other ammunition. Police found in the kitchen a dismantled nine-millimeter Ruger handgun with appellants fingerprint on the guns slide. Police also found, in a kitchen drawer, nine-millimeter ammunition, two magazines containing ammunition, and the grip belonging to the Ruger handgun.

On November 12, 2003, appellant, represented by counsel other than his counsel at trial, refused to participate in a court-ordered corporeal lineup after being advised that his failure to participate could be used as evidence of consciousness of guilt.^[5] Photographs of the persons, including appellant, who were scheduled to participate in the lineup were admitted in evidence. After appellant refused to participate in a lineup, Mena participated in a corporeal lineup. Photographs of the persons, including Mena, who participated in that lineup were admitted in evidence.

A gang investigator testified, inter alia, that gang members would not tolerate being disrespected, and they would respond by assaulting or murdering the person who disrespected them. Appellant had tattoos indicating he was a member of the Lil Valley gang and his moniker was Bullet.

The People presented evidence that, when arrested, appellant was six feet two inches tall and weighed 205 pounds. Mena was five feet ten inches tall. Mena appeared before the jury but invoked the Fifth Amendment.

2. Defense Evidence.

In defense, Whittier Police Detective David Cheng testified as follows. On September 6, 2003, Cheng found in the Expedition a blue windbreaker, gray shorts which were size 4XL, and a tied bag containing mens underwear. He found photographs depicting Mena, who was also known as Skinny, and recovered numerous CDs having gang writing pertaining to the Los Nietos gang. The Los Nietos gang was a gang from the Whittier and Santa Fe Springs areas, and the gang was involved in drug sales.

CONTENTIONS

Appellant claims (1) the admission in evidence of statements from two witnesses violated his right to confrontation, (2) the trial court erroneously permitted the prosecutor to call a witness to testify, knowing the witness would invoke the Fifth Amendment, and (3) the trial court erred by receiving gang expert testimony.

DISCUSSION

1. No Reversible Violation of Appellants Right to Confrontation Occurred.

a. Simons Statement.

(1) Pertinent Facts.

During an October 12, 2005 hearing prior to trial, Redmon indicated Simon was a percipient witness who had identified appellant but was afraid to testify because the present case was gang-related. During a hearing on October 14, 2005, Simon told the court she did not want to testify, and she refused to answer questions posed by the prosecutor.

During an October 17, 2005 Evidence Code section 402 hearing, Azpilicueta testified as follows. On September 5, 2003, Azpilicueta responded to a call that a shooting had occurred at an Arco gas station. About eight to ten minutes after receiving the call, Azpilicueta spoke with Simon. While Azpilicueta talked to Simon and asked her questions, paramedics were attempting to revive her boyfriend. Azpilicueta completed his interview of Simon less than 30 minutes after he had received the radio call. Azpilicueta interviewed Simon in order to obtain and broadcast suspect information, and to prepare a police report.

We have set forth, in our Factual Summary, Azpilicuetas testimony at trial concerning what Simon told him. His testimony on that issue at the trial and at the hearing was substantially the same. Appellant did not, at the hearing, cross-examine Azpilicueta on the issues of whether Simon made more than one statement to Azpilicueta, whether any such statements differed, or whether any such statements described the gunman differently. Nor did appellant cross-examine Azpilicueta concerning whether Simon made prior inconsistent statements on the issue of her identification of the gunman.

During the hearing, the court deemed appellant to have had a continuing hearsay objection, and assumed appellant was relying on Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford).Appellant argued that Simons statement to which Azpilicueta had testified at the hearing was one of three statements she made, and she changed the facts a little on each statement. Appellant claimed Simon once said the gunman was five feet nine inches tall, another time said he was six feet tall, and a third time said he was two inches taller. Appellant also claimed Simon at one point said the gunman had kinky, thick hair.

At the end of the hearing, the court concluded that the spontaneous statement hearsay exception of Evidence Code section 1240, applied to Simons statement, and the admission in evidence of her statement did not violate appellants right to confrontation. During deliberations, the jury requested a readback of Olivas testimony, as well as a readback of Redmons testimony concerning his interview of Oliva.

(2) Analysis.

Appellant claims, inter alia, that Simons statements to Azpilicueta violated appellants right to confrontation under Crawford. For the reasons discussed below, we conclude there was Crawford error but it was harmless.

(a) There Was Crawford Error.

In Crawford, supra,541 U.S. 36, the high court held that the confrontation clause . . . bars the admission of out-of-court testimonial statements except when the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (People v. Giles (2007) 40 Cal.4th 833, 840.)

In Davis v. Washington (2006) 547 U.S. ___ [165 L.Ed.2d 224] (Davis), the high court consolidated and decided two cases, concluding in one that statements were testimonial and concluding the opposite in the other. (Id.at p. __ [165 L.Ed.2d at pp. 237-243].) Davis noted, Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. [Fn. omitted.] (Id. at p. __ [165 L.Ed.2d at p. 237]; see People v. Cage (2007) 40 Cal.4th 965, 984; People v. Giles, supra, 40 Cal.4th at p. 841.)

In the present case (and unlike the one that Davis concluded involved nontestimonial statements) the arguably pertinent crime, murder, had been completed before the witness, Simon, gave her statements. Appellant had left the scene before Simon made her statements to Azpilicueta. Any emergency arguably involved, not police intervention in an ongoing crime, but paramedics treating the victim of a past crime. Azpilicueta testified he interviewed Simon to obtain and broadcast suspect information, and to prepare a police report. We conclude the trial court violated appellants right to confrontation as explicated by Crawford by receiving in evidence Simons hearsay statements to Azpilicueta.

(b) The Crawford Error Was Not Prejudicial.

Even though Crawford error occurred, we conclude, for the reasons discussed below, that the error was not prejudicial. The real issue at trial was identity. However, Oliva knew appellant. She testified she saw appellant shoot Serrano and leave in a black Expedition. She also testified that appellant said that Skinny, that is, Mena, loaned the Expedition to appellant. The People presented evidence that appellant and Mena stayed at the same hotel located across the street from the crime scene.

Oliva testified appellant arrived at the gas station on September 6, 2003, wearing a blue LA jersey. A few hours after the shooting and a few miles from the shooting scene, police found in plain view in the Expedition a blue jacket bearing the letters LA. Appellants DNA matched DNA on the jackets collar. Police found, inter alia, Federal brand .40-caliber casings at the shooting scene, and Federal brand .40-caliber bullets in an apartment to which appellant had access and from which he had been seen leaving on September 30, 2003.

There is no dispute that, based on the evidence of the phone records, appellant and Oliva called each other multiple times before and after the shooting. According to that evidence, Oliva called appellant, among other times, at 10:55 p.m. on the night of the shooting. Azpilicueta testified that about 10:58 p.m., he received a call about the shooting. There was no evidence of further calls between appellant and Oliva until, between 11:01 p.m. and 11:02 p.m., appellant called Oliva four times, very briefly. The jury reasonably could have found these facts consistent with Olivas testimony, and reasonably could have concluded that (1) she called appellant at 10:55 p.m., (2) that call ended when he arrived at the gas station, (3) the shooting occurred after 10:55 p.m. but before 10:58 p.m., and (4) between 11:01 p.m. and 11:02 p.m., inclusive, he repeatedly

called her and she did not answer.^[6] We note appellant does not refer to the phone record evidence in his brief. Appellant refused to participate in a corporeal lineup, which was evidence of consciousness of guilt.

The defense evidence at best suggested that someone else, possibly Mena, was the shooter. However, there was no substantial evidence that Mena was the shooter, and the jury was not obligated to believe the weak defense evidence. Appellant and Mena appeared before the jury, photographs of them were admitted in evidence, and the jury reasonably could have concluded that appellant and Mena looked substantially different.

The jurys readback request indicates the jury focused on the testimony of Oliva and her statements to Redmon. Her testimony and statements provided evidence that appellant was the shooter. The jury did not request a readback of Azpilicuetas testimony concerning Simons statements.

We conclude there was overwhelming evidence of appellants guilt, including overwhelming identification evidence. Any trial court error in admitting in evidence Simons statements was harmless beyond a reasonable doubt. (Cf. Chapman v. California (1967)386 U.S. 18, 24 [17 L.Ed.2d 705].)^[7]

b. It Was Error to Allow the Gang Expert to Testify About a Hypothetical Conversation Between Appellant and His Aunt When the Facts Alleged in the Conversation Were Not in Evidence.

(1) Pertinent Facts.

(a) Garcias Refusal At A Hearing To Testify.

During trial, Teresa Garcia, appellants aunt, represented by counsel, told the court outside the presence of the jury that she wanted to invoke her Fifth Amendment privilege. The prosecutor argued Garcia lacked grounds to invoke the privilege and, in any event, he was offering her use immunity. Later, Garcia was called to testify at a hearing. She refused to testify despite the fact that the court warned her that she could be held in contempt.

(b) The Gang Experts Testimony and the Hypothetical Questions.

Subsequently, the court indicated as follows. The court anticipated a Peoples witness, a gang expert, to testify concerning Los Angeles metropolitan gang activities and attitudes, and how they might be reflected in this case. The court would permit the prosecutor to elicit the experts opinion by asking him a hypothetical question that assumed that appellant and his aunt, Garcia, made certain statements to each other. The court would instruct the jury that there was no evidence that the statements had been made and the jury should not assume such evidence existed. Appellant objected to the anticipated hypothetical question on the ground it violated his right to confrontation. He also objected that the question was prejudicial because Garcia would be unwilling to testify, therefore there is not evidence. (Sic.)

Castro, a gang expert, later testified during the Peoples case-in-chief. During Castros testimony, the prosecutor indicated he would ask Castro a hypothetical question. The prosecutor asked Castro to assume the following facts. Garcia was appellants aunt, and Garcia was the girlfriend or wife of Javier Mena. Garcia and Mena owned a black Ford Expedition. Sometime after the murder, appellant conversed with Garcia regarding appellants use of Garcias vehicle on the night of September 5, 2003. Appellant told Garcia that he fucked up and that he shot a guy at a gas station for talking shit to him and looking at appellants tattoos.

The prosecutor asked, Assuming those things to be true, would those things be forms of disrespect? Castro did not answer the question. Appellant posed a confrontation objection. The court overruled the objection, then instructed the jury as follows, . . . there is absolutely no evidence in this trial of any kind whatsoever of what the defendant told his aunt or that the aunt in turn stated any of those comments to anyone, . . . [] Since there is no evidence of that, you cannot consider the facts that are assumed in [the prosecutors] hypothetical. Those facts are not before you. And any prejudice to the defendant because of an assumed fact not in evidence must not occur. You must not in any manner whatsoever assume a fact stated in a hypothetical where there is no evidence to be true, . . . (Sic.) The court asked if any juror did not understand, or misunderstood, the courts clarification. The court indicated no juror responded. The court recessed.

Later during trial, the prosecutor indicated that, just before the recess, the prosecutor had been asking Castro a hypothetical. The prosecutor indicated he would ask Castro again. The prosecutor asked Castro to assume the following facts. Garcia and Mena owned a black Ford Expedition. Sometime after the murder, Garcia conversed with appellant regarding the use of her vehicle. During that conversation, appellant told Garcia as follows. Appellant went to the gas station. A guy asked appellant if appellant knew the guy, and the guy looked at appellants tattoos and talked shit. Appellant fucked up and blasted the victim. The prosecutor asked, Assuming thats true, . . . the victim looking at the defendants tattoos, would that be a form of disrespect? Castro, without objection at the time, replied yes.

The prosecutor then asked Would the victim asking the defendant while looking at the tattoos, Do you know me, or do I know you, could that be perceived as a form of disrespect? (Sic.) Castro, without objection at the time, replied yes. The following then occurred: Q And what about the simple act of looking at a person as described by [appellant] to his aunt. Would that be a form of disrespect? [] A Yes, it is. [] The Court: If described by [appellant] to his aunt. [] Remember, ladies and gentlemen, there is no evidence that you can consider. These are only hypothetical questions with respect to any conversations between [appellant] and the aunt. The prosecutor asked, whatever, . . . talking shit means, if the victim was . . . talking shit to the defendant, in his own words, would that be a form of disrespect? Castro indicated yes. Castro also indicated if a gang member felt disrespected, he was expected to rectify the situation immediately.

(c) Garcias Refusal to Testify at Trial.

Subsequently, the court indicated the People intended to call Garcia as a witness. Garcia indicated she would invoke her right against self-incrimination. The prosecutor indicated Garcia had been offered immunity. The court concluded Garcias right against self-incrimination was inapplicable.

After the prosecutor called Garcia to testify at trial, the prosecutor asked her various questions but she purported to invoke her right against self-incrimination and refused to testify. In particular, the prosecutor asked whether (1) Garcia loaned her black Ford Expedition to appellant, her nephew, on September 5, 2003, (2) Garcia had a conversation with appellant after September 5, 2003, (3) appellant told Garcia that he blasted some guy at a gas station, (4) appellant told Garcia that he blasted the guy for looking at [appellants] tattoos and . . . talking shit, and (5) appellant told Garcia that he fucked up in shooting the guy at the gas station[.]

(d) The Jury Instructions.

Later, and before the court read the formal charge to the jury, the court instructed the jury that Garcia did not testify and that a hypothetical had been presented to the gang expert. The court then stated, And there were assumed facts in that hypothetical. Assumed facts are not evidence. Unless there is evidence to support those facts, of which there is none, you cannot assume what Ms. Garcia may have testified to if she elected to testify in this trial. You must not allow that to enter into your deliberations in any manner whatsoever. Do not speculate as to what she would have testified to.

The court then stated: The court made it very clear with counsel in allowing her to be brought out [sic], but I was not allowing her to be brought out to be displayed and to aggravate the jury against the defendant in any manner whatsoever. Please, you are instructed, and I urge you to make certain that any discussion concerning her reasons for not testifying and the fact that an assumed fact was in a hypothetical and that could possibly be true. [Sic.] Please do not allow that to, in any way, prejudice your judgment or enter into your deliberations. It cannot. It cannot.

During the formal charge, the court gave CALJIC No. 1.02, which told the jury not to assume to be true any insinuation suggested by a question asked a witness, and a question was not evidence and could be considered only as it helped the jury to understand the answer. The court also gave CALJIC No. 2.25, which indicated that when a witness, relying on the right against self-incrimination, refused to testify to any matter, the jury must not draw from the exercise of the privilege any inference as to the believability of the witness, whether the defendant was guilty or not guilty, or any other

matter at issue in the trial. The court also instructed on expert testimony using CALJIC

No. 2.80,^[8]and on hypothetical questions using CALJIC No. 2.82.^[9]

(2) Analysis.

(a) Prosecutorial Misconduct Occurred But Not Crawford Error. Appellant claims the admission in evidence of Castros expert testimony relating appellants conversation with his aunt violated his right to confrontation.

The court allowed Castro to testify as to appellants alleged statements to his aunt. However, no evidence was presented that appellant made those statements. In People v. Boyette (2002) 29 Cal.4th 381 (Boyette), our Supreme Court concluded a prosecutors hypothetical questions based on facts not in evidence was prosecutorial misconduct as a matter of state law, but harmless. (Id. at pp. 448-453, fn. 15.) In addition, our Supreme Court, in People v. Price (1991) 1 Cal.4th 324, 416, stated as follows: On direct examination, an expert may give the reasons for an opinion, including the materials the expert considered in forming the opinion, but an expert may not under the guise of stating reasons for an opinion bring before the jury incompetent hearsay evidence. [Citation.] We conclude that the prosecutor committed misconduct by asking Castro hypothetical questions based on facts not in evidence, that is, appellants alleged statements to his aunt.

However, no Crawford error occurred because appellant did not make his statements to police. Appellants statements were not testimonial. (Cf. Cage, supra, 40 Cal.4th at pp. 986-988, 991; People v. Corella (2004) 122 Cal.App.4th 461, 468-469.)

(b) The Prosecutorial Misconduct, and Any Crawford Error, Were Not Prejudicial.

Finally, on the issue of prejudice, even if the prosecutor committed misconduct as discussed above, and even if Crawford error occurred, the issue in this case was, as mentioned, identity, and there was overwhelming evidence of appellants guilt, including overwhelming identification evidence from Oliva and other sources as we discussed ante. The alleged error was harmless under any conceivable standard. (Cf. Boyette, supra, 29 Cal.4th at pp. 452-453; People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California, supra, 386 U.S. at p. 24.)

2. The Trial Court Did Not Err by Calling Garcia to Appear Before the Jury.

a. Pertinent Facts.

On October 14, 2005, outside the presence of prospective jurors, Garcia indicated that she wanted to invoke the Fifth Amendment. She argued her automobile was involved in the incident, she was afraid that she might say something that incriminated her, and police had recorded her surreptitiously and had told her that whatever she said would not be presented at trial. The court rejected the arguments. The prosecutor formally offered immunity to Garcia. The court indicated it would order Garcia to answer all questions truthfully under oath.

On October 20, 2005, during the Peoples case-in-chief, and outside the presence of jurors, Garcia objected to the People calling her to testify. The court indicated the jury had a right to see Garcia because she had been named as an owner of the Expedition, a hypothetical question had been posed involving appellants alleged statements to Garcia, and appellant and Garcia had said things to each other which were material. The court also indicated Garcia had no basis to believe she was a criminal suspect, and she had been granted immunity. The prosecutor represented there had been no quid pro quo that Garcia would be given immunity if she testified to certain facts.

Later, in the presence of the jury, the prosecutor asked Garcia the five previously enumerated questions set forth in part 1 of our Discussion. Garcia refused to answer any of the questions, claiming she was invoking her Fifth Amendment privilege.

Appellant cross-examined Garcia by asking her whether Javier Mena was her long-term boyfriend, husband, and whether, on September 5, 2003, Mena was driving the Ford Expedition that was in the names of Garcia and Mena. Garcia refused to answer those questions, claiming she was invoking the Fifth Amendment. The prosecutor, on redirect examination, asked Garcia do you have anything to say on behalf of your nephew, [appellant]? Anything at all to show that he did not commit the crime in question? Garcia refused to answer, claiming she was invoking her Fifth Amendment privilege. The court instructed the jury as discussed in part 1 of the Discussion.^[10]

b. Analysis.

Appellant claims the trial court prejudicially erred by permitting the prosecutor to call Garcia to stand when the prosecutor knew she would assert her Fifth Amendment privilege against self-incrimination. We disagree.

(1) Pertinent Law.

The Fifth Amendment to the United States Constitution states that [n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . . The same right is guaranteed under the California Constitution (Cal. Const., art. I, 15) and by state statute (Evid. Code,  940). (In re Marriage of Sachs (2002) 95 Cal.App.4th 1144, 1150 (Sachs).)

The burden is on the witness purporting to invoke the privilege to show that the testimony or other evidence could tend to incriminate him or her. (Sachs, supra, 95 Cal.App.4th at pp. 1151-1152.) On appeal, we review the trial courts ruling for an abuse of discretion. (Id. at p. 1151.) Moreover, when a witness is granted use immunity, that witnesss testimony is compelled and the witness no longer has a privilege against self-incrimination. (Cf. United States v. Washington (1977) 431 U.S. 181, 187 [52 L.Ed.2d 238]; Kastigar v. United States (1972) 406 U.S. 441, 455-459 [32 L.Ed..2d 212].

Finally, once a court determines a witness has a valid Fifth Amendment right not

to testify, it is improper to require the witness to invoke the privilege in front of a jury. This procedure encourages inappropriate speculation on the part of jurors about the reasons for the invocation. An inference adverse to the defense may be drawn by jurors despite the possibility the assertion of privilege may be based upon reasons unrelated to guilt. However, when a witness has no constitutional or statutory right to refuse to testify, jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony. (People v. Lopez (1999) 71 Cal.App.4th 1550, 1554 (Lopez).)

(2) Application of the Law.

There is no dispute that the trial court concluded after inquiry that Garcias claim that she was protected by the Fifth Amendment privilege was not well-founded. Nothing in Garcias proffer suggested her testimony might incriminate her. Appellant concedes Garcia was not charged, and there was no reason to believe she might be. (AOB/55) Much of appellants argument is based on the erroneous assumption that Garcias purported invocation of the Fifth Amendment was factually well-founded. The trial court did not abuse its discretion by concluding Garcias purported invocation of the Fifth Amendment was not well-founded.

Moreover, there is no real dispute that Garcia was granted use immunity, except to the extent appellant claims, as discussed below, that the grant was sham. However, the privilege against self-incrimination is personal to the person who invokes it and immunity affects only that person. (People v. Wisely (1990) 224 Cal.App.3d 939, 944.) A defendant lacks standing to challenge a witnesss immunity. (Id. at p. 943.) In any event, appellant suggests the immunity grant was sham for the reason that Garcia was not charged with a crime and there was no reason to believe she might be. Appellants proffered reason actually supports the trial courts implicit conclusion that there was no factual basis supporting Garcias reliance on the Fifth Amendment in the first place.

The trial court properly having concluded that Garcias purported invocation was not well-founded, the prosecutor was entitled to call her to the stand to determine whether she would change her mind and testify once she was actually before the jury. The prosecutor was also entitled to call Garcia to the stand to negate the adverse inference which might otherwise have arisen from the Peoples failure to call a material witness. Further, the prosecutor was entitled to call Garcia to the stand to permit the jury to draw any appropriate negative inference. (Lopez, supra, 71 Cal.App.4th at p. 1554.)

Appellant argues the trial courts inquiry into whether Garcia was entitled to invoke the Fifth Amendment was inadequate. The record reflects otherwise. Appellant argues Garcias testimony was coerced. We disagree. There is a certain degree of compulsion inherent in any . . . grant of immunity. (People v. Allen (1986) 42 Cal.3d 1222, 1252.) The prosecutor denied there had been a quid pro quo that Garcia would be given immunity if she testified to certain facts.

Appellant also argues the prosecutor based his hypothetical to . . . Castro on . . . Garcias statement to police, and immediately followed that up by calling . . . Garcia and asking her questions which reflected the most damaging facts assumed as true in the hypothetical, knowing she would refuse to answer. (AOB/57) We have addressed that issue in part 1 of our Discussion. We also note both the prosecutor and appellant, in the presence of the jury, asked Garcia questions to which she refused to testify. The trial court did not err in violation of the Fifth Amendment by permitting the prosecutor to call Garcia to the stand.

Finally, notwithstanding the fact that the jury saw Garcia take the stand and refuse to answer the prosecutors questions, there was still overwhelming evidence of appellants guilt, including overwhelming identification evidence. Moreover, part 1 of the Discussion, pertaining to the courts instructions to the jury, is largely applicable here.^[11] Even if the trial court erred by allowing Garcia to take the stand and purport to invoke her Fifth Amendment rights in response to the prosecutors questions, the error was harmless beyond a reasonable doubt. (Cf. Chapman v. California, supra, 386 U.S. at p. 24.)

3. The Trial Court Did Not Reversibly Err by Admitting in Evidence the Gang Expert Testimony.

a. Pertinent Facts.

Castro testified at trial concerning gang attitudes, and concerning gang operations, behavior, and crimes. He viewed photographs of appellant wearing tattoos and the word Bullet, and Castro opined appellant was a gang member and his moniker was Bullet. Castro also testified, inter alia, that any conduct perceived as disrespect by a gang member would call for an immediate response on the part of that gang member. Castro testified that staring at a gang member, or even speaking to one, could be perceived as disrespect warranting a response.

During its formal charge to the jury, the court stated that evidence had been introduced, inter alia, for the purpose of showing criminal street gang activities and of criminal acts by gang members other than the crimes for which the defendant is on trial. [] . . . this evidence, if believed, may not be considered by you to prove the defendant is a person of bad character or that he has a disposition to commit crimes. The court instructed the evidence could be considered on, inter alia, the issues of intent, identity, and motive.

b. Analysis.

Appellant claims the admission in evidence of gang expert testimony was error. There is no need to decide the issue. As mentioned, the issue at trial was identity. There was overwhelming evidence of appellants guilt, including overwhelming identification evidence. Given that evidence and the courts instructions, the challenged error was harmless under any conceivable standard. (Cf. People v. Watson, supra, 46 Cal.2d at p. 836; Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d 705].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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^[1] Unless otherwise indicated, subsequent references are to the Penal Code.

^[2] Oliva had a drug problem in 2003 but not at the time of her testimony at trial in 2005. She had suffered convictions for burglary and unlawful taking of a vehicle. She was arrested in late 2003 in a case and was on probation at the time. No one promised anything to Oliva to have her testify at trial in the present case. Oliva was not on probation at the time of her testimony at trial in the present case.

^[3] The woman left the courtroom voluntarily and the court instructed the jury that there was no information that the woman had intimidated Oliva in the courtroom. Redmon testified he spoke with Oliva three times. According to Redmon, the first two times he spoke with Oliva, she withheld information. The third time, Oliva called Redmon, apologized, and told him that she had lied and had seen the murder. During the third interview, which occurred at the police station, Oliva told Redmon that appellant was the shooter. She also told Redmon that appellant, and a person(s) in other vehicles, chased Oliva for three hours. Oliva relocated with government assistance.

^[4] Mena had stayed at the hotel and was arrested there in October 2003. Police found in Menas room a cigarette pack with the word Bullet written on it, a CD case bearing the name Lil Valley, and another CD case bearing appellants name and Brookfield address.

^[5] A court-appointed attorney was present at appellants scheduled lineup and advised him to participate. Appellant retained another attorney who, over the phone, advised appellant not to participate.

^[6] During jury argument, appellant conceded the phone records were from Mr. Gonzaless phone and did not dispute that Mr. Gonzalez was appellant. Appellant argued (1) the records showed he was on the phone at 10:58 p.m., (2) the murder occurred at 10:58 p.m., and (3) there had been no testimony that he was both on the phone and shooting at 10:58 p.m. However, appellant did not, during argument, identify any evidence demonstrating that the murder occurred at 10:58 p.m. Azpilicueta testified that at 10:58 p.m. he received a call about the shooting.

^[7] In light of the above, there is no need to reach the issue of whether the spontaneous statement hearsay exception of Evidence Code section 1240, applied to Simons statements.

^[8] CALJIC No. 2.80, stated, in relevant part, In determining what weight to give any opinion expressed by an expert witness, you should consider the qualifications and believability of the witness, the facts or materials upon which each opinion is based, and the reasons for each opinion. [] Any opinion is only as good as the facts and the reasons on which it is based. If you find that any fact was not proven, or has been disproved, you must consider that in determining the value of the opinion. You must determine that in the value of the opinion.

^[9] CALJIC No. 2.82, stated, In examining an expert, counsel may ask hypothetical questions. This is a question in which the witness is asked to assume the truth of a set of facts and to give an opinion based on that assumption. [] In permitting this type of question, the court does not rule and does not necessarily find that all of the assumed facts have been proved. It only determines that those assumed facts are within a possible range of the evidence. It is for you to decide, from all the evidence, whether or not the facts assumed in the hypothetical question have been proved. If you should decide that any assumption in a question has not been proved, you are to determine that [sic] the effect of that failure of proof on the value and weight of the expert opinion based on the assumed facts.

^[10] See the third and fifth paragraphs of part 1.b.(1)(b) of our Discussion, and part 1.b.(1)(d) of our Discussion.

^[11] See part 1.b.(2)(b) of our Discussion.