Filed 6/30/14 P. v. Aparicio CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049820

         v.                                                            (Super. Ct. No. INF057321)

FRANCISCO FLORES APARICIO,                                             OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Riverside County, David
B. Downing, Judge. Affirmed.
                   Steven A. Torres, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and
Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
               A jury found defendant Francisco Flores Aparicio not guilty of first degree
murder, but convicted him of second degree murder. (Pen. Code, §§ 187, subd. (a),
     1
189.) The jury found true allegations that defendant (1) personally and intentionally
discharged a firearm, proximately causing great bodily injury or death to another person
(§ 12022.53, subd. (d)), and (2) personally and intentionally used a firearm in the
commission of his offense (§ 12022.5, subd. (a)). The court sentenced defendant to 40
years to life in state prison, consisting of 15 years to life for second degree murder and a
consecutive 25 years to life for the section 12022.53, subdivision (d), firearm
enhancement.
               Defendant raises two appellate contentions. First, he claims the court erred
                                         2
in denying his Batson/Wheeler motion, which was based on the prosecutor’s use of
peremptory challenges on three potential jurors with Hispanic surnames. Second,
defendant asserts the court erred in excluding evidence establishing his victim was
associated with a criminal street gang. We affirm.


                                             FACTS


               It was uncontested at trial that defendant shot and killed another man with a
shotgun. Indeed, defendant testified that he “lifted the weapon and . . . made the shot,”
hitting the intended party “[i]n the chest” with the first shot, then fired a second shot that
(according to other evidence) hit the victim in the head, instantly killing him. The issue
for the jury was what criminal culpability, if any, defendant bore for his actions, which


1
               All statutory references are to the Penal Code unless otherwise stated.
2
             See Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler
(1978) 22 Cal.3d 258 (Wheeler), disapproved on a ground not material to this appeal in
Johnson v. California (2005) 545 U.S. 162, 168, 173.

                                               2
occurred during a confrontation between defendant and his girlfriend’s husband, from
whom she had separated several months earlier.


Evidence at Trial
              Joanna Morales (whose testimony provided the basis for much of this
recitation of facts) separated from her husband Israel Morales in September 2006 because
he physically attacked and threatened her. Joanna told police in September 2006 that
Israel tried to kill her. Israel, a trained boxer, hit Joanna with both hands, grabbed her by
the neck, pushed her, and kicked her several times.
              Defendant rented a room in an apartment in Indio, California, which was
owned by Joanna’s parents. After separating from Israel, Joanna moved into the same
apartment with her five children. From the beginning, Israel exhibited jealousy as a
result of these living arrangements. In approximately January 2007, defendant began a
romantic relationship with Joanna. When Israel learned defendant and Joanna were
dating, Israel threatened and insulted Joanna, adding that both Joanna and defendant
should watch their respective backs.
              On February 11, 2007, a series of events culminated in Israel’s death. In
the morning, Israel and Joanna argued on the phone and later in person about the care of
their children and their respective romantic lives. While outside the apartment where
Joanna and defendant lived, Israel pulled out a knife and told Joanna he would kill her.
Joanna ran inside, locked the door, and continued to argue with Israel from her window.
Before leaving, Israel kicked defendant’s truck, causing a visible dent. Defendant was
not at home at this time. Joanna’s brother told a police officer immediately after the
shooting that, on the morning of February 11, 2007, he saw Israel point a knife at Joanna
and threaten to kill Joanna and defendant. Joanna’s brother also told the officer that
Israel was jealous and wanted to kill defendant, but defendant did not have any problem
with Israel prior to the shooting.

                                              3
              Defendant returned home sometime in the afternoon. Defendant invited
Joanna to run some errands with him. Defendant noticed the dent on his truck and
inspected it; Joanna initially denied knowing what had happened. Joanna subsequently
informed defendant of Israel’s conduct while the couple drove around. Defendant
appeared to be upset by the revelations; he was silent and refused to hold hands with
Joanna. Nevertheless, defendant continued with his errands, which concluded with a trip
to a restaurant to buy refreshments.
              After returning home, on defendant’s insistence, Joanna called Israel on her
cell phone and handed the phone to defendant. Joanna then stepped out of the truck
while defendant talked to Israel. Five minutes later, defendant (22 years old at the time)
entered his bedroom and changed into the clothes he typically wore (loose sweaters, loose
pants, and black gloves) before going back outside. Joanna called Israel and told him not
to come over; Israel informed Joanna he was coming over to “kick [defendant’s] ass.”
Israel then seemingly relented and told Joanna he would not come over.
              Meanwhile, defendant was sitting in his truck with a shotgun by his legs.
Despite the presence of the gun, defendant told Joanna (who sat in the truck in the
passenger seat with her one-year-old daughter) that he and Israel were “just going to
talk.” Israel arrived in his car. Defendant remained seated in his truck. A shirtless Israel
got out of his car and stood on top of a short cinder block wall. Defendant stepped out of
his truck. Joanna got out too and approached defendant by the driver’s side of the truck,
“begging him not to do anything stupid.” As she did so, Joanna heard Israel shouting
expletives at defendant. Defendant ignored Joanna and pushed her hand away. Joanna
then approached Israel, still with her daughter in her hands. She was asking both men to
calm down. Joanna turned her back to Israel and faced defendant.
              Israel shouted at defendant “to put down the gun and fight like a man,”
adding other insults. Israel said, “What, fool. Put the gun down. Don’t you have any
balls?” Defendant pointed the shotgun in the direction of Israel and Joanna. Joanna

                                             4
continued to ask the men to calm down. Israel pushed Joanna, causing her to fall to the
ground. Defendant then fired the shotgun at Israel. Israel fell to the ground. By his own
admission, defendant pumped the shotgun to load another round into the firing chamber;
the shotgun could not reload automatically. Stepping toward Israel, defendant shot again
within seconds. Defendant entered his truck and drove away. Police apprehended
defendant in Salinas, California on March 1, 2007.
              A forensic pathologist testified that Israel suffered two major shotgun
wounds, one to the right side of his chest and one to the head. The shot to the chest
occurred from four to five feet away and would have caused death in two to three
minutes. The shot to the head was from less than two feet away, and was instantaneously
fatal.
              The only weapon found by police on Israel’s body was a folded pocket
knife with a four-inch blade, which was inside Israel’s pocket. Israel always carried this
or a similar knife. No firearms or other weapons were found in Israel’s car by police.
              Israel had a blood-alcohol content of .12 percent, as well as
methamphetamine and amphetamine in his system, when he was killed. A toxicologist
testified that Israel was under the influence of alcohol and methamphetamine at the time
of the shooting, which combination would have made Israel more aggressive and less
inhibited.


Defendant’s Testimony
              The first time defendant met Joanna was in 2005, when she was crying, at
her mother’s house after Israel had hit her. Defendant noticed in early 2007 that Israel
would either ignore him or stare at him on the occasions they were near each other.
              In addition to telling defendant about the events of the morning of February
11, 2007 (including the fact that Israel had poked her with a knife and threatened to kill
both of them with a gun), Joanna had told defendant the following about Israel at various

                                             5
times before the deadly confrontation occurred: (1) Joanna had separated from Israel
because he beat her (“he hit her a lot”); (2) Israel was upset about the romantic
relationship between defendant and Joanna; (3) Israel had threatened to kill defendant;
(4) Israel had stabbed two people in the past; (5) Israel had been in “a fight with some
guys, and that she had heard shots”; and (6) Israel drank excessively and used
methamphetamine.
              Defendant was scared by the situation and took the threats seriously.
Defendant instructed Joanna to call Israel with the intention of calming things down.
Defendant overheard Israel say to Joanna that defendant was a “fucking sissy” and that
Israel was coming over to kill both Joanna and defendant. Defendant talked to Israel on
the phone and tried to calm him down; Israel reacted with more threats and insults.
Defendant responded that he would be waiting for Israel so they could talk things out.
                                                     3
Defendant repeatedly told Joanna to call the police. Defendant waited outside because
Israel said he would shoot inside the house if defendant was not outside. Defendant had
                                                                                 4
Joanna retrieve his shotgun because Joanna told him Israel would have a gun.
Defendant loaded the shotgun with two rounds.
              When Israel arrived, he skidded on the gravel in a cloud of dust, then took
his shirt off as he stepped outside the car. Defendant thought he saw Israel grab
something from his car and place it behind his back. Joanna approached Israel and
defendant saw Israel push her away; when Joanna screamed, defendant thought she had
been stabbed or shot. At that point, defendant was still sitting inside his truck.


3
              Joanna testified she did not remember if defendant told her to call the
police.
4
               Joanna testified she had never seen the shotgun before. Joanna also denied
ever telling defendant that Israel carried a gun. Joanna’s brother testified that defendant
used to carry a gun with him in his car.


                                              6
Defendant then got out of the truck with his shotgun. Defendant tried to calm Israel
down and asked him to leave. Israel approached defendant and told him, “It’s over for
you, you dog” while he reached behind his back. Defendant was afraid of being shot; he
lifted his gun and shot Israel in the chest. Israel said from the ground, “I’m going to kill
you” and placed his hand behind his back. Defendant fired again, but did not know
                                5
exactly where he was pointing. Defendant drove away in fear; he did not know Israel
was dead until his apprehension.
              On cross-examination, defendant admitted he had told an investigating
officer that he would not have shot Israel had he not been angry.


                                       DISCUSSION


Prosecutor’s Use of Peremptory Challenges
              Defendant first contends the court erred by denying his Batson/Wheeler
motion. Defendant asserts the prosecutor improperly utilized his peremptory challenges
to remove prospective Hispanic jurors. “The prosecution’s use of peremptory challenges
to remove prospective jurors based on group bias, such as race or ethnicity, violates a
defendant’s right to trial by a jury drawn from a representative cross-section of the
community under article I, section 16 of the California Constitution and his right to equal
protection under the Fourteenth Amendment to the United States Constitution.” (People
v. Blacksher (2011) 52 Cal.4th 769, 801.) “Group bias is a presumption that jurors are

5
                Defendant testified, “Well, he said, I’m going kill you, and he put his hand
behind his back. I felt shivers. I felt cold, and I felt that as if he had already shot me all
over. And when he put his hand behind his back saying, I’m going to kill you, I just — I
just saw that his hand was in the back. And I just heard the shot.” “It was ugly. I felt
something horrible. I felt like he had fired at me.” “Before the shot rang out. I felt this
cold, I felt like needles were hitting me in my back. And I just heard the shot.” He was
not aiming at Israel’s head. “I didn’t see where the weapon was. With the fear that I felt,
I didn’t see where the weapon was.”

                                              7
biased merely because they are members of an identifiable group distinguished on racial,
religious, ethnic, or similar grounds.” (People v. Fuentes (1991) 54 Cal.3d 707, 713
(Fuentes).)
              A jury pool of 89 prospective jurors presented themselves for service on
August 17, 2011. A large number of those jurors, including more than 20 with Hispanic
surnames, had been dismissed for cause or based on a financial/educational/medical
hardship (most of these by stipulation of the parties) by the time defendant challenged the
prosecutor’s use of peremptory challenges on August 18. Defendant moved under
Batson/Wheeler after the prosecutor’s fourth peremptory challenge, based on three of the
four challenged jurors possessing Hispanic surnames. The prosecutor’s first selection was
named Baum (an individual who appeared to be of Caucasian extraction) but the
subsequent three selections were named Cervantes, Nunez, and Ochoa. The ethnic
composition of the jury as ultimately empanelled cannot be divined from the record, as
the names of the jurors have been redacted. Of course, it was unclear at the time of the
motion what the actual composition of the jury would be, and defendant did not (at the
time of the motion or thereafter) make a record of the jurors’ ethnic identities or
otherwise base his motion on this factor.
              Once a Batson/Wheeler motion is made, trial courts follow a three-step
procedure: (1) the moving party must make a prima facie showing of improper use of
peremptory challenges; (2) the burden shifts to the opposing party to provide a bias-free
explanation for the use of peremptory challenges; and (3) the trial court assesses the
credibility of the bias-free explanation and determines whether there was wrongful
discrimination. (People v. Lenix (2008) 44 Cal.4th 602, 612-613 (Lenix); see also
Fuentes, supra, 54 Cal.3d at p. 714.) The defendant’s ultimate burden is to demonstrate
“it was more likely than not that the challenge was improperly motivated.” (Johnson v.
California, supra, 545 U.S. at p. 170.)



                                              8
              The court found a prima facie case had been shown because three of the
four peremptory challenges were used on individuals with Hispanic surnames. It is
uncontested on appeal that defendant made a prima facie showing jurors were being
removed on the basis of group bias. (See People v. Trevino (1985) 39 Cal.3d 667, 684-
686 [Hispanics are cognizable group subject to Batson/Wheeler motion], disapproved on
other grounds in People v. Johnson (1989) 47 Cal.3d 1194, 1221.)
              The prosecutor responded to the challenge by addressing each of the three
selections. “I first start with Mr. Ochoa. Mr. Ochoa was dismissed at the People’s
request because of his age group, which is not a cognizable protected class. He’s young.
He is — lack of life experience. He, although he does have a child at a rather young age,
single, age was a — the People’s primary concern with Mr. Ochoa. And I would ask that
— that the court state for the record that Mr. Ochoa appeared to be rather young, I
believe. Only thing he mentioned, recently obtained his US citizenship, but he appeared
to be somewhere between 18 to 22, not much older than that.” The court interjected that
Ochoa had graduated from college the previous December and he appeared to be
approximately 21 or 22 years old.
              Also with regard to Ochoa, the prosecutor did not like his reaction to
questioning pertaining to direct and circumstantial evidence. Ochoa “was getting a little
smart the way he was kind of smiling about it, but I went through one of my
hypotheticals from yesterday and he started adding all kinds of facts to it and saying, you
know, I don’t want to jump to make a judgment. Those types of things. I . . . had to
follow up by making a very simple hypothetical . . . and I think I went to another juror to
try to explain that because again he was going somewhere else with it. And that rather
basic concept seemed to cause him some concern and [he] became distracted . . . .”
              As to Nunez, the prosecutor expressed similar concerns regarding the
question of circumstantial evidence. The prosecutor had earlier moved to dismiss Nunez
(who the court described as “one of the smartest jurors you got on the whole panel”) for

                                             9
cause, stating she “was ranting about passing judgment on people and following the
court’s instructions, direct and circumstantial evidence. She went on about seeing people
at the store and not passing judgment on them because they’re wearing baggy pants.”
She was “completely offtrack” on the question of following “the court’s instructions on
direct and circumstantial evidence.” The court denied the earlier motion to dismiss
Nunez for cause; the prosecutor noted at the time that he would “just use a peremptory.”
              At the Batson/Wheeler hearing, the prosecutor expounded upon his
concerns with regard to Nunez. “When I started questioning her, she went on basically a
rant when I did the direct versus circumstantial evidence and started talking about how
she did not make judgments about people at the stores, how they were dressed, she . . .
made several cryptic comments about that it’s difficult to be on the jury because you’re
given instructions and you may have beliefs about . . . whether one is innocent or guilty
but you have to follow instructions, and that that made it difficult because she didn’t
really like that. They were cryptic comments. I didn’t really understand where she was
going with that but [it] caused me to be uncomfortable with her. And because of that and
her more hostile response to me regarding the direct and circumstantial evidence
hypotheticals, I used a peremptory on Mrs. Nunez.”
              With regard to Cervantes, “when the court did its voir dire and [defense
counsel did his], [Cervantes] didn’t cause me much concern. What my observation was
of him . . . , he appeared to be a little slower than some of the other jurors in going
through the questions. He just seems slower. Like it was, I don’t know, he needed more
time to process the material[.] [A]t one point, in the record will reflect this, when the
court called on Mr. Cervantes, he didn’t respond. He — I don’t know if he was sleeping
or if he was just kind of zoning out, but because of that I . . . didn’t feel comfortable with
his level of attentiveness in the courtroom.” The court agreed that “Cervantes appeared
to take a . . . long time reading the questionnaire. What that means, I don’t know.” The



                                              10
prosecutor concluded, “I was borderline on Mr. Cervantes, but because it’s a short trial I
needed him . . . to be here 100 percent during the course of that.”
              The court then offered defense counsel the opportunity to rebut the
prosecutor’s stated reasons. Addressing only Ochoa, defense counsel claimed an
individual who ultimately served as a member of the jury was also young (“probably 24,
26 years old”). The court noted this individual was also a registered nurse in a cardiac
care unit whereas Ochoa was a tutor who had just graduated from college. Defense
counsel argued Ochoa’s youth “would have been a plus more than a detriment” based on
the difference of his life experiences as compared to the older members of the jury. With
regard to circumstantial evidence, defense counsel claimed Ochoa was merely explaining
he would “be analytical” about its use, not that he would reject it. The court suggested it
is a truism among prosecutors to prefer (in general) older rather than younger jury
members based on the perception that individuals grow more conservative as they age
with regard to criminal law issues.
              Thus, the prosecutor offered facially race-neutral explanations for using
peremptory challenges to remove the prospective jurors at issue. But defendant claims
these reasons were pretextual and the prosecutor actually rejected the three jurors at issue
because of bias, an accusation rejected by the court based on its examination of the
“totality of the circumstances.”
              Our review of the record indicates “[t]he trial court denied the motions only
after observing the relevant voir dire and listening to the prosecutor’s reasons supporting
each strike and to any defense argument supporting the motions. Nothing in the record
suggests that the trial court either was unaware of its duty to evaluate the credibility of
the prosecutor’s reasons or that it failed to fulfill that duty.” (People v. Lewis (2008) 43
Cal.4th 415, 471, disapproved on other grounds in People v. Black (2014) 58 Cal.4th 912,
919-920.) Thus, the only question on appeal is whether substantial evidence supports the
court’s ruling that the prosecutor’s use of peremptory challenges was not based on group

                                              11
bias. (Lewis, at p. 471; Lenix, supra, 44 Cal.4th at p. 613; see also People v. Williams
(1997) 16 Cal.4th 635, 666 [“We accord great deference to a trial court’s determination
of the sufficiency of a prosecutor’s explanations for exercising peremptory challenges”].)
              The prosecutor’s “‘[c]redibility can be measured by, among other factors,
the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are;
and by whether the proffered rationale has some basis in accepted trial strategy.’
[Citation.] In assessing credibility, the court draws upon its contemporaneous
observations of the voir dire. It may also rely on the court’s own experiences as a lawyer
and bench officer in the community, and even the common practices of the advocate and
the office that employs him or her.” (Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.) “In
addition, race-neutral reasons for peremptory challenges often invoke a juror’s demeanor
(e.g., nervousness, inattention), making the trial court’s firsthand observations of even
greater importance.” (Snyder v. Louisiana (2008) 552 U.S. 472, 477.) One way to weigh
the sincerity of proffered reasons for excusing prospective jurors is to compare the
empanelled jurors to excluded jurors. (Lenix, supra, 44 Cal.4th at pp. 621-624; id. at p.
622 [noting the “inherent limitations” of “comparative juror analysis on a cold appellate
record”].)
              The prosecutor’s stated reasons certainly have a basis in the record. Ochoa
recently graduated from college and there is no argument from defense counsel that
Ochoa was older than 22 years old. Ochoa’s youthful lack of gravitas was also supported
                                                                         6             7
by his late arrival to court on the morning of his voir dire. Both Ochoa and Nunez were

6
               When asked whether he could use circumstantial evidence to determine
someone’s state of mind (in the context of a hypothetical burglar entering a business to
steal an item on the shelf), Ochoa stated: “Kind of tricky, but I would probably think no.
Because I could have an intention to do something, but if I don’t do it, then . . . that
means that my intentions were, you know, lost during the process of . . . me going there.
I could have an intention to go home right now, but then I get hungry and deviate and go
to the casino and buy a burger and then start gambling.” “If I walk in that store with a
razor blade and my intentions at the beginning were to rob a CD, or whatever you said it

                                             12
argumentative and opinionated on the subject of the use of circumstantial evidence and
other facets of jury service. It appears Cervantes was not listening to the voir dire when
the court announced it was his turn to respond to the questionnaire. It is less apparent
from the record that Cervantes took a long time to review the questionnaire, but defense
counsel did not contest this fact in responding to the prosecutor’s explanation of his
reasons for striking Cervantes.
              Similar justifications to those offered by the prosecutor have been credited
as valid and reasonable in other cases. (See People v. Zambrano (2007) 41 Cal.4th 1082,
1106-1107 [reluctance to rely on circumstantial evidence], overruled on other grounds as
stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Ward (2005) 36
Cal.4th 186, 202 [perceived hostility to prosecutor]; People v. Reynoso (2003) 31
Cal.4th 903, 924 [lack of educational experience]; People v. Jenkins (2000) 22
Cal.4th 900, 994-995 [lack of attentiveness to jury service based on loyalty to job];


was, and then . . . I met . . . a nice, young, little girl and we start a conversation and walk
out . . . , and my intention might never have been to meet that girl, but they changed. I
mean, intentions can change due to . . . time, you know.”
7
               Similar to Ochoa, Nunez stated with regard to the use of circumstantial
evidence: “No. Because, you know, sometimes, you know, you can’t have judgment. I
walk in a store with a big purse because sometimes the fashion is, you know, people have
big purses, and I — . . . people following me around thinking that I’m going to steal
something, and I don’t like that. That’s passing judgment just because you walk in a
store. Or the person is dressed a certain way or the person carries something, you
automatically assume that that person is going to steal something from the store. So I . . .
think that’s wrong.” As for her “cryptic” comments, Nunez denied she was “spacing out”
when asked a question, then stated, “I was thinking of other things about the last trial that
[she] was on. . . . [T]here’s a lot of guidelines you have to follow, kind of hard to —
even if you think the person or — is innocent or — or there’s a lot of guidelines that you
have to follow and on evidence. So it’s kind of hard. It’s a little frustrating because
there’s, you know, you know, there’s a lot of evidence that shows that the person may be
guilty but basing, you know, based on guidelines you have to follow, you can’t, you
know, come up with that kind of a — a judgment, you know. So it’s kind of frustrating
but just got to follow the rules, like I said.”

                                              13
People v. McGhee (1987) 193 Cal.App.3d 1333, 1351-1352 [youth is not cognizable
class].)
              Defendant’s perfunctory attempt at comparative analysis with regard to
                     8
Ochoa is unavailing. Like at trial, defendant points out that one juror was also relatively
young. For the first time in his appellate briefs, defendant compares two other jurors’
jobs (marketing for a gold resort and customer service) with that held by Ochoa (tutor).
Defendant does not identify any jurors who were as young or younger than Ochoa, with a
similarly limited breadth of life experience. Nor does defendant identify any jurors who
expressed similar views on the topic of circumstantial evidence. Defendant did not
establish a record with regard to the ethnicities of any of the empanelled jurors, including
those he seeks to perform a comparative analysis upon. Our own review of the record
and comparison of defendant with the jurors ultimately empanelled reveals no indication
of bias on the part of the prosecutor.
              In sum, there is substantial evidence for the court’s conclusion that
defendant did not prove racial discrimination by the prosecutor in his use of peremptory
challenges.


Admissibility of Evidence Concerning Victim’s Involvement with Gang
              Before trial, the prosecution moved to exclude evidence that Israel (the
victim) was a member of a criminal street gang. The prosecutor claimed this was not
proper evidence of the violent character of the victim pursuant to Evidence Code section
1103, subdivision (a)(1). The prosecutor did not otherwise contest defendant’s right to
establish Israel’s violent character or threats of violence known to defendant.
              Defense counsel advocated for the admission of gang evidence. To wit,
counsel wanted to elicit testimony about how Israel began to turn violent with Joanna
8
             Defendant does not attempt to compare Nunez or Cervantes with any of the
empanelled jurors.

                                             14
after he started hanging out with the “Oasis Crew,” an alleged gang. Also, when
defendant was talking to Israel on the phone immediately before the confrontation, Israel
allegedly told defendant (as summarized by defense counsel), “look, I hang out with the
crew of — with Oasis and you don’t know who you’re effing with.” Defense counsel
acknowledged there was no evidence Israel was an actual gang member, but represented
there was evidence Israel “was affiliating himself with a gang or hanging out with a
gang.” Defense counsel explained Israel was trying to “bluff himself or to puff himself
up and . . . make himself look like a tough guy member of the gang, . . . especially
toward [defendant], and that is relevant to [defendant’s] state of mind as to who he’s
confronting, who is going to come over and . . . kick his behind or shoot him or kill him,
as the person threatened.” Defense counsel offered to call a gang expert witness to
explain that hanging out with a gang means one is “an affiliate or an associate with a
gang.” But defense counsel did not “even want to go that far. I just want the jury to see,
to view [Israel] in the light he put himself in. He wanted to be seen as a gangster,
hanging out with the gangs and threatening the wife and [defendant], that he was . . . a
gang member and he was going to come over and kill [defendant].” In response to a
direct question from the court about what Israel said to defendant, defense counsel
offered, “You don’t know who . . . you’re fucking with . . . and that, I hang out —
I’m . . . with the Oasis gang, and I’m going to come over and kill you. [A]nd that’s when
the . . . telephone conversation ended, and he came over and . . . the shooting happened.”
              The court, applying Evidence Code section 352, granted the prosecution’s
motion to exclude evidence of gang affiliation. First, there was no evidence Israel was a
gang member. Second, the “alleged comments about a gang are perhaps arguably
relevant to show” “the defendant is in fear of him. But under [Evidence Code section]
352, I’m not going to let gang stuff in because when a jury hears gang, it offends them.
Most jurors are outraged, as is any normal human being, by the gang activity here and in
other places, and the jurors think that, particularly since the last elected [district attorney]

                                               15
made such a big deal about it and made comments in the press that Indio was gang-
infested, or words to that effect, jurors think — they do think that there are gang members
running everywhere. I mean, they do believe that. And when they hear the word gang,
their minds are immediately switched. They put gang and guilty in the same sentence. If
a jury hears ‘gang,’ they will convict anybody of any crime. I’m serious. They really,
really are upset over the gang thing.”
               “[T]here are two problems: One, it’s really prejudicial; and secondly, the
victim wasn’t a gang member. That’s the big thing. He wasn’t a gang member,
apparently. So any comments he may have made on that subject, he was just puffing, so
to speak, making himself look better, looking like he was a tough guy. I think it would
be so prejudicial that it way outweighs any probative value at all.”
               After the court made its ruling, the prosecutor disclosed he had previously
represented to defense counsel that pictures depicting defendant posing with other young
males, “throwing hand signs” and displaying a shotgun (and “things of that nature”)
would not be used at trial. The prosecutor prefaced this explanation with a comment that
“the issue of gangs, that would go both ways.” Presumably, the prosecutor meant he
would reverse course and seek to admit these photographs should the court have ruled
differently regarding Israel’s claims of gang affiliation. The prosecutor did not state there
was any evidence establishing that Israel was aware of these photographs, or otherwise
aware that defendant said or did anything to imply an association with a gang or gang
           9
members.
               The court agreed that “gang evidence is a two-way sword.” The court once
again reiterated its ruling: “I just don’t see enough connection between gangs for it to be


9
              As explained below, defendant made statements to a police officer after his
arrest suggesting his brother was a gang member and that he hung around with gang
members in his hometown of Salinas. Based on admissibility concerns, the prosecutor
did not seek to introduce any of defendant’s statements to police in his case-in-chief.

                                             16
admissible evidence . . . to try to paint the victim as a gang banger. It doesn’t appear to
me that he was at this point. He might have been other things. I’ve told you the wife
beating comes in. The threats against her and [defendant] come in. But not his gang
affiliation. So you got two out of three.”
              As made clear by the foregoing comments of the trial court and lawyers,
there were two distinct possible uses of the gang evidence. One was to prove the victim’s
character. “[C]haracter evidence is generally inadmissible to prove a person acted in
conformity with it on a given occasion.” (People v. Myers (2007) 148 Cal.App.4th 546,
552 (Myers).) But Evidence Code section 1103, subdivision (a), authorizes the admission
of evidence of a victim’s character in appropriate cases; Evidence Code section 1103,
subdivision (b), authorizes evidence of a defendant’s character for violence if offered in
response to evidence that the victim had a character for violence. (Myers, at pp. 552-
553.)
              As character evidence, we agree the court did not abuse its discretion by
deeming the gang evidence inadmissible. (See People v. Gutierrez (2009) 45
Cal.4th 789, 827-828 [abuse of discretion standard applies to evidentiary rulings
regarding victim’s character for violence].) As the court emphasized, there was no offer
of proof that defendant really was in a gang. Moreover, although gang members
collectively engage in violent activities, affiliation with a gang by one individual is not
synonymous with acts of violence on the part of that individual. (See Hodge v. State
(Miss. 2002) 823 So.2d 1162, 1165 [victim’s tattoo of word “Gang$ta” was inadmissible
as character trait in and of itself; no evidence of act of violence by victim].) The court
rightly allowed evidence of specific instances of conduct to prove the victim’s violent
character. But defense counsel did not offer to prove the causal link between defendant’s
affiliation with the gang and these instances of violence (other than noting the temporal
overlap between these issues in Israel’s life). Any minimal value of the gang evidence
for purposes of proving Israel’s violent character was substantially outweighed by its

                                             17
prejudice, in that the jury could be led to excuse a crime by defendant based solely on the
victim’s alleged gang status. This result is also buttressed by the possibility that a
contrary ruling may have opened the door to evidence suggesting defendant himself
affiliated with gang members, resulting in a major diversion from a case triggered by a
love triangle rather than gang violence.
               The other ground for admission of Israel’s claims to gang affiliation was as
evidence of defendant’s state of mind. (Evid. Code, § 1101, subd. (b) [prohibition on
character evidence does not bar “the admission of evidence . . . relevant to prove some
fact” other than an individual’s propensity to act in a certain fashion].) “Gang evidence is
admissible if it is logically relevant to some material issue in the case other than character
evidence, is not more prejudicial than probative, and is not cumulative.” (People v.
Avitia (2005) 127 Cal.App.4th 185, 192 [stating law in context of evidence of defendant’s
gang ties].) Evidence pertaining to a defendant’s possible gang ties should be treated
with caution, as it “may have a highly inflammatory impact on the jury.” (Ibid.) Given a
defendant’s constitutional right to a fair trial, it is less clear whether this particular
caution should apply to gang evidence pertaining to the alleged victim of a crime.
Regardless, we review the court’s refusal to allow noncharacter gang evidence pertaining
                                                         10
to Israel for an abuse of discretion. (Id. at p. 193.)




10
               “A defendant has the general right to offer a defense through the testimony
of his or her witnesses [citation], but a state court’s application of ordinary rules of
evidence — including the rule stated in Evidence Code section 352 — generally does not
infringe upon this right [citations].” (People v. Cornwell (2005) 37 Cal.4th 50, 82,
disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
Thus, on appeal, we review the exclusion of evidence under Evidence Code section 352
for abuse of discretion. (Cornwell, at p. 81; People v. Holloway (2004) 33 Cal.4th 96,
134.)


                                               18
                 We agree with the court that the gang evidence was relevant to defendant’s
                 11
state of mind.        (See Evid. Code, §§210, 350.) Although there were certainly key factual
disputes about the precise actions of defendant, Israel, and Joanna, as well as the timeline
of the fatal events, defendant’s subjective state of mind and the objective reasonableness
                                                                             12
of his state of mind were arguably the most important issues for the jury.        Statements by
Israel (or others) to defendant that Israel was a gang member or affiliated with a gang
would tend to frighten (or enhance the fear already being felt by) defendant. For
instance, our Supreme Court held that a defendant’s statement that he was a “homeboy”
was relevant to a kidnapping and robbery prosecution because the victim testified she
understood this to be a reference to gang affiliation and the statement thereby aided in




11
              The parties’ briefs blend the question of character evidence and defendant’s
state of mind, but they are clearly separate paths to admission of the gang evidence.
Character evidence is relevant to an individual’s propensity to perform conduct in
conformity with the relevant character trait — here, committing violent acts. State of
mind evidence is contingent on proving the circumstances (true or not) known to the
relevant actor, rather than the actual character traits of someone else. (See People v.
Minifie (1996) 13 Cal.4th 1055, 1060 [“A defendant charged with assaultive crimes who
claims self-defense may present evidence that the alleged victim had previously
threatened him”]; Myers, supra, 148 Cal.App.4th at pp. 552-553 [defendant’s testimony
about police “officer’s aggressive conduct at the time of the incident did not constitute
character evidence for the purposes of Evidence Code section 1103,” but rather the
circumstances of the alleged crime].)
12
               The jury was asked to determine whether defendant was guilty of first
degree murder, second degree murder, or manslaughter, or whether he was not guilty of
any crime by reason of justification — i.e., defense of self or others. For a killing or
other use of force “to be in self-defense, the defendant must actually and reasonably
believe in the need to defend.” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) To
establish imperfect self-defense and thereby receive a conviction of manslaughter,
defendant must have had an “‘honest but unreasonable belief that it is necessary to
defend oneself from imminent peril to life or great bodily injury . . . .’” (In re Christian
S. (1994) 7 Cal.4th 768, 773.)


                                                19
establishing the element of fear necessary to a robbery conviction. (People v. Mendoza
                                    13
(2000) 24 Cal.4th 130, 163, 178.)
              We disagree with the court that the “probative value” of this evidence was
“substantially outweighed by the probability that its admission will . . . (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
(Evid. Code, § 352.) In reaching its conclusion, the court implicitly discounted the
potential probative value of the evidence in an arbitrary fashion. The court focused on
the potential prejudice of linking Israel to a gang, suggesting the jury (which was situated
comfortably in a court of law and not subjected to explicit threats from Israel) could not
treat the evidence fairly because the mere mention of the word gang would undermine
their ability to deliberate reasonably and according to their instructions. But the same
logic should have led the court to consider the even greater power Israel’s alleged claim
to gang status could have had on defendant’s state of mind, regardless of whether such
reaction was reasonable (relevant to self-defense) or unreasonable (relevant to imperfect
self-defense). The court’s ruling thereby contradicts itself. If the mention of a gang is
menacing to the point of distraction to jurors, imagine the effect on an individual actually
faced with a threat of physical violence linked up with gang affiliation.




13
                Juries are entitled to find that murder (but not first degree premeditated
murder) is a natural and probable consequence of an assault or battery involving gang
members. (See People v. Chiu (2014) 59 Cal.4th 155; People v. Medina (2009) 46
Cal.4th 913, 922-924 [killing of fleeing victim by one gang member’s gunshot was
reasonably foreseeable consequence of all three gang members repeatedly challenging
victim with gang inquiries and engaging in a fistfight]; People v. Ayala (2010) 181
Cal.App.4th 1440, 1448-1453 [does not matter that assault did not go according to plan];
People v. Gonzales (2001) 87 Cal.App.4th 1, 10-11 [fatal shooting during gang-related
fistfight was natural and probable consequence of fistfight].) Hence, it is only logical to
suppose that an individual threatened with violence would be more afraid if a gang
affiliation is referenced alongside that threat of violence.


                                             20
              The court’s emphasis on the lack of evidence of Israel’s gang membership
was beside the point for purposes of defendant’s state of mind. The trial was unlikely to
devolve into a battle on this issue, for the simple reason that defense counsel did not wish
to prove Israel was a gang member.
              Moreover, this is not a case in which the gang evidence would have been a
misdirection play to confuse jurors about the conduct of a blameless victim. The jury
was already informed of a variety of reasons to think the worst of Israel (his past
violence, his threats, and his alcohol and drug abuse). The jury was already aware that
Israel drove to defendant’s residence to either (depending on their view of the evidence)
frighten, attack, or kill defendant and/or Joanna. The jury was allowed to hear that Israel
was under the influence of alcohol and methamphetamine, and possessed a knife on his
person, at the time he was shot. The jury was allowed to hear that Israel pushed his wife
and one-year-old daughter to the ground immediately before being shot. Any additional
ill feeling generated toward Israel by the gang evidence cannot be said to “substantially
outweigh” the probative value of this evidence. (Evid. Code, § 352.)
              In sum, defendant should have been allowed to include, in his testimony
about Israel’s threats and his own reaction to those threats, mention of the gang to which
Israel claimed affiliation. And to the extent any other witness (such as Joanna) could
establish defendant was made aware of Israel’s claims to gang affiliation prior to the
shooting, such witness also should have been allowed to testify accordingly.
              The only remaining issue is whether the court’s error in excluding this
evidence was harmless. We disagree with defendant that the evidentiary error amounted
to an infringement of defendant’s constitutional right to mount a defense. (See Chapman
v. California (1967) 386 U.S. 18, 24 [harmless beyond a reasonable doubt standard
applies in such cases]; People v. Boyette (2002) 29 Cal.4th 381, 427 [rejecting “attempt
to inflate garden-variety evidentiary questions into constitutional ones”].) Instead, we
may reverse the judgment only if “‘after an examination of the entire cause, including the

                                             21
evidence,’ [we are] of the ‘opinion’ that it is reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of error.”
(People v. Watson (1956) 46 Cal.2d 818, 836.)
              For a number of reasons, we conclude the court’s error was harmless. First,
as previously noted in concluding the gang evidence would not be particularly prejudicial
to the prosecution, Israel was already proven to be a violent, abusive, unsympathetic
individual who had stabbed two people in the past, beaten Joanna, and threatened to kill
defendant. Israel was killed while having ingested an aggression-inducing mix of alcohol
and methamphetamine. Israel had his trusty folding knife (with a four-inch blade) on his
person. Israel specifically sought out defendant at defendant’s residence and issued
threats and taunts. Israel’s having hung out with gangs and invoked the gang as part of
his threats to defendant, while relevant and potentially important, was (under the specific
circumstances of this case) a marginal addition to the evidence concerning Israel rather
than a central part of the whole picture. (Cf. People v. Gutierrez, supra, 45 Cal.4th at p.
828 [even assuming error, it was harmless to have excluded prior violent conduct of
victim because defendant was allowed to testify regarding past fights with victim and
details of altercation leading to victim’s death].)
              Second, the actual behavior of defendant belied the claim of self-defense or
imperfect self-defense. Defendant shot Israel in the chest, pumped his shotgun, moved
closer to Israel, and shot him in the head, instantly killing Israel. The jury found
defendant not guilty of first degree murder, rejecting the notion that he planned ahead of
the confrontation to kill Israel. But the jury also rejected self-defense, imperfect or
otherwise. The second shot was an insurmountable barrier to defendant succeeding on
the grounds of self-defense, whether perfect or imperfect. Israel was on the ground with
a shotgun wound to his chest (which expert testimony suggested would have been fatal




                                              22
                   14
within minutes).        The key question for the jury was whether they believed defendant
when he testified that Israel was still a threat at that point. Whatever importance Israel’s
professed gang affiliations may have had at the outset of the confrontation (e.g., the need
for defendant to carry a loaded shotgun to the encounter, the need for defendant to fire
the first shot), there is no reasonable probability that the gang evidence could have
affected the jury’s view on the question of the second shot.
              Third and finally, defendant could have been partially contradicted with his
own prior statements had he testified that Israel’s mention of a gang was particularly
terrifying. The prosecutor introduced portions of a postarrest interview of defendant as
impeachment evidence. This same interview included a portion pertaining to Israel’s
professed gang affiliation, which was not played for the jury. In this interview, defendant
agreed with the police officer’s description of Israel as a “Mexican cowboy.” (Italics
omitted.) Defendant added, “I mean the stupid guy was undecided on what he was
exactly because he told me he was a gangster. He was calling me a gangster and I don’t
know what else. I don’t . . . . I don’t understand. Why would he call me gangster? He
was more of a gangster. [Then] sometimes he would come in boots and hat and all the
shit.” (Italics omitted.) Defendant seemingly dismissed the idea that Israel’s gang
affiliates would act on his threats by characterizing his group as “[t]hose little kids that
don’t do anything.” (Italics omitted.) Defendant described his own background in
Salinas, where he hung out with “Vagos” gang members, including his own brother.
Defendant suggested the gang situation was much more frightening in Salinas than Indio.
In sum, had he been allowed to testify regarding the enhanced fear he felt as a result of




14
               As the prosecutor stated in closing argument, “That one shot to the chest,
very likely voluntary manslaughter. [The second shot] to someone’s face, when you are
readily upset, when you are angry, that’s murder. That’s why we’re here. That second
shot. He might have had 30 seconds to live . . . but it wasn’t for the defendant to take.”

                                               23
Israel’s professed gang affiliation, defendant’s prior out-of-court statements likely would
have been used to weaken such testimony.


                                      DISPOSITION


              The judgment is affirmed.




                                                 IKOLA, J.

WE CONCUR:



ARONSON, ACTING P. J.



FYBEL, J.




                                            24
