THE PEOPLE v. JUAN GONZALEZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Defendant and appellant Juan Gonzalez (defendant) was convicted of attempting to dissuade a witness in violation of Penal Code section 136.1, subdivision (b)(2).¹  On appeal, defendant contends that (1) the evidence was insufficient to sustain his convictions, (2) the trial court erred by allowing the introduction of inadmissible hearsay, (3) the prosecution's gang expert improperly rendered an opinion regarding defendant's specific intent, (4) the evidence was insufficient to support a finding that the crimes were “gang related,” (5) the prosecutor committed misconduct during the opening statement, (6) the trial court erred in denying defendant's request to bifurcate trial of the gang enhancement allegation from trial of the principal charges, (7) the trial court erred in denying defendant's request for private counsel, and (8) the cumulative impact of the errors requires reversal.   We affirm the judgment.

BACKGROUND

A. Factual Background

1.  The Crime

On May 5, 2009, K.M., her mother Erica Castro, Castro's boyfriend Jose Enrique Vazquez, Los Angeles Police Department Officers Robert Castruita and Boris Oliva, and Long Beach Police Department Officer Jaime Flores were at the Los Angeles County Superior court, located in Long Beach, California.   K.M., Vazquez, and Officers Castruita, Flores and Oliva were present at the courthouse to testify at a preliminary hearing regarding robbery charges that had been brought against two Rancho San Pedro gang members for the theft of a dog.

K.M. testified that she was nervous about testifying against the two robbery defendants because they “looked like bad people, and [that] they would do something.”   Vazquez testified that he was aware that the robbery defendants were gang members because one of the robbery defendants displayed a large tattoo stating “Rancho San Pedro,” and both of the robbery defendants acted like gang members.²

K.M., Vazquez, and the officers initially reported to Department 3 on the second floor of the courthouse.   While waiting outside Department 3, K.M. saw defendant, whom she recognized because defendant had attended a family event.³  Officer Oliva testified that someone, possibly defendant, said that one of the robbery defendants was defendant's cousin.   K.M. also saw defendant's girlfriend, Joanna, who had attended the same family event that defendant had attended.   In addition, K.M. saw that defendant was with another male, whom Officers Castruita and Flores testified was E.E., another Rancho San Pedro gang member.

The robbery case was subsequently moved to Department F on the fourth floor.   K.M. testified that before they arrived at Department F, Joanna handed her a telephone.   K.M. spoke to her grandmother on the telephone (K.M.'s cousin was with the grandmother), and then returned the telephone to Joanna.   Defendant was sitting next to Joanna.   Defendant made eye contact with K.M. and told her “You take care of yourself.”   Castro testified that she was standing next to K.M. when Joanna handed her the telephone, and that she also heard defendant's comment to K.M. K.M. testified that she understood defendant's statement to be a threat, and that she was frightened.   K.M. thought defendant would do something to her or her family, and she cried.   K.M., Castro and Vazquez spoke about what had happened, and Castro testified that she cried.   K.M. and Castro told Officers Flores and Castruita about what had happened.

Vazquez testified that after he arrived outside of Department F, defendant told him “I know you.”   Joanna told defendant to be quiet and not to say anything.   As Vazquez was about to go into Department F to testify at the preliminary hearing, defendant, who was approximately 19 feet from Vazquez, made eye contact with Vazquez and on at least five occasions quietly told Vazquez that he was going to kill him (in Spanish).   Although Vazquez could not hear defendant's voice when defendant told Vazquez that he was going to kill him, Vazquez read defendant's lips.⁴  When defendant was quietly telling Vazquez he was going to kill him, defendant looked angrily at Vazquez, and defendant punched his right fist into his left palm.

Vazquez testified that he was “sure of what [defendant] was telling” him.   Vazquez understood defendant's statements and actions to be a threat to his life.   Vazquez was frightened because he feared that something could happen to his wife, his children, or him.

Vazquez walked into Department F and defendant was behind him.   Officer Oliva was in Department F, and defendant left the courtroom when Vazquez told Officer Oliva what had happened.   Officer Oliva told Officer Castruita to detain defendant.   Defendant traveled down the hallway and Officer Castruita followed him.   Officer Castruita initially lost sight of defendant, but then he saw defendant step out of the hallway near the escalators and peek in different directions, as if he was hiding.   Officer Castruita detained defendant.   While being detained, defendant was uncooperative.   Defendant began to cry, on two occasions he tried to pull away from Officer Castruita, and he called out for “dad” and “Jo–Ann” [sic ].

2. Gang Evidence

Long Beach Police Department Officer John McVay testified that he responded to the courthouse, and took custody of and booked defendant.   During booking, defendant said he was affiliated with the Rancho San Pedro gang and that his moniker was “Silent.”   Officer McVay saw a tattoo of “RSP” on defendant's right shoulder, and defendant told Officer McVay that the initials stood for Rancho San Pedro.

Officer Castruita testified as the prosecution's gang expert.   Officer Castruita was assigned to the Los Angeles Police Department's Harbor Division, gang enforcement detail and was familiar with the Rancho San Pedro street gang;  he was assigned to monitor that gang.   He testified that in 2001, 2003, 2005, 2007, and upon defendant's arrest regarding the underlying incident, defendant admitted to several officers that he was a Rancho San Pedro gang member.

Officer Castruita testified that the Rancho San Pedro gang was a Hispanic gang, and is also known as “RSP” or “the Ranch.”   The gang primarily and repeatedly engaged in acts of vandalism, assault with deadly weapons, rape, murder, carjacking, burglary, robbery, criminal threats, and witness intimidation and committed crimes throughout the city of San Pedro.

On April 16, 2009, Sonia Cruz, a Rancho San Pedro gang member, was convicted of making criminal threats, intimidating witnesses, and violating section 148.⁵  It was also found true that Cruz committed the offenses for the benefit and direction of, and in association with a criminal street gang with the intent to promote criminal conduct by gang members within the meaning of section 186.22.   Also, on September 21, 2007, Arturo Manzanero, a Rancho San Pedro gang member, was convicted of robbery.

Officer Castruita testified that cooperation of witnesses is necessary to prosecute gang members, and based upon a hypothetical describing defendant's acts, the acts were done for the benefit of, and in association with the San Pedro Criminal Street gang.   He said that by appearing with another Rancho San Pedro gang member at the courtroom at which witnesses were to testify against two other Rancho San Pedro gang members “show strength in numbers and to intimidate witnesses.”   Officer Castruita further explained that by intimidating and creating fear in witnesses, the witnesses are dissuaded from testifying and it prevents the prosecution of the Rancho San Pedro gang members.   According to Officer Castruita, gang members brag about “beating cases.”   If someone is arrested and not prosecuted, the community will see that the person was not prosecuted and is at will to continue to engage in criminal activity.

B. Procedural Background

In counts one and three of the second amended information, the District Attorney of Los Angeles County charged defendant with attempting to dissuade witnesses, K.M. and Vazquez, in violation of section 136.1, subdivision (b)(2).   In counts two and four defendant was charged with making criminal threats in violation of section 422.   The second amended information also alleged that as to each count, defendant committed the offense for the benefit and direction of, and in association with a criminal street gang, with the intent to promote criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(4).  In addition, the second amended information alleged that each offense was a serious felony pursuant to section 1192.7, subdivision (c).  It was also alleged that defendant previously served prison terms for prior felony convictions within the meaning of section 667.5, subdivision (b).  Defendant pleaded not guilty to the charges and denied the special allegations.   The trial court granted defendant's motion to dismiss count four pursuant to section 995.

The matter was tried before a jury.   During trial, the trial court granted the prosecution's motion to dismiss count two.   On October 28, 2009, defendant was convicted on counts one and three of attempting to dissuade a witness in violation of section 136.1, subdivision (b)(2).⁶  The jury also found true the gang allegation within the meaning of section 186.22, subdivision (b)(4).⁷  Defendant admitted that he previously served prison terms for prior felony convictions within the meaning of section 667.5, subdivision (b).  The trial court sentenced defendant to a term of 14 years to life imprisonment.

DISCUSSION

A. Sufficiency of the Evidence in Support of the Convictions

Defendant contends that there is insufficient evidence to support his convictions for attempting to dissuade K.M. and Vazquez from testifying against two Rancho San Pedro gang members.   Sufficient evidence supports the convictions.

1. Standard of Review

In reviewing a challenge to the sufficiency of the evidence, we apply the following standard of review:  “[We] ․ consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment.   The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.”  (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted;  People v. Hayes (1990) 52 Cal.3d 577, 631;  People v. Johnson (1980) 26 Cal.3d 557, 576.)   Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  (People v. Marshall (1997) 15 Cal.4th 1, 34;  People v. Ochoa (1993) 6 Cal.4th 1199, 1206;  People v. Barnes (1986) 42 Cal.3d 284, 303;  Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908–909.)   The California Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ”  (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)

2. Applicable Law

“The language of section 136.1 focuses on an unlawful goal or effect, the prevention of testimony, rather than on any particular action taken to produce that end.”  (People v. Salvato (1991) 234 Cal.App.3d 872, 883.)   As long as a defendant's words and actions support the reasonable inference that he attempted to induce a person to withhold testimony, a conviction of dissuading a witness is proper.  (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344, superseded on other grounds as stated in People v. Franz (2001) 88 Cal.App.4th 1426, 1442;  see also People v. Young (2005) 34 Cal.4th 1149, 1210 [sufficient evidence of witness dissuasion found in “the combination of defendant's actions and words”] And “[t]he intent with which a person acts is rarely susceptible of direct proof and usually must be inferred from facts and circumstances surrounding the offense.  [Citations.]”  (People v. Massie (2006) 142 Cal.App.4th 365, 371.)

3. Discussion

Sufficient evidence supports defendant's conviction for attempting to dissuade K.M. from testifying.   The evidence showed that K.M. was nervous about testifying at the preliminary hearing because the two defendants in that case “looked like bad people, and [that] they would do something.”   Officers Flores and Castruita testified that the two defendants charged with robbery were Rancho San Pedro gang members.   Officers McVay and Castruita testified that defendant was also a member of the Rancho San Pedro gang, and Officer Oliva testified that defendant was a cousin of one of the robbery defendants.   K.M. saw that defendant was at the courthouse with his girlfriend, Joanna, and another male whom Officers Castruita testified was a Rancho San Pedro gang member.

Joanna handed K.M. a telephone on which K.M. spoke to her grandmother.   When K.M. handed the telephone back to Joanna, defendant was next to Joanna.   K.M. knew that defendant and Joanna had contact with her family because both had attended one of her family's events.   Defendant looked at K.M. and told her “You take care of yourself.”   K.M. testified that she thought defendant would do something to her or her family, and she cried.

Sufficient evidence also supports defendant's conviction for dissuading Vazquez from testifying.   Vasquez testified that defendant told him that defendant was going to kill him.   Defendant contends that Vazquez's testimony should be disregarded because Vazquez did not hear defendant's voice, and that Vazquez testified he read defendant's lips but there was no evidence that Vazquez had any training in lip reading.   Regardless of defendant “mouthing” the words without Vazquez hearing defendant's voice, Vazquez testified that he was “sure of what [defendant] was telling” him.   The evidence established that defendant's statement was not an isolated occurrence.   Vazquez testified that on that occasion defendant said he was going to kill Vazquez at least five times.   And when defendant made the statements he made eye contact with Vazquez, defendant punched his fist into his palm, and defendant looked at Vazquez angrily.

There was also evidence that when Vazquez told Officer Oliva what had happened, defendant fled the courtroom and was ultimately found by the officers near the escalators while peeking in different directions as if he were hiding.   A reasonable jury could conclude from this evidence that defendant acted with a consciousness of guilt.

Despite the substantial evidence to support defendant's conviction for attempting to dissuade Vazquez from testifying, defendant contends that there was insufficient evidence because Vazquez's testimony was not reliable, and only Vazquez had witnessed defendant making threatening statements.   Defendant argues Vazquez's testimony was motivated by revenge against defendant for speaking to K.M. in a threatening manner, and Vazquez was inconsistent about whether he heard defendant say that he was going to kill Vazquez or whether defendant merely “mouthed” the words.

The uncorroborated testimony of a single witness is sufficient to sustain a conviction unless the testimony is physically impossible or inherently improbable.  (People v. Scott (1978) 21 Cal.3d 284, 296.)   The fact that defendant may be able to point to inconsistencies in the testimony and can offer reasons for challenging Vazquez's credibility does not render the evidence constitutionally insufficient.  “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or 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.]”  (People v. Jones (1990) 51 Cal.3d 294, 314;  accord, People v. Perez (1992) 2 Cal.4th 1117, 1124.)

There is nothing inherently incredible or physically impossible in Vazquez's testimony concerning the threats defendant made to him.   It was for the jury to decide whether Vazquez's testimony on this point was credible.

B. Alleged Hearsay

Defendant also contends that the judgment should be reversed because his convictions for attempting to dissuade both K.M. and Vazquez were based upon inadmissible hearsay evidence concerning the content of the telephone call received by K.M., in a violation of his Sixth Amendment right to confront adverse witnesses.   The contention fails because the evidence was admitted for a nonhearsay purpose, and any error was harmless beyond a reasonable doubt.

1. Applicable Law

The confrontation clause provides, “In all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.”   (U.S. Const., 6th Amend.)  “Hearsay statements are only those ‘offered to prove the truth of the matter stated.’  (Evid.Code, § 1200.)”  (In re Clara B. (1993) 20 Cal.App.4th 988, 997.)   Inadmissible hearsay may be admitted for a nonhearsay purpose relevant to an issue in dispute.  (People v. Davis (2005) 36 Cal.4th 510, 535–536;  People v. Turner (1994) 8 Cal.4th 137, 189.)   The confrontation clause is not implicated by the admission of nonhearsay statements.  (Crawford v. Washington (2004) 541 U.S. 36, 68.)

2. Background Facts

On cross-examination, defendant's counsel asked Vazquez “what did [he] mean” when he testified that defendant said that “he knew me.”   Vasquez responded, “I'll answer, but can I tell you the reason that happened?”   Defendant's counsel said he could not do so, and Vazquez answered “no”—which was not responsive to the question posed by defendant's counsel.   On re-direct examination, the prosecutor asked Vazquez the same question that was asked by defendant's counsel—”What was it you meant when you said that the defendant was saying, ‘I know you.’ ”   Vazquez answered that a call had been made to Joanna's telephone and “they” told K.M. and then [Castro] “not to witness—to testify about Joanna's telephone․”  Defendant's counsel objected to the testimony on the grounds it was hearsay, lacked foundation and was speculative.   The trial court overruled the objections, and admonished the jury that the testimony was “not coming in for the truth of whether there was any phone call or threat.   It's only coming in for the state of mind of the witness as to his understanding when he says that the defendant said, ‘I know you.’ ”

The prosecutor told Vazquez, “you can continue [your response].”   Vazquez continued, “Since they offered money to [K.M.] in order for us not to testify, then they got bothered.   First they threatened [K.M.], and they threatened me because we did not accept the money.”   The prosecutor then asked Vazquez “Is that why you felt that the defendant knew you?”   Defendant's objected, without stating the ground, in the middle of Vazquez's response, “Because at that moment ․ I don't know if they were cousins or brothers.”   A sidebar conference was held and defendant's counsel again argued that Vazquez's testimony concerning the substance of the telephone conversation was hearsay.   The trial court sustained the objection only as to the testimony following the prosecutor's question to Vazquez, “Is that why you felt that the defendant knew you?”

3. Discussion

With respect to Vazquez's testimony regarding the substance of the telephone conversation, the trial court gave the jury a limiting instruction that the evidence was not to be considered for the truth of the matter asserted but, instead, was only to be considered for the state of mind of Vazquez as to his understanding of defendant's statement that, “I know you.”   This testimony, therefore, was not hearsay.  (Evid.Code, § 1200;  People v. Davis, supra, 36 Cal.4th at pp. 535–536;  In re Clara B., supra, 20 Cal.App.4th at p. 997.)

It is almost an “ ‘invariable assumption of the law that jurors follow their instructions.’  [Citation.]  ‘[We] presume that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.’  [Citation.]”  (United States v. Olano (1993) 507 U.S. 725, 740;  see People v. Romo (1975), 195.)   We presume the jury followed the limiting instruction that the statement was not offered for the truth of the matter asserted in it.

Defendant contends that the trial court erred in providing the jury with the limiting instruction because Vazquez's state of mind was irrelevant.   Defendant argues that Vazquez's “conclusion that ‘I know you’ meant anything else but ‘I know you’ ” lacks probative value to any issue at trial.   Defendant's counsel found it probative to ask Vazquez that very question—she asked Vazquez what he meant when he testified that defendant said that he knew him.   That question does call for Vazquez's state of mind.

In rebuttal, the prosecutor merely asked Vazquez the same question that defendant's counsel found relevant to ask.  “The admission of evidence in rebuttal is a matter left to the sound discretion of the trial court.”   (People v. Hart (1999) 20 Cal.4th 546, 653.)   The determination whether one party's introduction of evidence “opened the door” to rebuttal evidence is reviewed for an abuse of discretion and will not be disturbed on appeal in the absence of “ ‘palpable abuse.’ ”  (Ibid.) The trial court did not abuse its discretion.   Vazquez's state of mind was relevant to his understanding of defendant's statement that “I know you,” particularly in light of the evidence that defendant tried to prevent Vazquez from testifying.   And, because the statements were admitted for a nonhearsay purpose, defendant's claim fails.   (People v. Mendoza (2007) 42 Cal.4th 686, 698–699.)

Finally, even assuming Vazquez's testimony amounted to a statement offered for its truth and was admitted in violation of defendant's Sixth Amendment confrontation rights, any error was harmless.  “Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].  (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681 [89 L.Ed.2d 674, 106 S.Ct. 1431].)  ‘Since Chapman, we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.’  [Citation.]  The harmless error inquiry asks:  ‘Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?’  (Neder v. United States (1999) 527 U.S. 1, 18 [144 L.Ed.2d 35, 119 S.Ct. 1827].)”  (People v. Geier (2007) 41 Cal.4th 555, 608.)   Based upon the evidence in support of the convictions discussed above any such error was harmless.

C. Admissibility of Gang Expert Testimony

Defendant contends that his due process rights and his right to a jury trial were violated because the trial court erred in allowing Officer Castruita, the prosecution's gang expert, to testify that defendant had the intent to promote, further and assist the Rancho San Pedro gang.   We agree that the trial court erred, but it was harmless error.

1. Applicable Law

A gang expert properly may testify about gang affiliation and activity where such evidence is relevant to an issue of motive or intent.  (See People v. Funes (1994) 23 Cal.App.4th 1506, 1518;  People v. Killebrew (2002) 103 Cal.App.4th 644, 657.)   Similarly a gang expert properly may testify about “whether and how a crime was committed to benefit or promote a gang.”   (People v. Killebrew, supra, 103 Cal.App.4th at p. 657.)   A gang expert may testify about whether a defendant acted for the benefit of a gang, even though the question is an ultimate factual issue in the case, if such matters are beyond the jury's common experience.  (People v. Valdez (1997) 58 Cal.App.4th 494, 506–509;  People v. Killebrew, supra, 103 Cal.App.4th at p. 651, citing Evid.Code, § 805 [“Otherwise admissible expert opinion testimony which embraces the ultimate issue to be decided by the trier of fact is admissible”].)

A gang expert, however, may not opine on whether a “specific individual had specific knowledge or possessed a specific intent.”  (People v. Killebrew, supra, 103 Cal.App.4th at p. 658 [gang expert opinion that vehicle occupants knew there were guns in the car, and that the occupants jointly possessed the guns for their mutual protection was an improper opinion on the ultimate issue and should have been excluded];  People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550–1551.)

2. Discussion

Much of Officer Castruita's testimony was admissible.   It related to the culture and habits of the Rancho San Pedro gang, whether defendant acted for the benefit of the gang, and whether and how a crime was committed to benefit or promote the gang.

The prosecutor, however, also asked Officer Castruita, “Do you have an opinion as to whether the defendant's conduct in this case was committed with the intent to promote, further and assist in further[ing] criminal activity by the Rancho San Pedro gang?”   The trial court overruled defendant counsel's objection that question calls for a conclusion to be decided by the trier of fact, and Officer Castruita responded “yes” to the question.   Officer Castruita continued by testifying that the basis of his opinion is that “It promotes criminal activity because, again, without these gang members being prosecuted against, they're at will—they're free to continue engaging in criminal activity.”   The trial court ran afoul of People v. Killebrew, supra, 103 Cal.App.4th 644;  it erred in overruling defendant's objection and allowing Officer Castruita to opine about defendant's state of mind.

The trial court's error does not require reversal, however.   The Killebrew decision is instructive in that regard.   There, reversal was required because the gang expert's testimony was the only evidence offered by the prosecution to establish the crime.  (Killebrew, supra, 103 Cal.App.4th at p. 658.)   In contrast, the jury here reasonably could infer defendant's “specific intent to promote, further, or assist in any criminal conduct by gang members” (§ 186.22, subd. (b)(4)) from the other evidence presented at trial.

Evidence was introduced that defendant, E.E., and the two robbery defendants were all Rancho San Pedro gang members.   Officer Castruita testified that the Rancho San Pedro gang often engages in, among other things, criminal threats and witness intimidation.   Officer Castruita also opined, based upon a hypothetical describing defendant's acts, that the acts were done for the benefit of, and in association with the Rancho San Pedro gang.

There is substantial evidence that defendant intended to promote, further, or assist in criminal conduct by Rancho San Pedro members by attempting to dissuade K.M. and Vazquez from testifying.   We, therefore, also do not find it reasonably probable that defendant would have received a more favorable result in the absence of the alleged error.  (People v. Watson (1956) 46 Cal.2d 818, 836.)

D. Sufficiency of the Evidence in Support of the Finding That the Crimes Were Gang Motivated

Defendant contends in a heading in his opening brief that there was insufficient evidence that the crimes were “gang motivated.”   Defendant does not develop this argument, other than to contend that it is the prosecution's burden to prove that defendant and his conduct came within the provisions of section 186.22.

The failure to cite authority or develop an argument with reference to any specific alleged deficiencies in the record constitutes a forfeiture of the issue on appeal.  (Magic Kitchen LLC v. Good Things Internat.   Ltd. (2007) 153 Cal.App.4th 1144, 1161–1162;  Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [“Contentions are waived when a party fails to support them with reasoned argument and citations to authority”];  Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)   Defendant has forfeited his contention that that there was insufficient evidence that the crimes were gang motivated.

E. Alleged Prosecutorial Misconduct

Defendant contends that the prosecutor committed misconduct during opening statement, denying defendant his right to a fair trial, by referencing facts that were either inadmissible, or for which no evidence was presented.   Defendant argues, therefore, that his rights under the Fourteenth Amendment to the United States Constitution were violated.   We disagree.

1. Background Facts

During opening statement, the prosecutor told the jury, inter alia, that “Officer Castruita is going to be able to testify that he knows [that defendant was a member of the Rancho San Pedro gang] because on numerous dates, the defendant has been contacted by members—by officers of the Los Angeles Police Department.”   The prosecutor also said during opening statement that “A woman by the name of Joanna Gonzales, who is the defendant's significant other, hands a cell phone to [K.M.]. [¶] And [K.M.] takes the call and realizes that it's one of her cousins on the phone, Joanna Rodriguez.   And Joanna Rodriguez, at that point, puts [K.M.'s] own grandmother on the phone.   And [K.M.] is told over the phone, ‘Don't testify against those two defendants.   One of them is looking at 25 years to life.   Don't testify.’  [¶] [K.M. was] asked, ‘How much money will it take for you not to testify?’ ”   In addition, the prosecutor said, “Officer Castruita ․ detain[ed] [defendant].  [¶] As [defendant] is being brought back in handcuffs, the defendant is being very uncooperative, yelling out to Joanna Gonzales and one other individual I failed to mention.   The evidence is going to show that there was another individual by the name of [E.E.], who was also present․  And what's important about [E.E.] is that he's also a documented member of the Rancho San Pedro gang.  [¶] And as [defendant is] being arrested, he yells out for Joanna Gonzalez, yells to the other RSP gang member, ‘Help me out.   Help me out.’ ”

2. Applicable Law

“ ‘A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it “infects the trial with such unfairness as to make the conviction a denial of due process.”  [Citations.]  In other words, the misconduct must be “of sufficient significance to result in the denial of the defendant's right to a fair trial.”  [Citation.]  A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’  [Citation.]”  (People v. Adanandus (2007) 157 Cal.App.4th 496, 512.)

3. Discussion

Defendant forfeited his claims of prosecutorial misconduct.  “To preserve a claim of prosecutorial misconduct for appeal, ‘ “the defense must make a timely objection at trial and request an admonition;  otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.”  [Citations.]’  [Citation.]”  (People v. Bennett (2009) 45 Cal.4th 577, 595;  accord, People v. Montiel (1993) 5 Cal.4th 877, 914 [although defendant's counsel objected to prosecutor's remarks at trial, failure to request admonition to cure the alleged harm failed to preserve claim of prosecutorial misconduct on appeal].)

After the prosecutor had concluded his opening statement, defendant's counsel objected to the statements and moved for a mistrial.   At no time, however, did defendant's counsel request that the jury be admonished to disregard any portion of the opening statement.   Defendant has failed to demonstrate that appropriate admonitions would not have cured the harm of which he complains.   To the contrary, it appears that a timely admonition to the jury readily would have cured any prejudice.  (See People v. Adanandus, supra, 157 Cal.App.4th at p. 512.)

Assuming, arguendo, that defendant did not forfeit his claims of prosecutorial misconduct, defendant's claims fail on the merits.   First defendant contends that the prosecutor committed misconduct by telling the jury the substance of the telephone conversation with K.M. on Joanna's telephone—that the person on the telephone told K.M., “[d]on't testify against the two defendants,” “[h]ow much money will it take for you not to testify” and “[o]ne of [the defendants] is looking at 25 years to life.”   Defendant argues that it was prosecutorial misconduct because the prosecutor made these statements despite knowing they were inadmissible hearsay.

Defendant was not denied a right to a fair trial by the prosecutor's statements to the jury concerning the substance of the telephone conversation.  “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.”  (People v. Frye (1998) 18 Cal.4th 894, 970, overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)   Defendant, however, has not made such a showing.   Defendant merely concludes that the statements “prejudice[ed] the case indelibly.”   Also, with regard to the prosecutor's statements that K.M. was told on the telephone, “[d]on't testify against the two defendants,” and “[h]ow much money will it take for you not to testify,” Vazquez testified, for the limited purpose of his state of mind, that K.M. was told this.   Also, with regard to these statements, the jury ultimately was instructed that such matters could only be used for the state of mind and not as to their truth.

In addition, “ ‘remarks made in an opening statement cannot be charged as misconduct unless the evidence referred to by the prosecutor “was ‘so patently inadmissible as to charge the prosecutor with knowledge that it could never be admitted.’ ” '  [Citation.]”  (People v. Dykes (2009) 46 Cal.4th 731, 762.)   Prior to the prosecutor's opening statement, defendant did not request that the prosecutor be precluded from referring to the substance of the telephone conversation on hearsay grounds.   And although defendant's counsel did request that the prosecutor not be permitted to refer to the substance of the telephone conversation in his opening statement, the request was made on the ground that there was no evidence that defendant was involved with the telephone conversation.   The prosecutor argued, and the trial court agreed, that the evidence would be admissible because defendant's knowledge of the telephone conversation could be inferred from his proximity to K.M. during the conversation.   We conclude that the prosecutor's statements of what was said to K.M. on the telephone was not patently inadmissible, nor did the prosecutor's statements constitute deceptive or reprehensible methods to persuade either the trial court or the jury.

Defendant contends that the prosecutor committed misconduct by telling the jury that when defendant was detained and arrested at the courthouse, he yelled for help from “the other” Rancho San Pedro gang member, E.E. Defendant argues that this was not admitted into evidence at trial, and it was prejudicial because it advised the jury that defendant was in court with a Rancho San Pedro gang member, that defendant was a Rancho San Pedro gang member, and that defendant resisted arrest.

Defendant is correct when he contends that there was no evidence that when defendant was arrested at the courthouse he yelled for help from “the other” Rancho San Pedro gang member, E.E. Officer Castruita testified that when he detained defendant, defendant called out for “dad” and “Jo–Ann” [sic ].   There was no prosecutorial misconduct, however, because defendant was not prejudiced by the prosecutor's misstatement because other evidence was introduced at trial regarding the inferences that defendant contends were prejudicial.

Officers Castruita and Flores testified that defendant was at the courthouse with E.E., a Rancho San Pedro gang member.   Officers McVay and Castruita testified that defendant had admitted that he was a Rancho San Pedro gang member, and Officer McVay testified that he saw a tattoo of “RSP” on defendant's right shoulder, and that defendant told Officer McVay the initials stood for Rancho San Pedro.   In addition, Officer Castruita testified that while defendant was being detained or arrested, defendant was uncooperative and on two occasions tried to pull away from Officer Castruita.

Defendant also contends that the prosecutor committed misconduct during his opening statement to the jury because there was no evidence introduced at trial to support the prosecutor's statement that that defendant had numerous contacts with law enforcement.   There was, however, such evidence.   Officer Castruita testified that in from 2001 through 2007, defendant had contact with numerous officers and admit that he was a Rancho San Pedro gang member.

In any event, at the conclusion of the trial, the trial court instructed that jury that “Nothing that the attorneys say is evidence.   In their opening statements ․ the attorneys discuss the case, but their remarks are not evidence.”   As noted ante, it is presumed that jurors follow the instructions given to them.  (United States v. Olano, supra, 507 U.S. at p. 740;  People v. Romo, supra, 14 Cal.3d at p. 195.)   Defendant was not denied a right to a fair trial by any of the complained of statements made by the prosecutor during his opening statement.

F. Bifurcation

Defendant contends that the trial court abused its discretion when it denied his motion to bifurcate trial of the gang enhancement allegations under section 186.22 from trial of the charged offenses.   The trial court's error, defendant contends, deprived him of his right to a fair trial.   The trial court could properly deny the motion.

Prior to trial, defendant moved to bifurcate trial of the gang enhancement allegations under Evidence Code section 352.⁸  Defendant argued that gang evidence “would be unnecessary” to prov[e] the substantive crimes because defendant did not reference a gang in any of the allegedly improper statements to K.M. or Vazquez, and that there was a “high prejudicial effect when gangs are mentioned.”   The trial court denied the motion, stating, “I find that there is not undue prejudice that outweighs the probative value;  that there's significant probative value that would establish whether the witnesses were in fear, and therefore the relevance and probative value outweighs any undue prejudice under 352.”

A trial court has the authority to bifurcate trial of a gang enhancement allegation from the determination of the charged offenses.  (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.)   We review a trial court's denial of a motion to bifurcate trial of a gang enhancement allegation for an abuse of discretion.  (Ibid.)

In People v. Hernandez, supra, 33 Cal.4th 1040, the Supreme Court concluded that the trial court acted within its discretion in denying bifurcation of trial of the gang enhancement allegations from trial of the charged offenses.   (Id. at p. 1053.)   The court stated, that because “the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense[,] ․ less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation.  [Citation.]”  (Id. at p. 1048.)   The court further explained that, “In cases not involving the gang enhancement, we have held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal.  [Citation.]  But evidence of gang membership is often relevant to, and admissible regarding, the charged offense.   Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.  [Citations.]  To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary.  [Citation.]”  (Id. at pp. 1049–1050.)

On appeal, defendant concedes that there was some gang evidence that was admissible regarding the charged offense.   Defendant contends, however, that “evidence [of] prior bad acts by fellow gang members to show that RSP is a criminal street gang” would be substantially prejudicial and would not be admissible in a trial of the charged offense.

At the hearing on his motion, defendant did not argue that “evidence [of] prior bad acts by fellow gang members to show that RSP is a criminal street gang” was prejudicial.   Defendant argued, instead, that the mere mention of the term “gangs” would be prejudicial.   Defendant, therefore, forfeited on appeal the argument about prior bad acts by gang members.  (People v. Sisneros (2009) 174 Cal.App.4th 142, 154.)

“Even if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself—for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged—a court may still deny bifurcation ․ [¶] ․ the trial court's discretion to deny bifurcation of a charged gang enhancement is ․ broader than its discretion to admit gang evidence when the gang enhancement is not charged.  [¶] ․ [¶] Even if some of the expert testimony would not have been admitted at a trial limited to guilt, the countervailing considerations that apply when the enhancement is charged permitted a unitary trial.”  (People v. Hernandez, supra, 33 Cal.4th at p. 1050, 1051.)

The court in People v. Hernandez, supra, 33 Cal.4th 1040 explained that “The evidence that some members of [the gang] had been convicted of driving a vehicle without the owner's consent would certainly not have been admissible at a trial limited to the charged offense, but that evidence was also not particularly inflammatory.   Those convictions were offered to prove the charged gang enhancement, so no problem of confusion with collateral matters would arise, and they were not evidence of offenses for which a defendant might have escaped punishment.   Any evidence admitted solely to prove the gang enhancement was not so minimally probative on the charged offense, and so inflammatory in comparison, that it threatened to sway the jury to convict regardless of defendants' actual guilt.   Accordingly, defendants did not meet their burden ‘to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’  [Citation.]”  (Id. at p. 1051.)

The trial court acted within its discretion in denying the motion to bifurcate.   The gang evidence was relevant to prove, inter alia, motive, modus operandi, specific intent, and other issues pertinent to guilt of the charged crimes.   Evidence of predicate crimes committed by other Rancho San Pedro gang members was presented without any detailed, inflammatory testimony concerning the prior crimes.   Thus, there was no serious danger that jury would be tempted to punish defendant for other crimes committed by his gang.

G. Right to Counsel

Defendant contends that the trial court erred in denying his motion to substitute counsel of his choosing, in violation of the Sixth Amendment to the federal Constitution.   We disagree.

On May 8, 2009, Katie M. Trotter was appointed by the trial court to represent defendant.   Trotter represented defendant at his preliminary hearing on June 5, 2009, and the original information was filed against defendant June 19, 2009.   The jury trial was scheduled to commence on October 14, 2009.   On the date set for trial, five months after Trotter had been appointed as counsel for defendant, both Trotter and the prosecutor announced that they were ready for trial.   Walter L. McKinney,⁹ a private counsel, stated that defendant's family hired him to represent defendant and requested to substitute in as attorney of record.

The trial court stated that “I have no indication that [defendant is] dissatisfied with his attorney.”   A person who also appeared before the trial court said “That's what I heard.”

In denying the request for substitution of counsel, the trial court stated, “I can't understand why at this late date the family believes they need to bring in new counsel.  [¶] But that would disrupt the orderly process of the court.   And it will result in significant prejudice.   It is not timely and will result in a disruption of the interests of justice.”   The case was transferred to another courtroom for trial, and the jury trial began three court days later, on October 19, 2009.

“The Sixth Amendment provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right ․ to have the Assistance of Counsel for his defense.’  [It has] previously [been] held that an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him.  [Citation.]”  (United States v. Gonzalez–Lopez (2006) 548 U.S. 140, 144.)   The right to counsel of choice, however, “is circumscribed in several important respects.”  (Wheat v. United States (1988) 486 U.S. 153, 159.)  “[A] trial court[ ][has] wide latitude in balancing the right to counsel of choice against the needs of fairness [citation], and against the demands of its calendar [citation].”  (United States v. Gonzalez–Lopez, supra, 548 U.S. at p. 152.)  “[T]he court may exercise discretion to ensure orderly and expeditious judicial administration if the defendant is ‘unjustifiably dilatory or ․ arbitrarily desires to substitute counsel at the time of trial.’   [Citation.]”  (People v. Leonard (2000) 78 Cal.App.4th 776, 784;  accord, People v. Ortiz (1990) 51 Cal.3d 975, 983.)   In exercising its discretion, the trial court may consider the practical difficulties of “ ‘ “assembling the witnesses, lawyers, and jurors at the same place at the same time.” ’ ”   (People v. Ortiz, supra, 51 Cal.3d at p. 984.)

Defendant was dilatory in his request to substitute counsel.   The request was made on the eve of trial, with both the prosecutor and the court appointed counsel for defendant announcing that they were ready for trial and thus would disrupt proceedings.   The trial court properly acted within its discretion to deny the last minute request to substitute counsel.

H. Cumulative Error

Defendant contends that the cumulative effect of errors committed by the trial court requires the reversal of his convictions.   We disagree.

There has been no showing of cumulative prejudicial error.  (People v. Watson (2008) 43 Cal.4th 652, 704;  People v. Boyette (2002) 29 Cal.4th 381, 467–468;  People v. Seaton (2001) 26 Cal.4th 598, 675, 691–692 [few errors identified were minor and either individually or cumulatively would not alter the outcome of the trial];  People v. Cudjo (1993) 6 Cal.4th 585, 630 [no cumulative error when the few errors that occurred during the trial were inconsequential].)   Whether considered individually or for their cumulative effect, any of the errors alleged did not affect the accuracy of the fact finding process or accrue to defendant's detriment.  (People v. Sanders (1995) 11 Cal.4th 475, 565;  People v. Cudjo, supra, 6 Cal.4th at p. 637.)   As the California Supreme Court has consistently held, “[A] defendant [is] entitled to a fair trial but not a perfect one.”  (People v. Cunningham (2001) 25 Cal.4th 926, 1009;  People v. Mincey, supra, 2 Cal.4th at p. 454;  People v. Miranda (1987) 44 Cal.3d 57, 123.)

Having found merit in only one of defendant's contentions, but finding that error harmless, there is no occasion to consider the cumulative impact of errors.   Defendant received a fair trial.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise stated..  FN1. All statutory references are to the Penal Code unless otherwise stated.

FN2. The trial court admitted this evidence for the limited purpose of Vazquez's state of mind that they were gang members, and not for truth of whether they were gang members..  FN2. The trial court admitted this evidence for the limited purpose of Vazquez's state of mind that they were gang members, and not for truth of whether they were gang members.

FN3. K.M. testified that defendant is not a member of her family..  FN3. K.M. testified that defendant is not a member of her family.

FN4. Vazquez testified that he did not have any special training in lip reading..  FN4. Vazquez testified that he did not have any special training in lip reading.

FN5. Section 148 provided in pertinent part, “(a)(1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician ․ in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.  [¶] (2) Except as provided by subdivision (d) of Section 653t, every person who knowingly and maliciously interrupts, disrupts, impedes, or otherwise interferes with the transmission of a communication over a public safety radio frequency shall be punished by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment. [¶] (b) Every person who, during the commission of any offense described in subdivision (a), removes or takes any weapon, other than a firearm, from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment in a county jail not to exceed one year or in the state prison. [¶] (c) Every person who, during the commission of any offense described in subdivision (a), removes or takes a firearm from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment in the state prison. [¶] (d) Except as provided in subdivision (c) and notwithstanding subdivision (a) of Section 489, every person who removes or takes without intent to permanently deprive, or who attempts to remove or take a firearm from the person of, or immediate presence of, a public officer or peace officer, while the officer is engaged in the performance of his or her lawful duties, shall be punished by imprisonment in a county jail not to exceed one year or in the state prison.”.  FN5. Section 148 provided in pertinent part, “(a)(1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician ․ in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.  [¶] (2) Except as provided by subdivision (d) of Section 653t, every person who knowingly and maliciously interrupts, disrupts, impedes, or otherwise interferes with the transmission of a communication over a public safety radio frequency shall be punished by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment. [¶] (b) Every person who, during the commission of any offense described in subdivision (a), removes or takes any weapon, other than a firearm, from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment in a county jail not to exceed one year or in the state prison. [¶] (c) Every person who, during the commission of any offense described in subdivision (a), removes or takes a firearm from the person of, or immediate presence of, a public officer or peace officer shall be punished by imprisonment in the state prison. [¶] (d) Except as provided in subdivision (c) and notwithstanding subdivision (a) of Section 489, every person who removes or takes without intent to permanently deprive, or who attempts to remove or take a firearm from the person of, or immediate presence of, a public officer or peace officer, while the officer is engaged in the performance of his or her lawful duties, shall be punished by imprisonment in a county jail not to exceed one year or in the state prison.”

FN6. Section 136.1, subdivision (b)(2) provided in pertinent part, “(b) ․ every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:  [¶] (2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof.”.  FN6. Section 136.1, subdivision (b)(2) provided in pertinent part, “(b) ․ every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:  [¶] (2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof.”

FN7. Section 186.22, subdivision (b)(4), provides in pertinent part, “(b) ․ (4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment․”.  FN7. Section 186.22, subdivision (b)(4), provides in pertinent part, “(b) ․ (4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment․”

FN8. Evidence Code section 352, provides that “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.”.  FN8. Evidence Code section 352, provides that “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.”

FN9. The reporter's transcript identifies him as William McKinley..  FN9. The reporter's transcript identifies him as William McKinley.

ARMSTRONG, Acting P. J. KRIEGLER, J.