NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ROTHSCHILD, Acting P. J.
Howard Astorga appeals from the judgment entered after a jury convicted him of first degree murder and shooting at an occupied vehicle and found true firearm enhancements under Penal Code section 12022.531 and criminal street gang enhancements under section 186.22. Astorga contends the trial court committed prejudicial error by admitting an autopsy photograph of the four-year-old victim and a letter written by Astorga before the murder. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
An amended information, dated June 23, 2009, charged Astorga with one count of murder (§ 187, subd. (a)) and one count of shooting at an occupied vehicle (§ 246). The information specially alleged as to both counts that Astorga had (1) personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d))2; and (2) committed the offenses for the benefit of, at the direction of and in association with a criminal street gang with the specific intent to promote, further and assist criminal conduct by gang members (§ 186.22, subd. (b)(1)(C) & (4)). The information further specially alleged that Astorga had served three prior prison terms within the meaning of section 667.5, subdivision (b).
2. The Evidence Presented at Trial
a. The People's Evidence
On January 13, 2009, about 3:00 p.m., Wilhelm Townsend, then 24 years old, was playing football on Bixel Street with a group of men, including Astorga for part of the time. Townsend knew Astorga as Doper and a member of the Diamond Street gang, which claimed the area as part of its turf. While the football game was continuing, about 4:25 p.m., Townsend saw a red car, driven by "a racer-looking kind of guy" with "spikish" hair, coming down the street at 30 or 40 miles per hour. Townsend heard someone from the group say, "`slow the fuck down.'" Someone else said, "`shoot that fool.'" Astorga then fired five or six gunshots at the car. The gun was a semiautomatic—the type that uses a magazine—and was a grayish or blackish color. No one else from Townsend's group took out a gun, nor did the individual in the red car fire any type of weapon. Townsend heard no gunshots other than those fired by Astorga. He was not sure whether any of Astorga's shots had hit the car, but after the shooting stopped people were screaming. Astorga sang the song lyrics "`Rodney King, beat it like a cop.'" Townsend got into his car and drove away, but returned to the area after about five minutes and saw "a lot of people around a kid," who was lying on the sidewalk.
Also on January 13, 2009, about 4:25 p.m. Liliana Eusebio, then 24 years old, was walking home from school on Bixel Street when she heard four gunshots. Astorga, whom she had known since elementary school, was on the top of the hill on Bixel Street firing gunshots. He was wearing jeans, a white T-shirt and Nike tennis shoes. Eusebio did not see anyone else with a gun, nor did she hear any shots except those fired by Astorga. After shooting, Astorga, holding the gun in his hand, ran by Eusebio into an alley. The gun was black and the type that uses a magazine.3
About 4:30 p.m. police arrived at the scene and saw four-year-old Robert Lopez, Jr., on the sidewalk, near the community center, being held up by two people. Robert was not conscious or breathing, and his shirt was blood drenched. He died from a gunshot wound to the chest, the bullet having entered through his chest and exited out his back, causing him to bleed to death in two to three minutes. At the time of the shooting Robert was walking from his house to the community center with his sister and three cousins. One of his cousins, Ginna Gonzalez, then eight years old, heard firecracker noises and noticed Robert was hurt, but she did not see from where the shots were fired or who fired them.4
Three cartridge casings were found near the scene of the shooting. Two bullets from a .380-caliber semiautomatic handgun were recovered near Robert. Organic material from one of the bullets matched Robert's DNA profile. A significant amount of graffiti from the Diamond Street gang was observed at the top of the hill on Bixel Street near where the shooting had occurred, including the moniker Doper on a light pole.
On January 15, 2009, officers detained Astorga while he was in his car with his wife and then arrested him. In the car, they found a photograph of Astorga's wife displaying Diamond Street gang signs. Officers then went to Astorga's residence where they discovered a backpack with graffiti drawings, including a diamond, on the outside and blue jean shorts and a white muscle T-shirt inside the backpack. They also recovered white "Michael Jordan" tennis shoes, a blue baseball cap with a "`D'" logo on it and a photograph of three Diamond Street gang members.
In a videotaped interview shortly after his arrest, which was played to the jury, Astorga initially denied being present when shots were fired, but then admitted that he was at the top of the hill on Bixel Street playing football when the red car passed by him going fast. He saw two people in the car who were "regular people" not gang members. Astorga said, "`Slow the fuck down.'" The red car then went faster, and Astorga started shooting. He fired about four times from what he said was a chrome-colored, .32-caliber revolver, although he also thought he "threw a case," as if he were using a semiautomatic handgun. Three shots hit the car, and "[m]aybe one bullet went away or maybe it hit something . . . ." In response to the question whether he fired shots because the car was "disrespecting the neighborhood," Astorga said, "Yeah." Astorga was the only one from his group who fired shots, but he did not think that he had hit the little boy. At the time of the shooting, Astorga was wearing jeans and tennis shoes and had a white muscle T-shirt with him. He was drunk and, in the few days before the incident, had not slept and had used methamphetamine and cocaine; he also had been in prison some time before the shooting. After firing the shots, Astorga left Bixel Street, but later saw paramedics in the area. The following day, he gave the gun to someone and told that person to get rid of it.5
Astorga is an admitted and documented member of the Diamond Street gang, with the moniker of Doper or Dopey and tattoos, among others, of Diamond Street on the right side of his head, a diamond on his chest and the back of his head, and his moniker on his forehead. In the early months of 2008, a letter written by Doper to another Diamond Street gang member discussing rival gangs and Doper's upcoming release from prison was found in the area where the shooting occurred.
Los Angeles Police Department Officer Jonathan Campbell, testifying as a gang expert, in particular on the Diamond Street gang, which he described as "a very proud gang," stated that the primary activities of the gang are criminal threats, robbery, narcotic sales, attempted murder and murder and that he was familiar with two specific cases in which Diamond Street gang members had been convicted of criminal threats. According to the officer, "[r]espect [to a Diamond Street gang member] is everything. Respect . . . is seen as strength. Respect is seen as essentially cooperating with the activities. And any disrespect can be viewed very negatively." The People questioned the officer about a hypothetical that mirrored the events of the shooting: A number of Diamond Street gang members and another individual are playing football on Bixel Street when a vehicle passes them at a fast rate of speed, and one gang member says, "`slow the fuck down'" and another says, "`shoot that fool.'" The oldest gang member of the group, with numerous gang tattoos, takes out a semiautomatic firearm from his pants, fires at the car about six times, hitting the car three times and a child on the street as well, and then sings lyrics including "`beat it like a cop'" and takes off. Given that hypothetical, the officer opined that the shooting benefited the Diamond Street gang and was committed in association with other gang members. According to the officer, "[t]he possession of the firearm in the heart of the Diamond Street gang, the public display of tattoos, and the accessibility of the firearm and firing the firearm benefits the individual as a gang member within the Diamond Street gang by letting the community know as well as the gang members that he's with there[,] know that he has a firearm, he is willing to use it at the most minor disrespect. And it also benefits the Diamond Street gang by [showing that] they are willing to use [firearms] in the heart of their neighborhood and that they are armed. And . . ., knowing this, it keeps community members from calling the police, from testifying, community members from just telling groups of gang members to leave an area because it's possible that they are armed, and they could be confronted with a violent situation." In addition, the officer opined that the firing of a bullet that hits a child as an unintended target enhances "the overall notoriety and violent nature of the gang . . . . And it's etched in people's memory for a long time."
b. The Defense's Evidence
Martin Flores, the Executive Director of the Youth Opportunity Movement for Los Angeles, testified on Astorga's behalf. Among other responsibilities, Flores works closely with the probation department assessing incarcerated individuals, many of them gang members, and helping them when they reassociate into the community, assists crime victims and develops programs to rehabilitate young people. Flores also works with a community organization that was started after his younger brother was killed in a drive-by shooting. He grew up just east of the territory claimed by the Diamond Street gang. Flores testified that Astorga "definitely" is a member of the Diamond Street gang.
Flores was presented with the hypothetical that, after being up for about three days without sleep and using methamphetamine, cocaine and alcohol and experiencing his mother and younger brother being hit by a car about a week earlier, a known Diamond Street gang member, with gang tattoos all over his body, comes to Diamond Street territory and plays football in the street with some gang members and others. While playing football, the gang member sees a car speed by and yells, "`Slow the fuck down.'" The car, however, does not slow down and perhaps speeds up. Another individual possibly says, "`Shoot that fool.'" No gang signs are thrown, and no statements are made regarding gang affiliation. The gang member pulls out a handgun and fires four times at the car, believing that he hit the car three times, and one of the shots hits and kills a small child on the street. Based on this hypothetical, Flores opined that the shooting was not for the benefit of the Diamond Street gang because it was a "spontaneous reaction" without any gang signs or shouting between the individuals. The "individual just reacted on [his] own." According to Flores, the death of the child does not benefit the gang or the individual gang member because the investigation targets the gang and under the "rules in the streets" "killing an innocent child is not acceptable." On cross-examination, Flores agreed that the killing of a young child would generate fear in the community and that the Diamond Street gang thrives on fear in the community.
3. The Jury's Verdict and Sentencing
The jury found Astorga guilty of first degree murder and of shooting at an occupied vehicle.6 It found true the special allegations under section 12022.53, subdivisions (b) to (d) and 186.22, subdivision (b)(1)(C) and (4). After the jury was dismissed, Astorga admitted that he had served three prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced Astorga to a state prison term of 93 years to life: (1) 25 years to life for the first degree murder, plus an additional 25 years to life for the section 12022.53, subdivision (d), enhancement7; (2) a consecutive term of 15 years to life for shooting at an occupied vehicle, plus an additional 25 years to life for the section 12022.53, subdivision (d), enhancement; and (3) three years for the prior-prison-term enhancements under section 667.5, subdivision (b).
DISCUSSION
Astorga contends that the judgment should be reversed because the trial court prejudicially erred in admitting into evidence an autopsy photograph depicting the full length of the victim's body and the letter written by Doper to another Diamond Street gang member and found near the crime scene in early 2008. Even if Astorga could demonstrate error in the admission of the photograph or the letter, their admission, whether viewed independently or together, did not prejudice his case so as to warrant reversal of the judgment, whether harmless error is judged under the state standard for erroneous evidentiary rulings (People v. Watson (1956) 46 Cal.2d 818, 836), which we believe is applicable here, or the elevated standard that would govern if, as Astorga contends, the rulings violated his constitutional rights (Chapman v. California (1967) 386 U.S. 18, 24).
The evidence against Astorga was overwhelming. Astorga admitted to shooting at the red car on Bixel Street, even noting that he believed three of his bullets hit the car and one went astray. He also admitted that he was the only one in his group who fired a gun and said the individuals in the red car were "regular people" not gang members. Two eyewitnesses, who knew Astorga, saw him fire at the red car and did not observe anyone else shooting a gun. Townsend, who was playing football with Astorga when the red car drove by and the shooting occurred, said Astorga fired his gun after he heard someone yell, "`slow the fuck down'" and another individual said, "`shoot that fool.'" Bullet casings were found near where Astorga fired shots, and bullets were recovered on the ground near where the victim fell after being shot, one of which contained organic material matching the victim's DNA profile. Astorga is an admitted and documented Diamond Street gang member, with numerous gang tattoos, and he agreed that he shot at the red car because it was going fast and disrespecting the neighborhood, which was area claimed by his gang. Indeed, the shooting occurred on a part of Bixel Street decked with graffiti by the Diamond Street gang, including Astorga's moniker of Doper on a light pole.
Moreover, in ruling the autopsy photographs, including the one depicting the full length of Robert's body, were admissible, the trial court noted that "[t]hese photographs are clinical photographs. They are not gory. While they are disturbing in the sense that one knows that a child is the decedent, they are not inflammatory. They are not crime scene photos. There is no blood. The child [is] in a resting position. There is no contortion of the face." The court also directed the People to "display [the autopsy photographs] only for the minimum amount of time necessary and then remove them so they don't linger." The People followed the court's direction, merely asking the doctor who had performed the autopsy on the victim to identify the photograph challenged on appeal as depicting the full length of the body, which he did. This brief exchange served only the purpose asserted by the People for the photograph to give the jury "an idea what the size of the child was at the time he was shot and why . . ., taken the trajectory, he is getting shot in the chest." The People did not focus on the photograph and did not mention it during their closing remarks to the jury. Although Astorga contends that admitting the photograph depicting the length of Robert's body was prejudicial because "it is a picture of a dead child," this case is about the murder of a young boy, and, as Astorga concedes, the photograph is "not gruesome or grotesque," "does not have an excess amount of blood and the victim is not shown in painful contortions . . . ."
As to the letter, the People referred to it with Officer Campbell, their gang expert, who found the letter on Bixel Street in the early months of 2008 near where the shooting later occurred. Officer Campbell related the letter to Astorga's gang involvement, and the letter was discussed for only a brief period during the several days that the People presented their case. The People also did not refer to the letter during their closing remarks to the jury.
Finally, to the extent Astorga suggests that, even given the strong evidence against him and the brief references to the challenged evidence, admitting either the photograph or the letter, or both, inflamed the jury, the trial court instructed the jury "not [to] be influenced by sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling." We presume the jury followed the court's instruction. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
DISPOSITION
The judgment is affirmed.
CHANEY, J. and JOHNSON, J., concurs.
