Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F08906045, Hilary A. Chittick, Judge.
John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Following two previous mistrials due to deadlocked juries, a jury found Deandre Noble Stanfill (appellant) guilty as charged in counts 1 and 2 of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)); in count 3 of possession of a firearm by a felon (§ 12021, subd. (a)(1)), in count 4 of street terrorism (§ 186.22, subd. (a)); in count 5 of discharging a firearm with gross negligence (§ 246.3, subd. (a)); and in count 6 of discharging a firearm at an unoccupied motor vehicle (§ 247, subd. (b)). The jury also found true that in the commission of counts 1 and 2, appellant personally used a firearm (§ 12022.5, subd. (a)), and in counts 1, 2, 5, and 6, that appellant committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Appellant admitted that he had served a prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced appellant to a prison term of 22 years 4 months as follows: count 1, the midterm of six years, enhanced by 10 years for the gang allegation and one year for the prison prior; count 2, a consecutive one-third the midterm of two years, plus one-third the 10-year gang enhancement of three years four months; count 4, a concurrent two years; and count 6, a concurrent seven years. The court stayed the terms and enhancements on count 3 and 5, as well as the firearm use enhancements on counts 1 and 2.
Appellant contends that the trial court erred when it admitted evidence that a witness was afraid to testify, admitted opinion testimony of the gang expert, and failed to exclude excessive gang evidence. Appellant also contends there is insufficient evidence to support the criminal street gang count and related enhancements and that the prosecutor committed misconduct. Finally, appellant contends cumulative error occurred. We disagree and affirm.
FACTS
On July 23, 2008, Roxanne Arnold bought some drugs from appellant, used the drugs, and then went to the home of Yvonne Lewis. According to the testimony of police officers Marvin Whittle and Christopher Fern, who arrived on the scene shortly after the subsequent events in question, Kenneth Carter, the brother of Lewis’s boyfriend, arrived at the house around 8:00 in the evening to pick up Lewis and her two children. While Carter was putting the children’s car seats into the back seat of the car, appellant walked up, holding a cup containing some sort of alcoholic beverage. Appellant and Carter had known each other for 15 or 16 years. Appellant saw Carter and said, “Kenneth motherfucking Carter, ” to which Carter replied, “[H]ey, man, what’s up?” Appellant then said, “[T]his is the Dog Pound. Fuck Villa Posse.” Carter was concerned that children were nearby and asked appellant to leave. Appellant responded, “[W]hat do you mean get out of your yard? This is the Dog Pound, ” and then walked away.
Lewis came out of the house and was talking to Carter when appellant returned and stood by the rear passenger side of Carter’s car. Appellant pulled out a nine-millimeter semiautomatic handgun from his waistband and pointed it at Carter and Lewis. Appellant asked “[D]o you think I’m playing? Do you got a gun?” as he fired a shot into the right rear tire of the car. Lewis ran into the house and Carter followed. As Carter approached the front door, appellant fired several more shots into the car, shattering the right rear window and putting a bullet hole through the driver’s door. Carter yelled that he was going to call the police, to which appellant responded, “[F]uck the police. This is the Dog Pound.”
Carter went into the house, closed the door and propped his feet against it because appellant tried to turn the door knob and kicked at the door. Eventually, appellant stopped and walked around the front yard. A few minutes later, appellant again tried to open the door, but Carter held it closed. Appellant again walked away, this time firing three or four more shots. Police responded to the scene shortly thereafter and located several nine-millimeter shell casings on the front lawn and a shell casing on the top of the trunk of the vehicle.
A gang expert testified that appellant had been a validated member of the Dog Pound street gang for several years. Among the principal activities of the gang were drug sales, assault, and weapons offenses. The core of Dog Pound gang territory was located one block from Lewis’s house. Villa Posse is a rival street gang.
Lewis testified for the defense that she misidentified appellant when she called 911. Instead, she claimed to have given the operator appellant’s name only because she had heard Carter, who was in the house with her when she heard shots, say he was going outside to see if appellant was out there.
DISCUSSION
1. Did the trial court err when it admitted evidence that a witness was afraid to testify truthfully?
Appellant contends that the trial court erred prejudicially when it admitted specific evidence of witness Carter’s fears of retaliation if he testified against appellant. Appellant contends that this evidence was more prejudicial than probative under Evidence Code section 352, denying him a fair trial. We disagree.
Prior to trial, appellant filed a motion to exclude evidence of Carter’s fear of retaliation should he testify. The motion addressed Carter’s fears that, if he were to testify: (a) harm might come to his family who lived in the house where the shooting occurred; (b) the house was located across from a vacant lot, making it a prime location for an attack; (c) there were nightly shootings in the area; (d) his niece might be run over by a car driven by appellant’s associates; (e) he strongly believed such retaliation was the mentality of the gangs in the area; (f) he was willing to tell the truth if his family moved, and he was convinced he would be harmed if he testified truthfully; (g) he was convinced that appellant’s friends would harm his family if he testified truthfully; and (i) he believed he would be harmed if appellant’s associates found him someplace by himself. The motion stated that there had been no actual threat against Carter, but that he told officers that he was afraid of violent retaliation if he did testify truthfully. In appellant’s prior trial, Carter testified that he did not remember the incident. Appellant acknowledged that evidence of Carter’s fears was admissible, but argued that the specific details of the violence he imagined were more prejudicial than probative.
At the hearing on the motion, defense counsel objected to the evidence, claiming it was more prejudicial than probative pursuant to Evidence Code section 352 because no actual threat had occurred. Defense counsel did not object to the issue of Carter’s fear itself, but asked that the “specific threats, ” particularly the perceived threat against Carter’s niece, be excluded. Following a recess, the trial court determined that, according to case authority, evidence that a witness “is afraid to testify or fears retaliation” was relevant to the witness’s credibility. The trial court excluded the evidence of Carter’s fears concerning his niece being run over by a car but admitted the remaining items.
At trial, Carter repeatedly testified “I’m not sure” to all questions concerning the incident. Detective William Andrews then testified that he interviewed Carter in January of 2009, after Carter had testified during a prior hearing that he could not recall what had happened. Carter told Andrews that he would testify in the same manner if called again because he had serious concerns that harm would come to him and his family. Specifically, Carter told Andrews that he was afraid appellant’s associates could fire at the house from the open field across the street. Carter also told Andrews that he was more willing to testify truthfully if his family moved from the area, which was notorious Dog Pound territory.
Evidence that a witness is afraid to testify, or that he or she is afraid of retaliation, is admissible as relevant to that witness’s credibility. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.) Evidence of the reason for the witness’s fear is likewise relevant to the issue of credibility. (People v. Feagin (1995) 34 Cal.App.4th 1427, 1433.) Admission of such evidence, in the absence of some countervailing policy, is in keeping with the general rule that, “[e]xcept as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.)
Certainly, evidence relating to the credibility of a witness is relevant. (Evid. Code, § 210.) In pertinent part, Evidence Code section 780 provides: “Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶] … [¶] (i) The existence or nonexistence of any fact testified to by him. [¶] (j) His attitude toward the action in which he testifies or toward the giving of testimony.” Thus, the fact that there is no evidence establishing that a defendant was actually responsible for a threat is irrelevant; rather, evidence that the witness believed that testifying against the defendant would cause the threats to be carried out is admissible to establish the witness’s attitude toward the giving of testimony, i.e., that he or she was afraid to testify. (People v. Green (1980) 27 Cal.3d 1, 19-20 [testimony that witness was afraid to go to jail because defendant had friends there was relevant to witness’s credibility], overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.)
Appellant contends that a statutory exception to the admission of this testimony exists in the form of Evidence Code section 352, which provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” The trial court’s exercise of discretion under Evidence Code section 352 shall not be disturbed on appeal absent a showing that such discretion was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Here, the challenged evidence was probative of whether Carter was afraid to testify against appellant. The issue of whether he believed testifying against appellant would cause retaliation was directly relevant to his motive on how he would testify. Because a trial is supposed to be a process by which the jury searches for the truth, it was appropriate to allow the jury to hear the full story about the countervailing motivation Carter faced to testify as he did, and to allow the jury to judge Carter’s credibility.
Evidence of the threats and retaliation was not unduly prejudicial in the sense required by Evidence Code section 352. Here, there is no doubt that the concerns raised by Carter emphasized that he was certain someone did not want him to testify against appellant. But the argument that evidence should be excluded because it is “highly prejudicial” to appellant’s case is a classic error. (O’Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 575.) Often the most highly probative evidence is also highly damning, and therefore “prejudicial” only in the defendant’s subjective sense of the word. (Ibid.) Evidence Code section 352 does not, however, allow for the exclusion of evidence merely because it is “prejudicial” in the sense of damaging the litigant’s position. The relevant phrase from the statute is “substantial danger of undue prejudice.” (Ibid.) Undue prejudice springs from evidence that has very little effect on the issues. (O’Mary, supra, at p. 575; People v. Minifie (1996) 13 Cal.4th 1055, 1071; People v. Wright (1985) 39 Cal.3d 576, 585 [the “prejudice” referred to in Evid. Code, § 352 applies to evidence which uniquely tends to evoke emotional bias against one party as an individual and which has very little effect on the issues].)
The evidence of possible retaliation did not involve actual conduct by appellant or his fellow gang members. Instead, it was Carter’s fear that Andrews testified to. Moreover, the jury had already heard evidence of actual conduct by appellant and his fellow Dog Pound members. They heard about gang drug sales and weapon offenses, and were told that Carter’s house was located in Dog Pound territory. In light of this, it is not likely that the additional evidence that Carter imagined the possibility of a gang member shooting at his house or harming his family if he testified against appellant, while highly damning, would have evoked an emotional bias against appellant.
We conclude that the trial court did not abuse its discretion by admitting evidence that Carter was afraid to testify.
Appellant also contends that admission of this evidence violated his federal constitutional right of due process. Assuming without deciding that appellant’s claim is not forfeited by failing to raise it in the trial court, we nevertheless find the due process claim is without merit. “The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair. [Citations.]” (People v. Falsetta (1999) 21 Cal.4th 903, 913.) As we have explained, the evidence of Carter’s fear in testifying admitted in this case was relevant to the issue of Carter’s evasive testimony and, as properly limited, did not render appellant’s trial fundamentally unfair.
This conclusion disposes of appellant’s argument that he was denied effective assistance of counsel because his trial attorney failed to object to this evidence on due process grounds.
2. Did the trial court err in allowing opinion testimony of the gang expert?
Appellant contends that the trial court improperly allowed the prosecution’s gang expert to give his opinion that appellant’s actions benefited the Dog Pound criminal street gang. Specifically, appellant argues that, because the expert gave his own opinion rather than testifying to a hypothetical question, he was improperly allowed to testify to appellant’s subjective intent. We find no prejudicial error.
Prior to trial, appellant filed a motion to exclude gang expert testimony concerning the issue of specific intent. Defense counsel argued that the trial court should not allow a gang expert to testify that appellant had the specific intent to benefit, further, or promote the Dog Pound gang, citing as authority People v. Killebrew (2002) 103 Cal.App.4th 644.
In ruling on appellant’s motion, the trial court stated:
“… It does not appear to the Court that Killebrew is really on point. The witness is required to testify or there is required to be some evidence with respect to the fact that the crime was committed for the benefit of a criminal street gang. And it just seems to the Court that the officer is essentially testifying to that type of evidence. And I have reviewed quite a few cases with respect to gang experts and their testimony and it appears to the Court to be well within the ambit of that type of testimony. And, therefore, the Court’s tentative ruling is to deny that.”
At trial, the prosecution’s gang expert, Detective Ronald Flowers was asked, “In your opinion, did [appellant]’s actions in this case benefit the gang?” Flowers replied, “I think it benefitted. I think it furthered the gang and I think it was done in association with the gang. All the elements under [section] 186.22.” When asked how appellant’s actions benefited the gang, Flowers stated:
“Well, the crime was committed within the controlled boundaries of the gang. That’s expected of the gang to kind of render enforcement, especially when they’re encroached by people they deem as rivals or those associated with rival[s]. It also furthers the gang’s reputation. As I mentioned, when you do commit the act, word spreads on the street. People within the know, in that group, in the community, they know who’s involved, whether it be this case or homicide or another violent act. It is also done in association as it’s more or less an investment. [¶] … This violent act—there weren’t other gang members nearby or present, but again the act itself was an investment for the association of that particular gang.”
The following morning, the prosecutor noted that Flowers had testified to his opinion that “this crime, the one on July 23rd, 2008, benefitted the Dog Pound criminal street gang.” When asked what the most important factor was in coming to this conclusion, Flowers responded:
“The person involved is a known and validated member of this gang, the Dog Pound. The crime itself happened within their turf, their controlled environment. It happened at a location that was frequented and used by the gang also for their criminal enterprise. And also just as important were the statements made to invoke fear. This is the Dog Pound, to that effect. That by itself—actually those factors help me determine that it was gang-related and it did benefit the gang as a whole.”
“‘“As a general rule, a trial court has wide discretion to admit or exclude expert testimony. [Citations.] An appellate court may not interfere with the exercise of that discretion unless it is clearly abused. [Citation.]”’” (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512 (Garcia).)
It is well established that expert testimony is admissible regarding gangs and gang behavior.
“In general, this court and the Courts of Appeal have long permitted a qualified expert to testify about criminal street gangs when the testimony is relevant to the case. ‘Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” [Citation.] The subject matter of the culture and habits of criminal street gangs … meets this criterion.’ [Citations.]” (People v. Gonzalez (2006) 38 Cal.4th 932, 944.)
In Garcia, the court noted that, while an expert may not testify that an individual had specific knowledge or possessed a specific intent, a gang expert may testify regarding whether a crime was committed to benefit a gang:
“[A]n expert may properly testify about … ‘whether and how a crime was committed to benefit or promote a gang.’ (People v. Killebrew[, supra, ] 103 Cal.App.4th [at pp. 656-658]; see People v. Gonzales[, supra, ] 126 Cal.App.4th [at p. 1550] [‘Expert testimony repeatedly has been offered to show … “whether and how a crime was committed to benefit or promote a gang”’]; People v. Valdez [(1997) 58 Cal.App.4th 494, 507-509] [holding expert opinion concerning whether the defendant acted for the benefit of a gang was admissible under the circumstances of the case].)” (Garcia, supra, 153 Cal.App.4th at pp. 1512-1513.)
The Garcia court noted that the proper method by which to elicit a gang expert’s opinion regarding whether a crime was committed for the benefit of a gang is through the use of hypothetical questions based on evidence in the case. (Garcia, supra, 153 Cal.App.4th at p. 1513; see also People v. Gardeley (1996) 14 Cal.4th 605, 619 (Gardeley) [proper for prosecutor to give gang expert “a ‘hypothetical’ based on the facts of the assault in this case on [the victim] by three [gang] members, [and] ask[ing] [gang expert] if in his expert opinion an attack as described would be ‘gang-related activity’”].)
In Garcia, the gang expert opined that based on a hypothetical mirroring the facts of the case at issue, the offense of carrying a loaded firearm in a vehicle was done to promote, further, or assist criminal conduct by the particular gang members. (Garcia, supra, 153 Cal.App.4th at pp. 1505-1506.) On appeal, Garcia claimed that the trial court erred by allowing the expert to testify to the ultimate issue in the case, by stating his opinion that Garcia had committed the crime for the benefit of a gang. The appellate court rejected this claim, reasoning:
“[I]n response to hypothetical questions, [the expert] testified the crime, under such circumstances, would be committed to benefit a criminal street gang. The trial court did not abuse its discretion in permitting [the expert]’s testimony, even though the topics as to which he rendered an opinion based on responses to hypothetical questions were, in fact, the ultimate issues of the case.” (Garcia, supra, 153 Cal.App.4th at pp. 1513-1514; accord, Evid. Code, § 805 [“Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact”].)
We assume for purposes of this decision that because the prosecutor did not pose his question regarding whether the assault and discharge of a firearm was committed for the benefit of the Dog Pound gang as a hypothetical question, the trial court erred in allowing Flowers to offer his opinion that appellant committed the offense for the benefit of the gang. But we conclude that the error was not prejudicial under any standard of prejudice. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) To begin with, the trial court properly admitted Flowers’s testimony concerning the behavior of gang members in general and appellant’s association with the Dog Pound gang. The jury could have relied on properly admitted testimony Flowers provided to support his opinion that the offenses were committed to benefit the gang.
It is clear from Garcia and Gardeley that it would have been proper for the prosecutor in this case to have presented Flowers with the evidence pertaining to the circumstances of appellant’s offenses in the form of a hypothetical question, and to have asked Flowers whether, in his opinion, the offenses committed under these circumstances would have been committed for the benefit of the gang. While asking Flowers to express his opinion in response to a hypothetical would have reinforced to the jury that it was ultimately for the jury to decide whether the crime was committed for the benefit of the gang, the trial court instructed the jury pursuant to CALCRIM No. 332 that it was not bound by an expert’s opinion and that it was the jurors’ duty to weigh the strengths and weaknesses of any such opinion.
The court instructed the jury pursuant to CALCRIM No. 332 in relevant part as follows: “A witness was allowed to testify as an expert and to give an opinion. You must consider the opinion, but you are not required to accept it as true or correct. The meaning and importance of any opinion are for you to decide. [¶] In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. [¶] You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable …, unreasonable, or unsupported by the evidence.”
In view of the considerable quantity of admissible evidence on which Flowers based his opinion, and the court’s instructions regarding how the jurors were to evaluate expert testimony, we are satisfied beyond a reasonable doubt that if the prosecutor in this case had posed his question regarding whether the offenses were committed for the benefit of a gang as a hypothetical question, as in Garcia, the jury would not have reached a result more favorable to appellant. Accordingly, we conclude that the trial court did not commit reversible error in allowing the People’s gang expert to express an opinion that the offenses were committed for the benefit of the Dog Pound gang.
3. Is there sufficient evidence to support the street gang offense and enhancements?
Appellant argues there is insufficient evidence to support his convictions of the substantive gang offense as well as the gang enhancements. Specifically, appellant contends “no substantial evidence was introduced that reasonably showed the act had promoted or benefitted criminal gang activity or was intended to do so.” We disagree.
In considering a challenge to the sufficiency of the evidence to support the offense or the enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Wilson (2008) 44 Cal.4th 758, 806.) We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. (Ibid.) If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) “A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.” (Ibid.)
Appellant was convicted of violating section 186.22, subdivision (a), which provides: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished.…” This crime consists of three elements: (1) the defendant actively participates in a criminal street gang (the active participation element); (2) the defendant knows that at the time of such participation that members of the gang have or are engaged in a pattern of criminal gang activity (the pattern of activity element); and (3) the defendant willfully promotes, furthers, or assists any felonious conduct by members of the gang (willfully assisted element). Very recently and after briefing was completed in this case, our Supreme Court in People v. Albillar (2010) 51 Cal.4th 47 (Albillar) concluded that the third element does not require that the conduct be gang related; as the statute plainly states, the conduct need only be felonious criminal conduct. (Id. at pp. 56-59.)
“We conclude, in accordance with the text of the statute, that a violation of section 186.22(a) is established when a defendant actively participates in a criminal street gang with knowledge that the gang’s members engage or have engaged in a pattern of criminal activity, and willfully promotes, furthers, or assists in any felonious criminal conduct by gang members.” (Id. at p. 54.)
Appellant contends that there was insufficient evidence that the shooting was gang related and that he committed the offense to promote, further or assist the gang’s criminal activities. But, as stated in Albillar, the plain language of this element states that felonious conduct—not gang-related felonious conduct or gang criminal activity—is all that is required. (Albillar, supra, 51 Cal.4th at p. 59.) Sufficient evidence supports the jury’s conclusion that appellant willfully committed felonious conduct.
The jury also found that appellant violated section 186.22, subdivision (b)(1), which provides:
“[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with 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 or attempted felony of which he or she has been convicted, be punished.…”
Appellant contends the evidence was insufficient to show that the acts of assault and discharge of a firearm were committed for the benefit of, at the direction of, or in association with the Dog Pound gang or were intended to do so. We disagree.
While it is true that not every crime committed by a gang member is related to a gang, the crimes here committed benefited the Dog Pound gang.
First, the evidence is that appellant, a validated member of the Dog Pound gang, verbally proclaimed his allegiance to the Dog Pound gang and his disdain for the rival Ville Posse gang while committing the offenses. In addition, Flowers testified that respect is “more or less a survival trait” for a gang member, and one of the ways to gain respect is to commit violent acts. The violent acts promote the reputation that the gang is violent and that members of the gang are “person[s] to be reckoned with … on the streets.” Flowers also opined that the crimes benefited the Dog Pound gang because they occurred within the controlled boundary or territory of that gang, sending a clear message to rival gangs and the community.
Expert opinion that particular conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was “committed for the benefit of … a[] criminal street gang” within the meaning of section 186.22, subdivision (b)(1). (See, e.g., People v. Vazquez (2009) 178 Cal.App.4th 347, 354 [relying on expert opinion that murder of nongang member benefited the gang because violent crimes like murder elevate status of gang within gang culture and intimidate neighborhood residents into refusing to cooperate with police]; People v. Romero (2006) 140 Cal.App.4th 15, 19 [relying on expert opinion that “a shooting of any African-American men would elevate the status of the shooters and their entire [Latino] gang”].)
We also find that the record supports a finding that the crimes were committed “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) As explained in Albillar, there is no statutory requirement that the criminal conduct mentioned in section 186.22, subdivision (b)(1) be distinct from the charged offense, or that the evidence establish specific crimes the defendant intended to assist his fellow gang members in committing. (Albillar, supra, 51 Cal.4th at p. 66.) Instead, the Supreme Court found that similar to the statutory language in section 186.22, subdivision (a), “the scienter requirement in section 186.22(b)(1)—i.e., ‘the specific intent to promote, further, or assist in any criminal conduct by gang members’—is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be ‘apart from’ the criminal conduct underlying the offense of conviction sought to be enhanced.” (Albillar, supra, at p. 66.)
In sum, substantial evidence established that appellant, a validated member of the Dog Pound gang, intended to and did commit the charged felonies, and that he did so with the intent to promote, further, or assist criminal conduct of the gang in the commission of the offenses.
4. Did the trial court err in admitting excessive gang evidence?
Appellant contends that the trial court erred by admitting excessive and prejudicial gang evidence and that he was denied a fair trial as a result. We find no prejudicial error.
We have already discussed the relevance of gang evidence in this case, but also that relevant evidence should be excluded where its probative value is substantially outweighed by its potential for undue prejudice. (Evid. Code, § 352.) “Even if gang evidence is relevant, it may have a highly inflammatory impact on the jury.” (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) And, as previously discussed, for Evidence Code section 352 purposes, “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.) We review the admission of gang testimony for an abuse of discretion, and will uphold the trial court’s ruling unless it results in a miscarriage of justice. (People v. Avitia, supra, at p. 193.)
Prior to trial, appellant filed a motion to exclude all gang evidence, claiming it was irrelevant and also more prejudicial than probative. In the alternative, he sought a motion to bifurcate the street gang charge and enhancements. The trial court denied the motion, but stated that it would “offer the limiting instruction in [CALCRIM No. ]1403 if there is such a request on behalf of the defense with respect to the gang evidence.”
At trial, prior to gang expert Flowers’s testimony, the court gave the following admonition:
“You have heard and will be hearing more evidence with respect to gang activity and the evidence … and that gang activity is coming before you for a limited purpose. You may consider evidence of gang activity only for the limited purpose of deciding whether [appellant] acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes and enhancements charged or for the purpose of determining whether [appellant] had a motive to commit the crime charged. You may not consider this evidence for any other purpose. You may not conclude from this evidence that [appellant] is a person of bad character or that he has a disposition to commit crime.”
Flowers then testified as the gang expert concerning the criminal activities of the Dog Pound, appellant’s criminal activities, and other evidence identifying appellant as a gang member. Flowers testified that he was familiar with the Dog Pound gang, that a primary activity of the gang was narcotic sales, and that he personally was involved in well over 100 cases of Dog Pound narcotic sales over a five-year period.
Flowers then testified that, in his opinion, appellant was a member of the Dog Pound gang due to his self-admission, as well as Flowers’s contact with and observation of appellant. Flowers specified a number of incidents which helped him to formulate his opinion that appellant was a Dog Pound member: in January of 2002, when appellant was seen wearing red, a primary color of the Dog Pound gang, and was belligerent towards officers; in June of 2002, when appellant was arrested with another gang member for possession of a firearm and admitted to being a Dog Pound member during booking at the jail; in May of 2004, when appellant was arrested in association with other known gang members and admitted being a Dog Pound member during booking at the jail; in May of 2004, when appellant, in the company of other gang members suspected of storing weapons, was seen wearing a red baseball hat and T-shirt; in March of 2005, when appellant was involved in a traffic stop with another gang member; in May of 2005, when appellant and another gang member were shot while in the garage of a house in Dog Pound territory; in June of 2006, when he self-admitted Dog Pound membership during booking at the jail; in March of 2007, when appellant is wearing a red shirt in his Department of Motor Vehicle application photograph; in September of 2007, when he was arrested in the company of another gang member during an investigation into an assault; in November of 2007, when appellant was part of a traffic stop with other gang members; and when appellant was observed with other gang members in a video of dog fighting.
Out of the presence of the jury, defense counsel asked for a mistrial, based on Flowers’s reference to appellant being in jail on a weapons charge. The court denied the motion, finding that reference to appellant was ambiguous as to whether it was appellant or the other gang member he was with who was arrested for the possession.
Flowers then testified on the issue of respect in the gang culture, that it was possible to gain respect with violence and, in his opinion, appellant’s actions toward Carter benefited the gang. Flowers noted that Lewis’s home was “one block over from what’s deemed the central core of [Dog Pound] activities, ” and that, in the past, other members or families associated with the Dog Pound had rented the house. Flowers testified to the significance of appellant’s statements that “this is the Dog Pound, ” as well as “Fuck Ville Posse, ” a long-time rival gang.
Flowers then spelled out eight different convictions of Dog Pound members, including convictions for illegal possession of a firearm; shooting at an occupied vehicle; possession for sale of a controlled substance; possession for sale of cocaine base while armed; assault; and assault with a firearm. The testimony encompassed seven pages of testimony and the court adjourned for the evening.
The following day, the trial court addressed the issue of Flowers’s testimony again with the jury, stating:
“… Ladies and gentlemen, you know, on occasion I have some instructions about evidence and how it should be considered. And I gave you an instruction yesterday with respect to gang evidence and how you’re to consider that. I want to talk to you a little bit today about other evidence that has been admitted for a limited purpose. [¶] In this case, Detective Flowers has been allowed to testify as an expert witness. Experts may be permitted to rely in part on statements or reports made by other individuals in forming their opinions. You may consider that information in evaluating the basis of his opinion, … but you may not use or consider that information for any other purpose.”
Flowers then resumed his testimony, reiterating his opinion that the crime in question benefited the Dog Pound gang due to the location of the crime and the statements made by appellant to invoke fear. In response to a question concerning Flowers’s opinion about whether appellant was a gang member, Flowers stated that “Fresno PD records, records from the California Youth Authority suggested that” appellant was “validated a long time as a Dog Pound gang member.” Cross-examination then ensued.
During subsequent discussions on jury instructions, defense counsel moved for a mistrial based on Flowers’s statement regarding the California Youth Authority. The trial court denied the motion, stating that the jury had been instructed on this matter and that the court was “in no position now” to go back and strike the response and admonish the jury.
Although appellant’s argument states, “[t]he trial court abused its discretion by denying appellant’s motion to exclude gang expert testimony as more prejudicial than probative” (boldface omitted), in essence he is arguing that the sheer volume and specifics of the expert testimony were more prejudicial than probative and denied him a fair trial. Appellant argues that the testimony included details regarding other crimes that went beyond what was necessary to establish the elements of the offenses or gang enhancement. The standard of review, however, is not whether the trial court admitted more evidence than was “necessary, ” but whether the court admitted irrelevant evidence or evidence whose prejudicial effect substantially exceeded its probative value. (People v. Kipp, supra, 26 Cal.4th at p. 1121.)
Even assuming there was error in the admission of some of the gang testimony, the error was harmless under any standard. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.) The evidence of appellant’s guilt was overwhelming. Essentially undisputed evidence established appellant’s guilt on the charged offenses. The evidence, through Officers Whittle and Fern’s testimony of what Carter told them and Lewis and Arnold’s testimony, was that appellant approached Carter and, after greeting him, said “[T]his is the Dog Pound. Fuck Villa Posse.” When Carter asked appellant to leave, appellant said, “[W]hat do you mean get out of your yard? This is the Dog Pound, ” and then walked away. Lewis came out of the house and was talking to Carter when appellant returned and stood by the rear passenger side of Carter’s car. Appellant pulled out a nine-millimeter semiautomatic handgun from his waistband and pointed it at Carter and Lewis. Appellant asked “[D]o you think I’m playing? Do you got a gun?” and fired a shot into the right rear tire of the car. Lewis ran into the house and Carter followed. As Carter approached the front door, appellant fired several more shots into the car, shattering the right rear window and putting a bullet hole through the driver’s door. Carter yelled that he was going to call the police, to which appellant responded, “[F]uck the police. This is the Dog Pound.”
Carter went into the house, closed the door and propped his feet against the door because appellant tried to turn the door knob and kicked at the door. Eventually, appellant stopped and walked around the front yard. A few minutes later, appellant again tried to open the door, but Carter held it closed. Appellant again walked away, this time firing three or four more shots. Police responded to the scene shortly thereafter. This testimony was corroborated by (1) recovery of several nine-millimeter shell casings on the front lawn and a shell casing on the top of the trunk of the vehicle, (2) Carter’s damaged vehicle, and (3) the 911 tape that was played for the jury in which Lewis identified appellant.
Because we find no prejudicial error, we need not address appellant’s alternate claim of ineffective assistance of counsel when counsel failed to object to admission of much of the gang evidence.
5. Did the prosecutor commit prejudicial misconduct by vouching for two witnesses?
Appellant contends that the prosecutor committed prejudicial misconduct during his summation argument when he improperly vouched for the credibility of two witnesses. Specifically, appellant contends that the prosecutor committed misconduct when he “affirmed that Arnold’s testimony was truthful, and insisted that [D]etective Fern had no motive to lie.” We disagree.
“‘Prosecutorial misconduct implies the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’” (People v. Haskett (1982) 30 Cal.3d 841, 866, quoting People v. Strickland (1974) 11 Cal.3d 946, 955.) A prosecutor has a duty to prosecute vigorously and, “‘while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.’” (People v. Pitts (1990) 223 Cal.App.3d 606, 691, quoting Berger v. United States (1935) 295 U.S. 78, 88.) Impermissible “vouching” of a witness may occur when a prosecutor places the government’s prestige behind a witness through personal assurances of the witness’s veracity, or suggests that information not presented to the jury supports the witness’s testimony. It is improper for a prosecutor to argue that he or she has superior knowledge of sources not available to the jury. (People v. Williams (1997) 16 Cal.4th 153, 257.)
Prosecutorial misconduct requires reversal only if it prejudices the defendant. (People v. Fields (1983) 35 Cal.3d 329, 363.) Where it infringes upon the defendant’s constitutional rights, reversal is required unless the reviewing court determines beyond a reasonable doubt that the misconduct did not affect the jury’s verdict. (People v. Harris (1989) 47 Cal.3d 1047, 1083.) Prosecutorial misconduct that violates only state law is cause for reversal when it is reasonably probable that a result more favorable to the defendant would have occurred had the prosecutor refrained from the objectionable conduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
The issue of prosecutorial misconduct is forfeited on appeal if not preserved by timely objection and request for an admonition in the trial court. (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) If an objection has not been made, “‘“the point is reviewable only if an admonition would not have cured the harm caused by the misconduct”’” (id. at pp. 1000-1001) or if an objection would have been futile (People v. Hill (1998) 17 Cal.4th 800, 820-821). Here, appellant’s claim is not reviewable because he made no timely objection, nor did he request the jury be admonished to disregard the impropriety. (People v. Mayfield (1997) 14 Cal.4th 668, 753.) In any event, appellant’s assignment of error lacks merit, and we find no prejudice. (People v. Warren (1988) 45 Cal.3d 471, 480.)
At trial, Arnold testified that she had purchased crack cocaine from appellant prior to the incident at issue, and that she was there when appellant walked up to Carter and said, “[D]o you think I’m playing? Do you got a gun?” right before appellant fired a number of shots into Carter’s car. Arnold testified that she had recent felony convictions, was enrolled to attend a drug treatment program in San Francisco, but that her case was still pending and she believed she would still go to prison. According to Arnold, the prosecutor had promised to speak to a judge regarding her sentencing if she testified truthfully in appellant’s case.
During defense counsel’s closing argument, he sought to undermine Arnold’s credibility by implying that she first testified she did not see any of the alleged incidents, then changed her mind and said she did, and that she did so to please the prosecutor in order to obtain her referral to the drug treatment program instead of facing prison:
“Now what would have happened if she … came in here and said that [appellant] wasn’t involved in this? I bet she wouldn’t be in that program. She wouldn’t be overlooking the ocean in the Bay Area on the coast. And I think she thought that too.”
Later in argument, defense counsel returned to the issue and stated, “She’s got a lot at stake here. She got out of prison after she testified. And the judge has already read you an instruction that says what you can consider in determining how truthful somebody is. I submit that’s a factor that you’re allowed to consider.”
During rebuttal, the prosecutor first clarified that Arnold’s drug treatment program was not “some vacation home in San Francisco, ” but rather an intensive two-year drug rehabilitation program. He then argued that Arnold told officers responding to the scene on the day of the incident the “story” even before the prosecutor became involved. After highlighting the consistencies between what Arnold told the officers and her in court testimony, the prosecutor stated:
“Again, the testimony was that I told [Arnold’s] sentencing judge that she testified truthfully in a serious case. What am I supposed to do, not tell the judge that? She asked will you tell the judge if I testified truthfully. Yes, I will tell the judge you testified truthfully. That’s my job as a prosecutor, to make sure that justice occurs and give the judge all the facts necessary to do a sentencing. It doesn’t excuse her crimes. And she’s being punished for those crimes. But the judge that’s sentencing her has a right to know everything that’s involved in her sentencing. And her truthful testimony today is one of those things that he has a right to know.”
The prosecutor then addressed defense counsel’s argument that Arnold “was mistaken in saying it was dark when it was really light [at the scene]. But Detective Fern, who certainly has no motivation to lie and certainly [was] not under the influence of any substances, told you that it was still light.”
Appellant relies on People v. Alvarado (2006) 141 Cal.App.4th 1577 to show error. In Alvarado, the prosecutor stated: “‘I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crime occurred. [¶] The defendant charged is the person who did it.’” (Id. at p. 1581.) Thus, the comment in Alvarado concerned the guilt or innocence of the defendant and implied that the prosecutor had information outside the record showing that guilt. Here, the prosecutor did not state that he only prosecuted people he believed were guilty, and did not imply that he had knowledge of facts outside the record which would support the charges.
More in line with the facts here is People v. Williams, supra, 16 Cal.4th 153 in which the defendant argued the prosecutor committed misconduct by “vouching” for a prosecution witness by stating the witness “cut a deal” with the People by agreeing to testify “truthfully and honestly” in return for being allowed to plead guilty to robbery on charges pending against him. (Id. at p. 256.) The court in Williams disagreed, stating that a prosecutor can accurately recount the nature of the People’s agreement with a witness as an aid to the jury’s evaluation of the witness’s credibility. (Id. at p. 257.) “Prosecutorial assurances, based on the record, regarding the apparent honesty or reliability of prosecution witnesses, cannot be characterized as improper ‘vouching, ’ which usually involves an attempt to bolster a witness by reference to facts outside the record.” (People v. Medina (1995) 11 Cal.4th 694, 757.) Here, the prosecutor’s explanation of the agreement between Arnold and himself did not amount to improper vouching for that witness.
As for appellant’s assertion that the prosecutor vouched for Detective Fern when he stated he had no motive to lie, this statement was offered in the framework of an evaluation of the evidence and the case before the jury. (People v. Lucas (1995) 12 Cal.4th 415, 475 [prosecutor’s statements must be viewed in light of argument as a whole].) “Although a prosecutor may not personally vouch for the credibility of a witness, a prosecutor may properly argue a witness is telling the truth based on the circumstances of the case.” (People v.Boyette (2002) 29 Cal.4th 381, 433.) Here, the prosecutor was asking the jury to consider both Arnold’s and Detective Fern’s testimony involving the events which took place, rather than any facts outside the record of the prosecutor’s purported personal knowledge or belief. (People v. Ochoa (2001) 26 Cal.4th 398, 443, abrogated on another point in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.) No misconduct was committed. (People v. Stansbury (1993) 4 Cal.4th 1017, 1059.)
In any event, even assuming the prosecutor’s statements constituted misconduct, such misconduct was not prejudicial. Given the entirety of the record, the prosecutor’s alleged misconduct was not prejudicial pursuant to either Chapman v. California, supra, 386 U.S. at page 24, or the lesser standard of People v. Watson, supra, 46 Cal.2d at page 836. Because we find no prejudice, we need not address appellant’s alternate claim that he was denied effective assistance of counsel when counsel failed to object.
6. Cumulative error?
Finally, appellant contends that the cumulative impact of all of the above errors deprived him of a fair trial. We have either rejected appellant’s claims of error and/or found that any errors, assumed or not, were not prejudicial. Viewed cumulatively, we find that any errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J., KANE, J.