People v. Yepez CA2/6

Filed 10/22/15 P. v. Yepez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B259074
(Super. Ct. No. 1429721)
Plaintiff and Respondent, (Santa Barbara County)
v.
FREDERICO YEPEZ,
Defendant and Appellant.
Frederico Yepez appeals from the judgment entered after a jury convicted him of
two counts of robbery. (Pen. Code, § 211.)1 The jury found true allegations that he had
personally used a firearm. (§ 12022.53, subd. (b).) It was unable to reach a verdict on
gang enhancement allegations. (§ 186.22, subd. (b)(1)(C).) Appellant was sentenced to
prison for 19 years, four months.
The main issue at trial was the identity of the perpetrator of the robberies. In a
145-page opening brief, appellant contends that (1) he was denied his constitutional right
to effective assistance of counsel, (2) the trial court erroneously denied his motion to
bifurcate the jury's determination of the truth of the gang enhancement allegations, (3) the
trial court erroneously refused to exclude portions of a telephone conversation between
him and his brother, (4) the trial court erroneously admitted evidence of a prior gang-
1
All statutory references are to the Penal Code unless otherwise stated.
1
related robbery that he had committed as a juvenile, and (5) he was denied due process of
law because the trial court admitted an excessive amount of gang evidence. We affirm.
Facts
Appellant and his two brothers, Armando and Miguel, were members of the 18th
Street gang, a criminal street gang. On December 12, 2012, Armando was convicted of
murder with a gang enhancement. The murder was committed for the benefit of the 18th
Street gang and was "an example of one of the primary activities of the . . . gang."
On December 27, 2012, after Armando had been convicted and while he was still
in jail, law enforcement authorities recorded a telephone conversation between Armando
and appellant. Armando said, "[L]et's . . .get . . . a lawyer to do my appeal." Appellant
replied, "[W]e can pay somebody to do that . . . ." Armando said that it should cost "like
five hundred bucks" for a lawyer to file the appeal. He declared, "Nothing is connecting
me to the crime that they're accusing me of foo, there's nothing."2 Armando complained
that he did not "trust" his trial attorney.
Appellant told Armando: "Nigga you, don't worry about it you're gonna have
money to eat nigga, you're gonna have money for everything, you don't have money
nigga, you call nigga." "Just tell me foo, don't trip, don't trip foo, mandatory, I'm from
eighteen foo [the 18th Street gang], I got you foo." (Italics added.)3 "Hey, don't get sad
dude, don't trip foo, I'm telling you, I got you foo." "[Y]ou are going to get out dude."
Armando stated: "Chuckie [Chuckie is the gang moniker of appellant's brother
Miguel] is going to talk to you later, I'm going to make that dude go see you dude . . . ."
"Just keep it in between you guys and that's it."
Appellant said that he was going to contact a female appellate attorney "to see how
much is she talking about." Appellant wanted to "lay . . . some money down flat on her,
so she tells me and, give her a heads up so she can study the entire case dude." Appellant
2
A gang expert testified, "[F]oo comes from the word fool, which is the way a lot of
times [gang members] refer to each other . . . ."
3
A gang expert testified that, when appellant said, "I'm from eighteen," he was
"admitting membership [in] the 18th Street gang."
2
said that the female attorney was a former federal judge who "got two friends out of the
Feds dude." She "charged [the friends] a lot of money, foo, I know that for sure foo."
Appellant assured Armando: "We got everything for you. . . . [M]e and Chuckie, we're
gonna . . . one way or another foo and that shit's gonna be there foo, just know that foo . .
. ."4
On December 29, 2012, two days after the telephone conversation, Miguel
(Chuckie) took a silver Honda Accord that belonged to the mother of his girlfriend, Joana
Esquivel. Esquivel was the mother of Miguel's two children. Before taking the Honda,
Miguel said to Esquivel, "I'm going to go with my brother. I'll be back." Miguel left
around 5:00 to 6:00 p.m. At about midnight Esquivel received a telephone call from
Miguel, who said "that he was on a money mission." A gang expert testified that he had
heard gang members use the term "money mission," which meant "a money task."
In the morning on January 1, 2013, appellant and Miguel's sister, Daisy, informed
Esquivel that she had Esquivel's mother's car and car keys. The car was parked in an
alley near Daisy's mother's residence. The car "was trashed." A few weeks later,
Esquivel's mother received in the mail a traffic ticket for running a red light at 2:32 p.m.
on December 31, 2012. The ticket was accompanied by a photograph of the Honda
Accord when it ran the red light. Miguel was in the driver's seat and appellant was in the
front passenger's seat.
At about 11:52 p.m. on December 30, 2012, Maria Garcia was robbed at gunpoint
while working in a mini-market at a Shell gas station. The robber "had a hoody over his
head," but Garcia got "a good look" at his face. The robber took about $300.
4
Pursuant to Evidence Code sections 452, subdivision (d) and section 459, we take
judicial notice that in an unpublished opinion this court affirmed Armando's convictions
of first degree murder, attempted premeditated and deliberate murder, street terrorism,
and assault with a firearm (three counts), with findings regarding firearm, great bodily
injury, and criminal street gang enhancements, and a prior serious felony strike
conviction. (People v. Yepez (Apr. 28, 2015) 2d Crim. No. B249483.)
3
A camera in the mini-market filmed the robbery, and the video was played for the
jury. On January 8, 2013, sheriff's deputies showed a still image of the robber to
Esquivel. "She burst into tears and started to yell out, 'They didn't do this, did they[?]' "
Esquivel identified the robber as appellant. She said, "Yeah, that's him. Yeah, I'm sure."
Esquivel told the deputies "that she believed that Miguel and [appellant] were on a
money mission to obtain an appellate attorney or defense attorney for Armando, who was
in on a murder charge."
On December 31, 2012, Garcia was shown a "photo array" that included a photo
of appellant. She was unable to identify the robber. She said that a photo of a person
named Robert Harper "looked like the robber." At trial Garcia testified that she "thought"
appellant was the robber. She was "afraid to say this is the person" because she had
"kids."
About 35 minutes after Garcia was robbed, Eddie Diamond was robbed at
gunpoint while working at an AM/PM store that was about a 20-minute ride away from
the Shell gas station. The robber took $415. He ran to a car, got in, and drove away.
Diamond described the car as a "metallic and shiny" compact. "It looked to be silver or
teal." The robber was wearing a hood over his head, a jacket with sleeves, and gloves.
Diamond saw the robber's face and at trial identified appellant as the robber. But
in a photo lineup 10 days after the robbery, Diamond did not select a photo of appellant.
Diamond testified, "There is something about [appellant] that makes me absolutely sure
he was the gentleman that stuck a gun in my face." Diamond said that he was better at
identifying people in person than in a photograph "[b]ecause when I see them in person,
they're three dimensional and a photo is one dimensional."
A camera filmed the robbery at the AM/PM store. The video was played for the
jury. In January 2013 Esquivel showed a still image of the robber to Manuel Escalera,
who was living with Esquivel and her mother. At a barbecue in November 2012,
Escalera had seen appellant wearing a long-sleeve sweatshirt "with a hoody." Escalera
had seen appellant again in December 2012. Escalera told Esquivel that the robber
4
"remind[ed]" him of appellant. Esquivel said "that she thought that [the robber] was
[appellant]."
On January 17, 2013, sheriff's deputies showed Esquivel still images of the robber
of both the Shell gas station and the AM/PM store. Esquivel said: "Yeah, it's just his
[appellant's] body. It's his body. And then his mustache, his face. It fits - yeah. Like the
way he hunches. He hunches. . . . [¶] I cannot mistake the body type. . . . [H]e's chunky
and he hunches." When the police showed her a still image of the robber's face that was
"more clear than the other ones," Esquivel stated, "Yeah, that's his [appellant's] face."
She said that Miguel has a black hoodie, "so if [appellant's] wearing one he's probably
wearing Miguel's."
Esquivel expressed concern for her safety. She told the deputies that if appellant
found out that she had identified him, "he would put a friggin' bullet in my friggin' head."
Sheriff's deputies also showed still images of the robber in both robberies to
Felicitas Juarez. She has been living with appellant's uncle for 18 years and is the mother
of his four children. Juarez identified appellant as the robber.
Appellant testified on his own behalf. He denied participating in the robberies.
Procedural History
There were two preliminary hearings. The complaint for the first preliminary
hearing alleged gang enhancements. (§ 186.22, subd. (b)(1)(C).) The magistrate
dismissed them for insufficiency of the evidence. (§ 871.) Pursuant to section 739, the
People alleged the gang enhancements in the information. Defense counsel did not move
to set aside the enhancements pursuant to section 995.
On the date scheduled for trial, appellant announced that he was ready to proceed
and would not waive time. The trial court granted the prosecutor's oral motion to dismiss
the information. The ground for the motion was that the People needed time to conduct
"further investigation." Neither the prosecutor nor the court mentioned the statute
pursuant to which the action was dismissed. We assume that it was section 1385, which
authorizes the court to dismiss an action "upon the application of the prosecuting
attorney, and in furtherance of justice."
5
The People subsequently filed a new felony complaint alleging the gang
enhancements. At the preliminary hearing on the new complaint, appellant was held to
answer as charged. The People filed an information incorporating the gang
enhancements.
The case was tried to a jury that was unable to reach a verdict. The jury was
deadlocked 11 to 1 in favor of guilt. The court declared a mistrial.
At the retrial, the jury returned guilty verdicts on the robbery charges and found
the firearm enhancements true. But it was unable to reach a verdict on the gang
enhancements. The same judge presided at both trials.
Effective Assistance of Counsel
First Gang Emhancements
Appellant contends that he was denied effective assistance of counsel because
counsel failed to move to set aside the gang enhancements in the first information filed
after the initial preliminary hearing. The standard for evaluating a claim of
ineffective counsel is set forth in Strickland v. Washington (1984) 466 U.S. 668, 687 [104
S.Ct. 2052, 80 L.Ed.2d 674]: "First, the defendant must show that counsel's
performance was deficient. . . . Second, the defendant must show that the deficient
performance prejudiced the defense." We need not determine whether counsel was
deficient for not moving to set aside the gang enhancements in the first information.
Appellant was not prejudiced because the first information was dismissed on the People's
motion pursuant to section 1385.
Second Gang Enhancements
For the first time in his reply brief, appellant argues that he was denied effective
assistance of counsel because counsel failed to move to set aside the gang enhancements
in the second information filed after the second preliminary hearing. The argument is
forfeited because it was not raised in appellant's opening brief. (People v. Duff (2014) 58
Cal.4th 527, 550, fn. 9.) In his opening brief appellant states: "Failure to assert a
meritorious motion to dismiss gang enhancements pursuant to section 995 upon filing of
the first information [not second information] was constitutionally deficient
6
performance." (Italics added.) "There was no evidence at the first preliminary hearing of
the jail call evidence, that might support probable cause to find [appellant] and Miguel
were hatching a plan to raise money for Armando's appellate defense."
The argument is also forfeited because appellant fails to present a summary of the
relevant evidence presented at the second preliminary hearing. " 'The purpose of a
motion to set aside the accusatory pleading under Penal Code section 995 is to review the
sufficiency of the indictment or information on the basis of the record made before the
grand jury in the one case or the magistrate at the preliminary hearing in the other.' "
(Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 269.)
Alleged 1387 Bar
Appellant contends that he was denied effective assistance of counsel because
counsel failed to move to dismiss the gang enhancements in the second information filed
after the second preliminary hearing. Appellant argues that a dismissal was required
pursuant to section 1387, subdivision (a), which provides that "[a]n order terminating an
action" pursuant to section 1385 or 871 "is a bar to any other prosecution for the same
offense" if "the action has been previously [so] terminated." Although a gang
enhancement is not an "action" or an "offense," the dismissal of the enhancement is
treated as an order terminating an action within the meaning of section 1387. (People v.
Carreon (1997) 59 Cal.App.4th 804, 808, 810.)
Appellant claims that the gang enhancements were twice terminated within the
meaning of section 1387. The first termination allegedly occurred when the magistrate at
the initial preliminary hearing dismissed the gang enhancements for insufficiency of the
evidence pursuant to section 871. Despite this dismissal, pursuant to section 739 the
People filed the first information with the gang enhancements. The second termination
allegedly occurred when the first information in its entirety was dismissed pursuant to
section 1385.
There was only one termination of the gang enhancements within the meaning of
section 1387. The termination occurred when the trial court dismissed the first
information pursuant to section 1385. "Section 739 . . . allows the prosecution to file an
7
information alleging charges that have been dismissed by the magistrate. In such a case it
would appear that the magistrate's dismissal would not be '[a]n order terminating the
action' as provided in section 1387." (People v. Carreon, supra, 59 Cal.App.4th at p.
807.) In People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 745, the court
explained: "[T]he magistrate's dismissal under section 871 at the preliminary hearing
does not terminate the action. The action continues with an information filed under the
same case number pursuant to section 739. The action is not terminated at all if the
superior court disagrees with the magistrate and denies a section 995 motion based on the
evidence produced at the preliminary hearing. . . . In any event, the action remains alive
at least until the superior court agrees with the magistrate's ruling and grants the
defendant's section 995 motion. The action is terminated when the superior court
dismisses the information pursuant to section 995 [or, as here, pursuant to section 1385]."
Bifurcation of Gang Enhancements
Appellant argues that the trial court abused its discretion in denying his motion to
bifurcate the jury's determination of the truth of the gang enhancements. With
bifurcation, "guilt of the underlying charge[s] [would have been] tried first and the truth
of the gang enhancement allegation[s] would [have been] tried only if, and after, the jury
found [appellant] guilty." (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.)
A trial court has broad discretion to deny a defendant's motion for bifurcation of a
gang enhancement. (People v. Hernandez, supra, 33 Cal.4th at p. 1050.) We review the
denial for abuse of discretion. (Ibid.) The burden is on the defendant " 'to clearly
establish that there is a substantial danger of prejudice requiring that the charges be
separately tried.' [Citation.]" (Id., at p. 1051.) "[E]vidence 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 . . .
motive . . . 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
8
necessary. [Citation.]" (Id., at pp. 1049-1050.) "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." (Id., at p. 1050.)
"We must evaluate motions for severance [of charged offenses] . . . in light of the
showings then made and the facts then known. [Citations.]" (People v. Balderas (1985)
41 Cal.3d 144, 171.) The same rule should apply when we evaluate a pretrial motion for
bifurcation.5 At the hearing on appellant's motion for bifurcation, the prosecutor stated
that the recorded telephone conversation between appellant and Armando "references
gang affiliations and how it relates in terms of obtaining finances and doing this for 18th
Street, so that goes directly to the motive to commit the crimes . . . ." The trial court
observed: "Here, it appears to me, from having heard the evidence in the case once before
and having had discussions with counsel in pretrial, that [a] nexus does exist [between the
gang evidence and the robberies], because you have jail conversations days before the
alleged robberies occurred, which would indicate a motive that, at the very least, may
have a familial element, but also has a gang element. I think those are intertwined . . . ."
The court asked defense counsel, "Are you suggesting that it might be within the Court's
proper purview to allow the prosecution to argue a familial motivation for the
commission of the offense, but not a gang purpose?" Counsel answered, "Yes." In
denying the motion for bifurcation, the court declared: "You [defense counsel] think she
[the prosecutor] shouldn't be allowed to get into gang evidence, and that's the fodder for
your motion to bifurcate. I don't see how that can occur given the factual circumstances
that exist in this case. I just don't think that you can separate out . . . gang evidence . . . ."
5
"[S]everance requires selection of separate juries, and the severed charges would always
have to be tried separately; a bifurcated trial is held before the same jury, and the gang
enhancement would have to be tried only if the jury found the defendant guilty." (People
v. Hernandez, supra, 33 Cal.4th at p. 1050.)
9
The trial court did not abuse its discretion. " 'Under the abuse of discretion
standard, "a trial court's ruling will not be disturbed, and reversal . . . is not required,
unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd
manner that resulted in a manifest miscarriage of justice." [Citation.]' [Citation.]"
(People v. Foster (2010) 50 Cal.4th 1301, 1328-1329.) The trial court reasonably
concluded that gang evidence was admissible to show that appellant was particularly
motivated to commit the robberies. Armando was not just appellant's brother. He was
also a fellow gang member, and he needed money to hire an appellate attorney. At the
first trial, a gang expert testified: "[I]n gang culture, loyalty to your gang is everything. . .
. I've seen gang members stab their brothers at the direction of a gang. I've read articles
where gang members from 18th Street have testified in court that their loyalty to their
gang is higher than their loyalty to their own mother . . . ." "[I]n my training and
experience, their loyalty to their gang comes before their family."
At the first trial the prosecutor asked the gang expert a hypothetical question
incorporating facts similar to those in the instant case. The expert opined that the
robberies were committed "in association with the 18th Street gang" and for the benefit of
the 18th Street gang. The expert explained: The person committing the robberies is
"attempting to help a fellow gang member who is incarcerated or who is convicted for a
murder, and if you're able to fund an . . . appellate attorney for this person, and this
person is free, now you're not only freeing a fellow gang member, but you're freeing
someone with elevated status within the gang. [¶] . . . This person that [is] free
committed the ultimate way to prove your loyalty to the gang, which is a murder, so that
would score points on the person committing the [robberies.]" "The member committing
[the robberies] also elevates [his] status within the gang as a person that [the] gang can
depend on to commit crimes in their name. It elevates the status of the gang member and
it . . . upholds the violent image and reputation of the gang." Accordingly, we reject
appellant's contention that "the commission of the [robberies] . . . had no gang overtones
whatsoever."
Admission of Telephone Conversation between Appellant and Armando
10
Defense counsel did not object to the admission of pages 17-38 and 74-84 of a
redacted transcript of the telephone conversation between appellant and Armando. But
counsel objected on relevance grounds to the admission of the conversation at pages 38 to
74 of the redacted transcript because it contained nothing "regarding getting money to
assist with retaining an appellate attorney." Counsel asserted, "[E]ssentially from pages
38 to 74 of the transcript, there's nothing relevant having to do with attorneys, getting
money for an attorney . . . ." The prosecutor protested that pages 38 to 74 contained
references to Armando's need for money and appellant's gang affiliation. For example, at
page 44 appellant told Armando, "Nigga you, don't worry about it you're gonna have
money to eat nigga, you're gonna have money for everything, you don't have money
nigga, you call nigga." At page 46 appellant said, "[D]on't trip foo, mandatory, I'm from
eighteen [18th Street gang], foo, I got you foo." The trial court pointed out that at page 41
Armando had stated that he did not "trust" his trial attorney. In overruling defense
counsel's relevance objection to the admission of pages 38 to 74, the court declared, "I
simply don't agree with you that there's nothing of any relevance within the pages that
you've referenced."
Appellant contends that the trial court abused its discretion in overruling counsel's
relevance objection. We conclude that the court acted within its discretion. The trial
court reasonably determined that pages 38 to 74 contained evidence relevant to
appellant's alleged motive for committing the robberies. During closing argument, the
prosecutor told the jury, "[T]he motive for both of these robberies was to obtain finances
for an appellate attorney for the [appellant's] brother and fellow 18th Street gang
member." "Gang evidence is relevant and admissible when the very reason for the
underlying crime, that is the motive, is gang related. [Citation.] ' "[B]ecause a motive is
ordinarily the incentive for criminal behavior, its probative value generally exceeds its
prejudicial effect, and wide latitude is permitted in admitting evidence of its existence."
[Citations.]' [Citations.]" (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-
1168; see also People v. Martin (1994) 23 Cal.App.4th 76, 81 ["Case law holds that
11
where evidence of gang activity or membership is important to the motive, it can be
introduced even if prejudicial"].)
Admission of Evidence of Prior Gang-Related Robbery
Appellant argues that the trial court abused its discretion in admitting evidence of
a prior gang-related robbery that he had committed as a juvenile. (When the instant
robberies were committed, appellant was 23 years old.) The evidence showed that in July
2004 three 18th Street gang members, one of whom was appellant, had committed a
robbery of Hector Garcia.
Garcia testified as follows: In July 2004 he was 15 years old. While he and his
younger brother were walking home, three persons approached them. One of the persons
was appellant. Garcia recognized appellant because he had seen him at school and in the
neighborhood. Appellant was wearing a T-shirt and had made no attempt to disguise
himself. He was not wearing a hat or a "hoody." Garcia saw the numbers "1" and "8"
tattooed on his arms. One of the three persons pointed a firearm at Garcia's chest.
Appellant and another person pushed Garcia to the ground and took his shoes, cellphone,
and a plastic bag that contained a jersey. The three persons then ran away. Garcia never
recovered the property taken from him.
Appellant testified that he had been charged with robbing Garcia, that he had "pled
guilty," and that he had been committed to "a six-month camp program." But he was
transferred to the California Youth Authority because he got into fights with other
persons at the camp. He spent seven years, three months in custody and was not released
until November 2011.
The trial court instructed the jury that it could consider evidence of the prior
robbery for the limited purpose of deciding whether, as to the charged offenses, (1)
appellant had the specific intent to deprive the owner permanently of his property, (2)
appellant had "acted with the specific intent to assist, further, or promote criminal
conduct by gang members," (3) appellant had a motive to commit the offenses "and the
gang enhancements," and (4) appellant "had knowledge of identification procedures used
by prosecution agencies, such as clothing and tattoo descriptions, to aid law enforcement
12
in identifying a particular individual as a perpetrator to a crime, and to explain
[appellant's] alleged conduct in conformity with that knowledge."
"Evidence of other crimes is not admissible merely to show criminal propensity,
but it may be admitted if relevant to show a material fact such as intent. [Citations.] To
be admissible, there must be some degree of similarity between the charged crime and the
other crime, but the degree of similarity depends on the purpose for which the evidence
was presented. The least degree of similarity is needed when . . . the evidence is offered
to prove intent. [Citation.] . . . The determination whether to admit other crimes evidence
lies within the trial court's discretion. [Citation.]" (People v. Jones (2011) 51 Cal.4th
346, 371.)
"The [2004] robbery and the [instant robberies] were not particularly similar, but
they contained [two] crucial point[s] of similarity - the intent to steal from victims whom
[appellant] selected [and the involvement of other 18th Street gang members]. Evidence
that [appellant] intended to rob [Garcia] tended to show that he intended to rob when he
participated in the [instant] crimes. This made the evidence relevant on that specific
issue . . . ." (People v. Jones, supra, 51 Cal.4th at p. 371.) Moreover, "[t]he fact that
defendant previously committed a [robbery], under circumstances indicating that he did
so for gang-related purposes, helped show that he likely committed the instant [robberies]
for gang-related purposes." (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212.)
Appellant contends that the trial court abused its discretion because the probative
value of the prior robbery was substantially outweighed by the probability that it would
cause undue prejudice. (Evid. Code, § 352.) We disagree. "The evidence was presented
quickly, and the parties did not dwell on it. [The prosecutor's direct examination of
Garcia comprises only 10 pages of the reporter's transcript.] The [2004] robbery was not
particularly inflammatory when compared with the . . . facts of the charged crimes. The
court instructed the jury on the proper purpose for which it could consider the evidence,
which we presume the jury followed. [Citation.] The fact that [appellant] was
[adjudicated a ward of the juvenile court for the] robbery reduced any prejudicial effect,
as the jury would not be tempted to convict defendant of the charged offenses in order to
13
punish him for the previous crime . . . ." (People v. Jones, supra, 51 Cal.4th at pp. 371-
372.)
Appellant "argues that only identity was actually disputed at trial, and he did not
dispute the perpetrator's intent to rob [the victims]. Even if this is so, it is not dispositive.
'[T]he prosecution's burden to prove every element of the crime is not relieved by a
defendant's tactical decision not to contest an essential element of the offense.'
[Citation.]" (People v. Jones, supra, 51 Cal.4th at p. 371.) In any event, evidence of the
2004 robbery was properly admitted to show that appellant "likely committed the instant
[robberies] for gang-related purposes." (People v. Zepeda, supra, 87 Cal.App.4th at p.
1212.)
Because evidence of the 2004 robbery was admissible to show appellant's intent
and gang-related purpose in committing the instant robberies, we need not decide
whether the trial court properly instructed the jury that it could consider the 2004 robbery
for the purpose of determining "[w]hether [appellant] had knowledge of identification
procedures used by prosecution agencies . . . ." If this instruction was erroneous, the
error was harmless.
Excessive Gang Evidence
Appellant asserts: "[T]here was such an excessive amount of gang evidence
presented as to deprive [him] of his rights to a fair trial and due process of law." "The
court abused [its] discretion in failing to act as the gatekeeper, to confine the prosecutor's
presentation of gang expert testimonies and specific gang evidence as relevant to the
material issues of this case." Appellant presents a 12-page summary of the excessive
gang evidence that allegedly resulted in "overkill." With two exceptions, he does not
show that he objected to the introduction of any of this evidence, let alone that he
objected on the ground that the evidence was excessive. Appellant contends that "[t]he
court erred in allowing the evidence over defense objections," but he does not support
this contention with citations to the record. " 'If a party fails to support an argument with
the necessary citations to the record, that portion of the brief may be stricken and the
14
argument deemed to have been waived. [Citation.]' [Citations.]" (Miller v. Superior
Court (2002) 101 Cal.App.4th 728, 743.)
" ' " '[Q]uestions relating to the admissibility of evidence will not be reviewed on
appeal in the absence of a specific and timely objection in the trial court on the ground
sought to be urged on appeal.' " ' [Citation.] . . . The failure to raise a specific objection
to the admission of evidence results in forfeiture of appellate review. [Citation.]"
(People v. Nelson (2012) 209 Cal.App.4th 698, 711.) "To the extent . . . [defendant]
argues that due process required the court to exclude the evidence for a reason not
included in the trial objection, that argument is forfeited because he did not object to the
evidence on that basis at trial." (People v. Partida (2005) 37 Cal.4th 428, 431.)
We discuss the first of the two instances where appellant shows that he objected to
the allegedly excessive gang evidence. The first instance was his pretrial objection to the
admission of evidence of an "attempted assault or assault" that he had committed while in
county jail awaiting trial on the instant robberies. According to the prosecutor's offer of
proof, appellant "[b]roke away from custodial staff and entered the protective custody
unit, [which] houses individuals who are either gang member dropouts or people who are
cooperating with law enforcement, . . . and began yelling, " 'Fuck P.C., you're molesters,
you're rapists.' " The prosecutor said that he wanted to introduce this evidence to show
that appellant was an active 18th Street gang member who was seeking to "enhance[] his
reputation and status within [the] gang." Defense counsel objected on Evidence Code
section 352 grounds. Counsel declared: "[T]here's more than ample information for the
gang expert to rely upon without having to get into the more recent incidences that
occurred at the jail . . . ." "And so the question for me becomes . . . how many is enough?
. . . So it just at some point feels like it's piling on."
The trial court replied, "I think" that the jail incident is "probative on the issue" of
whether the instant robberies were committed "for the purposes of promoting a gang
interest." But the court did not rule on appellant's objection. It stated: "I think I just have
to wait and see how it [the evidence presented at trial] plays out . . . ." "[T]here has to be
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a proper numerical limitation. I'll just have to wait and see what that is, and I'll preserve
your objection on that issue as we proceed through the trial."
At trial the gang expert testified about the jail incident without objection from
appellant. By failing to renew his objection when the expert testified and to press for a
ruling on the objection, appellant did not preserve the issue for appeal. "A tentative
pretrial evidentiary ruling, made without fully knowing what the trial evidence would
show, will not preserve the issue for appeal if the appellant could have, but did not, renew
the objection . . . and press for a final ruling in the changed context of the trial evidence
itself. [Citations.]" (People v. Holloway (2004) 33 Cal.4th 96, 133.) Our Supreme Court
has also noted that a properly made motion in limine to exclude evidence preserves the
issue for appeal "[w]hen such a motion is made and denied." (People v. Morris (1991) 53
Cal.3d 152, 190, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th
824, 830, fn. 1.) Here, appellant's "motion in limine," i.e., pretrial objection to the
admission of evidence of the jail incident, was never denied.
Even if appellant had timely renewed his objection to the expert's testimony about
the jail incident, the trial court would have acted within its discretion if it had overruled
the objection. The gang expert testified that appellant got "away from custodial staff"
and "attempt[ed] to assault inmates in the protective custody unit." The expert opined
that the incident showed he was "still supporting [the] gang lifestyle, [the] gang culture."
The expert explained that gang members are "expected to attack or retaliate against
people [such as those in protective custody] who are considered to be rats or snitches." If
a jailed gang member attacked protective custody inmates, his standing within the gang
and the gang's reputation would be enhanced. Thus, the jail incident was admissible to
show appellant's loyalty to the gang. This supported the People's theory that the motive
for the instant robberies was to obtain funds so that a fellow gang member could hire an
appellate attorney.
Brother's Gang Related Offenses
Appellant objected to District Attorney Investigator Michael Hoier's testimony
concerning gang-related offenses committed by appellant's brothers, Armando and
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Miguel. The prosecutor argued that evidence of the brothers' gang-related offenses was
admissible to establish the predicate offenses for the gang enhancements and to show the
primary activities of the 18th Street gang. Defense counsel responded, "I don't have a
quarrel with the [the prosecutor's gang] expert [Alfredo Aguayo] using those incidents as
a basis for his opinion . . . ." But counsel did not want Hoier testifying about the
incidents. The trial court stated, "I don't think there's a reasonable, cognizable objection
to what the People want to put forth as evidence in order to meet their burden, so I'll note
your objection and overrule [it] . . . ." We find no abuse of discretion in the trial court's
ruling.
Even if the trial court had erroneously admitted the allegedly excessive gang
evidence over appellant's proper objection, the error would not have resulted in a denial
of due process. "[T]he admission of evidence, even if erroneous under state law, results
in a due process violation only if it makes the trial fundamentally unfair. [Citations.]"
(People v. Partida, supra, 37 Cal.4th at p. 439.) The allegedly excessive gang evidence
did not so infect the trial process as to render it fundamentally unfair.
"Absent fundamental unfairness, state law error in admitting evidence is subject to
the traditional Watson test [People v. Watson (1956) 46 Cal.2d 818, 836]: The reviewing
court must ask whether it is reasonably probable the verdict would have been more
favorable to the defendant absent the error. [Citations.]" (People v. Partida, supra, 37
Cal.4th at p. 439.) It is not reasonably probable that a result more favorable to appellant
would have been reached if the allegedly excessive gang evidence had been excluded.
There was overwhelming admissible evidence establishing appellant's identity as the
perpetrator of the robberies. The jury was instructed that it "may not conclude from [the
gang evidence] that the defendant is a person of bad character or that he has a disposition
to commit crime." We presume that the jury followed this instruction. (People v.
Yeoman (2003) 31 Cal.4th 93, 138-139.) We also consider that the jury viewed both the
videos of the robberies and the still images of the robber. The jury was therefore able to
make its own assessment whether appellant was the person depicted in the videos.
Disposition
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The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
18
Frank J. Ochoa, Judge
Superior Court County of Santa Barbara
______________________________
Sylvia W. Beckham , under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, Rama R. Maline and Esther Kim,
Deputy Attorneys General, for Plaintiff and Respondent.
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