BIGELOW, P. J.
Appellant Miguel Angel Gomez was sentenced to 62 years to life in prison for two separate crimes—an attempted murder and a second degree robbery. He appeals, contending the trial court committed various evidentiary errors. We affirm the judgment.
On January 13, 2008, at approximately 8:00 p.m., Saunoa Joseph Laumua, who is in a wheelchair, was shot on his way to a Baskin-Robbins in Cerritos. As he wheeled himself down Ely Avenue, a green van drove up to him and the men inside asked, "Where you from?" When Laumua said, "I'm from nowhere," the men responded, "Yeah, you're Sporty from Artesia." Laumua said, "I'm in a wheelchair. I don't bang no more." The driver then instructed the passenger to shoot Laumua and "finish him." The van sped away when neighbors yelled that they had called the police and that the men should leave Laumua alone because he was in a wheelchair. Police found Laumua lying on the sidewalk in a small pool of blood and in pain. Laumua was shot under the right armpit and the bullet lodged in his back. Laumua was taken to the hospital and remained there for approximately two and a half weeks.
J.V. was sitting in his parked car nearby when he heard three gunshots. He then saw a dark minivan speed by, either a Dodge Grand Caravan or a Plymouth Voyager, and memorized a partial license plate, "5PG." At trial, J.V. testified that a photograph of Gomez's van was similar to the van he saw the day Laumua was shot. Deputy Sheriff John Lozada recovered four shell casings and two bullet fragments within five to six feet of where Laumua had fallen.
On January 17, 2008, at approximately 11:25 p.m., D.A. and M.B. were robbed as they walked home from work. A dark green van pulled in front of them and two men got out of the van. M.B. was able to get away, but the men grabbed D.A. One of the men put a gun to D.A.'s left temple and demanded, "Give me whatever you have. Otherwise we're going to shoot you." D.A. complied and gave the men his wallet and cell phone. The driver, who had remained in the van, told the two men to "[h]urry up. Come back. Let's go. Let's go." D.A. wrote down the license plate number—5PGK698—as the van drove away. At trial, D.A. identified the gun that was used as well as the dark green van and one of the robbers.
The green van was spotted by sheriff deputies at approximately 1:30 a.m. that night in Hawaiian Gardens. They observed Gomez driving and getting out of the van. After a brief pursuit, which ended in Gomez being bitten by a police dog, Gomez was arrested in connection with the robbery of D.A. A search of the van revealed a gun with a magazine containing five rounds in it as well as one round in the chamber. A second magazine was found next to the gun. Black gloves, some compact discs marked "H.G." and "M.D.T.S." and a digital scale were also found in the van. The bullet fragments found near the shooting of Laumua were found to have been fired from the gun. In addition, Gomez's DNA was found on it.
Andrew Duran was a minor when he was arrested on February 5, 2008, in connection with the robbery of D.A. and an unrelated attempted murder. He pled no contest to both charges and was sentenced as an adult to nine years in state prison. In a taped interview, which was played to the jury, he told police that Gomez picked him up in a van along with another man, "Robbie." They rode around in the van to see if they could "find something." When they saw D.A. and M.B., Gomez threw a gun to Robbie and said, "Get `em, get `em." At trial, Duran denied any knowledge of the robbery or of his interview with the detectives. Detective Gary Sloan of the Los Angeles County Sheriff's Department testified that Duran admitted during an interview that Gomez was his friend and that Gomez was the driver of the green van at the time of the robbery. Detective Brandt House, Sloan's partner, identified tattoos on Duran's body as Hawaiian Gardens gang tattoos. House explained that Duran could be labeled a snitch if he testified against Gomez and would be marked for death by gang members as a result.
In an information filed on March 11, 2009, Gomez was charged with attempted willful, deliberate and premeditated murder (count 1; Pen. Code, §§ 664, 187, subd. (a))
In count 1, it was also alleged that a principal personally used and discharged a firearm causing great bodily injury. (§ 12022.53, subds. (b), (d), (c) & (e)(1).) In count 5, it was alleged that a principal used a firearm. (§ 12022.53, subds. (b) & (e)(1).) It was additionally alleged that as to counts 1, 4, 5, 6 and 7, the crimes were committed for the benefit of, at the direction of and in association with a criminal street gang with a specific intent to promote, further and assist in criminal conduct by gang members within the meaning of section 186.22, subdivisions (b)(1) and (d); as to counts 1, 2, 4 and 5, it was alleged that Gomez suffered two prior convictions within the meaning of section 667.5, subdivision (b); that he suffered a prior conviction within the meaning of section 667.5, subdivision (a)(1); and that he suffered two prior serious felony convictions within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (a)(1) and (b) through (i). Gomez pled not guilty and denied all of the special allegations.
At trial, the prosecution presented testimony and evidence as described above. The prosecution also presented testimony from Detective House, who qualified as a gang expert. House testified that respect was important to gang members and that they committed crimes to garner respect and elevate their status within the gang. Gang members also had gang-related tattoos to show pride in their gang. A gang member who had a reputation for cooperating with law enforcement or snitching, however, would eventually be marked for death. House testified that it was very difficult to get witnesses or victims to testify in court about gang crimes. According to House, the question, "Where are you from" was a gang challenge that alerted the person questioned to an imminent assault.
Detective House also testified to the Hawaiian Gardens gang specifically, stating that they had been in existence since the late 1950's and had over 1,000 documented members, over 250 documented affiliates and claimed the entire City of Hawaiian Gardens. The common abbreviations for the gang were "H.G.," which stood for Hawaiian Gardens, "M.D.T.S.," which stood for Malditos, "V.H.G.," which stood for Varrio Hawaiian Gardens, and "L.Q.T.S.," which stood for Loquitos. The primary activities of Hawaiian Gardens were aggravated assault, murder, attempted murder, assaults with guns, petty theft, robbery, extortion, hate crimes against African-Americans, possession of firearms and narcotics for sale and possession of stolen vehicles. Hawaiian Gardens gang's primary enemies were Artesia and Chivas.
As to Laumua, Detective House testified that he observed tattoos all over his body, including on his head and neck, which marked him as an Artesia gang member. House further testified that Laumua was a respected member of the Artesia gang and he had been credited with committing several crimes in the Hawaiian Gardens area. As a result, a Hawaiian Gardens gang member who shot and killed Laumua, a "high value target," would garner much respect and status in the gang. In fact, four previous attempts had been made on Laumua's life by Hawaiian Gardens gang members.
As to Gomez, Detective House testified that he had a large "H" and "G" tattooed on his arms with "Hawaiian" and "Gardens" tattooed beneath the corresponding letter. House noted Gomez lived in Hawaiian Gardens and both his brothers were Hawaiian Gardens gang members. Further, a field interview card showed that Gomez admitted his gang membership when he was found in the company of five other Hawaiian Gardens gang members with a nine-millimeter pistol and marijuana. In response to several hypotheticals that closely tracked the facts in the case, House opined that the crimes at issue were committed for the benefit of a street gang.
At trial, Laumua refused to answer any of the prosecutor's questions, invoking his Fifth Amendment privilege against self-incrimination. As a result, Laumua's testimony at the preliminary hearing was read to the jury. Laumua testified at the preliminary hearing that he had been an Artesia gang member since he was 16 and was known as "Moreno." He also testified that Artesia's main enemies were Hawaiian Gardens and Norwalk. Laumua acknowledged that members of his gang did not like rats or snitches who talked to the police or testified in court. Laumua denied telling the detectives any details of the shooting in his interviews with them, including identifying the shooter or the van. He stated he was taking morphine and vicodin at the time of his interviews and he did not remember anything he told the detectives. He also denied telling his mother anything more than that he had been shot and had fallen out of his wheelchair.
Laumua was impeached at the preliminary hearing by the recordings of his interviews with the police, by Detective House's testimony about those interviews and by his mother's testimony regarding his statements to her about the shooting. Laumua's mother testified at the preliminary hearing that she spoke to Laumua about the shooting and his account of the shooting was consistent with the events described above. She stated that Laumua told her the van in question was just like her Dodge Grand Caravan and that he knew the men involved in the shooting because he had been in jail with one of them. She also testified that Laumua told her he identified both the shooter and the driver from a photographic lineup but was afraid to testify in court for fear of retaliation. On cross-examination, defense counsel questioned her regarding her son's incarceration and his identification of the suspects, including his description of them.
At the preliminary hearing, Detective House testified that Laumua described the shooting in detail during his interviews with him. House confirmed that Laumua circled Gomez's picture in a photographic lineup, identifying him as the driver of the van and also identified the green van driven by Gomez. House further testified that Laumua did not appear incoherent, did not slur, did not nod off and never appeared unable to understand questions when he interviewed him at the hospital or later at his home. Laumua's tape-recorded interviews with the police were played to the jury, who heard that he circled someone's picture from a photographic lineup, discussed the details of the shooting with the officers, and identified the green van from a photograph.
The defense presented testimony from two witnesses who lived near the intersection where Laumua was shot. They were both home that evening and heard the gunshots. One witness testified that she saw a dark-colored SUV in the area and both testified that no one was near the victim after the shooting.
Gomez first argues that the trial court prejudicially erred and violated his right to confrontation by admitting preliminary hearing testimony from Laumua, Laumua's mother and Detective House. Gomez also challenges the admission of Laumua's prior recorded statements to the police on the same grounds.
When Laumua invoked his Fifth Amendment privilege against self-incrimination, the trial court found that "if he were to testify in this case regarding the issue of gang affiliation or membership, it could tend to incriminate him" in an unrelated criminal case, which contained a gang enhancement. As a result, the court found Laumua to be an unavailable witness. The trial court then allowed Laumua's testimony at the preliminary hearing to be read to the jury. Defense counsel made a hearsay objection and cited to Crawford v. Washington (2004) 541 U.S. 36, 57 (Crawford). The prosecutor argued that the charges to be tried were the same as at the preliminary hearing so the issues and the elements were identical. Further, Laumua testified over two days at the preliminary hearing and was subject to cross-examination by Gomez's trial counsel and another "seasoned attorney" for the codefendant. The trial court found Crawford to be inapplicable "based upon the fact that the charges are the same, [and] that Mr. Laumua was cross-examined by defense counsel . . . ." The trial court also allowed the impeachment testimony by Laumua's mother and Detective House and the recorded interviews of Laumua with the police to be presented to the jury under Evidence Code section 1294.
We begin our analysis with a discussion of the legal principles established by the Supreme Court in Crawford. "Crawford... held that testimonial out-of-court statements offered against a criminal defendant are rendered inadmissible by the confrontation clause unless the witness is unavailable at trial and the defendant has a prior opportunity for cross-examination." (People v. Geier (2007) 41 Cal.4th 555, 597.) Under Crawford, testimony elicited at preliminary hearings and statements made by witnesses to police as part of a criminal investigation are testimonial in nature. (Crawford, 541 U.S. at p. 68; People v. Cage (2007) 40 Cal.4th 965, 970.)
Evidence Code section 1291 also provides that "[e]vidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and . . . [¶] . . . [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." "When the requirements of Evidence Code section 1291 are met, `admitting former testimony . . . does not violate a defendant's right of confrontation . . . .' [Citation.]" (People v. Wilson (2005) 36 Cal.4th 309, 340, discussing Crawford, supra, 541 U.S. at p. 59.) "Under these rules, `we have routinely allowed admission of the preliminary hearing testimony of an unavailable witness.' [Citation.] The recent decision of Crawford . . ., although changing the law of confrontation in some respects, left these principles intact." (People v. Seijas (2005) 36 Cal.4th 291, 303.)
Gomez does not contest the trial court's finding that Laumua was an unavailable witness. Instead, he contends that the preliminary hearing testimony and the prior recorded statements should not have been admitted because he was denied the right to cross-examine those witnesses. Gomez argues, "There can be no effective cross-examination of a person who denies ever having said anything, or of those who report second-hand what he is purported to have said." Gomez also contends he did not effectively cross-examine Laumua and his mother because he had no opportunity to review the recordings prior to the preliminary hearing. Moreover, he did not have the same motive and interest in thorough cross-examination at the preliminary hearing as at trial.
The California Supreme Court has long recognized that the "`"[a]dmission of the former testimony of an unavailable witness is permitted under Evidence Code section 1291 and does not offend the confrontation clauses of the federal or state Constitution—not because the opportunity to cross-examine the witness at the preliminary hearing is considered an exact substitute for the right of confrontation at trial [citation], but because the interests of justice are deemed served by a balancing of the defendant's right to effective cross-examination against the public's interest in effective prosecution." The court further determined that a defendant's motive in cross-examining a witness at a preliminary hearing may differ somewhat from the motive at trial, but nevertheless the earlier testimony may be admissible at the trial under section 1291 because the "motives need not be identical, only `similar.'" [Citation.]'" (People v. Carter (2005) 36 Cal.4th 1114, 1172-1173.)
With these guidelines in mind, we find that the trial court did not err when it allowed Laumua's preliminary hearing testimony to be read to the jury. At the preliminary hearing, Gomez was present and represented by counsel. He was given the opportunity to, and did, cross-examine Laumua, whose testimony lasted two days. There is no indication the cross-examination was limited in time or in scope. Further, Gomez's interest in cross-examining Laumua at the preliminary hearing was very similar, if not identical, to what his motive at trial would have been, i.e., to discredit his account of the shooting and to bolster his testimony that he was under the influence of morphine at the time of his interviews with the police. We reject Gomez's contention that his interest and motive for thorough cross-examination was much less than at trial because "`the preliminary examination is conducted as a rather perfunctory uncontested proceeding . . . .'" As the California Supreme Court has previously held, "`as long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective.'" (People v. Carter, supra, 36 Cal.4th at pp. 1173-1174, quoting People v. Samayoa (1997) 15 Cal.4th 795, 851, italics omitted.)
We also reject Gomez's contention that he could not effectively cross-examine Laumua because he "denie[d] ever having said anything." The opportunity for cross-examination satisfies constitutional requirements notwithstanding a witness's memory loss, whether feigned or real, about the facts related to the hearsay statement. (See United States v. Owens (1988) 484 U.S. 554, 559-560; People v. Cowan (2010) 50 Cal.4th 401, 468.)
Gomez also contends the impeachment testimony presented at the preliminary hearing by Laumua's mother and Detective House as well as the recordings of Laumua's interviews with the police were erroneously admitted at trial. We find the impeachment testimony was properly admitted under Evidence Code section 1294.
In People v. Williams (1976) 16 Cal.3d 663 (Williams), a person initially suspected of committing a robbery told the police defendant participated in the crime. When that person testified at the preliminary hearing, he denied making certain statements to the police. A detective testified that the suspect had made the statements. The individual was not available to testify at trial, and his preliminary hearing testimony was admitted under Evidence Code section 1291, subdivision (a)(2). The detective's testimony about the prior inconsistent statements was also admitted at trial. (Williams, supra, at pp. 665-666.) The defendant argued that admission of the prior inconsistent statements violated his right of confrontation. The Supreme Court held that the testimony from the detective about the initial suspect's prior inconsistent statements was not admissible because the hearsay exception was intended to apply only to the prior inconsistent statements of a witness who testifies at trial. (Id. at pp. 667-669.)
Evidence Code section 1294 created a new hearsay exception allowing "the statement of a person, who is unavailable as a witness, to be introduced as evidence in court if the statement was previously introduced at a hearing or trial as a prior inconsistent statement of the witness." (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 2483 (1995-1996 Reg. Sess.) May 8, 1996, p. 1; see also Sen. Com. on Crim. Proc., Analysis of Assem. Bill No. 2483 (1995-1996 Reg. Sess.) July 9, 1996, p. 3.) In short, section 1294 overcomes the holding in Williams by requiring that the hearsay statement be introduced at the prior hearing where the witness actually testified. "It is well settled that the inherent unreliability typically associated with such out-of-court statements may be deemed nonexistent when the defendant has had an opportunity to question the declarant about the statements. (See California v. Green (1970) 399 U.S. 149, 158.)" (People v. Martinez (2003) 113 Cal.App.4th 400, 409.) Because the impeachment testimony was introduced into evidence at the preliminary hearing, it was admissible under section 1294 and does not implicate Crawford. (People v. Martinez, at p. 409; see also People v. Price (2004) 120 Cal.App.4th 224, 237-238.)
We further reject Gomez's contention that he was denied an opportunity for cross-examination because his counsel had not received copies of the recorded statements by the time of the preliminary hearing. The record shows that defense counsel questioned Laumua extensively about whether his responses in the recordings were clouded by the narcotics he had taken and whether he could in fact identify the individuals involved in the shooting. Laumua also confirmed on cross-examination that there was no "hard and fast rule" that snitches faced death by cooperating or testifying. Gomez has failed to specify what information was contained in the recordings that would have changed his cross-examination strategy during the preliminary hearing. In short, Gomez has failed to show prejudice from not having the recordings at the time of the preliminary hearing. As a result, the impeachment testimony was admissible under Crawford.
In any event, we find any error in admitting the preliminary hearing transcript was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) "`[I]f the properly admitted evidence is overwhelming and the incriminating extrajudicial statement is merely cumulative of other direct evidence, the error will be deemed harmless.' [Citations.]" (People v. Schmaus (2003) 109 Cal.App.4th 846, 860.)
The evidence complained of was cumulative to other evidence presented at trial. In particular, J.V. testified that he heard gunshots, saw a dark van drive off and took down a partial license plate. The van which Gomez was driving at the time he was apprehended matched the description and the partial plate. Also, Detective House testified at trial to the motive a Hawaiian Gardens gang member would have to shoot Gomez, a "high value target" from the Artesia gang. Most significantly, the gun used to shoot Laumua was recovered from the van, and Gomez's DNA was found on it.
In count 4 of the information, Gomez was charged with the crime of street terrorism in violation of section 186.22, subdivision (a). That statute provides: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years." Gomez contends that the trial court erred when it admitted evidence of his prior criminal history to prove gang involvement under section 186.22. Specifically, Gomez takes issue with the following testimony from Detective House:
House then identified the five Hawaiian Gardens gang members who were with Gomez in 2002 at the time the field interview report card was completed. House also testified that a nine-millimeter pistol and some marijuana were found with the group.
Prior to trial, defense counsel refused to stipulate to knowledge of the gang's activities for purposes of the street terrorism charge during discussions with the trial court. Defense counsel also objected when the prosecutor indicated he intended to present Gomez's prior criminal convictions to prove such knowledge. The trial court reserved ruling on the issue, although it indicated that it believed the prosecution had the right to present whatever evidence it thought necessary to establish knowledge under the statute.
At trial, the court never ruled on the issue and defense counsel failed to move to strike Detective House's answer. Gomez's argument on appeal is multilayered. First, he contends the admission of House's testimony was in error because it lacked probative value and was extremely prejudicial. Gomez contends that his prior convictions included no gang findings and there was no evidence to demonstrate that those convictions displayed gang knowledge or connection. Next, he contends he received ineffective assistance of counsel to the extent the issue may have been waived by trial counsel's failure to press for a ruling or move to strike the answer. We agree that Gomez has waived the issue for purposes of appeal because he failed to (1) object when the prosecutor elicited testimony that he was involved in a pattern of criminal activity; (2) move to strike; or (3) press for a ruling from the trial court. (People v. Danielson (1992) 3 Cal.4th 691, 729, overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Gomez admits he failed to object, but claims that to have done so would have been futile. We disagree. This is not a case where a motion or further objection would have been futile or counterproductive, as demonstrated by the trial court's concern with the admissibility of his prior convictions, which prompted the discussion prior to the start of trial. Here, the trial court researched the issue and acknowledged that there was not much law on it, but that it would be guided by the cases it had read. It further reserved ruling on the issue, stating that it would "pay particular attention to count 4 and see whether or not the evidence is there or not." This is in marked contrast to the facts in People v. Hill (1998) 17 Cal.4th 800, 821, the case relied upon by Gomez. There, the California Supreme Court found that the prosecutor's continual misconduct coupled with the trial court's obvious animosity toward the defense created a situation where "[defense counsel] must be excused from the legal obligation to continually object, state the grounds of his objection, and ask the jury be admonished. On this record, we are convinced any additional attempts on his part to do so would have been futile and counterproductive to his client." (Ibid.) Accordingly, we hold that Gomez was not relieved of his obligation to object, move to strike or press for a ruling from the trial court.
Having determined that the issue is forfeited, Gomez would now urge us to conclude that he received ineffective assistance of counsel. We decline to do so. "A meritorious claim of constitutionally ineffective assistance must establish both: `(1) that counsel's representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.'" (People v. Holt (1997) 15 Cal.4th 619, 703, italics omitted; see also Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Lopez (2008) 42 Cal.4th 960, 966; People v. Carter (2003) 30 Cal.4th 1166, 1211.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.) "`"Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a `strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' "[Citation.]'" (People v. Jones (2003) 29 Cal.4th 1229, 1254; Lopez, supra, at p. 966.) "If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation." (Carter, supra, at p. 1211.)
First, the record here does not demonstrate the reason Gomez's counsel did not object to the questioned statement. For that reason alone, the ineffectiveness claim must be rejected.
Gomez has also failed to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (People v. Tafoya (2007) 42 Cal.4th 147, 196, fn. 12.)
The comment was made in passing, with no specific testimony about Gomez's prior convictions. Indeed, the prosecutor did not follow up and question Detective House about Gomez's "pattern of criminal activity." Neither did he mention it in his closing arguments. Instead, the line of questioning related specifically to why House believed Gomez was a gang member. To that end, House supported his "pattern of criminal activity" comment with testimony about Gomez's involvement with other Hawaiian Gardens gang members in 2002 during which he admitted his gang membership and was discovered with a nine-millimeter pistol and marijuana. Further, the jury knew Gomez had been convicted of at least one prior felony, as he stipulated to it for purposes of count 2, possession of a firearm by a felon. (§ 12021, subd. (a).)
We find no prejudice resulted from Detective House's passing comment. (See, e.g., People v. Jackson (1996) 13 Cal.4th 1164, 1213 [jury mistakenly received evidence of defendant's probationary status; concluding error was not prejudicial and noting the "[p]assing reference to [defendant's] probationary status and his prior conviction for a nonviolent offense was overshadowed by the considerable evidence against defendant"].
Gomez further contends that Detective House, testifying as the prosecution's gang expert, was improperly permitted to opine that Gomez was motivated by a specific intent to benefit the gang. Gomez takes issue with House's testimony that "by killing a rival gang member, they're taking out a soldier on the opposing side is the way they look at it, and, secondly, by doing an assault like that right in the middle of the rival gang's territory, it would increase the stature of the gang members that committed that assault as well as the gang itself for doing that shooting where they did it and the person that they were shooting at as well." Gomez also challenges House's testimony that the primary reason D.A. was robbed was to intimidate the community and that Gomez participated in the crimes to teach and observe the younger gang members.
As a general rule, a trial court has wide discretion to admit or exclude expert testimony and we will not interfere with the exercise of that discretion unless it is clearly abused. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512.) In cases where a gang enhancement is alleged or a substantive gang crime is charged, expert testimony regarding the "`culture, habits, and psychology of gangs'" is generally permissible because these subjects are "`sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.'" (Ibid.) For example, an expert may properly testify about the size, composition, or existence of a gang; "motivation for a particular crime, generally retaliation or intimidation"; and "whether and how a crime was committed to benefit or promote a gang." (People v. Killebrew (2002) 103 Cal.App.4th 644, 657 (Killebrew).) "Expert testimony repeatedly has been offered to show the `motivation for a particular crime, generally retaliation or intimidation' and `whether and how a crime was committed to benefit or promote a gang.'" (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550; People v. Valdez (1997) 58 Cal.App.4th 494, 507-509.) An expert, however, may not testify that an individual had specific knowledge or possessed a specific intent. (Killebrew, supra, at p. 658.)
In Killebrew, a gang expert opined that every gang member travelling in a convoy of three cars would know there was a gun in two of the cars and would mutually possess those guns. The Killebrew court found that the expert's testimony "was the only evidence offered by the People to establish the elements of the crime [of conspiring to possess a handgun.] As such, it is the type of opinion that did nothing more than inform the jury how [the expert] believed the case should be decided. It was an improper opinion on the ultimate issue and should have been excluded." (Killebrew, supra, 103 Cal.App.4th at p. 658.) The Killebrew court noted that "[a] bright line cannot be drawn to determine when opinions that encompass the ultimate fact in the case are or are not admissible. The issue has long been a subject of debate. . . . `. . ."We think the true rule is that admissibility depends on the nature of the issue and circumstances of the case, there being a large element of judicial discretion involved. . . ."'" (Id. at pp. 651-652, citations omitted.)
We find the circumstances to be quite different in this matter, however. We instead rely on the California Supreme Court's analysis in People v. Gonzalez (2006) 38 Cal.4th 932, 946-947. There, the court stated, "we read Killebrew as merely `prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.' [Citations.] Even if we assume, without deciding, that Killebrew is correct in this respect, it has no relevance here. [The expert witness] merely answered hypothetical questions based on other evidence the prosecution presented, which is a proper way of presenting expert testimony. `Generally, an expert may render opinion testimony on the basis of facts given "in a hypothetical question that asks the expert to assume their truth."' [Citations.]" (Id. at p. 946, fn. omitted.) The Supreme Court further stated, "there is a difference between testifying about specific persons and about hypothetical persons. It would be incorrect to read Killebrew as barring the questioning of expert witnesses through the use of hypothetical questions regarding hypothetical persons." (Ibid., fn. 3.)
Here, Detective House never testified as to Gomez's specific intent. Indeed, he more generally testified as to "their" (i.e., Varrio Hawaiian Gardens gang members) reasons to commit certain crimes. Additionally, as in People v. Gonzalez, supra, 38 Cal.4th 932, House properly opined that the crimes were committed to benefit a criminal street gang in response to hypothetical questions. The trial court did not abuse its discretion in permitting House's testimony.
Five days into the trial, Gomez, for the first time, indicated that he wanted to impeach the credibility of Detectives House and Sloan during cross-examination. At sidebar, defense counsel explained that Robert Rodriguez would testify that House and Sloan filed false reports and gave false testimony two years ago in his drug possession case. Rodriguez claimed that the detectives testified falsely about a statement he made to them when he never made that statement. The trial court ruled that Gomez would not be permitted to ask House and Sloan about their testimony in Rodriguez's case or present testimony from Rodriguez. The court reasoned, "assuming it gets past the hearsay objection, again assuming in some way it's relevant, it is only collaterally relevant as to that credibility issue, and, in exercising the court's discretion, in analyzing all these factors under [Evidence Code section] 352, the court finds that it's more prejudicial than probative, more time-consuming as well as confusing to the jury, and the court will sustain the objection as to that line of questioning." The court also noted that any discrepancy between the detectives' testimony at trial and the statements made to them by Rodriguez could easily be interpreted as a mistake rather than fraud.
Gomez contends that the court erred in excluding the testimony on hearsay grounds and pursuant to Evidence Code section 352. We review for abuse of discretion (People v. Lewis (2001) 26 Cal.4th 334, 374-375), and find none. First, Gomez admitted at trial that he did not have certified transcripts of Detectives House's or Sloan's testimony in the other case. As a result, Rodriguez's testimony about what they testified to in the other case would automatically fail on hearsay grounds. Further, we agree with the trial court that Rodriguez's testimony was of little probative value to this case given that there were no charges or convictions against the detectives and the discrepancy could have been a mere mistake. We also disagree with Gomez's assertion that his "convictions of attempted murder and robbery rested on the officers' presentations of statements made by the victim, Laumua, and the former co-defendant, Duran." The interviews with Duran and Laumua were recorded and played to the jury, who presumably were able to listen to the questions asked and determine for themselves whether Duran and Laumua were telling the truth.
Gomez next takes issue with Detective House's following testimony, solicited by defense counsel on cross-examination:
According to Gomez, "[t]he jury was thus given to believe that the victim, Laumua, had died of the wounds he suffered in the assault." Because both defense counsel and the prosecutor failed to correct Detective House's testimony, the jury was likely led to believe that Gomez should have been charged with murder instead of attempted murder and "would be strongly motivated to rectify the wrong by convicting appellant of the most serious charges available to them, without fully exploring the possibility that guilt was not proved beyond a reasonable doubt." Gomez overstates the effect House's testimony may have had and neglects to note that during cross-examination, defense counsel asked House:
Detective House's testimony about whether Laumua was still alive was unequivocal and negated any ambiguous statements as to his "murder."
Gomez further argues that the prosecutor committed misconduct during closing argument by referring to Detectives House's and Sloan's "good standing" when he was aware that Rodriguez's proffered testimony that they lied on the stand in his trial was excluded. In refuting the defense's theory that the detectives conspired to frame Gomez, the prosecutor argued that two detectives, "in good standing," would not risk their entire careers or risk going to federal prison to frame someone they did not know. We find no prosecutorial misconduct.
Contrary to Gomez's assertion, the prosecutor in this case did not mislead the jury by arguing that the defendant has not produced evidence that was excluded or argued facts not in evidence. This situation has no relation to the facts in People v. Varona (1983) 143 Cal.App.3d 566, 570, relied upon by Gomez, where the prosecutor argued there was no proof that the alleged rape victim was a prostitute after he successfully moved to exclude evidence that the victim was on probation for prostitution. Here, there were no charges or convictions relating to the alleged perjury committed by Detective House or Sloan in Rodriguez's case. Instead, there was extensive testimony about the detectives' many years of service and training in the sheriff department. In any event, the jury was instructed and presumably understood that statements made by the attorneys during trial were not evidence. (People v. Delgado (1993) 5 Cal.4th 312, 331.)
The judgment is affirmed.
We concur:
FLIER, J.
GRIMES, J.
