Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08NF3825, Patrick Donahue, Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant Edward Anthony Ceja appeals his convictions for possession of a firearm by a felon, with an attendant gang enhancement, and active participation in a criminal street gang. He contends the evidence is insufficient to support the firearm charge and he was denied a fair trial. We affirm.
I
FACTS
We present the facts from the trial in the light most favorable to the judgment in accord with established principles of appellate review. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Defendant was charged in the information with one count each of felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and active participation in a criminal street gang (§ 186.22, subd. (a)) on November 22, 2008. The information also alleged defendant possessed the firearm for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and that defendant had suffered a prior “strike” conviction (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)), a prior conviction for a serious felony (§ 667, subd. (a)), and had served a prior term in state prison (§ 667.5, subd. (b)). The court denied defendant’s motion to bifurcate the gang charge and enhancement from the trial of the weapon possession charge, but granted defendant’s motion to bifurcate the trial on the conviction and prison prior allegations. The court also granted defendant’s motion to exclude evidence relating to Surenos, the Mexican Mafia, or the number 13 as it relates to the 13th letter of the alphabet.
All statutory references are to the Penal Code unless otherwise stated.
The jury found defendant guilty of the charged offenses and found the gang enhancement true. Defendant admitted his prior conviction. The court sentenced defendant to a term of 12 years in state prison, consisting of a four-year term on the weapon charge (midterm doubled due to the prior “strike” conviction), plus three years for the gang enhancement, and an additional five years for the serious felony prior conviction.
A. Events Leading up to November 22, 2008
All future date references are to 2008, unless otherwise stated.
Frankie Velasquez, a Folks gang member, lived in Folks gang territory on the corner of Neighbors Avenue and Mohican Way in Anaheim. Two weeks before the charged incident, members of Citron Street, a rival gang, drove through the Folks neighborhood while Velasquez was standing outside his house. The Citron Street members hit up (challenged) Velasquez and fired two shots at him with “a bird shot shotgun, ” blinding him.
On November 20, 2008, Anaheim Police Officer Brian Browne, who also testified as a gang expert, was on patrol with his partner in the Mohican Glenn neighborhood. His partner saw Velasquez with approximately five other “gang types” in the alley by the garage behind Velasquez’s residence. According to Browne, defendant stood out because of all his tattoos. Browne heard the officers’ presence announced as they approached the group on foot. Javier Soto rode away on his bike, apparently because he is on parole and knows he is not to associate with gang members. Browne caught Soto, also known as Chucky, and returned him to where the others, including defendant and Robert Kundysek, an active member of Folks, were detained in the alley.
Defendant was cooperative and discussed his tattoos. Browne spoke about Velasquez having been shot. Defendant said he did not know what had happened yet because he had just been released from prison four days earlier. Defendant admitted being a member of Folks and that his moniker is Soldier. Browne asked why defendant was “posted up” and defendant said because it was his “hood.” When asked if he was going to retaliate for Velasquez’s shooting, defendant said, “We’ll see. I just got out, and I need to find out what is going on.” Browne advised defendant he was in violation of his parole by congregating with other gang members and defendant said they were just visiting him to pay him respect for having served his time in prison. Browne contacted defendant in the neighborhood again the next evening. Defendant was standing by himself in front of a white fence bordering his apartment complex. Defendant’s head was cleanly shaved and the tattoos on his head were exposed. Defendant did not attempt to run. He said he still backs up Folks, but that he did not know whether he was going to participate in any gang-related activity.
Defendant stipulated he had been convicted of a felony.
The police searched defendant on each occasion. He did not have any weapons or contraband on his person.
B. November 22
Officer Richard Browning of the Anaheim Police Department patrols the Folks gang territory consisting of large apartment complexes, duplexes and fourplexes. On November 22, he was on patrol in that area in a marked black and white patrol car. As he approached Mohican he saw 10 to 15 people underneath a tree in front of an apartment on Neighbors and about 10 to 15 yards away, three people standing underneath a street sign on the corner of Mohican and Neighbors. Of the three, one was a tall Hispanic, much taller than the other two. He had a shaved head and wore dark clothing. Another was tall and “very skinny.” He wore a baseball hat and dark clothing. The third was a male in his mid-teens and wore dark clothing. Browning identified the three as defendant, Kundysek, and Erik Lopez, respectively. As Browning’s vehicle turned the corner, the three looked over their shoulders and ran westbound on Neighbors.
Browning drove into an alleyway in an attempt to intercept them. He turned off the patrol car’s lights and got out, walking into a breezeway between two sets of apartments. He “peeked around the corner” and saw defendant go to the front lawn of one of the apartment buildings. Browning followed, attempting to close the distance between them. Hearing a voice, Browning stopped. He saw Kundysek looking up and down the street. Kundysek and defendant started to walk across the lawn. Browning walked to within about five feet of defendant and Kundysek without them noticing. When he turned the corner, he saw defendant, Kundysek, and Lopez together. He detained all three, ordered them to their knees, and called for backup.
Officers Anderson and Staymates responded. Browning told Anderson to check the areas around the breezeway and in front of one of the apartments for a weapon or contraband. Staymates watched defendant, Kundysek, and Lopez while Anderson and Browning searched. Anderson found a gun about five to six inches from the top of a bush. The gun and bullets were inside a black beanie. Browning testified the beanie was warm to the touch.
Browning pulled Lopez away from the other two to talk about the gun. Browning said they found a gun and wanted to know who it belonged to, because he knew it “belonged to one of the three of them.” Lopez motioned with his head toward defendant and said defendant had the gun. Lopez said he could not talk in front of the others. Browning said they would talk at the police station.
Defendant had on gloves at the time he was arrested. There was another pair of gloves at the scene, but apparently an individual in the area removed the gloves without the police noticing.
At the police station, Lopez made inconsistent statements about whether he walked or ran when Browning was spotted. He admitted telling Browning in the field that defendant was the one who had the gun, but maintained he never actually saw the gun. Lopez said he knew defendant had a gun because when he first went by defendant earlier that day, defendant said he was standing apart from the others because if something went down he did not want to shoot in front of children.
C. Erik Lopez
Lopez testified under a grant of immunity. He lived in the Folks neighborhood for four or five months and is familiar with the Folks gang. On November 22, he was walking to the house of a girl he knew when he saw defendant standing on the corner of Neighbors and Mohican. Defendant, who Lopez knew only as Soldier, asked Lopez to “post up” with him. According to Lopez, “post up” means to stand around doing nothing. Lopez said he had to go somewhere and asked defendant why he was not hanging out with the others. Defendant said he did not want to shoot in front of children if someone came through the neighborhood.
Lopez went to visit the girl and was on his way home about an hour later, at about 9:30 or 9:40 that night. Defendant was standing on the same corner, talking to Michael. Lopez said defendant was wearing a beanie each time he saw defendant that day.
Kundysek’s full name is Robert Michael Kundysek. According to Browne, this is why Lopez referred to Kundysek as Michael.
Defendant and Kundysek asked Lopez to join them when Lopez stopped to talk for five or 10 minutes. He told them he had to get home for curfew and started to walk away. Lopez then saw defendant and Kundysek running. One of them said something about “the cops are coming.” Kundysek and defendant ran in between some duplexes and Lopez kept walking. Lopez said he saw defendant take off his beanie, take something from his waistband, put it inside the beanie, and throw the beanie inside the bush. Although Lopez did not see what defendant put into the beanie, he assumed it was a gun.
D. DNA and Fingerprint Evidence
The gun was dusted for fingerprints, but none were found. DNA samples were collected from the gun’s grip, trigger, and magazine release. Buccal swabs were taken from defendant, Kunydsek and Lopez. Male and female DNA were present on the gun, but defendant, Kunydsek, and Lopez were excluded as contributors.
E. The Gang Expert
Browne testified he has investigated several crimes committed by Folks gang members. Folks stands for Family of Latin Kings. It is a traditional Hispanic street gang and has been in existence since at least the early 1980’s. It has approximately 60 documented members, about one-half of whom are active in the gang. Its major sign is FOLKS but it also uses AFG, GF and Family of Latin Kings. The gang’s primary activities include felony gun possession and felony vandalism. The prosecution introduced Folks gang member Adrian Nicasio’s 2008 conviction for felony assault (§ 245, subd. (a)(1)) and active participation in a criminal street gang (§ 186.22, subd. (a)), and another gang member, Edgar Camacho’s, convictions for concealment of a firearm in a vehicle by an active gang participant (§ 12025, subds. (a)(3), (b)(3)) and active participation in a criminal street gang in 2007. Both Nicasio and Camacho were active participants in the Folks criminal street gang when the crimes were committed, as was Salvador Carbajal when he carried a loaded unregistered firearm (§ 12031, subds. (a)(1), (a)(2)(F)) for the benefit of Folks (§ 186.22, subd. (b)(1)).
Browne testified defendant was a member of the Folks criminal street gang on November 22. In reaching his conclusion, Browne investigated defendant’s background and considered a number of factors. Defendant had Folks tattoos. He received a Step notice in 2006. On at least 15 occasions defendant was contacted by police while he was in the presence of other Folks gang members, including Frankie Velasquez, Nicasio, Raul Santos, and Camacho. Browne also considered defendant’s 2007 statements that he is “a Folkster till I die” and that if anything happens in the neighborhood he is probably going to know about it and be involved in it.
Browne also testified to the meaning of defendant’s tattoos. Defendant has an “A” tattooed on the top of his head. The “A” signifies Anaheim, letting others know he is from Anaheim and backs up the city. “AFG” is tattooed on the top of his head. AFG stands for Anaheim Folks Gang. “Anaheim” is tattooed across the back of his neck with “Folks” tattooed beneath it, indicating he backs up the Folks criminal street gang. His moniker, “Soldier, ” is tattooed on him as well. On his right hand is “Halo, ” another way of referring to Anaheim via the Angels and their halo. On his left hand is “City.” When the two hands are put together, the tattoos spell “Halo City.” On his fingers is tattooed “Vago” and “Malo, ” cliques of the Folks gang. One of his hands also bears the tattoo “167, ” which stands for AFG, the first, sixth, and seventh letters of the alphabet. Another of his tattoos reads “R.I.P. Triste.” Triste was a Folks gang member murdered in the neighborhood by a rival gang in 2002. On his left hand, defendant has three dots, a common tattoo among gang members, meaning “my crazy life, la vive locos.” Defendant obtained most of his tattoos between 2006 and 2008.
Tattoos are “extremely significant” in the gang culture because the member becomes a walking billboard for the gang. The existence of tattoos means members of other gangs do not have to “hit up” the person because the tattoos declare where he is from. Tattoos also indicate the person backs – protects or commits crime with – his gang. Defendant’s tattoos are consistent with gang tattoos.
The prosecutor provided Browne with a set of facts in a hypothetical situation and asked Browne if he had an opinion as to whether the offense set forth in the hypothetical set of facts – facts taken from evidence admitted in the trial – was for the benefit of, at the direction of, or in association with a criminal street gang. Browne opined the offense was for the benefit of Folks. According to Browne, “posting up” is standing in a location within the neighborhood where a gang member feels he will be seen by any rival gang members that come into the neighborhood. In essence, the individual posting up is protecting the neighborhood. Many times the person posting up will have weapons hidden in close proximity, either in a bush, a trashcan, or on his person. Posting up with a loaded firearm benefits Folks by providing the gang with an advantage over any gang that should come through Folks’ neighborhood. The reputation of a gang member who posts up with a firearm is benefitted. The fact that more than one gang member posted up supports a conclusion the offense was committed in association with the criminal street gang.
II
DISCUSSION
Defendant generally claims the evidence is insufficient to support his “convictions.” Specifically, he argues the evidence does not support a jury determination that he “knew of or controlled the gun in the beanie in the [bush].” Nowhere in his opening brief does he specifically challenge the sufficiency of the evidence of his active gang participation (§ 186.22, subd. (a)) conviction. In fact, in a pretrial motion defense counsel stated, “the defense absolutely conceded [defendant] was an active gang member.” However, if the evidence does not support the charge of felon in possession of a firearm, the gang enhancement attached to that offense would fail (People v. Salazar (1987) 194 Cal.App.3d 634, 640, fn. 6 [an enhancement has no life independent of the offense to which it is attached]), as would the charge of active participation in a criminal street gang, given there was no evidence of the commission of any other felony (People v. Llamas (2007) 42 Cal.4th 516, 520 [§186.22, subd. (a) requires evidence the defendant intended to promote, further, or in felonious conduct]).
A. Sufficient Evidence Supports the Judgment
“The elements of the offense proscribed by section 12021 are conviction of a felony and ownership, possession, custody or control of a firearm capable of being concealed on the person. [Citations.] No specific criminal intent is required, and a general intent to commit the proscribed act is sufficient to sustain a conviction. [Citations.] With respect to the elements of possession or custody, it has been held that knowledge is an element of the offense. [Citations.]” (People v. Synder (1982) 32 Cal.3d 590, 592.)
“In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we ‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence –evidence that is reasonable, credible and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) We may reverse for lack of substantial evidence only if “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Defendant correctly notes inadmissible evidence and matters not in evidence cannot be considered in determining whether a judgment is supported by the evidence. (People v. Lewis (2008) 43 Cal.4th 415, 507-509.) He argues evidence ruled inadmissible, but which “leaked” into evidence, and certain statements by the prosecutor, should not be considered in determining the sufficiency of the evidence. The inadmissible evidence that defendant claims “leaked” into evidence includes the gang expert’s response to the question about the role violence plays in terms of respect in the gang culture: “Everything about gangs goes back to the violent tendencies from when they are jumped into the gang or they crime into the gang, they are showing the propensity towards violence. [¶] Once again, once they are in the gang, the crimes that they commit throughout their time in the gang, it goes back to that violence. Assaults on rival gangs, hitting up rival gangs, it all stems back toward violence. [¶] So violence is very important in the gang culture. It is respect, and the more violence you commit, the more respect that you gain within the gang culture.” In addition, he points out that the court excluded evidence of Folks gang members collectively possessing weapons and, contends that as a result, “[t]here is no [expert] opinion to consider in appellate review of the sufficiency of evidence to show appellant actively or constructively possessed a firearm.”
Viewing the evidence in the light most favorable to the judgment, defendant, Kundysek, and Lopez were on a street corner in Folks gang territory when a police patrol car appeared. All three ran away. Officer Browning caught and detained them. Believing contraband or a weapon may have been tossed during the chase, a search of the area was conducted. A beanie containing a gun and bullets was found hidden in a bush where Browning, looking for the suspects, saw defendant reappear. The jury could reasonably infer the beanie had been placed in the bush recently because the beanie was still warm to the touch on this cool night. The fact that defendant wore gloves at the time would account for the lack of his DNA or fingerprints on the weapon. Moreover, defendant had been stopped and searched by police each of the two preceding days. He did not run on either occasion. The jury could reasonably infer defendant ran this time because he had a gun on his person and assumed he would again be searched.
Section 1111 prohibits a defendant’s conviction based solely upon the testimony of an uncorroborated accomplice. The necessary corroboration “may be sufficient even though slight and entitled to but little consideration when standing by itself.” (People v. Gallardo (1953) 41 Cal.2d 57, 63, disapproved on other grounds in People v. Chapman (1959) 52 Cal.2d 95, 98.) These facts sufficiently corroborated Lopez’s testimony that he saw defendant remove something from his waistband, put it in the beanie and placed the beanie in the bush. The evidence is substantial and supports the charge of felon in possession of a firearm.
Defendant characterizes Lopez as a witness no reasonable trier of fact would have trusted and points to specific instances where Lopez’s testimony was impeached. For example: Lopez said defendant was wearing a beanie that night, but he did not tell the police defendant wore the beanie, and according to Browne, defendant was not wearing a beanie that night when he saw defendant on the street corner; Lopez denied having a nickname, but then admitted his nickname was Blue; and, although Lopez testified he told police he saw defendant put the beanie into the bush, the transcript of his interrogation contains no such statement. Defendant also argues that contrary to Lopez’s claim of having seen Anderson remove the beanie from the bush, Browning’s testimony demonstrated that was not physically possible. But Lopez never testified he saw the officer take the beanie out of the bush. He said he saw the officer when the officer found the beanie. In any event, “‘it is the exclusive province of the … jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
B. Defendant was not Denied a Fair Trial
Defendant maintains he was denied a fair trial when the court denied his motion to bifurcate the trial of the gang charge and enhancement from the firearm possession charge. He says the court’s ruling resulted in the trial being “swamped” with gang evidence as well as repeated questions by the prosecutor to which objections were sustained, and argument by the prosecutor that went beyond the evidence.
Nonetheless, defendant disavows any contention the court erred in denying bifurcation, or in its evidentiary rulings, stating, “[Defendant] cannot say the trial court did not exercise its discretion properly.” Unlike a prior conviction allegation which generally has no relevance as to how or why an offense has been committed, a criminal street gang enhancement attaches to a charged offense “and is, by definition, inextricably intertwined with that offense.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) As a result, “less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation. [Citation.]” (Ibid.)
Defendant conceded during argument on his motion to bifurcate that gang evidence would likely be admissible in the trial to prove motive, even if the court granted bifurcation. The court agreed, stating it viewed the matter as a “gang-motivated case, ” and stating it would be “very difficult” to try the matter without bringing to the jury’s attention why Lopez was “hanging around” with defendant that day and why they were “posted up, ” guarding Velasquez’s residence and the gang’s turf.
The evidence indicated defendant “posted up” in a position where he would be visible to and could shoot any rival gang entering Folks territory, such as Citron Street, the gang that just two weeks earlier went into Folks’ territory and shot Velasquez. The gang evidence was relevant to the weapon charge. It helped prove a motive of defendant’s actions. (People v. Hernandez, supra, 33 Cal.4th at p. 1049.) Because this evidence was admissible to prove motive of the charged offense, “any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]” (Id. at pp. 1049-1050.)
The court below found the probative value of the gang evidence outweighed any prejudice from its introduction and properly denied bifurcation. We find no error.
1. The Expert’s Testimony
Based upon Browne’s preliminary examination testimony, defendant brought motions to exclude testimony he anticipated Browne would repeat at trial. He objected to Browne using the term “gang gun theory” and referencing “Mexican Mafia, Surenos.” The court ruled the expert was not to testify about the Mexican Mafia. The court further held the prosecution could introduce evidence of a “gang gun, ” but that the expert could not opine that if a number of individuals were “posting up” together and a gun was present, each would know of the gun’s presence. The record does not indicate whether Browne was present when the court made its rulings. Neither does it indicate whether the prosecutor was directed to inform Browne of the limitations the court placed on his testimony.
During direct examination the prosecutor asked Browne about police questioning gang members for intelligence gathering purposes as opposed to investigating a particular crime. Browne answered: “We gather – we are looking for a lot of things when we are talking to them. One, the way they are dressing, the trends that are going on with clothing, tattoos – tattoos that are becoming more and more prevalent to that specific gang with Orange County or to Surenos, which is –” At that point the court sustained defendant’s objection and struck the reference to Surenos.
“[R]eferences to the Mexican Mafia are extremely prejudicial. [Citations.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 230, fn. 15.) Here there was no reference to the Mexican Mafia because the mention of Surenos was stricken before the jury learned what the term meant. Under these circumstances, defendant was not prejudiced.
Defendant also complains Browne’s responses to questions were not always responsive and that he spoke rapidly, requiring the court to repeatedly instruct him to slow down. It is not uncommon for the court to instruct witnesses, as well as attorneys, to slow down so the court reporter can record every word. Defendant does not suggest how Browne’s rapid speech prejudiced him. We find nothing in the record to indicate the witness did not follow the court’s admonition. The statements by Browne which were objected to as non-responsive, did not prejudice defendant because they did not introduce inadmissible evidence to the jury. When the objections were sustained, the prosecutor usually asked another question, one to which the same answer was now responsive. Moreover, the jury was instructed it could not consider stricken testimony and we presume it followed the instruction. (People v. Prince (2007) 40 Cal.4th 1179, 1295.)
2. Prosecutorial Misconduct
Defendant contends repeated questioning by the prosecutor on matters the court ordered excluded from evidence and the prosecutor’s argument denied him due process and a fair trial. “‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.’ [Citation.]” (People v. Gamache (2010) 48 Cal.4th 347, 371.)
Defendant’s claim is not that the prosecutor intentionally introduced inadmissible evidence, but rather that the prosecutor repeatedly but unsuccessfully attempted to introduce inadmissible evidence. According to defendant, the “prosecutor’s constant battering of the walls of evidentiary rulings regarding gang evidence... encouraged [the jury] to react emotionally” and denied defendant a fair trial. In addressing defendant’s contention, we are mindful that there is a difference between merely asking questions to which defense objections are sustained and intentionally eliciting inadmissible evidence. (People v. Chatman (2006) 38 Cal.4th 344, 379-380; see People v. Bonin (1988) 46 Cal.3d 659, 689 [“misconduct for a prosecutor to ‘intentionally elicit inadmissible testimony’”], overruled on other ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) The latter presupposes the prosecutor knew the evidence sought to be elicited was inadmissible.
Even were we to assume due process may be violated by a prosecutor’s unsuccessful attempts to introduce inadmissible evidence, we would find no error here. At one point during her questioning of Lopez, the prosecutor asked Lopez if he told the police he believed defendant had a gun that night. Defense counsel’s relevance objection was sustained. The defense’s speculation objection was sustained to the prosecutor’s next question – whether Lopez “know[s]” Folks gang members carry guns. Her following question – whether Lopez was “aware” Folks gang members carry guns – was also found objectionable. These and similar questions by the prosecutor do not establish that she knew the evidence was inadmissible.
As noted above, the court held the gang expert was not to use the phrase “gang gun theory.” But the prosecution was given permission to introduce evidence of a “gang gun” and the importance of guns to gangs. Nonetheless the prosecutor was admonished that the expert could not opine that if a number of individuals were “posting up” together and a gun was present, each would know of its presence. The prosecutor twice asked Browne about gang guns and their importance to gangs, but neither question sought the inadmissible opinion. These questions were not an attempt to circumvent the court’s pretrial ruling.
Defendant further contends the prosecutor committed misconduct during argument when she referred to defendant as “Malo vato.” In referring to defendant in argument, the prosecutor stated: “Mi vida loca. A.F.S. Soldier Folks. 167. Anaheim. RIP Triste. Malo vato. He is a bad dude.” The court struck the statement “He is a bad dude” pursuant to defendant’s objection. It is not clear that the prosecutor was calling defendant a name when she said malo vato. Each statement before the stricken sentence appears to be in reference to a tattoo on defendant’s body, although the expert testified “Malo Vago, ” not malo vato, was tattooed on defendant’s fingers. Even assuming the prosecutor did not misspeak and intended to use malo vato as an epithet, any such error would be harmless.
“‘Prosecutorial misconduct implies the use of deceptive or reprehensible methods to persuade either the court or the jury.’ [Citations.] ‘It is not necessary to show bad faith, but it is necessary to show the defendant’s right to a fair trial was prejudiced [by the claimed misconduct].’ [Citation.] ‘The ultimate question to be decided is, had the prosecutor refrained from the misconduct, is it reasonably probable that a result more favorable to the defendant would have occurred.’ [Citations.]” (People v. Sassounian (1986) 182 Cal.App.3d 361, 390-391.)
The prosecutor said malo vato one time during her argument. The term was never translated for the jury. When the gang expert testified about “Malo” and “Vago, ” he merely stated each is a clique of the Folks gang. We cannot say a result more favorable to the defendant would have resulted had the prosecutor not used the untranslated words malo vato one time. (People v. Watson (1956) 46 Cal.2d 818, 837.) A fortiori, we do not find prosecutorial misconduct under the more onerous federal standard.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J.IKOLA, J.