Filed 9/12/13 P. v. Barajas CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H037371
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1069517)

         v.

ULISIS BARAJAS,

         Defendant and Appellant.


         A jury convicted defendant Ulisis Barajas of second degree murder and found true
allegations that he (1) personally discharged a firearm causing death (Pen. Code, §
12022.53, subd. (d)--consecutive 25-year-to-life sentence enhancement),1 and (2)
committed the murder for the benefit of, at the direction of, or in association with a
criminal street gang (§ 186.22, subd. (b)(1)(C)--consecutive 10-year sentence
enhancement). The trial court sentenced defendant to 50 years to life (15 years to life for
the murder conviction plus the 25-year and 10-year enhancements). On appeal,
defendant contends that the trial court (1) erred by overruling his objections to gang
expert testimony, (2) erroneously instructed the jury in the language of CALCRIM No.
3471 (sudden-escalation exception to self-defense), (3) erred by imposing the 10-year
enhancement, and (4) erred by imposing cruel and unusual punishment. The People
concede the enhancement issue and we agree that the concession is appropriate. We
otherwise reject defendant’s contentions. We therefore modify and affirm the judgment.
         1
             Further unspecified statutory references are to the Penal Code.
                                     BACKGROUND
       Defendant was 16 years old and a Norteno gang member. While watching
television with and at the home of Sarah Benevides, a neighborhood friend and San Jose
Grande gang member, he asked Benevides whether there were any Sureno gang members
at a party that was in progress in a home across the street. Benevides opined that the
partygoers were nongang affiliated. Later, Javier Tienda left the party to smoke a
cigarette and drink a beer outside on the driveway. Defendant then left Benevides’s
home, crossed the street, and asked Tienda in gang slang whether Tienda was related to a
gang. Tienda replied negatively. Defendant then walked back across the street to
Benevides’s home. There, he encountered Eduardo Alvarez who lived in Benevides’s
home. Alvarez asked defendant about purchasing marijuana, and defendant affirmed that
they could purchase some at the corner. The two then proceeded to walk to the corner.
Defendant, however, crossed the street and walked back to Tienda who had been joined
by his cousin Robert Betancourt. He asked Tienda whether Tienda was still looking at
him. Tienda replied that he was just smoking a cigarette and not related to a gang. When
defendant continued approaching, Betancourt remarked, “I guess we are going to fight.
That’s what they want.” He told Tienda to take the “tall guy” while he would take the
“short guy.” By this time, Benevides was yelling “gang related stuff” from across the
street. Defendant then came towards Tienda and said “Norte” and something like “this is
my neighborhood.” Betancourt began arguing with defendant, and Tienda began arguing
with Alvarez. Defendant put his hand into his pocket and said, “I got something for
you,” and Betancourt put his hands in his pocket and said, “I got something for you.”
The two got into fighting stances while standing two to four feet apart. Tienda and
Alvarez made clear to each other that they did not want to fight. Defendant then pulled
out a gun and shot Betancourt at least five times--twice in the chest, once in the back, and
twice in the buttocks. Three shots were potentially fatal. Betancourt collapsed and died.



                                             2
Defendant fled. The police found a closed Swiss Army knife in Betancourt’s pants
pocket.
       Defendant relied on self-defense. He argued to the jury that he reasonably
believed that he was in imminent danger of being killed or suffering great bodily injury
and “used no more force than was reasonably necessary to defend against the danger.”
He also urged that the crime was no more than voluntary manslaughter because he (1)
was provoked and acted in the heat of passion, or (2) acted in imperfect self-defense. As
to imperfect self-defense, defendant urged the following: “The other possibility is you
get to voluntary manslaughter by what is called imperfect self-defense. The killing of a
person is reduced to voluntary manslaughter if the defendant killed a person because he
acted in imperfect self-defense. If the defendant acted in complete self-defense, his
action was lawful and you must find him not guilty of any crime. But there’s a difference
between complete and imperfect, and here’s the difference. [¶] The defendant acted in
perfect self-defense if the defendant actually believed he was in imminent danger of
being killed or suffering great bodily based on eleven. The defendant actually believed
that the immediate use of deadly force was necessary to defend against the danger, but at
least one of those beliefs was unreasonable. In evaluating the defendant’s beliefs
consider all the circumstances that were known and appeared to the defendant. [¶] Like I
said, maybe in a different part of town, maybe if it was one of us someplace in our
neighborhood, we would consider it unreasonable when somebody said they got
something in their pocket for you, and we wouldn’t take that as a threat of imminent
harm. In that neighborhood at that time of night with that situation I think that’s perfectly
reasonable. But one could argue you it wasn’t; that he overreacted. It was unreasonable
for him to believe that even though he did. That’s how one would get to voluntary
manslaughter from perfect self-defense. [¶] Now, the district attorney I’m sure is going to
talk about this. A person who engages in mutual combat who is the initial aggressor has
a right to self-defense only if he actually and in good faith tries to stop the fighting and

                                              3
indicates by word or conduct to his opponent in a way that a reasonable person would
understand that he wants to stop fighting or that he has stopped fighting, and he gives the
opponent a chance to stop fighting. I will tell you that did not happen here. I will agree
that did not happen. [¶] There’s more to that instruction. If you decide that the defendant
started the fight using non-deadly force, another fist fight, and the opponent responded
with such sudden and deadly force that the defendant could not withdraw from the fight,
then the defendant had the right to defend himself with deadly force and is not required to
stop fighting. That threat to him was real. That I’m going to my pocket and I got
something for you, he knew what that meant. He wasn’t going to wait around is it a gun,
is it a knife, is it a machete? At that point he decided to defend himself. So whether he
was in mutual combat or whether he was the aggressor, he doesn’t have to stand there
and get shot or stabbed before he can do something. That’s what that instruction tells
you. [¶] I’m sure the district attorney will also tell you that a person does not have the
right to self-defense if he or she provokes a fight or quarrel with the intent to create an
excuse to use force. What that really means you can’t intend to go out and kill someone.
You can’t intend to go out and shoot and stab someone and pretend like you are not. You
know, engage in a little fight, cause him to get mad at you. Oh, he got mad at me. I have
to shoot him. Again, that’s not what happened here. The fact that he engaged Tienda and
nothing happened there. It wasn’t until Mr. Bettancourt [sic] decided to mutually
escalate this, that force came into play. [¶] The right to use force in self-defense continues
only as long as the danger exists or reasonably appears to exist. When the attacker
withdraws and no longer appears capable of inflicting an injury, then the right to use
force ends. So, again, if this wasn’t self-defense, if this was premeditated, he meant to do
it or an intent to hurt him, then he wouldn’t have withdrew. He withdrew as he was firing
the gun and he ran down the street. If that not [sic] what he meant, he would have
walked over and pumped the rest of the gun into him. Clear as day. If you really
intended to do a murder, you are going to do a murder.”

                                              4
       The prosecutor replied that self-defense did not apply because defendant was the
aggressor and faced no immediate danger from Betancourt. He added that there was no
mutual combat because no witness testified that Betancourt displayed a knife or advanced
toward defendant.
                             GANG EXPERT TESTIMONY
       During in limine proceedings, defendant objected to a packet of material for a
PowerPoint2 presentation by the People’s gang expert for the purpose of proving the
street-gang allegation. According to defendant, (1) “much of the material that’s in this
presentation is irrelevant. Some of it is conclusionary”; (2) “And also there’s hearsay and
confrontation problems with this”; and (3) “Most of this would be in many ways a well
orchestrated propaganda piece to unduly influence the minds of the jurors and to put them
in a state of agitation where they won’t be able to see clearly.” Defendant also urged that
information in the PowerPoint about Benevides was unnecessary because Benevides was
no longer a defendant in the case and other evidence would prove that she was a gang
member and a relative of defendant. The trial court took defendant’s request under
submission while it reviewed the PowerPoint presentation.
       When the trial court revisited the issue, defendant elaborated on his objection.
       Defendant first argued that the evidence “shouldn’t be coming in at all” because it
violated his Sixth Amendment right of confrontation as articulated in Crawford v.
Washington (2004) 541 U.S. 36 (Crawford). “Because we are not going to have an
officer who gets up here and brings in the gang members who told him the information
he’s showing to us. He’s not going to get people involved in the predicate crimes or the
crimes he read about or the police reports he read about to have their opinions and their

       2
         PowerPoint is a computer software presentation program that is used to display
frames (or slides) of text or images onto a screen. The slides are advanced using a remote
control device. As the parties referred to the program by its product or brand name, for
convenience we do the same.


                                             5
statements tested under the crucible of cross-examination. He’s coming in with some
vague, I’ve talked to a lot gangs members, went through crime reports, I’ve talked to a lot
of police officers, I’ve been through a lot of training, and based on that I can give you my
opinion on this, this, and that. Well, those items he’s basing it on, the predicate offenses,
the statements of other gangs [sic] members are all statement [sic] made for the truth of
the matter stated as evidence against my client and under Crawford they should not be
permitted before the Court unless I’ve had the opportunity to confront them.”
       The trial court overruled defendant’s objection: “[E]xpert testimony may
encompass the following, and is proper as it relates to gang sociology and psychology
and the expectations of gang members when confronted with certain situations. The
necessity to establish the existence, composition, culture, habits and activities of street
gangs, the defendant’s membership, gang rivalries[,] the motivation for criminal
behavior, retaliation, intimidation, and whether or not the defendant committed the crime
for the benefit of or to promote the gang. The statements of the basis of the opinion of
the expert will not [be] received for the truth. [¶] . . . [T]he Court will allow this
testimony of the expert regarding gang membership, validation, and the way crimes are
committed and whether this one was committed for the benefit for or to promote the
gang. Therefore, the request to exclude that testimony is denied.”
       Defendant next urged that “a lot of material that the gang expert is going to
present seems to be irrelevant. It seems to be gilding the lily as they say. Both the slide
show and the packet of stuff he gave me has a litany of very serious offenses and sort of,
what’s the word I’m looking for, sort of heightened fearful images of gangsters and gangs
and what they do and how dangerous they are, and it talks about them in generalities like
they are all just one group. If you are a gangster, if you are a sub group, you all act this
way and they all do that and they all do this. [¶] And a lot of what is in this presentation
is irrelevant to [defendant]. There’s no evidence that he was involved in any of those acts
that they are going to bring in. Drugs, running women, running violent car jacks, violent

                                               6
robberies, and assaults of people. They are going to go on and on and on and fill the
jury’s mind these are also gang members and they are all one group. Like taking one
race, one religion or one ethic [sic] origin and say these people are all like that. [¶] . . . [¶]
. . . There are very few slides except the slides around Page 20 that aren’t general
Nortenos are a big group, and they are all bad. It isn’t until 20 or 25 slide in that they
actually talk about Sanders Street and East San Jose and the gangs in that area and what
the relevance is to this case, to [defendant], and to this crime. The first 10 or 15 slides are
all about the badness of this Norteno umbrella group. And I think it is over the top. I
think there are gangsters who range all the way from tagging crews to sophisticated
extortionists and car jackers and violent robbers. But it runs the gamut. [¶] And what this
particular presentation does, it doesn’t give it any credence, just says gangs are this
violent, ugly group and they are all the same. There’s a picture in one of the slides of an
alleged gangster pointing his gun right at the person who is looking at the picture. It’s
almost as if he’s pointing the gun at you. The presentation is made to have a visceral
effect on the jury, to get them scared and not to give them information, but almost to
overwhelm their intellectual, academic thinking process and put them in an emotional
fearful process. [¶] . . . I think the gang expert could come in, talk about [defendant], talk
about the local street gangs in that area, talk about the association with those members
and get the same effect without this highly prejudicial emotional response to the jury, oh,
look at that gangster, they’re all bad gangs. He’s a gang member. . . . It’s not geared to
inform. It’s geared to influence our emotions, and I would ask he be limited to what he
can use and say and much of it--it’s a PowerPoint presentation--be stricken, and I have
individual slides I want to go into.”
       Defendant then made specific objections to most of the PowerPoint slides. After
the People agreed to remove or redact certain slides and the trial court ordered removal of
certain slides, the trial court overruled defendant’s objection. It explained as follows:
“And according to case law, as I said earlier, the expert can say all the things that are on

                                                7
the slides. It’s just in this particular case the People have added photographs to go with
it, and they have photographs because [p]eople are taking photographs of themselves
with their gangs and using them. Since the police can say all of this and I don’t find that
the pictures are prejudicial, they are just showing actual people with the things they do,
and in the poses that they take, and showing off their tattoos. They’re related to
Nortenos, which is the umbrella group to the gang that the defendant was accused of
being in, and that the opposing group, the Surenos, which I don’t know if the victim was
a member of Surenos, but the issue was surrounding whether or not he was in the other
group. So the photographs are relevant to the expert’s testimony, and will be allowed, the
ones that I have said can be used. I find that any prejudice issues is not outweighed by
the probative value.”
       San Jose Police Detective Michael Wittingham testified as a criminal street gang
expert. He opined that the homicide and firearm allegation were committed for the
benefit of and in association with the criminal street gang known as Norteno with the
intent to further promote and assist the conduct by criminal street gang members. He
added that the basis of this opinion was “when somebody yells norte they are going for
the notoriety, they want the respect. So yelling norte prior to the assault or going up to
someone and saying do you bang, that is for the benefit of the street gang. By going up
and saying your gang’s name, I’m doing this for so and so, and it let’s everybody know
Norteno committed the assault, this was done for the benefit of Nortenos. The fact that
we have a long documented history for Sarah Benevides and we also have a documented
history, although not as long, for [defendant], the two of them together walk up to
together where [defendant]-- [Defense objection.] [¶] . . . [¶] In association with, as I’ve
gone over, if you have two people, using the hypothetical two people, who go up to a
victim together, say the words do you bang, norte, are you a scrap, any of those
challenging phrases, that is in association with the gang.” He further testified that a
criminal street gang was defined by section 186.22, subdivision (f), and is a formal or

                                              8
informal group of “three or more people who have a common name, sign, or symbol
whose members have engaged in a pattern of criminal activity . . . enumerated in the
186.22 section.” He described Benevides’s gang affiliation, moniker, tattoos, and
associates as well as her police encounters and those of her associates. He opined about
the general role of females in gangs as being drug carriers, information conduits, and alibi
providers. He related the history of the Mexican Mafia and Nuestra Familia prison gangs
and the characteristics of the Sureno gang. And he used the PowerPoint presentation to
illustrate his testimony.
       During the testimony, defendant repeated his objections from the in limine
proceedings as follows: “Now that we’ve actually seen part of the presentation of the
expert witness from the San Jose Police Department, I want to just renew my objections.
I feel this has gone far afield of what the expert has relied upon to make opinions and
become a lecture, almost a class for the jury. I feel this is over the top, prejudice from the
mentioning of existing cases that have nothing to do with my client, prior instances that
we have no documentation of that have nothing to do with my client. Much more
prejudicial than probative and overbroad and is not designed to help the jury elicit
information they are not familiar with to make their decision. I think it’s more to
influence the jury.”
       Confrontation Objection
       Defendant contends that admission of Detective Wittingham’s opinion testimony--
to the extent that it was based on information obtained from (1) unnamed police officers
who spoke with unnamed gang members, and (2) lists of supposed gang members who
supposedly associated with defendant--violated his Sixth Amendment right to
confrontation as defined by the United States Supreme Court in Crawford. We disagree.
       Under Crawford, and the later decision of Davis v. Washington (2006) 547 U.S.
813, the admission of testimonial out-of-court statements is barred by the confrontation



                                              9
clause of the Sixth Amendment unless the witness is unavailable and the defendant had a
prior opportunity to cross-examine the witness.
       There is nothing in Crawford or Davis that prohibits a gang expert from relying on
hearsay as a basis for his or her opinions. (See, e.g., People v. Ramirez (2007) 153
Cal.App.4th 1422 (Ramirez); People v. Fulcher (2006) 136 Cal.App.4th 41, 56-57;
People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas).) “The rule is long established
in California that experts may testify as to their opinions on relevant matters and, if
questioned, may relate the information and sources on which they relied in forming those
opinions. Such sources may include hearsay.” (Thomas, supra, at p. 1209, citing People
v. Gardeley (1996) 14 Cal.4th 605, 618-619; Evid. Code, § 801, subd. (b).) Crawford
does not undermine this established rule. (Thomas, supra, at p. 1210.) Since a gang
expert “is subject to cross-examination about his or her opinions,” and “the materials on
which the expert bases his or her opinion are not elicited for the truth of their contents”
but rather “are examined to assess the weight of the expert’s opinion,” this evidence does
not offend the Sixth Amendment. (Ibid.) “Hearsay in support of expert opinion is simply
not the sort of testimonial hearsay the use of which Crawford condemned.” (Ramirez,
supra, at p. 1427, citing Thomas, supra, at p. 1210.) The confrontation clause “ ‘does not
bar the use of testimonial statements for purposes other than establishing the truth of the
matter asserted.’ ” (Thomas, supra, at p. 1210, quoting Crawford, supra, 541 U.S. at p.
59.)
       “Because an expert’s need to consider extrajudicial matters, and a jury’s need for
information sufficient to evaluate an expert opinion, may conflict with an accused’s
interest in avoiding substantive use of unreliable hearsay, disputes in this area must
generally be left to the trial court’s sound judgment.” (People v. Montiel (1993) 5 Cal.4th
877, 919.) The trial court may exclude from an expert’s opinion testimony any hearsay
matter if its probative value is outweighed by its irrelevance, unreliability, or potential
prejudice. (People v. Catlin (2001) 26 Cal.4th 81, 137.)

                                              10
       We believe Ramirez and Thomas are decided correctly. There is no Sixth
Amendment violation.
       Defendant asserts that the hearsay on which Detective Wittingham relied were in
fact offered for the truth of the matters asserted. Not so.
       The trial court instructed the jury that anything Detective Wittingham “is relaying
to you that was told to him by others is being received just to show the information that
the officer has and what he relied on in forming his opinions, but they are not to be
accepted by you for the truth of what was stated.” On another occasion during the
testimony, the trial court admonished, “Members of the jury, this is not being offered for
the truth. . . . It is only offered to show why the officer is forming the opinion that he has
and it’s the basis of the statements given to you, but it is not for the truth of what was said
to him.” And the trial court also formally instructed the jury in the language of
CALCRIM No. 360 as follows: “Experts testified that in reaching their conclusions as an
expert witness they considered statements made by others. You may consider those
statements only to evaluate the expert’s opinion. Do not consider those statements as
proof that the information contained in the statement is true.” These instructions
adequately informed the jury of the evidentiary limitations of the challenged testimony.3



       3
         They also adequately informed the jury of the evidentiary limitations of the
PowerPoint presentation. Defendant parses out the PowerPoint presentation and claims
that the jury was entitled to consider the PowerPoint for all purposes because the trial
court did not give a limiting instruction when it admitted the PowerPoint hard copies into
evidence as plaintiff’s exhibit No. 46. But the trial court gave the jury neither exhibit No.
46 nor the court’s exhibit A, the PowerPoint DVD, which was also admitted into
evidence, and the jury presumably did not consider the PowerPoint presentation except
during Detective Willingham’s testimony. Defendant fails to explain why the jury would
have been misled toward considering the PowerPoint for all purposes--contrary to the
limiting instructions applicable to Detective Willingham’s testimony--when the
PowerPoint presentation was used simply to accompany and illustrate Detective
Willingham’s testimony.


                                              11
          Objections To Testimony
          Defendant next contends that the trial court erred by allowing Detective
Wittingham to opine on defendant’s specific intent (for the benefit of and in association
with the criminal street gang with the intent to further promote and assist) rather than
give an opinion in the form of a hypothetical question.
          We agree with the People that defendant has forfeited the issue by failing to make
objection below on the specific ground he states here. (Evid. Code, § 353; People v.
Hood (1997) 53 Cal.App.4th 965, 970 [the defendant “asserted none of these [objections]
below, and, therefore, [forfeited] them”].)
          It is true, as defendant urges, that he voiced objections to Detective Wittingham’s
testimony during the in limine proceedings. But it is also true that he did not make then--
or at the time of the testimony--objection on the ground that Detective Wittingham was
opining on an ultimate issue rather than opining hypothetically. Evidence Code section
353 does not require any particular form of objection or motion--only that the
presentation contain a specific request to exclude specific evidence on the specific legal
ground urged on appeal. (People v. Morris (1991) 53 Cal.3d 152, 188 (Morris).) A
motion in limine satisfies the requirements of Evidence Code section 353 when it states
the same specific legal ground later raised on appeal, the motion is directed to a
particular, identifiable body of evidence and “the motion is made at a time before or
during trial when the trial judge can determine the evidentiary question in its appropriate
context.” (Morris, supra, at p. 190.) If each of these requirements is not satisfied, a
contemporaneous objection must be made to preserve the evidentiary issue for appeal.
(Ibid.)
          Defendant next argues that the trial court erred by allowing Detective Wittingham
to give a hypothetical opinion without an evidentiary basis. He refers to the testimony
where Detective Wittingham began to infer that defendant and Benevides walked up
together and yelled “norte” before the murder.

                                               12
       We again agree that defendant has forfeited the point. Defendant objected to the
trial testimony on the ground that Detective Wittingham was “in essence summarizing
conflicting testimony about what happened.” But he made no objection on the ground
that the proffered opinion had no evidentiary basis. In any event, he fails to demonstrate
any prejudice. (People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant made his
objection before Detective Wittingham finished his answer. In response to the objection,
the trial court admonished the jury that the facts forming the basis for the opinion were
not offered for the truth. Thereafter, as recounted above, Detective Wittingham finished
his answer in the form of a hypothetical without reference to Benevides.
       Defendant also contends that Detective Wittingham improperly opined on the
definition of a criminal street gang. Again, defendant failed to object to this testimony on
the ground stated here. In any event, defendant fails to demonstrate prejudice because
Detective Wittingham made clear that the Penal Code defined the concept. And the trial
court later instructed the jury on section 186.22 in the language of CALCRIM No. 1401.
       Defendant next contends that the trial court erred by overruling his objection on
Evidence Code section 352 grounds to the evidence about Benevides and female gang
members.4
       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.”
       The admission of gang-affiliation evidence over an Evidence Code section 352
objection is a matter within the trial court’s sound discretion, and this decision will not be


       4
         Defendant objected to the Benevides evidence in general and with reference to
specific PowerPoint slides during the in limine proceeding. He objected to the female-
gang evidence with reference to specific PowerPoint slides.


                                             13
disturbed on appeal unless the admission of the evidence exceeded the bounds of reason.
(People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) “A decision will not be reversed
merely because reasonable people might disagree. ‘An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the judgment of the trial judge.’
[Citations.] In the absence of a clear showing that its decision was arbitrary or irrational,
a trial court should be presumed to have acted to achieve legitimate objectives and,
accordingly, its discretionary determinations ought not be set aside on review.” (People
v. Preyer (1985) 164 Cal.App.3d 568, 573-574.) This rule requires that the reviewing
court engage in all intendments and presumptions in support of the decision and consider
the evidence in a light most favorable to the prevailing party. (People v. Condley (1977)
69 Cal.App.3d 999, 1015.) It also requires that the party claiming abuse of discretion
affirmatively establish the point. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)
       There is no bright-line rule for the admissibility of gang affiliation evidence; the
question is usually fact-specific and, as such, peculiarly one for the trial court’s
discretion. Our task is simply to determine whether the trial court could have rationally
concluded that the probative value of the evidence outweighed the prejudicial effect.
       According to defendant, the Benevides and female-gang evidence was irrelevant
or had limited probative value because (1) “Wittingham did not need to explain the basis
of his opinion that Benevides was a gang member by relating information about gang
members known to Benevides [because] Benevides’s gang affiliation was not in dispute,”
and (2) evidence about the general role of females in gangs “was not useful,” had no
tendency in reason to prove that Benevides was a gang member or defendant committed
the crime in association with Benevides, and was cumulative to the evidence establishing
that Benevides was a gang member. Defendant urges that the evidence was more
prejudicial than probative because the evidence about gang members unrelated to
defendant or the charged offense would confuse the jury about the narrow role the
evidence should play in the trial and mislead the jury to use it for broader, improper

                                              14
purposes. He adds that it was inflammatory because it portrayed the individuals as
uniquely vulgar and violent without evidence that defendant or Benevides engaged in the
type of behavior portrayed.
       As is apparent, defendant manifestly fails to carry his appellate burden. He merely
reargues his position rather than focuses on the factors supporting the trial court’s
decision and explains why it was irrational to rely on those factors.
       In any event, it was not irrational for the trial court to conclude that the Benevides
and female-gang evidence had substantial probative value. Defendant himself concedes
that “Evidence that Benevides was a gang member was relevant because it had a
tendency to prove that, based on their friendship, [defendant] was also gang affiliated.”
A prosecutor is generally entitled to tell his or her story with the most persuasive and
forceful evidence. (People v. Scheid (1997) 16 Cal.4th 1, 16-17.) “ ‘Evidence that is
identical in subject matter to other evidence should not be excluded as “cumulative”
when it has greater evidentiary weight or probative value.’ ” (People v. McKinnon
(2011) 52 Cal.4th 610, 669.)
       Here, the trial court could have rationally concluded that the evidence about
Benevides’s gang associates had greater evidentiary weight than the evidence highlighted
by defendant, such as Benevides’s undisputed gang affiliation, gang moniker, gang
tattoos, and the like. It could also have rationally concluded that the general female-gang
evidence had probative value as expert testimony about the “ ‘culture and habits’ ” of
criminal street gangs. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657,
disapproved on another point in People v. Vang (2011) 52 Cal.4th 1038, 1050, fn. 5.)5
       As to the prejudice prong, “ ‘The prejudice which exclusion of evidence under
Evidence Code section 352 is designed to avoid is not the prejudice or damage to a

       5
        Detective Wittingham testified that females in gangs “play a very important role
in gang culture.”



                                             15
defense that naturally flows from relevant, highly probative evidence.’ [Citations.]
‘Rather, the statute uses the word in its etymological sense of “prejudging” a person or
cause on the basis of extraneous factors.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 958.)
In other words, “Evidence Code section 352 is designed for situations in which evidence
of little evidentiary impact evokes an emotional [prejudice].” (People v. Olguin, supra,
31 Cal.App.4th at p. 1369.)
       But whether evidence is so outrageous so as to shock the emotions of a jury into
using the evidence improperly is a highly subjective determination. In the ordinary case
such as this one, the question provokes a difference of opinion rather than exposes
irrationality. Here, the trial court could have rationally concluded that the Benevides and
female-gang evidence had enough probative value as to outweigh any emotional
prejudice or that any emotional prejudice from the evidence was negligible in light of the
limiting instructions given in the case.6
       Defendant also complains about Detective Wittingham’s testimony relating the
history of the Mexican Mafia and Nuestra Familia prison gangs and the characteristics of
the Sureno gang. We address the point in the context of defendant’s specific objections
to PowerPoint slides.
       Objections to PowerPoint Slides
       Defendant complains on appeal about the admission of the following PowerPoint
slides over his Evidence Code section 352 objections.



       6
         In addition to the admonitions and instruction about considering the expert
testimony, the trial court also instructed the jury in the language of CALCRIM No. 1403
as follows: “You may consider evidence of gang activity only for the limited purpose of
deciding whether the defendant acted with the intent, purpose, and knowledge that was
required to prove the gang related enhancement charge. You may not consider this
evidence for any other purpose. You may not conclude from this evidence that the
defendant is a person of bad character or that he has a disposition to commit crime.”


                                            16
        Slide 1: This slide superimposes on a San Jose Police Department seal the date of
the killing, the word “Homicide,” and “187 PC.” Defendant urged that the slide
presented improper opinion evidence to the jury: that the homicide was a murder as
opposed to manslaughter or justifiable homicide by reason of self defense.
        Slide 3: Defendant made no cognizable objection to this slide (“I have no
objection to 3 where they impart real information”).
        Slide 4: This slide is entitled “Criminal Activity” and lists several criminal
offenses such as “187 PC-Homicide,” “215 PC-Carjacking,” and “245 PC-ADW,” and
has a photograph of firearms, drugs, and money. Defendant argued that he was not
involved in what the slide depicted and the intention of the evidence was to scare the
jury.
        Slide 5: Defendant made no objection to this slide.
        Slides 6-9: Slide 6 is entitled “Violence” and lists underneath the words
“NECESSARY,” “Glamorized in gang life,” “Acceptable/expected behavior in
GANGS,” “Controls members/community,” “Enhances a gangs reputation or ‘street
credibility’ among gangsters, even rivals,” and “Sense of fear among
neighbors/community.” Slide 7 is entitled “Weapons” and lists underneath the words
“NECESSARY,” “Protection from enemies or rival gang members (Don’t want to be
caught ‘slippin’),” “Enhances a gangs reputation,” “Retaliation Missions,” and “ ‘Work’
(Crime) Missions.” Defendant claimed that “this is not geared towards imparting real
information. It’s geared towards affecting their emotions.” Defendant made no
objections to slides 8 and 9.
        Slide 13: This slide is entitled “Females in Gangs” and lists underneath--along
with four photographs of female gang members--the words “Vital Role to the Gang,”
“Drug ‘Mules,’ ” “Hold firearms,” “Communication Network (Prison, County),”
“Provide housing (Section 8),” “Provide Alibis,” and “Frustrate Law Enforcement.”
Defendant objected on the ground that there was no evidence that Benevides gave

                                              17
defendant a gun and the evidence would allow the prosecutor to “make a back door
argument” that Benevides gave defendant a gun.
       Slide 15: This slide shows photographs of women, drugs, weapons, money, and a
man with a red bandanna and a Norte hat pointing a gun at the viewer. Defendant urged
that “There’s no way to connect him to any of these type of crimes unless you say all
gangsters do all these things all the time.”
       Slides 16-22 and 25: Slides 16 through 22 depict images of Sureno gang
members, symbols, slogans, drawings, clothing, and photographs of tattooed Sureno gang
members using drugs and flashing gang signs. One slide is entitled “Mexican Mafia” and
describes the group as “Predominant Prison Gang in California.” Slide 25 is entitled
“Nuestra Familia” and describes how the gang “was originally formed for protection
purposes from the Mexican Mafia,” the hatred between the groups, and the struggle for
power that evolved in Nuestra Familia’s “participation in criminal activities in an effort
to control the introduction of contraband into the facilities.” According to defendant, the
trial court should have sanitized and limited these slides because they “created a narrative
designed to incite the passions of the jury.”
       Slide 24: Defendant made no objection to this slide.
       Slide 34: This slide is entitled “Gang Members Affiliating Photographs
w/Handsigns” and is a photograph of Norteno gang members, several of whom are
displaying a middle finger that, defendant urged, was not a gang sign.
       Slides 37-43, 44-58, 60-66, 68-77: These slides depict what defendant
characterizes as “mug shot photographs” of him, Benevides, seven of his gang associates,
and 10 of Benevides’s gang associates. They also show police identification cards. The
“mug shot” and identification-card slides have various case numbers displayed. One card
records that defendant admitted being a Norteno gang member. One slide shows a
contact report and states that defendant was “arrested while affiliating with other Gang
members and displaying Gang Tattoos.” Another slide shows a “mug shot” of a gang

                                                18
member, denotes that he was murdered, and shows a photograph of gang members at the
gravesite. Defendant argued that the slides not only implied that he had a criminal record
but also suggested that he had committed serious offenses such as those listed in the
earlier slides. He also urged that the information about Benevides and his and her
associates was unnecessary and “leaves a false impression . . . with the jurors” about
“whether they are associates or not.”
       On appeal, defendant also contends that he received ineffective assistance of
counsel because his trial counsel failed to object to “well over 30” of the PowerPoint
photographs for lack of authentication.
       As noted in People v. Ruiz (1998) 62 Cal.App.4th 234 (Ruiz), “California courts
have long recognized the potential prejudicial effect of gang membership evidence.” (Id.
at p. 239.) “Due to its potential prejudicial impact on a jury, our Supreme Court has
condemned the introduction of ‘evidence of gang membership if only tangentially
relevant, given its highly inflammatory impact.’ ” (Id. at p. 240, quoting from People v.
Cox (1991) 53 Cal.3d 618, 660, disapproved on another ground in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22.) It should not be admitted if its only purpose is to
prove defendant’s criminal disposition or bad character in order to create an inference
defendant committed the charged offenses. (Ruiz, supra, at p. 240; accord, Evid. Code, §
1101, subd. (a).)
       When gang evidence meets the test of relevancy, however, it is admissible unless
its prejudicial effect clearly outweighs its probative value. (People v. Carter (2003) 30
Cal.4th 1166, 1194.)
       The trial court properly admits evidence pertaining to gangs and gang membership
when the evidence is relevant to a material issue at trial, such as “when the very reason
for the crime is gang related.” (Ruiz, supra, 62 Cal.App.4th at p. 239.)
       Defendant recognizes, as he must, that gang evidence was admissible in this case
to prove the gang enhancement.

                                             19
       We, nevertheless, are troubled by the excessive volume of the gang evidence and
its potential for prejudice. Some of the gang evidence presented was irrelevant,
cumulative, and risked undue prejudice, as the trial court ruled in some instances. It
bears emphasizing the obvious that trial courts must be careful to use their powers under
Evidence Code section 352 to limit gang evidence to its proper purpose, for example,
establishing the existence of a criminal street gang, and not to permit an overzealous
prosecutor, through the guise of establishing that fact, to seek to improperly imply to the
jury that, since the gang is violent, the defendant is violent and therefore likely guilty of
the charged crimes.
       Might there have been gang evidence admitted in the PowerPoint presentation
which should have been excluded under Evidence Code section 352 as lacking significant
probative value, or as redundant, or as unduly time consuming, or as more prejudicial
than probative. There might have been. However, the erroneous admission of such
evidence in this instance does not require reversal of the judgment unless it was
reasonably probable that the defendant would have obtained a more favorable result had
there been no error. (People v. Earp (1999) 20 Cal.4th 826, 878.) Considering the
overwhelming circumstances in this case, we are confident that the PowerPoint slides,
shown to the jury, did not constitute prejudicial error. The potential prejudice of
overzealous prosecution tactics actually was rendered moot here by the strong evidence
against defendant in the record.
       The evidence of defendant’s guilt, of his gang membership, and of the gang
relatedness of the crimes was overwhelming. Defendant shot Betancourt five times. No
one testified that Betancourt displayed a knife. Alvarez testified that he saw Betancourt
put his hands in his pockets and then take his hands out of his pockets with nothing in his
hands. The police found Betancourt’s knife closed in his pocket. No reasonable jury
would believe that Betancourt provoked defendant so as to reduce the homicide from
murder to manslaughter or justify the homicide as committed in self-defense. Moreover,

                                              20
there was no dispute that defendant and Benevides were gang members. And Benevides
testified that defendant asked her whether any Southern California gang members were at
the party across the street. Also, Tienda testified that (1) Benevides was yelling “gang
related stuff” when defendant came towards him and Betancourt, and (2) defendant said
“Norte” and “this is my neighborhood” when defendant came towards him and
Betancourt. More specifically, Alvarez testified that defendant challenged Betancourt by
saying, “This is Norte gang, mother fucker.” Alvarez also testified that, after defendant
shot Betancourt, Benevides joined defendant at the scene and exclaimed, “That’s what
you get.” There is no reasonable probability that the jury would have returned a more
favorable verdict as to the gang enhancement had the trial court sustained defendant’s
objections to the PowerPoint evidence. The same holds true had trial counsel made a
successful objection to PowerPoint evidence on the ground of lack of authentication.
(Strickland v. Washington (1984) 466 U.S. 668, 697; In re Jackson (1992) 3 Cal.4th 578,
604 [when an ineffective assistance claim can be resolved solely on the absence of
prejudice there is no need to determine whether counsel’s alleged failings constituted
deficient performance].)
       Nonetheless, defendant claims that the admission of the gang evidence
transgressed his due process right to a fair trial. We disagree.
       “The right to a fair trial is a fundamental liberty secured by the Fourteenth
Amendment.” (Estelle v. Williams (1976) 425 U.S. 501, 503 (Estelle).) The presumption
that a defendant is innocent until proven guilty “is a basic component of a fair trial under
our system of criminal justice.” (Ibid.) To assure the presumption of innocence applies,
“courts must be alert to factors that may undermine the fairness of the factfinding process
[and] must carefully guard against dilution of the principle that guilt is to be established
by probative evidence and beyond a reasonable doubt.” (Ibid.)
       We realize there are courtroom practices that are so detrimental to the presumption
of innocence that they violate a defendant’s due process rights. For example, compelling

                                             21
a defendant to appear at a jury trial in prison clothing is improper. (Estelle, supra, 425
U.S. at pp. 504-505.) Unwarranted shackling or gagging of a defendant during trial also
is impermissible. (Illinois v. Allen (1970) 397 U.S. 337, 345.) Use of an excessive
number of security personnel in a courtroom also can damage the presumption of
innocence. (Holbrook v. Flynn (1986) 475 U.S. 560, 567-568; Estelle, supra, at p. 505.)
       Although “certain courtroom practices are so inherently prejudicial that they
deprive the defendant of a fair trial” (Carey v. Musladin (2006) 549 U.S. 70, 72), what
happened in defendant’s trial--either singularly or cumulatively--did not come close to
such a description. Defendant was not required to wear jail clothing, nor was he shackled
or gagged during the trial. The presumption of innocence was not undercut.
       Considered singularly or together, we find that the gang evidence was not unduly
suggestive of guilt. Defendant’s claim to the contrary is based on conjecture and
underestimates the capability of jurors to follow the trial court’s instructions.
Defendant’s trial was not unfair. The evidentiary rulings he challenges concerned
relevant evidence, unlike the situations in Illinois v. Allen, supra, 397 U.S. 337; Estelle,
supra, 425 U.S. 50l; and Coy v. Iowa (1988) 487 U.S. 1012. “Lengthy criminal trials are
rarely perfect . . . .” (People v. Hill (1998) 17 Cal.4th 800, 844.)
       Defendant relies on People v. Albarran (2007) 149 Cal.App.4th 214, but that case
is distinguishable. There, the court found it prejudicial error to admit extensive gang
evidence in a murder case. It explained that the case presented “one of those rare and
unusual occasions where the admission of evidence has violated federal due process and
rendered the defendant’s trial fundamentally unfair.” (Id. at p. 232.) The unusual posture
arose because the trial court had granted defendant’s motion for a new trial as to a gang
allegation for insufficient evidence but denied the motion as to the substantive charge.
Under the circumstances, the court held that, rather than showing motive and intent, the
gang evidence served only to inflame the jury and show defendant’s dangerous and
criminal disposition. (Id. at p. 230.)

                                              22
       Here the gang evidence was relevant to establishing the gang enhancements. The
evidence in support of the homicide and enhancements was ample, and defendant does
not challenge the sufficiency on appeal.7
                                    CALCRIM NO. 3471
       The trial court instructed the jury in the language of CALCRIM No. 3471 as
follows: “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
indicates by word or conduct to his opponent in a way that a reasonable person would
understand that he wants to stop fighting and he has stopped fighting. And, three, he
gives his opponent a chance to stop fighting. If a person meets these requirements, he
then has a right to self-defense if the opponent continues to fight. [¶] A fight is mutual
combat when it began or continued by mutual consent or agreement. That agreement
may be expressly stated or implied, and must occur before the claim to self-defense arose.
[¶] If you decide that the defendant started fighting using non-deadly force and the
opponent responded with such sudden and deadly force that the defendant could not
withdraw from the fight, then the defendant had the right to defend himself with deadly
force and was not required to try to stop fighting.” (Italics added.)
       Defendant contends that the given instruction was erroneous because the italicized
language (the “sudden escalation exception”) “omitted the principle that mutual
combatants may avail themselves of the ‘sudden escalation exception’ to the doctrine
conditionally barring self-defense.” He notes that the current version of CALCRIM No.
3471 encompasses both mutual combatants and initial aggressors for purposes of the
“sudden escalation exception.”8 According to defendant, “it was the defense theory that

       7
         Defendant’s application for later transmittal of court exhibit is denied.
       8
         The “sudden escalation exception” in the current version of CALCRIM No. 3471
reads as follows: “However, if the defendant used only non-deadly force, and the
opponent responded with such sudden and deadly force that the defendant could not
(continued)

                                              23
[defendant] acted in self-defense only after Bettencourt [sic] escalated the non lethal fist
fight to a deadly encounter through the threatened use of the knife in his pocket.”
Defendant urges that, under the given instruction, the jury would not have considered the
“sudden escalation exception” if it found that there was a mutual-combat scenario.
       We disagree with defendant’s analysis.
       “We determine whether a jury instruction correctly states the law under the
independent or de novo standard of review. [Citation.] Review of the adequacy of
instruction is based on whether the trial court ‘fully and fairly instructed on the applicable
law.’ [Citation.] . . . ‘Instructions should be interpreted, if possible, so as to support the
judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ ”
(People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
       In deciding whether instructional error occurred, we “assume that jurors are
intelligent persons and capable of understanding and correlating all jury instructions
which are given.” (People v. Mills (1991) 1 Cal.App.4th 898, 918.) In that context, we
then “determine whether it is reasonably likely the jurors understood the instruction[s] as
[defendant] suggests. [Citation.] In making that determination, we must consider several
factors including the language of the instruction[s] in question [citation], the record of the
trial [citation], and the arguments of counsel.” (People v. Nem (2003) 114 Cal.App.4th
160, 165.) Even if we conclude that “ ‘a jury instruction is ambiguous, we inquire
whether there is a reasonable likelihood that the jury misunderstood and misapplied the
instruction.’ ” (People v. Hernandez (2003) 111 Cal.App.4th 582, 589.) Even if we
conclude that a jury instruction is erroneous, the error “requires reversal only when it




withdraw from the fight, then the defendant had the right to defend (himself/herself) with
deadly force and was not required to try to stop fighting (or) communicate the desire to
stop the opponent [or give the opponent a chance to stop fighting].”


                                              24
appears that the error was likely to have misled the jury.” (People v. Owens (1994) 27
Cal.App.4th 1155, 1159.)
        Here, the trial record, the language of the instructions, and the closing arguments
in this case show that it is not reasonably likely that the jurors (1) understood CALCRIM
No. 3471 in the way defendant urges, or (2) were misled by an erroneous CALCRIM No.
3471.
        First, the “sudden escalation exception” part of CALCRIM No. 3471 is, at worst,
ambiguous. It states: “If you decide that the defendant started fighting using non deadly
force . . . .” The phrase could refer to either (1) defendant’s level of force when a
reciprocal exchange of blows began (a mutual-combat scenario), (2) defendant’s role as
the one who started the fight (an initial-aggressor scenario), or (3) both.
        Second, the conditional self-defense bar about which CALCRIM No. 3471
instructs applies to both mutual combatants and initial aggressors. The instruction
begins: “A person who engages in mutual combat or who is the initial aggressor.” Since
the instruction as a whole applies to both, it would be anomalous to understand the
ambiguous “sudden escalation exception” within the instruction as applying to initial
aggressors only.
        Third, defense counsel argued the case as if the “sudden escalation exception”
applied to both mutual combatants and initial aggressors: “So whether he was in mutual
combat or whether he was the aggressor, he doesn’t have to stand there and get shot or
stabbed before he can do something.”
        And fourth, the jury likely never had occasion to understand the “sudden
escalation exception” in the way defendant urges. Defendant’s premise is based on the
supposition that the jury could have found a mutual-combat scenario. But we disagree
that this is possible. Defendant sought out and engaged Betancourt. No witness saw
Betancourt make any threatening move toward defendant or display any weapon. At
most, the two verbally threatened each other (I’ve got something for you) while poised to

                                             25
fight (fighting stances). No reasonable juror would conclude that this scenario is mutual
combat. (People v. Ross (2007) 155 Cal.App.4th 1033 (Ross).)
       In Ross, the defendant had been invited by a friend to move into a trailer already
occupied by the friend, his girlfriend, her four young children, and her mother. The
girlfriend was unhappy with the arrangement. Her visiting friend, the victim, got into a
shouting match with the defendant and told him, “ ‘ “Fuck you.” ’ ” (Ross, supra, 155
Cal.App.4th at p. 1037.) The defendant told her to watch her language around the
children, and a heated exchange ensued, which lasted for several minutes. Ultimately,
the defendant told the victim, “ ‘ “You sound like an old whore” ’ ” or “ ‘a fucking
whore.’ ” (Id. at p. 1038.) She slapped him and then hit him again. He struck back,
although the witnesses gave different accounts of how hard and how many times the
defendant struck the victim.
       On these facts, the court had occasion to examine what mutual combat means,
particularly because the trial court refused the jury’s request for a definition of the phrase.
We agree with the court that “[l]ike many legal phrases, ‘mutual combat’ has a
dangerously vivid quality. The danger lies in the power of vivid language to mask
ambiguity and even inaccuracy. [Fn. omitted.] Here the jury was told that participation
in ‘mutual combat’ conditionally bars the participants from pleading self-defense if either
is prosecuted for assaulting the other. [Fn. omitted.] The ‘combat’ element of this rule is
clear enough, at least for present purposes. It suggests two (or more) persons fighting,
whether by fencing with swords, having a go at fisticuffs, slashing at one another with
switchblades, or facing off with six-guns on the dusty streets of fabled Dodge City. The
trouble arises from ‘mutual.’ When, for these purposes, is combat ‘mutual’? What
distinguishes ‘mutual’ combat from combat in which one of the participants retains an
unconditional right of self-defense?” (Ross, supra, 155 Cal.App.4th at pp. 1043-1044.)
       Culled from a distinguished line of cases, the court held that “ ‘mutual combat’
means not merely a reciprocal exchange of blows but one pursuant to mutual intention,

                                              26
consent, or agreement preceding the initiation of hostilities.” (Ross, supra, 155
Cal.App.4th at p. 1045.) One who voluntarily engages in mutual combat must attempt to
withdraw from it before he is justified in killing an adversary to save himself. “Mutual
combat,” as it relates to self-defense, is a fight “ ‘begun or continued by mutual consent
or agreement, express or implied.’ ” (Ibid.)
       The court concluded, “We do not believe any reasonable juror faced with this
evidence could conclude beyond a reasonable doubt that defendant and [the victim] at
any time mutually agreed, consented, arranged, or intended to fight one another. Instead
the evidence strongly suggests that the parties exchanged contemptuous remarks until
[the victim] lost her temper and slapped defendant, whereupon he punched her back. [Fn.
omitted.] This is not ‘mutual combat’ as that term has been explicated in California
precedents. This does not mean that defendant was legally entitled to punch [the victim].
That was and remains a legitimate question for the jury. But the answer must hinge on
whether defendant responded with reasonable force to avert a threat of violence against
his person. There is no adequate basis here for a finding that defendant was at any time
engaged in mutual combat with [the victim].” (Ross, supra, 155 Cal.App.4th at p. 1054.)
       The same logic is more compelling in this case because there was no reciprocal
exchange of blows and, thus, no combat.
       Defendant also contends that the given instruction was erroneous because the
prefatory language in the “sudden escalation exception” (“If you decide that the
defendant started fighting using non-deadly force”) “failed to convey to the jury that the
‘sudden escalation exception’ applies to initial aggressors who do not employ force
before the need to defend arises.” He argues that “a person need not use force for the
initial aggressor doctrine to apply.” He cites People v. Hecker (1895) 109 Cal. 451, 463,
for the proposition that a person can be an initial aggressor simply by creating an
appearance justifying another’s counterattack.
       We again disagree with defendant’s analysis.

                                            27
       An aggressor is someone “who, through his own wrongful conduct (e.g., the
initiation of a physical assault or the commission of a felony), has created circumstances
under which his adversary’s attack or pursuit is legally justified.” (In re Christian S.
(1994) 7 Cal.4th 768, 773, fn. 1.) Thus, an “aggressor” necessarily uses some form of
force even in the “appearance” scenario. (§ 240 [“An assault is an unlawful attempt,
coupled with a present ability, to commit a violent injury on the person of another.”];
People v. Bradbury (1907) 151 Cal. 675, 676-677 [“ ‘The “violent injury” here
mentioned is not synonymous with “bodily harm,” but includes any wrongful act
committed by means of physical force against the person of another, even although only
the feelings of such person are injured by the act. The term “violence” as used here is
synonymous with “physical force,” and in relation to assaults the two terms are used
interchangeably. . . . “The kind of physical force is immaterial.” ’ ”]; People v.
Flummerfelt (1957) 153 Cal.App.2d 104, 106 [“The terms ‘violence’ and ‘force’ are
synonymous when used in relation to assault.”]; People v. Lipscomb (1993) 17
Cal.App.4th 564, 570 [a person who creates an appearance justifying a counterattack
commits an assault]; see People v. Ausbie (2004) 123 Cal.App.4th 855, 860, fn. 2 [“The
degree of force necessary for a simple assault is identical to that needed for a simple
battery.”], disapproved on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228
and in People v. Santana (2013) 56 Cal.4th 999, 1011.) In short, defendant’s concept of
a nonforcible aggressor is anomalous.
       The instruction was not erroneous.
                       TEN-YEAR SENTENCE ENHANCEMENT
       As we have stated, the trial court sentenced defendant to 15 years to life for the
murder conviction, enhanced by 25 years to life for the firearm allegation finding and 10
years for the gang allegation finding.
       Defendant contends that the 10-year gang enhancement was imposed in error and
must be stricken. The People properly concede the error.

                                             28
       Section 186.22, subdivision (b), establishes alternative methods for punishing
felons whose crimes were committed for the benefit of a criminal street gang. Section
186.22, subdivision (b)(1)(C) imposes a 10-year enhancement when the felony is a
violent felony, as defined by section 667.5, subdivision (c). That provision imposing a
10-year enhancement, however, does not apply where the violent felony is “punishable
by imprisonment in the state prison for life.” (§ 186.22, subd. (b)(5).) In that situation,
section 186.22, subdivision (b)(5), applies and imposes a minimum term of 15 years
before the defendant may be considered for parole.
       In People v. Lopez (2005) 34 Cal.4th 1002 (Lopez), the defendant was convicted
of first degree murder, and the jury found true both gang and personal use of firearm
allegations. The trial court sentenced defendant to 25 years to life for murder, 25 years to
life for the firearm allegation, and 10 years for the gang allegation. (Id. at p. 1005.) On
appeal, the defendant contended that the 10-year enhancement must be stricken because
of section 186.22, subdivision (b)(5); he argued that under the plain language of the
statute the sentence for first degree murder was a life term. (Lopez, supra, at p. 1006.)
The People disagreed, arguing that section 186.22, subdivision (b)(5) applied only to
straight life terms, and not to first or second degree murder. (Lopez, supra, at p. 1007.)
Our Supreme Court agreed with the defendant, finding that “ ‘ “imprisonment in the state
prison for life” ’ ” included both a straight life term as well as a term of years to life.
(Ibid.) The high court ordered the sentence modified to delete the 10-year gang
enhancement imposed under section 186.22, subdivision (b)(1)(C). (Lopez, supra, at p.
1011.) We shall order the same modification.
                      CRUEL AND/OR UNUSUAL PUNISHMENT
       Defendant argues that his sentence constitutes cruel and/or unusual punishment
under the federal and state Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, §
17.) We disagree.



                                               29
       A sentence constitutes cruel and unusual punishment under the Eighth
Amendment if it is grossly disproportionate to the severity of the crime. (Ewing v.
California (2003) 538 U.S. 11, 20; Rummel v. Estelle (1980) 445 U.S. 263, 271.)
Similarly, a sentence is cruel or unusual under California law if it is so disproportionate
to the crime as to shock the conscience and offend fundamental notions of dignity. (In re
Lynch (1972) 8 Cal.3d 410, 424 (Lynch); People v. Dillon (1983) 34 Cal.3d 441, 478
(Dillon).)
       Defendant relies on a number of United States Supreme Court cases and a recent
California Supreme Court case for the proposition that the imposition of his (now
reduced) 40-years-to-life sentence is categorically unconstitutional under the Eighth
Amendment because he was a juvenile when he committed the offense and the trial court
imposed the sentence pursuant to a mandatory sentencing scheme that resulted in a de
facto life-without-possibility-of-parole (LWOP) sentence.
       But all of the cases are distinguishable from this one because they involved
juveniles whose sentences were either: (1) death (Roper v. Simmons (2005) 543 U.S.
551, 578-579), (2) LWOP (Miller v. Alabama (2012) __ U.S. __ [132 S.Ct. 2455, 2460]
[2012 U.S. LEXIS 4873]; Graham v. Florida (2010) 560 U.S. 48 [130 S.Ct. 2014, 2020]
[2010 U.S. LEXIS 3881]), or (3) a term of years so long as to be the functional equivalent
of LWOP (People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero)). As the Fourth
District recently explained, the cases dealing with the permissible length of a juvenile
offender’s sentence “follow a remarkably consistent pattern. There is a bright line
between LWOPs and long sentences with eligibility for parole if there is some
meaningful life expectancy left when the offender becomes eligible for parole. We are
aware of--and have been cited to--no case which has used the Roper-Graham-Miller-
Caballero line of jurisprudence to strike down as cruel and unusual any sentence against
anyone under the age of 18 where the perpetrator still has substantial life expectancy left



                                             30
at the time of eligibility for parole.” (People v. Perez (2013) 214 Cal.App.4th 49, 57
(Perez).)
       In Perez, the court rejected an Eighth Amendment challenge by a 16-year-old
defendant who had been sentenced to a term of 30 years to life in prison. The court
acknowledged that “[h]ow much life expectancy must remain at the time of eligibility for
parole of course remains a matter for future judicial development,” (Perez, supra, 214
Cal.App.4th at p. 57) but because the defendant in that case would be eligible for parole
when he reached age 47, it held “there is plenty of time left for Perez to demonstrate, as
the Graham court put it, ‘some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.’ ” (Id. at pp. 57-58.) Because the defendant’s
sentence could not be considered a “ ‘functional’ ” or “ ‘de facto’ ” LWOP, neither
Miller, Graham, nor Caballero applied, and Roper did not apply because it was a death
penalty case. (Id. at p. 58.)
       This case is similar to Perez. Defendant, who was 16 at the time of his offense,
was sentenced (after our modification) to a total of 40 years to life and was given 1,085
days of credit for time served. Defendant concedes that he will become eligible for
parole at age 56, long before the end of his life expectancy.9 Like the juvenile defendant
in Perez, defendant will have ample time to obtain release based on demonstrated
maturity and rehabilitation. “That is, by no stretch of the imagination can this case be
called a ‘functional’ or ‘de facto’ LWOP . . . .” (Perez, supra, 214 Cal.App.4th at p. 58.)
Thus, for the reasons stated in Perez, we conclude that the Roper-Graham-Miller-
Caballero line of cases does not assist defendant.




       9
         Defendant cites publications that fix his life expectancy “anywhere from 71 to 74
years.” He claims that prison life reduces life expectancy and his reduction results in a
life expectancy “likely less than 66 years of age.”



                                            31
       Nor do they assist defendant with his argument that his sentence violates the
Eighth Amendment simply because it was mandatory10 and therefore failed to account in
any way for the fact that he was a juvenile at the time of the offense.
       This argument is based on the recognition by the Roper-Graham-Miller-Caballero
line of cases of the diminished culpability that results from minors’ immaturity. And
here again, we find Perez instructive. The defendant in that case contended that
“California’s one strike law is unconstitutional as applied to minors because it deprives
trial courts of the discretion to take into account what the Miller and Roper majorities
described as the ‘what “any parent knows” ’ factor.”11 (Perez, supra, 214 Cal.App.4th at
p. 58.) The Perez court rejected the argument because the Roper-Graham-Miller line of
cases concerned juvenile “offenders [who] had been exposed to the ‘harshest’ available
sentence.” (Id. at p. 59.) Unlike Roper, Graham, and Miller, Perez was not an LWOP
case and the state’s most severe penalties were not at stake. (Ibid.) The Perez court
refused to fashion “a judicially imposed rule of mandatory discretion, namely that no
matter how heinous the crime--or how mild the penalty otherwise imposed on adults--the
federal and state cruel and unusual punishment clauses require states to hold out some
possibility of discretionary reduction in that penalty to take into account an offender’s
youth.” (Ibid.) It went on to note that “at the moment at least, no high court has


       10
           With exceptions not applicable here, every person convicted of second degree
murder “shall be punished by imprisonment in the state prison for a term of 15 years to
life.” (§ 190, subd. (a).) Any person found to have personally and intentionally
discharged a firearm proximately causing great bodily injury during commission of
specified felonies “shall be punished by an additional and consecutive term of
imprisonment in the state prison for 25 years to life.” (§ 12022.53, subd. (d).)
        11
           The quoted language is taken from Roper, which explained that “as any parent
knows . . , ‘[a] lack of maturity and an underdeveloped sense of responsibility are found
in youth more often than in adults and are more understandable among the young. These
qualities often result in impetuous and ill-considered actions and decisions.’ ” (Roper,
supra, 543 U.S. at p. 569.)


                                             32
articulated a rule that all minors who commit adult crimes and who would otherwise be
sentenced as adults must have the opportunity for some discretionary reduction in their
sentence by the trial court to account for their youth. Perez’s sentence, albeit long, still
leaves plenty of time for him to be eligible for parole. It passes constitutional muster.”
(Ibid.)
          Defendant likewise offers no case authority holding that all minors must have the
opportunity for a discretionary reduction in their sentences based on their youth. Current
law contains no such requirement, and it seems to us that creation of such a requirement
is a matter best left to the Legislature. (Perez, supra, 214 Cal.App.4th at p. 59; see
Caballero, supra, 55 Cal.4th at p. 269, fn. 5 [urging Legislature to establish parole
eligibility mechanism for defendants serving de facto LWOP sentences for nonhomicide
crimes committed as juveniles].) Like the defendant in Perez, defendant’s sentence,
while long, leaves him ample time to be eligible for parole. We therefore disagree with
defendant that his sentence offends the Eighth Amendment. (See Perez, supra, at p. 59.)
          Finally, quite apart from Miller, Graham, Roper or Caballero, defendant asserts
that his sentence must be reduced under the older California Supreme Court
jurisprudence of gross disproportionality, as shown primarily in Lynch and Dillon. In
Lynch, the court suggested three areas of focus: (1) the nature of the offense and the
offender; (2) a comparison with the punishment imposed for more serious crimes in the
same jurisdiction; and (3) a comparison with the punishment imposed for the same
offense in different jurisdictions. (Lynch, supra, 8 Cal.3d at pp. 425-427.)
Disproportionality need not be established in all three areas. (Dillon, supra, 34 Cal.3d at
p. 487, fn. 38.)
          Defendant limits his focus to the nature-of-the-offense and nature-of-the-offender
factor. (Dillon, supra, 34 Cal.3d at p. 479.)
          Concerning the nature of the offense, we must consider both the nature of the
offense in the abstract and the facts of the crime in the particular case, including factors

                                                33
such as its motive, the way it was committed, the extent of the defendant’s involvement,
and the consequences. (Dillon, supra, 34 Cal.3d at p. 479.) Concerning the nature of the
offender, the question is whether the punishment is “grossly disproportionate to the
defendant’s individual culpability as shown by such factors as his age, prior criminality,
personal characteristics, and state of mind.” (Ibid.)
       The record must be viewed in the light most favorable to the sentence (People v.
Martinez (1999) 76 Cal.App.4th 489, 496), and defendant must overcome a considerable
burden to convince us that his sentence is disproportionate. (People v. Weddle (1991) 1
Cal.App.4th 1190, 1196-1197.)
       Successful challenges based on the traditional Lynch-Dillon line are extremely
rare. (See People v. Weddle, supra, 1 Cal.App.4th at p. 1196 [“exquisite rarity”]; In re
Nuñez (2009) 173 Cal.App.4th 709, 725 [“rarest of the rare”].) It happened in Nuñez, but
that was a case where a 14-year-old was given a full LWOP for a nonhomicide crime,
with the court successfully anticipating what the federal Supreme Court would soon hand
down in Miller. It also happened in 2005, in People v. Carmony (2005) 127 Cal.App.4th
1066, but that was a case of a 25-year-to-life sentence for--certainly in comparison to the
present case--the relatively trivial crime of failing to register as a sex offender within five
working days of the offender’s birthday. Likewise, Lynch also involved a life term for a
crime that pales in comparison to the present one, second-offense indecent exposure.
And Dillon--while certainly not a minor crime in comparison to the offense here (in
Dillon it was felony murder)--was a case that, like Nuñez, successfully anticipated what
the federal Supreme Court would later do. Specifically, in Dillon our Supreme Court was
simply some 27 years ahead of Graham (no LWOPs for minors, even in homicide cases).
       The present case certainly is not among those “exquisitely rare” cases which merit
reversal on traditional disproportionality review.
       Looking at the offense in the abstract, California courts have regularly observed
that murder ranks among the most serious crimes. (See, e.g., People v. Brown (1996) 42

                                              34
Cal.App.4th 461, 478 [“ ‘murder has always been recognized as the most serious of
crimes.’ ”]; Williams v. Superior Court (1983) 34 Cal.3d 584, 593 [“murder [is] . . . one
of the most serious offenses, even when special circumstances are not alleged.”].) In
Graham, the United States Supreme Court likewise stated that homicide ranks among the
most serious crimes. The court stated: “There is a line ‘between homicide and other
serious violent offenses against the individual.’ [Citation.] Serious nonhomicide crimes
‘may be devastating in their harm . . . but “in terms of moral depravity and of the injury
to the person and to the public,” . . . they cannot be compared to murder in their “severity
and irrevocability.” ’ [Citations.] This is because ‘[l]ife is over for the victim of the
murderer,’ but for the victim of even a very serious nonhomicide crime, ‘life . . . is not
over and normally is not beyond repair.’ [Citation.] Although an offense like robbery or
rape is ‘a serious crime deserving serious punishment,’ [citation], those crimes differ
from homicide crimes in a moral sense.” (Graham, supra, 560 U.S. at p. __ [130 S.Ct. at
p. 2027].)
       California courts have also recognized that a violation of section 12022.53 makes
a crime even more serious. As the court explained in People v. Martinez, supra, 76
Cal.App.4th at pages 497 through 498, “[T]he Legislature determined in enacting section
12022.53 that the use of firearms in commission of the designated felonies is such a
danger that, ‘substantially longer prison sentences must be imposed . . . in order to protect
our citizens and to deter violent crime.’ The ease with which a victim of one of the
enumerated felonies could be killed or injured if a firearm is involved clearly supports a
legislative distinction treating firearm offenses more harshly than the same crimes
committed by other means, in order to deter the use of firearms and save lives.”
       California courts have upheld consecutive terms for murder and for firearm use
enhancements (see People v. Zepeda (2001) 87 Cal.App.4th 1183, 1215-1216 [25 years
to life for murder and a consecutive 25 years to life for a section 12022.53 enhancement
was not cruel and unusual punishment]), even as applied to juveniles (People v. Em

                                              35
(2009) 171 Cal.App.4th 964, 972-978 [50-years-to-life sentence for committing murder
with a firearm imposed on 15-year-old defendant was constitutional]; People v.
Demirdjian (2006) 144 Cal.App.4th 10, 12-13 [same]). In People v. Gonzales (2001) 87
Cal.App.4th 1, although the court found other errors requiring reversal and resentencing,
the court rejected the challenge of two 16-year-olds and a 14-year-old that their sentences
of 50 years to life in prison for murder were cruel and unusual punishment. (Id. at pp.
16-19.) As to the 14-year-old defendant, the court stated: “While Jimenez’s youth and
incidental criminal history are factors in his favor, they are substantially outweighed by
the seriousness of the crime and the circumstances surrounding its commission . . . . The
lack of a significant prior criminal record is not determinative in a cruel and unusual
punishment analysis. [Citation.] Jimenez poses a great danger to society. Under the
circumstances of this case, the sentence is not grossly disproportionate to the crime and
does not constitute cruel and unusual punishment.” (Id. at p. 17.) And in People v.
Blackwell (2011) 202 Cal.App.4th 144, 156-157, the court affirmed an LWOP sentence
imposed on a defendant who committed felony murder at age 17.
       Looking at the instant offense factually, we do not hesitate to conclude that the
murder was inexplicably horrendous, particularly when we take into account (1)
Benevides’s advice that there were no rival gang members across the street, (2)
defendant’s first trip across the street that presumably confirmed Benevides’s advice, (3)
defendant’s second trip across the street to nevertheless provoke a gang-related fight, and
(4) defendant’s cold-blooded shooting of the victim who did no more than stand ready to
fight. In short, defendant’s culpability was anything but trivial and, obviously, most
significant in our evaluation of the nature of the offense must be that the consequence of
the crime was the victim’s death.
       As to the nature of the offender, defendant asks us to give principal consideration
to his youth, traumatic childhood, and scant criminal record (“no prior adult criminal
history and no serious juvenile criminal record beyond engaging in school fistfights”).

                                             36
       But, even taking these factors into consideration, we nonetheless conclude that
defendant’s willful, deliberate murder was not a youthful indiscretion of an immature
mind, but a deliberate, conscious attempt to take a human life by an evil and malicious
mind, warranting the punishment he received. At 16 years old, defendant was a gun-
toting gang member who disregarded advice against going across the street to look for
rival gangsters to fight and ultimately “fought” by repeatedly shooting someone who was
only poised for a fistfight. Youthful immaturity does not begin to explain such a
senseless crime. As offered by the probation officer: “The defendant murdered the
victim for no apparent reason other than perceived gang affiliation. His actions in the
present case were callous, and resulted in the victim’s senseless death.” There are no
significant extenuating circumstances here. Defendant was not goaded into the crime by
peer pressure or other external influences. The crime did not result from any provocation
by the victim or from any real or perceived wrong done to defendant. Defendant’s self-
defense justification for the killing shows no remorse and is preposterous when we take
into account that (1) no one saw Betancourt display a knife, (2) Alvarez saw Betancourt
pull empty hands from his pockets, (3) Betancourt’s knife was found closed in his pocket,
and (4) defendant shot Betancourt five times. Defendant was old and mature enough to
fully understand the nature of his conduct and the consequences for it.
       In these circumstances, we cannot conclude that the sentence in defendant’s case
is the type of “exquisite rarity” that will support a successful proportionality challenge.
(People v. Weddle, supra, 1 Cal.App.4th at p. 1196.)
       Defendant’s punishment does not violate the prohibitions against cruel and/or
unusual punishment under either the federal or California Constitutions.
                                       DISPOSITION
       The 10-year gang enhancement to defendant’s count 1 conviction for second
degree murder is stricken and replaced with the 15-year minimum parole eligibility under



                                             37
Penal Code section 186.22, subdivision (b)(1)(C). As so modified, the judgment is
affirmed.




                                                           Premo, J.



      WE CONCUR:




             Rushing, P.J.




             Elia, J.




                                          38
