P. v. Garcia

Filed 7/6/06 P. v. Garcia CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A jury found appellant guilty of first degree murder and found a firearm enhancement true. (Pen. Code, §§ 187, 12022, subd. (a)(1).) Appellant contends that the trial court erred by permitting her co-defendant to introduce gang evidence and expert testimony to support his defense that it was appellant, rather than he, who fired the gun. Appellant further contends that the trial court erred by denying her motion to sever her trial from that of her co-defendant and by allowing the jury to rely on the natural and probable consequences doctrine, and that the jury's verdict was flawed because it relied on two wholly incompatible theories. We agree that the trial court erred in allowing the gang expert testimony and that appellant was prejudiced by the admission of this evidence.

THE TRIAL

One afternoon in May 2003, Javier Soto was shot and killed as he drove on Highway 101 near White Road in Salinas. Soto was alone in a grey Honda and was headed north when three shots were fired from a pickup truck going in the same direction. Appellant was driving the pickup truck which belonged to her co-defendant Glenn Barry Spillman. Spillman was seated next to appellant and Antonio Garcia was next to Spillman.

Antonio Garcia, who was 18 years old at the time of the shooting, testified at trial that he considered appellant a "cool friend" and sometimes called her "cousin" because she had the same last name.[1] He had been introduced to Spillman by appellant and had been in Spillman's truck two or three times before but did not know him very well. The day of the shooting, appellant came to Antonio's apartment. Spillman arrived in his pickup truck. The three drove to Longs where Antonio purchased a fishing license. They were going to drive to "go look for a party." Antonio testified that Spillman was drunk and "acting dumb." Appellant "wanted to take the wheel because she wasn't drinking." Antonio testified that appellant and Spillman changed places because "it's better for a sober person to drive instead of a drunk person." Appellant drove the pickup while Spillman and Antonio drank Bud Light.

Antonio testified that as they traveled along Highway 101 a grey Honda in the fast lane was "slowing down" and that when appellant tried to pass the Honda on the right "the car like came into that lane too." Antonio could not see the driver of the Honda but felt that the driver was "playing trick games with us." Antonio testified that this made Spillman "just like all mad." Spillman took his gun out of the glove compartment and told appellant to pass the Honda. Antonio testified that Spillman pushed appellant up to the steering wheel asking her to "move, please." Spillman put his arm behind appellant and his hand with the gun out the driver's side window. Antonio closed his eyes. Antonio thought Spillman was "shooting up in the air, just trying to scare him."

After Antonio heard the shots, he looked back and saw that the windshield of the Honda had been hit. Antonio was frightened. He told appellant to "look back" and Antonio and appellant became quiet. Appellant continued driving and left the highway at San Miguel Canyon Road. When they were stopped by the police Spillman told them not to say anything.[2] Spillman put the gun under the middle of the front bench seat.

Francis and Shirley Jarschke testified at trial that they had witnessed the shooting. Frances Jarschke testified that he was driving his Plymouth Grand Voyager on Highway 101 when he saw in his rear view mirror that there was a pickup truck "almost pushing" a grey Honda. Although there was quite a bit of traffic, it appeared to Mr. Jarschke that "the pickup wanted to get up to [the Honda] or trying to like cat and mouse, trying to catch them." Mr. Jarschke was in the fast lane and a "big semi truck" was to his right. As soon as Mr. Jarschke passed the semi truck, the Honda passed him on the right and the pickup did as well. The pickup was being driven by someone with long black hair wearing a blue short-sleeved shirt. Mr. Jarschke could not see through the back window of the pickup because it was tinted "really dark."

The Honda moved back into the fast lane. The pickup got in back of the Honda again, then "got back into the slow lane trying to get beside it." When the Honda moved over to the left turn lane at White Road the pickup moved to the fast lane. When asked if it looked like the pickup was trying to get beside the Honda at that point, Mr. Jarschke answered, "Well, yeah. Or get ahead of them or something." Mr. Jarschke testified that as the pickup was directly in front of his Voyager he saw an arm extend about six inches out of its driver's side window. To Mr. Jarschke, the hand and arm were "white-skinned" and looked "Caucasian." Mr. Jarschke is also Caucasian. At trial, Mr. Jarschke testified that "it could not have been" the driver because the arm "didn't come out the window that far."[3] He saw a flash from the barrel of the gun. The Honda continued a short distance and stopped. The driver of the Honda brushed his hand from the back of his neck to his ear a couple of times, and Mr. Jarschke thought that he may have "got hit a little bit or nicked." Mr. Jarschke told his wife to call 911. The pickup "continued on trying to get through the traffic."

Shirley Jarschke testified that she was the front seat passenger in the Voyager when her husband pointed out the Honda and pickup to her. She looked in the rear view mirror and "saw the truck was right up on [the Honda] and they were flashing their lights." The truck was right behind the Honda, so close that it "could have hit them if it got any closer." Mrs. Jarschke testified that the Honda continued to drive in the fast lane until it was right behind the Jarschke van and then it "just kind of zoomed around us and got into the fast lane again." The pickup followed. The driver of the pickup was a woman with long black hair wearing a blue shirt. To Mrs. Jarschke, "it was obvious they were chasing the car." The Honda merged into the turn lane and the truck merged into the fast lane. When the Honda started slowing down in the turn lane, the pickup "just kind of slowed down and went up next to it as they were slowing down." From a distance of a couple of car lengths behind the pickup Mrs. Jarschke saw an arm holding a gun come out of the driver's side of the pickup truck. At trial, Mrs. Jarschke testified, "I couldn't tell if it was the driver or not." She acknowledged that when the 911 dispatcher asked her, "Who was the shooter? Was it the driver or the passenger?" she answered that it was the driver. Mrs. Jarschke testified that "as soon as the gun finished firing, the truck just zoomed away." The Jarschkes followed the pickup from a distance until it left the freeway. When they saw that the police had arrived they left the area.

Brent Wooldridge testified that he was driving his pickup truck north on Highway 101 when, in his rear view mirror, he saw "three cars going faster than everyone else." Wooldridge moved over to the slow lane to let them pass. The Honda remained in the fast lane after passing Wooldridge. Wooldridge testified, "The third car, being the pickup truck, passed me and then moved into my lane, the slow lane, and matched speed with the first car. Paralleled." The truck "matched the speed of the Honda" for between 10 and 30 seconds at about 50 miles per hour. During that time, from a distance of about 30 feet, Wooldridge saw "a person stuck his arm out of the driver's window in the pickup truck and pointed a gun at [the Honda] in the opposite lane." Woodridge testified that the gun was "a silver- or chrome- plated semi-automatic pistol." Wooldridge testified that the arm had blonde hair on it and appeared to be that of a very large Caucasian man. He said, "the arm was sticking out of the window full length and holding the gun as if you're going to shoot it." Wooldridge "thought it was high school kids or young kids trying to scare their friend." He heard a shot and glass sprayed all over his truck. The Honda "pull[ed] off to the center of the freeway." Wooldridge testified that the pickup "didn't speed away like you would expect. It gradually weaved in and out of traffic." The truck left the freeway at San Miguel Canyon Road. Wooldridge called 911 and told the dispatcher that it was the driver who had shot the gun.[4] Wooldridge continued to follow the pickup truck until it was stopped by the police. He saw the police remove three occupants from the vehicle: a Hispanic female, a Hispanic male, and a Caucasian male. Wooldridge testified that when he saw the Caucasian male he said to himself, "that's the guy."

An off-duty police officer who was driving on Highway 101 noticed the pickup truck about a mile past White Road. It was tailgating other vehicles in the fast lane, apparently to get them to changes lanes, driving dangerously and recklessly. The officer honked at the driver, whom he identified as appellant, and she "flipped [him] off, laughed . . . turn[ed] towards her passengers [as if she was having a] discussion with them." The truck began to exit the freeway and then veered back as if to re-enter the freeway, which the off-duty officer took as an attempt to scare him. Appellant "flipped [him] off again."

Soto was killed by a shot that came directly into the Honda at a downward angle through the front passenger window. The bullet entered his body below the top of his right shoulder, passed through his chest and lodged under the back of his left armpit. No shell casings were found inside the pickup truck, but two of the casings recovered in the area of the shooting were found to have come from the gun that shot Soto. An expert witness who performed a trajectory analysis testified that the sequence of the shots was not certain, but that it was likely to have been that the first shot was from the rear of the Honda, the shot from the side was second, and the shot ahead of the Honda was last. Tests for gunshot residue found none on Spillman or Antonio but some on appellant's left palm, the tops and palms of Soto's hands, and the passenger side of the pickup truck.

Spillman's Defense

Before trial, Spillman sought to introduce evidence to support a defense theory of third party culpability. Spillman's theory was that Soto's death was a gang motivated shooting, that appellant and Antonio Garcia were Norteno gang members, that appellant perceived Soto to be a Sureno gang member, and that appellant was the shooter. [5] The theory included the element that Antonio Garcia's testimony that Spillman was the shooter was false because of his bias in favor of appellant because of their gang ties. As described more fully below, before and during the trial both appellant and the prosecutor argued against the introduction of any gang evidence, including the testimony of a gang expert witness, but their objections were overruled.

Asked at trial if he was a Norteno gang member, Antonio answered, "Not right now." He said that at the time of the homicide he was not a Norteno gang member and that at the time of a police contact in January 2004 he was a Norteno "wannabe." He explained, "I was going to be one. But I was just like -- I just dressed like them. That was about it. But I wasn't ever jumped in a gang or nothing, street gang." He wanted to do "whatever was popular in school." In February 2004 he was arrested for being drunk in public and, when classified at the jail, admitted to Norteno affiliation. He did have four dots tattooed on his hand but these had been taken off before the shooting. The evidence showed that at the time of the shooting he was wearing red slippers and a Green Bay Packers football jersey, predominately green with yellow and white stripes on the sleeves and neck, over a red, sleeveless, San Diego State practice jersey.

A deputy sheriff testified that she completed a jail classification form for appellant when she was arrested for the shooting. In response to a question asking whether appellant was a gang member or had family or friends who were affiliated with a gang, the sheriff noted "her family, Norteno associates." The questionnaire states that appellant had four dots on her left hand. These were not visible in November 2004. When arrested, appellant was wearing a red baseball cap and a blue shirt.

Spillman called Glenn Rouse, who testified as a gang expert witness. Rouse said that he had been a police officer with the city of Salinas for 15 years and had been working as a private investigator for eight years. He described the history of the Norteno and Sureno street gangs and their Salinas branches. He said that there was a "creed" within the gangs that "a [N]orteno can target a [S]ureno at any time just for the fact that he is a [S]ureno" and that "within the gang you have to back up a fellow gang member." Rouse described the significance of the colors of red and blue and the numbers three, four, 13, and 14, in these gangs.

Rouse testified that in his opinion appellant and Antonio Garcia were active Norteno gang members at the time of the shooting. On the day Soto was killed, he was wearing his work clothes, a blue jumpsuit with an insignia for "Taylor Farms" and his first name in white lettering over the left breast pocket. Rouse testified that these coveralls "could be mistaken" for a type of jacket that is "commonly worn by gang members." Rouse acknowledged that there was no evidence that Soto had been a gang member.

Closing Arguments, Deliberations, and Verdict

In her closing argument, the prosecutor stated that her position was that appellant was an aider and abettor and that Spillman was the shooter. She acknowledged that there had been "innuendo that Rubi Garcia was the shooter in this case." She said that if the jury accepted that defense it could convict appellant based on other theories of criminal liability described in the instructions. Spillman's counsel disputed the prosecution's theory that the shooting was motivated by Spillman's road rage and argued that Spillman, having a wife, children, a house, a steady job, and no violent record, had no motive to shoot Soto. He argued that "actually pulling the trigger" was justified "in Rubi's mind . . . because in that culture, in that mind-set, in that creed, you are absolved from any remorse from killing somebody that you believe to be an enemy. He was a young Hispanic male wearing blue. . . . We see a whole lot more senseless gang killings around here than that. It happens." Spillman's counsel urged the jury to accept the expert testimony presented, arguing that Rouse had "his head and mind and heart in that east Salinas area. He knows gangs."

During deliberations, the jury asked to have "the court reporter read back the testimony of both Mr. and Mrs. Jarschke." The jury sent a note stating that one juror "has conveyed to the jury that she can not decide separately whether each of the defendants is guilty or not guilty." After this issue was resolved, the jury asked "With regard to [Penal Code] section 12022.53(d): if the jury finds that the defendant G.B. Spillman did not intentionally and personally discharge a firearm is the only possible verdict on the count of first degree murder 'not guilty'?"

The jury convicted appellant, but was divided eight to four as to Spillman. The court declared a mistrial as to him. After denying appellant's motion for a new trial, the trial court sentenced her to a prison term of 26 years to life.

GANG EVIDENCE

Appellant contends, "The trial court erred by admitting Spillman's gang evidence and by permitting Spillman's gang expert to testify." Appellant argues that this evidence was inadmissible under state law and constituted a federal due process violation.Background

This case was charged and prosecuted on the theory that Spillman shot his gun from his truck in a fit of road rage and that appellant aided and abetted him by driving the truck parallel to Soto's car. In response to a motion by Spillman to permit the introduction of gang evidence, the prosecution took the position that the evidence Spillman sought to introduce about Antonio Garcia was "a classic example of inadmissible character evidence, wherein the defense is attempting to show that a witness has a criminal disposition." "Any evidence of past gang association of the witness is not relevant to the issues in this case, and is inadmissible character evidence pursuant to Evidence Code 1101. The People therefore ask the court to exclude any such evidence and any mention of the witness' purported past gang association."

In August 2004, at a hearing on a flurry of pretrial motions concerning various evidentiary issues, appellant's defense counsel asked for a continuance of the trial date stating that he had just heard that "a witness who was a jail inmate, who allegedly had a conversation with my client wherein my client confessed to her that my client had fired the gun, killing the victim in this case." The prosecutor assured the court that she did not intend to call that witness, Michelle Johnson, in either her case-in-chief or on rebuttal. The prosecutor explained that her investigator had received a telephone call in August 2004 from Johnson, an inmate in the county jail, who said that she had had a conversation in the jail with appellant in April 2004 during which appellant made admissions concerning the May 2003 shooting. The investigator visited Johnson, who was still in custody, and tape recorded his interview with her. The tape and transcript were provided to both defense counsel.

Spillman's defense counsel summarized the interview with Johnson as reporting a conversation between Johnson and appellant in which appellant said she "personally shot and killed Javier Soto. . . .[S]he believed Javier Soto to be a scrap, a Sureno." Spillman's counsel opposed any continuance of the jury trial date because he did not know how long Johnson would be in jail and he felt that it was "important to get her on while she is still of a mind to testify." The trial court listened to the tape of the Johnson interview to assess "what impact this witness will have" on the case and to "get a better idea of this particular witness and the significance of that witness's testimony." The trial court continued the trial date to permit further investigation.

In November 2004, the trial court took up evidentiary motions again. Spillman's counsel described his efforts to obtain information linking appellant or Antonio Garcia with gangs. He said that the Salinas Police Department had "nothing" on appellant.[6] In responding to appellant's motion to sever her case from Spillman's, Spillman's counsel said that he wanted to present his third party culpability theory, "primarily" through Michelle Johnson's testimony, which he described as "crucial." Spillman's counsel was concerned that his presentation of evidence to support this theory would be limited by the court "whether the court does it consciously or unconsciously, during the trial, because we don't want to prejudice Rubi Garcia too much." Because he was concerned that he would be restricted in presenting this evidence at a joint trial, he joined in the severance motion.

Spillman's counsel stressed that "the veracity of Michelle Johnson is going to be important" and that she would be "attacked" by both the prosecution and appellant's defense counsel during trial. Because of this, Spillman's counsel wanted to introduce any evidence he could muster to corroborate Johnson's statement concerning a gang motive for the shooting. Appellant's trial counsel argued that a close reading of Johnson's statement did not show that the shooting was necessarily gang motivated and that the statement itself contained numerous inconsistencies with the known facts.

Over appellant's Evidence Code section 352 objection, the trial court ruled that "the statement would be coming through Ms. Johnson through testimony" and would be admissible. The court then held a hearing on whether to admit gang evidence and allow the testimony of a gang expert witness. Appellant argued that the evidence supporting the gang theory was too tenuous, was impermissible character evidence, and was prejudicial. In its written opposition to the introduction of the gang evidence and the proposed expert testimony, the prosecution reviewed the evidence Spillman sought to introduce, such as jail classification records, and stated, "This evidence is not in the least probative of gang membership." The prosecution argued, "While the generic gang assertions made by the defendant Spillman may be true in the abstract, it is not clear that an expert would determine that either Antonio or Rubi Garcia are entrenched enough in the Norteno lifestyle for these statements to be relevant to their behavior in this case. In fact, except for the purported Michelle Johnson statement, there is very little gang related evidence upon which an expert could base such an opinion."

Glenn Rouse testified at the Evidence Code section 402 hearing as to the basis for his opinion that the shooting was gang related. He said that he had been a police officer with the city of Salinas for 15 years and had been working as a private investigator for eight years. He described the history of the Norteno and Sureno street gangs and their Salinas varieties. He described what he had reviewed to prepare for his testimony, and was asked to consider appellant's "gang history" including her "associations, her gang contacts, and her actions related to gang activity" and the evidence concerning Antonio Garcia's gang ties. Rouse opined that appellant and Antonio Garcia were "active [N]orteno gang members" and that the circumstances of the shooting were consistent "with a murder that was committed for the benefit of the [N]orteno gang, to promote the [N]orteno gang and to enhance the reputation and status of Rubi Garcia and Antonio Garcia in the [N]orteno gang." Rouse testified that his opinion that the shooting was gang related was based on "Ms. Garcia's own words" that Soto was a "scrap."

Rouse was asked whether it was significant to him that, although Antonio Garcia had been wearing a red jersey at the time of the shooting, it "was not worn in any way visible to other persons." Rouse answered, "He was still wearing the color red. And it's extremely unfortunate that a young Hispanic male in the city of Salinas, any time who wears the color red, whether it be as an undergarment or outergarment, it would be an indication or he would at least be stopped, checked for being a [N]orteno gang member. . . . [I]t's just a fact of life that it is for his age group and where he happens to live."

Spillman's counsel argued that, given the court's ruling that Michelle Johnson could testify about appellant's admissions to her, Rouse's gang expert testimony was "required in order to make those comments understandable to a jury." The prosecutor argued that Rouse had formed his opinion by disregarding evidence that appellant was not a Norteno associate, such as the fact that appellant "had a significant other and had a child with an individual that many times proclaimed to law enforcement agencies that he was a [S]ureno." The prosecutor argued that Spillman's presentation at the Evidence Code section 402 hearing had been insufficient to admit any gang evidence and that the evidence "is not going to be probative. It is going to be misleading and it is going to be confusing."

After jury selection, Spillman's counsel wanted some indication of how the court was going to rule on the gang evidence in order to prepare for his opening statement. The court said that "the issue of gang membership" would be admissible. The court distinguished evidence of gang membership from evidence of gang activities. The court explained this evidence was "going to be based solely at this point on statements that have been made by Ms. Garcia, or allegedly attributed to Ms. Garcia, and the admissions by witness Antonio Garcia as to his membership in a gang."

Johnson was due to give birth during the trial and the parties were concerned with the scheduling of her testimony. During the presentation of Spillman's defense evidence, the prosecutor made a motion to prevent Rouse from testifying about Michelle Johnson's statement. She argued, "this is based upon the anticipation that Mr. Rouse may testify today, perhaps before Michelle Johnson is called as a defense witness, thus allowing this testimony and evidence by Michelle Johnson into evidence . . . . I submit to the Court that we would not be able to unring that bell, if you will, should Michelle Johnson's testimony never come to pass or never come before this jury." Trial counsel for appellant told the court that he had received information from the investigator who had conducted the original interview with Johnson that she "was going to refuse to testify." Spillman's counsel discussed the possibility of having Johnson, who was still in custody, testify by way of video conferencing, and said he had presented the other parties with materials relevant to cross-examining Johnson, including a report "related to her assistance in another case" and a "summary of her criminal history." The parties discussed the confrontation issues raised by having the witness testify through video conferencing.

Eventually, Spillman's counsel announced that he would not be calling Johnson as a witness. On hearing this, appellant's trial counsel argued that without Johnson's testimony, there was no evidence that the shooting was gang motivated and Rouse should not be allowed to testify concerning gangs. The prosecutor agreed, arguing that Rouse had testified outside the presence of the jury that he had not thought that the case was gang related until he learned of Johnson's statement and that, without her testimony, the proposed gang expert testimony was irrelevant. Nevertheless, the trial court permitted Rouse to testify at trial as described above.

At the conclusion of the receipt of evidence and after discussing the jury instructions with counsel, the court said that it wanted to put something on the record. Outside the presence of the jury, in an exceptional display of candor and introspection, the court said, "the Court made certain rulings in this case concerning gang evidence. The rulings that the Court made at the time were predicated upon the information the Court had before it at the time, which included a belief of the attorneys, that a statement by Michelle Johnson that had been ruled admissible by the Court would in fact be utilized in this case. [¶] And the Court, based a number of its rulings as to admissibility of gang evidence on the statements that were attributed to Rubi Garcia in that particular statement . . . . Had the Court known at that time that the Michelle Johnson statement or testimony would not be offered, the Court's review of that particular gang evidence and its admissibility may very well have been different and even somewhat more limited or excluded in its entirety. [¶] And the Court felt compelled to put that on the record should a reviewing court at some point in time need to review the admissibility of that evidence and the court's rationale or thought process as to why that evidence was admitted. Even in a limited fashion, as Mr. Martinez indicated to us, to a small trickle."

After appellant's conviction, appellant brought a motion for new trial that included an argument that the trial court erred in admitting the gang evidence. In denying this motion, the court acknowledged having said that it "may very well have taken a different posture on the gang evidence" had it known that Johnson would not be testifying. However, the court denied the motion based on the "compelling evidence that was presented, that the gang evidence that was put forth by the defense of Mr. Spillman was not the result and was not prejudicial in this particular case and did not result in the verdicts that were reached by this particular jury."

Discussion

Appellant contends that the gang evidence offered to support Spillman's third party culpability theory, "should never have been admitted because its evidentiary basis was tenuous and because it was highly inflammatory and prejudicial to Ms. Garcia."[7] Appellant argues, "First, even with the Johnson statement, the gang theory was too unsubstantiated and too prejudicial to be admitted at trial.[[8]] Second, because Johnson never took the stand, the gang theory – which was already tenuous and unsubstantiated – was wholly unsupported by evidence and should have been excluded." Respondent, noting that the trial court reaffirmed its decision to admit the gang evidence after the announcement that Johnson would not testify, asserts, "we do not use the Johnson statement or assert the admissibility of it to defend the trial court's decision to admit the gang evidence."

"[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352." (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) Under Evidence Code section 352, the court may exclude minimally probative evidence "that creates a substantial danger of undue consumption of time or of prejudicing, confusing or misleading the jury." (People v. Hall (1986) 41 Cal.3d 826, 829.) "The section is not limited by its terms to disputes by opposing parties; it may become applicable to parties on the same side of an action when their interests are adverse to each other." (People v. Ainsworth (1988) 45 Cal.3d 984, 1007, fn. 10, citing People v. Reeder (1978) 82 Cal.App.3d 543.) The standard of review for an Evidence Code section 352 challenge is abuse of discretion. On appeal, " '[a] trial court's exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]' " (People v. Green (1995) 34 Cal.App.4th 165, 182-183.)

When the trial court first ruled that Rouse would be permitted to testify, Rouse's expert opinion that the shooting was gang motivated was based, for the most part, on what Rouse described as "Michelle Johnson's testimony." Of course, Johnson did not testify and it does not appear that Rouse ever spoke with Johnson. Instead, Rouse had a transcript of an interview in which Johnson had said that appellant had admitted being the shooter and had said that she had thought that Soto was a "Scrap," although it is debatable whether appellant was saying that she had thought this at the time of the shooting or afterwards. By the time Spillman's counsel announced that Johnson would not be testifying at all, after the presentation of the prosecution's case-in-chief and some defense evidence, there were numerous, glaring contradictions between undisputed evidence presented at trial and what Johnson had told the investigator that she had heard about the shooting. Johnson said that appellant had said that the shooting had taken place on San Miguel Canyon Road and not on Highway 101. Johnson said that appellant had said that she was with "Glenn" which is Spillman's first name. As both Antonio Garcia's testimony and Spillman's statement to the police showed, Spillman is called "Barry," his middle name, by his friends. Johnson had said that appellant had said that she was driving Glenn's "little green truck." Spillman's truck was large and maroon. Johnson said that Glenn was "a Mexican dude," yet Spillman is a blonde Caucasian. Johnson said that she herself was quite familiar with guns, and that appellant had told her that she had used her own gun, using the term "pistola" which Johnson explained meant a revolver. The gun used in the shooting was Spillman's Smith and Wesson 9 millimeter semi-automatic. Although Johnson equivocated during the interview when she was pressed by the investigator about some of these obvious discrepancies between the facts known to the police and her version of the shooting based on appellant's supposed admission, appellant's trial counsel's observation seems apt: "[T]he facts supposedly presented by Ms. Johnson are about as inaccurate as anybody could conceive. If she read a newspaper she would have done a lot better in terms of reciting what happened."

Eschewing any discussion of Rouse's reliance on the Johnson statement to support its position that the trial court did not abuse its discretion in admitting evidence to show a gang motive, respondent directs this court to four pieces of evidence that respondent argues "tended to show that appellant was a Norteno." First, respondent relies on the fact that appellant was wearing a red baseball cap. The cap has the words "Crime Inc." stitched in white on it and respondent argues that this "suggested that [appellant] was wearing it as an expression of affiliation with a criminal group." Second, respondent notes that when appellant was booked into the jail, she had a "tattoo" of four dots on her hand but that these had apparently been removed by the time of trial. Third, on her jail classification questionnaire, appellant had said that members of her family were Norteno associates and, under the "enemies" section, the person filling out the form wrote "Surenos." Fourth, on the day of the shooting appellant was in the company of Antonio Garcia, who described himself as appellant's friend and who was a Norteno affiliate. As for the other crucial element of the gang motive theory, respondent recognizes, "Admittedly the evidence that appellant took Soto to be a Sureno was weaker than the evidence showing appellant to be affiliated with the Nortenos."

An assessment of the strength of the underlying data on which Rouse based his opinion about the gang motive must take into account that there was evidence that if appellant had any gang affiliation it was arguably Sureno, rather than Norteno, in that she had had a long term relationship, and a child, with an admitted Sureno. In Rouse's pre-trial testimony, he said that it would be "extremely unusual" for an active Norteno gang member to be living with, and have a child with, a Sureno gang member. The fact that the cap appellant was wearing was red, a Norteno color, must be considered with the fact that her shirt was blue. It is unclear if the cap, which appears to be new, belonged to appellant. Appellant's trial counsel had asserted during the pre-trial motions that "the hat she was wearing that day was Mr. Spillman's." As for the Monterey County Sheriff's Department jail classification questionnaire, it shows that the four dots on appellant's hand are categorized as "marks," not as "tattoos," and also shows that appellant had never been arrested for a felony before this arrest and had never been in prison, that jail, juvenile hall, or CYA. In answer to the question asking if the charge was gang related, the person filling out the form indicated that it was not. The prosecutor argued that this evidence was "not in the least probative of gang membership" as it was merely a way for someone who may be related to a Norteno associate to be assigned safe housing in the jail. The prosecution also argued below that there was no evidence of Antonio Garcia's gang membership at the time of the shooting. More importantly, Rouse's opinion that the shooting was gang motivated was premised on the notion that appellant had perceived Soto as a Sureno. Soto was wearing a blue jumpsuit with his company's insignia and his name on the pocket.[9] Even Rouse admitted that it should have been "rather apparent" that the clothes Soto was wearing were work clothes.

Because Rouse's articulated basis for his opinion that the shooting was gang motivated was based on unreliable or insubstantial evidence, it had negligible probative value. As our Supreme Court said in People v. Gardeley (1996) 14 Cal.4th 605, 618, "Like a house built on sand, the expert's opinion is no better than the facts on which it is based."

On the other hand, as the prosecutor passionately argued in the trial court, there was a high probability that the admission of Rouse's expert opinion that appellant was a Norteno gang associate and that the shooting was gang motivated would create a substantial danger of undue prejudice. For purposes of Evidence Code section 352, " 'prejudicial' is not synonymous with 'damaging,' but refers instead to evidence that ' "uniquely tends to evoke an emotional bias against defendant" ' without regard to its relevance on material issues." (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Gang evidence is certainly prejudicial in this sense. Our courts have long recognized that the admission of gang evidence may have a highly inflammatory impact on the jury and trial courts should carefully scrutinize such evidence before admitting it. (People v. Champion (1995) 9 Cal.4th 879, 922.) Given the exceedingly low probative value of this evidence, and its powerful prejudicial impact, and with due consideration of the deferential standard of review, we find that its admission was an abuse of discretion.

Respondent argues that the erroneous admission of the gang motive evidence was harmless because "the evidence established overwhelmingly that appellant intentionally maneuvered the truck so that the shooter – whether it was her or Spillman – could fire at the Honda."[10] This argument dramatically overstates the strength of the evidence on this point. For appellant to be convicted as an aider and abettor, the prosecution had to prove that, with knowledge of Spillman's unlawful purpose and the intent of facilitating the commission of the crime, appellant aided its commission. (See CALJIC 3.01) The jury was instructed, "Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting." The only direct evidence on the issue of whether appellant intended to aid Spillman was Antonio Garcia's testimony that appellant was trying to pass the Honda when Spillman reached behind her and fired the gun. This testimony is supported by the forensic expert's testimony that the "likely scenario" was that the three shots were fired from "back to front." Brent Wooldridge testified that the Honda was in the fast lane and the truck was in the slow lane but that the truck matched speed with the Honda during the shooting. Of course, Wooldridge also testified unequivocally that the shooter was a large Caucasian male. Apparently, as their failure to reach a verdict as to Spillman indicates, some jurors did not find Wooldridge's certainty as to the accuracy of his observations persuasive. In contrast to Wooldridge's testimony, the Jarschkes testified that the shooting occurred while the Honda was in the left turn lane and the truck was in the fast lane. Mr. Jarschke testified that the truck "came over towards" the Honda when the Honda moved to the turn lane, but he also testified that the truck was trying to "get ahead of them or something." Mrs. Jarschke testified that the Honda merged into the turn lane and the truck merged into the fast lane when the gun came out of the window. She said that after the shooting, the truck "zoomed away," trying to maneuver through "quite a bit of traffic." The testimony concerning appellant's aggressive driving and rude behavior is troubling but hardly establishes that she intentionally maneuvered the truck to assist the shooter.

After hearing Rouse's testimony that the shooting was gang motivated, the jury was instructed, "Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty." Without the gang expert testimony, the jury would have had an entirely different view of the evidence concerning aiding and abetting. The evidence that appellant aided Spillman by matching speeds with the Honda is far from overwhelming. The gang evidence evoked a compelling emotional bias against appellant. As Shirley Jarschke testified, "There wasn't anything that day that gave me the impression it was a gang shooting. I was afraid it was a gang shooting because it was Salinas." We conclude that there is a reasonable probability that appellant would have obtained a more favorable result absent Rouse's testimony that the shooting was gang motivated.[11]

DISPOSITION

The judgment is reversed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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MIHARA, J.

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[1] Because appellant and this witness have the same last name, we will refer to the witness by his first name.

[2] When Spillman was interviewed by the police he denied that anyone in the pickup had participated in the shooting.

[3] Mr. Jarschke testified he told a police detective and two other investigators that he saw the shooter's "arm go behind the driver's head" at the time of the shooting.

[4] Wooldridge later told an investigator that the passenger was "climbing over to stick his arm through the window" but he testified that this was "just a hunch." He did not think the driver could have been the shooter because "the vehicle was traveling in a straight line. You can't stick your arm out and aim and drive in a straight line at the same time."

[5] Spillman's counsel also took the position that "the People had knowledge that Antonio Garcia could have been the shooter in this case."

[6] Appellant's trial counsel later indicated that "from those agencies over in Santa Cruz County there absolutely is nothing to indicate that there is any gang activity" associated with appellant.

[7] Appellant also invokes the doctrine of judicial estoppel, contending that "having repeatedly argued at trial that the gang theory was irrelevant and unsupported, the state may not now urge the opposite position on appeal." Judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in an earlier proceeding. (Jackson v. Los Angeles (1997) 60 Cal.App.4th 171, 181.) Arguing against the admission of evidence in the trial court on the grounds that it is irrelevant and that it is inadmissible under Evidence Code section 352 may not be precisely the same as arguing on appeal that it was not an abuse of discretion for the trial court to admit the evidence, but the force and logic of the prosecutor's arguments below have not escaped our notice.

[8] Appellant explains, "As the parties agreed at trial, it would have been a direct violation of the Confrontation Clause and Crawford v. Washington (2004) 541 U.S. 36, to admit Johnson's statement without giving Rubi an opportunity to cross-examine her. To allow the un-cross-examined statement to remain as the evidentiary foundation of the case against a defendant is no less of a violation." Appellant argues that the Johnson statement was inadmissible under Crawford at trial and, absent an opportunity for cross-examination, was likewise inadmissible for the court's consideration in ruling on the gang theory at the pre-trial hearing.

[9] Appellant, too, was wearing blue work clothes: a blue shirt with her company's logo and her name prominently displayed on the front.

[10] Respondent effectively concedes that, without the gang evidence, the jury could not have found appellant guilty as the shooter. Respondent also states, "It was unreasonable to believe that appellant could have fired the difficult yet perfectly aimed fatal shot and still have kept the pickup under control, as she did." Yet, because Spillman was not convicted, some jurors "necessarily believed that appellant may have been the shooter, which is not to say that they believed that she was the shooter."

[11] Because we find that the trial court prejudicially erred in admitting the gang evidence to show that appellant had a motive for the shooting, we do not address whether it was an abuse of discretion to introduce gang evidence to show that Antonio Garcia had a motive to lie. Although this evidence is fraught with many of the same problems concerning the strength of the foundation for its admission, even if it had been properly admitted and considered by the jury, it is reasonably probable that a result more favorable to appellant would have resulted.