P. v. Lopez

Filed 8/15/07 P. v. Lopez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEALS from judgments of the Superior Court of Los Angeles County, Terry A. Green, Judge. Affirmed.

Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Anthony J. Lopez.

Colleen M. Rohan, under appointment by the Court of Appeal, for Defendant and Appellant Christian Hernandez.

Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Herbert S. Tetef and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.

______________________

Appellants Anthony J. Lopez and Christian Hernandez appeal from their judgments of convictions. The two were tried jointly, but to separate juries. Both were found guilty of first degree murder of Raymond Jaimez (count 1) and willful, deliberate and premeditated attempted murder of Raul Magana (count 2). In addition, enhancements for personal use of a firearm and infliction of great bodily injury were found true as to Hernandez for count 1; the same allegations were found true as to Lopez for count 2.

On appeal, each defendant presents claims of prosecutorial misconduct (vouching), error with respect to the handling of questions asked by jurors, and improper admission of gang evidence. Lopez also presents a claim of instructional error, and Hernandez argues the trial court erred in admitting DNA evidence and in removing a sitting juror during the deliberation phase of the trial. We find no error, and affirm the convictions in full.

FACTUAL AND PROCEDURAL SUMMARY

On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible and of solid valuefrom which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 66; Jackson v. Virginia (1979) 443 U.S. 307, 317; People v. Johnson (1980) 26 Cal.3d 557, 578.) Further, [i]n reviewing sufficiency of the evidence, we view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Lewis (1990) 50 Cal.3d 262, 277.) The summary that follows is based on these well-settled standards.

The prosecution theory was that Hernandez, who had exercised authority over narcotics sales in a particular area controlled by his gang, Lil Valley, was convicted of a felony and served time in prison. Hernandez believed that while he was in prison, Raymond Jaimez, another member of his gang, took over Hernandezs territory, and would not relinquish control once Hernandez was released from custody. Hernandez decided to eliminate Jaimez. Lopez agreed to support him in that effort. Hernandez recruited a third person, Socorro Perez, to drive him and Lopez to a location where Jaimez was known to be and wait with the engine running while Jaimez was shot, then to drive the assailants away. This theory was supported by evidence introduced by the prosecution.

The homicide and attempted homicide were carried out, as we shall describe in detail. Hernandez, Lopez, and Perez were arrested. Perez entered into a plea bargain in which he received lighter punishment in exchange for his promise to provide truthful testimony at trial. His testimony was corroborated in many respects, and was of critical importance in the case. We begin our discussion with Perezs statements and testimony, then discuss the corroborating evidence.

Socorro Perez

Perez met Hernandez about a month before the shooting, when Hernandez was released from prison. About a week later, Perez moved into the home of Lisa Flores with Hernandez and Lopez. Sometime before the shooting, Perez met Raul Magana, when he drove Hernandez to Maganas house, where Hernandez purchased a semiautomatic .32 caliber revolver from Magana. That gun was used in the shooting.

Several weeks before the shooting, Hernandez said that he was having problems with Jaimez; he said he thought Jaimez wanted to kill him. Lopez, who was present during this conversation, said he would support Hernandez.

About a week before the shooting, Hernandez said he wanted to get his turf back from Jaimez, and Jaimez did not want to return it. Lopez again said he would support Hernandez.

Three or four days before the shooting, Hernandez said that after shooting Jaimez, he wanted the bodies to be taken far away, in Maganas van.

The shooting occurred in the early evening of January 6, 2001. That morning, Perez woke and heard Hernandez talking on Perezs cell phone. Hernandez wanted to be informed when Jaimez and Magana arrived at the home of Issac Gomez. Hernandez received a call on the cell phone that afternoon. He took the call outside, so Perez did not hear the conversation, but when Hernandez finished, he returned to the house and told Perez to take him to the Gomez house because Jaimez and Magana were there. Hernandez and Lopez then went into a bedroom and changed clothes. They put on black gloves and sweatshirts. The sweatshirt Lopez wore had a hood; the one worn by Hernandez did not. Perez did not ask Hernandez why he wanted to be taken to the Gomez house, but from previous conversations he thought Hernandez was going to kill Jaimez when they got there. Perez agreed to drive Hernandez and Lopez to the Gomez house in his red Thunderbird car. On the way there, Hernandez said that he was going to kill Jaimez, and Lopez said he would support him.

Perez stopped the car several houses away from the Gomez residence. Hernandez and Lopez exited the vehicle, Hernandez with a .32 caliber gun and Lopez with a .357 magnum revolver. Perez made a U-turn and parked, with the engine running. Hernandez had told him not to turn anything off. Hernandez and Lopez walked quickly to the Gomez house, jumped over a small fence, and walked to the rear yard. They emerged shortly after that with Jaimez and Magana. Hernandez was walking backward as though he had been pushed. Magana went to the drivers side of his van and Jaimez went to the passenger side. Perez could not see what happened next, but he heard gunshots and screaming. When the firing stopped, Hernandez and Lopez ran back to Perezs car. Hernandez got into the rear seat and Lopez sat in the front. Both tried to hide. Hernandez told Perez to drive back to the Flores house, which he did.

Two days later, on January 8, 2001, Perez, Hernandez and Lopez were spotted by police in Perezs Thunderbird. Police followed the Thunderbird. Hernandez, noticing this, told Perez to say he had been waiting for his girlfriend when he heard gunshots and left. Police detained and later arrested the three men. Questioned, Perez lied about what happened on the night of the shooting. He eventually was released.

A few days later, Perez was shot outside the Flores home. At some point before that, Lopez had received a telephone call and told Perez, Lets go outside. They did, Lopez taking a .25 caliber gun. Once outside, Lopez said, Watch it. Immediately afterward, Perez heard gunshots coming from a car. He was hit and taken to a hospital. Hernandez was inside the Flores house when the shooting occurred. Perez thought Hernandez was responsible for the shooting and decided to talk to police.

On January 30, 2001, in an interview at the hospital, Perez told police that Hernandez and Lopez had done the shooting on January 6, but he did not know why. He also lied about his own involvement.

Perez was arrested in February 2001 and charged with the murder of Jaimez and attempted murder of Magana. In a police interview on February 12, 2001, Perez reiterated that Hernandez and Lopez had done the shooting, and he admitted that he was involved. He also related Hernandezs differences with Jaimez as a basis for the shooting.

While in custody, Perez received messages from Hernandez, who also was in custody, warning him not to say anything lest he be killed. He also received a letter from Hernandez, reminding him that the three of us are family, and we look out for one another, that police have nothing here, and not to listen to police cause theyll hang us. Hernandez also enclosed a letter (which he referred to as a motion) for Perez to give to his attorney which will help us in case you have said anything by accident. The letter instructed the attorney to file a motion to suppress Perezs statement on various grounds.

Hernandezs wife, Olga Ramirez, brought messages from Hernandez to Perez. Perez understood that if he said anything, something would happen to him in jail. Lopez also told him to keep quiet. He felt threatened, but he insisted he was telling the truth in his testimony that Hernandez and Lopez were the shooters.

Other Evidence

There were several witnesses to the shooting. Raul Magana was interviewed by the police in the intensive care unit of the hospital after he was shot. He told police that Lopez shot him, that Hernandez shot Jaimez, and that Perez drove the getaway car. But in court he said he had lied to the police and did not see who shot him. He remembered walking to his van with Jaimez when they were shot. He saw two figures in dark hooded sweatshirts. He said he was not lying about Perez driving the red Thunderbird getaway car. Magana said he did not want to be in court, and admitted that he was a member of the Lil Valley gang.

Issac Gomez, at whose home the shooting occurred, was upstairs in the house with his friend Honorio on the evening of January 6, 2001. Jaimez and Magana arrived in Maganas silver van, and called to them to come downstairs. The four men went into the backyard to talk. Gomez noticed two men walk towards the backyard. One approached and asked, Whats up? Gomez said, Hello, hello, whats up? Both men wore bulky clothes, one with a hooded sweatshirt. The two men walked past Gomez toward Jaimez and Magana. They conversed in low voices, and Gomez and Honorio went inside the house.

From the kitchen, Gomez heard pops which he first thought were firecrackers. Then he heard more noise and his cousin, Brandy Gallegos (who also lived there) screamed, Oh my God. Gomez looked out a window, but he did not see anything. He went out the front door and saw Magana and Jaimez lying on the ground. He saw someone in dark clothing standing at the corner of a nearby intersection.

Gomez talked to the police that night, but he did not tell them about the two men entering his yard until an interview in June 2001. At trial, he said he was scared for himself and his family and did not want to be in court and would not say whether Hernandez and Lopez were involved.

Brandy Gallegos and her father, John Gallegos, lived with Gomez. From her bedroom window Ms. Gallegos saw a person being shot near a silver van. The shooter was wearing a dark hooded sweatshirt. Then she saw the shooter run away. She noticed a second suspect running with him. The two men got into the passenger side of a red car. The car drove away and she lost sight of it. When Ms. Gallegos went outside, she saw that two persons had been shot. Later, Ms. Gallegos identified a sweatshirt recovered from the Perez vehicle as similar to the one she saw the shooter wearing.

Mr. Gallegos was in the kitchen of the Gomez home when he heard gunshots. Ms. Gallegos called to him, and he ran to the bedroom window. He saw two persons on the ground in front of a driveway. He also saw two persons wearing dark hooded sweatshirts run from the scene towards a vehicle that looked like a red two-door Thunderbird. He recognized the car as belonging to Perez. The two men entered the car, one on each side, and the car drove off. Mr. Gallegos called 911.

Priscilla Valles, who lived next door, also heard the shooting. She said the shots sounded like fireworks. She went out onto her porch and saw two men, wearing dark hooded sweatshirts, get into a red Thunderbird. She had seen the car parked near Issac Gomezs house three or four times before.

Lopez, Hernandez, and Perez were charged with the murder of Jaimez and the attempted murder of Magana. Perez entered a guilty plea in exchange for his testimony. Lopez and Hernandez were tried together, to separate juries. They were each found guilty of the first degree murder of Raymond Jaimez and the attempted willful, deliberate and premeditated murder of Raul Magana. They filed these timely appeals.

DISCUSSION

I

Both Hernandez and Lopez claim the prosecutor committed misconduct by vouching for the credibility of Socorro Perez. The claims arise from the prosecutors references to Perezs plea agreement, and his reading of the terms of the plea agreement during trial. Lopez also claims his attorney was ineffective for failing to object to the improper vouching.

When the prosecutor first mentioned the plea bargain during his opening statement to the Hernandez jury, counsel for Hernandez objected. The objection was overruled. In light of that ruling, an objection by Lopezs counsel to the same argument would have been futile.[1] We reject respondents assertion that any error was waived, and thus need not address Lopezs assertion that his attorney was ineffective for failing to object. We turn to the merits of the claim.

A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witnesss truthfulness at trial. [Citation.] However, so long as a prosecutors assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief, her comments cannot be characterized as improper vouching. (People v. Frye (1998) 18 Cal.4th 894, 971.) We conclude the prosecutors reading of the plea agreement and his references to Perezs obligation to be truthful under the agreement do not constitute vouching.

In his opening statement to the Hernandez jury, the prosecutor stated that while there were a lot of witnesses who at least circumstantially could implicate defendants and Socorro Perez in the crime, missing was somebody who could say who did what and why it was done and how all this occurred, and that missing piece of the puzzle was filled in when last year one of the defendants, as he was awaiting trial in this matter, Mr. Socorro Perez, elected to turn States evidence. You will hear that yes, he was facing two life terms, and that he got a reduced sentence, but you will also hear that its not exactly like hewe gave him the keys to the courthouse door. He was not given probation or some minor tap on the hand or slap on the wrist. He was given a sentence of 14 and two-thirds years in state prison, okay, not some slap on the wrist. Moreover, youll hear about this agreement.

The prosecutor told the jury the agreement was made in open court, that the judge was present, but that the defense attorneys and defendants were not there, because in this gang world, its not a good idea to let co-defendants know that one of them is about to turn snitch . . . .

He continued: Youll have an opportunity to review that agreement, that complete agreement, and youll see all the incentives built in for truth in that agreement. Over and over again, Mr. Perez, it was emphasized to him his obligation is to tell the truth. It is not to give answers that make the defense happy or that make the People, the prosecution happy. . . . If he doesnt tell the truth, he loses his deal, and it was made clear to him that truth means exactly that, that he cannot falsely exonerate somebody certainly, but it was also made clear to him he cannot falsely accuse. If he falsely accuses, he loses his deal. Something also very interesting about this deal . . . was something that I announced in court. The People through me gave up any say in saying whetherdetermining whether he told the truth. In other words, he has to tell the truth, but its not truth as, you know, the prosecution sees it. This agreement provides that he must tell the truth, and the person who decides whether hes telling the truth is not me, is not the defense attorney, its not somebody from my office, but the judge, the judge.

At this point, Hernandezs counsel objected; the objection was overruled, and the prosecutor continued his statement without further reference to the plea agreement.

In his opening statement to the Lopez jury, the prosecutor again described the terms of Socorro Perezs plea agreement, including the incentives for Perez to tell the truth. [T]here is an interesting feature of this agreement, and youll find out soon enough that Im the one who negotiated this. You may say to yourself, well, yeah, he has to tell the truth, but who decides what the truth is? You, Mr. Prosecutor? No, the agreement is specifically structured so that its not the truth as I see it or the truth as defense counsel sees it. The ultimate decision-maker on whoon whether Socorro Perez is telling the truth under the agreement is going to be the judge. Thats the incentive built into this agreement, the safeguards built into this agreement for him to tell the truth.

After setting out Perezs expected testimony, the prosecutor told the jury, [I]n evaluating Socorro Perez, youll be able to evaluate the agreement, the nature of the agreement. Not all plea agreements are born equal here, but you will be able to evaluate. Youll see all the incentives built into the truth, including the key feature that the truth is not going to be decided by me or by defense counsel, but by the court.

Nothing in the opening statements amounts to vouching. The prosecutor was obligated to disclose to the jury any inducements made to a prosecution witness to testify. (See People v. Morris (1988) 46 Cal.3d 1, 30, disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5.) He did so, accurately describing the terms of Perezs plea agreement, including the requirement that Perez testify truthfully in order to benefit from the agreement, and the proviso that the court would decide if the testimony was truthful. He did not indicate his personal belief in Perezs credibility, nor imply that he had additional information unavailable to the jury which bore on Perezs honesty.

When Socorro Perez was called as a prosecution witness, the prosecutor read the terms of the plea agreement from the transcript of the September 30, 2002 hearing:

Sir, its my understanding that you wish to enter a change of plea and enter a plea of no contest to count 3, voluntary manslaughter, as well as a special allegation of principal armed, and also to count 4, attempted murder without premeditation and deliberation, as well as the principal armed allegation. In exchange for that, . . . you agree to waive yourself [sic] incrimination claims and further agree that you will testify truthfully at any and all court proceedings relating to the shooting of Raymond Jaimez and Raul Magana on or about January 6, 2001, and you will so testify regardless of when such proceedings may occurring [sic]. You must testify truthfully, regardless of whether the People or defense counsel are asking the questions. Truthfully, just as examples, means that you must not say more than you know or less than you know. And you must not falsely accuse anyone who is innocent and must not falsely exonerate anyone who is guilty. All these things are just some examples of testifying falsely. Your obligation is not to say what you think will make the People happy or what you think will make the defendants happy. Your sole obligation is to tell the truth.

Now, the sentence that we have agreed upon is 14 and two-thirds years, and you just heard the calculations that we went through in court. Your sentencing will be delayed until after you have testified at the upcoming trial in this case. If you have testified truthfully, this sentencing agreement will go into effect and you will be sentenced according to this plea agreement. . . . On the other hand, if the court determines that you have not testified truthfully, then this plea agreement will be considered null and void and you will be prosecuted just the same as if the plea agreement had never existed. . . . The ultimate person who will decide whether you have testified truthfully is the court, and the court alone. That is the man in the black robes. It will not be me or any other prosecutor. It will not be any defense attorney either. The court, the man in the black robes, will be the ultimate one to decide whether you have testified truthfully. Perez acknowledged that was the agreement he entered into at the September 30, 2002 hearing.

There was nothing improper in this verbatim recitation of the terms of the agreement. Neither the phrasing nor the content of the agreement suggested that there had been a pretrial determination that Perez would tell the truth, nor did it indicate the prosecution had information bearing on Perezs credibility which would not be presented at trial. (See People v. Frye, supra, 18 Cal.4th at p. 971.) The provision in the agreement that the judge would determine if Perez testified truthfully did not suggest that such a determination already had been made, or that it would be based on anything different from the information the jury would have. It did, however, inform the jury that Perez had an incentive to appear truthful in his testimony. Whether he was truthful remained an issue for the jury in deciding the guilt or innocence of the defendants, and for the court in deciding whether to enforce the plea agreement.

The prosecutor referred to the plea agreement during closing argument. He argued to the Lopez jury that the agreement was structured in a way that removed the prosecutors ability to control what Perez said, since it was the judge who would decide whether Perez was telling the truth or lying.

Lopezs attorney challenged that premise in his argument. He noted that the prosecutor argued he had no leverage over Perez, and that Perez would not lie because the judge would decide if he was truthful. But he claimed the prosecution was promoting its truth. He argued that Perez had a bias, an interest, a motive not to tell the truth. He asked the jury to think about the reasoning of Socorro Perez, what he had, his motive, his interest, his bias, everything he had to gain by making a deal: get Little Valley off his back, to get a set number of time in jail, to get protection. In rebuttal, the prosecutor again agued that Perezs plea deal was a strong incentive to tell the truth.

At the conclusion of argument, before the Lopez jury was instructed, a juror submitted the following question to the court: Is it your opinion that Mr. Perez was truthfull [sic] enought [sic] for him to get the plea agreement ofered [sic] to him by the district attorney. The court replied: Good question. And I dont enter into the deliberation process in any way. I have great respect for the fact that you folks can ascertain credibility of witnesses without my help. If I were on your jury, I would be just one more voice. I wouldnt be a better voice in terms of assessing credibility. Thats why we have citizens take that task and not professional jurors. So, I cant give you an opinion on the credibility of witnesses. Even though its an excellent question and even though it was discussed at great length in the trial and during arguments. That we handle later.

In his closing argument to the Hernandez jury, the prosecutor noted that the plea agreement did not require Perez to testify in a specific manner, or to the satisfaction of the prosecution. Perez promised to testify truthfully, and it was for the judge to determine whether he did so. The prosecutor commented on the benefits of the plea agreement: If its such a great deal, and the bottom line is heif he lied and the judge determines he lies, he loses his deal. Isnt the fact that its a great deal, isnt that an incentive for him to tell the truth?

Hernandezs counsel argued to the jury that after numerous interviews, Perez went back to the police on May 14, 2002 with the expectations of getting an agreement, and he didnt get his deal until September 30th. He went back there with one intention and that was to help the prosecution, ladies and gentlemen. Counsel argued that Perez is a person whos obligated to be truthful to both sides, but he wouldnt give the defense the time of day. . . . His allegiance is to the prosecutor, but most of all his allegiance is to Socorro Perez.

On rebuttal, the prosecutor disputed that Perez was beholden to him, and read the actual plea agreement to the jury. He then argued, Ladies and gentlemen, do you think that if I wrote an agreement that was different and that gave me control over whether he tells the truth, dont you think hed be standing up there and pointing that out and rightfully putting that, you know, around my neck? Absolutely. Okay. So, when the agreement is exactly the opposite, when I have absolutely no control over this, okay, it ought to tell you something. . . . And remember, if the deal is as good as [defense counsel] says, then thats an incentive for him to tell the truth. Why would he now lie and risk this deal which is such a great deal for him, according to [defense counsel]?

We have set out in detail the prosecutors references to the plea agreement, and defense counsels responses, to emphasize that in context, they did not constitute vouching. The prosecutor accurately stated the terms of the agreement. He encouraged the jurors to consider Perezs testimony credible because he was under an obligation to be truthful. He argued that Perez had no bias toward the prosecution since it was the judge, not the prosecutor, who would determine whether the testimony was truthful. None of this constitutes improper vouching.

Appellants rely on three federal cases to support their claim. Decisions of the lower federal courts may be persuasive, but are not binding on this court. (People v. Camacho (2000) 23 Cal.4th 824, 830, fn. 1.) More importantly, the cases are distinguishable. In United States v. Brown (9th Cir. 1983) 720 F.2d 1059, 1072, the prosecutor introduced the text of the plea agreements in order to tie each witnesss promise to be truthful to his agreement to submit to a polygraph examination. Given the unbroken history of rejection of polygraph evidence when offered for its substantive value, the court held that the prosecutions use of these polygraph recitals constituted impermissible vouching. (Ibid; see also United States v. Roberts (9th Cir. 1980) 618 F.2d 530, 534.) Nothing of that nature occurred in our case. Nor did the prosecutor imply that he knew the judges reasons for accepting the plea agreement, as in United States v. Dorr (9th Cir. 1981) 636 F.2d 117, 120. We find no improper vouching.

II

During jury selection, the court told potential jurors that during the trial, he would permit jurors to submit questions for the witnesses to answer. What I do is when a witness has finished, I turn to the jury and say, Jury, anyone have any questions on the jury? And then you write down your question, the bailiff brings them to me, I read them, I give them to counsel. And your questions may or may not be asked. Your questions are subject to the rules of evidence, same as the attorneys questions, and theres no reason why you folks should know the rules of evidence. So, if your questions violate one or more rules of evidence, its no problem. The police arent going to get you. Sometimes people ask questions as to which there is no answer. Sometimes people ask questions where the answer will come out later on in the trial. In those cases you will not hear your questions asked. Where you do hear your questions asked, the answer is one more piece of evidence. Not more important, not less important, but one more piece of evidence. Ive never done that on a dual jury before, we have two juries. That will be interesting.

Appellants claim the court abused its discretion in allowing juror questioning of witnesses, and in praising the jurors for the quality of their inquiries. This, they argue, permitted (and even encouraged) the jurors to act as advocates, thus denying appellants their right to due process and a fair and impartial jury.

The trial judge has discretion to ask questions submitted by jurors or to pass those questions on and leave to the discretion of counsel whether to ask the questions. (People v. Cummings (1993) 4 Cal.4th 1233, 1305; see also People v. Majors (1998) 18 Cal.4th 385, 407.) The court carefully screened the questions, entertaining and ruling on objections by defense counsel. The court rejected many of the questions because they assumed facts not in evidence, or were speculative, without foundation, irrelevant, or argumentative. The court asked the questions it found unobjectionable, thereby avoiding any possibility that permitting a party to ask a jurors question would curry favor with an individual juror. (See People v. Majors, supra, 18 Cal.4th at p. 407.)

Appellants acknowledge there is binding California authority permitting juror questions, but argue that the extensive nature of the questioning was prejudicial. We are cited to no California authority in support of this claim. Instead, appellants rely on United States v. Ajmal (2d Cir. 1995) 67 F.3d 12, 14-15. As we explained in section I, decisions of the federal district courts are not binding authority. (People v. Camacho, supra, 23 Cal.4th at p. 830, fn. 1.) We find neither error nor prejudice in the courts decision to permit jurors to submit questions. Nor does either appellant cite any example of a question that was answered which was improper.

III

Appellants claim evidence that they were members of a criminal street gang was irrelevant, or more prejudicial than probative, and should have been excluded.

Prior to trial, Hernandez moved to exclude gang evidence. Lopez joined in the motion. The prosecution opposed the motion, arguing gang evidence was relevant to establish motive, and pressure on witnesses not to testify. After hearing argument, the court denied the motion. We find no abuse of discretion in that ruling.

Because evidence that a criminal defendant is a member of a juvenile gang may have a highly inflammatory impact on the jury [citation], trial courts should carefully scrutinize such evidence before admitting it. (People v. Champion (1995) 9 Cal.4th 879, 922, disapproved on another ground in People v. Combs (2004) 34 Cal.4th 821, 860.) [I]n a gang-related case, gang evidence is admissible if relevant to motive or identity, so long as its probative value is not outweighed by its prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193.)

This was not a case involving rivalry between gangs, but rivalry within the Lil Valley gang. The prosecutions theory was that Hernandez had controlled the drug trade for Lil Valley before his incarceration. While he was in prison, Raymond Jaimez, another member of Lil Valley, took over the gangs drug activities. When Hernandez was released from prison, he sought to resume control of Lil Valleys drug trade. The prosecutor intended to present evidence that when Jaimez refused to relinquish his control, Hernandez decided to kill him. Evidence of the battle for control of the drug trade within the Lil Valley gang was highly relevant to motive.

The prosecution also argued gang membership was relevant to show pressures certain witnesses faced in testifying at trial. In particular, victim Raul Magana, who also was a member of Lil Valley, recanted his identification of Hernandez and Lopez. The jury was entitled to consider whether he recanted because he feared repercussions from fellow gang members. Similarly, Socorro Perez was a member of Lil Valley. The prosecutor was entitled to argue that he kept changing his story about the crimes because he was afraid to implicate members of his gang. A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony. Just as the fact a witness expects to receive something in exchange for testimony may be considered in evaluating his or her credibility [citation], the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369.) Regardless of its source, the jury would be entitled to evaluate the witnesss testimony knowing it was given under such circumstances. And they would be entitled to know not just that the witness was afraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witnesss fear. (Id. at p. 1369.)

Appellants argue there were other ways to establish that certain witnesses were afraid to testify against them, without the prejudicial effect of gang evidence. But the court could reasonably conclude that evidence of gang allegiance would have more probative value than mere friendship in evaluating a witnesss state of mind in testifying. The court properly weighed the probative value of the gang evidence against its prejudicial effect. The court noted, This is a case where everybody is on the same playing field. I mean, you have witnesses who are given deals, and you have victims who were in gangs and defendants who were in gangs. It doesnt havegang membership doesnt have the overlying sting that it would have in a case . . . of a drive-by shooting where the victims were not involved in gangs. The court did not abuse its discretion in finding that the evidence of gang membership in this case was relevant and probative to motive and witness bias, and was not unduly inflammatory.

IV

Lopez claims the court erred in refusing to instruct that in evaluating a witnesss credibility, the jury should consider that the person entered into a plea agreement. The requested instruction was directed toward the testimony of Socorro Perez, who testified against appellants under a plea agreement. The court refused the instruction, but permitted counsel to argue the point. We find no error.

The court instructed in terms of CALJIC No. 2.20, as follows: Every person who testifies under oath is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness. In determining the believability of a witness, you may consider anything that has a tendency to prove or disprove the truthfulness of the testimony of the witness, including, but not limited to, any of the following:

The extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness testifies; the ability of the witness to remember or to communicate any matter about which the witness testifies; the character and quality of that testimony; the demeanor and manner of the witness while testifying; the existence or nonexistence of a bias, interest or other motive; the existence or nonexistence of any fact testified to by the witness; the attitude of the witness towards this action or towards the giving of testimony; a statement previously made by the witness that is consistent or inconsistent with his or her testimony; an admission by the witness of untruthfulness; past criminal conduct of a witness amounting to a misdemeanor.

This instruction adequately alerted the jury to consider Perezs bias, interest or motive; his attitude toward the action; and the inconsistencies between his previous account of the incident and his testimony in court. Each of these factors brought to the jurys attention the existence and terms of Perezs plea agreement. In addition, the jury was properly instructed that Perez was an accomplice as a matter of law; that his testimony had to be corroborated; and what constitutes adequate corroboration. In addition, the jury was instructed: To the extent that an accomplice gives testimony that tends to incriminate the defendant, it should be viewed with caution. These instructions, considered together with appellants emphasis on the bias created by Perezs plea agreement, adequately informed the jury that it should weigh Perezs credibility very carefully. There was no need for the requested pinpoint instruction.

V

Lopez claims the court erred in giving instructions to both juries that only applied to codefendant Hernandez, or in failing to give an appropriate limiting instruction. The claim arises from the courts instructions, in terms of CALJIC Nos. 2.04, 2.05 and 2.06, relating to efforts by a defendant or another to fabricate or suppress evidence.

During trial, under a grant of immunity, Olga Ramirez testified about conveying messages to Socorro Perez and Lisa Flores, at the request of Hernandez. Before Ramirez testified, a stipulation was read, informing Lopezs jury that it must assume to be true that defendant Lopez had no part in conveying any messages to any witness through Olga Lorena Ramirez to any witness. Accordingly, you must not attribute to defendant Lopez any of the statements conveyed by Olga Ramirez, and must treat such statements as though defendant Lopez never made them and never agreed with them in any way, and must not assume the truth of any such statements as to defendant Lopez. Furthermore, you must not consider such evidence as showing any consciousness of guilt on the part of defendant Lopez.

Lopezs jury was further instructed: [Y]ou may consider such evidence for one and only one limited purpose. If you find that a witness testified despite receiving statements conveyed by Olga Lorena Ramirez, you may consider such evidence in considering the effect, if any, that such statements, regardless of whether they were true or not, had on the state of mind of the witness, as part of your task in assessing that witness credibility. You may not consider the evidence for any other purpose. The weight, if any, that you give to such testimony for this purpose is for you and you alone to decide.

Ramirez then testified that at Hernandezs request, she visited Socorro Perez in custody. Hernandez asked her to copy a letter he had written and hold it up to the glass when she visited Perez. She brought the letter to Perez the same day. In the letter, which was read at trial, Hernandez told Perez that well get out of this, as long as you dont testify. Listen to me. I dont care what you said to the police. Nobody else knows, nobody. I forgive you, but you must tell your attorney that you lied, that the police told you what to say before the recording. They frightened you, and they also told you they would let you go if you talked. If you talk, theyll hang the three of us. Dont be a Judas. Would you betray me? Hernandez cautioned Perez against believing the promises of the district attorney, and told him to tell the police, That night you went to pick up Griselda. You were waiting for her there. You heard shots, and you took off, and thats it. Dont say another word. Brother, I forgive you, but if you dont make things rights, youll be hurting us. Dont testify, and well get out in December or January. Ramirez also told Perez that something bad could happen to him inside or outside of jail.

Ramirez also testified that at Hernandezs request, she had spoken to his friend Lisa Flores. She then reported back to Hernandez that Flores said they already talked to her, and that [t]hey know that Saturday she was at work because they checked her time card. The implication from Ramirezs testimony was that Hernandez hoped Flores would provide an alibi for him.

There also was evidence that in January 2001, shortly after Perez was released by the police, he was wounded in a drive-by shooting while at Lisa Floress house. Perez suspected Hernandez was behind his shooting. The court instructed both juries that there was no evidence that either appellant was behind the shooting. This last statement is admissible and relevant, if you find it relevant, only to reflect upon this witness state of mind and any motivation he might have to testify here in court, so please do not assume to be true that Mr. Hernandez had any role whatsoever in shooting Mr. Perez. There is no evidence of that. Again, its admissible only to show this witness state of mind in testifying here today in court or cooperating with the police.

These explicit contemporaneous instructions adequately informed Lopezs jury about the limited applicability of evidence of threats to witnesses. Nothing in the later instructions to the jury implied that Lopez was involved in threatening or discouraging witnesses from testifying. In fact, as the court noted, CALJIC No. 2.05 may have benefited Lopez by informing the jury: If you find that an effort to procure false or fabricated evidence was made by another person for the defendants benefit, you may not consider that effort as tending to show the defendants consciousness of guilt, unless you also find that the defendant authorized that effort.

Lopez argues that if the court did not err in giving CALJIC Nos. 2.04, 2.05 and 2.06 to his jury, it had a sua sponte duty to instruct in terms of CALJIC No. 2.07. That instruction provides: Evidence has been admitted against one [or more] of the defendants, and not admitted against the other[s]. [] At the time this evidence was admitted you were instructed that it could not be considered by you against the other defendant[s]. Do not consider this evidence against the other defendant[s].

CALJIC No. 2.07 was not requested, and thus the court had no duty to give this limiting instruction. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1051.) More importantly, the court reminded the jury that some of the evidence had been admitted for a limited purpose by instructing in terms of CALJIC No. 2.09: Certain evidence was admitted for a limited purpose. At the time this evidence was admitted, you were instructed that it cannot be considered by you for any purpose other than the limited purpose for which it was admitted. Do not consider this evidence for any purpose, except for the limited purpose for which it was admitted.

The jury also was instructed, pursuant to CALJIC No. 17.31, to [d]isregard any instruction that applies to facts determined by you not to exist. Do not conclude that because an instruction has been given Im expressing an opinion as to the facts. Considered as a whole, the instructions sufficiently warned the jury not to consider against Lopez any threats against witnesses made by or on behalf of Hernandez.

VI

Police found two sweatshirts in Socorro Perezs car. They were tested for gunshot residue, and also tested for the presence of DNA. Criminalist Robert Keil testified that in the sections of the sweatshirts that he tested, he found a few particles consistent with gunshot residue. Criminalist John Bockrath testified that he found a mix of DNA on the gray hooded sweatshirt, and it was his opinion that Hernandez was the major contributor of the DNA. Hernandez claims this evidence was irrelevant, and should not have been admitted.

The identity of the shooters was a disputed issue at trial. Witnesses testified that the shooters wore dark hooded sweatshirts. Whether the gray sweatshirt satisfied that description was for the jury to consider. Other evidencethat it was found in the getaway car with a dark blue sweatshirt, and that there was some evidence of gunshot residue on both sweatshirtswould support that conclusion. Given this reasonable inference, DNA evidence that Hernandez wore the gray sweatshirt was relevant for determining the identity of the shooter.

We also note the DNA evidence was not so inflammatory as to require exclusion under Evidence Code section 352. It supported the inference that Hernandez wore the sweatshirt, and that Hernandez was in Perezs car. This circumstantial evidence had some probative value in placing Hernandez at the shooting, but was not unduly prejudicial.

VII

Hernandez claims it was reversible error for the court to remove a sitting juror without good cause, and over his objections. Under Penal Code section 1089, If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors.

A jurors inability to perform as a juror must appear in the record as a demonstrable reality. (People v. Cleveland(2001) 25 Cal.4th 466, 474.) We review the courts decision to discharge a juror and order an alternate to serve for abuse of discretion. (Ibid.) If there is any substantial evidence to support the ruling, we will uphold it. (Ibid.)

On March 4, 2003, after the Hernandez jury had been selected, one of the jurors asked the judge how long he thought the trial would last. The court replied, I tend to estimate a little on the long side. I would guess that wed be done and youd be home by April 4th. I mean, thats counting deliberation time. I think the actual evidence and arguments should take us to maybe the 28th, 27th, right around there, of March. Trial lasted longer than anticipated. Closing arguments did not begin until Monday, April 7, 2003.

At this point, the question of inability to serve involved three jurors. Juror 8 had a prepaid vacation for Wednesday and Thursday of that week; Juror 12 had a prepaid vacation for Tuesday and Wednesday of that week. If both jurors were accommodated, trial would have extended an extra three days. This would have increased the hardship for other jurors, particularly Juror 4, who had been commuting from a job in Kansas City. She explained to the court, the longer this goes on, the worse it gets, and three days off is kind of tough for me. Asked if her job was in jeopardy, she answered, Im supposed to be the project manager for it, and a promotion is kind of pending, and the longer it goes on, Im not sure.

The prosecution suggested discharging Jurors 8 and 12. Defense counsel suggested asking the jury if it would mind starting deliberations on Friday. The court was concerned about the delay between the arguments and deliberations. The court also was worried about adding extra days to the trial in light of Juror 4s work situation: She said the longer it goes the worse it gets for her. We can shave a day off by kicking one of the jurors. The prosecutor suggested drawing lots to decide which of the two jurors to discharge. Defense counsel accepted that solution, as did the court. The court discharged Juror 8, and replaced him with an alternate.

The court stated: On the record, we had to let one of the jurors go because 3 days off, given number 4s issues, was too much. Two days off we can handle, but three days is a little too much. We flipped a coin, and were going to excuse number 8.

A decision to discharge a juror before the penalty phase of a trial because of a prepaid vacation has been upheld as within the courts discretion. (See People v. Lucas (1995) 12 Cal.4th 415, 489.) Here, because of prepaid vacations, two jurors would have been unable to perform their functions as jurors without undue hardship unless trial were interrupted, and one other juror articulated her fear of hardship at work if trial was interrupted for three days. By discharging one of the jurors who was unable to serve, the delay before deliberations could begin was reduced to two days, and the risk of hardship to Juror 4 and to the remaining jurors was limited accordingly. We find no abuse of discretion.

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

SUZUKAWA, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

[1] Lopezs counsel was probably aware of the courts ruling, since defense counsel conferred with each other during trial about the presentation of their cases.