Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside, Super. Ct. No. RIF125016Craig G. Riemer, Judge.
HUFFMAN, J.
A jury convicted Adrian Alfred Garcia of attempted murder (Pen. Code, §§ 664/187, subd. (a); count 1), of being an active participant in a criminal street gang (§ 186.22, subd. (a); count 2), and of being a convicted felon in possession of a gun (§ 12021, subd. (e); count 3). The jury also found that the attempted murder was willful, deliberate, and premeditated, and that Garcia had personally and intentionally discharged a firearm and had proximately caused great bodily injury to another during the commission of the offense (§§ 1192.7, subd. (c)(8), 12022.53, subd. (d)) and that he had committed the offense "for the benefit of, or at the direction of, or in association with a criminal street gang with specific intent to promote, or further or assist in any criminal conduct by gang members, within the meaning of... section 186.22, subdivision (b)."
All statutory references are to the Penal Code unless otherwise specified.
The trial court sentenced Garcia to prison for a total term of 35 years to life, consisting of an indeterminate term of life on count 1 plus a consecutive indeterminate term of 25 years to life for the personal firearm use enhancement and a consecutive 10-year term for the gang enhancement. The court imposed a three-year upper term for count 2 to run concurrently with count 1 and imposed and stayed a two-year midterm for count 3.
Garcia appeals, contending the trial court prejudicially erred in denying his motion to suppress a 911 call from an anonymous caller who provided the police with information leading to his arrest, by refusing to bifurcate the gang enhancement, in permitting the gang expert to testify regarding "profile" evidence and the ultimate issue of whether he shot the victim to benefit his criminal street gang, in refusing to instruct the jury with the lesser included offense for count 1 of attempted voluntary manslaughter based on sudden quarrel or heat of passion, and in imposing the 10-year gang enhancement for his count 1 conviction. Garcia further claims the prosecutor denied him his constitutional rights to due process and a fair trial by committing prejudicial misconduct in eliciting testimony from a police officer regarding a previously suppressed weapon that was located in the house where his girlfriend lived.
Other than agreeing with the People's concession that the 10-year gang enhancement for Garcia's count 1 conviction should be stricken, we find no prejudicial error. Accordingly, we affirm the judgment as modified to strike the punishment for the gang enhancement.
FACTUAL BACKGROUND
On July 1, 2005, 18-year-old Joseph Flowers, an African American, was walking home with his Hispanic friend, Daniel Ayala, by Dario Vasquez Park (Vasquez Park), an area in Riverside, California "claimed" by the predominately Hispanic gang East Side Riva (ESR). As they did so, they noticed a silver car driving by the park stop in the middle of the street. At the same time, Flowers saw an Hispanic male spray painting gang letters on the park's wall nearby. The Hispanic male driver of the car asked Flowers and Ayala, "Do you guys gangbang?" When they told him they did not, the man said, "Yeah, you better not." The car then sped away.
As Flowers and Ayala continued walking on the sidewalk past Vasquez Park, they saw the silver car make a u-turn, come back to the park near them, and six or seven Hispanic men get out of the car. The men ran at Flowers and Ayala, swinging their fists and a fight ensued. According to Flowers, he and Ayala "won" the fight and the men got back into their car and drove away, yelling "ESR."
Two weeks later, on July 14, 2005, while Flowers talked on his cell phone as he sat waiting for Ayala and another friend near Vasquez Park, he saw the same silver car driving slowly by with two Hispanic males inside. The passenger made some gang hand gestures as the car past by Flowers. The car then made a quick u-turn and drove back to where Flowers was sitting, pulling up to the curb with the passenger side of the car facing him. Flowers thought he recognized the man sitting in the passenger seat from the earlier fight.
The two men then got out of the car. When the driver approached Flowers, he threw a shoe at him. Flowers, who was alone and unarmed, ducked to avoid being hit. Although there were no words exchanged, Flowers believed the men were going to fight him and tried to get Ayala and his friend's attention who were then about 20 feet away. As Flowers backed away quickly, he heard the driver say to the passenger, "Just shoot 'em." The passenger then pulled out a revolver and fired four or five shots at Flowers, hitting him in the hand and upper thigh. The two men then sped away in the silver car.
Ayala and several witnesses immediately called 911 about the shooting. Ayala and another witness reported that the getaway car occupied by the two Hispanic males was a silver or gray Honda, and one of the callers, who was following the car from the shooting scene but would not identify herself, reported that the car was a silver or gray Mitsubishi with license plate number 4KCM456. When one of the Riverside police officers who received the information from dispatch ran the license number through the DMV database, it came back as being registered to a Lexus whose owner resided in a city distant from Riverside. Believing that the caller might have mistaken the C for a Q, the officer again checked the database for license plate number 4KQM456, which came back as being registered to a silver Mitsubishi owned by Vanessa Montanez, who resided in Corona, a city closer to Riverside. This information was passed on to the detective in charge of the shooting investigation.
Meanwhile, other officers who responded to the shooting scene took statements from several witnesses and another officer interviewed Flowers at the hospital about the incident. Flowers described the man who shot him as an 18 year old, 5'7" tall Hispanic male, weighing about 164 pounds, with a mustache, slicked back black hair and wearing a white tank top and jeans. Flowers believed the driver was an older Hispanic male and the car was a silver four-door Honda Civic. Flowers also told the officer about the earlier fight and his belief the same Honda and men were involved in that earlier incident.
On July 21, 2005, Riverside Police Detective Scott Impola and another police detective set up surveillance of the Corona residence discovered in the earlier DMV check after observing a silver Mitsubishi, "that looked a lot like a Honda Accord, " with license plate number 4KQM456, parked in front. Subsequently, the detectives saw Montanez, two young children, and a male Hispanic fitting "almost exactly" the description of one of the suspects get into the car and drive off. Impola contacted a unit of uniformed officers to follow the car. When the officers noticed that one of the rear brake lights on the Mitsubishi was not working, they conducted a traffic stop, telling Montanez and the man in the car that they were being pulled over for the traffic violation. The man initially told the officers his name was John Chagolla, but then told them he was Garcia and admitted he had given a false name and incorrect birth date because he knew there was a felony warrant out for his arrest.
After the officers told Montanez and Garcia that they were investigating an attempted murder and Montanez's car was towed, the officers took the couple and the children back to Montanez's house where they met up with Impola. When they arrived, Montanez and her mother, who also lived there, gave the officers and Impola permission to enter. Montanez, who identified herself as Garcia's girlfriend and the mother of his child, told the officers that she had loaned her car to Garcia on the day Flowers was shot. When Impola showed Montanez a silver Smith and Wesson revolver with a black rubber grip, Montanez indicated she had seen Garcia with the gun six months before.
After Garcia's arrest that day, the police created several six-pack photographic lineups, one of which included his photograph. Flowers was subsequently shown the lineups and positively identified Garcia's photograph as the shooter. Stephanie Perez, who was in Vasquez Park with her boyfriend at the time of the shooting, also identified Garcia's photograph as the shooter in one of the lineups.
At trial, in addition to the above evidence, the prosecution introduced Garcia's booking information, which showed he was 5'6" tall and weighed 165 pounds on the day he was arrested. Flowers and Perez both identified Garcia at trial as the shooter. Both Perez and Montanez testified that Garcia was wearing a white "wife beater" t-shirt and jeans on the day of the shooting, which was consistent with Flowers's original description of the shooter's attire. Perez also identified a photograph of Montanez's silver Mitsubishi as similar to the car she had seen driving away after the shooting. In her testimony, Montanez confirmed that Garcia had tattoos on his back saying Riva Side, but claimed they referred to the area he lived in and not to any gang. Montanez denied she had ever seen Garcia with a gun or had told detectives that she had seen him with one six months earlier.
Besides Impola testifying about the investigation and the fact that a Honda Accord owned by one of the detectives looked the same as Montanez's Mitsubishi, he testified as a gang expert, explaining about the ESR, which is one of the oldest and largest Hispanic street gangs in Riverside. Impola noted that Vasquez Park, where the shooting occurred, was in ESR gang territory and that the gang's primary criminal activities included violent assaults, methamphetamine sales, and robberies. He also explained that violent assaults by the ESR were frequently committed against African Americans in general and specifically against members of the rival predominately African American Crips gang that often resulted in homicides. Impola was familiar with several members of the ESR who had been convicted of attempted murder against African Americans and had been found to have committed those crimes for the benefit of a criminal street gang.
Impola testified he had contacted Garcia on prior occasions, including arresting him previously with other ESR gang members. Based on these contacts and arrest, and on Garcia's prior admissions that he was a gang member, his association with other ESR gang members, his presence in ESR gang territory, his gang tattoo, and gang paraphernalia found in his house, Impola opined that Garcia was a member of the ESR gang.
Impola noted that during a search of Garcia's jail cell, he found letters addressed to Garcia from ESR gang members containing ESR gang symbols and phrases and referring to other ESR gang members. Impola also found drawings of gang symbols in Garcia's cell, a photograph of another ESR gang member, and an address book containing the names and phone numbers of documented ESR gang members. Copies of the police reports related to this case were also found in Garcia's cell. Impola noticed that the addresses of the victims and witnesses had not been properly redacted on those reports and noted that Flowers had expressed concern to police about gang members driving by his house.
Impola further noted that while Garcia was in custody he had obtained new tattoos of the letters R and C on his calves, which referred to Riverside County. Impola explained that it was typical for gang members to have such tattoos and that they showed ongoing gang membership and activity. Based on a hypothetical involving the same facts as those in the present case, Impola opined that the charged crimes by Garcia were committed for the benefit of a criminal street gang.
The Riverside detective who had created the photographic lineups also testified that he had had previous contact with Garcia in 2003 when he was part of the gang unit and that during the field interview Garcia had admitted he was an ESR gang member. Riverside Police Detective Gary Toussaint further testified that he was at the house with Impola when Montanez had been shown a chrome revolver and had identified it as looking like the one she saw Garcia with six months before either at his house or his aunt's house.
Defense Case
Garcia called numerous witnesses in support of his defense of mistaken identity and to show he was not a member of any criminal street gang. In addition, Garcia presented an eyewitness identification expert who opined the identifications in this case, made three years after the crime, were highly unreliable. Garcia also called Montanez's mother to testify about the entry and search of her home; called several family members to discuss gangs in Riverside; and called Perez's boyfriend, Flowers's friend Ayala, and a defense investigator regarding the inability of any witness to identify Garcia as the shooter in Vasquez Park on July 14, 2005.
Perez had told the defense investigator that she had not been sure of her identification when shown the photographic lineups, but that she had pointed out two photos that appeared familiar to her. Although Perez's boyfriend had told the investigator he had never identified anyone from the shooting and testified he had not been able to pick out anyone in the photos shown to him by police, he identified Garcia as the shooter in court. Under further questioning, Perez's boyfriend said he was not sure of his identification because Garcia looked different now even though he still had the same green eyes as the shooter. Perez's boyfriend was certain that the photograph of the car entered as an exhibit was the same "Honda" he had seen at the shooting scene.
Ayala testified he had never been in a fight with Garcia and had not seen the shooter's face because his back was to him when Flowers was shot. After admitting that he did not want to be in court testifying, Ayala noted he had seen the man who had been with the shooter two or three times since the incident. Ayala said the man, the driver, tried to threaten him, had come by his house twice and had told him not to come to court. On cross-examination, Ayala said that several people, including the driver, had told him not to identify Garcia in court. He believed he had been told not to do so at least six times. On cross, Ayala also conceded he had told the police that he had fought with the men in the car before the shooting, but would not say that he had ever fought with the shooter.
Eddie Joe Chagolla, a former gang member and distant cousin of Garcia's, who was now a counselor for a continuation high school that worked closely with law enforcement to assist youths in getting out of gangs in Riverside, testified that Garcia's father, who was a gang member, had been shot and killed in 1991 by a Riverside police officer. Chagolla explained his expertise in Riverside Hispanic gangs and opined that Garcia was not a gang member in 2005. He disputed Impola's testimony that ESR is a criminal street gang, testifying it was merely an area where people grew up and their tattoos identified their neighborhoods. Chagolla noted that gangs sometimes commit criminal acts that do not benefit the gang. On cross-examination, Chagolla conceded that if a person has "self-admitted" to being a gang member, that that would present "a whole different story."
Another cousin of Garcia's testified he had been accused of being a street gang member by Riverside police officers numerous times even though he was not a gang member. Between 2002 through 2005, he had never seen Garcia in the company of any gang members.
DISCUSSION
I
MOTION TO EXCLUDE EVIDENCE OF 911 CALL
In limine, Garcia's counsel brought a motion to exclude evidence of the 911 telephone call from an anonymous witness who told the police dispatcher that she was following two Hispanic men in a silver or gray Mitsubishi with license plate number 4KCM456 that had been involved in the shooting reported in an earlier call. Counsel claimed the information provided by the anonymous caller was inadmissible hearsay evidence, its admission violated his right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and the prosecution failed to satisfy its burden under the Harvey-Madden rule. Counsel analogized the situation to that of an anonymous informant, arguing that neither the caller or the license information was shown to be reliable or properly corroborated and that the evidence was then manipulated by the police such that Garcia was eventually found in a car "with that second license plate." Counsel believed it was inappropriate to permit such evidence before the jury without the right to cross-examination.
People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey); People v. Madden (1970) 2 Cal.3d 1017 (Madden). The so-called Harvey-Madden rule holds that, "although an officer may make an arrest based on information received through 'official channels, ' the prosecution is required to show that the officer who originally furnished the information had probable cause to believe that the suspect committed a felony." (Madden, supra, 2 Cal.3d at p. 1021.)
The prosecutor opposed the motion, arguing the 911 call fell under the hearsay exception of being a fresh complaint or impression regarding a crime that had just occurred and that it was also admissible for the nonhearsay purpose of explaining the police officer's course of conduct. The prosecutor offered that she would introduce the evidence of the license plate number through Officer Shumway's testimony about receiving the information and using it to run a check on the getaway car containing two Hispanic males, which was corroborated by witnesses at the scene who gave consistent information about the silver or gray car and more detailed information about the suspects. Shumway would explain how he changed the "C" to a "Q" when the license plate number came back to a different type car registered somewhere other than in Southern California. The license number had been broadcast to the officers who had just arrived at Vasquez Park and were talking to witnesses about the reported shooting at the time the information had been received. The information would not be used for the truth of the statements, but only to show how the officers eventually set up surveillance outside of Montanez's residence.
After considering argument, the trial court denied the motion, finding that the evidence was not inadmissible hearsay because it fell within at least one exception, that the evidence did not violate Crawford, supra, 541 U.S. 36, because it did not appear to be testimonial, and that the evidence did not violate the Harvey-Madden rule because it was not being used to establish probable cause. The court clarified that its ruling was based on the prosecutor's offer of proof that the evidence was being used only to explain the officer's conduct, i.e., to show that the officer's investigation was reasonable, and not for the truth of the matter asserted. The court offered to give a limiting instruction should defense counsel want one. Defense counsel agreed with the court that the evidence so limited would be an acceptable nonhearsay-type information.
Subsequently, as noted in the facts, Shumway testified about receiving the suspect license number from dispatch, running it through DMV sources and passing the information on to other officers who set up surveillance of a registered owner's car that matched the suspect's vehicle involved in the shooting.
On appeal, Garcia contends the trial court committed reversible error when it denied his motion to suppress the license plate information provided by the anonymous caller because it lacked sufficient indicia of reliability to justify its authenticity and the admission of the evidence violated his right to confrontation under Crawford, supra, 541 U.S. 36. In support of his first assertion that the anonymous call in this case lacked sufficient indicia of reliability to justify its authenticity, Garcia essentially relies on case authority discussing search and seizure law involving detentions and arrests made on the basis of anonymous tips. (See Florida v. J.L. (2000) 529 U.S. 266, 268.) Garcia, however, did not seek below to exclude the information in the anonymous 911 call on this ground. Although his counsel argued at the hearing that the matter should be analogized to a suppression motion brought to exclude evidence obtained based on an anonymous informant's tip, he did not seek to suppress any evidence purportedly based on the call, but only sought to exclude the call itself, and eventually agreed with the court that the call was properly admitted for the limited nonhearsay purpose of showing the officer's conduct. Under these circumstances, we decline to further address this ground on appeal. (Evid. Code, § 353.)
As for Garcia's claim that the admission of the call violated his right to confrontation, we conclude, as the trial court properly determined, that the information provided by the anonymous caller was nontestimonial. In Crawford, supra, 541 U.S. 36, the United States Supreme Court held the Sixth Amendment bars the admission of out-of-court testimonial statements unless the witness is both unavailable and the defendant had a prior opportunity to cross-examine the witness. (Id. at pp. 59, 68.) The court in Crawford did not set forth "a comprehensive definition" of testimonial evidence but held that "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Id. at p. 68.) Crawford held that where the proffered statement is nontestimonial, state law may regulate the admission of evidence by applying statutory hearsay rules without running afoul of the confrontation clause. (Ibid.)
In Davis v. Washington (2006) 547 U.S. 813 (Davis), the Supreme Court explained what it considered to be nontestimonial and testimonial statements made to law enforcement during a 911 call or at a crime scene, holding that "[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." (Id. at p. 822.) Statements are testimonial, however, "when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Ibid.)
In People v. Cage (2007) 40 Cal.4th 965 (Cage), our Supreme Court, building on the decisions in Crawford, supra, 541 U.S. 36, and Davis, supra, 547 U.S. 813, identified several "basic principles" to assist courts in determining whether a particular statement is testimonial. The court explained that although a testimonial statement need not be made under oath, it must have some "formality and solemnity characteristic of testimony" and "must have been given and taken primarily... to establish or prove some past fact for possible use in a criminal trial." (Cage, supra, 40 Cal.4th at p. 984.) On the other hand, "statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." (Ibid.) "[T]he primary purpose for which a statement was given and taken is to be determined 'objectively, ' considering all the circumstances that might reasonably bear on the intent of the participants in the conversation." (Ibid.)
Using the analysis in Davis, supra, 547 U.S. 813, and Cage, supra, 40 Cal.4th 965, the courts in People v. Brenn (2007) 152 Cal.App.4th 166 and People v. Banos (2009) 178 Cal.App.4th 483, each found that the victim's respective statements to the 911 operator were not testimonial. (Banos, supra, at pp. 492-493, 497; Brenn, supra, at p. 176.) In Brenn, the court found the purpose and form of the statements used in the 911 call were "not the functional equivalents of trial testimony." (Brenn, supra, at p. 176.) In Banos, the court found the statements were not testimonial because their primary purpose was "to gain police protection. The statements were not yet the product of an interrogation, rather they were made to police conducting an investigation into an ongoing emergency." (Banos, supra, at p. 497.)
As Davis, supra, 547 U.S. 813, and the California cases cited above make clear, a 911 call made during the course of an emergency situation is ordinarily made for the primary nontestimonial purpose of alerting the police of the situation and to provide information germane to dealing with the emergency. Applying the analysis of those cases here, we find that the statements of the anonymous caller to the 911 dispatch operator were not testimonial under Crawford, supra, 541 U.S. 36. Unlike a criminal prosecution, the caller and dispatcher were primarily concerned with what was happening at the moment to assist responding officers find the escaping perpetrators involved in the shooting and not to secure a conviction in a court trial. The information given was not formal or structured and was made while the caller was following the suspect car leaving the scene of the shooting. When these circumstances are considered objectively, the statements were not testimonial in nature and thus not subject to the requirements of Crawford.
In sum, no constitutional or prejudicial error is shown in the admission of the license plate number evidence from the anonymous 911 call.
II
MOTION TO BIFURCATE GANG ENHANCEMENT
In limine, Garcia also brought a motion to bifurcate the gang enhancement from the underlying count 1 attempted murder charge based on People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez), which held that a court has the discretion to bifurcate such enhancements if there is a clear showing of a substantial danger of prejudice requiring that the enhancement and charges be separately tried. (Id. at pp. 1049-1050.) At the hearing on the matter, after Garcia's counsel replied affirmatively to the trial court's inquiry as to whether Garcia was also suggesting that the count 2 substantive gang participation charge be bifurcated, the court denied the motion. In doing so, the court found that in light of the substantive count 2 charge, there was no reason to bifurcate the enhancement. The court stated that because the two predicate offenses the prosecutor would be relying upon to prove the enhancement and substantive gang charge were "exactly the same type of offenses" Garcia was charged with, there was no showing of any extraordinary prejudice and that "in the interest of judicial economy" a separate trial for the gang charge and enhancement did not make any sense in this case.
On appeal, Garcia contends the trial court abused its discretion and violated his right to due process when it denied his motion to bifurcate the gang enhancement from the attempted murder charge. We find no abuse of discretion or due process violation.
Garcia does not claim on appeal that the count 2 substantive gang charge should have been bifurcated or severed from the other charges.
A trial court has discretion to bifurcate trial of issues, including enhancements. (People v. Calderon (1994) 9 Cal.4th 69, 74-75.) The court's primary concern in considering a request to bifurcate a sentence enhancement allegation is whether the admission of evidence relating to the allegation during the trial on the charged offenses would pose a substantial risk of undue prejudice to the defendant. (Id. at pp. 77-78.) Bifurcation is generally not required where the evidence relevant to the enhancement allegation is also relevant and admissible in the trial of the underlying offenses. (Hernandez, supra, 33 Cal.4th at pp. 1048-1051.)
As the court in Hernandez noted, " '[a] gang enhancement is different from [a] prior conviction.... A prior conviction allegation relates to the defendant's status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation." (Hernandez, supra, 33 Cal.4th at p. 1048.) Nonetheless, the court in Hernandez cautioned it was not holding "that a court should never bifurcate trial of the gang enhancement from trial of guilt.... The predicate offenses offered to establish a 'pattern of criminal gang activity' (§ 186.22, subd. (e)) need not be related to the crime, or even the defendant, and evidence of such offenses may be unduly prejudicial, thus warranting bifurcation. Moreover, some of the other gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt." (Hernandez, supra, at p. 1049.)
However, the court in Hernandez also recognized that cross-admissibility considerations often will obviate issues of prejudice because, even in cases not involving a gang enhancement allegation, gang evidence "is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation--including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like--can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime[s]. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary." (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)
The court's determination of whether the risk of undue prejudice to the defendant requires bifurcation is within its sound discretion. (Calderon, supra, 9 Cal.4th at p. 79.) We review the trial court's ruling based on the record that was before the court at the time of its ruling. (People v. Hardy (1992) 2 Cal.4th 86, 167.) However, even if the trial court's ruling was correct at the time it was made, reversal may be required if the defendant shows that the failure to bifurcate resulted in " ' "gross unfairness" amounting to a denial of due process.' " (People v. Mendoza (2000) 24 Cal.4th 130, 162 (Mendoza).)
Here, the record before the court at the time of the bifurcation motion contained various in limine motions referring to this case as a gang related shooting for which not only the count 1 attempted murder and count 3 firearm charges had been filed, but also a substantive charge of active participation in a criminal street gang had been filed. Because the proposed expert gang evidence appeared to be relevant to the issues of identity, motive and intent for the attempted murder and firearm charges and was clearly relevant to prove the elements of the substantive gang offense (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657 (Killebrew)), virtually all of the gang evidence admissible on the gang enhancement would also have been admissible in the main trial on the substantive gang offense and admissible in substantial part for the other substantive offenses. Garcia ignores the relevancy of the gang evidence to his case by portraying the attempted premeditated murder and firearm charges as unrelated to gang conduct and by omitting any mention of the charged substantive gang offense. However, as the trial court recognized, because the gang evidence would be relevant to both the enhancement allegation and the underlying offenses, and the gang evidence would be no more potentially inflammatory than the crimes with which Garcia had been changed, Garcia had not met his burden " 'to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.' " (Hernandez, supra, 33 Cal.4th at p. 1051.) Under such circumstances, the court was well within its discretion to deny Garcia's bifurcation motion.
The question then becomes whether the court's ruling which was correct when made resulted in " ' "gross unfairness" amounting to a denial of due process.' " (Mendoza, supra, 24 Cal.4th at p. 162.) Garcia essentially claims the court's failure to bifurcate the gang enhancement from the underlying trial denied him due process and a fair trial because it resulted in the admission of highly inflammatory gang evidence that portrayed him "as a depraved gang member who was capable of committing the charged offenses" and prejudiced the jury against him. Our review of the record reveals otherwise.
As the background facts show, the shooting in this case occurred two weeks after the African American victim and his friend were approached by, attacked by and fought off ESR gang members, who had gotten out of a car, as they walked through ESR territory where another member was spraying gang graffiti on a park wall. The shooter arrived at the same park in the same car involved in the earlier encounter, and threw gang signs before shooting the victim. The gang evidence admitted about the ESR, its territory, the types of crimes ESR commits, its rivalry with African American gangs, as well as about Garcia's membership in the ESR gang, was admitted at trial to show Garcia's motive to shoot the victim and his identity as the shooter. Thus, the gang evidence in this case was clearly intertwined with the attempted murder and firearm charges. More importantly, as already noted, the gang evidence was fully admissible and intertwined with the substantive gang offense to show how the crime was committed to benefit or promote a gang. (See Killebrew, supra, 103 Cal.App.4th at pp. 656-657.)
Although the evidence actually introduced to prove the enhancement may have been somewhat broader than the gang evidence admitted on the issues of motive, intent and identity going to Garcia's guilt of the attempted murder and firearm offenses, it was no broader than the evidence admitted for the substantive gang offense. Thus, any evidence admitted solely to prove the gang enhancement was not so minimally probative on the charged offense, and so inflammatory in comparison, that it threatened to sway the jury to convict regardless of Garcia's actual guilt.
Moreover, the court gave limiting instructions cautioning the jury that it could not consider the gang evidence to prove Garcia was a person of bad character or had a disposition to commit crimes, but "only for the limited purpose of deciding whether the defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crime and enhancement charged; or, the defendant had a motive to commit the crimes charged." The court also told the jury it could consider the gang evidence when it evaluated the credibility or believability of a witness and the facts and when it considered the facts and information relied upon by an expert witness in reaching his opinion, but for no other purpose. We presume the jury followed the court's instructions (People v. Yeoman (2003) 31 Cal.4th 93, 139), which dispels any potential that the jury convicted Garcia solely on his gang affiliation rather than on the affirmative evidence admissible to determine his guilt of the substantive offenses.
In sum, given the interrelationship of the gang evidence to both the substantive offenses and the allegation, we cannot say the trial court abused its discretion in declining to bifurcate the gang allegation. Nor do we find any due process violation or gross unfairness in the trial of the charged offenses as a result of the joint trial. (Mendoza, supra, 24 Cal.4th at p. 162.)
III
CLAIMED IMPROPER GANG TESTIMONY
During Impola's testimony as a gang expert, in response to a hypothetical question involving the same facts as those leading up to the shooting in this case, Impola gave his opinion that the crime was "definitely" committed "for the benefit of, at the direction of a criminal street gang to further, promote, or assist in felonious conduct by gang members." The court overruled defense counsel's objection to Impola's response that "this is illegal profiling evidence." As best we can decipher, on appeal, Garcia in essence complains that the court's ruling was erroneous because it permitted improper profile evidence and an improper opinion on an ultimate issue in the case which prejudicially influenced the jury verdict on the issues in this case. We disagree.
In general, a trial court has wide discretion to admit or exclude expert testimony and we review its exercise only for an abuse of its discretion. (People v. Williams (1997) 16 Cal.4th 153, 197; People v. Valdez (1997) 58 Cal.App.4th 494, 506 (Valdez).) Where, as here, a gang enhancement, substantive gang offense and other gang related offenses are alleged, "expert testimony concerning the culture, habits, and psychology of gangs is permissible because these subjects are 'sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' " (Valdez, supra, 58 Cal.App.4th at p. 506.) Although an expert may not opine that a defendant had a particular knowledge or specific intent regarding a crime, a gang expert may testify to an opinion based upon facts shown by the evidence and restated in a hypothetical question asking the expert to assume the truth of those facts. (People v. Gonzalez (2006) 38 Cal.4th 932, 946.) The specificity or detail in a hypothetical question does not convert an otherwise proper answer into a prohibited opinion regarding a defendant's subjective mental state. (People v. Ward (2005) 36 Cal.4th 186, 209-210.) As our Supreme Court has noted, "there is a difference between testifying about specific persons and about hypothetical persons." (Gonzalez, supra, 38 Cal.4th at p. 946, fn. 3.)
Moreover, " '[t]here is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case.' " (Valdez, supra, 58 Cal.App.4th at p. 507.) In this regard, expert opinion regarding whether and how a crime would have been committed for the benefit of a gang has been found to be admissible even though it may coincide with an issue to be determined by the jury. (Id. at p. 509.) "Such an opinion [is] not tantamount to an opinion of guilt or, in this case, that the enhancement allegation [is] true, for there [are] other elements to the allegation that [have] to be proved." (Ibid.)
Here, Garcia did not object to the admission of gang evidence in general, to Impola's qualifications to testify as a gang expert, or to Impola's opinion that Garcia was an ESR gang member. In his expert capacity, Impola never opined about Garcia's mental states or gave an opinion on his guilt. The only hypothetical questions asked of Impola concerned hypothetical actors and addressed whether that actor was acting for the benefit of the gang based on certain facts if accepted as true in the hypothetical. The hypothetical question objected to by Garcia addressed a single element of the gang enhancement allegation and the substantive gang offense, i.e., whether the attempted murder and gang offense was committed in association with, or for the benefit of, the ESR gang. The prosecutor still had to prove the remaining elements of the enhancement, substantive offense and other charged offenses. In this regard, the jury was permitted to draw its own inferences about Garcia's intent, motive, premeditation, deliberation and the other elements of the gang enhancement and offense. The jury was properly instructed about the use of expert testimony and the fact it could disregard any opinion it found to be unreasonable and unsupported by the evidence. The jury was also told that it could decide the weight to be given any opinion, that the facts of any hypothetical question were not necessarily true and that the prosecution had the burden of proving each element and Garcia's guilt beyond a reasonable doubt. Under these circumstances, Impola's expert testimony did not infringe upon or usurp the function of the jury.
Nor did Impola's expert testimony amount to the improper use of "profile evidence." In addition to profile evidence being "not a separate ground for excluding evidence; such evidence is inadmissible only if it is either irrelevant, lacks a foundation, or is more prejudicial than probative." (People v. Smith (2005) 35 Cal.4th 334, 357.) As shown above, the gang expert testimony was clearly probative to the elements of the gang enhancement and substantive offense as well as to the issues of motive, intent and identity for all offenses charged. Garcia did not object below that such evidence was irrelevant, lacked foundation or was more prejudicial than probative. Garcia's belated objection of illegal profile evidence made near the end of Impola's expert testimony in response to his opinion based on the hypothetical was properly overruled by the trial court. No prejudicial evidentiary error regarding the gang evidence is shown on this record.
IV
CLAIMED PROSECUTORIAL MISCONDUCT
Pretrial, Garcia's counsel brought a motion to suppress the gun and other items found in a search of Garcia's girlfriend Montanez's house, arguing the search was unconstitutional because it was conducted without a warrant or valid consent. After hearing evidence and argument, the trial court granted the motion to suppress the gun and other items, finding that the officers who conducted the search had coerced consent from Montanez and her mother. The court, however, granted the prosecution's request to enter into evidence Montanez's statements to the searching officers about seeing a gun like the one shown to her six months earlier at Garcia's house, finding the statements would have been inevitably discovered and nonetheless would be available to impeach her should she deny telling the officers she had seen Garcia with a gun or deny making the statements regarding the gun.
As noted in the background facts, when Montanez testified, she denied ever seeing Garcia with a gun, denied telling the officers at her house that she had ever seen Garcia with a gun, and denied the officers showed her a gun the day they searched her house. When Impola later testified, he said that during the search of Montanez's house, as he showed her a Smith and Wesson nickel plated or silver revolver with a black rubber grip, Montanez told him she had seen Garcia with a gun six months earlier at his house.
When Toussaint, another detective involved in the search, subsequently testified, he concurred that Montanez had answered some questions about a chrome revolver she was shown at that time and said she had seen Garcia with the gun several months before at his house or his aunt's house. When the prosecutor then asked Toussaint what Montanez's demeanor was at the time she was looking at the gun and making these statements, he replied that "[s]he did seem surprised that the weapon was there and--which made [him] believe that she didn't really have any knowledge of its presence." Defense counsel immediately moved for a mistrial based on the prosecutor eliciting an answer referring to the gun being found in Montanez's residence, which was in violation of the court's earlier ruling suppressing the gun from being admitted into evidence.
Outside the jury's presence, in response to the court's inquiries, the prosecutor explained that before Toussaint testified she had advised him about the suppression of the gun and that he should not discuss the items found in a search of Montanez's house, but that he could discuss the statements made by Montanez while looking at the gun. After some discussion, the court found that the only logical inference the jury could have drawn from Toussaint's objected to answer was that the gun Montanez was shown was found in her house. Although the court ruled such testimony violated the earlier exclusion order, it denied Garcia's counsel's mistrial motion because it found that the statements were not express, but rather indirect comments from which the jury had to draw inferences. In determining an appropriate remedy, the court denied Garcia's counsel's request to strike the entirety of Toussaint's testimony with an admonishment, noting it would strike only the pertinent portion of his testimony. The next day the trial judge admonished the jury as follows:
"Before we go on to today's testimony, I want to revisit some of the testimony from yesterday. You recall that our last witness yesterday was... Toussaint. During [his] testimony, he made certain references to the showing of a handgun to Miss Montanez of statements that she made when they showed that handgun to her and of his interpretation of her reaction when shown that handgun. All of that testimony is stricken, and you are to disregard any of that testimony. [¶] There is evidence in this case from other witnesses that Miss Montanez was shown a handgun. However, there is no evidence of how that handgun came into custody of the police. In particular, there is no evidence of when or where that handgun was discovered. There is no evidence as to whether it was discovered in Miss Montanez's apartment, in some other residence of the defendant or otherwise in the defendant's possession. Those are facts as to which there is no evidence and as we talked at length in jury selection, the jury must not speculate about the facts as to which there is no evidence, and that is one of the examples as to which there is no evidence now and as to which I expect there to be no evidence in this case."
Garcia now argues on appeal that the prosecutor committed misconduct by eliciting testimony from Toussaint that the previously suppressed gun was found in Montanez's house after a search without advising him of the pretrial ruling forbidding such information before the jury. Garcia does not challenge the court's denial of his mistrial motion. We conclude any conceivable misconduct was harmless.
In general, "[a] prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.) For example, a prosecutor commits misconduct when he or she intentionally elicits inadmissible evidence or testimony. (People v. Chatman (2006) 38 Cal.4th 344, 379-380.) In this regard, "[a] prosecutor has the duty to guard against statements by his [or her] witnesses containing inadmissible evidence. [Citations.] If the prosecutor believes a witness may give an inadmissible answer during his examination, he [or she] must warn the witness to refrain from making such a statement." (People v. Warren (1988) 45 Cal.3d 471, 481-482.) Generally, however, evidence of an earlier statement made by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement. (Evid. Code, §§ 770, 1235.)
"To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct." (People v. Price (1991) 1 Cal.4th 324, 447.) Therefore, to avoid forfeiture or waiver of prosecutorial misconduct, a defendant generally "must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury." (People v. Brown (2003) 31 Cal.4th 518, 553.) "When a defendant makes [such] a timely objection to prosecutorial [error], the reviewing court must determine first whether misconduct has occurred.... [Citation.] Second, if misconduct had occurred, we determine whether it is 'reasonably probable that a result more favorable to the defendant would have occurred' absent the misconduct." (People v. Welch (1999) 20 Cal.4th 701, 752-753 (Welch).)
Here, although defense counsel timely objected to Toussaint's answer to the prosecutor's question about Montanez's demeanor when she told him about seeing Garcia in possession of the weapon as improper because it implied the gun was found at her house in violation of the earlier suppression order, it does not appear from this record that the prosecutor used "deceptive or reprehensible methods" to elicit such response. Contrary to Garcia's representation on appeal, the record shows that the prosecutor did admonish Toussaint before his testimony about the court's earlier suppression order and that she properly limited her questions to him regarding the gun to impeaching Montanez with her prior inconsistent statements which the court's suppression order did not prohibit. At no time did the prosecutor ask any question of Toussaint as to where the gun was found or how the police came into its possession.
Despite the lack of evidence to show that the prosecutor had intentionally elicited testimony the gun was found in Montanez's house, the trial judge found Toussaint's responses regarding the gun violated the suppression order and struck them from the record, advising the jury not to consider such evidence and admonishing the jurors there was no evidence in the record as to where the gun was discovered. Thus, even assuming the prosecutor had committed misconduct in eliciting Toussaint's testimony from which it could be inferred that the gun was found in Montanez's house, a remedy was provided for any such misconduct. Garcia has not shown that the remedy provided was inadequate to cure any possible harm in this case.
Nor can Garcia show prejudicial error caused by any conceivable prosecutorial misconduct in this regard. In light of other properly admitted evidence regarding the statements Montanez made while being shown the gun (i.e., the unobjected to testimony elicited from Impola concerning the matter), the court's admonishment to the jury regarding Toussaint's testimony, which we presume the jurors followed (People v. Millwee (1998) 18 Cal.4th 96, 140), and the abundant evidence identifying the silver car in which the shooter rode, Garcia as the shooter and described his gun, it is simply not reasonably probable that a more favorable result for Garcia would have occurred absent the prosecutor's questioning of Toussaint about Montanez's reactions to the gun. (Welch, supra, 20 Cal.4th at pp. 752-753.)
V
REFUSAL TO INSTRUCT ON ATTEMPTED VOLUNTARY MANSLAUGHTER
During jury instruction discussions, defense counsel requested the court instruct the jury with CALCRIM No. 603 on the lesser crime of attempted voluntary manslaughter based upon the theory of sudden quarrel or heat of passion for count 1 as well as with CALCRIM No. 604 on attempted voluntary manslaughter based on imperfect self-defense or defense of others. Counsel argued that the evidence showed there was a fight "about to occur" and some kind of quarrel going on, which was sufficient to support the giving of both instructions. Although the court decided to instruct with CALCRIM No. 604 "out of an abundance of caution, " it disagreed that there was evidence to support the giving of CALCRIM No. 603. In refusing the request to give such instruction, the trial judge stated:
"I don't think there is evidence of provocation here. There is evidence that... the shooter and the driver arrived and confronted Mr. Flowers. There's no evidence that the violence that occurred thereafter was caused by whatever exchange of words occurred at that period of time. Rather, the only evidence is that it was caused by something that occurred earlier."
On appeal, Garcia contends the trial court prejudicially erred by denying his request to instruct the jury on the lesser included offense of attempted voluntary manslaughter based on sudden quarrel or heat of passion. We disagree.
The law is well established that the obligation to instruct in criminal cases, even absent a request, on the general principles of law relevant to the issues raised by the evidence, "includes giving instructions on lesser included offenses when the evidence raises a question whether all the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged." (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) In reviewing a claim that the evidence supports the giving of instructions on such lesser included offenses, we apply the independent or de novo standard of review. (People v. Cole (2004) 33 Cal.4th 1158, 1218) "A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, ' "that is, evidence that a reasonable jury could find persuasive" ' [citation], which, if accepted, ' "would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser' [citations]." (Ibid., original italics.) In other words, a trial court may refuse to instruct on a lesser included offense, despite the defendant's request, if there is no substantial evidence to support the instruction and the defendant, if guilty at all, is guilty of the greater offense. (People v. Daniels (1991) 52 Cal.3d 815, 868; People v. Leach (1985) 41 Cal.3d 92, 106.) Due process does not require otherwise. (See Hopper v. Evans (1982) 456 U.S. 605, 611.)
As relevant here, a defendant who intentionally attempts to kill in sudden quarrel or heat of passion is guilty only of attempted voluntary manslaughter, which is a lesser included offense to murder. (§ 192, subd. (a); People v. Rios (2000) 23 Cal.4th 450, 461; People v. Lasko (2000) 23 Cal.4th 101, 106.) To establish heat of passion, a defendant must show that he was actually provoked to a heat of passion and that a reasonable person also would have been so provoked under the circumstances. (See, e.g., People v. Steele (2002) 27 Cal.4th 1230, 1252 (Steele).) The defendant's reason for committing the crime must be "actually obscured as the result of a strong passion aroused by a 'provocation' sufficient to cause an ' "ordinary [person] of average disposition... to act rashly or without due deliberation and reflection, and from this passion rather than from judgment." ' " (People v. Breverman (1998) 19 Cal.4th 142, 163 (Breverman).) Any violent, intense or highly wrought emotion other than revenge may satisfy the subjective component of heat of passion. (Ibid.; Steele, supra, 27 Cal.4th at pp. 1252-1254.)
Here, after independently reviewing the record, we agree with the trial court that there was no evidence to satisfy either the subjective or the objective component of the heat of passion requirement to require the instruction requested. Although Garcia claims there were words exchanged after he got out of the car and Flowers stood up and prepared to fight, according to Flowers, there were no words exchanged before the shooting other than the driver telling Garcia to shoot him while he was alone, unarmed and backing up from Garcia and the driver "real fast." Perez, who witnessed the shooting, testified that Garcia was "angry" while Flowers was "calm, " and confirmed Flowers was alone and walking away when Garcia shot him. Perez's boyfriend, who also witnessed the shooting, merely testified to hearing Flowers tell the men he did not want any problems. This evidence does not support a claim that Garcia was actually provoked to a heat of passion or that a reasonable person also would have been provoked to a heat of passion under the circumstances.
Although Garcia argues the evidence that Flowers tried to summon Ayala and another friend to come to his aid provided sufficient evidence of provocation, we find that evidence speculative on this record. When Ayala testified, he denied running toward Flowers to fight Garcia or the driver. He said he was merely walking toward them from behind when the shooter with his back to him fired the gun at Flowers and then sped off with the driver. There was simply no evidence presented to show that Garcia or the driver saw or knew Ayala was approaching them to help Flowers. Pure speculation that a fight would shortly ensue when Ayala reached the others near the park is not sufficient to require the giving of an instruction on a lesser included offense based on provocation. (See Mendoza, supra, 24 Cal.4th 130, 174.) Because there was no evidence on this record that Garcia was actually provoked to a heat of passion or that a reasonable person under the circumstances would have been so provoked, the trial court did not err in refusing to instruct with CALCRIM No. 603.
However, even assuming an evidentiary basis for the lesser instruction, any instructional error was harmless because it is not reasonably probable that, had the court instructed the jury on the sudden quarrel or heat of passion theory of voluntary manslaughter, the result would have been different. (Breverman, supra, 19 Cal.4th 142, 176-177; People v. Watson (1956) 46 Cal.2d 818, 836.) Because the jury convicted Garcia of attempted premeditated murder even though the court had instructed the jury on the lesser crime of attempted voluntary manslaughter based on imperfect self-defense, the jury necessarily rejected any mitigating evidence in this case and it is not reasonably probable that the additional lesser offense instruction would have changed such result in light of the overwhelming evidence that Garcia attempted to murder Flowers without any provocation other than revenge for his gang's benefit. No prejudicial error is shown.
VI
10-YEAR GANG ENHANCEMENT
Finally, relying on People v. Lopez (2005) 34 Cal.4th 1002, 1004 (Lopez), Garcia contends that his 10-year gang enhancement imposed under section 186.22, subdivision (b) should be stricken in this case because he has been convicted of a felony punishable in prison for life. The People concede the enhanced punishment must be stricken and we agree with such concession.
In Lopez, supra, 34 Cal.4th 1002, our Supreme Court held that where a defendant is convicted of an offense punishable by imprisonment in the state prison for life, like the first degree murder committed there for the benefit of a gang, the 10-year enhancement of section 186.22, subdivision (b)(1)(C) is inapplicable and "such a murder falls within that subdivision's excepting clause and is governed instead by the 15-year minimum parole eligibility term in section 186.22(b)(5)." (Lopez, supra, at p. 1006.) Because Garcia was sentenced to an indeterminate term of life on the count 1 attempted, premeditated murder conviction, the holding of Lopez mandates that the 10-year gang enhancement imposed under section 186, subdivision (b)(1)(C) must be stricken and the 15-year parole eligibility minimum under section 186.22, subdivision (b)(5) imposed in its place.
Section 186.22, subdivision (b)(1) states in pertinent part that "[e]xcept as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of... any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony... of which he... has been convicted, be punished as follows: [¶]... [¶]... (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years." The exception in subdivision (b)(5) of section 186.22 states in relevant part that "any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served."
DISPOSITION
The judgment is modified to strike the 10-year enhancement imposed under section 186.22, subdivision (b)(1)(C), and to impose in its place the 15-year parole eligibility minimum under section 186.22, subdivision (b)(5). The trial court is directed to modify the abstract of judgment accordingly and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
I CONCUR: McCONNELL, P. J.
I CONCUR IN THE JUDGMENT: McINTYRE, J.