P.v . Rodriguez

Filed 9/12/07 P.v . Rodriguez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael Johnson, Judge. Affirmed.

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

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Joseph P. Lee and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________

Defendant Rolando Rodriguez timely appealed from his conviction for first degree murder. The jury found the robbery special circumstance and the firearm allegation to be true. The court sentenced defendant to life in prison without the possibility of parole, plus a consecutive 25 year term for the firearm enhancement. Among other things, defendant contends he was prejudiced by the introduction of evidence he was a gang member and by a ruling permitting evidence he caused his brother to threaten or intimidate a witness. We affirm.

FACTUAL BACKGROUND

I. Prosecution Case

Walter James Dow, a professional truck driver coming from Alabama, was scheduled to deliver a load of frozen chickens weighing over 40,000 pounds to a location at the intersection of Florence and Compton Avenue in Los Angeles at 6 a.m. on July 3, 2000. The night before the scheduled delivery, Dow called his wife and told her he had arrived at his destination but was unable to unload the chickens at that time. Dow said he was going to spend the night in his truck and unload the chickens the following morning. Dows wife became worried when he did not call the following morning and called his dispatcher and urged the dispatcher to contact the police in Los Angeles.

At approximately 4 a.m. on July 3, Jose Santana Partida Perez was on his way to work when he found Dows deceased body on 59th Street in Los Angeles. Perez called the police.

Detective Stanley Evans[1]of the Los Angeles Police Department, who was initially assigned as the primary investigator of the homicide, arrived at the location where Dows body was discovered, which was about 10 to 11 streets away from the location where Dow was scheduled to make his delivery. Stanley was unable to locate any witnesses to the homicide. A bullet was found underneath Dows body. Later, Stanley spoke to the owner of the business expecting the delivery and was told the load never arrived.

On July 7, the cab of Dows truck was found on 82nd Street in a burned condition. On July 10, the trailer of Dows truck was found in the City of Downey. The trailer contained only empty pallets when it was recovered.

Dr. Juan Carrillo performed Dows autopsy and determined the cause of death was multiple gunshot wounds.

In 2001, Detective David Evans, who was assigned to the cargo theft hijack unit, investigated all cases involving cargo thefts and hijacks as well as thefts of tractors and trailers in the City of Los Angeles. Around September 14, Jesus Coronel contacted Evans and his partner Dan Nee and provided reliable information about various cargo thefts. With the information provided by Coronel, Evans and Nee were able to recover between $300,000 to $500,000 worth of merchandise in cases unrelated to this case. On two or three occasions when Coronel provided information leading to the recovery of merchandise, Coronel was paid $500 each time.

One time when Evans was driving Coronel around, Coronel pointed to an apartment on Florence Boulevard and said Spanky lived there. Coronel said Spanky had killed a man for a load of chicken. Evans was familiar with the case and drove Coronel to the Newton Division. No homicide detectives were available at that time.

In September, Detective Matthew Spillane worked in the homicide unit of the Newton Division. On September 18, Evans contacted Spillanes partner Detective Rudy Flores and gave Flores some information about a homicide involving a truck driver who was killed while transporting a load of frozen chicken. At the time, no one was assigned to that homicide because it was considered a cold case with no suspects. Spillane and Flores were given the name Spanky and told he was a member of the 18th Street gang. They were also given a possible address on Florence Avenue. Spillane and Flores went to the address and spoke to the apartment manager, who provided appellants name. Spillane obtained a photograph of appellant and prepared a six-pack photographic array.

Spillane met with Coronel on September 21 and showed Coronel the six-pack he had prepared. Coronel identified appellants photograph as the person who admitted killing the driver of a load of chicken.

At trial, Coronel testified about his interactions with appellant. In 2000, Coronel worked as a truck driver. In addition, Coronel occasionally worked for Ruben Contreras, who owned a tire shop. At Contrerass request, Coronel moved trucks. Coronel knew appellant as Spanky. Appellant was also involved in the moving of merchandise in the trucks.

Although Coronel did not initially realize Contreras handled stolen goods, at some point, Coronel suspected the trucks contained stolen merchandise, and he became uncomfortable working for Contreras. Coronel kept working for Contreras for about a year after realizing stolen merchandise was involved. Contreras was in charge, and Coronel followed Contrerass directions, even though sometimes he did not get paid for his work. Contreras used violence to get what he wanted.

Appellant told Coronel on two different occasions that he had killed the driver of the load of chicken. On the first occasion, they were on the street near appellants house; appellant sounded proud when he said he had killed the truck driver. Between a week and a month later, the two men were in a truck parking lot when appellant again stated he had killed the truck driver. Appellant said he stole the chicken and killed the driver because the driver did not want to get out of the truck.

Coronel also told the police appellant had sold the load of chicken to a meat market in Santa Ana. Coronel had been to the meat market on two occasions for the purpose of moving trucks for Contreras. The meat market was owned by Luis Mendoza.

Coronel did not feel comfortable telling Contreras that he no longer wanted to work for him. Coronel felt intimidated by Contreras and appellant because they would come looking for him to ask him to move the trucks. Appellant told Coronel he was a member of the 18th Street gang, and Coronel had seen that appellant had numerous gang tattoos.[2]

When Coronel went to the police, he was concerned for his safety and expressed that concern to the police. Coronel continued to live in the same residence. Coronel never told appellant where he lived.

Coronel knew appellant had a brother, whom Coronel knew by his nickname as Fat Cat or Gato Gordo. On January 25, 2004, appellants brother came to Coronels house while Coronel was at home alone and said he was looking for Coronel and mentioned a person who killed a trucker. While in Coronels kitchen, appellants brother told Coronel that for the safety of Coronel and his family, he should not say anything to the police about Spanky killing the truck driver. While making that statement, appellants brother had his hand in the middle of his back at the belt area, causing Coronel to suspect he had a weapon. Coronel was afraid and thought appellants brother was going to shoot him.

The same day, Spillane called Coronel to talk about the case, and Coronel told Spillane about the threats from appellants brother. On March 17, Coronel was shown a six-pack of photographs, from which he identified a photograph of Juan Rodriguez, appellants brother, as the person who had threatened him and told him not to talk to the police. Coronel told Spillane he was concerned for his safety, and Spillane offered Coronel a place in a witness protection program. Coronel entered the program and was still in it at the time of trial. Coronel was still concerned for his safety because the 18th Street gang had a lot of members, any one of whom could look for Coronel and hurt him.

Luis Mendoza testified he had purchased a load of chicken from appellant in July 2000. Someone called Mendoza and asked if he wanted to buy a load of frozen chicken. Mendoza agreed and made arrangements for the man to bring the chicken to him; appellant subsequently brought Mendoza a truckload of frozen chicken, which Mendoza purchased for about $2,000 to $3,000. On May 18, Mendoza identified appellant in a photographic six-pack as the person who sold him the frozen chicken.

Marvin Simpson testified that shortly after midnight on July 6, 2000, he was outside his apartment, located at 832 West 82nd Street, when he saw the cab of a purple 18-wheeler truck pull up and park next to the curb, across the street from his apartment. There were two Hispanic males in the truck. Simpson was able to get a good look at the driver, whom he identified at trial as appellant. Appellant and the other man exited the truck and walked eastbound on 82nd Street. As appellant walked away, he had a smirk on his face and a particular walk. A few minutes later, the truck burst into flames. Simpson called the police and reported the incident.

Detective Stanley Evans interviewed Simpson on July 12, 2000. Simpson said he was confident he could identify the driver if saw the driver again. On July 14, Evans showed Simpson a book containing photographs of 18th Street gang members because that gang was active in the area where the truck was found. Simpson was unable to identify anyone. Stanley was not sure if appellants photograph was included in the book shown to Simpson.

On February 27, 2002, Simpson was shown a photographic six-pack containing appellants photograph. Simpson identified appellant but told the police the person he had seen had more facial hair. The next day, the police showed Simpson another six-pack, and Simpson again identified appellant. In early 2004, Simpson identified appellant in a live lineup.

II. Defense Case

Maria Garcia lived at 837 West 82nd Street in Los Angeles. At 7 a.m. on July 3, 2000, she saw an Hispanic male, who was by himself, parking a truck across the street from her residence. On subsequent occasions, Garcia saw the same man, accompanied by a woman and a baby, parking the truck on the street. The next day, at about 11 p.m., Garcia saw the same truck on the street, on fire and saw the same man she had seen earlier, crossing the street with an Hispanic female and a baby. The man was stocky, fair-skinned, had a shaved head or very short black hair combed back, a mustache and brown eyes.

The day after the truck was on fire, police were walking around asking if anyone had seen the person driving the truck. Garcia came forward and described what she had seen. A couple of days later, an Hispanic male who looked like a gangster knocked on Garcias door and asked if she knew who had taken the truck. Garcia said she did not know and would ask her sister-in-law. Garcia told the man she was going to call the police; the man left. Garcia, who felt intimidated and scared, called the police to report the incident.

Garcia met with a sketch artist on August 11 and described the man she had seen driving the truck, and the sketch artist prepared a drawing resembling the man. Garcia was shown a book of photographs, but she was unable to identify anyone as the man she had seen driving the truck. Garcia also attended a live lineup but was unable to identify anyone. On each occasion, Garcia was concerned for her safety. Garcia was also concerned about testifying at trial and appellant seeing her.

When asked at trial whether appellant looked like the man she had seen driving the truck, Garcia stated the man she had seen was taller, wasnt that chubby, and his hair was combed back.

Helena Vargas, a paralegal working for the attorney representing appellant at the time, interviewed Luis Mendoza on August 20, 2003. Mendoza said he did not know anyone named Rolondo Rodriguez or Spanky and denied buying a load of chicken. Vargas showed Mendoza either a photograph of appellant or the composite picture drawn by the sketch artist. Mendoza did not recognize the person depicted.

Vargas spoke to Garcia on three occasions in August, September and October 2003. Garcia said she had seen a man with a woman and a baby getting in and out of a truck on the street where she lived in July 2000. In September, Vargas showed Garcia a picture of Jesus Contreras. Garcia identified Contreras as the man she had seen coming and going from the truck. Vargas testified the defense received the photograph from the prosecution as discovery. Garcia was not reluctant to speak to Vargas and did not seem to be afraid. Vargas noted there was quite a lot of gang activity in that area. On a fourth occasion, Vargas drove Garcia to the county jail for a lineup. Appellant was one of the individuals in the lineup. Garcia did not identify anyone.

Imelda Aguilar, appellants cousin, testified that in June 2000, appellant was in Mexico for her nephews baptism, which was scheduled to take place on June 16 or 17. The day before the baptism, appellant was in a car accident. Appellant had injuries to his head and leg. A cast was placed on appellants leg, and he required a crutch to walk. Appellant stayed in Mexico at the house of Aguilars mother for a week or two. Appellant still had the cast and was still using the crutch when he left to return to the United States. On cross-examination, Aguilar admitted appellant might have had the cast removed prior to leaving Mexico.

Guadalupe Elizarraraz, appellants aunt, saw him after his car accident. Appellant had suffered fractures to his ankle and wrist. The last time Elizarraraz saw appellant was on June 16. Appellant needed crutches to walk.

Mitchell Eisen, a professor of psychology at California State University, Los Angeles, testified as an expert on eyewitness memory.

III. Rebuttal

Appellants sister, a minor, was in Mexico at the time of his car accident. Appellant was treated by their cousin Lala (a medical doctor) at their aunts house. Lala put a cast on appellants leg. Appellants sister and mother returned to the United States at the end of the week; the next week, they went to Mexico to check on appellant, but he was not well enough to come home at that time. Two to three weeks after the accident, appellant returned home; he no longer had the cast on, but he was still limping.

DISCUSSION

I. The limited gang evidence was properly admitted.

A. Background

Before trial began, defense counsel moved to exclude all evidence referring to appellants gang membership. In response, the prosecutor argued appellants gang affiliation was relevant to the extent his brother (Juan Rodriguez) had intimidated prosecution witness Coronel and to another witnesss hesitancy to testify.

The court asked if the People were seeking to present formal evidence of gang affiliation or rather evidence that threats had been made by appellants brother and that the witness knew appellant and/or his brother to be dangerous. The prosecutor replied there were different options. The court noted it might be possible for the issue to be addressed in terms of witnesses saying they knew appellants brother to be a violent person without saying they knew him as a member of a particular gang. The prosecutor replied it would be pretty hard to remove the gang part of it since the gang involved (the 18th Street gang) was known by the witnesses.

The prosecutor informed the court she would also seek to introduce evidence found in appellants jail cell. The prosecutor indicated many of the witnesses knew appellant by his gang moniker and appellants brother was also known by his gang moniker and was known to be associated with the 18th Street gang. The court reserved making a ruling and asked whether it should mention during voir dire that some of the people involved in the case were associated with the 18th Street gang. Defense counsel agreed that should be done.

When the gang issue was revisited, the court invited the prosecutor to make an offer of proof as to the evidence she wanted to present. The prosecutor reiterated the gang evidence was relevant to the intimidation of witness Coronel. The prosecutor argued the evidence was relevant to Coronels credibility and appellant could be linked to the threat. The prosecutor noted a list of witnesses and their locations had been found in appellants cell and appellants brother had visited appellant shortly before the intimidation took place.

The prosecutor also asserted witness Luis Mendoza knew of appellants affiliation with the 18th Street gang and was not cooperating with the prosecution, referring to the body attachment for Mendoza the court had issued the previous day.

Defense counsel argued the letter from appellant to his brother had been written two and a half years before the intimidation and bringing in gang evidence would be prejudicial to appellant. Defense counsel suggested there was reason to believe appellants brother acted on a family basis in speaking to Coronel rather than being motivated by gang affiliation. Defense counsel argued that appellant had a legitimate reason to have the list of witnesses, i.e., to assist in preparing the case, and that there was no showing the list had been transmitted to anyone with the intention of getting that person to interfere with a witnesss testimony. Defense counsel suggested witnesses could refer to appellant by his nickname without adding he was from the 18th Street gang and argued allowing references to gangs would incite the jury, causing them to focus on the fear gangs generate rather than the evidence. Defense counsel concluded he did not think gang evidence should be permitted as it was not a gang case.

The court ruled:

Jesus Coronel and, to the extent he testifies, Luis Mendoza may testify about their own state of mind as to any intimidation or fear that they have in testifying and can explain fully their reasons for that state of mind. And if their knowledge that [appellant] or [appellants] brother Juan is a member of the 18th Street gang is part of their state of mind, they can say so.

I think theyre fully entitled to explain their own reasons why they may be fearful or why they suffered from intimidation. That goes to their credibility. That goes to any changes in their testimony and the jury is entitled to know that.

The court excluded any reference to Juans conviction in the witness intimidation case.

At trial, the prosecutor asked Coronel why he did not simply tell Contreras he no longer wanted to work for him, and Coronel replied they would still come looking for him and he felt intimidated. When the prosecutor asked what it was about Contreras and appellant that made Coronel feel intimidated, he replied because they would go and look for me and they knew where I lived.

Over defense objection, the prosecutor asked Coronel if appellant had told him he was in a gang, and Coronel stated appellant said he was a member of the 18th Street gang. The prosecutor asked if Coronel had seen any tattoos on appellant. Coronel said he had seen a number of them and answered in the affirmative when the prosecutor asked if the tattoos indicated appellant was part of a street gang. Defense counsel asked for a sidebar, argued the prosecutor had violated the courts order about gang evidence and moved for a mistrial. The prosecutor responded she was attempting to develop evidence relating to intimidation. The court denied the motion noting there was an offer of proof Coronel was in a witness protection program, which was a sufficient foundation. The court observed Coronel seemed to be very reticent in answering some of the questions, so I am allowing some leeway in asking questions that might otherwise be leading.

Coronel later testified that appellants brother Juan came to Coronels house and told him not to talk to the police about appellant killing a truck driver. Coronel was afraid and felt Juan had intimidated him. Coronel was afraid to testify at trial due in part to the large number of 18th Street gang members who could come looking for him and hurt him.

When Mendoza testified he did not refer to appellants gang affiliation.

B. Standard of Review

Appellant contends he was prejudiced by the evidence he was a gang member emphasizing he was not charged with a gang enhancement and there was no evidence the shooting was for a gang purpose. Appellant suggests the gang evidence should have been excluded because it was not relevant to the charge against him. The fact appellant was not charged with a gang enhancement and the shooting was not for the benefit of a gang is not determinative of whether the gang evidence was admissible.

Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative. (People v. Avitia (2005) 127 Cal.App.4th 185, 192; see also People v. Carter (2003) 30 Cal.4th 1166, 1194.) However, gang evidence is inadmissible if introduced only to show a defendants criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. In cases not involving a [Penal Code] section 186.22 gang enhancement, it has been recognized that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. Even if gang evidence is relevant, it may have a highly inflammatory impact on the jury. Thus, trial courts should carefully scrutinize such evidence before admitting it. (Citations omitted.) (Avitia at p. 192; see also People v. Harris (1985) 175 Cal.App.3d 944, 957 [[E]vidence of gang membership was relevant on possible threats to prosecution witnesses.].)

A trial courts admission of evidence, including gang testimony, is reviewed for abuse of discretion. The trial courts ruling will not be disturbed in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (Citations omitted.) (People v. Avitia, supra, 127 Cal.App.4th at p. 193.)

C. The Gang Evidence

In the case at bar, the gang evidence essentially consisted of Coronels statement appellant told Coronel he (appellant) was a member of the 18th Street gang. Coronel also testified he had seen appellants tattoos, which indicated to him that appellant was part of a gang. The evidence was admitted in the context of explaining witness intimidation. On cross-examination, defense counsel confirmed Coronel was afraid of appellant because appellant was a gang member and Coronel knew the 18th Street gang was looking for him through Contreras. Coronel, who was in witness protection, explained he was afraid to testify partly because of the number of members of the 18th Street gang. There was no gang expert testimony of any kind such as testimony detailing the composition of gangs, how gangs operate or their activities.

Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. An explanation of the basis for the witnesss fear is likewise relevant to her credibility and is well within the discretion of the trial court. (Citations omitted.) (People v. Burgener (2003) 29 Cal.4th 833, 869; see also People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369 [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, the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility. . . . [] Regardless of its source, the jury would be entitled to evaluate the witnesss testimony knowing it was given under such circumstances. (Citation omitted; original italics.)].)

As a matter of fact, [i]t is not necessary to show threats against the witness were made by the defendant personally, or the witnesss fear of retaliation is directly linked to the defendant for the evidence to be admissible. (Citation omitted.) (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1450.) In Sanchez, the crimes were also not gang related and the testimony was cumulative on the issue of identity, but the court concluded it was admissible on the issue of witness credibility. (Id., at pp. 1446, 1449-1450.)

Even though the court spent considerable time on the issue of the admission of gang evidence, the actual gang evidence admitted was minimal. Other than the fact appellant was a gang member and Coronel felt intimidated by appellant in part because of that gang membership, gangs were mentioned sparingly, e.g., in the context of police showing Simpson a book with pictures of 18th Street gang members, police were told at the outset appellant was a gang member and in a couple of references to gangs by defense counsel. Just stating Coronel was fearful of appellant because he was violent would not convey that part of his fear was concern about retaliation by 18th Street gang members.

Coronel was the key prosecution witness who heard appellant admit he killed the truck driver. As noted by the court, Coronel was a reluctant witness who had entered a witness protection program. The gang membership helps explains why Coronel was less than forthcoming especially as the defense theory was Coronel was fabricating the admissions. For example, if Coronel feared appellant because of appellants gang membership, Coronel would be less likely to fabricate evidence against appellant. Thus, the gang evidence was relevant and necessary to witness credibility and as such had substantial probative value. Accordingly, the court did not abuse its discretion by permitting the limited gang testimony.[3]

II. Evidence of threats by appellants brother was properly admitted.

A. Additional Background

In ruling that Coronel and Mendoza could testify about any fear or intimidation they had experienced as it was relevant to credibility, the court observed:

Obviously, there is an issue as to whether any intimidation of Mr. Coronel by Juan Rodriguez was on behalf of [appellant]. Apparently there will be some testimony by Coronel to that effect, and he can explain that.

As for circumstantial evidence that the brother was acting on behalf of [appellant], the letter and the list of witnesses is relevant, and Ill permit the introduction of those. Certainly the witness list is again circumstantial evidence that [appellant] was providing his brother with the kind of information that his brother apparently acted upon.

The letter is evidence relevant to the fact that [appellant] was communicating with his brother. There is also a portion of the letter which may be subject to different interpretations, but it certainly appears relevant in which the letter states[,] They keep telling me that they got three big fucking rats saying my name to them, which again is subject to an interpretation that [appellant] was concerned about somebody providing information against him. So I will permit the letter.

At trial, Coronel testified that on January 25, 2004, appellants brother came to his house and warned him not to talk to the police about appellant killing a truck driver. Coronel stated he felt threatened. Coronel knew appellant to be a member of the 18th Street gang. At the time of trial, Coronel was concerned for his safety since the 18th Street gang had many members, and any one of them could look for him and hurt him.

A letter from appellant to his brother, dated December 29, 2001, was admitted into evidence. In pertinent part, the letter stated: [B]ut Ill tell you one thing. They got some pictures of a vato that I used to kick it with some times. They think his name is Paco. [B]ut they dont know what vato in there pictures is this so call Paco[.] They keep telling me that they got 3 big Fucking Rats, saying my name to them. I just hope that some body end up telling this so call Paco to be care full. I dont really know what they are talking about and that is it!! (Some internal quotation marks omitted.)

The parties stipulated that a list of witnesses was found in appellants cell on June 2, 2004.

The court instructed the jury with CALCRIM No. 371, which provides that with respect to any witness who might have been discouraged from testifying, the jury could only infer appellants consciousness of guilt if he authorized his brothers actions.

B. The Threats

Appellant contends he was prejudiced by the admission of evidence he caused his brother to threaten or intimidate Coronel because he was not linked to the threats. (People v. Terry (1962) 57 Cal.2d 538, 566 [In order for evidence of threats by another person to be admissible, it must be established that this was done by the authorization of the defendant.].) Appellant argues there was only speculation he told his brother to threaten the witness, which did not overcome the likelihood his brother made the threats on his own.

Even though there was no direct evidence appellant authorized his brother to threaten any witness, there was circumstantial evidence he did. It is axiomatic that in order to infer appellant authorized the threat, there must be some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference. (See People v. Hannon (1977) 19 Cal.3d 588, 597.)

The record shows appellant requested a live lineup. The lineup was scheduled for January 27, 2004. On January 25, two days before the scheduled lineup, Coronel was threatened by appellants brother. There had been recent communication between appellant and his brother as Juan had visited appellant on January 24, the day before the threat. Coronel testified appellant knew where he (Coronel) lived. Thus, one can infer from the timing of the threat that Juan did not simply take it upon himself to warn Coronel, but rather Juan had knowledge of the upcoming lineup and timed his visit accordingly.

Even though the letter from appellant to his brother was written two years before the threat, it sheds light on appellants state of mind and his concern someone was providing information about this case to the police and his hope someone would tell Paco to be careful (an implied invitation for someone to threaten Paco). Although the witness list was found in appellants cell after the threat, it shows his interest in the witnesses. None of this evidence in and of itself would support an inference appellant authorized the threat. However, taken as a whole, it is reasonable to infer appellant authorized the threat and told Juan about the lineup and how to locate Coronel. Hence, evidence of Juans threat was properly admitted.

Appellant suggests because the prosecutor relied on out-of-court statements, the prosecutor needed to establish the reliability of Juans statements and the prosecutor could not do that because Coronel was a paid informant. Coronel was not paid for information provided in this case, and whether or not his description of the threats by Juan was believable was a matter for the jury to decide. (See People v. Jenkins (2000) 22 Cal.4th 900, 1009 [informant testimony is not inherently unreliable; credibility of witnesses is the province of the jury].)

III. There was no violation of appellants rights to confrontation and cross-examination.

Citing Crawford v. Washington (2004) 541 U.S. 36, appellant contends his rights to confront and cross-examine witnesses were violated by the court permitting the jury to hear Coronel and Spillane (Spillane testified Coronel told him about Juans threats on the phone the day they were made) to repeat Juans words as Juan was not available to cross-examine.[4] Appellant waived his constitutional claims by failing to raise them below. (People v. Burgener, supra, 29 Cal.4th at p. 869.)

Even if he had not, The [Confrontation] Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. (Crawford v. Washington, supra, 541 U.S. at pp. 59-60, fn. 9.) Juans threats were not admitted for the truth of the matter stated. (Evid. Code, 1200; see People v. Burgener, supra, 29 Cal.4th at p. 869 [Those constitutional claims [of violation of due process and confrontation], which depend on a finding that the threat evidence was hearsay, are also meritless. This evidence was not offered for its truth.].)

IV. There was no instructional error.

Appellant contends he was prejudiced by CALCRIM No. 226, which instructed the jurors to use their common sense and experience, and therefore opened the door for them to consider matters not in evidence. Appellant suggests that when CALCRIM No. 226 is given, the court should also instruct the jury to consider all the circumstances shown by the evidence. Appellant did not object to the instruction or request additional language. (People v. Andrews (1989) 49 Cal.3d 200, 218 [Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.].)

In relevant part, CALCRIM No. 226 instructs: You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witnesss gender, race, religion, or national origin. You may believe all, part, or none of any witnesss testimony. Consider the testimony of each witness and decide how much of it you believe. [] In evaluating a witnesss testimony, you may consider anything that reasonably tends to prove or disprove the truth and accuracy of that testimony. (Emphasis added.) The instruction then lists factors that may be considered.

First, the instruction does not tell the jury to use their common sense in general, but only in deciding whether or not to believe testimony. If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. [T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. (Citations and internal quotation marks omitted.) (People v. Smithey (1999) 20 Cal.4th 936, 963.) The jury was advised with CALCRIM Nos. 200, 201 and 222 to decide the case upon the evidence presented at trial.

Second, the California Supreme Court stated that jurors with relevant personal experience were entitled to express opinions regarding the evidence noting, if we allow jurors with specialized knowledge to sit on a jury, and we do, we must allow those jurors to use their experience in evaluating and interpreting that evidence. Moreover, during the give and take of deliberations, it is virtually impossible to divorce completely ones background from ones analysis of the evidence. We cannot demand that jurors, especially lay jurors not versed in the subtle distinctions attorneys draw, never refer to their background during deliberations. (People v. Steele (2002) 27 Cal.4th 1230, 1265-1266.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J.

JOHNSON, J.

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[1] Detective Stanley Evans is referred to as Stanley; Detective David Evans, who subsequently investigated the case, is referred to as Evans.

[2] Coronel was shown photographs depicting appellants tattoos. Over appellants objection, the photographs were admitted into evidence.

[3] Although appellant notes the court did not give a limiting instruction about the use to which gang evidence could be put, he made no claim not doing so was an error. (Cf . People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052 [[T]he trial court must give a limiting instruction on evidence admitted to support the gang enhancement only on request.].)

[4] Spillane testified about what Coronel told him; Coronel was available for cross-examination.