P. v. Urrutia
Defendant was acquitted of murder and attempted murder, but was convicted of criminal street gang terrorism in violation of Penal Code section 186.22, subdivision (a). Defendant argues his conviction on that single count must be reversed. For the reasons specified post, we disagree and affirm the judgment.
Defendant argues there was insufficient evidence of his active participation in a criminal street gang to support the street terrorism conviction. Defendant was seen in a car with other known, admitted gang members at the site of the shooting. The prosecutions gang expert testified that anyone in a car with known gang members, who are in possession of guns or are committing crimes, is himself or herself an active gang member. The evidence was sufficient to support defendants conviction.
Defendant next argues the trial court abused its discretion by admitting into evidence a note written by him while he was incarcerated and awaiting trial. The court did not abuse its discretion in determining the note was relevant and its probative value outweighed its prejudicial impact.
Finally, defendant contends several portions of the prosecutors rebuttal closing argument constituted misconduct. Court disagree. The prosecutors argument was fair comment on the evidence and the inferences that could be drawn from it. The trial court admonished the jury that argument was not evidence and could not be considered in rendering its verdict. In any event, it is not reasonably probable the outcome would have been in defendants favor had the comments by the prosecutor not been made.
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