Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. H37420
Marciano, P.J.
Following a jury trial, defendant was convicted of first degree murder (Pen. Code, § 187), with associated enhancements for personal use of a handgun (Pen. Code, § 12022.53, sud. (d)), and infliction of great bodily injury on the victim (Pen. Code, § 12022.7). The trial court imposed an aggregate sentence of 50 years to life in state prison.
In this appeal defendant renews his challenge to a warrant for the search of his residence, makes numerous claims of erroneous admission of evidence, and argues that the trial court erred by failing to give an instruction requested by the defense. We conclude that the search warrant was lawful, no errors in the admission of evidence occurred, and the trial court was not required to give defendant’s requested pinpoint instruction. We therefore affirm the judgment.
STATEMENT OF FACTS
According to the established standards that govern appellate review of a judgment of conviction, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Background
The victim of the homicide, Michael Lee, used and sold amphetamine, engaged in identity theft by fabricating identifications and creating “false checks,” managed a tattoo company, and was a known Snorter gang associate with the street name or nickname of “Smiley.” In February of 2001, Lee lived in a house on Calcutta Street in Fremont with his girlfriend Audra Silva, Stanley Adams and Adams’ girlfriend Cherise, who were all amphetamine users and participated with Lee in his identity theft activities.
Lee had a tattoo on his right forearm of the words “El Smiley.”
According to expert testimony, defendant was a leader of the “Deco to” or “Deco to Brande” Snorter criminal street gang based in the Deco to area of Union City, and its governing entity, the “Northern Structure.” One of the primary activities of the Deco to gang was the sale of amphetamine or other controlled substances. Defendant was known by the nickname “Joker,” and often drove a Cadillac Escapade. Two other Hayward area Snorter―although not Deco to―gang members were presently or previously known by the nickname Joker. An officer with the Alameda County Gang Task Force testified that another Deco to gang member, Hector Cervantes, also used the nickname Joker at one time, but by reputation defendant “was Joker from Deco to.”
Defendant and Lee had numerous mutual friends or acquaintances, many of whom were Snorter gang members. Anita Romero, a Snorter affiliate, lived in unit 70 of the Paradise Trailer Park on East 15th Street in San Leandra, and sold amphetamine there. Romero was introduced to defendant by her boyfriend, Daniel Nieves (Smash), and defendant thereafter visited her trailer periodically. Lee stayed with Romero intermittently at the end of 2000. Steven Jamesy lived in unit 59 of the Paradise Trailer Park, across from Romero. Lee lived with Jamesy for a few months before he was killed. Jamesy was also a amphetamine user.
For the sake of convenience, we will often give the gang affiliated nicknames of witnesses or involved parties in parenthesis when they are first identified. We will sometimes refer to the witnesses or parties, including defendant, by their nicknames, as was done in testimony offered at trial.
The Shooting of Lee
On the evening of February 3, 2001, Lee arranged to purchase amphetamine from Romero. Lee enlisted Adams to drive him and Silva to Romero’s trailer in his maroon Ford Expedition to pick up the drugs. Before they left, they all smoked amphetamine that Adams had purchased earlier that day.
On the way to Romero’s trailer Lee called to tell her “[W]he'll be there in a few minutes.” When they arrived at the Paradise Trailer Park, Adams parked his vehicle on the street, whereupon Lee left the front passenger seat and proceeded to Romero’s trailer about 30 feet away. Lee told Adams and Silva that “he’d be right back.” On the way to the trailer, Lee encountered his friend Jamesy. They both entered Romero’s trailer, but she was not there. After a few minutes, Jamesy decided to go to a nearby liquor store, and walked out of the trailer park onto East 14th Street.
As Adams and Silva waited in the Ford Expedition for Lee to return, they noticed “two people walk up beside the truck” on the driver’s side about six or seven feet away. The trailer park was very well lit, so the two people were quite visible: one was “big, burly,” with dark skin, a pock-marked face, and “looked like a gang member;” the other was “familiar” looking to Silva, shorter, slender, with lighter skin and “didn’t look threatening.” The two men walked to the front of Romero’s trailer, where they engaged in a “very hostile” conversation with a third person about “money or something like that.” Adams and Silva then heard, “gunshots,” and looked up to see two or three “sparks” or “flashes” coming from the front porch of the trailer. The “shorter guy” who had walked by the truck was now facing away from the trailer toward them with his hand “pointing downwards,” shooting a gun at the third person. At trial, Adams and Silva both identified defendant as the shooter. As Adams and Silva witnessed the shooting, they did not “know who the victim was at that time.”
The three men on the porch then walked “in a huddle” back toward the Ford Expedition. Defendant stopped at the window of the truck as he passed by and momentarily looked inside at Adams and Silva. They then heard someone behind them say, “Maybe next time you’ll pay me my trucking’ money,” before “one last shot” was fired at the rear of the truck. Adams and Silva looked back and realized that the shooting victim was Lee as he slumped down and leaned against the rear window. They got out of the truck and ran to assist Lee. They both asked him, “Who did this to you,” and he twice replied, “Joker from Deco to.” Silva thought she “knew who that was,” having met him once a few years before, but Adams had never heard of “Joker.”
Lee was bleeding as he staggered across the road to Jamesy’ trailer and banged on the door before he collapsed on the front porch. Silva “called 911” on her cell phone as Jamesy arrived at his trailer.
Jamesy testified that as he was walking to the store he heard shots and immediately returned to the trailer park. As he approached his residence, Jamesy heard a woman hollering and screaming, “[H]e has been shot.” Jamesy observed Lee on the steps of his trailer. Silva asked Jamesy for the trailer park address, then handed him her cell phone. Jamesy gave the address to the 911 operator. An ambulance and police vehicles arrived soon thereafter.
Deputy Richard Slofkosky of the Alameda County Sheriff’s Office testified that he arrived at the Paradise Trailer Park just after midnight to find Lee “laying [sic] on the porch” face down in front of unit 59. Deputy Slofkosky heard “gurgling sounds” coming from Lee, and noticed that his clothes were saturated with blood. The deputy shook Lee to get a response; Lee moved and gasped for breath. Deputy Slofkosky asked Lee if he knew he had been shot, and Lee said that he did. In response to Deputy Slofkosky’s inquiry, Lee indicated that he knew who shot him, and “then he said Joker.” When Lee repeated “Joker,” the deputy asked, “what street he lived on.” Lee replied, “I don’t know. He is from Decoto.” Deputy Slofkosky then asked, “why Joker had shot him,” and Lee said, “I owed him money.”
Lee began to complain of breathing difficulty and his “eyes started to roll backwards,” so Deputy Slofkosky urged him to “hang on because paramedics were on their way.” Within two to four minutes paramedics arrived to treat Lee. He was then transported to the hospital, where he died from two gunshot wounds: one “straight into” the chest that passed through the left lung and lodged in his back; the other a “large hole” to the left knee that severed major blood vessels. The cause of death was loss of blood from “multiple bullet wounds.” Present around the wounds was a “great deal of gunshot stippling” on the skin, which indicated that the shots had been fired from a distance of 18 inches to two feet. A criminalist examined the hollow point bullet fragments recovered from the victim and determined that the weapon used to shoot Lee was one of three similar “nominal.38” weapons: a.38 caliber revolver, a.357 magnum, or a 9 millimeter pistol. A very high level of methamphetamine was found in Lee’s blood.
Two other shots may have passed through Lee’s clothing.
The Police Investigation Following the Shooting
Both Adams and Silva were interviewed by the police at the scene of the shooting and thereafter. Silva testified that she gave statements to the police “over and over and over again” at the scene before she was finally allowed to go to the hospital, where she learned that Lee “was dead.” Silva did not want to give information to the investigating officer because she “didn’t trust” the police after they refused to let her “go to the hospital,” and thought they were “doing a bad job.”
A few hours after the shooting, Silva called her friends Naomi Navarro and Melissa Maya at a “drug house” on Blossom Way in Hayward—often referred to in the testimony as the “Blossom house”―to try to discover the “real name” of “Joker from Decoto.” Maya gave Silva a name, which she passed on to the police that morning. Maya told Silva that in the past she owed money to Joker from Decoto. She added that “he’ll shoot anybody, like, he doesn’t care if you’re a mother or if you have kids or whatever. He’ll shoot you if you owe him money.” Silva’s friends also told her that Joker from Decoto was a gang member. Maya and another friend who frequented the Blossom house, Kevin Jones (Ickey), told Silva that “people there” were “not happy about the questions” she was asking, and advised her to “stop.”
Ralph Castillo, an influential affiliate of the Norteño street gangs in Hayward and their “Northern Structure” governing body, was also present at the house and listened to one of Silva’s calls to Navarro. The “girls” told Castillo that “Joker from Decoto,” referring to defendant, killed Lee. Castillo told the people at the house that defendant was a “loved one”―that is, a member of the Northern Structure governing entity for the East Bay―so they “need to keep that out of your mouth and stop that” to protect him.
Later in the afternoon on February 4, 2001, the police arrived at Silva’s home to display a photo lineup to her. Silva saw a photograph of defendant in the lineup, but did not identify him as the shooter for the police. Silva was afraid that she would be killed by defendant if she identified him, and was “very concerned” that the police would not protect her. She also thought the “cops were trying to find out information” about her, rather than properly investigating the homicide of Lee. Instead of identifying defendant, Silva tried to give the police “clues” by stating that other photos “looked familiar” to the shooter. In the next few weeks, additional photo lineups were displayed to Silva, but she had decided not to pick out defendant after friends told her to “be quiet,” and informed her of threats that “Ralph” had offered money to find her. On one occasion Silva made a photo identification of someone else who “resemble[d]” the shooter, and otherwise she continued to point out photographs of subjects that had similar features.
Adams also feared for his safety and did not want to “get involved,” so he too was evasive and untruthful with the police during the investigation. He learned from Silva that defendant was a “very dangerous” gang member “and not a subject to cross.” When Adams asked Castillo why Lee had been killed, Castillo advised him to “watch it, stay out of it because them people ain’t no joke.”
A few days after the shooting, Adams was also confronted by someone who directed him to defendant’s apartment. Defendant told Adams that “for safety sake and things” he should let “Norteños handle their business” and warned him, “don’t get involved.” Adams made it clear to defendant that he was “not doing the things” to uncover or discuss information about the shooting that Silva “was doing.” Adams assured defendant that he was concerned for his family and the message was “received.” He was then allowed to leave. Thereafter, Adams consciously did not identify defendant in photo lineups and attempted to “give as little information as possible for as long as possible.” When presented with photo lineups, Adams just told the police that photos of other subjects “may have resembled the shooter” or “looked like” the person.
Adams was arrested on March 2, 2001, in the company of Kevin Jones and another man named Ralph, while in possession of fraudulent identification documents. A few days later, while Adams was incarcerated in Santa Rita Jail with a “lot of gang members,” to protect his girlfriend Cherise and obtain a more secure custody situation, he informed a deputy that he “saw possibly the shooter” in the Lee case. According to Adams, instead of responding to his offer, law enforcement officers then searched his residence, found drug paraphernalia and “identity theft” evidence, and arrested Cherise. Then, in May of 2001, after Adams and Cherise were released from custody, they returned to their Calcutta Street residence to find that their home had been burglarized and a “lot of things,” including Cherise’s engagement ring, had been taken. Not long thereafter “someone” approached Adams in a Wal-Mart and said, “Sorry to hear about Mike.” He also displayed Cherise’s stolen engagement ring to Adams and declared, “We know where you are,” before he “kind of smiled” and left. Adams’ mental state was thus reinforced that the police were not working to solve the Lee case and would not protect him.
After the shooting, Castillo also had encounters with defendant. He was visiting a friend shortly after the shooting when “one of the girls from Blossom house” called to tell him that a gang member named Pedro Sepulveda (Termite) wanted to talk to him. Termite mentioned that they wanted to shut down the talk at Blossom house about the killing of Lee. He also said, “Joker wants to see you.” Castillo said, “[A]ll right,” and they met defendant around the corner. Referring to the shooting of Lee, defendant told Castillo that “if you hear anything, just put it out there that you heard that he got killed for messing with someone, girlfriend, like throw everything off.” Defendant also said that he was aware Castillo “pushed drugs” for a living, and had “heard good things” about him. A few weeks later, they entered into an arrangement for Castillo to sell methamphetamine provided by defendant at a specific dictated price, with a percentage of the sales retained by Castillo.
Once their relationship became more established, defendant asked Castillo to see if he could locate Silva and “get word back to him” before “she becomes a problem.” Referring to the shooting of Lee, defendant also told Castillo, “[A]fter I smoked Smiley I turned and was face-to-face with two people, I don’t know if I should smoke them or not.” Defendant expressed his concern to Castillo that Silva “knows who I am.” He offered as a reason for the shooting Lee’s failure to make payments of $2,000 to him, apparently for drug sales Lee made “for Joker.” Castillo also testified that on several occasions he observed defendant in possession of handguns: a “357 chrome one,” and a black 38 revolver with a brown handle.
Castillo made efforts to locate Silva for defendant. Silva testified that she learned from Navarro and others associated with the Blossom house that Castillo was part of “a group” that was “offering money to find” her.
The investigation continued, but essentially languished for years as Silva, Adams and Castillo incurred arrests and periods of incarceration for various drug and identity theft offenses. In March of 2004, Silva was arrested and incarcerated on yet another identity theft offense. After noticing a newspaper article that discussed a memorial service for Lee, Silva contacted Sergeant Scott Dudek of the Alameda County Sheriff’s Department to discuss the Lee case with him. Following a conversation with Dudek, Silva “felt comfortable” and decided “to help him” with the case. Silva insisted that she did not seek leniency in the pending case against her in exchange for her assistance. Sergeant Dudek told Silva that “there would be nothing done” by the prosecution to obtain her cooperation. Silva looked at a lineup with defendant’s photo that day, and “picked him out” for Sergeant Dudek as the person who shot Lee. In April of 2004, Silva was charged with 25 counts of identity theft. She subsequently entered a negotiated plea of guilty to grand theft and receiving stolen property, and was placed on felony probation, along with a 16-month state prison term (with credit for time served) for a probation violation. Silva testified that she did not cooperate because she “wanted a deal,” but rather because she felt the information she was providing “was going to be used finally.”
On April 7, 2004, defendant was arrested at his residence on Blanche Street in Hayward. A search warrant for defendant’s residence was executed on the same day. Seized from the house were: photographs with defendant dressed as a Joker and that bore references to Joker; a photograph of defendant and another known Norteño gang member Pedro Sepulveda flashing a Norteño gang sign; another photograph of defendant with a tattoo bearing a “Nuestra Familia gang” symbol; an illustration of an Aztec warrior with an “N” that represented “the Norteño gang”; a Joker statue with an eight-ball staff signifying drugs; gang member rosters and other gang-related documents such as a “Constitution Neustra Familia”; a red bandana with a star―a Norteño symbol―and the word “Norte” embroidered on it; and a large wood clock with “Decoto” shellacked on it in gold lettering.
Sergeant Dudek then approached Adams on April 13, 2004, informed him that defendant had been arrested, and asked him to testify in the case in exchange for protection from the “serious threats” made against him and his family. Adams did not then have a criminal case pending against him, and was close to “getting off of parole,” although he had admittedly violated his parole by using drugs. The next day, Adams agreed to cooperate fully, including giving testimony in court. Sergeant Dudek displayed a photographic lineup to Adams, and he selected defendant’s picture. Adams insisted that when he agreed to testify in April of 2004, he did not have in mind that he would receive any benefits from the prosecution. Late in 2005, after Adams testified at the preliminary hearing, he was arrested for methamphetamine use. Adams acknowledged that he ultimately obtained benefits in the nature of avoiding probation violations and a potential prison sentence, but maintained that his testimony and identification of defendant as the shooter of Lee was “the absolute truth.”
Castillo agreed to testify against defendant after he was slashed across his face with a razor at Santa Rita Jail by an inmate who was a Decoto Norteño gang member. Castillo believed the stabbing was ordered by defendant in retaliation for “the rumor” that he was “telling on Joker.” He was aware that defendant had “basically overall authority for East Bay Regiment Northern Structure” at the Santa Rita Jail. Castillo was concerned for his safety after the slashing incident, and angry that Norteño associates of defendant robbed his girlfriend. Castillo also testified that he wanted “someone arrested,” meaning defendant, who was “really breaking the law.” He insisted that he “never asked... for nothing” in exchange for cooperation in the present case, other than a request for a transfer to another facility in North County, away from other Northern inmates who were under defendant’s influence. Castillo was never told that he would receive any benefits in his pending cases in exchange for his testimony.
The Defense Evidence
The defense offered expert opinion testimony on the vagaries and unreliability of eyewitness identification testimony, particularly in a traumatic situation and under the effects of methamphetamine. Melissa Maya testified that when Silva called her after the shooting to ask if she knew who “Joker from Decoto was,” she replied, “There was plenty of Jokers from Decoto.” Maya also denied that she either identified defendant as Joker from Decoto or told Silva that defendant would shoot “a woman with kids.”
DISCUSSION
I. The Motion to Quash the Search Warrant
Defendant renews his challenge to the warrant that authorized the search of his residence and vehicle on April 7, 2004. He complains that the affidavit submitted in support of the search warrant omitted material information. He adds the contention that the warrant was not based on probable cause to believe that evidence would be found in his residence 38 months after the shooting occurred.
A. Omissions from the Affidavit
We first confront defendant’s claim that the search warrant affidavit omitted material information, specifically the repeated failures by Silva and Adams to identify defendant in numerous photo lineups. In his motion to quash the warrant, defendant pointed out that Silva not only failed to identify defendant in photo lineups presented to her after the shooting on February 4, 5, 9, and 16, 2001, and January 23, 2004, but also picked out photographs of others she stated looked similar to the person who shot Lee, and on one occasion stated that a photograph of defendant did not depict the shooter.
At the hearing on defendant’s motion to traverse and quash the search warrant, Deputy James Garrigan of the Alameda County Sheriff’s Department, who became a lead investigator in the Lee homicide case, testified that he prepared and submitted affidavits for arrest and search warrants on April 5, 2004. An affidavit and an “Affidavit Addendum” were presented to the magistrate who issued the search warrant. Deputy Garrigan acknowledged that the affidavits did not mention the failures of Adams and Silva to identify defendant in a photo lineup on February 5, 2001. He also did not include in the affidavits information stated in a police report that on February 9, 2001, Silva identified photo number two in the lineup, of Gilbert Hernandez, as someone who “looks like the guy,” and Adams identified Jason Torr, also known as “Joker,” as “someone who looks very close to one of the subjects he saw at the trailer park.” Garrigan did affirm in the affidavits that Silva and Adams “were unable to make an identification of the subjects of the lineup” on February 5, and 16, 2001, although he did not also include a statement by Silva at the latter lineup that the photos were “not the Joker from Decoto and it did not depict anyone that was there on the night in question.”
We will refer to the affidavit and the Affidavit Addendum collectively as the affidavits.
Information was also included in the affidavits that Silva viewed lineups on February 16, 2001, and January 23, 2004, without making an identification of defendant. Also according to the affidavits, after viewing photos on January 23, 2004, Silva stated to Garrigan that “people in the line up looked familiar,” but she was “unable to make [an] identification.” Excluded from the affidavits was a comment by Silva at the January 23, 2004 lineup that she had previously seen the persons depicted in photos 1 and 2, one of whom was defendant, but they had “nothing to do with the night in question.” Deputy Garrigan testified that he was aware of the omitted information, but did not deliberately delete it from the affidavits.
Defendant also points out that additional information pertinent to the probable cause finding was omitted from the affidavits: a false identification by Adams in March of 2001 of a fellow county inmate as someone who was “at the scene” of the shooting, while he was under the extreme stress of incarceration for the first time; the fact that Lee was heavily under the influence of methamphetamine when he identified the shooter as the Joker from Decoto; and the relationship of Melissa Maya to Jason Torr―he was the father of her child—which may have compromised the reliability of her identification to Silva of defendant as the Joker from Decoto. Defendant argues that the omissions from the affidavit, when viewed in the entirety, resulted in “cloaking Silva in a false aura of veracity,” and rendered the search warrant invalid.
“In Franks v. Delaware (1978) 438 U.S. 154, the United States Supreme Court held that a defendant may challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. When presented with such a challenge, the lower courts must conduct an evidentiary hearing if a defendant makes a substantial showing that: (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth and (2) the affidavit’s remaining contents, after the false statements are excised, are insufficient to justify a finding of probable cause. At the evidentiary hearing, if the statements are proved by a preponderance of the evidence to be false or reckless, they must be considered excised. If the remaining contents of the affidavit are insufficient to establish probable cause, the warrant must be voided and any evidence seized pursuant to that warrant must be suppressed. (Id. at pp. 155-156.)” (People v. Bradford (1997) 15 Cal.4th 1229, 1297.) A defendant who challenges a search warrant based upon a claim that an affidavit contains omissions bears the burden of showing that the omissions were material to the determination of probable cause. (See People v. Wattenberg (1990) 50 Cal.3d 1, 14-15 & fen. 4; see also People v. Navarro (2006) 138 Cal.App.4th 146, 165.)
In People v. Kurland (1980) 28 Cal.3d 376, the California Supreme Court articulated the standards which apply when a search warrant is attacked on the ground that it is incomplete. First, the reviewing court must determine whether any of the asserted omissions are material. (Id. at p. 387.) Omissions are “ ‘material’ ” if the affidavit was rendered substantially misleading, ire., if there was “a substantial possibility [the omitted facts] would have altered a reasonable magistrate’s probable cause determination.” (Id. at p. 385.) If the asserted omissions are deemed immaterial and the affidavit on its face supports probable cause, the warrant usually stands. (Id. at p. 387.) If a material fact is reasonably omitted, no sanction is imposed. (Id. at p. 388.) If a material fact is negligently omitted, the reviewing court should view the affidavit as if it had included that fact and retest it for probable cause. (Ibid.) Lastly, if a fact is recklessly omitted or omitted with an intent to mislead, the warrant should be quashed, regardless of whether the omission is ultimately deemed material. (Id. at p. 390.) (People v. Aston (1985) 39 Cal.3d 481, 497-498; People v. Carpenter (1997) 15 Cal.4th 312, 363.)
“Courts have a ‘strong policy favoring search by warrant rather than upon other allowable basis.’ [Citations.] For this reason, when, as here, the police do obtain a warrant, that warrant is presumed valid. ‘Thus if the defendant attempts to quash a search warrant, as defendant here seeks to do, the burden rests on him.’ [Citation.] A defendant claiming that the warrant or supporting affidavit is inaccurate or incomplete bears the burden of alleging and then proving the errors or omissions.” (People v. Amado (2000) 24 Cal.4th 387, 393; see also People v. Pan ah (2005) 35 Cal.4th 395, 456; People v. Hobbs (1994) 7 Cal.4th 948, 974.) We undertake an independent review of questions of law, but the trial court’s determination of underlying facts is “subject to the deferential substantial evidence standard of review.” (People v. Amado, supra, at p. 393.)
Nothing in the record demonstrates to us that Deputy Garrigan omitted information from the affidavits recklessly or with an intent to mislead. He testified without contradiction or effective challenge to his credibility that he did not deliberately omit the information. Further, while he failed to include some of the facts related to prior failures of the witnesses to identify defendant, other information that compromised the ultimate identifications was disclosed. The mere discrepancy between the actual facts and those recited in an affidavit does not establish reckless disregard for truth; there must be some evidence of officiant's mental state for such a showing, and none is demonstrated in the record before us. (People v. Madrid (1992) 7 Cal.App.4th 1888, 1899.) We conclude that the omissions were at most negligent, not intentional or reckless. (People v. Bradford, supra, 15 Cal.4th 1229, 1300-1301.)
We turn to materiality of the information omitted from the affidavits. “ ‘On review under section 1538.5, facts must be deemed material for this purpose if, because of their inherent probative force, there is a substantial possibility they would have altered a reasonable magistrate’s probable cause determination.’ [Citation.] Kurland cited with approval an earlier case that indicated omitted facts were material if their omission (1) substantially interfered with (or could have an adverse effect on) the magistrate’s inference-drawing process, or (2) could have negated the magistrate’s finding of probable cause, or (3) might have caused the magistrate to find an informant unreliable and his information untrustworthy.” (People v. Liam (2000) 85 Cal.App.4th 1289, 1298.)
Upon review of the record we find, as did the trial court, that the magistrate would not have been misled by the omissions. We recognize that the failure of Silva and Adams to make identifications during the course of the investigation is more egregious than portrayed in the affidavits, but Deputy Garrigan did disclose to the magistrate the essential fact that until April of 2004 the witnesses were uncooperative, provided misleading information, and repeatedly declined to identify defendant. The affidavits also furnished information that divulged the persuasive reasons for the failure of the witnesses to identify previously defendant as the shooter: Silva and Adams were aware of defendant’s status as a confirmed Norteño gang member who made threats to find Silva to prevent her from implicating him in the murder; they also received warnings to refrain from identifying defendant or making further inquiries about the shooting. Silva specifically informed Deputy Garrigan in March of 2004, that she failed to identify defendant in the past because she had been “holding back” due to fear “for her safety.” The magistrate was justified in finding that the explanation for the disingenuousness of the witnesses in the past was their legitimate fear of retaliation from defendant. The disclosure of the omitted additional instances in which they failed to identify defendant in photo lineups or gave misleading identification information would not have altered the magistrate’s justifiable conclusion that current identifications were credible, despite the prior misrepresentations by the witnesses.
Further, additional information stated in the affidavits―much of it not admitted as evidence at trial―convincingly corroborated the witnesses’ ultimate identification of defendant as the shooter: confidential informants told Sergeant Dudek that defendant convinced Romero―with a promise to forgive a debt she owed him for drugs―to entice Lee to come to the Paradise Trailer Park so defendant could punish him “over a drug debt”; other informants advised Garrigan that they heard from defendant or those in his circle of friends that he had killed Lee over a drug debt, and was seeking to locate Silva to prevent her from identifying him as the shooter; and the statements by Deputy Slofkosky that Lee identified the shooter as Joker from Decoto, as well as considerable information that defendant was that person. Thus, omission of the cumulative information did not mislead the magistrate, and inclusion of it in the affidavit would not have negated probable cause. (People v. Bradford, supra, 15 Cal.4th 1229, 1298-1299; People v. Garland, supra, 28 Cal.3d 376, 393-394; People v. Sousa (1993) 18 Cal.App.4th 549, 562-563.) We find that the omissions were not material.
B. The Finding of Probable Cause
Defendant also claims that the search warrant “is fatally flawed for a substantially more compelling reason” than the omissions from the affidavit: the lack of probable cause to believe that evidence pertinent to the shooting in February of 2001, would be found in his home at 486 Blanche Street in Hayward in April of 2004. Defendant asserts that not only did more than three years pass from the shooting to the execution of the search warrant, but the investigating officers also knew that he no longer occupied the same residence. He maintains that the information offered in support of the search was not only “stale,” but also failed to provide any nexus between the residence for which the search was authorized and any evidence of the crime. Defendant argues: “There was never any probable cause to believe that any of the items enumerated in the search warrant would be found at 486 Blanche Street.”
When a challenge is presented to the validity of a search warrant, the court must “determine whether, under the ‘totality of the circumstances’ presented in the search warrant affidavit and the oral testimony, if any, presented to the magistrate, there was ‘a fair probability’ that contraband or evidence of a crime would be found in the place searched pursuant to the warrant.” (People v. Hobbs, supra, 7 Cal.4th 948, 975.) “ ‘The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041.)
“In reviewing the magistrate’s determination to issue the warrant, it is settled that ‘the warrant can be upset only if the affidavit fails as a matter of law [under the applicable standard announced in Illinois v. Gates [(1983)] 462 U.S. [213,] 238] to set forth sufficient competent evidence supportive of the magistrate’s finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony. [Citations.]’ (Skelton v. Superior Court (1969) 1 Cal.3d 144, 150.)” (People v. Hobbs, supra, 7 Cal.4th 948, 975.) “The magistrate’s determination of probable cause is entitled to deferential review. (Illinois v. Gates, supra, at p. 236; see Shelton v. Superior Court, supra, at p. 153 [magistrate’s determination ‘is to be sustained by reviewing courts as long as there was a “substantial basis” for his conclusion that the legitimate objects of the search were “probably present” on the specified premises’].)” (People v. Kraft, supra, 23 Cal.4th 978, 1041.) “A court reviewing the issuance of a search warrant defers to the magistrate’s finding of probable cause unless the warrant is invalid as a matter of law.” (Wood v. Emerson (2007) 155 Cal.App.4th 1506, 1520.)
The lapse of over three years from the shooting to the search of defendant’s home also implicates the established rule that, “[T]here must be probable cause to believe that the material sought to be seized will be on the premises to be searched when the warrant is served. [Citation.] The general rule is that information that is remote in time may be deemed to be stale and therefore unreliable. [Citation.] [¶] However, the question of staleness depends on the facts of each case.” (People v. Gibson (2001) 90 Cal.App.4th 371, 380, italics added.) “ ‘[T]he vitality of probable cause cannot be quantified by simply counting the number of days between the occurrence of the facts supplied and the issuance of the affidavit. [Citation.] Time factors must be examined in the context of a specific case and the nature of the crime under investigation.’ (United States v. Koelling (8th Cir. 1993) 992 F.2d 817, 822.)” (People v. Hefner (1994) 21 Cal.App.4th 761, 782-783.)
As a threshold matter, we consider the issue of forfeiture. Defendant acknowledges that he did not challenge the warrant on the ground that the affidavit failed to furnish probable cause “due to the delay between the time of the offense and the time of the search,” but complains that his trial counsel was ineffective for failing to “raise this obviously meritorious ground for quashing the warrant.” We confront the claim of lack of probable cause to resolve or avert the issue of ineffective assistance of counsel. (People v. Reyes (2008) 165 Cal.App.4th 426, 434; People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
We agree with defendant that the three-year passage of time negates probable cause to believe that some of the items sought in the warrant would still be found on the premises. Without any specific information mentioned in the affidavit that the clothes worn by defendant on the night of the shooting or a specific reference to the victim’s drug debt continued to be present at 486 Blanche Street, we are not persuaded that there was a fair probability those items would still be found in the place searched pursuant to the warrant after an interval of more than three years.
The weapon used to shoot Lee is another matter. A gun may be a valuable item to its owner that is kept indefinitely and moved from place to place with other personal belongings. The affidavit also noted that defendant had prior arrests for “firearm violations.”
Even more likely to be present on the premises despite the lapse of time―and which were in fact seized during the search―were those items of evidence that connected defendant to the Decoto Norteño gang and corroborated his nickname or status as the “Joker.” The affidavits contained information to support the belief that defendant remained a member of the “Decoto XIV” criminal street gang and continued to be known as the Joker long after the shooting. Thus, Deputy Garrigan was entitled to draw the reasonable inference based on his experience as a law enforcement officer that defendant may still have in his possession items that designated and commemorated his position, status and moniker as a member of the Decoto gang. (See People v. Nicholls (2008) 159 Cal.App.4th 703, 711-712.) If circumstances exist “that would justify a person of ordinary prudence to conclude” that evidence “had persisted from the time of the stale information to the present, then the passage of time has not deprived the old information of all value.” (People v. Mike sell (1996) 46 Cal.App.4th 1711, 1718, citing Alexander v. Superior Court (1973) 9 Cal.3d 387, 393.) Further, evidence that proved defendant was a Decoto gang member known by the nickname Joker was highly significant in the case. We find that the affidavits furnished information that was not stale and supported the finding of probable cause to issue the warrant. (People v. Holland (2003) 110 Cal.App.4th 1646, 1652; People v. Mike sell, supra, at p. 1718.) Hence, trial counsel was not incompetent for failing to raise an objection to the search warrant that would have been futile. (People v. Mendoza (2000) 24 Cal.4th 130, 171.)
II. The Admission of the Victim’s Hearsay Statements
Over defendant’s hearsay objection, the trial court admitted testimony by Deputy Slofkosky that recounted the statements made to him by Lee at the scene of the shooting. In response to questions by Deputy Slofkosky, Lee stated that he had been shot by “Joker,” who was “from Decoto.” Lee also told the deputy that the reason for the shooting was his failure to repay a debt. Defendant renews his contention that the statements were all inadmissible hearsay that do not qualify for admission under the spontaneous statement exception to the hearsay rule. He adds the argument that admission of the “testimonial hearsay” violated his right to confrontation as set forth in the United States Supreme Court decision in Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
A. The Admissibility of the Evidence as Spontaneous Statements
We first consider defendant’s assertion that the victim’s statements to Deputy Slofkosky were not spontaneous statements under Evidence Code section 1240, but rather were made in response to police questioning designed to “investigate the circumstances” of the crime. He claims that the victim’s responses to police questioning were therefore “entirely inadmissible” at trial.
All further statutory references are to the Evidence Code unless otherwise indicated.
“To qualify for admission under the spontaneous statement exception to the hearsay rule, ‘an utterance must first purport to describe or explain an act or condition perceived by the declaration. (Avid. Code, § 1240, sud. (a).) Secondly, the statement must be made spontaneously, while the declaration is under the stress of excitement caused by the perception. (Id., sud. (b).)’ (People v. Farmer (1989) 47 Cal.3d 888, 901 (Farmer), disapproved on other grounds in People v. Laidlaw [(2000)] 22 Cal.4th [690,] 724, fen. 6.) For purposes of the exception, a statement may qualify as spontaneous if it is undertaken without deliberation or reflection. (See Farmer, supra, at p. 903.)” (People v. Morrison (2004) 34 Cal.4th 698, 718.) “ ‘[T]he basis for the circumstantial trustworthiness of spontaneous utterances is that in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker’s actual impressions and belief.’ ” (People v. Saratoga (2007) 152 Cal.App.4th 1584, 1588.) “ ‘ “The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is... not the nature of the statement but the mental state of the speaker. The nature of the utterance―how long it was made after the startling incident and whether the speaker blurted it out, for example―may be important, but solely as an indicator of the mental state of the declaration.... [U]ultimately each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter.” ’ (People v. Royal (1998) 19 Cal.4th 481, 516.)” (People v. Williams (2006) 40 Cal.4th 287, 318.)
“Evidence Code section 1240 provides: ‘Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declaration; and [¶] (b) Was made spontaneously while the declaration was under the stress of excitement caused by such perception.’ ” (People v. Roldan (2005) 35 Cal.4th 646, 714.)
“The decision to admit evidence under Evidence Code section 1240 is reviewed for abuse of discretion. (People v. Phillips (2000) 22 Cal.4th 226, 236.) ‘Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.] In performing this task, the court “necessarily [exercises] some element of discretion....” ’ ” (People v. Saratoga, supra, 152 Cal.App.4th 1584, 1588-1589.) “That standard applies to questions about the existence of the elements necessary to satisfy the hearsay exception.” (People v. Kiwanis (2004) 119 Cal.App.4th 770, 787.)
The overriding consideration here is that when the victim’s statements were made to Deputy Slofkosky, the stress of excitement was pervasive. Lee had been shot only moments before. He was lying on the ground at the scene of the shooting, mortally wounded, gasping for breath, and barely clinging to consciousness. The deputy was forced to shake Lee before he was able to elicit a response. The circumstances could hardly have been more rife with tension, and the victim’s mental state was entirely antithetical to any capacity for deliberation or reflection. (Farmer, supra, 47 Cal.3d 888, 904; People v. Saratoga, supra, 152 Cal.App.4th 1584, 1590; People v. Pedro (2007) 147 Cal.App.4th 784, 791-792.)
Defendant maintains that despite the dire and desperate state of affairs enveloping the victim, “focused police questioning” took the statements outside the scope of section 1240. We disagree; questioning does not necessarily negate spontaneity. “The fact that a statement is made in response to questioning is one factor suggesting the answer may be the product of deliberation, but it does not ipso facto deprive the statement of spontaneity.” (Farmer, supra, 47 Cal.3d 888, 903-904, disapproved on other grounds by People v. Laidlaw, supra, 22 Cal.4th 690, 724, fen. 6.) (People v. Saratoga, supra, 152 Cal.App.4th 1584, 1590.) The California Supreme Court has “acknowledged that responses to detailed questioning are likely to lack spontaneity,” but has also “recognized that an answer to a simple inquiry may be spontaneous. [Citation.] The trial court must consider each fact pattern on its own merits and is vested with reasonable discretion in the matter. [Citation.]” (People v. Morrison, supra, 34 Cal.4th 698, 718-719.)
The nature of Deputy Slofkosky’s inquiry was far from an extensive, detailed examination. The deputy asked the victim only three essential questions designed to obtain fundamental information about the event that was necessary to an appropriate law enforcement response to the ongoing emergency: who shot him; where the shooter lived, and why the shooting occurred. The replies by Lee were impromptu and cursory rather than thoughtful or explanatory. (People v. Brenn (2007) 152 Cal.App.4th 166, 173.) The questions were not suggestive; the responses were not self-serving. (Farmer, supra, 47 Cal.3d 888, 904.) The shooter and the ostensible reason for the crime were communicated, nothing more. The trial court was justified in concluding that although Lee was questioned, he offered the brief, spontaneous recitation of critical facts while he remained thoroughly under the influence of the nervous excitement caused by the trauma of the shooting. (People v. Princeton (2005) 129 Cal.App.4th 738, 753; People v. Anthony O. (1992) 5 Cal.App.4th 428, 436.) The evidence falls within the exception to the hearsay rule for spontaneous statements.
B. Defendant’s Right to Confrontation
We proceed to the related argument that admission of Deputy Slofkosky’s testimony violated defendant’s right to confrontation under the Sixth and Fourteenth Amendments to the United States Constitution and that his counsel was ineffective in failing to raise a confrontation clause objection. “The Sixth Amendment allows admission of a witness’s out-of-court testimonial statements against a criminal defendant if the witness is present at trial for cross-examination. If the witness is unavailable, the testimonial statements are admissible only if the defendant had a prior opportunity to cross-examine. (Giles v. California (2008) 554 U.S. ___ [128 S.Ct. 2678, 2682-2683] (Giles).)” (People v. Censorious (2008) 165 Cal.App.4th 603, 611.) “In Crawford, the United States Supreme Court held that the confrontation clause of the federal Constitution bars the admission of out-of-court “ ‘testimonial’ ” statements except when the declaration is unavailable and the defendant had a prior opportunity to cross-examine the declaration. (Crawford, supra, 541 U.S. at pp. 53-54.) The court overruled the former rule, announced in Ohio v. Roberts (1980) 448 U.S. 56, 66, that hearsay statements of unavailable witnesses were admissible without violating the confrontation clause if those statements fell within a firmly rooted hearsay exception or contained particularized guarantees of trustworthiness.” (People v. Parrish (2007) 152 Cal.App.4th 263, 271-272.)
Even if we assume that defendant did not forfeit the right to assert a confrontation claim by failing to object on that specific ground at trial or by rendering the declaration unavailable by killing him with the intent of making him unavailable to testify at trial, we find that the statements to Deputy Slofkosky were not testimonial. (See Giles, supra, 554 U.S. ___ [128 S.Ct. 2678]; People v. Partisan (2005) 37 Cal.4th 428, 436; People v. Monterrey (2004) 34 Cal.4th 743, 763; People v. Censorious, supra, 165 Cal.App.4th 603, 611.) While the Crawford opinion failed to provide a definition of testimonial statements, “in Davis v. Washington (2006) 547 U.S. 813 [Davis], the high court gave this explanation: ‘Statements are non testimonial 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. They are testimonial 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.’ (Id. at p. 822.)” (People v. Romero (2008) 44 Cal.4th 386, 421-422.) The California Supreme Court has added that “statements are not testimonial simply because they might reasonably be used in a later criminal trial. Rather, a critical consideration is the primary purpose of the police in eliciting the statements. Statements are testimonial if the primary purpose was to produce evidence for possible use at a criminal trial; they are non testimonial if the primary purpose is to deal with a contemporaneous emergency such as assessing the situation, dealing with threats, or apprehending a perpetrator.” (Id. at p. 422; citing People v. Cage (2007) 40 Cal.4th 965, 991.)
The “basic principles” derived from Davis to determine whether a statement is testimonial were enumerated in People v. Cage, supra, 40 Cal.4th 965, 984: “First, as noted above, the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony―to establish or prove some past fact for possible use in a criminal trial. Fourth, the 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. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, 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.” (Fons. omitted.)
Upon examination of the totality of circumstances surrounding the statements we find them non testimonial within the meaning of Crawford. Deputy Slofkosky responded to an emergency call of a shooting and discovered the victim still at the scene, near death, bleeding profusely. The context in which the statements were gathered was strikingly distinctive from the formality and solemnity characteristic of testimony at trial. (People v. Cage, supra, 40 Cal.4th 965, 986-987; People v. Brenn, supra, 152 Cal.App.4th 166, 178.) “Preliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an ‘interrogation.’ Such an unstructured interaction between officer and witness bears no resemblance to a formal or informal police inquiry that is required for a police ‘interrogation’ as that term is used in Crawford. (See Crawford, supra, [541 U.S. at pp. 51-52]; see also Hammond v. State (Ind. 2004) 809 N.E.2d 945, 952.) [¶] Moreover, it is difficult to identify any circumstances under which a section 1240 spontaneous statement would be ‘testimonial.’ ” (People v. Corella (2004) 122 Cal.App.4th 461, 469.)
We are also persuaded that the few questions and answers were designed primarily to deal with the existing emergency, not to establish or prove past facts for prosecutor use. (Davis, supra, 547 U.S. 813, 828.) The officer was attempting to ascertain the essential nature of the situation. (People v. Pedro, supra, 147 Cal.App.4th 784, 793.) He did not solicit a description of the events or seek to discover any details of the shooting. The information gathered by Deputy Slofkosky assisted the immediate law enforcement response to the ongoing crisis. (People v. Romero, supra, 44 Cal.4th 386, 422; People v. Pedro, supra, at pp. 793-794.) Identification of the suspect and discovery of his possible whereabouts could have facilitated his prompt apprehension by the police, and also served to determine if the shooter continued to pose an immediate danger to the public. An inquiry into the reason for the shooting was designed to learn if there may be other potential victims in need of urgent protection from the shooter. The superficiality of the momentary inquiry by the deputy indicates that he was seeking to aid the victim and respond to the current situation, not to facilitate a subsequent conviction in a court of law. (People v. Brenn, supra, 152 Cal.App.4th 166, 177.) We find that admission of the victim’s non testimonial statements to Deputy Slofkosky did not violate defendant’s right to confrontation, and hence we find no failure by counsel to adequately represent defendant. (People v. Romero, supra, 44 Cal.4th 386, 421-422; People v. Romero (2007) 149 Cal.App.4th 29, 39.)
III. The Admission of Gang Evidence
Defendant next complains that the trial court erred by admitting evidence of his membership in the Decoto Norteño street gang, both from Ralph Castillo and in the form of expert opinion testimony, to prove motive and identity. He argues that the prosecution did not allege a gang membership enhancement, and proof of identity or motive could have come from other sources, “without the additional prejudicial effect of the gang evidence.”
“In general,” the courts “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.” (Id., sud. (a).) The subject matter of the culture and habits of criminal street gangs, of particular relevance here, meets this criterion.’ ” (People v. Gonzalez (2006) 38 Cal.4th 932, 944; see also People v. Lindberg (2008) 45 Cal.4th 1, 46.) “Since at least 1980, our courts have recognized that evidence of gang sociology and psychology is beyond common experience and thus a proper subject for expert testimony.” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)
However, “[g]riven its highly inflammatory impact, the California Supreme Court has condemned the introduction of such evidence if it is only tangentially relevant to the charged offenses. [Citation.] In fact, in cases not involving gang enhancements, the Supreme Court has held evidence of gang membership should not be admitted if its probative value is minimal. [Citation.] ‘Gang evidence should not be admitted at trial where its sole relevance is to show a defendant’s criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense.’ ” (People v. Barranquilla (2007) 149 Cal.App.4th 214, 223.)
“Thus, as general rule, evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative. [Citation.] Consequently, gang evidence may be relevant to establish the defendant’s motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect. [Citations.] ‘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. [Citations.]’ [Citation.] Nonetheless, even if the evidence is found to be relevant, the trial court must carefully scrutinize gang-related evidence before admitting it because of its potentially inflammatory impact on the jury.” (People v. Barranquilla, supra, 149 Cal.App.4th 214, 223-224.)
“ ‘Trial courts exercise discretion in determining both the admissibility of evidence under Evidence Code section 352 [citation] and a witness’s expert status.’ ” (People v. Gonzalez, supra, 38 Cal.4th 932, 944.) “ ‘The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court’s decision exceeds the bounds of reason. [Citation.]’ [Citation.] Evidence of gang sociology and psychology is beyond common experience and thus a proper subject for expert testimony. (Id. at pp. 1370-1371.)” (People v. Martinez (2003) 113 Cal.App.4th 400, 413.)
The evidence of defendant’s affiliation and status with the Decoto Norteño gang was probative in the present case because the identity of the shooter was the crucial issue in the case. The victim identified the shooter only as the “Joker from Decoto.” Defendant’s membership in the Decoto gang furnished important context and corroboration for the identification of him as the person with the gang nickname of “Joker from Decoto.” Without the evidence that defendant belonged to the Decoto Norteño street gang and was known by the gang moniker Joker, the identification of him as the shooter would have been considerably and inappropriately weakened.
The gang affiliation evidence was also relevant to establish motive in two ways. First, it effectively corroborated Lee’s statement and other evidence that the victim was shot by defendant for nonpayment of a drug debt. Defendant’s position as a Decoto gang member who had others sell drugs for him as part of the Norteño criminal enterprise strengthened the reason for the killing that was proposed by the prosecution. Second, evidence that failure to pay a drug debt is considered a disrespectful act in the Norteño culture that punishes such transgressions with violence substantiated the motive for the shooting that may have otherwise appeared inexplicable. (People v. Gonzalez, supra, 126 Cal.App.4th 1539, 1551; People v. Roguing (1994) 31 Cal.App.4th 1355, 1384.) “Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related. (See, e.g., People v. Faustino (1982) 135 Cal.App.3d 129, 140 [motive].) ‘ “[B]because a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.” [Citations.]’ (People v. Gonzalez[, supra, ] 126 Cal.App.4th 1539, 1550; see also People v. Garcia (2008) 168 Cal.App.4th 261, 275; People v. Martinez[, supra, ] 113 Cal.App.4th 400, 413; People v. Bipedal (2008) 167 Cal.App.4th 25, 35.)” (People v. Shamanic (2009) 172 Cal.App.4th 1148, 1167-1168.)
Finally, but perhaps most importantly, defendant’s status as an established, high-ranking gang member was also critical to account for the failure of Silva, Adams and Castillo to assist the investigation by identifying defendant until three years after the shooting. “Gang evidence is also relevant on the issue of a witness’s credibility. [Citations.]” (People v. Shamanic, supra, 172 Cal.App.4th 1148, 1168.)Fear of reprisal was stated by the witnesses as a reason for the delay in coming forward with their identifications of defendant. His gang affiliation confirmed and explained the reluctance of the witnesses to identify him until they felt that their reasons for presenting truthful testimony outweighed their justifiable fears. Evidence of gang retribution was relevant to “help the jury understand discrepancies between some of the witnesses’ statements to the police and their testimony at trial. Such evidence generally is admissible to demonstrate that a witness may be afraid to testify truthfully because it is relevant to that witness’s credibility, particularly in the face of prior inconsistent statements.” (People v. Martinez, supra, 113 Cal.App.4th 400, 413-414.) The gang evidence thus assisted the jury in determining which version of events was truthful: the initial failure of the witnesses to identify defendant and―in the case of Castillo―to provide evidence of defendant’s admissions, or their testimony at trial. (People v. Gonzalez, supra, 38 Cal.4th 932, 946.) Further, mere evidence that defendant was a drug dealer would not have carried the same weight in explicating the motive for the crime and the reason for the unwillingness of the witnesses to more readily implicate him in the shooting. In short, the gang evidence was highly probative on several levels and for several reasons.
We recognize the inherent prejudicial impact of the gang affiliation evidence, but we find that the considerable probative value of the evidence justified its admission in the case before us. “ ‘Case law holds that where evidence of gang activity or membership is important to the motive, it can be introduced even if prejudicial. [Citations.]’ (People v. Martin (1994) 23 Cal.App.4th 76, 81.)” (People v. Martinez, supra, 113 Cal.App.4th 400, 413; see also People v. Runes (1994) 23 Cal.App.4th 1506, 1518; People v. Woods (1991) 226 Cal.App.3d 1037, 1054; People v. Burns (1987) 196 Cal.App.3d 1440, 1456; People v. Harris (1985) 175 Cal.App.3d 944, 957; People v. Faustino, supra, 135 Cal.App.3d 129, 140). Defendant’s membership in the Decoto Norteño gang may have evoked an emotional bias against him, but was only slightly inflammatory in comparison with the charged murder, and was ameliorated by the trial court’s limiting instruction. (People v. Demetrius (2006) 39 Cal.4th 1, 19.) We conclude that the trial court did not abuse its discretion by admitting the gang affiliation evidence in its entirety. (People v. Gonzalez, supra, 38 Cal.4th 932, 946; People v. Martinez, supra, 113 Cal.App.4th 400, 414; People v. Runes, supra, 23 Cal.App.4th 1506, 1518-1519.)
IV. The Admission of Melissa Maya’s statement to Audra Silva
Defendant presents several additional objections to admission of evidence at trial that also implicate the trial court’s discretion to exclude unduly prejudicial evidence under section 352, the first of which is that the court erroneously admitted hearsay testimony from Audra Silva of a statement made to her by Melissa Maya. Silva testified that shortly after the shooting she obtained confirmation from Maya of defendant’s identity as the Joker. Silva then testified over a hearsay objection by the defense that Maya also told her “that she knows who Joker from Decoto is and that she owed him money in the past and that... he’ll shoot anybody, like, he doesn’t care if you’re a mother or if you have kids or whatever. He’ll shoot you if you owe him money.” Silva considered the statement by Maya to be “a warning” to her. Defendant claims that Silva’s testimony was a “hearsay report of a pejorative and prejudicial assault” on his “character on the basis that it may have had some impact on Silva’s subsequent conduct.” He maintains that the evidence was not admissible as a threat to a prospective witness, but “rather was a clear character assassination” which should have been excluded under section 352.
The testimony was accompanied by the trial court’s admonition to the jury to consider the evidence only to show the state of mind of the witness, not as “substantive evidence against the defendant” or to prove any “consciousness of guilt on the part of the defendant.”
As a threshold matter, we observe that defendant failed to present a section 352 objection to the evidence at trial. While the record indicates that a hearsay objection was made, the defense never requested the court to undertake a section 352 analysis of the proffered testimony and exclude the evidence as more prejudicial than probative. Although we will resolve the substance of defendant’s section 352 claim to deal with his associated contention of inadequate assistance of counsel, without an objection below he cannot now present the procedural complaint that the record fails to reflect the trial court’s balancing of “prejudicial effect versus probative value” of the evidence. (People v. Stewart (2004) 33 Cal.4th 425, 493; People v. Box (2000) 23 Cal.4th 1153, 1200; People v. Legendarily (1984) 37 Cal.3d 573, 588-589.) Without a specific section 352 objection, the court had no reason to engage in the section 352 balancing process on the record before deciding to admit the evidence.
When we consider the merits of the issue, we find no error in the trial court’s admission of the evidence. “It is within a trial court’s discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. (Avid. Code, § 352.)” (People v. Mendoza (2007) 42 Cal.4th 686, 699.) “The weighing process under [Evidence Code] section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) “The court’s exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value.” (People v. Brown (1993) 17 Cal.App.4th 1389, 1396.) “We will reverse only if the court’s ruling was ‘arbitrary, whimsical, or capricious as a matter of law. ’ ” (People v. Branch (2001) 91 Cal.App.4th 274, 282.)
“Section 352 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.’ ” (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457.)
As we have indicated, evidence that the witnesses were aware of defendant’s status as a Decoto Norteño gang member was relevant to explain their reluctance to identify him as the shooter. The warning received by Silva from Maya was even more directly compelling evidence why the witness was fearful of defendant and therefore declined to cooperate with the police.
As we examine the prejudice associated with the evidence, we note that the statement by Maya was damaging to the defense, but not prejudicial in the sense contemplated by section 352. “ ‘ “The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against... [one party] as an individual and which has very little effect on the issues.” ’ ” (People v. Marceau (1993) 6 Cal.4th 140, 178, italics added; see also People v. Mendoza, supra, 42 Cal.4th 686, 699; People v. Killebrew (2002) 103 Cal.App.4th 644, 650.) “ ‘In applying section 352, “prejudicial” is not synonymous with “damaging.” ’ ” (People v. Callahan (1999) 74 Cal.App.4th 356, 371.) Maya’s statement to Silva was very probative in the case, and defendant’s claim that the evidence “attributed to him a violent and pitiless character” is rebutted by the repetition of effective limiting instructions given to the jury by the trial court to consider the evidence “just for the witness’s state of mind,” not as substantive character evidence of defendant’s guilt. (People v. Mendoza, supra, 42 Cal.4th 686, 699.) The jury is presumed to have adhered to the admonitions. (People v. Cheer (1998) 68 Cal.App.4th 1009, 1023.) Upon consideration of both the probative value of the evidence and its prejudicial effect, we find that the trial court did not abuse its discretion by admitting the evidence of Maya’s statement to Silva. Therefore, contrary to defendant’s claim, counsel was not ineffective for failing to make a section 352 objection. (People v. Williams (1997) 16 Cal.4th 153, 206; People v. Freeman (1994) 8 Cal.4th 450, 512.)
V. The Admission of Photographs of Defendant
Next, defendant argues that admission of three vintage 1993 or 1994 photographs (Exhibit 62) of him dressed in an “unmistakable state prison blue outfit” violated his rights to due process and a fair trial. The photographs were seized from defendant’s residence during the search pursuant to the warrant, and contained images that associated defendant with the Decoto Norteño gang. Defendant repeats his assertion made at trial that the photographs had “no relevance to this case,” and effectively informed the jury that he “had previously been convicted of a felony and sentenced to prison.” He points out that proof of his Joker nickname and affiliation with the Decoto gang was established by other evidence offered at trial, so the photographs were unnecessary and unduly prejudicial to the defense.
We agree with defendant that the photographs were cumulative evidence of his gang membership and nickname, but we nevertheless do not find that the evidence was so prejudicial that admission of it constituted an abuse of discretion. Defendant’s status as a Decoto gang member with the nickname Joker was a fact essential to identification of him as the person who shot Lee. The defense acknowledged that defendant was known by the nickname Joker, but continued throughout the trial to contest that he was the Decoto gang member known as the Joker who was identified by Lee. The photographs thus corroborated other evidence that established defendant’s identity as the shooter. The probative value of the photographs was not great, but neither was the prejudice associated with them. Upon examination, the trial court found that the photographs would not identify defendant as a state prison inmate to the jury, and were not otherwise inflammatory. The photographs were also cropped by the prosecution as directed by the court to eliminate background that might indicate prison surroundings. Thus, admission of the photographs did not violate section 352 or defendant’s due process rights. (See People v. Stewart, supra, 33 Cal.4th 425, 480-481.)
VI. The Admission of Ralph Castillo’s Testimony that Defendant was in Possession of Handguns
Defendant also challenges the admission of testimony by Ralph Castillo that on a few occasions between February and May of 2001, he observed defendant in possession of two handguns, a.38 caliber revolver and a “357 chrome one.” Defendant claims “there was no evidence whatsoever that the gun Castillo claimed to have seen in appellant’s possession some two or three months after the shooting had any connection whatsoever to the Lee murder.” Defendant dismisses the relevance of the evidence by asserting that “there was virtually no probative value” in his possession of guns that were not specifically associated with the shooting. He adds that the testimony portrayed him to the jury as a “violent, gun-toting hardened criminal,” and thereby created an “adverse character inference from his possession of a weapon” that he was “more likely guilty of the Lee murder.”
The relevance of Castillo’s observation of defendant’s possession of.38 and.357 handguns within months of the shooting comes from forensic evidence that indicated a weapon of the same caliber was used to shoot Lee. Defendant’s possession of guns of the same caliber as the murder weapon raises at least some inference of his guilt. We acknowledge that the probative value of Castillo’s testimony was not compelling, but it sufficed to justify admission of the evidence. We also agree with defendant that evidence of his possession of handguns was prejudicial within the meaning of section 352. Given the other evidence of his gun use, however, we do not consider Castillo’s testimony to be unduly inflammatory. While we may not have made the same ruling on the admissibility of the evidence if presented with the question in the first instance, in reviewing the trial court’s exercise of broad discretion under section 352 an appellate court is not authorized to substitute its judgment for that of the trial court. (Ajax, Inc. v. E*Trade Group, Inc. (2005) 135 Cal.App.4th 21, 44; Bethune v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 989.) The trial court’s admission of Castillo’s testimony was not so arbitrary, whimsical, or capricious as a matter of law that it reaches the level of abuse of discretion.
VII. The Admission of Prior Statements of the Witnesses
We reach defendant’s final claim of erroneous admission of evidence: that portions of the testimony of Castillo were inadmissible as prior consistent statements. Near the end of trial defendant moved to strike testimony of extra judicial statements made by Castillo, Silva, and Adams to police officers on the ground that they did not qualify as prior consistent statements pursuant to section 791, subdivision (b). Counsel argued that the statements by the witnesses were made after “motive and bias arose” with their arrests and incarcerations, and thus did not fall within the statutory definition of prior consistent statements. After a lengthy hearing the motion to strike was denied.
On appeal, defendant has limited his objection to specific testimony elicited from Castillo on redirect examination in which he was asked about the accuracy of prior statements he made to Sergeant Dudek during an interview at the Sheriff’s Department on September 14, 2005. Defendant particularly complains of Castillo’s recitation of a conversation in which defendant discussed the “motivation for killing” the victim: that Lee was “selling dope” for him and “owed some money and wasn’t getting back to him,” so he “felt disrespected.” Castillo admitted that he previously testified “on the stand” that defendant did not tell him Lee was “selling for Joker,” but asserted he was “in error,” and that he truthfully told Sergeant Dudek in his statement that Lee owed defendant $2,000 for drug sales. Defendant argues that the statements to Sergeant Dudek were made “long after Castillo’s self-interest and motive to fabricate had arisen,” and admission of the statements provided the witness “with an undeserved aura of credibility, requiring reversal.”
“Prior statements consistent with testimony are, as an exception to the hearsay rule, admitted for the purpose of rehabilitation following an attempt to impeach the testimony.” (People v. Gentry (1969) 270 Cal.App.2d 462, 473.) “Evidence Code section 1236 authorizes the admission of hearsay if the statement is consistent with a witness’s trial testimony and is offered in compliance with Evidence Code section 791. Evidence Code section 791, subdivision (b) allows a prior consistent statement if offered after ‘[a]n express or implied charge has been made that [the witness’s] testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.’ ” (People v. Farina (2002) 28 Cal.4th 107, 158, italics added; see also People v. Colin (1998) 18 Cal.4th 297, 320-321.) Section 791, subdivision (b), “allows admission of prior consistent statements only when ‘the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.’ ” (People v. Jones (2003) 30 Cal.4th 1084, 1106.)
We preface our discussion by observing that much of the content of Castillo’s interview with Sergeant Dudek that has been cited by defendant is essentially incomprehensible, due to the failure of the witness to speak in anything approaching understandable English language sentences. As to that portion of the statements, we find that any admission of evidence could not possibly have been prejudicial to defendant since it was largely incomprehensible to any listener.
The remainder of the challenged testimony, and specifically Castillo’s statements that defendant admitted killing Lee for failure to repay a $2,000 drug debt, was properly admitted by the trial court as evidence of prior consistent statements. The defense contested the credibility of Castillo’s testimony, along with that of Silva and Adams, by at least implying that they were fabricating evidence to obtain favorable plea agreements or treatment in their own criminal cases. This, in turn, entitled the prosecution to adduce statements by the witnesses that were consistent with their trial testimony to rebut the implied charge of recent fabrication. (People v. Des antis (1992) 2 Cal.4th 1198, 1228-1229; People v. Andrews (1989) 49 Cal.3d 200, 210; People v. Wadsworth (1988) 45 Cal.3d 984, 1015; People v. Bun yard (1988) 45 Cal.3d 1189, 1209; People v. Utter (1972) 24 Cal.App.3d 535, 553.) Evidence of “prior extra judicial statements of a witness consistent with his testimony on the stand” are admissible under the hearsay exception “that such evidence is proper to rebut inferences created by the cross-examination of the witness and to rehabilitate his evidence following attempts to impeach him by endeavoring to show that his testimony is actuated by base or ulterior motives, or that his testimony in court is of recent fabrication.” (People v. Nobles (1941) 44 Cal.App.2d 422, 424-425.)
The implicit charge by the defense that the witnesses had motives to testify untruthfully due to their arrests entitled the prosecution to present evidence to establish that the witnessed testimony was consistent with statements given after their arrests, but before any “deal” was consummated to obtain testimony, “that is, before the subsequent, specific motive to fabricate arose.” (People v. Andrews, supra, 49 Cal.3d 200, 210; see also People v. Hill house (2002) 27 Cal.4th 469, 491.) “[A] prior consistent statement is admissible if it was made before the existence of any one or more of the biases or motives that, according to the opposing party’s express or implied charge, may have influenced the witness’s testimony.” (People v. Hayes (1990) 52 Cal.3d 577, 609.) A witness does not have “motive to minimize his potential penal liability” as soon as he is arrested, but rather the “focus under Evidence Code section 791 is the specific agreement or other inducement suggested by cross-examination as supporting the witness’s improper motive.” (People v. Roguery (1992) 4 Cal.4th 599, 630.) All of the statements were made before any of the witnesses entered into agreements with the prosecution. In fact, Castillo testified without contradiction or dispute that he neither requested nor was ever told that he would receive any benefits in his pending cases in exchange for his testimony. We conclude that the trial court properly admitted the consistent statements of Castillo―and those of Silva and Adams―that were made before any plea bargain or other agreement was reached and thus before the existence of one of the grounds of bias or motive to fabricate asserted by the defense. (People v. Jones, supra, 30 Cal.4th 1084, 1107; People v. Colin, supra, 18 Cal.4th 297, 320-321.) The statements were admissible under sections 1236 and 791, subdivision (b).
VIII. The Requested Pinpoint Instruction on Evaluation of the Testimony of Drug Abusers
Defendant’s final contention is that he was deprived of “due process and a fair trial” by the trial court’s refusal to give a “set of pinpoint instructions” requested by the defense on the evaluation of “the testimony of witnesses Castillo, Silva, Adams and Navarro.” The proposed instructions advised that testimony of a “drug abuser” must be “examined and weighted by the jury with greater care than the testimony of a witness who does not abuse drugs” due to the need of a drug addict for drugs and “money to buy drugs,” or the “fear of imprisonment” and resulting loss of access to drugs. The instructions further stated that Castillo, Silva, Adams and Navarro “may be considered to be drug abusers in this case,” so the jury should determine whether their testimony “has been affected by drug use or the need for drugs.” Finally, the instructions directed the jury that they should “not convict the defendant based on the unsupported testimony of such a witness standing alone unless you believe his or her testimony beyond a reasonable doubt.” Defendant maintains the requested instructions were supported by the testimony of the defense expert and the concessions of the witnesses that they were methamphetamine abusers, and were necessary to “pinpoint” the proper evaluation of the testimony.
“Under appropriate circumstances, ‘a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case by, among other things, relating the reasonable doubt standard of proof to particular elements of the crime charged. [Citations.] But a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence.’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 105.) The court “must refuse instructions that highlight ‘ “ ‘specific evidence as such.’ ” [Citations.]’ (People v. Earp (1999) 20 Cal.4th 826, 886.) Such instructions ‘ “invite[s] the jury to draw inferences favorable to one of the parties from specified items of evidence,” [and are] considered “argumentative,” and therefore should not be given. [Citations.]’ (Ibid.)” (People v. Fraser (2006) 138 Cal.App.4th 1430, 1454.)
We conclude that the pinpoint instructions requested in the present case were both argumentative and redundant. The instructions essentially invited the jury to draw inferences favorable to the defense about the credibility of the witnesses from specified evidence that was not undisputed. (People v. Coffman and Marlow, supra, 34 Cal.4th 1, 105; People v. Hughes (2002) 27 Cal.4th 287, 361.) Moreover, the standard instruction on the credibility of witnesses (CALCRIM No. 226 (Jan. 2006 ed.)) provided the jury with comprehensive, common sense standards for evaluating the credibility of the witnesses, including behavior that reflects on believability and various motives to fabricate, which, when considered along with the argument of counsel, were adequate to address the concepts delineated in the requested pinpoint instructions. Therefore, the court’s refusal to give the pinpoint instruction requested by the defense was not error. (People v. Ramirez (2006) 39 Cal.4th 398, 470; People v. Hughes, supra, 27 Cal.4th 287, 361; People v. Mussel white (1998) 17 Cal.4th 1216, 1269-1270; People v. Roguery, supra, 4 Cal.4th 599, 648.)
The CALCRIM No. 226 instruction given by the court was as follows: “You alone must judge the credibility or believability [of] the witnesses in deciding whether testimony is true and accurate. Use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias [or] prejudice you may have including any bias on the witness’s gender, race, religion or national origin. You may believe all, part or none of the witness’s testimony. Consider the testimony of each witness and decide how much of it you believe.
Accordingly, the judgment is affirmed.
We concur: Marguerite, J., Graham, J.
Retired judge of the Marin Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
“In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are:
“How well could the witness see, hear or otherwise perceive the things [about which] the witness testified?
“How well was the witness able to remember and describe what happened?
“What was the witness’s behavior while testifying?
“Did the witness understand the questions and answer them directly?
“Was the witness’s testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?
“What was [the] witness’s attitude about the case or about testifying?
“Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony?
“How reasonable is the testimony when you consider all of the other evidence in the case?
“Did other evidence prove or disprove any fact about which the witness testified?
“Did the witness admit to being untruthful?
“Was witness―What is the witness’s character for truthfulness?
“Has the witness been a convicted felon?
“Has the witness engaged in [any] other conduct that reflects on his believability?
“Was the witness in custody at the time the information was provided?
“Was the witness promised immunity or leniency in exchange of his or her testimony?
“Do not automatically reject testimony, just for inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event, yet see or hear it differently. If you do not believe a witness’s testimony that he or she no longer remembers something, that testimony is inconsistent with the witness’s earlier statement on that subject.
“If you decide that [a] witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or if you think the witness lied about some things, [but] told the truth about others, you may simply accept the part that you think is true and ignore the rest.”