Filed 11/12/13 P. v. Saxton CA2/7 (11/7/13 modification & unmodified opn. attached)




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                         SECOND APPELLATE DISTRICT

                                                      DIVISION SEVEN


THE PEOPLE,                                                                 B236087

          Plaintiff and Respondent,                                         (Los Angeles County
                                                                            Super. Ct. No. BA374252)
          v.
                                                                                      ORDER CORRECTING
DAVID SAXTON,                                                                           MODIFICATION

          Defendant and Appellant.



          The modification of the captioned opinion, filed on November 7, 2013 is corrected
to reflect the proper superior court case number, BA374252.




PERLUSS, P. J.
Filed 11/7/13 P. v. Saxton CA2/7
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B236087

          Plaintiff and Respondent,                                  (Los Angeles County
                                                                     Super. Ct. No. BA374242)
          v.
                                                                 ORDER MODIFYING OPINION;
DAVID SAXTON,                                                    NO CHANGE IN JUDGMENT

          Defendant and Appellant.



THE COURT:
          It is ordered that the opinion filed October 10, 2013, and not certified for
publication, be modified in the following respects:
          1. On page 2, third paragraph, in the first sentence, the name “Demiya” should
read “Demyia”. The second sentence, which begins with “After questioning,” should
read, “After questioning the others about the murder, police arrested appellant in
connection with an unrelated assault on Jesse White and robbery of Kenneth Bell, known
as ‘Chaboy,’ which occurred before the murder of Xray.”
          2. On page 3, in the first sentence of the first paragraph, “Demiya” should read
“Demyia”.
          3. On page 4 of the opinion, in the fourth full paragraph, the first sentence reads
as follows: “Nash was taken into custody on October 16, 2010.” It should read: “Nash
was taken into custody in October 2010.”

                                                             1
       4. On page 6, in the first line, the first full sentence which begins with “Later on,”
should be modified to read, “Later on, in the courthouse holding cell, appellant and
Chaboy were involved in a second fistfight.”
       5. On page 6, in the last paragraph, the first sentence, which begins with
“Appellant was charged,” the phrase “the assault of Chaboy on July 15” should be
modified to read “the assault of Chaboy on July 19”.
       6. On page 9, the first word on the page should be “Nash” instead of “appellant.”
       7. On page 9, in the second full paragraph, the first sentence, beginning with
“Chaboy testified,” should be modified to read “Chaboy testified at trial that he met
appellant once.”
       8. On page 16, in the second full paragraph, the fourth sentence which begins with
“According to Nash,” the words “and Sanders” should be deleted.
       9. On page 19, in the third full paragraph, the last sentence reads “Chaboy and
Nash gave consistent versions about the confrontation in the holding cell.” That sentence
should be deleted.
       Saxton’s petition for rehearing is denied. The foregoing does not change the
judgment.




PERLUSS, P. J.                     WOODS, J.                            ZELON, J.

                                              2
Filed 10/10/13 (unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B236087

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA374252)
         v.

DAVID SAXTON,

         Defendant and Appellant.




                   APPEAL from a judgment of the Superior Court of Los Angeles County.
Ronald S. Coen, Judge. Affirmed.


                   Marleigh A. Kopas, under appointment by the Court of Appeal, for
Defendant and Appellant.


                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Eric E. Reynolds
and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.


                                ___________________________________
       David Saxton (appellant) was convicted by a jury of assault with a deadly weapon
(Pen. Code, § 245, subd. (a)(1)1) and dissuading a witness by force or threat (§ 136.1,
subd. (c)(1)). In a bifurcated proceeding, he admitted that he suffered two prior
convictions for serious or violent felonies within the meaning of section 1170.12,
subdivisions (a) through (d) and section 667, subdivisions (b) through (i); and five prior
convictions for which he had served separate prior prison terms (§ 667.5, subd. (b)). He
was sentenced to 55 years to life in prison consisting of 25 years to life for the assault, 25
years to life for dissuading a witness, and one year for each of the five prior prison terms.
He appeals, contending that the court erred in refusing to allow him to impeach a key
prosecution witness and in allowing the prosecutor to present gang evidence; the
prosecutor committed misconduct by cross-examining appellant on his gang affiliation;
he was repeatedly denied effective assistance of counsel; his constitutional rights were
violated; and the cumulative effect of the errors was prejudicial. We affirm.
                      FACTUAL & PROCEDURAL BACKGROUND
Summary
       In the early morning hours of July 19, 2010, appellant called 9-1-1 about a
shooting in the skid row area of Los Angeles near 6th and Maple Street. Appellant
remained at the scene. The body of the victim, a man known as Xray,2 was discovered.
Bullets and shell casings were found in the area but no gun was recovered. Police
interviewed appellant at the station and a gunshot residue test was performed on his
hands. The test results were inconclusive. Appellant was released.
       The police questioned several others who were in the area, including Demiya
Sanders and Wendell Nash. After questioning the others about the murder, police
arrested appellant in connection with an unrelated assault and robbery on Kenneth Bell,
known as “Chaboy,” which occurred before the murder of Xray. Appellant was not
charged with the murder of Xray.

1
       All further undesignated statutory references shall be to the Penal Code.
2
       Xray’s given name was Josey or Jody Heard.

                                              2
The police interviews on July 19th
       Demiya Sanders was interviewed informally outside the police station the evening
of Xray’s murder. She was then taken inside the station and interviewed by Los Angeles
Police Officer Sergio Ortiz in a videotaped session. She told the police she had seen an
earlier altercation between appellant and Chaboy,3 but did not give them appellant’s
name. She said appellant was wearing red, and during the fight with Chaboy, he called
someone on the phone. Shortly thereafter, another person arrived in a doo-rag and blue-
hooded sweater. Sanders referred to him as appellant’s “brother.” The person in the
hooded sweater took out a gun, and appellant said, “Give me the thing.” The “brother”
fired one shot, and Chaboy fell and started running. Sanders also said that the person in
blue changed to a green and black shirt. Sanders left the area, walked around for about
30 minutes and then heard two shots. Someone came up to her and told her Xray had just
been shot after an argument by someone wearing red flannel. Sanders had known Xray
for several years. Sanders did not see the shooting of Xray. When asked if she knew the
person in red flannel, Sanders said she knew he was a Blood from Laudas Park.
       Wendell Nash was also interviewed on July 19th by two other officers. Nash saw
appellant in a red and black plaid shirt talking to a man in the neighborhood known as
Xray. Xray appeared to be angry and appellant was calm. Nash left the area. Nash did
not tell police he saw appellant shoot Xray. Nash did not identify appellant by name, just
by a description of his clothing.
       On July 21st, Officer Ortiz interviewed Jesse White, Chaboy’s brother, who had
been arrested on an unrelated charge. White’s nickname was “Pooh.”
       On July 22, 2010, Chaboy walked into the police station on his own. He was
interviewed and the interview was videotaped. Chaboy told Officer Ortiz that appellant
came up to him and his brother on July 15, 2010. Chaboy did not know appellant’s name
but knew what gang he belonged to and knew that people called him “the guy from
Hacienda.” Chaboy said appellant “comes up banging on everyone. He’s making sure

3
       The reporter transcribed the name as “Jaboy.”

                                            3
that everybody’s a Blood that’s around us.” Appellant pointed a pistol at him and
Chaboy ran. Appellant took Pooh’s cell phone and ID. A few days later, Chaboy, his
brother Pooh, and Sanders were sitting on a crate in the street on the corner of 5th and
San Julian Streets. Appellant approached, wearing a red coat. Appellant and Chaboy
argued and appellant hit Chaboy. Someone rode up on a bicycle and appellant called him
“his brother.” Appellant’s friend pulled a pistol and shot at Chaboy. Chaboy ran. About
15 minutes later, Xray was shot. Chaboy identified appellant from a photographic line
up.
         Officer Ortiz realized there was a possible connection between the Xray shooting
and the Chaboy shooting because Sanders, Nash and Chaboy all described someone
wearing a red and black flannel shirt or jacket.
Arrest
         Appellant was arrested on July 29, 2010, on 7th Street between Wall and San
Julian Streets, about two to three blocks from the location where Chaboy was assaulted.
Nash’s subsequent statements
         On July 30, 2010, Nash identified appellant’s photograph during a taped interview
with Detective Oritz but did not say he had seen the shooting of Xray.
         Nash was taken into custody on October 16, 2010. He wrote a letter to the District
Attorney identifying appellant as the one who shot Xray. Police then interviewed Nash
on October 25th. Nash wrote another letter to the District Attorney in November 2010.
The letter said appellant was the shooter in a cold blooded killing.
         Nash was interviewed again by Officer Ortiz on November 30, 2010. Nash told
him that on July 19th, shortly after midnight, he saw a confrontation between two
brothers and a man dressed in a red plaid shirt with a black baseball cap. Sanders walked
away from the men and she told Nash the man in red had a gun. Nash heard the man in
red talk to one of the brothers. The man in red got “huffy” and someone else arrived.
The man in red called the newcomer a “Blood.” The man in red punched the older
brother, and said “Let me see that.” The older brother ran, then the shooter took aim and



                                              4
shot. The older brother fell by San Julian and 5th Streets, so Nash thought he had been
shot, but the brother got up and ran.
       Nash then walked back across the street. The man in red stayed at the scene and
confronted someone named Xray in front of the Los Angeles Mission. The man in red
said, “I’m little somebody from Hacienda,” and Xray said, “I’m from Watts.” The man
in red said he wanted to talk to Xray privately. Nash then heard a shot.
The preliminary hearing
       At the preliminary hearing, appellant represented himself.
       Nash testified at the preliminary hearing in disguise so appellant could not identify
him. He was afraid for his life. He said he was on 5th and San Julian Streets shortly after
midnight on July 19, 2010. He saw appellant with a red plaid shirt having an argument
with a light-skinned man about a girl. Appellant made a phone call, telling someone to
“come on down.” Someone else arrived in a few minutes and talked to appellant.
Appellant hit the light-skinned man. Appellant appeared to have his hand on a weapon
inside his pocket. Nash saw a gun in the other man’s hand. Appellant said, “Let me see
that,” or “Give me that,” to his friend. The light-skinned man ran and appellant walked
away calmly.
       Nash said he also saw appellant in a confrontation with Xray, and then he saw
appellant running away. He did not see appellant shoot Xray but thought appellant had
the motive to do so because they “both gang bang.” Nash did not report the shooting of
Xray to the police.
       During the preliminary hearing Nash testified that he was smoking marijuana on
the night of the shooting and was on medication for psychological problems. He also
testified that it was common knowledge that the neighborhood where the shooting
occurred is a place to buy and sell drugs.
       Chaboy testified at the preliminary hearing that he was currently in custody and
that he had a confrontation with appellant in the Twin Towers of county jail that day
because appellant said he “snitched on him.” Appellant had shown him some paperwork
with Chaboy’s name on it. Appellant physically attacked Chaboy. Chaboy did not report

                                             5
the incident when it occurred. Later on, in the courthouse holding cell, appellant hit
Chaboy in the face. This incident was videotaped.
       Chaboy had seen appellant on July 16, 2012, when Chaboy and his brother were
sitting on a wall and appellant drew a gun after they had an argument about a girl.
Appellant did not shoot but took his brother’s cell phone at gun point.
       A few days later on July 19th, appellant came up to Chaboy and his brother again
and tried to hit Chaboy. Someone else came up on a bike, and took a gun out. A shot
was fired but Chaboy did not see who fired the gun. Chaboy ran off and the man on the
bike chased after him. Chaboy remembers that appellant was wearing a red jacket.
       Chaboy did not know Xray, but knew his name. He did not know appellant’s
name but he knew he was from the Hacienda gang. Appellant had approached Chaboy
and identified himself as affiliated with the Hacienda Village gang. Chaboy knew that
appellant “hustle[s]” in the area.
       Chaboy did not report the incident where appellant confronted him and his brother
because of “a code in the streets . . . – what happens in the streets, stays in the streets.”
Chaboy admitted being a “drug offender.”
       Appellant testified on his own behalf at the preliminary hearing. He denied calling
Chaboy a snitch because he did not even know who Chaboy was. He claimed Chaboy
came up and hit him. He denied fighting with Chaboy. He claimed he said he went
downtown with his girlfriend and called 9-1-1 to report the shooting of Xray. He did not
see who shot him, but heard a shot as he walked past Xray. He denied being in a gang.
He denied carrying a gun. He denied calling someone to come and meet him on July
19th. He admitted arguing with Pooh but denied there was a physical altercation.
Charges against appellant
       Appellant was charged with the robbery of Pooh on July 15th, the assault of
Chaboy on July 15, and dissuading a witness (Chaboy) by force or threat on August 16,
2010. The robbery charge was later dismissed.




                                               6
Trial testimony
       Appellant was represented by counsel at trial.4
       Sanders testified at trial that around midnight on July 18th she saw appellant
wearing a red and black sweater. She was talking with Pooh and Chaboy when appellant
walked up. She had never seen appellant before. Appellant and Chaboy argued about a
female and Chaboy accused appellant of robbing him. Chaboy and appellant went into
the street and were about to fight. They never hit each other. A man rode up on a bike
and appellant said to the man on the bike, “Shoot him.” Appellant appeared to know the
man. Sanders walked away and 15 to 20 minutes later saw appellant being detained by
the police. She told the police that appellant actually tried to hit Chaboy. She did not tell
police that appellant said, “Shoot him.”
       On cross-examination, appellant’s counsel asked her if she was using or selling
drugs that night. She denied doing either. She testified that appellant had on a red
flannel shirt and a black baseball cap. She said that after the shot was fired she started
walking towards Los Angeles Street, met some friends, walked up towards 6th Street.
Fifteen minutes later, she heard another shot fired. Someone then told her that Xray had
been shot but she did not witness the shooting.
       Defense counsel again asked her if she had been drinking that night. The
following colloquy took place: “Q. You are not a drug user? A. No. Q. Ever? A. No.”
       Defense counsel then asked, “Did anyone ever make any reference to gangs?” and
Sanders answered, “Blood? Not, ‘Where are you from?’ But, Blood, yes.”
       On re-direct, Sanders testified that she had been homeless for about one and half
years. Sanders said she usually stayed at the Midnight Mission, playing cards in the park.
When asked why she did not report Chaboy’s shooting she said she was just trying to get
away and did not know if she would be followed.


4
       Attorney Dale Atherton was appointed to represent appellant after the preliminary
hearing. Shortly before trial, Atherton was relieved due to a scheduling conflict.
Jonathan Roberts was appointed and represented appellant during trial.


                                              7
       The videotape of Sanders’ interview with police was played for the jury. She
explained that the person with the doo-rag and a blue-hooded sweatshirt was the man on
the bike. She also explained that a stocking cap and a doo-rag were the same thing and
she referred to both of those when referring to the shooter.
       Nash testified at trial that he was familiar with the area of 5th and San Julian
Streets. He did not know appellant. He knew Chaboy and knew Pooh vaguely. He did
not know Sanders. On July 19, Nash saw appellant, wearing a red “lumber jacket,”
challenging Chaboy. Appellant said something about “Niggers from Chicago and think
that they could just move down here” and sell narcotics. Nash felt it was a territorial
dispute. Appellant called someone on his cell phone. Nash heard appellant call himself
“Little Dave from Hacienda.” Nash later saw appellant running on Maple Street, say
something to Xray, hold up a gun and shoot Xray in the head.
       The prosecutor played a DVD of Nash’s November 30, 2010 police interview for
the jury and provided it with a redacted transcript of the audio recording.
       Nash said he came to the preliminary hearing in disguise and used an accent
because he did not want to testify. He was worried about his own safety. He was
arrested on a narcotics charge after the incident with appellant and wrote to the District
Attorney’s office trying to negotiate a deal on his own case in exchange for testimony
about appellant.
       Nash admitted he was currently serving a prison sentence for narcotics sales. He
was being housed in the “mental ward” for psychological problems and was currently
being medicated.
       Nash said when he was in a holding cell with appellant a few days earlier,
appellant told him to say he lied about everything if called as a witness.
       On cross-examination, Nash said that on July 19th police came up to him on the
street and asked him to come inside the station. Nash admitted that he was smoking
marijuana that evening. He did not tell the police that he saw appellant shoot Xray
because he was afraid due to “street laws.” In response to defense counsel’s questions,



                                              8
appellant said he was afraid because he believed appellant to be a gang member. Nash
said he thought appellant was a Hacienda Blood and he called himself “Little David.”
       The first time he told police about the shooting of Xray was in the letter he wrote
to the District Attorney on October 19 of 2010. In his first letter, he claimed he saw
appellant shoot Xray point-blank in the head. In a second letter he said “the robbery
victim is a suspected and known drug dealer” and a “known gang banger.” He said
appellant was “a vicious and extremely violent and heartless murderer that has put a hit
out on my life.” He hoped the letters would get him into a drug program.
       Chaboy testified at trial that he met appellant once, when he was in custody on his
own case. He never saw appellant with a handgun, and never saw him rob his brother.
He admitted talking to Officer Ortiz but said he was lying. He claimed he was pressured
by another officer into saying things and into agreeing with his brother’s statement. He
circled appellant’s photograph because he knew him. He remembered getting into a
physical altercation with appellant in the jail and another verbal altercation in the Twin
Towers. He identified his signature, he identified his picture at the police station, and
said he did not want to testify. He denied feeling his life was in danger.
       Chaboy’s July 22nd police interview was played for the jury and the jury was
provided with a transcript of the recording. When shown the portion of the videotape
where he said appellant pointed the gun at him and his brother, Chaboy denied seeing
appellant point a gun at his brother.
       Chaboy admitted he was in custody for selling narcotics. Chaboy’s preliminary
hearing testimony was read to him when he described the two altercations. The
videotape of the altercation in the courthouse was shown to him. Chaboy said it showed
appellant pushing him against a wall but also showed him attacking appellant. Chaboy
then testified he lied about the incident to the District Attorney and lied at the preliminary
hearing.
       Officer Ortiz testified. He had interviewed Chaboy, Sanders, and Pooh. All the
witnesses said something about a red flannel shirt and some sort of cap. Chaboy walked
into the police station on his own. Chaboy told Ortiz that appellant pointed a gun at him

                                              9
in a videotaped interview. Nash initially identified appellant on the 19th by describing
the red jacket. He did not identify him by name until the 30th. Nash did not implicate
appellant until October 16 when he wrote to the District Attorney.
       Sanders told him appellant was involved in the murder of Xray. Sanders did not
tell Ortiz that appellant said, “Shoot him,” but said “Give me that thing.” Sanders told
Ortiz that the shooter was wearing a doo-rag on his head but Chaboy said there was
nothing on the shooter’s head.
       At trial, appellant testified in his own defense. He admitted to four prior
convictions. On July 19th, he was standing at Maple Avenue when he heard a shot fired
and saw a man fall. He called 9-1-1. He identified the man as Jody Heard. He talked to
police when they arrived and identified himself as the one who called 9-1-1. He talked to
Officer Ortiz and was taken into the police station. He was interviewed over a 16-hour
period. He did not see Sanders or Nash at the station and he was not asked about Pooh or
Chaboy.
       During the period around July 19, 2010, he was living in Newhall but came down
to the neighborhood of San Julian and 5th Street when he was arrested. He remembered
getting into a disagreement with Pooh about a girl, four or five weeks prior to the
shooting of Heard. He did not have a confrontation with Chaboy. On July 19, he had
come to the area with his girlfriend to buy some “weed” and they were renting a room in
the area for the weekend. He had never seen Nash, Chaboy, or Sanders prior to this case.
He did not recall seeing Chaboy in jail. Someone came towards him and he tried to
defend himself. After he fought with Chaboy they were put into separate “tanks” with
plexiglass barriers.
       On cross-examination he testified that he saw Chaboy’s and Nash’s names on the
police reports he was given since he was representing himself at the time. He admitted
that on July 19, 2010 he was wearing a red and black jacket with a black hat. He
admitted being in the area to buy marijuana with his girlfriend and had done so more than
50 times in the past. He said he did not have friends in the area, and they were not people
that he sees on a regular basis in that area.

                                                10
       The prosecutor then read preliminary hearing testimony from Chaboy about how
he knew appellant and Xray. Defense counsel objected to introduction of this testimony
because there was a reference to gang membership. The court overruled the objection
because the reference to the Hacienda gang related to the issue of identification. Chaboy
answered “ I know you by your gang.” When asked what gang, Chaboy said “From
Hacienda Village.” At trial, the prosecutor asked appellant where Hacienda Village was,
and said he grew up near that area.
       The prosecutor then read preliminary hearing testimony from Chaboy wherein he
stated he did not report the incident with appellant because “what happens in the streets
stays in the streets.” The prosecutor asked appellant if he was familiar with the “code of
the streets.” Appellant said he was familiar with the code, but did not think Chaboy or
Nash had “snitched” on him. He saw Nash and Chaboy in the same tank in the
courthouse and confronted them for lying.
       The prosecutor again asked appellant on cross-examination about what gangs were
in the area where he grew up. Defense counsel objected on the grounds of relevance, but
the court overruled the objections. Appellant identified several gangs in the area. The
prosecutor then asked what kind of gang Hacienda Village was or what they do and
defense counsel objected on grounds of speculation and foundation. The court overruled
those objections. Appellant identified Hacienda as a “Blood gang.”
                                       DISCUSSION
1. Sanders’ prior criminal history
       Sanders had two sustained juvenile petitions for selling drugs. During direct
examination by the prosecutor, but out of the presence of the jury, defense counsel sought
to impeach her with evidence of these prior petitions. The court denied the request,
stating, “[A]fter hearing the main thrust of [Sanders’] testimony, I do find that the
probative value of utilizing such prior conviction . . . is outweighed by the fact that as a
juvenile petition some years back that it would cause confusion to the jury. I am utilizing
this in light of the fact that I understand other witnesses are in custody already for other
matters. The use of the impeachment is denied.” When defense counsel cross-examined

                                              11
Sanders, he asked her if she was drinking the night of the shooting. She said she was not
and denied being a “drinker” or a “drug user” “[e]ver.”
       Defense counsel then renewed his request to impeach her with her prior sustained
petitions. The following colloquy occurred: “THE COURT: It’s not narcotic sales.
Denied. [¶] [DEFENSE COUNSEL]: She has denied using them. I would like to
question her. I just thought I would go to sidebar before I did and got in trouble with her.
I would like to question her further about her selling them because it just seems to me it’s
now becoming relevant. [¶] THE COURT: The objection is denied. The question
should have been objected to, but it wasn’t. But the ruling remains the same.”
       Appellant contends that the court abused its discretion in refusing to allow the
impeachment.
       Evidence Code sections 788 and 352 give the trial court discretion to exclude
evidence of prior felony convictions when their probative value on credibility is
outweighed by the risk of undue prejudice. (People v. Muldrow (1988) 202 Cal.App.3d
636, 644.)
       Evidence of a witness’s past criminal conduct can be admitted to demonstrate the
witness’s lack of veracity, subject to the discretion of a trial court. (People v. Wheeler
(1992) 4 Cal.4th 284, 295, superseded by statute on other grounds as stated in People v.
Duran (2002) 97 Cal.App.4th 284.)
       A witness may not be impeached with the fact of a prior juvenile adjudication
because it is not a “conviction.” Evidence of the underlying conduct, however, is
admissible, if the conduct involved moral turpitude. (People v. Wheeler, supra, 4 Cal.4th
284, 291-292, 295; People v. Lee (1994) 28 Cal.App.4th 1724.) Moral turpitude has been
defined as a “readiness to do evil.” (People v. Castro (1985) 38 Cal.3d 301, 314.) The
past misconduct involving moral turpitude may suggest a willingness to lie. (People v.
Wheeler, supra, 4 Cal.4th at pp. 295-296.) Sale of narcotics involves moral turpitude.
(People v. Castro, supra, 38 Cal.3d at p. 317.)
       In determining whether to admit the prior criminal history, the trial court should
consider (1) whether the prior conviction reflects adversely on an individual’s honesty or

                                             12
veracity; (2) the nearness or remoteness in time of the conviction; (3) whether the prior
conviction is for the same or substantially similar conduct to the charged offense; and (4)
the effect if the defendant does not testify out of fear of impeachment by the prior
convictions. The first factor goes to the admissibility of the prior conviction, which the
court must resolve before exercising its discretion based on the remaining factors.
(People v. Green (1995) 34 Cal.App.4th 165, 182-183, citing People v. Beagle (1972) 6
Cal.3d 441.)
       “On appeal, the trial court’s discretion is reviewed for abuse of discretion. . . . In
most instances, the appellate courts will uphold the exercise of discretion even if another
court might have ruled otherwise.” (People v. Feaster (2002) 102 Cal.App.4th 1084,
citing People v. Clair (1992) 2 Cal.4th 629, 655.) The trial court has broad discretion in
deciding whether to admit acts of moral turpitude. (People v. Doolin (2009) 45 Cal.4th
390, 442-443.) We cannot interfere with the trial court’s exercise of discretion unless it
was clearly abused. (People v. Stewart (1985) 171 Cal.App.3d 59, 65-66.)
       The record reveals the trial court carefully considered the evidence under
Evidence Code section 352 but concluded that its probative value did not outweigh the
danger of undue prejudice.
       Initially we note, as the trial court did, that Sanders denied using drugs, but her
prior adjudications were for selling drugs. However, even if evidence of her past history
were admitted, we find that any mention of them would not have affected the weight of
her testimony. Sanders told police the same version of the incident as Chaboy and Nash.
All of their descriptions pointed to a man wearing red whom they recognized as a gang
member who frequented the area.
       Due to the fact that the witnesses and victims all lived in the area which was
known for narcotics sales, the fact of Sanders’ prior narcotics sales activity should not
have surprised anyone. As the trial court noted, “other witnesses are in custody already
for other matters.” Nash admitted he had a prior criminal history, including narcotic
related convictions, and admitted he was in custody and on psychotropic medications at
the time of trial. Chaboy was in custody on a narcotics charge. Nash described Chaboy

                                              13
as a known drug dealer and said appellant was angry that Chaboy was selling drugs in his
territory. Appellant admitted to drug use. Any evidence that Sanders was also selling
drugs would not have outweighed the striking similarities in the descriptions of the
assault. Any error in excluding the evidence was harmless. (People v. Feaster, supra,
102 Cal.App.4th at p. 1094.)
       Appellant also contends that his federal constitutional right to confrontation (Sixth
and Fourteenth Amendments to the U.S. Constitution) was violated when the trial court
did not allow counsel to impeach Sanders. He then argues that if he is prevented from
raising these claims on appeal because his counsel did not object at trial on federal
constitutional grounds, then he is entitled to claim ineffective assistance of counsel.
       To show a deprivation of federal due process rights, appellant must show that the
erroneous admission of evidence resulted in an unfair and arbitrary trial. (People v.
Albarran (2007) 149 Cal.App.4th 219, 229.) Since we have found that any error in the
court’s refusal to allow impeachment of Sanders was harmless, we find no violation of
appellant’s federal Constitutional rights. (People v. Castro, supra, 38 Cal.3d at p. 317.)
There was no ineffective assistance of counsel due to appellant’s counsel’s failure to
object on federal constitutional grounds.5 We are not persuaded that a more favorable
verdict would have occurred even if the impeachment evidence were admitted. (People
v. Cudjo (1993) 6 Cal.4th 585, 634-635; People v. Nguyen (1995) 40 Cal.App.4th 28, 36-
37, fn. 2.)
2. Gang evidence
       Prior to trial, there was a discussion between counsel over the use of the police
field identification cards to show appellant’s gang affiliation. The prosecutor stated she
would only introduce gang evidence to the extent it had to deal with the circumstances of
the robbery and assault.




5
       Appellant’s claims of other incidents of ineffective assistance of counsel are
discussed in Section 4, infra.

                                             14
       Halfway during trial, defense counsel requested a bench conference in which he
stated that the Deputy District Attorney had just given him an arrest report for appellant
which indicated that appellant was an active gang member for Hacienda Village Bloods.
Defense counsel said he had previously been under the impression that there was no
documentation of appellant’s gang membership. The prosecutor stated that he6 was not
planning on introducing any sort of formal gang evidence, but when defense counsel had
“pushed and prodded” for evidence of appellant’s gang affiliation, he asked Officer Ortiz
to investigate it, and the officer came up with the report. The prosecutor stated “At this
point I don’t intend on using any of it in my case in chief.” Defense counsel said that if
appellant testified he was not a member of a gang, he could be impeached with that
information, and requested time to investigate. The court granted him the rest of the
following day after the prosecution rested.
       In this trial, there was no gang expert called as a witness and no gang allegation
against appellant.
       As indicated previously, Sanders, Nash and Chaboy all referred to appellant as a
gang member. They testified that he referred to the man on the bike as a “brother” or a
“Blood” and that appellant used the word “Blood” just before the Chaboy shooting.
Appellant contends that these multiple references to gang membership were irrelevant
and inflammatory. Appellant also contends the court erred by allowing the prosecutor to
elicit irrelevant and inflammatory evidence about the Hacienda gang from the witnesses
and from appellant on cross-examination.
       Gang evidence is admissible when it is relevant to motive, intent, identity and
modus operandi. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049; People v. Martin
(1994) 23 Cal.App.4th 76, 81.) Gang evidence should not be admitted if it is only
admitted to prove a criminal disposition or if it is tangentially relevant and will have a



6
       A different Deputy District Attorney appeared on behalf of the People during trial.



                                              15
highly inflammatory impact. (People v. Williams (1997) 16 Cal.4th 153, 193; People v.
Ruiz (1998) 62 Cal.App.4th 234, 240.)
       We review the admission of gang evidence for abuse of discretion. (People v.
Carter (2003) 30 Cal.4th 1166, 1194.) A trial court abuses its discretion when it exceeds
the bounds of reason, all of the circumstances being considered. (People v. Giminez
(1975) 14 Cal.3d 68, 72.)
       The evidence that appellant had gang ties was relevant to the issues of
identification and motive. Appellant’s defense was an alibi, that he was not at the scene.
Chaboy, Sanders, and Nash identified appellant by his gang, and said he was known in
the neighborhood. Sanders and Nash heard appellant identify himself as a “Blood.”
According to Nash and Sanders, appellant’s motive for assaulting Chaboy was
interference with appellant’s narcotics sales territory. While this was not a gang dispute,
appellant called on someone whom he referred to as a “brother” to assist in the
confrontation. Appellant admitted he grew up in the Hacienda Village neighborhood,
corroborating identity.
       The gang evidence was also relevant because it explains why Nash did not tell
police what he saw and testified in disguise at the preliminary hearing and why Chaboy
completely recanted his eyewitness account at trial. In order to explain why the shooting
took place, and to tie in the varying witness accounts, the prosecution was entitled to
demonstrate that appellant was an alleged gang member. (People v. Samaniego (2009)
172 Cal.App.4th 1148, 1167-1168.)
       Any abuse of discretion in admitting gang evidence was harmless in light of the
eyewitness accounts identifying appellant as someone the witnesses all knew and the
consistent descriptions of him wearing a red shirt. Here, in contrast to the cases cited by
appellant, People v. Albarran, supra, 149 Cal.App.4th 219 and People v. Bojorquez
(2002) 104 Cal.App.4th 335, the challenged evidence had direct relevance to and was
directly probative of the charges against appellant. Moreover, we find no reasonable
likelihood that the jury’s passions were inflamed by the evidence of gangs. Under the
harmless error standard of review, the outcome of the trial could not have been more

                                            16
favorable to appellant had the gang evidence been excluded. (People v. Fields (2009)
175 Cal.App.4th 1001, 1018.)
3. Prosecutorial misconduct
       Appellant contends the prosecutor committed misconduct by eliciting prejudicial
gang evidence during cross-examination of appellant, and during closing argument,
arguing facts not in evidence. Upon questioning by the prosecutor, appellant testified he
lived in the same neighborhood as Hacienda gang territory and named several other
gangs in the neighborhood. Several of the gangs he named had the word “Crips” in their
name. Appellant then testified that Hacienda Village was a Blood gang, but appellant
never admitted he was a member of that gang, nor was he asked about his affiliation.
Counsel argued in closing: “And what are the odds that the defendant happened to know
or seemed to know. I don’t know whether it’s true or not, whether he was correct,
happened to know, exactly what the gangs there were [in] that area and who their rivals
were.” In addition, the prosecutor argued, “How else would all the fingers point at the
Hacienda Blood, the guy who identified himself as such, and just so happens to be
wearing red and just so happens to have grown up in the area in which that gang
frequents?” Appellant contends that the prosecutor was improperly appealing to the
jurors’ emotions and fear.
       “A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it ‘infects the trial with such unfairness as to make the conviction a
denial of due process.’ (People v. Morales (2001) 25 Cal.4th 34, 44, . . .) In other words,
the misconduct must be ‘of sufficient significance to result in the denial of the
defendant’s right to a fair trial,’ (United States v. Agurs (1976) 427 U.S. 97, 108. . . .)”
(People v. Coffman (2004) 34 Cal. 4th 1, 92.) A prosecutor’s conduct violates California
law only if it involves the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury. (Ibid.)
       Appellant did not object to any statements in closing argument nor did he request
an admonition from the court. Appellant has therefore forfeited this issue on appeal.
(People v. Coffman, supra, 34 Cal.4th at p. 100.)

                                              17
       In any event, we have determined that the gang references were admissible due to
their relevance to identity and therefore, the prosecutor did not commit misconduct when
eliciting evidence with gang references.
       A prosecutor enjoys wide latitude in commenting on the evidence, including
urging the jury to make reasonable inferences and conclusion therefrom. (People v.
Tafoya (2007) 42 Cal.4th 147, 179.) In our view the challenged comments fell within the
permitted range of fair comment on the evidence. Appellant was repeatedly identified as
a gang member by three eyewitnesses. He lived in the same neighborhood as the gang
they identified. The prosecutor was drawing a fair inference from this testimony. The
statement about rivals was also a logical conclusion from his testimony that some of the
gangs in the neighborhood were Crips and the Hacienda gang was a “Blood gang.” There
was no reasonable likelihood any juror would have applied the prosecutor’s comments
erroneously. We conclude any misconduct was harmless, given the fleeting nature of the
comment and the overwhelming weight of the evidence against appellant. (People v.
Huggins (2006) 38 Cal.4th 175, 252-253.)
4. Ineffective assistance of Counsel
       Appellant contends that he received ineffective assistance of counsel because his
trial counsel made promises in opening statement that he would establish appellant was
not a gang member and then failed to provide that evidence, because his counsel failed to
request exclusion of gang evidence under Evidence Code section 352 and because his
trial counsel elicited prejudicial evidence when cross-examining Nash which portrayed
appellant as a vicious murdering gang member.
       To establish ineffective assistance, appellant must show that his counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms. Next he must establish that absent counsel’s error, it is reasonably
probably that the verdict would have been more favorable to him. (People v. Gray
(2005) 37 Cal.4th 168, 206-207; In re Fields (1990) 51 Cal.3d 1063, 1069-1070.) On
appeal, the court defers to reasonable tactical decisions made by counsel. If the record on
appeal does not reveal why counsel acted in the manner challenged, we reject the claim

                                            18
of ineffective assistance unless counsel was asked for an explanation and failed to
provide one. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
       In his opening statement, defense counsel told the jury that some of the witnesses
would make statements about appellant being a gang member. He continued, “Whoever
may or may not have done these things, apparently, represented themselves as a Hacienda
Village Blood. The problem is that [Officer Ortiz ] will tell you that it’s not so.
[Appellant] has never been a Hacienda Village Blood or any other. He is not any gang
‘Blood.’”
       At trial, appellant never admitted being a Hacienda Blood gang member. He
merely testified that he grew up in the area and knew which gangs were in that area.
Officer Ortiz never testified that he knew appellant to be a Hacienda Blood member. The
statements defense counsel made were consistent with the defense of mistaken identity in
the face of conflicting evidence from the prosecution witness. Defense counsel may have
been making a tactical decision to meet the gang evidence head on, since he knew that
various witnesses had referred to appellant by his gang membership in videotaped police
interviews.
       Since it was a reasonable inference that counsel made a tactical decision to address
the gang evidence, and the record does not suggest that counsel failed to provide an
explanation about this decision when asked, the ineffective assistance claim must be
rejected. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058.) In addition, appellant failed
to demonstrate a reasonable probability the outcome of the trial would be different absent
the alleged errors. Three eyewitnesses described the assault on Chaboy and identified
appellant. Chaboy and Nash gave consistent versions about the confrontation in the
holding cell.
       With respect to the gang evidence elicited from witnesses, as we have discussed,
the gang evidence was relevant to the issue of identity. The trial court did rule that the
evidence was relevant, prior to and during trial. Any objection to the introduction of this
evidence would have been futile. (People v. Waidla (2000) 22 Cal.4th 690, 719.)



                                             19
5. Cumulative Error
       Appellant claims that the cumulative effect of the errors requires reversal. We do
not agree. The alleged errors did not affect the process nor did they accrue to his
detriment. (People v. Sanders (1995) 11 Cal.4th 475, 565; People v. Osband (1996) 13
Cal.4th 622, 688.)


                                      DISPOSITION


       The judgment is affirmed.




                                                                      WOODS, J.


We concur:




              PERLUSS, P. J.




              ZELON, J.




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