In re Daniel A.

Filed 8/20/07 In re Daniel A. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Donna L. Crandall, Judge. Affirmed.

Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

A petition alleged minor Daniel A. committed one count each of assault by means likely to produce great bodily injury and assault with a deadly weapon (Pen. Code,  245, subd. (a); all further references are to this code unless otherwise stated; counts 1 & 2), made criminal threats ( 422; count 3), participated in a street gang ( 186.22, subd. (a); count 4), and committed vandalism ( 594; count 5). It also alleged all but count 4 were committed for the benefit of a street gang ( 186.22, subds. (b), (d)) and that counts 1 and 3 were hate crimes ( 422.75, subd. (b)). After a hearing, the court found all allegations to be true.

The only ground for minors appeal is exclusion of character evidence about one of the victims. He contends the court erred in finding the testimony irrelevant and barring it under Evidence Code section 352, exclusion violated his constitutional right to put on a defense, and the error was prejudicial. We disagree and affirm.

FACTS

J.Z. and E.H. were walking toward J.s home when some of the Boys From the Hood gang approached them. Members of the gang had assaulted J. several times prior, hurling racial epithets including, There is no niggers allowed to live in my neighborhood.

As J. and E. approached J.s gate, four or five gang members rushed at them saying, I told you, no niggers allowed walking though my neighborhood like this. Get this nigger. Were going to kill him, Stab this fool, get the strap (gun) out, and Im going to kill you.

Some of the assailants then chased J. while others, including minor, went after E. Defendant and his cohorts unsuccessfully attempted to punch E. Defendant then tried to cut E.s face and torso with a box cutter. As E. defended himself, his hand was cut.

At the same time, other gang members punched and kicked J. several times. He had a tooth knocked back and got a broken lip, and suffered bumps, including a knot on his head, and bruises.

Once E. and J. were in J.s apartment, gang members threw a brick through a window and threatened to kill the two, saying things such as This is my hood. You going to respect my neighborhood. When police were called the assailants ran away.

Thirty to forty-five minutes after the police left some of the gang members, not including minor, returned and started another altercation, knocking J.s teeth in with a brick.

At trial Officer Bryan Janocha testified as a gang expert. He stated the Boys From the Hood gang was a criminal street gang and that the acts they committed were done for the benefit of their gang. Minor had told Janocha he hung out with the gang and backed them up. Minor had been seen with members of the gang and using their hand signs.

Minor testified that he was not a member of the gang, only an associate. Minor and his uncle each testified they had been out of town the day of the incident and had arrived home about the same time it occurred. Esteban Martinez, a member of the gang, testified that minor was a member of the gang but did not participate in the crimes. Martinez said he himself was the one who chased E. and he did not have a box cutter. He also testified there was no racial motivation for the fight.

J. admitted he had a 2003 misdemeanor conviction for making criminal threats and a 2005 conviction of possession for sale of marijuana.

DISCUSSION

Minor wanted to call two witnesses to testify as to J.s reputation, including dishonesty and violence, that he had admitted he was an associate and a member of the Bloods street gang and had been seen writing gang graffiti, and that he had made anti-Mexican racist comments. After the offer of proof, the court ruled the evidence could not come in. Membership in a gang was not relevant because no witness had testified about Bloods or Crips. His reputation for violence was also irrelevant because every witness had testified J. was not with his gang and members of Boys From the Hood had attacked him. The court also pointed out that J.s admission of his two prior crimes impeached his credibility. On those bases the court excluded the testimony as irrelevant and unduly time consuming under Evidence Code section 352.

Minor claims that J.s alleged past violent conduct, racism, and gang membership were relevant and the evidence also went to J.s credibility. Specifically, he argues that evidence tending to establish [J.s] potential for taking violent

action particularly against Latinos was relevant. We disagree.

Minors defense is he did not participate in the crimes, not that he acted in self-defense. Even assuming J. was likely to act violently toward Hispanics, there is no evidence that happened here. Contrary to minors argument, this evidence had no tendency to prove or disprove anything relevant. Although not specifically articulated, minor appears to be arguing that J. was fabricating the events because he hated Mexicans, but a gang member testifying on minors behalf confirmed the attack occurred. Minor points to no evidence J. provoked the incident. Similarly J.s membership in the Bloods is not relevant to whether minor was involved in the crimes or whether the Boys From the Hood carried out the attacks as described. So although J.s credibility was relevant (Evid. Code,  785), the proffered evidence was not.

Because the evidence was not relevant, we need not discuss minors argument as to the courts alternative ground for exclusion, Evidence Code section 352.

We also reject minors claim the exclusion violated his constitutional right to put on a defense. Although due process requires that a criminal defendant have a meaningful opportunity to present a complete defense[] [citations] (Crane v. Kentucky (1986) 476 U.S. 683, 690 [106 S.Ct. 2142, 90 L.Ed.2d 636]), this right is not absolute. Courts have long observed that, [a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds [state or federal constitutional] right to present a defense. [Citations.] (People v. Robinson (2005) 37 Cal.4th 592, 626-627, fn. omitted.) The United States Supreme Court has also recognized, we have never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliabilityeven if the defendant would prefer to see that evidence admitted. [Citation.] (Crane v. Kentucky, supra, 476 U.S. at p. 690; accord People v. Yeoman (2003) 31 Cal.4th 93, 141-142.)

That the testimony was the only significant defense evidence that did not come from suspect sources as minor claims is of no consequence. This fact alone did not make it relevant and thereby admissible.

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

MOORE, J.

ARONSON, J.

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