Filed 8/12/15 P. v. Rattler CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


THE PEOPLE,                                                          B258743

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA424392)
         v.

JaJUAN RATTLER,

         Defendant and Appellant.



         APPEAL from the Superior Court of Los Angeles County, Lia Martin, Judge.
Affirmed.
         Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews,
Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney General,
for Plaintiff and Respondent.
                                      INTRODUCTION
       A jury convicted defendant and appellant JaJuan Rattler of possession of a firearm
by a felon. (Pen. Code, § 29800, subd. (a)(1)1.) Defendant admitted that he suffered four
prior felony convictions within the meaning of the “Three Strikes” law (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)) and two prior felony convictions within the meaning of
section 667.5, subdivision (b). The trial court sentenced defendant to six years in state
prison. On appeal, defendant contends that the trial court abused its discretion in
permitting the prosecution to present gang evidence. We affirm.


                                      BACKGROUND
       About 5:15 a.m. on May 4, 2014, Los Angeles Police Department Officer Jeremy
Miller and his partner Conor Sever patrolled the area around 73rd and Main Streets.
Recently, there had been a number of automobile burglaries and vandalisms in the area.
While on patrol, Officer Miller saw a man standing close to and nearly between some
parked cars. The man caught Officer Miller’s attention because he was wearing all dark
clothing, including a baseball cap “with a white Cincinnati C on it.” Officer Miller took
note of the cap because “[t]hat cap . . . can sometimes be indicative of a gang member” in
that neighborhood.
       As the officers approached in their vehicle, the man looked in their direction,
turned, and ran into the courtyard of a nearby apartment building. The officers drove to
the apartment building—a distance of about 150 feet. The windows of their police car
were open. When they stopped, Officer Miller heard the sound of a heavy metal object
striking concrete. He “associated” that sound with a gun hitting concrete. Officer Miller
previously had heard the sound produced when a gun strikes concrete and described it as
“distinctive.” The sound seemed to come from the courtyard—at that time of the
morning, it was very quiet outside.




1      All statutory citations are to the Penal Code unless otherwise noted.

                                             2
       About two seconds after Officer Miller heard the “metal sound,” he saw the man
who had run into the courtyard walk out from behind a shrub. The man had removed his
sweatshirt, but was still wearing the baseball cap. Officer Miller identified defendant as
the man who walked out from behind the shrub.
       Officer Sever searched behind the shrub from behind which defendant had walked
and found a fully loaded Ruger .357 caliber magnum revolver lying on a concrete pad.
The officer retrieved the handgun and maintained it and the bullets in a manner that
would allow them to be checked for fingerprints.
       Officer Miller detained defendant and searched his name on his patrol car’s mobile
data terminal. Officer Miller determined that defendant had search and seizure
conditions, which permitted the officer to search defendant without probable cause. The
officer searched defendant and did not find any weapons. When Officer Miller initially
saw defendant near the cars, he had not seen any weapons on defendant.
       Larklyn Watts, a Los Angeles Police Department forensic fingerprint specialist,
did not find any latent fingerprints on the handgun Officer Sever recovered. She did not
test the bullets for fingerprints.
       The parties stipulated that defendant previously had been convicted of a felony.


                                      DISCUSSION
       Defendant contends that the trial court abused its discretion when it permitted
Officer Miller to testify that defendant was wearing a baseball cap with the letter “C” on
it that “sometimes can be indicative of a gang member” in the area where defendant was
arrested because such evidence was not relevant to any issue in the case. Alternatively,
defendant argues, if the evidence was relevant, its probative value was substantially
outweighed by its prejudicial impact and thus should have been excluded under Evidence
Code section 352. The trial court’s error, defendant contends, caused his trial to be
fundamentally unfair. Even if the trial court should have excluded Officer Miller’s gang
testimony about defendant’s baseball cap, any such error was harmless.



                                             3
       A.       Background
       Pretrial, defense counsel moved to exclude evidence that defendant was affiliated
with a gang. The prosecutor stated that he did not want to introduce evidence that
defendant was a member of a particular gang, but did want to introduce evidence that
defendant was wearing gang attire, which attire drew Officer Miller’s attention. He
explained that wearing a cap with the letter “C” on it in “that neighborhood” was “pretty
much 100 percent of the time indicative of Crip membership.” He explained that a
person wearing such a cap in that neighborhood would catch the attention of the police,
and sought introduction of the cap to explain the attention Officers Miller and Sever paid
to defendant.
       The trial court ruled that the prosecution could introduce the cap to explain what
drew Officer Miller’s attention to defendant, but that the prosecution could not introduce
evidence that identified defendant’s gang or that explained what “gangs do.” Defense
counsel argued that defendant did not challenge the reason that Officer Miller’s attention
was drawn to defendant and there was not a gang enhancement allegation in the case.
The trial court responded, “The problem is, I can’t so sanitize it that the court
inadvertently creates some reason for the jury to start to speculate that [defendant] was
just being messed with on that particular instance.”
       As set forth above, Officer Miller testified that the man he saw standing close to
and nearly between some parked cars was wearing all dark clothing, including a baseball
cap “with a white Cincinnati C on it.” He explained that he noticed the cap because
“[t]hat cap . . . can sometimes be indicative of a gang member” in that neighborhood.
During closing argument, the prosecutor said that the police “keyed in on the defendant
because of his apparel in that neighborhood and they watched him.”


       B.       Application of Relevant Principles
       Evidence Code section 210 defines “relevant evidence” as evidence “having any
tendency in reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.” Evidence Code section 352 provides, “The court in its

                                              4
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.”
“[T]he admission of evidence, even if erroneous under state law, results in a due process
violation only if it makes the trial fundamentally unfair. [Citations.] Absent fundamental
unfairness, state law error in admitting evidence is subject to the traditional Watson test:
The reviewing court must ask whether it is reasonably probable the verdict would have
been more favorable to the defendant absent the error. [Citations.]” (People v. Partida
(2005) 37 Cal.4th 428, 439, citing, inter alia, People v. Watson (1956) 46 Cal.2d 818,
836.)
        Defendant contends that the admission of Officer Miller’s testimony rendered his
trial fundamentally unfair essentially under the theory that the erroneous admission of
any gang evidence renders a trial fundamentally unfair. Although gang evidence can
have a highly inflammatory impact on a jury (People v. Albarran (2007) 149 Cal.App.4th
214, 223), the gang evidence in this case was innocuous. Officer Miller testified that
defendant caught his attention because of the clothes he was wearing, including the
baseball cap. The officer explained that in the neighborhood in which defendant was
arrested the cap defendant was wearing “can sometimes be indicative of a gang member.”
Officer Miller did not testify that defendant was a gang member, identify the gang to
which defendant might belong, or describe the criminal activities of any such gang.
Accordingly, any erroneous admission of Officer Miller’s gang testimony did not render
defendant’s trial fundamentally unfair. (People v. Partida, supra, 37 Cal.4th at p. 439.)
        Even if erroneous, the admission of Officer Miller’s gang testimony was harmless
in light of the evidence of defendant’s guilt. At 5:15 a.m., in an area that had experienced
a number of automobile burglaries, Officer Miller spotted defendant standing close to and
nearly between some parked cars. As Officers Miller and Sever approached defendant in
their vehicle, defendant looked in their direction, turned, and ran into the courtyard of a
nearby apartment building. The officers drove the short distance to the apartment
building where Officer Miller heard a sound that he believed was a gun hitting concrete

                                              5
and seemed to come from the courtyard. Immediately after that sound, defendant walked
out from behind a shrub. Officer Sever searched behind the shrub and found a handgun.
Defendant stipulated that he was a convicted felon. In light of that evidence, no
reasonable juror would have acquitted defendant of the charge of possession of a firearm
by a felon even if the trial court had excluded Officer Miller’s gang testimony. Thus, any
error in admitting that testimony was harmless. (People v. Partida, supra, 37 Cal.4th at
p. 439; People v. Watson, supra, 46 Cal.2d at p. 836.)


                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                 MOSK, J.


We concur:



              TURNER, P. J.



              KIRSCHNER, J.




       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                            6
