People v. Ramirez, 2010 Cal. App. Unpub. LEXIS 7494 (CA Ct. App. 2010)

State:
Date: September 20, 2010
Defendant: Ramiriz

People v. Ramirez, 2010 Cal. App. Unpub. LEXIS 7494 (CA Ct. App. 2010)

Court of Appeal of California, Sixth Appellate District

September 20, 2010, Filed

H033496

2010 Cal. App. Unpub. LEXIS 7494; 2010 WL 3621908

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH RAYMOND RAMIREZ, Defendant and Appellant.

Judges: Mihara, J.; Bamattre-Manoukian, Acting P. J., Duffy, J. concurred.

Opinion by: Mihara

Defendant Joseph Raymond Ramirez was convicted by jury trial of first degree murder (Pen. Code, §§ 187, subd. (a), 189), attempted murder with premeditation (Pen. Code, §§ 187, subd. (a), 664), and possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). The jury also found true gang allegations (Pen. Code, § 186.22, subd. (b)(1)) as to the attempted murder and possession counts, and firearm allegations (Pen. Code, §§ 12022.53, subds. (b), (c) & (d)) as to the murder and attempted murder counts. Defendant admitted a prior prison term (Pen. Code, § 667.5, subd. (b)) allegation. He was committed to state prison to serve an indeterminate term of 90 years to life consecutive to a determinate term of six years.

On appeal, he contends that the trial court prejudicially erred in (1) giving irrelevant instructions on citizen’s arrest, brandishing, mutual combat, and pretext in connection with his self-defense and imperfect self-defense claims, (2) precluding the defense from impeaching a prosecution witness with evidence of a prior act of unlawful sexual intercourse, (3) threatening to instruct the jury regarding a purported defense discovery violation if the defense cross-examined a prosecution witness about an alleged prior inconsistent statement, and (4) admitting evidence of too many predicate acts to support the gang enhancement allegations. We conclude that the trial court did not prejudicially err, so we affirm the judgment.

I. Factual Background

Armando Tapia Guzman lived at 68 Herman Court in Watsonville with his cousins. 1 Armando had had “problems” with the people who lived in the house across the street from him. These people would speak “aggressively” to Armando and his cousins, but Armando could not understand what they were saying because they spoke in English. He and his cousins did not respond to these people. Armando had seen defendant at the house across the street from him a number of times, but he did not know defendant.

Defendant’s friend Abraham Barcelo lived at 69 Herman Court, the house across the street from Armando’s residence. Defendant believed that the people who lived in Armando’s residence were “Mexicans,” and he had seen people he suspected of being Sureno gang members there. Nortenos and Surenos are enemies. Defendant, who was 20 years old in March 2003, had associated with members of the Varrio Green Valley (VGV) gang, one of numerous Watsonville “Norteno subsets,” 2 for several years prior to March 2003. 3 During that period of time, the police considered VGV to be “the most violent criminal street gang within the Watsonville area.” VGV’s “primary activities” included assault with a deadly weapon and murder. VGV associates with the color green in addition to the color red, the number 14 and the letter “N.” Surenos associate with the color blue and often wear blue belts. If someone came into VGV territory wearing blue, defendant would “hit them up” and often beat them up; defendant participated in a lot of fights. Hitting someone up means asking where the person is from, which is a gang challenge. Although defendant had long been a VGV “associate[],” as of March 2003, he “was still tryin’ to get in” to VGV.

On Sunday, March 30, 2003, Armando’s uncle Ricardo Guzman, who lived in San Jose, came to visit Armando and Armando’s cousins. Armando and Ricardo each drank six or seven beers. Armando’s uncle or cousin Federico Guzman also came over, and he joined them for another beer. Armando was drunk, but he felt he was thinking clearly. The three men decided to walk to nearby Rolling Hills Middle School to smoke marijuana. This school was in VGV territory. As the three men were leaving Armando’s house, Federico saw a man at 69 Herman Court giving them an “angry look.” Defendant, who was at 69 Herman Court and was carrying a semi-automatic handgun, followed the three men. The three men walked to the school and crossed the basketball courts where two girls and two boys were playing. They proceeded to baseball field “Number 3” where they sat on benches and began smoking marijuana. The number “3” on the field’s sign had been crossed out in green paint. Green is the color associated with VGV, and “3” is a number associated with Surenos.

Defendant, who was wearing a black hooded sweatshirt with the hood up, walked up to the boys who were playing at the basketball courts and spoke to them. One of the boys then spoke to one of the girls. The boys and the girls then left the basketball courts. Defendant walked from the basketball courts to where the three men were sitting. As he passed by about 12 feet in front of them, defendant stared at the three men and gave them a “hard” and “angry” look. Armando looked down, and, when he looked up again, defendant was gone. None of the three men said anything to defendant.

When the three men were done smoking, they got up to return to Armando’s house. Defendant returned and began yelling at them in English. Armando did not understand English, so he had no idea what defendant was saying. Federico knew very little English, but he understood enough English to discern that defendant was saying ” ‘Where are you from?’ ” When a gang member asks a person “Where are you from,” it is a “challenge.” Such a “challenge” is sometimes referred to as “hit[ting] somebody up.” The three men stopped walking and turned toward defendant. Ricardo responded: “Mexican.”

Defendant believed that Armando, who was wearing a blue hat, was a Sureno gang member. Defendant, who was now about 10 to 18 feet away from them, started walking toward them while yelling at them angrily: ” ‘Where are you from, fucking scrapas?’ ” Federico did not know what “scrapas” meant. “Scrapas” is a derogatory term used by Nortenos to refer to Surenos. Defendant did not appear to be intoxicated or “high on drugs.” Defendant pulled a gun out of his waistband, “pulled the slide back,” and pointed it at the three men. He stopped about 12 feet away from the three men, and blocked their path. Defendant demanded ” ‘Let me see your belts.’ ” Defendant also said ” ‘Puro Norte,’ ” “I’m from Norte,” and repeated ” ‘fucking scrapas’ ” twice. Federico was very scared, and the marijuana was making him feel nervous. He lifted up his sweatshirt and showed defendant his black belt. Ricardo and Armando also displayed their belts. Armando was wearing a blue belt. Armando and his uncles had no weapons.

Defendant became focused on Armando. Defendant aimed the gun at Armando, but Ricardo stepped between defendant and Armando, put his hands up, and told defendant in Spanish to “calm down.” Defendant continued to yell at Armando, and then he took a step to the side and fired his gun at Armando. Armando was struck by a bullet in the face, and he fell to the ground, heard a second shot, and lost consciousness. Federico immediately ran away because he feared that he too would be shot. As he was running away, he looked back and saw defendant running away and Ricardo running after him. Ricardo was about three feet behind defendant. About 10 seconds later, Federico heard two shots.

A young boy who was playing with his dog in his backyard heard “screaming and a gunshot.” He looked through a hole in his fence that allowed him to see baseball field “Number 3” at Rolling Hills Middle School from a distance of about a football field. The boy saw “two guys fighting for a gun.” Both men were standing, and one man had a gun in his hand, while the second man had his hands on the wrist of the first man. The first man pushed the second man to the ground. The second man fell to the ground, and the boy heard a gunshot. The boy saw the man with the gun run away.

Ricardo was shot by defendant in the face. He died as a result of a hollow point bullet entering his eye socket, penetrating his skull, and passing through his brain. Armando survived.

Defendant ran from the field to his friend Raul Gonzales’s home, which was across the street from the school, and asked to use the phone. Gonzales let defendant use the phone alone in Gonzales’s bedroom while Gonzales went to the bathroom to wash his hands. While Gonzales was out of the room, defendant hid the gun, magazine, and bullets in Gonzales’s room. After Gonzales had washed his hands, defendant asked him for a ride. Defendant told Gonzales that he had dislocated his shoulder, a frequent occurrence for defendant, and defendant appeared to be in pain. Defendant did not appear to be under the influence. Gonzales tried to help defendant “relocate” his shoulder, but their efforts were unsuccessful. Gonzales gave defendant a ride. At first defendant wanted to go to a doctor for his shoulder, but then he asked Gonzales to take him to Salinas. They stopped along the way so that defendant could use a pay phone, and defendant also managed to pop his shoulder back into place. Defendant directed Gonzales to a house in Salinas where defendant met up with a girl. Gonzales knew that defendant associated with a Norteno gang, and he had seen defendant get into a fight with Sureno gang members.

At the house in Salinas, Gonzales overheard defendant, who seemed “excited,” make a phone call to Barcelo during which he told Barcelo about the shootings. First, defendant told Barcelo “I need you to get rid of the guns.” Defendant said he had left two additional guns at Barcelo’s house. Defendant proceeded to tell Barcelo “that he had just pulled a jale” and “I’m in for life.” “Jale” means “job,” and the term is used by gang members to refer to committing a crime for the benefit of a gang. Defendant told Barcelo that he had “followed the guys;” “told the little kids to leave;” and “walked up to the benches and hit two guys up.” Gonzales knew that “hit somebody up” meant “asking them where they from.” Defendant said that he had “wanted to see their belt, the color of it.” Gonzales knew that a blue belt was believed to signify an association with Surenos, while a red belt “stand for Norte or something.” Defendant told Barcelo that “[t]hey didn’t want to show it to him.” So, “[h]e told ’em like, Norte or something, and the guy said, like, fuck that.” Defendant explained to Barcelo that he shot one of the guys in the head, and “[s]moke came out of his head.” Defendant said that “the other guy said, ‘Jesus, give me back my brother.'” Defendant “told the other guy to take off his belt and he can leave.” “[T]he guy was leaving, and then they got into like a fight and wrestling.” Defendant said that “they wrestled, and that he shot him, and just ran to [Gonzales’s] house.” Gonzales heard defendant tell Barcelo that defendant had “left the gun and shit” at Gonzales’s home.

After defendant finished his conversation with Barcelo, defendant threatened Gonzales and told him to tell the police that he had not seen defendant. Defendant also said that “Abraham [Barcelo] better not say nothing” “[o]r his family’s gonna be fucked.” Gonzales returned home and was immediately arrested by police officers who were waiting at his home for him. The gun that defendant had used to shoot Armando and Ricardo was found in Gonzales’s bedroom along with a magazine clip, a bullet, and a bag of marijuana. Defendant’s blood was on the trigger of the gun. The gun had been reported stolen in August 2001 during a residential burglary in Watsonville. Defendant telephoned Gonzales the day after the shootings and asked him if he still had the gun. Gonzales told defendant that the police had taken the gun. Defendant was upset and said ” ‘I’ll be there right now.’ ” This frightened Gonzales, and he immediately called the police.

Defendant fled to Colorado and arrived in Colorado a few days after the shootings. Defendant initially lived in Colorado with a fellow gang member from Watsonville and told people that the man was his cousin. He shaved his head so that he would not be caught. Defendant lived in Thornton, Colorado under the assumed name of Luis Arce for much of the next two years. 4 He obtained a “fake ID” and got a job at a McDonald’s in Thornton. He also obtained a second job at another restaurant called Fudrucker’s.

Eric Gruenberger, who became friends with defendant in Colorado, noticed that defendant did not like the color blue. If defendant saw someone wearing blue, defendant would give the person a “dirty look” and “mad-dog” the person. Defendant referred to people who were Hispanic and wore blue as “fuckin’ Scraps.” Defendant liked the color red and frequently wore red, including a hat with a red “N” on it. Defendant told Gruenberger and Gruenberger’s best friend Brendan Campbell that he was from “Green Valley,” and he made comments suggesting that he was “on the run.” Defendant told Campbell he had shot two people, and he mentioned “a pair of brothers and a baseball field.” He also said he was a member of “Varrio Green Valley.” Defendant told another friend that he was a Norteno.

At a party at Gruenberger’s house in January 2004, defendant, who appeared to be drunk, had a conversation with a teenager who was wearing blue. Defendant asked the teenager where he was from and asked about gangs in that city. The teenager said that “the people where he’s from wore the color blue,” and he claimed that he associated with a Sureno gang. Defendant responded by spitting on and hitting the teenager and calling him a “Sureno mother fucker.” The teenager ran away, and defendant, with a steak knife in his hand, chased him, after overcoming Gruenberger’s attempt to restrain him. Gruenberger ran after them, stopped to pick up the knife that defendant dropped, and caught up to defendant. Defendant handed Gruenberger a second steak knife and “told [Gruenberger] to take it so he didn’t do nothing bad.” Both of the knives had been taken from Gruenberger’s kitchen. After returning to the house, defendant chased away a second youth who had also been wearing blue and had arrived with the teenager. Defendant told Campbell that the teenager was “lucky I didn’t catch him.”

Armando Ubaldo also became acquainted with defendant in Colorado. Defendant told Ubaldo that he was a member of the Varrio Green Valley gang. It was only after they became friends that defendant learned that Ubaldo was a Sureno gang member. However, the two men “came down to agreement” that they would not let their gang allegiances come between them. Defendant lived with Ubaldo and Ubaldo’s family for about six months.

II. Procedural Background

Defendant was arrested in 2005 and charged by information with murder (Pen. Code, § 187, subd. (a)), attempted murder with premeditation (Pen. Code, §§ 187, subd. (a), 664), and possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). It was further alleged as a special circumstance that defendant had intentionally killed Ricardo while defendant was an active participant in a criminal street gang and that the murder was carried out to further the activities of the criminal street gang. (Pen. Code, § 190.2, subd. (a)(22).) As to both the murder and attempted murder counts, the information also alleged firearm enhancement allegations (Pen. Code, §§ 12022.53, subds. (b), (c) & (d)) and gang enhancement allegations (Pen. Code, § 186.22, subd. (b)(1)). With respect to the possession count, the information alleged a gang enhancement allegation and a prior prison term (Pen. Code, § 667.5, subd. (b)) allegation. Defendant’s motion to bifurcate the gang allegations was denied. His motion to bifurcate the prison prior was granted, but his motion to bifurcate the possession count, to which the prosecution objected, was denied. 5

Defendant’s trial counsel’s opening statement conceded that defendant shot Armando and Ricardo after calling them “[f]ucking scrapas” and demanding to see their belts, but defendant’s trial counsel asserted that “when [defendant] realized what he had done, when he had fired that first shot, he woke up and he ran.” The defense stipulated that defendant had fired the shots that wounded Armando and killed Ricardo. It also stipulated that the shot that caused Ricardo’s death was fired from at least one foot away from Ricardo’s head.

Defendant testified on his own behalf at trial. Although he admitted associating with gang members, he denied involvement in any gang-related activity. He admitted that he had been arrested for painting graffiti on a fence in 1999. The graffiti included “XIV,” 14, X4, and “NSSC,” which defendant explained stood for “North Side Santa Cruz.” Defendant also admitted that he was convicted and sent to prison in 2000 for participating in a gang jump-in, and he was returned to prison for violating his parole by associating with gang members. He had been stopped by the police many times between 1999 and March 2003. Many of these stops occurred after defendant was released from prison. After being returned to prison for his parole violations, defendant was released from prison a second time in late 2002.

Defendant claimed that he had started using heroin in 1999. He usually smoked or snorted his heroin, but occasionally he injected it. He testified that he “scored” his heroin in an area of Watsonville known as “Little Mexico.” By January 2003, defendant claimed, he was using heroin on a daily basis. Defendant could not explain why the police never found heroin or heroin paraphernalia on his person or found him under the influence of heroin on any of the many occasions between 1999 and 2003 upon which he was stopped and searched by the police. He suggested that he was very careful to avoid detection.

Defendant attempted to link the shootings to his heroin addiction. He maintained that, on March 30, 2003, he had been using heroin daily for months. He bought a very small amount of heroin that day from a dealer in Little Mexico, but he did not consume it immediately. Instead, he went to Barcelo’s house and drank a couple of beers with Barcelo. Defendant smoked the heroin he had purchased and “[f]elt good.” He also smoked some “weed.” Defendant testified that he wanted to get some more heroin, so, even though he did not have enough money, he left Barcelo’s house intending to return to his dealer and ask him to “front” the heroin to him. As he approached the dealer’s house, he saw a group of people who he “perceived to be Sureno gang members” standing in front of the house. Defendant decided to try another source, who was a VGV member. He proceeded to the other source’s home, but no one answered when he rang the doorbell and knocked on the window. Defendant broke into the house intending to steal some heroin. He looked under a mattress and found a gun and a clip. Defendant pocketed the gun and clip, and he also stole some jewelry. He left, and returned to Barcelo’s house.

He and Barcelo resumed their beer drinking. Defendant saw a car pull up to 68 Herman Court, the house across the street from Barcelo’s house. Defendant testified that he had seen that car parked in front of his dealer’s house in Little Mexico. Federico got out of the car and went into the house at 68 Herman Court. Defendant asserted that he had seen Federico “quite a few times” at his dealer’s house in Little Mexico. Federico subsequently exited the house with Ricardo and Armando. Defendant claimed that he had seen Ricardo and Armando before at 68 Herman Court. Defendant hoped that he would be able to “score something” (buy heroin) from Federico, so he followed the three men. Although he lost sight of them at one point, he eventually tracked them to the bleachers at Field Number 3. Defendant approached the three men, who were sitting on the bleachers smoking marijuana, walked past them, and “started signaling for one of them to come over to me.” Defendant “called him [Federico] again to come over to me.” The men got up and started walking away from defendant back toward Herman Court.

Defendant ran after them and got in front of them. The men stopped. Defendant asked Federico, in Spanish, if he knew where to get heroin. Federico “smirked” and asked, in Spanish, if defendant wanted heroin. Defendant nodded his head and said “Yeah.” Federico laughed and rubbed his fingers together in a gesture defendant understood to mean “money.” Defendant “slapped [his own] hand” to indicate that he “wanted to see it.” Federico asked defendant where his money was, and defendant repeated his response. Federico asked him if he wanted to go get it, and defendant agreed to do so if it was ” ‘[j]ust you.’ ” Federico responded: “No. Let’s go. Let’s go, all of us.” Defendant told Federico ” ‘I don’t trust your friends’ ” and insisted that just the two of them go to obtain the heroin. Federico insisted that his companions accompany them. Defendant refused, so Federico “kind of threw his hand, like whatever” and walked away.

Defendant testified that he was eager to get more heroin, and he thought Federico was the only person who could obtain it for him. He told Federico to ” ‘Hold on,’ ” ran in front of him, and put his hand on Federico’s chest. Federico said something in Spanish that defendant took to mean “what the fuck.” Defendant continued to try to convince Federico to take him to Little Mexico. Federico refused, but he suggested that defendant go with Armando. Defendant declined because he was familiar with Federico but not with the other two men. He told Federico that he did not trust Armando and thought he would “set me up.” Federico vouched for Armando, but defendant was unconvinced. Defendant began “to get desperate.” He accused Armando of being a “Sureno.” Armando denied this and asserted ” ‘We’re Mexicans.’ ” Defendant responded: ” ‘Look at your shirt.’ ” Armando was wearing a blue shirt. And defendant said: ” ‘Let me see your belt.’ ” Armando pulled up his shirt and displayed his blue belt. Defendant said: “I told you.”

Federico started laughing and said something like ” ‘Fuck this guy.’ ” The three men started walking away again. Defendant put his hand on Federico’s chest again, but Federico slapped his hand away. Defendant tried to obstruct their path and said ” ‘[h]e’s a fucking scrap.’ ” The men then began “yelling . . . derogatory words in Spanish” at defendant, and Federico made a gesture like he was brushing defendant off. Defendant said: ” ‘Fuck you, you fucking scrap.’ ” Federico responded by backing up and putting his hand in the air. Defendant took this gesture as a “challenge” to “fight.” Federico pulled out a knife and approached defendant. Defendant stepped back, and one of the men punched him. The men began punching and kicking defendant as he “balled up” and tried to cover his head with his hands. Defendant heard someone say something in Spanish that he believed meant “stab” or “stab him,” but he was not stabbed.

Defendant took the gun out of his jacket pocket and the clip out of his pants pocket, and he put the clip in the gun. He got up off the ground, took a step back, pointed the gun at Armando, and fired the gun, shooting Armando in the face. Defendant saw Armando fall to the ground. He started walking away with the gun in his hand. As he was walking away, Ricardo jumped on him from behind. Defendant screamed and threw or dropped the gun on the ground. Ricardo began hitting him and choking him. Defendant fell to the ground and began fighting back. Ricardo yelled: ” ‘You killed my cousin’ ” or ” ‘Why did you kill my brother?’ ” Ricardo stopped fighting and grabbed the gun off the ground. Defendant also got his hands on the gun, and he grappled with Ricardo over the gun. Defendant believed that Ricardo intended to kill him. While they were fighting over the gun, defendant “ended up getting control of it and shooting,” and he “heard the gun go off.” He claimed that “[i]t was an accident” that the gun fired. Defendant denied that he had shoved Ricardo to the ground before shooting him. Defendant also testified that he took the gun from Ricardo’s hands and shot Ricardo in the head.

Defendant ran to a friend’s house, but his friend was not home. He then ran to Gonzales’s house. Defendant testified that it was Gonzales who hid the gun, clip, bullets, and marijuana after defendant told him that two people had been shot. Defendant denied that he had made any phone call in Gonzales’s presence at any time. Defendant fled to Colorado where some friends found him a place to stay.

Defendant denied that he had any gang motivation for his shootings of Armando and Ricardo. He also insisted that Armando and Federico had lied in their testimony. Defendant testified that Gruenberger and the other witnesses from Colorado were lying about the events there.

The prosecution’s rebuttal evidence included a recording of defendant’s lengthy interview with the police on March 2, 2005, after his arrest in Colorado. When he testified at trial, defendant characterized as lies his statements to the police. Defendant had told the police that he had been “all drugged up” when the crimes occurred because he had “smoked a little bit of tar . . . .” Defendant insisted in this interview that he had never injected heroin, only smoked it. He said he bought his heroin from “scraps.” Defendant told the police that, just before going to the school, he had smoked some heroin and wanted more.

He initially denied that he had a gun with him when he went to the school. However, he eventually admitted that he did have a gun with him when he went to the school. He said he had obtained the gun and some jewelry from a house where he knew there were stolen guns shortly before he went to the school because he wanted to sell the gun to obtain more heroin. Defendant claimed that he encountered the three men, and one of them asked him for a lighter. Defendant denied that he “hit ’em up” or asked them where they were from. He told the men he did not have a lighter, and one of them asked for money. Defendant told the man that he had no money, although he actually had $ 35. Defendant asked the men “if they knew where to get dope at too.” They told him that he would have to give them money first if he wanted “dope.” Defendant again said that he had no money. The men proceeded to assault him and try to rob him with a knife. Defendant initially claimed the men had a gun, but he later retracted that claim.

Defendant was hit numerous times before he pulled out the gun. He denied ever “cocking” or “rack[ing]” the gun. As he struggled with Armando, he pulled the trigger and the gun “went off.” Defendant claimed that he did not know where Armando was hit. Defendant turned and walked away with the gun, but Ricardo jumped on him, and defendant threw down the gun. Ricardo picked up the gun, and he and defendant fought over the gun. While they were fighting over the gun, it “went off a couple more times,” causing Ricardo’s death. Defendant adamantly denied firing the gun at Ricardo. He told the police that he put the gun “back in my pocket,” and walked away. Defendant admitted hiding the gun at Gonzales’s house.

Defendant’s trial counsel argued to the jury that defendant had shot both men in self-defense. He asserted that the “two big issues” were (1) whether it was Armando or defendant who was telling the truth, and (2) whether Gonzales was lying about the phone call he testified he had overheard. “One of them is lying. Is it [defendant]? Is it Armando?” Defendant’s trial counsel argued that defendant was “in a fugue state” after shooting Armando. He contended that the young boy who had testified about the shooting of Ricardo was mistaken about what had occurred. Defendant’s trial counsel characterized the “Colorado incidents” as “totally irrelevant.”

The jury found defendant guilty of first degree murder, attempted murder with premeditation, and possession of a firearm by a felon. The jury found not true the special circumstance and gang allegations as to the murder count, but it found true the firearm allegation as to that count. The jury found true the gang and firearm allegations as to the attempted murder count, and it found the gang allegation true as to the possession count. Defendant admitted the prison prior allegation. His new trial motion was denied. The trial court committed defendant to state prison to serve an indeterminate term of 90 years to life consecutive to a determinate term of six years. Defendant timely filed a notice of appeal.

III. Discussion

A. Instructional Issues

1. Background

At the initial instruction conference, the prosecution asked the court to give four instructions regarding limitations on defendant’s self-defense claim.

CALCRIM No. 3471 addressed “mutual combat.” “A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if, one, he actually and in good faith tries to stop fighting; and, two, he indicates by word or by conduct to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting; and, three, he gives his opponent a chance to stop fighting. [P] If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight. [P] If you decide that Mr. Ramirez started the fight using nondeadly force and the opponent responded with such sudden and deadly force that Mr. Ramirez could not withdraw from the fight, then Mr. Ramirez had the right to defend himself with deadly force and was not required to try to stop fighting.”

CALCRIM No. 3472 provided: “A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force.”

The third requested instruction read as follows: “If you find that Ricardo Guzman’s actions in pursuing and using force against the defendant after the shooting of Armando Guzman were legally justified, then the defendant cannot invoke self-defense or imperfect self-defense to justify using deadly force against him. [P] A victim may use reasonable force against an aggressor in lawful self-defense. Another person present during an assault may use reasonable force against the aggressor in lawful defense of a victim of the assault. [P] A person may carry out a citizen’s arrest of another when a crime has been committed or attempted in his presence. The person may use reasonable force to effect such an arrest and detention. If a victim or other person present pursues or fights back against an aggressor in self-defense or defense of others and uses no more force than what is reasonably necessary to arrest or attempt to arrest the aggressor, the conduct of the victim or other person is legally justified.”

The fourth requested instruction provided: “In considering whether Ricardo Guzman was justified in arresting or attempting to arrest Mr. Ramirez, you may consider whether he was a victim of a brandishing offense. [P] To prove that a defendant is guilty of this crime, the People must prove that, one, the defendant drew or exhibited a firearm in the immediate presence of someone else; and, two, the defendant did so in a rude, angry, or threatening manner; and, three, the defendant did not act in self-defense. [P] The terms ‘firearm,’ ‘deadly weapon,’ and ‘great bodily injury’ are defined in another instruction to which you should refer. [P] It is not required that the firearm be loaded.”

The defense objected to the prosecution’s requests for the two CALCRIM instructions. The trial court initially expressed the belief that “this issue is dealt with by the self-defense instructions.” However, the prosecutor argued that the issue, which he characterized as “one of the linchpin and critical issue in the case,” was not dealt with in the other instructions. At a subsequent instruction conference, the court agreed to give the proposed instructions over defendant’s objection.

The court also instructed the jury: “Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.”

The prosecutor mentioned these issues briefly in his extremely lengthy arguments to the jury. “[I]f Ricardo was justified in pursuing the defendant, in attacking him in any way, using force against him, then the defendant cannot claim self-defense or imperfect self-defense. So if Ricardo . . . wasn’t wrong in which he did, if he was right in what he did, if he was justified, defendant just can’t claim it, and that – you got a big instruction about that.” The prosecutor then went over the third requested instruction. “[A] person who is the victim of a crime or is present when a crime is getting committed, does not have to stand idly by and watch it happen and just sit there and think, boy, that’s awful, terrible. [P] They have rights too. They have the right of self-defense, they have the right of defending others, and they have the right to stop somebody who is going away. That’s called a citizen’s arrest, and you can do that. [P] So when Ricardo pursued the defendant and tried to stop him, if he was justified, you don’t even get to the point where you’re considering these things, because if he is justified, that’s it. It’s not available. The door is shut on self-defense. Absolutely shut.” “If Ricardo is legal in going after him, self-defense, imperfect self-defense, this stuff is shut off.”

2. Analysis

Defendant contends that these four instructions should not have been given because they were not supported by substantial evidence.

a. The Two Non-CALCRIM Instructions

Defendant contends: “The question in this case is not whether the instructions on ‘citizen’s arrest’ and ‘brandishing’ were legally correct in the abstract. The question is whether there was substantial evidence to support a jury finding that Ricardo Guzman had attempted to make a lawful citizen’s arrest, based on a brandishing by Mr. Ramirez.”

Defendant argues that there was no evidence that a “brandishing” occurred or that Ricardo was attempting to make a “citizen’s arrest” when he pursued defendant. We disagree.

The jury was instructed that a “brandishing” would have occurred if: “one, the defendant drew or exhibited a firearm in the immediate presence of someone else; and, two, the defendant did so in a rude, angry, or threatening manner; and, three, the defendant did not act in self-defense.” In defendant’s recorded statement to the police, which was in evidence at trial, defendant claimed that he pulled out the gun after the three men repeatedly hit him, and, although he never cocked the gun, it “went off” as he struggled with Armando. While defendant claimed in this statement that he exhibited the gun in self-defense due to the assault by the three men, the evidence presented at trial supported a conclusion that defendant had not been assaulted before he drew the weapon and therefore had no need for self-defense. It was not inconceivable that, based on defendant’s statement that he did not intentionally fire the gun, a rational juror could entertain a reasonable doubt about whether the gun was intentionally fired or merely brandished. Thus, substantial evidence supported the brandishing instruction.

The instruction that covered “citizen’s arrest” focused on whether “Ricardo Guzman’s actions in pursuing and using force against the defendant after the shooting of Armando Guzman were legally justified.” It stated: “A person may carry out a citizen’s arrest of another when a crime has been committed or attempted in his presence. The person may use reasonable force to effect such an arrest and detention.” It was virtually undisputed at trial that, after Armando was shot in Ricardo’s presence, Ricardo pursued and assaulted defendant. Thus, the only further question was whether there was substantial evidence that Ricardo’s assault on defendant was a utilization of force “to effect such an arrest and detention.” The evidence was reconcilable with only two possible conclusions regarding the purpose of Ricardo’s use of force on defendant. Either (1) Ricardo intended to exact revenge when, without any weapons, he pursued and assaulted defendant, who he knew to be armed with a loaded handgun which he had just used to shoot Armando in the face; or (2) Ricardo pursued and assaulted defendant with the intent of disarming him and holding him for the police to answer for his shooting of Armando. Substantial evidence reflected that the second possible conclusion was the only reasonable one of the two. It follows that substantial evidence supported a conclusion that Ricardo was attempting to make a citizen’s arrest of defendant when he used force on defendant. The trial court did not err in giving these two instructions.

b. The Two CALCRIM Instructions

Defendant argues that these instructions should not have been given because “there was no substantial evidence to support a jury finding that there had been ‘mutual combat’ or a ‘pretextual’ claim of self-defense as those concepts are defined.”

Substantial evidence clearly supported the pretext instruction. This instruction simply told the jury that a person who provokes a quarrel intending to create an excuse to use force has no right to self-defense. In his statement to the police, defendant claimed that he had obstructed Federico’s path, repeatedly put his hand on Federico’s chest, and said ” ‘Fuck you, you fucking scrap.’ ” It was only then that the men began to assault defendant. Defendant responded to this assault by drawing his gun and shooting Armando. A rational factfinder could have reasonably concluded from this evidence that defendant’s physical and verbal provocation of Federico was engaged in with the intent to create an excuse for using force against the three men.

The mutual combat/initial aggressor instruction was also supported by substantial evidence. Since this instruction applies to a person who engages in mutual combat or is the “initial aggressor,” we need not concern ourselves with defendant’s contention that there was no evidence that the men consented to the “combat.” As noted above, defendant’s statement to the police conceded that defendant was the initial aggressor. Under the instruction, there are only two scenarios in which an initial aggressor has a right to self-defense. The fact that there was evidence that defendant was the initial aggressor and that the instruction described the limitations on the right of self-defense for an initial aggressor is itself enough to justify the giving of this instruction. Moreover, there was evidence before the jury that related to each of these two scenarios. The first of these two scenarios is where the initial aggressor tries to stop fighting, lets his opponent know that he wants to stop fighting, and gives his opponent a chance to stop fighting. Defendant told the police that, after his weapon fired the first time (hitting Armando), he turned around and walked away. This evidence could have supported a finding that defendant tried to end the confrontation at that point, that the three men would have understood that his turning and walking away showed that he wanted to end the confrontation, and that defendant’s retreat gave the three men the opportunity to end the confrontation. Hence, when Ricardo pursued and assaulted defendant, defendant would have had the right to defend himself. The second scenario where self-defense is available to an initial aggressor is where the initial aggressor initially uses non-deadly force and his “opponent” responds with “such sudden and deadly force” that withdrawal is not possible. Defendant told the police that the men responded to his non-deadly provocation by drawing a knife and attacking him. It was at this point that defendant drew his gun and fired it. He then retreated. When Ricardo assaulted him, defendant claimed that he threw down the gun. He only used the gun against Ricardo after Ricardo picked up the gun and attempted to use it against defendant. If a factfinder had credited defendant’s statement to the police, the mutual combat/initial aggressor instruction would have been relevant in determining whether or not defendant had the right of self-defense if the jury concluded that he was the initial aggressor.

B. Impeachment Evidence

Defendant contends that the trial court prejudicially erred in excluding evidence offered by the defense to impeach Federico’s trial testimony.

1. Background

During Federico’s trial testimony, defendant’s trial counsel sought a court ruling on the admissibility of Federico’s alleged prior act of sexual misconduct. The prosecutor explained: “It’s a situation where it’s alleged that when Federico Guzman was 21 years old, he was apparently in some kind of dating relationship with a 17-year-old . . . . [P] . . . No case was ever filed.” The prosecutor asked the court to exclude the proffered defense impeachment evidence under Evidence Code section 352 as “unfounded” and “prejudicial.” The prosecutor also questioned whether the alleged conduct involved moral turpitude. Defendant’s trial counsel argued that such conduct did involve moral turpitude, but the trial court said: “Mr. Taylor [the prosecutor] has been involved in the sexual prosecutions unit, so if he represents something like that, I’ll sort of take his word for it.” Defendant’s trial counsel asserted that the relationship between Federico and the 17-year-old “started four years” earlier, which would bring it within Penal Code section 288. The court noted that raising this issue would involve “a separate trial about this side issue in an area where you’re actually not contesting.” The court asserted that the defense was “not actually contesting” how the shooting occurred but only “contesting gang things.” Defendant’s trial counsel disputed this characterization.

The trial court took a moment to research the issue and reported that “statutory rape has been determined not to be a — a crime of moral turpitude in one case and has been in another case, and I’ll read the cases and tell you what I think.” The trial court thereafter decided to preclude impeachment with this alleged conduct. “Here we have no conviction at all. The only way — if he denies this, the only way to get into it is to call the police officers, to call the child victim. [P] The fact is they’re very close in age. Given the long-term relationship – I think that involves a pregnancy at some point – and the fact that they’re approximately three and a half years apart in age, were both minors when the relationship started, I’m not willing to allow it to be used for impeachment purposes, because, under 352, the — a long discussion would be necessary, and this conduct has little probative value, really about his turpitude and credibility in this case and would involve a lengthy excursion into proving up issues that at the present time are only the subject of a police report and have never been the subject of a prosecution by the district attorney’s office . . . .”

2. Analysis

Defendant contends that the trial court’s exclusion of the proffered impeachment evidence under Evidence Code section 352 was an abuse of discretion because it was predicated on the trial court’s erroneous conclusion that the prior misconduct did not involve moral turpitude. 6 We do not agree. The trial court initially stated that there was conflicting case law on the question of whether statutory rape was a crime of moral turpitude, and, after reading the two cases, the trial court made no express determination that statutory rape was or was not a crime of moral turpitude. The court did rely on some of the analysis in the case that had held that statutory rape was not a crime of moral turpitude to support its conclusion that the evidence had little probative value. The court concluded that it was “not willing to allow it to be used for impeachment purposes, because, under 352, the — a long discussion would be necessary, and this conduct has little probative value, really, about his turpitude and credibility in this case and would involve a lengthy excursion into proving up” the alleged misconduct. We do not find the trial court’s reliance on some of the analysis in one opinion to be an endorsement of that opinion’s holding. If the trial court had concluded that statutory rape was not a crime of moral turpitude, as that case held, it would have been unnecessary for the court to engage in an Evidence Code section 352 analysis, as the evidence would have been inadmissible as a matter of law. The fact that the trial court engaged in an analysis under Evidence Code section 352 indicates that the court accepted that statutory rape at least might be a crime of moral turpitude.

We apply an abuse of discretion standard of review to a trial court’s exclusion of evidence under Evidence Code section 352. (People v. Waidla (2000) 22 Cal.4th 690, 724.) A trial court may exclude proffered impeachment evidence of prior misconduct under Evidence Code section 352 “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.” (Evid. Code, § 352; People v. Wheeler (1992) 4 Cal.4th 284, 295 (Wheeler).) “[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.” (Wheeler, at p. 296.) “A trial court’s limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted.” (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.)

The trial court found that the probative value of the proffered evidence was minimal because Federico was “close in age” to the alleged victim. This was true, as they were just three years apart in age. The trial court weighed against the minimal probative value of the proffered evidence the likelihood that “a lengthy excursion” would be necessary to prove up the alleged misconduct. Since the defense had only a police report regarding the misconduct, which was not admissible evidence, a denial by Federico 7 likely would have led to a need for testimony of the victim of the alleged misconduct. The trial court reasonably concluded that the minimal probative value of the proffered evidence was substantially outweighed by the probability that its admission would necessitate the undue consumption of time. We can find no abuse of discretion in the trial court’s conclusion.

The trial court also did not violate defendant’s federal constitutional rights in excluding this evidence. The admission of evidence that Federico had engaged in a sexual relationship with a 17-year-old girl when he was 21 years old would not have given the jury a “significantly different impression” of Federico’s credibility. Federico admitted at trial that he had initially told the police two lies about his conduct before and after the shootings. Although Federico actually drove a car home after the shootings, he initially told the police that he rode his bicycle home. He lied because he lacked a driver’s license. Even though Federico joined Armando and Ricardo in smoking marijuana before the shooting, Federico initially told the police that only the other two men smoked marijuana. He feared admitting to smoking marijuana because he thought he would be deported if he admitted doing something illegal. Federico’s lies to the police were far more probative of his credibility than evidence that he had engaged in a sexual relationship with a girl three years his junior.

The trial court did not abuse its discretion or violate defendant’s constitutional rights in excluding the proffered impeachment evidence.

C. Purported Defense Discovery Violation

Defendant contends, and the Attorney General agrees, that the trial court erred in forcing defendant’s trial counsel to choose between (1) not questioning a prosecution witness about his inconsistent statement to a defense investigator, and (2) engaging in such questioning and “having a late discovery instruction at the end of the case.” Faced with this choice, defendant’s trial counsel chose to omit such questioning, and defendant claims that the trial court’s action in wrongly foreclosing such questioning was prejudicial error.

1. Background

After Gruenberger had completed his trial testimony, the trial court, outside the presence of the jury, put on the record the substance of a sidebar conference that had occurred during his testimony on cross-examination. Defendant’s trial counsel had made “an attempt to ask some questions about an investigator’s report Ann Field dated in July of ’06 . . . . And the People indicated they’d never received the investigative report.” The questions were about “a statement by the investigator that Mr. Gruenberger had said that he didn’t see Mr. Ramirez with a knife . . . but the fact is that there was never any disclosure of this in accordance of the disclosure rule, so I gave further choice of either asking questions about that and having a late discovery instruction at the end of the case or not, which [defendant’s trial counsel] apparently chose not to have further questions.” Defendant’s trial counsel acknowledged “I did forget to give it to the prosecution. Simple error.” However, he argued that “reports that were generated by Defense investigators are not — do not have to be turned over until or unless the witness is called to the stand, and then only in cross-examination . . . .” The court made no further comment on the issue.

2. Analysis

The Attorney General concedes that defendant’s trial counsel had no obligation to provide to the prosecution the defense investigator’s report on her interview with Gruenberger, a prosecution witness. He argues that the trial court’s erroneous ruling, which forced defendant’s trial counsel to omit cross-examination about the prior inconsistent statement in the report was not prejudicial. We agree.

“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice . . . .” (Evid. Code, § 354.)

Defendant virtually concedes that this error alone was not prejudicial. Gruenberger’s prior inconsistent statement regarding whether defendant had pulled out a knife when he was chasing a teenager wearing blue was of very little value as impeachment evidence. Gruenberger’s trial testimony regarding the knife was corroborated by another witness who saw defendant “pull out something shiny” that was about five inches long from his pocket while he was chasing the teenager. The excluded evidence would not have rebutted the testimony offered by Gruenberger and other witnesses which established that defendant had repeatedly denounced people who wore blue and had hit, spit upon, and chased the teenager because he was wearing blue. Gruenberger’s testimony in this regard was directed solely at showing defendant’s animosity toward anyone wearing the color blue. His alleged inconsistent statement about the knife would have done nothing to change the import of his testimony on this subject. Even if defendant had not drawn a knife, the evidence still established that he denounced those wearing blue, and hit, spit upon, and chased the teenager who was wearing blue. The trial court’s error was harmless.

D. Predicate Offenses Evidence

One element of a gang enhancement allegation is that the defendant committed the substantive offense “for the benefit of, at the direction of, or in association with any criminal street gang.” (Pen. Code, § 186.22, subd. (b).) A group is a ” ‘criminal street gang’ ” only if its “members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (Pen. Code, § 186.22, subd. (f).) A ” ‘pattern of criminal gang activity’ means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided . . . the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.” (Pen. Code, § 186.22, subd. (e), italics added.) The offenses specified in Penal Code section 186.22, subdivision (e) that may qualify as part of a ” ‘pattern’ ” are often referred to as ” ‘predicate offenses.’ ” (People v. Gardeley (1996) 14 Cal.4th 605, 617.) The specified offenses include aggravated assault, murder, attempted murder, and robbery (Pen. Code, § 186.22, subds. (e)(1), (e)(2)), but they do not include a violation of Penal Code section 32 (accessory) or a violation of Penal Code section 186.26 (gang recruitment). (Pen. Code, § 186.22, subd. (e).)

Defendant claims on appeal that the trial court prejudicially erred in overruling his Evidence Code section 352 objections to the prosecution’s introduction of evidence of more than two predicate offenses to prove the pattern element of the gang enhancement allegations.

1. Background

In advance of trial, defendant filed a trial brief in which he made a number of contentions regarding the gang evidence that he anticipated the prosecution offering. 8 One of his assertions was that, because evidence of “any more than two” predicate offenses was unnecessary to prove the gang allegations, the prosecution should be restricted to producing evidence of no more than two predicate offenses. He stated, without explanation, that “[a]nything more, would constitute inadmissible propensity evidence under 1101(a).” 9

The prosecution’s trial brief identified four incidents that the prosecution intended to rely upon as predicate offenses to prove the requisite pattern of criminal activity: (1) an April 1998 stabbing of Sureno gang members by Norteno gang members, for which Humberto Garcia was convicted of aggravated assault; (2) a May 2000 VGV gang “jump in” for which three VGV gang members were convicted of violating Penal Code section 186.26, and defendant and three other VGV gang members were convicted of violating Penal Code section 32; 10 (3) a September 2000 beating of a boy by three VGV gang members for which one of them was convicted of aggravated assault; and (4) a November 2000 attempted robbery in which defendant participated and for which his co-perpetrator suffered a sustained juvenile petition for attempted robbery.

When the trial court mentioned the predicate offenses issue at the in limine hearing, defendant’s trial counsel said little: “It’s — well, the usual 1101(b) argument that you don’t need overkill. Two are enough. The law says two or more. I guess that’s supposed to be the legislature’s guided wisdom, but under 1101(b), overkilling is –” The trial court interrupted and clarified that “[i]t’s a 352 issue,” and defendant’s trial counsel confirmed the court’s understanding of his contention. The court rejected the objection. “[I]t mostly goes to use of the court’s time.” “[I]t’s a cumulative issue.” “They’re free to prove up as many as they want within the limits of us getting tired of hearing about them.” Defendant’s trial counsel responded: “I have to raise it at trial anyway.”

When Roy Morales, the prosecution’s gang expert, testified at trial, he initially identified some photographs which showed defendant with a variety of individuals including Jose Pena, Andrew Jaques, and Juan Soto. Morales testified that Pena, Soto, and Jaques were all VGV members.

Morales was then asked to describe the April 1998 assault by Humberto Garcia. Defendant’s trial counsel objected, but he stated no basis for the objection and it was overruled. 11 Morales proceeded to describe how Garcia, Adrian Puga, and two other Norteno gang members had invaded the home of two Sureno gang members and stabbed the Surenos. Garcia was convicted of assault with a deadly weapon and burglary for the April 1998 incident. At the time of that offense, Garcia was living with Francisco Valenciano, a VGV member. Garcia was the person who helped defendant establish himself in Colorado. Valenciano’s home was the place to which defendant initially went immediately after the shootings before going to Gonzales’s house. 12

Morales then moved on to the May 2000 jump in. He described what he had observed and said that defendant had been present. Morales testified that defendant had been convicted of a felony based on that event. 13 Morales proceeded to testify that Anthony Gonzales, another VGV gang member, had also been present at the jump in. When the prosecutor elicited Morales’s testimony that Gonzales was currently in prison for murder, defendant’s trial counsel objected on relevancy grounds. His objection was overruled. 14 Morales then testified that Gonzales bore a VGV tattoo. Morales testified that Nardo Garcia, a Norteno gang member, was also present at the jump in. Morales explained that both Anthony Gonzales and Nardo Garcia were convicted of offenses arising from the jump in, but he did not identify those offenses. Morales proceeded to testify that Armando Garcia, a VGV member, was also convicted of a crime in connection with the jump in. 15

When Morales testified that Anthony Torres, another VGV member, was convicted of a crime in connection with the jump in, defendant’s trial counsel made his first “cumulative” objection. The trial court said “After this I’ll sustain that objection.” The prosecutor responded: “Why? You got a quicker way, Judge, I’d be happy to accommodate.” The court said “Well, we’re going to quit in two minutes anyway.” The prosecutor proceeded to elicit Morales’s testimony that Alfred Ramirez had also been convicted of a crime in connection with the jump in. When defendant’s trial counsel interposed another “cumulative” objection, the court said “All right,” and asked the prosecutor: “How many more do you have?” The prosecutor responded: “I just have three more.” The trial court immediately announced that they would recess for the day.

The following day, the prosecutor elicited Morales’s testimony that Jose Pena was also convicted of a felony in connection with the jump in. Defendant’s trial counsel made a hearsay objection to the certified copy of the conviction, and he renewed his “cumulative” objection. The trial court overruled his hearsay objection. As to his “cumulative objection,” the court ruled that, “based on the representation of only two or three more with regard to this crime, I am going to allow it.” Morales very briefly testified that Carlos Farfan, a VGV gang member, and two other individuals were also at the jump in.

The prosecutor then moved on to the September 2000 assault incident. Morales testified that Mike Deanda, a Norteno gang member, Juan Soto, a VGV member, and Julio Cabrera, also a VGV member, had severely beaten a boy they encountered in VGV territory near Rolling Hills Middle School. Deanda was convicted of aggravated assault for the September 2000 beating. 16 Morales testified that Juan Soto had a VGV tattoo on his back and was currently incarcerated facing a gang murder charge. Defendant’s trial counsel’s “[n]o foundation” objection was overruled. 17

Morales went on to testify about the November 2000 attempted robbery incident. He described how defendant, Juan Soto, and Julio Cabrera had committed this offense. He testified that Juan Soto had suffered a juvenile adjudication for assault for that offense. 18 Morales discussed some charges that Soto was currently facing, but defendant’s trial counsel interposed no objections.

Morales then described a January 2003 stabbing incident. 19 On that occasion, Julio Cabrera asked a man for his gang affiliation. A short while later, Jesse Ramirez stabbed the man. The stabbing occurred at a party at which defendant was present. Jesse Ramirez was convicted of attempted murder for that stabbing. 20

Finally, Morales testified that Valenciano was a gang member currently in custody for murder and defendant’s “cousin.” 21

When the prosecution rested subject to the admission of its exhibits, defendant’s trial counsel interposed hearsay and “accumulative” objections to the certified copies of the convictions to which Morales had referred. The court overruled these objections.

After both sides had rested, defendant’s trial counsel renewed his “cumulative” objection to the admission of the certified records of the convictions that Morales had discussed. The trial court overruled the objection. “Well, on the cumulative ground, there is no particular rhyme or reason for stopping at any particular point. There was testimony about all of these people . . . and I’m not going to start, at this late date, deciding which one or two of these may be cumulative.” “[T]he number of — of predicate offenses here, over a relatively short period of time, involving a discrete group of people, is very probative” that “VGV is a very dangerous group as well.” Defendant’s trial counsel argued, apparently referring only to the exhibits regarding the jump in, that “all of the certified convictions and the pictures are from one event occurring eight years ago, and that is certainly cumulative.” The trial court overruled his objection.

The trial court instructed the jury: “You may consider evidence of gang activity only for the limited purpose of deciding whether Mr. Ramirez acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes, enhancements, and special circumstance allegation charged; Mr. Ramirez had a motive to commit the crimes charged; or Mr. Ramirez actually believed in the need to defend him [sic] himself. [P] You may also consider this evidence when you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. You may not consider this evidence for any other purpose. [P] You may not conclude from this evidence that Mr. Ramirez is a person of bad character or that he has a disposition to commit crime.”

2. Analysis

The only rulings that defendant challenges on appeal are the trial court’s (1) rejection of his in limine motion to restrict the prosecution to two predicate offenses, (2) overruling of his “cumulative” objections during Morales’s testimony, and (3) overruling of his “accumulative” objection at the conclusion of the prosecution’s case-in-chief.

Defendant’s in limine motion sought to preclude the prosecution from introducing more than the minimum amount of evidence to prove the “pattern of criminal activity” element of the gang allegations. The sole basis for his motion was Evidence Code section 352. Under Evidence Code section 352, “[t]he 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.” (Evid. Code, § 352.) A trial court ruling refusing to exclude evidence under Evidence Code section 352 “will not be disturbed, and reversal of the judgment 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.” (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)

The trial court’s in limine ruling was a proper exercise of its discretion. At that point, the prosecution was proposing to introduce evidence of four incidents to prove the “pattern” element of the gang allegations. One of these four incidents did not appear to have resulted in a conviction that qualified as a predicate offense. Thus, the prosecution was seeking to introduce evidence of only three qualifying predicate offenses where the statute required proof of at least two. One of the three offenses had been committed by a Norteno gang member who may not have been a VGV gang member. The trial court could have reasonably concluded that limiting the prosecution to the absolute minimum amount of evidence necessary to prove the “pattern” element would be unduly restrictive. The predicate offenses had probative value, as they helped to establish a “pattern.” At the time of the in limine ruling, there was no indication that admission of evidence of one or even two additional predicate offenses would be unduly time consuming or unduly prejudicial to defendant. The trial court’s ruling at that time was not an abuse of discretion because it was not arbitrary, capricious, or absurd.

Defendant also challenges the trial court’s rulings on defendant’s trial counsel’s “cumulative” objections during Morales’s testimony. Defendant’s trial counsel first interposed a “cumulative” objection after Morales had already testified about three of the individuals, in addition to defendant, who had been convicted of crimes for their participation in the jump in. The initial objection was to evidence of a fourth individual. The trial court did not simply overrule this objection. It told the prosecutor that it would be sustaining further objections. When the prosecutor protested, the court allowed him “two minutes” to conclude for the day. The prosecutor proceeded to quickly elicit evidence of a fifth individual who had been convicted of a crime for participating in the jump in. When defendant’s trial counsel renewed his “cumulative” objection, the trial court ended the proceedings for the day. The next day, defendant’s trial counsel renewed his “cumulative” objection when the prosecutor sought to introduce evidence of a sixth individual who had been convicted of a crime in connection with the jump in. The trial court decided to allow the evidence to be admitted because the prosecutor represented that there were “only two or three more with regard to this crime.” The prosecutor did not adduce evidence of any additional convictions associated with the jump in, but he did elicit Morales’s brief testimony that three other individuals were present at the jump in, one of whom was a VGV member. Defendant’s trial counsel made no other “cumulative” objections during Morales’s testimony.

In sum, after Morales had already testified that defendant and three other individuals had been convicted of crimes for their participation in the jump in, the trial court permitted the prosecutor to very briefly introduce evidence that three additional individuals had suffered such convictions and that another three persons had been present at the jump in. While the probative value of this evidence was minimal, it was not particularly time consuming, and the risk of prejudice to defendant was nonexistent. Since the jury had already heard that defendant and three others had been convicted of crimes for their participation in the jump in, evidence that three others also had suffered such convictions and that three more individuals were present at the jump in did little more than show that the jump in had been well attended. The trial court could have concluded that the minimal probative value of the challenged evidence was not “substantially outweighed” by the equally minimal consumption of time and risk of prejudice. Its ruling was not an abuse of discretion.

Finally, defendant challenges the trial court’s overruling of his “accumulative” objection to the admission of the certified copies of the convictions that Morales had referenced in his testimony. The trial court plainly did not err in overruling this objection. The documentation of the convictions was not cumulative. The jury might well have questioned whether Morales had adequately or accurately described the convictions, and the certified copies of the convictions were relevant and probative on the nature of those convictions. Indeed, Morales’s testimony did not describe the nature of all of the convictions to the degree necessary to determine whether these convictions fell within Penal Code section 186.22, subdivision (e). The jury could make such determinations only by referring to the documentation of those convictions. As this evidence had substantial probative value, and no additional time was consumed in its admission into evidence, the trial court did not abuse its discretion in rejecting defendant’s trial counsel’s claim that this evidence was cumulative.

Defendant contends that the trial court prejudicially erred because “Extensive ‘Other Crimes’ Evidence” was admitted against him. However, the rulings that he challenges were all based solely on Evidence Code section 352 and did not challenge the admissibility of this evidence on any other basis. He did not object below on any basis to the prosecution’s introduction of extensive evidence of defendant’s own criminal activity. Defendant’s argument that the trial court’s rulings were prejudicially erroneous cannot be predicated on the admission of evidence that he did not seek to exclude.

The challenged evidentiary rulings were not abuses of the trial court’s discretion.

IV. Disposition

The judgment is affirmed.

Mihara, J.

WE CONCUR:

Bamattre-Manoukian, Acting P. J.

Duffy, J.