Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. NA066716, NA063402, Joseph E. Di Loreto, Judge. Affirmed.
John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Isidro Sanchez (defendant) of attempted murder (Pen. Code, §§ 664 & 187, subd. (a) ) and assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury found true the allegations that in the commission of the offenses, defendant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). The jury also found true the allegation that defendant committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)). The trial court sentenced defendant to 21 years in state prison.
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendant contends the trial court erred under the Evidence Code, and he was denied his right to present a defense guaranteed by the Fifth, Sixth, and Fourteenth Amendments, when the trial court denied admission of subpoenaed copies of the victim’s medical records; there was insufficient evidence to support the criminal street gang allegation; and the trial court gave an inadequate instruction on the criminal street gang allegation. We asked the parties to submit supplemental briefs addressing the issue of whether defendant forfeited review of his constitutional claim with respect to the admission of the victim’s medical records by failing to object on constitutional grounds in the trial court. We affirm.
BACKGROUND
At about 8:00 p.m. on July 28, 2005, a group of about 20 people were gathered in an alley behind Fabiola G.’s house on Chestnut Avenue in the City of Long Beach. The group was practicing a dance for Fabiola’s “Quinceañera,” a celebration of her 15th birthday. As the group practiced, defendant and his brother arrived. Defendant and his brother were members of the LOC street gang. Defendant was known as “Crazy” and his brother was known as “Malo.” Defendant argued with one of the men present. Defendant identified himself as Crazy from LOC and the man stated that he was from a “tagging” or graffiti “crew.” At some point, the man punched defendant.
In October 2003, Los Angeles County Deputy Probation Officer Chris Coseglia responded to the scene of a fight. According to police officers at the scene, defendant had participated in the fight as part of a ceremonial process of joining the LOC gang known as being “jumped in.” In 2004, defendant admitted to City of Long Beach Police Department Officer Jason Kirk that he was a member of LOC.
Defendant walked down the alley and returned a short time later looking for the man who had punched him. A car pulled into the alley, and “‘Solo’ from LOC” got out. Solo asked defendant what was going on. Defendant responded that he had been punched and said, “Let’s get him” or “Let’s get them.” Defendant pulled out a pocketknife and ran towards the crowd—the person who had punched him was no longer there. The crowd ran, most running inside Fabiola’s house. According to Fabiola, as defendant proceeded down the alley, he was “saying bad words and stuff.” Defendant “was saying he was from LOC.” Although unclear, Fabiola appears to have testified on cross-examination that defendant did not say, “I’m from LOC,” he only said, “LOC.”
Fernando Huitzacua and another one of the dance participants remained in the alley. Defendant asked Huitzacua where he was from. Huitzacua understood defendant’s question to be asking him of what gang he was a member. Huitzacua responded that he was from “nowhere,” because he did not belong to a gang. According to Huitzacua, defendant then took a knife from his pocket and stabbed Huitzacua in the stomach. Defendant attempted to stab Huitzacua again, and Huitzacua blocked the attempts with his hands. As Huitzacua fended off defendant’s attack, defendant stabbed Huitzacua in the arm, and fingers. When defendant stabbed Huitzacua in the stomach and arm, defendant inserted the three and a half inch blade all the way in before pulling it back out.
The other dance participant who remained in the alley with Huitzacua said that Huitzacua was not in a gang, and defendant broke off his attack. The police and paramedics responded to the scene. The police detained defendant as he ran from the scene. The paramedics treated Huitzacua and took him to the hospital where he received stitches for the stab wounds to his stomach, arm, and hand. Huitzacua remained in the hospital overnight and returned twice for further treatment. At the time of his testimony, which was over nine months after the stabbing, Huitzacua still felt pain in his stomach.
We grant defendant’s motion to augment the record on appeal to include copies of Huitzacua’s medical records subpoenaed by the prosecution.
During the evening on July 28, 2005, City of Long Beach Police Department Detective Joe Pirooz and Officer James Mondragon searched defendant’s residence. In a closet, Detective Pirooz found large, dark-colored jackets and football jerseys with “Long Beach” and the number “13” written on them. Such jerseys are an indicator of gang membership. According to Detective Pirooz, Hispanic gang members use the number 13 to identify themselves as being from Southern California. The Roman numeral “VII,” “LOC13, “and “Malo” were written on a filing cabinet in the kitchen. Based on the location of “Malo” relative to “VII” and “LOC 13,” Detective Pirooz opined that Malo was responsible for the writings. Defendant purportedly lived in the attic. Officer Mondragon searched the attic and observed numerous jerseys with “Long Beach” and the number “13” written on them and cardboard boxes with graffiti written on them.
Long Beach Police Department Officer Abel Morales testified as a gang expert. Officer Morales had served for 12 years as a detective in the gang enforcement unit and was familiar with the LOC gang. LOC started out as a tagging crew known as “Lords of Chaos” and eventually became a criminal street gang known as “Lunatics on Crack.” According to Officer Morales, there were 13 documented members of LOC. Officer Morales testified that LOC had, as one of its primary activities, the commission of certain offenses enumerated in section 186.22: murder, attempted murder, assault with a deadly weapon, drug sales, gun sales, vehicle theft, and burglary. Matthew Aldrete and Alejandro Hurtado, members of LOC, were convicted of crimes listed in section 186.22. Aldrete was convicted of the unlawful taking or driving of a motor vehicle in violation of Vehicle Code section 10851 in February 2005, and Hurtado was convicted of carjacking and robbery in June 2003. Officer Morales opined that Huitzacua’s stabbing “was committed for the purpose of benefiting or associating, promoting the LOC gang” because defendant said, “This is LOC” or words to that effect prior to the stabbing.
Defendant testified in his own behalf and denied that he was a member of LOC or that he told any police officer that he was a member of LOC. He denied wearing any jackets or jerseys bearing the number 13 and denied the presence of graffiti in his house—either on the filing cabinet or in the attic. Irene Sanchez, defendant’s sister, testified that she lived with her father and her two brothers—defendant and Martin. Sanchez denied that her brothers were gang members or that there had been graffiti in the attic or on the filing cabinet in the kitchen. She showed the jury a sweatshirt and three jerseys that defendant wore in July 2005. Neither the sweatshirt nor the jerseys had “7,” “13,” or “LOC” on them.
Defendant testified that he had come upon a crowd of people in an alley as he was walking to the store. A tall man in the crowd asked defendant, “Why the fuck are you passing through my alley? Don’t you see we’re having a quincenera [sic] practice?” Defendant responded, “I can pass through the alley whenever I want.” The tall man said, “Fuck LOC.” Defendant replied “I ain’t from LOC.” The tall man responded, “This is DLK,” and punched defendant in the face.
Defendant tried to fight back but members of the crowd surrounded him and punched and kicked him. Defendant was afraid that he would be “stomped on the ground,” so he pulled out a knife and waved it at the crowd to back them away. The crowd continued to punch and kick defendant. Defendant admitted that he stabbed Huitzacua with the knife, explaining, “I was scared. I thought I was going to—I was going to get stomped on the ground. I was trying to get everybody off of me. I was just scared.” Defendant admitted stabbing Huitzacua more than once, stating, “Yes, I was swinging, I was swinging, yeah.” Defendant denied that he tried to kill Huitzacua.
DISCUSSION
I. Huitzacua’s Medical Records
Defendant contends that the trial court erred in violation of the Evidence Code in excluding Huitzacua’s subpoenaed medical records and that he was deprived of his right to present a defense guaranteed by the Fifth, Sixth, and Fourteenth Amendments by the trial court’s refusal to admit those medical records, and by the prosecutor’s misconduct in raising meritless objections to the records’ admission and in failing to stipulate to their admission. The trial court abused its discretion under the Evidence Code in excluding Huitzacua’s medical records; defendant did not forfeit his constitutional claim by failing to raise it in the trial court, but there was no constitutional violation; defendant forfeited his claim of prosecutorial misconduct by his failure to raise it in the trial court, and there was no prosecutorial misconduct; and the trial court’s error under the Evidence Code was harmless.
A. Relevant Proceedings
At the close of the prosecution’s case, the prosecutor moved for the admission of the prosecution’s exhibits into evidence. Defense counsel asked if medical records he had been given were being “booked into evidence.” The prosecutor responded that the records had not been marked and there was no foundation for them. Defense counsel stated, “Trying to keep them out.” The prosecutor asked to approach and requested the trial court to admonish defense counsel not to make remarks in front of the jury. The trial court stated that the records had not been marked and would not be received.
During the defense case, the prosecutor requested the trial court to admonish defense counsel about his comment in front of the jury insinuating that the prosecutor was trying to hide medical records. The trial court responded that it had already admonished defense counsel. The prosecutor continued that she had given defense counsel the medical records as part of discovery. She stated that she was not calling the doctor for a number of reasons, one being that she had “come to find out” that the records might not be complete because there could have been post-release work that was not included. The prosecutor stated that “They’ve not been cooperative, they haven’t gotten back to me and given me that, so I have nobody to lay a foundation for those records.”
The prosecutor then moved to bar defense counsel from mentioning the medical records either in his case in chief or in closing argument. The trial court inquired whether the medical records were “even material.” The prosecutor responded that they were not. Defense counsel responded that the medical records stated that Huitzacua had small lacerations on his anterior abdomen and that such injuries are not great bodily injury. Defense counsel argued that he had been led to believe that the prosecutor was going to present them, but instead was “hiding” them because they undermined the great bodily injury enhancement. Defense counsel added that he was going to ask that the records be admitted into evidence.
The trial court ruled that the records were inadmissible. The trial court stated “All they’re doing is just records. We need somebody to interpret it. They’re of no real value. We don’t have medical people on juries. Even if we had them on juries, they couldn’t use that expertise anyway.” Defense counsel argued, “Plain English, small lacerations.” The trial court responded, “I understand but I can’t admit them unless there’s a stipulation.” Defense counsel offered his belief that the prosecutor would not stipulate. The prosecutor responded that it was “not a question of stipulation; there needs to be a foundation and there needs to be someone to explain them. Without the doctor here to explain them, and the jury is going to have the photographs, they can see the size of the lacerations and everything else.”
The trial court then offered defense counsel an opportunity to have the records admitted in the defense case. The trial court stated, “So if you want them, [defense counsel], you’ll have to get them between now and whenever you’re going to get them. Very difficult to get a doctor served anyway, especially. Is he under subpoena now?” The prosecutor stated that the doctor was not under subpoena. The record does not indicate that defense counsel took any further action to achieve the admission of the medical records.
The medical records are before us pursuant to defendant’s motion to augment the record on appeal. The medical records provide, in relevant part, the following. A box with an illegible heading on page one of the medical records provides “ABDOMINAL STAB WOUND.” On page two, in a section entitled “HISTORY OF PRESENT ILLNESS,” the records state, in part, “The patient is an 18-year-old male status post assault. He has a knife wound to his abdomen, left forearm and right hand. The patient was involved in an altercation earlier which resulted in his multiple stab wounds.” Also on page 2, in a section entitled “ABDOMEN,” the records state, in part, “Small lacerations are on the anterior abdomen. A small laceration in the anterior abdomen.” Further on page two, in a section entitled “ASSESSMENT AND PLAN,” the records state, in part, “This is an 18-year-old male status post stab wound to the abdomen. It appears that the stab wound did not enter his abdomen.” A section entitled “CLINICAL INDICATION” on page four refers to a “Stab wound to right lower quadrant.”
B. Defendant’s Evidence Code Claim
Defendant argues that the excluded medical records were relevant, material, and critical to his defense, and that the records were admissible as subpoenaed business records under Evidence Code sections 1560 and 1561. Defendant contends that those parts of the medical records that indicate that Huitzacua suffered small lacerations to his abdomen and that the knife did not enter Huitzacua’s abdomen show that Huitzacua’s injuries did not amount to great bodily injury. This evidence, according to defendant, supported the defense theory that defendant waved the knife at the crowd in self-defense and undermined the prosecution’s theory that he had the specific intent to kill Huitzacua.
We review the trial court’s exclusion of evidence for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717; In re Troy D. (1989) 215 Cal.App.3d 889, 902 [medical records].) In People v. Blagg (1968) 267 Cal.App.2d 598, 609, the Court of Appeal considered a trial court’s exclusion of medical records concerning the victim’s condition when examined at the hospital after the attack. In addition to other grounds, “the trial court also seemed to believe that hospital records were inadmissible unless the physicians making or directing the entries were available to explain those entries.” (Ibid.) In holding the trial court erred, the Court of Appeal stated, “This, of course, is not the law. Hospital records are admissible if properly authenticated and if a proper foundation is laid. The fact that the records are hearsay and that the particular nurse, doctor or other person making the record has not been called does not preclude their admission. (People v. Gorgol (1953) 122 Cal.App.2d 281, 296, 300 [265 P.2d 69].) Under sections 1560 et seq. of the Evidence Code (applicable at the time of trial), the requirements as to foundation had been relaxed so that an affidavit could be used in place of the oral testimony of an authenticating witness. The refusal on this ground was thus an additional error but, since we do not know what the records would have shown, we cannot say that the error was prejudicial.” (People v. Blagg, supra, 267 Cal.App.2d at pp. 609-610.)
In this case, the trial court excluded Huitzacua’s subpoenaed medical records because there was no one present to interpret them. This was error. (People v. Blagg, supra, 267 Cal.App.2d at pp. 609-610.)
Acknowledging that the medical records were produced in response to Evidence Code sections 1560 and 1561, respondent contends that trial court properly excluded the records because they failed to qualify as a business records exception to the hearsay under Evidence Code section 1271. Relying on Taggart v. Super Seer Corp. (1995) 33 Cal.App.4th 1697 and Evidence Code section 1562, respondent argues that “the fact that an affidavit has been prepared in accordance with Evidence Code section 1561 does not necessarily mean that the copy of the records are admissible; the requirements of Evidence Code section 1271 still must be met.” Respondent’s reliance is misplaced.
When responding to a subpoena duces tecum, Evidence Code section 1560 permits the custodian of business records or other qualified witness, unless otherwise directed in the subpoena, to comply with the subpoena by mailing copies of the requested records to the clerk of the court together with the affidavit described in Evidence Code section 1561.
Evidence Code section 1561 provides in pertinent part:
Evidence Code section 1271 provides:
Taggart v. Super Seer Corp., supra, 33 Cal.App.4th 1697 was superseded by statute the year after it was decided. (Cooley v. Superior Court (2006) 140 Cal.App.4th 1039, 1044-1045.) In Cooley v. Superior Court, the Court of Appeal explained that the court in Taggart had addressed a version of Evidence Code section 1561 that did not contain subdivision (a)(4) and (5). (Cooley v. Superior Court, supra, 140 Cal.App.4th at p. 1044.) In concluding that an affidavit accompanying records complying with the prior version of Evidence Code section 1561 did not provide a sufficient foundation for admission of the records into evidence under Evidence Code sections 1562 and 1271, the court in Taggart had “reasoned that ‘a custodian’s declaration may state all the matters it is required to state under section 1561, yet fail to provide a sufficient foundation for admission of the records under section 1271. [Citations.] Most significantly, the custodian’s declaration is not required to state the “identity” or “mode of preparation” of the records. As a result, it will usually fail to show that “[t]he []sources of information and method and time of preparation” of the records indicate their trustworthiness.’ (Taggart v. Super Seer Corp., supra, 33 Cal.App.4th at p. 1706.) The year after Taggart was decided, and in direct response to that opinion, Evidence Code section 1561 was amended (Stats. 1996, ch. 146, § 1, p. 715) to add subdivision (a)(4) and (5) ‘to ensure that such [nonparty business] records may continue to be admissible without requiring their authenticity to be proved through live testimony from the custodian of records or other qualified witness.’ (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 3001 (1995-1996 Reg. Sess.) May 16, 1996, p. 1.)” (Cooley v. Superior Court, supra, 140 Cal.App.4th at p. 1045.) Thus, contrary to respondent’s argument, an affidavit that has been prepared in accordance with Evidence Code section 1561 establishes the accompanying medical records’ admissibility under Evidence Code section 1271.
Evidence Code section 1562 provides, “If the original records would be admissible in evidence if the custodian or other qualified witness had been present and testified to the matters stated in the affidavit, and if the requirements of Section 1271 have been met, the copy of the records is admissible in evidence. The affidavit is admissible as evidence of the matters stated therein pursuant to Section 1561 and the matters so stated are presumed true. When more than one person has knowledge of the facts, more than one affidavit may be made. The presumption established by this section is a presumption affecting the burden of producing evidence.” This section does not impose any burden on the admissibility of business records beyond that set forth in Evidence Code sections 1560 and 1561.
Notwithstanding respondent’s argument based on Taggart v. Super Seer Corp., supra, 33 Cal.App.4th 1697 and Evidence Code section 1562, Huitzacua’s medical records were admissible because the accompanying affidavit—ostensibly a “fill-in-the-blanks” form produced by the District Attorney’s office—complied with Evidence Code section 1561, and therefore established the medical records’ compliance with Evidence Code section 1271. The affidavit of the duly authorized custodian of records of “Fernando Huitzua” with authority to certify those records declared, under penalty of perjury, as follows:
An apparent misspelling of Huitzacua’s last name.
“1. That the copy of the records attached to this affidavit, described as medical records for Fernando Huitzua is a true copy of all the records described in the subpoena, 10 pages in length, that we are authorized by law to release under subpoena; and
“2. That the records were prepared by employees of Frederick L Stafford, M.D., in the ordinary course of business, at or near the time of the act, condition, or event, for the specific purposes of the business itself; and,
“3. That the records are accurate, reliable and trustworthy, and that we at 701 E. 28th Street, Suite 411 Long Beach, Ca 90806 rely on said records to conduct our business; and,
“4. That I am familiar with the method and mode of preparing and maintaining business records at 701 East 28th Street, Suite 411 Long Beach CA 90806, and am familiar with how to retrieve said records; and,
“5. That the records attached to this affidavit were prepared in the following manner (please describe how records were prepared, ie. by photocopying originals, or by searching, retrieving and printing information from a computer database, etc.) The records attached were prepared by photocopying originals.”
Moreover, the same custodian of record executed an additional “certification,” under penalty of perjury that declared, in pertinent part, that “The 10 page document attached to this certificate are original documents, or accurate copies of original documents, of this regularly conducted activity, that:
“a. were made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
“b. were kept in the course of the regularly conducted activity; and
“c. were made as a regular practice of the regularly conducted business activity.”
C. Defendant’s Constitutional Claim
Defendant claims that the trial court’s exclusion of Huitzacua’s medical records deprived him of his right to present a defense in violation of the Fifth, Sixth, and Fourteenth Amendments. We asked the parties to submit supplemental briefs addressing the issue of whether defendant forfeited review of this constitutional claim by failing to object on constitutional grounds in the trial court.
“To preserve for appeal an alleged error in excluding evidence, a party must make an offer of proof informing the trial court of the ‘purpose, and relevance of the excluded evidence.’ (Evid. Code, § 354, subd. (a); see People v. Valdez (2004) 32 Cal.4th 73, 108 [8 Cal.Rptr.3d 271, 82 P.3d 296].)” (People v. Guerra (2006) 37 Cal.4th 1067, 1144.) In the discussions concerning the admissibility of Huitzacua’s medical records, defense counsel made clear that he sought the admission of the records to rebut evidence that Huitzacua suffered significant stab wounds. Defense counsel argued that the records stated that Huitzacua suffered only “small lacerations” and that such injuries were not great bodily injury. Defense counsel’s offer of proof identified the purpose and relevance of the medical records and, thus, was sufficient to preserve review of this claim. (Ibid.)
Although defendant did not forfeit review of this claim, there was no constitutional error because the trial court’s error in excluding Huitzacua’s medical records did not rise to the level of an unconstitutional deprivation of the right to present a defense. Generally, the “‘[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense. [Citation.] If the trial court misstepped, ‘[t]he trial court’s ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.’ [Citation.] Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243], and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065]).” (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
Here, the trial court did not completely exclude evidence of defendant’s defense that he stabbed Huitzacua while trying to defend himself from an attacking crowd. In support of this defense, defendant testified that he was attacked by a man who objected to defendant’s passing through the alley. The man punched defendant in the face and, when defendant tried to fight back, a crowd of people surrounded him and punched and kicked him. Defendant, afraid that he would be “stomped on the ground,” pulled out a knife and waved it at the crowd in an unsuccessful attempt to back them away. Defendant testified that he stabbed Huitzacua with the knife in his effort to protect himself. He denied that he tried to kill Huitzacua.
As for Huitzacua’s medical records, the trial court did not foreclose their admission at trial. The trial court advised defense counsel “if you want them . . . you’ll have to get them between now and whenever you’re going to get them. Very difficult to get a doctor served anyway, especially. Is he under subpoena now?” There is no indication in the record that defense counsel took any further action to achieve the admission of the medical records. Moreover, notwithstanding the absence of the medical records, photographs of Huitzacua’s wounds, the nature of which wounds defendant claims supported his defense, were shown to the jury and admitted in evidence. Defense counsel was free to argue to the jury that the photographs showed only minor injuries that were inconsistent with the charged offenses and great bodily injury allegation.
D. Forfeiture of Defendant’s Prosecutorial Misconduct Claim
A claim of prosecutorial misconduct is forfeited unless first raised in the trial court. (People v. Brown (2003) 31 Cal.4th 518, 553.) Objections to prosecutorial misconduct must be “specific and timely.” (Ibid.) Defense counsel did not specifically contend that the prosecutor’s objections to the admission of Huitzacua’s medical records and her failure to stipulate to their admission was prosecutorial misconduct. Accordingly, defendant has forfeited appellate review of this issue. (Ibid.) Moreover, even if we were to construe defense counsel’s objection that the prosecutor was trying to hide the medical records by failing to introduce them as a sufficiently “specific” objection on prosecutorial misconduct grounds (see ibid.), the contention is without merit. By defense counsel’s own admission, the prosecutor turned over the subpoenaed records to defense counsel at the beginning of the trial. Defense counsel was free to take any steps necessary to ensure the records’ admissibility. None of the cases on which defendant relies—Brady v. Maryland (1963) 373 U.S. 83; California v. Trombetta (1984) 467 U.S. 479; People v. Coffman (2004) 34 Cal.4th 1; or In re Ferguson (1971) 5 Cal.3d 525—considered alone or together, requires a different conclusion.
E. Prejudice
The erroneous exclusion of evidence is governed by the standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. McAlpin (1991) 53 Cal.3d 1289, 1311 [erroneous exclusion of character evidence].) Under that standard, the erroneous exclusion of evidence is harmless unless it is reasonably probable that a result more favorable to defendant would have been reached had the evidence been admitted. (People v. Watson, supra, 46 Cal.2d at p. 836.)
Defendant contends that the trial court’s error was prejudicial and requires reversal of his attempted murder and assault convictions and the great bodily injury sentence enhancement. Defendant argues reversal of the attempted murder conviction is required because the records were highly relevant and material to whether he had the intent to kill Huitzacua that was required for a finding of attempted murder. Defendant argues that the medical records contradict Huitzacua’s testimony that defendant pushed the knife all the way in and pulled it back out. Instead, defendant argues, the records are consistent with his testimony that he swung the knife in self-defense at an attacking crowd. This last argument, defendant asserts, also requires reversal of his assault conviction. As for the great bodily injury sentence enhancement, defendant concedes that Huitzacua’s testimony supported a finding of great bodily injury, but argues that “there were no other witnesses testifying to the extent and duration of the injury inflicted. The medical report, on the other hand, supports a finding of moderate or minor injury rather than GBI.” We hold there was no prejudice.
Huitzacua’s medical records are not as clear as defendant asserts. The records do not establish that Huitzacua suffered only small lacerations, thus establishing that Huitzacua was injured as defendant waved his knife in order to back off an attacking crowd. Although the medical records refer to “small lacerations,” they also repeatedly state that Huitzacua suffered “stab” wounds. It is unclear from the medical records what a “small laceration” is in light of the stitches Huitzacua received to his abdominal wound, his overnight hospital stay, the further treatment he received on two subsequent occasions, and the pain he continued to feel in his stomach over nine months after the stabbing. The medical records also do not establish whether “small lacerations” result from striking someone while waving a knife or result from stabbing someone with a jabbing motion. Contrary to defendant’s argument, the medical records do not contradict Huitzacua’s testimony that defendant pushed the knife all the way into Huitzacua’s stomach. The medical records do not state that the stab wound did not enter Huitzacua’s abdomen, they state that it “appears” that the wound did not enter his abdomen.
Finally, a one-inch long laceration, requiring five to six stitches, has been held to be great bodily injury. (See People v. Escobar (1992) 3 Cal.4th 740, 752, citing People v. Brown (1985) 174 Cal.App.3d 762, 765-766.) Here, defendant inflicted three wounds to Huitzacua, each of which required stitches. For these reasons, we conclude that the erroneous exclusion of the medical records did not constitute prejudicial error.
II. Sufficient Evidence Supported the Criminal Street Gang Sentence Enhancement
Defendant contends that there was insufficient evidence to support the criminal street gang sentence enhancement under section 186.22 because the evidence failed to show that one of LOC’s primary activities was the commission of one or more of the criminal acts enumerated in paragraphs (1) through (25) of section 186.22, subdivision (e). Officer Morales’s expert witness testimony was sufficient evidence of LOC’s primary activities.
“‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Bolden (2002) 29 Cal.4th 515, 553, quoting People v. Kipp (2001) 26 Cal.4th 1100, 1128; People v. Olguin (1994) 31 Cal.App.4th 1355, 1382 [gang enhancement].) The reviewing court must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.) In order for imposition of the criminal street gang sentence enhancement under section 186.22, subdivision (b), the prosecution must prove that one of the alleged gang’s primary activities is the commission of at least one of certain crimes listed in the gang statute. (§ 186.22, subd. (f); People v. Sengpadychith (2001) 26 Cal.4th 316, 322.) “The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group’s members.” (People v. Sengpadychith, supra, 26 Cal.4th at p. 323.) “Sufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in [People v.] Gardeley [1996] 14 Cal.4th 605. There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. [Citation.] The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on ‘his personal investigations of hundreds of crimes committed by gang members,’ together with information from colleagues in his own police department and other law enforcement agencies. [Citation.]” (Id. at p. 324.)
In this case, Officer Morales testified that one of LOC’s primary activities is the commission of certain crimes listed in section 186.22. Each of the crimes listed by Officer Morales—murder (§ 186.22, subd. (e)(3)), attempted murder (ibid.), assault with a deadly weapon (§ 186.22, subd. (e)(1)), the sale of certain controlled substances as defined in the Health and Safety Code (§ 186.22, subd. (e)(4)), the sale of a firearm (§ 186.22, subd. (e)(22)), vehicle theft (either as grand theft of a vehicle (§ 186.22, subd. (e)(10)) or as theft of a vehicle as defined in section 10851 of the Vehicle Code (§ 186.22, subd. (e)(25)); and burglary (§ 186.22, subd. (e)(11))—was a qualifying offense listed in section 186.22, subdivision (e). Officer Morales, who was familiar with LOC through his training and experience, knew of LOC’s history since its inception, and had interviewed about a dozen LOC members during his 12 years as a detective in the gang enforcement section, based his opinion on investigations he had conducted. He explained that LOC committed the enumerated offenses as one of its primary activities to make the public understand that it was no ordinary gang—even though the gang was small, it committed the same violent crimes as bigger gangs.
Defendant contends that Officer Morales’s testimony was insufficient to establish LOC’s primary activities because Officer Morales failed to testify about the details of the investigations on which he based his opinion. Thus, defendant argues, Officer Morales’s testimony did not specify any matter personally known to or observed by him that he reasonably could rely on in forming an expert opinion, and his testimony failed to establish a proper foundation for expert testimony under Evidence Code section 801, subdivision (b). Defendant’s challenge to Officer Morales’s testimony is effectively an attack on the officer’s qualifications to render an expert opinion and, thus, was forfeited by defendant’s failure to object in the trial court. (People v. Bolin, supra, 18 Cal.4th at p. 321.) Even if the challenge were not forfeited, Officer Morales’s testimony, as set forth above, provided a sufficient foundation for the expert opinion Officer Morales expressed.
Evidence Code section 801, subdivision (b) provides:
Next, defendant contends that LOC’s primary activities were not established because there was no testimony that satisfied the “requirement” that LOC had consistently and repeatedly committed at least one of the criminal acts listed in section 186.22, subdivision (e). There is no such requirement. The prosecution may prove a gang’s primary activities through evidence that the gang’s members consistently and repeatedly have committed a criminal act listed in section 186.22, subdivision (e). (People v. Sengpadychith, supra, 26 Cal.4th at p. 324.) The prosecution is not bound to do so. As noted above, the prosecution may also prove primary activities through expert testimony. (Ibid.)
Lastly, defendant contends that evidence concerning Aldrete’s and Hurtado’s convictions was insufficient to establish LOC’s primary activities. Although not addressed in prosecutor’s closing argument, the evidence concerning Aldrete’s and Hurtado’s convictions appears to have been introduced to establish the “pattern of criminal gang activity” requirement in subdivision (e) and not the “primary activities” requirement in subdivision (f). In this regard, the jury was instructed, “‘Pattern of criminal gang activity’ means the commission of, or conviction of two or more of the following crimes, namely, Robbery, Assault with a Firearm, Attempted Murder and Unlawful Vehicle Taking, provided at least one of those crimes occurred after September 26, 1988, and the last of those crimes occurred within three years after a prior offense, and the crimes were committed on separate occasions, or by two or more persons.” Even without the evidence concerning Aldrete’s and Hurtado’s convictions, Officer Morales’s testimony identifying LOC’s primary activities was sufficient evidence of the gang’s primary activities.
Section 186.22, subdivision (e) provides, in relevant part:
III. The Trial Court Properly Instructed the Jury on the Criminal Street Gang Sentence Enhancement
Defendant contends that the instruction for the criminal street gang sentence enhancement under section 186.22, subdivision (b) was inadequate because it failed to tell the jury that for the commission of one or more of the identified crimes to qualify as one of LOC’s chief or principal occupations, and thus be one of gang’s primary activities, there had to be evidence that LOC gang members consistently and repeatedly committed such crimes. The jury was properly instructed.
The trial court used CALJIC No. 17.24.2 to instruct the jury on the criminal street gang sentence enhancement. That part of CALJIC No. 17.24.2 that addresses primary activities provides that “The phrase ‘primary activities,’ as used in this allegation, means that the commission of one or more of the crimes identified in the allegation, be one of the group’s ‘chief’ or ‘principal’ occupations. This would of necessity exclude the occasional commission of identified crimes by the group’s members. In determining this issue, you should consider any expert opinion evidence offered, as well as evidence of the past or present conduct by gang members involving the commission of one or more of the identified crimes, including the crime[s] charged in this proceeding.”
Defendant did not object to CALJIC No. 17.24.2 or request that the instruction be clarified or amplified to tell the jury that to find the commission of the identified offenses to be one of LOC’s primary activities there had to be evidence that LOC gang members consistently and repeatedly committed those crimes. “Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Andrews (1989) 49 Cal.3d 200, 218.) Notwithstanding his failure to object or request clarification or amplification of CALJIC No. 17.24.2, defendant contends that review is appropriate under section 1259. Section 1259 provides that “Upon an appeal taken by the defendant, the appellate court may, without exception having been taken in the trial court, review any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant. The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.”
As discussed above, there is no requirement that the prosecution prove that a gang consistently and repeatedly committed at least one of the criminal acts listed in section 186.22, subdivision (e) in order to establish the gang’s primary activities. (See People v. Sengpadychith, supra, 26 Cal.4th at p. 324.) Instead, evidence that a gang consistently and repeatedly committed at least one such criminal act is but one of the evidentiary bases that the prosecution may use to prove a gang’s primary activities. (Ibid.) Thus, the trial court properly could have denied, as an incorrect statement of law, any request by defendant for an instruction requiring a finding of the consistent and repeated commission of an enumerated offense. (People v. Gurule (2002) 28 Cal.4th 557, 659 [“the general rule is that a trial court may refuse a proffered instruction if it is an incorrect statement of law . . .”].) Accordingly, defendant’s substantial rights were not affected by the trial court’s failure to instruct the jury as defendant now argues.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.
“(a) The records shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following:
“(1) The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records.
“(2) The copy is a true copy of all the records described in the subpoena duces tecum, or pursuant to subdivision (e) of Section 1560 the records were delivered to the attorney, the attorney’s representative, or deposition officer for copying at the custodian’s or witness’ place of business, as the case may be.
“(3) The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event.
“(4) The identity of the records.
“(5) A description of the mode of preparation of the records.”
“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:
“(a) The writing was made in the regular course of a business;
“(b) The writing was made at or near the time of the act, condition, or event;
“(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and
“(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”
“If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶]
“(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”
“As used in this chapter, ‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons . . . .”