Filed 6/4/14 P. v. Martin CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

THE PEOPLE,                                                          B244914

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA089631)
         v.

JUAN CARLOS MARTIN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Tomson
T. Ong, Judge. Affirmed as modified.


         Donna L. Harris, 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, Assistant Attorney General, Steven D. Matthews and Herbert
S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Juan Carlos Martin (defendant) appeals his murder
conviction, asserting that the trial court gave an incomplete and misleading instruction on
voluntary intoxication and erroneously admitted recorded police interviews without
redaction. Defendant also contends, and respondent agrees, that the minutes reflect an
unauthorized $100 penalty assessment that should be stricken. We order the trial court to
strike the unauthorized penalty, but finding no merit to defendant’s other arguments, we
affirm the judgment.
                                     BACKGROUND
Procedural history
       The second amended information charged defendant with the murder of Michael
John Schmid (Schmid) in violation of Penal Code section 187, subdivision (a).1 The
information further alleged that in the commission of the crime, defendant personally
used a deadly weapon (knife) within the meaning of section 12022, subdivision (b)(1). It
was also alleged pursuant to the “Three Strikes” law (§§ 1170.12, subd. (a)-(d), 667,
subd. (b)-(i)), and for purposes of section 667, subdivision (a)(1), that defendant suffered
a robbery conviction in violation of section 211 in 1993. In addition five prior
convictions with prison terms were alleged, pursuant to section 667.5, subdivision (b).
       A jury convicted defendant of the murder, found it to be in the first degree, and
found true the allegation that defendant had used a deadly weapon in the commission of
the crime. Defendant admitted the prior robbery conviction and three prior prison terms.
On October 25, 2012, the trial court sentenced defendant to a total of 59 years to life in
prison, comprised of 25 years for the murder, doubled as a second strike, plus a
consecutive one-year term for the use of a knife, five years for the prior serious felony
conviction, and three consecutive one-year enhancements for the prior prison terms. The
trial court awarded defendant 473 days of presentence custody credit, ordered him to
provide a DNA sample and print impressions, imposed mandatory fines and fees, and
ordered him to pay victim restitution.


1      All further statutory references are to the Penal Code, unless otherwise indicated.

                                             2
       Defendant filed a timely notice of appeal from the judgment.
Prosecution evidence
       Defendant and his girlfriend Jennifer Pina (Pina) were homeless in July 2011.
Pina’s close family friend Gary Ungaro (Ungaro) who managed a residential hotel or
apartment building on 11th Street in San Pedro (the building), allowed them to stay there
occasionally. Schmid was also homeless and occasionally paid Ungaro for the use of the
shower at the building. At approximately 11:00 p.m. on July 15, 2011, defendant and
Schmid were in the stairwell of the building when defendant stabbed Schmid once in the
chest, piercing his heart and lacerating an artery. Schmid died about two hours later as a
result of blood loss. The medical examiner testified that the depth of the stab wound was
two to three inches and that a toxicology test showed that Schmid had used
methamphetamine and heroin within 24 hours of his death.
       A resident of the building, Ralph John Patalano (Patalano), testified that the
kitchen, bathroom, and shower were shared by all the residents. The kitchen was on the
upper story and connected directly to the lower story by a stairway. As Patalano went
into the kitchen that night to cook he saw Schmid and defendant on the stairs. Defendant,
whom he knew as “Termite” told Patalano that they would be upstairs in a few minutes.
Patalano did not hear any arguing nor did he notice anything unusual about the two men.
Mike Sullivan (Sullivan) and Pina were in the kitchen at that time. As Patalano sat down
to eat, Sullivan’s girlfriend Elvia screamed or yelled that Schmid had been stabbed.
When Patalano took out his cell phone to call 911 Sullivan and Elvia told him not to use
his cell phone, so he ran outside intending to go to the 7-Eleven store two blocks away.
Outside, Patalano saw a burgundy SUV in the driveway. Soon thereafter defendant,
Sullivan, Elvia, and Pina came outside. Defendant calmly asked Patalano to tell Ungaro
to erase the building’s security tapes before leaving in the SUV with Sullivan, Elvia, and
Pina. Before running to the 7-Eleven store, Patalano told Ungaro that Schmid had been
stabbed and to erase the surveillance tapes.




                                               3
       The burgundy SUV was driven by Angel Carrillo (Carrillo).2 He had pulled into
the driveway of the building around 11:00 p.m. that night intending to visit his friend
Ungaro. As soon as he arrived defendant and Pina, accompanied by Sullivan and Elvia,
asked for a ride. After Carrillo agreed, defendant placed his bags in the luggage space
and got into the back seat with Sullivan and Elvia. Carrillo told detectives that during the
drive he heard defendant whispering in the back, saying something to the effect that he
had “stuck him” and he was not going to make it, or “That fool’s done.” Carrillo claimed
to have then stopped and ordered his passengers out of the car.
       In his trial testimony Carrillo denied that he was afraid to testify or that he was
afraid of defendant and claimed that there was no “bad blood” between them. He
explained that he was reluctant to testify because he did not want to be known as a snitch,
as snitching was not well regarded in his community. Carrillo denied hearing defendant’s
admission in the backseat and claimed he could not remember much of his preliminary
hearing testimony. In the recorded interview Carrillo referred to defendant as “Termite,”
and told detectives that defendant was affiliated with the Lomita gang. Carrillo said that
the last thing he wanted was ever to see or talk to defendant again; that Termite was well
mannered, but after time, he would become possessive and less tranquil and ends up
“fucking robbing you.” Carrillo explained that he had not seen defendant rob anyone, but
had heard from friends that they had been robbed by defendant. Carrillo added, “They
obviously don’t report it because . . . [he is] pretty bad news.” Carrillo was concerned
about giving information to the detectives because he was “still going through shit” as a
result of cooperating in an earlier case. Wilmington “RSP” had “paperwork” on him
from the incident and he had been fighting for his life for years.
       Ungaro was also a reluctant witness and much of his version of the events came
from his preliminary hearing testimony and a recording of his police interview. Ungaro
testified that he found Schmid hurt and bleeding in the stairwell that night and held a
towel on him until the ambulance arrived a few minutes later. After a number of failures

2      Carrillo was a reluctant witness. His version of the events came from both his
testimony and his recorded police interview.

                                              4
of recollection, the recorded interview was played for the jury. In the interview Ungaro
told detectives that he asked Schmid what had happened and Schmid simply said,
“Termite.” Ungaro told detectives that Termite’s name was Juan, that he was from
Lomita, and was a parolee who had been in prison most of his life. Ungaro described
Termite as having a shaved head and tattoos. Ungaro admitted to investigating detectives
that he had erased the security video,3 explaining that he was afraid for Pina, whom he
called his niece.
       Los Angeles Police Department Detective David Cortez testified that “paperwork”
was a gang term for reports, recordings of interviews, or other documents proving that a
person has testified or cooperated with the police; once paperwork is seen by gang
members, they might issue a “green light” to seriously hurt or kill the witness.
       Parole Agent Russell Laster testified that he was formerly defendant’s parole
agent, and that defendant had been discharged from parole in February 2010. Agent
Laster went to the building to visit other parolees early on the morning of the stabbing
where he saw defendant. Defendant introduced the agent to his girlfriend, Pina, and said
that he had known her for about two or three months. Agent Laster testified that Termite
was defendant’s moniker, which is a gang nickname, and that defendant was a member of
the Lomita 13 gang.4
       Detective David Alvarez testified that he booked all the evidence in this case,
including defendant’s backpack, in which he found a steno book and a letter. Detective
Alvarez read from the letter: “Got to make money and get out of state”; “I just don’t
know how to rein in my anger”; “And now I may go to prison for life because I just
couldn’t control myself”; and “I fucked up my life. Just stay with me until I have to go.”


3      An FBI forensic computer examiner testified that he was unable to retrieve most
of the erased day’s worth of video.

4     Defense counsel objected and the trial court admonished the jury as follows:
“Ladies and gentlemen, there’s no gang allegation in this case. To the extent there’s any
mention of any gang, that’s solely for the purpose -- you are not to consider it for any
purpose in this case whatsoever.”

                                             5
Defense evidence
       Defendant testified that he had been in a dating relationship with Pina, who he
loved, for three or four months prior to July 15, 2011. They were both transient and were
together “24/7,” living in motels or staying with friends. Beginning in April 2011,
Ungaro allowed them to sleep in his unit or the basement of the building, and to shower,
eat, and use all the facilities. They kept their personal property in the basement.
       During that period defendant and Pina used methamphetamine together daily.
Defendant was acquainted with Schmid; they “hung out,” drank beer, and injected or
smoked methamphetamine together. They also took heroin together a couple times.
Defendant and Schmid had never had any kind of problem with each other before.
Defendant had never known Schmid and Pina to have problems with each other.
       About 30 or 40 minutes before the stabbing, defendant, Schmid, and Pina used
methamphetamine in the basement of the building. Later they drank some vodka and
beer together on the landing of the kitchen stairway. Schmid had a tendency to make
crude sexual remarks, especially when he was intoxicated, and that evening was no
exception. He spoke of “bagging whores, getting his dick sucked, things like that.”
Defendant noticed that Pina had tensed up at the remarks and was becoming upset, so he
asked her to go upstairs to make some food. Pina went up to the kitchen, leaving
defendant and Schmid alone on the landing.
       As Pina left, Schmid stared after her and said, “I’m going to fuck that whore
tonight.” Defendant was shocked. Schmid knew about defendant’s relationship with
Pina, and had never before said anything like that about her. When defendant asked,
“What did you say?” Schmid replied: “I’m going to get me some more of that whore”;
“she sucks good dick”; and that she would “hit” anyone, meaning that she would provide
oral sex in exchange for methamphetamine. Schmid’s remarks made defendant feel
“pretty hot” and when he perceived that Schmid was laughing at him, defendant suddenly
found himself on top of Schmid. He realized that he had stabbed Schmid once without
thinking. Defendant knew it was wrong but Schmid’s remarks about Pina surprised and
angered him and he acted in a rage.


                                              6
       In retrospect defendant thought it was probably true that Pina was a prostitute, but
he did not think so then. However, defendant admitted he did not think that Pina had
really had sex with Schmid. He believed that she loved him.5 Defendant also admitted
when Schmid laughed he became even more angry and outraged. Defendant perceived
Schmid’s laughter as disrespectful toward defendant.
       Defendant described the knife as a three-inch folding knife which he kept in its
open position, blade down, in his pocket. He stabbed Schmid with his right hand, pulled
it out when he realized what he had done, and then put his hand on Schmid’s chest to
keep him down. He claimed that both he and Schmid said “I’m sorry” to each other.
Defendant claimed that he held Schmid down to avoid further problems, even though
Schmid had no weapon and was apologizing.
       While defendant was on the landing holding down Schmid, Sullivan, Elvia, and
Pina ran past him down the stairs. Defendant saw Carrillo’s truck in the driveway, and
realizing that he was going to be in trouble, followed the others and asked Carrillo for a
ride. Because Ungaro had asked them to leave, defendant’s bags and backpack were
already next to the driveway. He placed the bags in the car, asked Patalano to tell Ungaro
to erase the surveillance video, and got into the back seat with Sullivan and Elvia. When
asked what had happened, defendant said, “I stabbed him.” A short time later Carrillo
dropped them at their destination where they all got out with their luggage. Everyone in
Carrillo’s car had a cell phone but none of them called 911. Defendant claimed he was
too scared to call. He put the knife back into his pocket and later discarded it, but he
could not recall where.
       Defendant admitted he became part of the Lomita criminal street gang in 1992 and
that his moniker was Termite. He claimed that Schmid was a member of the San Pedro

5     Defendant did not call Pina once during the year he was in jail awaiting trial.
Defendant’s former girlfriend Virginia Matera (Matera) was in court throughout the trial,
and during defendant’s year in jail he spoke to her by telephone about 250 times.
Defendant had known Matera for 22 years, dated her for 10 years before they broke up in
February 2011, just before defendant met Pina.


                                              7
Stoners gang. Defendant admitted having been previously convicted of resisting arrest
and had served a prison term as a result. Agent Laster, whom he saw the day of the
stabbing at the building, had been his parole agent. Defendant also admitted having lied
to detectives during an interview after his arrest, claiming that he had not been at the
building and knew nothing about the stabbing. Defendant also falsely told Detective
Alvarez that he had not used heroin or methamphetamine since getting out of prison and
that he had been drug free for three to five months, when in fact he had been using
methamphetamine on and off since being paroled and had started on heroin again in
March 2011. By July 2011, defendant was using from $20 to $60 worth of
methamphetamine daily, though he rarely paid for it. He was unemployed at that time
and mostly “hustled” to obtain drugs through trade deals.
       Defendant testified that he regretted stabbing Schmid and did not intend to stab or
kill him when he went downstairs. Defendant admitted that the steno pad found in the
backpack was his and that he had written the letter to Pina. Statements about his inability
to control himself and the possibility of going to prison for life referred to the stabbing.
Defendant acknowledged that he did not write anything in the steno pad about feeling bad
about stabbing Schmid.
Prosecution rebuttal
       Detective Alvarez testified that he and his partner recorded their interview of
defendant on July 28, 2011. The recording was played for the jury. Defendant told the
detectives that he was 37 years old and had served time in six different prisons. He
admitted he was acquainted with Schmid and the building, having stayed at the building
occasionally with “Marcus” in room 6. Defendant said he had read about the stabbing in
the newspaper and that one of his “homeboys” told him that his name was being “thrown
around” in connection with the incident. He refused to reveal the identity of his
homeboy.
       Throughout the interview defendant repeatedly denied he was at the building the
night of July 15, and denied getting a ride from Carrillo. Defendant’s remarks displayed
more impatience and hostility as the interview wore on, for example: “I don’t care what


                                              8
[Pina] said.” “I’m telling you the truth, I was not there”; “You’re lying . . . fuck you guys
. . . I was not there”; “I was not there. Bottom line. . . . [Y]ou guys are trying to get me
to tell on myself for something I didn’t do? Come on, now. I know you guys do it a lot
but it ain’t happening here”; “That’s fucking sick, you guys are trying to fucking make
somebody fucking say they did something”; and, “If you guys feel like you guys got shit
on me, well then fucking book me. Simple as that. I was not there. All right?”
Defense surrebuttal
       Defendant testified that he had ingested methamphetamine prior to the interview,
which made him feel pretty aggressive. He admitted that his statements to the detectives
were not truthful and that the address he gave them as his last address was Matera’s.
                                       DISCUSSION
I. Voluntary intoxication
       Defendant contends that the instruction given the jury, CALJIC No. 4.21, was
incomplete and misleading in that the jury was told it could consider the effect on
defendant of any voluntary intoxication in determining whether defendant formed the
intent to kill.6 Defendant contends that the court was required to tell the jury that it could
also consider the effect of intoxication in determining whether defendant acted with
deliberation and premeditation.




6       The trial court read CALJIC No. 4.21, as follows: “In the crime which the
defendant[] [is] accused in count 1 or any lesser crimes thereto, a necessary element is the
existence in the mind of the defendant with the specific intent to kill. If the evidence
shows that the defendant was intoxicated at the time of the alleged crime, you should
consider that fact in deciding whether defendant had the required specific intent. If from
all of the evidence you have a reasonable doubt that the defendant formed a specific
intent, you must find that he did not have such specific intent.” The trial court then read
CALJIC No. 4.22, which defines voluntary intoxication, as follows: “Intoxication of a
person is voluntary if it results from the willing use of any intoxicating liquor, drug or
other substance, knowing that it is capable of an intoxicating effect or when he or she
willingly assumes the risk of that effect. Voluntary intoxication includes the voluntary
ingestion, injecting or taking by any other means of any intoxicating liquor, drug or other
substance.”

                                              9
         Section 29.4, subdivision (b), allows evidence of voluntary intoxication in a case
of murder not only on the issue of whether the defendant formed a specific intent, but
also on the issue of whether the defendant premeditated or deliberated the killing.
“Although a trial court has no sua sponte duty to give a ‘pinpoint’ instruction on the
relevance of evidence of voluntary intoxication, ‘when it does choose to instruct, it must
do so correctly.’ [Citation.]” (People v. Pearson (2012) 53 Cal.4th 306, 325, quoting
People v. Castillo (1997) 16 Cal.4th 1009, 1015 (Castillo).) Misleading instructions
“implicate the court’s duty to give legally correct instructions.” (Castillo, supra, at p.
1015.)
         “It is fundamental that jurors are presumed to be intelligent and capable of
understanding and applying the court’s instructions. [Citation.]” (People v. Gonzales
(2011) 51 Cal.4th 894, 940.) As the party claiming that the instruction was misleading,
defendant bears the burden to demonstrate a reasonable likelihood that the jury
understood the instruction in the way that he claims. (People v. Solomon (2010) 49
Cal.4th 792, 822.) Defendant must do so by reference to “‘“the entire charge of the court,
not from a consideration of parts of an instruction or from a particular instruction.”
[Citations.]’ [Citation.]” (Ibid.) Defendant’s analysis falls short of this requirement. He
merely points out that CALJIC No. 8.20 contained the concepts of premeditation and
deliberation, and that CALJIC No. 8.30 explained that murder is of the second degree if
the intent was not a result of premeditation and deliberation. (See § 189; People v.
Mendoza (2011) 52 Cal.4th 1056, 1069.) Defendant then argues that these instructions
made it clear to the jury that the specific intent to kill was a different concept from
premeditation and deliberation and that this distinction “would lead the jurors to believe
that voluntary intoxication specifically did not apply to premeditation and deliberation.”
         Premeditation and deliberation are not distinct from intent to kill; rather, they
“refer to the quality of the intent to kill” and thus modify and further define the mental
state required for first degree murder. (Castillo, supra, 16 Cal.4th at p. 1017.) By
suggesting that the two concepts are distinct and that the trial court so instructed,



                                               10
defendant has failed to consider all the language of the instruction. As read by the trial
court, CALJIC No. 8.20 clearly explained these concepts:
               “All murder[] which is perpetrated by any kind of willful, deliberate
       and premeditated killing with express malice aforethought is murder of the
       first degree. The word ‘willful’ means intentional. The word ‘deliberate,’
       which relates to how a person thinks, means formed or arrived at or
       determined upon as a result of careful thought and weighing of
       consideration for and against the proposed course of action. The word
       ‘premeditated’ relates to when a person thinks and means considered
       beforehand. One premeditates by deliberating before taking action. If you
       find that the killing was preceded and accompanied by a clear, deliberate
       intent on the part of the defendant to kill, which was the result of
       deliberation and premeditation, so that it must have been formed upon
       preexisting reflection and not under a sudden heat of passion or other
       condition precluding the idea of deliberation, it is murder of the first
       degree. The law does not undertake to measure in units of time the length
       of the period during which the thought must be pondered before it can ripen
       into an intent to kill which is truly deliberate and premeditated. The time
       will vary with different individuals and under varying circumstances. The
       true test is not the duration of time, but rather the extent of the reflection. A
       cold, calculated judgment and decision may be arrived at in a short period
       of time. But the mere unconsidered and rash impulse, even though it
       includes an intent to kill, is not deliberation and premeditation as will fix an
       unlawful killing as murder of the first degree. To constitute a deliberate
       and premeditat[ed] killing, the slayer must weigh and consider the question
       of killing and the reasons for and against such a choice and, having in mind
       the consequences, he decides to and does kill.”

       Thus, the jury was fully instructed on all three mental states. We agree with
respondent that any reasonable juror would have understood that he or she could consider
evidence of voluntary intoxication in determining not only whether defendant intended to
kill, but also whether that intent was premeditated or deliberated. We also agree that if
the trial court erred, any such error would be harmless.
       Defendant contends that an incomplete instruction on voluntary intoxication
implicates his constitutional rights to due process and a fair trial, and thus the applicable
test of prejudice is whether the error was harmless beyond a reasonable doubt. (See
Chapman v. California (1967) 386 U.S. 18, 24.) However, “[a]ny error would have the


                                              11
effect of excluding defense evidence and is thus subject to the usual standard for state law
error: ‘the court must reverse only if it also finds a reasonable probability the error
affected the verdict adversely to defendant.’ [Citation.]” (People v. Mendoza (1998) 18
Cal.4th 1114, 1134-1135; see also People v. Letner and Tobin (2010) 50 Cal.4th 99, 187.)
No constitutional rights are implicated under such circumstances. (See People v.
Pearson, supra, 53 Cal.4th at p. 325, fn. 9.)
       Moreover, an incomplete or misleading instruction on voluntary intoxication
cannot have had the effect of excluding any evidence essential to negating premeditation
or deliberation, because defendant failed to present substantial evidence of intoxication.
It was defendant’s burden to raise the issue of voluntary intoxication and to present
evidence in support of its application to the facts. (People v. Saille (1991) 54 Cal.3d
1103, 1117, 1120.) Indeed it was his burden to not only present substantial evidence of
his voluntary intoxication, but to also show how the intoxication affected his “‘actual
formation of specific intent.’ [Citations.]” (People v. Williams (1997) 16 Cal.4th 635,
677; see also People v. Verdugo (2010) 50 Cal.4th 263, 295.) Instead, defendant testified
only that he used methamphetamine daily and that he had used it 30 or 40 minutes before
the stabbing. He also testified that he drank some vodka and beer with Schmid while on
the landing, a short time before the stabbing. Defendant did not describe the quantity of
methamphetamine or alcohol he consumed or whether he felt intoxicated. He did not
mention intoxication in his letter to Pina but instead blamed his actions on his temper,
explaining: “I just don’t know how to rein in my anger”; “And now I may go to prison
for life because I just couldn’t control myself.”
       Defendant did not request an instruction on voluntary intoxication; the trial court
gave it on its own motion without objection. Had he done so, any objection by the
prosecutor would have been well taken, as “merely showing that the defendant had
consumed alcohol or used drugs before the offense, without any showing of their effect
on him, is not enough to warrant an instruction . . . . [Citations.]” (People v. Pensinger
(1991) 52 Cal.3d 1210, 1241; see also In re Avena (1996) 12 Cal.4th 694, 724.) Not only
did defendant fail to request an instruction, he did not even raise the issue of voluntary


                                                12
intoxication at all. In closing argument defense counsel did not claim that intoxication
negated any mental state, rather he argued that defendant acted out of rage prompted by
insult to the woman he loved. We cannot find a reasonable probability that an incomplete
instruction, unsupported by substantial evidence to which defendant was not entitled,
could have adversely affected the verdict.
       Further, as respondent observes, the jury found that defendant harbored the intent
to kill Schmid and thus necessarily rejected intoxication as affecting that mental state; it
is thus most unlikely that even with a complete instruction, the jury would have found
that the drugs and alcohol ingested by defendant interfered with his ability to premeditate
or deliberate.
II. Admission of entire recordings
       Defendant contends that the trial court erred in admitting the recorded interviews
of Carrillo and Ungaro and that error resulted in a denial of due process. Defendant
argues that the entirety of the two recordings should have been excluded as hearsay.7 He
also argues that the trial court abused its discretion under Evidence Code sections 1101
and 352 in failing to bar irrelevant and inflammatory statements regarding defendant’s
membership in the Lomita gang and his prior criminality.
       The abuse of discretion standard of review applies to any trial court ruling on the
admissibility of evidence, including rulings on questions of hearsay, relevance, probative
value, and undue prejudice. (People v. Waidla (2000) 22 Cal.4th 690, 725.) Before we
undertake such a review, however, it must appear that defendant preserved the issue for

7       Defendant suggests that the interviews should have been excluded on the ground
that the prosecutor did not put forward any exception to the hearsay rule, because some
but not all the statements in them fell within the exception for prior inconsistent
statements. Defendant also contends that the trial court erred in relying on the rule of
completeness to admit the Ungaro recording in its entirety, and suggests that he is entitled
to reversal due to this error, even though portions of the interview were admissible. (See
Evid. Code, § 356.) We review the trial court’s ruling, not its reasoning. (People v.
Mickey (1991) 54 Cal.3d 612, 655.) Thus, if the court properly admitted the evidence we
would not reverse simply because the prosecutor put forth the wrong hearsay exception
or the court erroneously relied on Evidence Code section 356. (See People v. Zapien
(1993) 4 Cal.4th 929, 976.)

                                             13
appeal by complying with Evidence Code section 353, which precludes review on appeal
unless the record reveals a timely objection or a motion to exclude or to strike the
evidence, made on a clearly expressed specific ground. Further, the ground urged on
appeal must be the same ground urged in the trial court. (People v. Valdez (2004) 32
Cal.4th 73, 108.) Our review of the record shows that defendant made neither specific
nor timely objections on the grounds urged on appeal. Defendant claims that the two
recordings were played “over defense counsel’s objection to the admission of the
recordings without redaction.” However, defendant does not identify individual passages
that should have been redacted or his specific objections to them.8
       Just before the prosecutor played the recording of Carrillo’s interview, defense
counsel requested a sidebar conference where he said to the court: “I know there is a CD.
. . . It’s fairly long and I’m not sure if counsel intends to play the entire tape”; and, “The
problem with playing the entire tape, there are some things that appear to be unrelated to
this case and there are other things that relate to the detectives, get into defendant’s gang
affiliation, things of that nature.” Defendant did not specify the unrelated passages, state
a ground for excluding them or any gang references, or request an admonishment.
       Just before the Ungaro interview was played, defense counsel again asked for a
sidebar conference and a discussion was held in chambers during which defense counsel
said: “Um, well, the only problem is that some of the statements in here appear relevant.
There’s not an objection to that. Although there appears to be also statements that reflect
hearsay statements made by other individuals who apparently are not witnesses who will
come before the court. So my concern is that the jury is going to be exposed to potential

8       Defendant makes multiple references to a discussion relating to his motion for
mistrial made just after the recording of the Carrillo interview was played. These
references are apparently meant to suggest that he made timely and specific objections
prior to the playing of the recording. However, although counsel objected to the entire
interview, he did not argue that his objection was directed to the prior ruling admitting
the recording and did not move to strike any specific passages. Defendant also made an
oral motion for new trial after the verdict, asserting error in admitting Carrillo’s entire
interview without redaction and in admitting gang evidence. Defendant does not
challenge on appeal the denial of either motion.

                                              14
hearsay evidence that would not otherwise be admissible.” Apparently considering the
objection untimely,9 the trial court requested a redacted version and offered: “Since
you’re the one objecting and you’re prepared for this.” Defense counsel had not prepared
a redacted version; nor did he specify what passages he considered “potential hearsay” or
identify the declarants who were not before the court. The court acknowledged that there
might be “some . . . information in there that may be hearsay” and invited defendant to
submit a curative instruction. The trial court also ruled: “Under the rule of
completeness, I’ll allow it to be played over your objection.”10 Defendant did not
propose a curative instruction or interrupt any part of the recording with an objection to
any specific passage.
       In sum, defendant did not mention hearsay in the trial court in relation to the
Carrillo interview at all; and with regard to the Ungaro interview, defense counsel merely
expressed concern about unidentified potential hearsay statements from unidentified
declarants. Further, defense counsel did not object to playing the Ungaro interview in its
entirety and conceded the relevance and admissibility of other unidentified portions.
Defendant is bound by counsel’s concession that evidence is admissible in part. (See
People v. Pijal (1973) 33 Cal.App.3d 682, 697.) Finally, defendant did not invoke
Evidence Code sections 352 or 1101 as to either interview; nor did he ask the trial court
to weigh the probative value of the gang evidence against any potential for prejudice or
object to it as inadmissible character evidence. Now however, defendant objects to both
interviews on the grounds that the statements of Carrillo and Ungaro were hearsay and
unduly prejudicial. We reject any suggestion in defendant’s extensive references to the

9      At the motion for mistrial, after the Carrillo recording was played, the prosecutor
pointed out to the court that on the previous day when the court heard motions to exclude
evidence, defense counsel did not mention the recorded interviews even though he had
been given CD’s and transcripts more than seven months earlier.

10     The rule of completeness applies only where the proponent of the evidence has
offered selected portions of a conversation, causing it to be misleading, not where it is the
objecting party who requests redaction due to portions claimed to be inadmissible.
(§ 356; see generally, People v. Riccardi (2012) 54 Cal.4th 758, 803.)

                                             15
argument on the new trial motion that there was a timely or specific request that the trial
court weigh the probative value against any potential for prejudice in defendant’s
membership in the Lomita gang and his prior criminality.
       Since defendant’s contentions on appeal were not raised below, we decline to
analyze each recording. “[W]hen a defendant on appeal argues a theory of admissibility
of evidence not raised at trial, ‘[w]e cannot hold the trial court abused its discretion in
rejecting a claim that was never made.’” (People v. Lightsey (2012) 54 Cal.4th 668, 726,
quoting People v. Valdez, supra, 32 Cal.4th at p. 109.)
       In any event, the admission of the two recordings in their entirety was harmless.
We apply the Watson standard to a claim of erroneous admission of evidence. (People v.
Fuiava (2012) 53 Cal.4th 622, 671.) Under that standard, such error is harmless where
there is no reasonable probability the jury would have reached a more favorable verdict
had the trial court excluded the challenged evidence. (See People v. Watson (1956) 46
Cal.2d 818, 836.) As respondent notes, this standard applies to the erroneous admission
of character evidence such as other-crimes evidence (People v. Malone (1988) 47 Cal.3d
1, 22), as well as gang evidence (People v. Avitia (2005) 127 Cal.App.4th 185, 194).
       First, in denying the motion for mistrial the trial court observed that Carrillo was a
reluctant witness at trial. “Evidence that a witness is afraid to testify or fears retaliation
for testifying is relevant to the credibility of that witness and is therefore admissible.
[Citations.] An explanation of the basis for the witness’s fear is likewise relevant to [his
or] her credibility and is well within the discretion of the trial court. [Citations.]”
(People v. Burgener (2003) 29 Cal.4th 833, 869; Evid. Code, § 780.) A defendant’s gang
membership and prior criminality may be admissible to explain the witness’s fear, even if
the fear is not directly linked to conduct or threat by defendant. (People v. Sanchez
(1997) 58 Cal.App.4th 1435, 1450.) Carrillo’s opinion of defendant, his reputation, and
his gang membership were probative of his fear and explained his memory failures,
reluctance to identify defendant, and inconsistent statements at trial. Under such
circumstances, the trial court would not have been in error if it refused to exclude the
interview in its entirety.


                                              16
       In addition, the evidence of intent to kill was overwhelming. Defendant admitted
that he stabbed Schmid and did not claim that it was an accident. Defendant plunged
nearly the entire length of the three-inch blade into Schmid’s chest, pierced his heart, and
then, although Schmid was unarmed and intoxicated, defendant held him down so
Schmid could not struggle. Similar circumstances led the California Supreme Court to
comment that the “defendant could have had no other intent than to kill.” (People v.
Bolden (2002) 29 Cal.4th 515, 561.) In addition, evidence that defendant carried his
folding knife open in his pocket while he was with Schmid and then stabbed Schmid in a
vital organ suggest premeditation. (See People v. Anderson (1968) 70 Cal.2d 15, 26-27.)
       In contrast, the evidence supporting defendant’s heat-of-passion defense was
weak. Verbal taunts may be sufficient where the provocation was “‘such that an average,
sober person would be so inflamed that he or she would lose reason and judgment.’
[Citation.]” (People v. Manriquez (2005) 37 Cal.4th 547, 585-586.) In general, mere
words cannot meet the objective test for sufficient provocation and thus reduce murder to
manslaughter. (People v. Valentine (1946) 28 Cal.2d 121, 140.) This is particularly so
where the use of foul or obscene language was normal between the defendant and the
victim. (People v. Cole (2004) 33 Cal.4th 1158, 1216.) Here, as demonstrated by
defendant’s police interview, defendant often peppered his own speech with foul epithets,
and he understood that Schmid had a tendency to make crude sexual remarks when he
was intoxicated. Indeed, defendant was accustomed to hearing Schmid talk about
“bagging whores, getting his dick sucked, things like that.” Finally, defendant did not
believe that Pina had really had sex with Schmid. It is unlikely that the foul language and
the sexual remarks would have caused an ordinary sober person to lose reason and
judgment under those circumstances, and it is not reasonably probable that the jury would
have found sufficient provocation in this case.
       Further, the trial court admonished the jury very broadly not to consider gang
evidence for any purpose. We presume that jurors are able to understand and follow
instructions limiting the purposes for which evidence may be considered. (People v.
Yeoman (2003) 31 Cal.4th 93, 139.) We conclude that there is no reasonable probability


                                             17
the jury would have reached a more favorable verdict had the trial court not admitted
evidence that defendant was a gang member who may have robbed people.
III. Penalty assessment
       Defendant asks that we strike the $100 penalty assessment that appears in the trial
court’s minutes of October 25, 2012. The trial court did not impose the assessment in its
oral pronouncement of sentence and it does not appear in the abstract of judgment.
Respondent agrees that the penalty assessment was unauthorized and should be stricken.
       The minutes state that the assessment was imposed pursuant to section 1464 and
Government Code section 76000, which provide for a surcharge on fines, but not on
restitution or parole revocation fines. (§ 1464, subd. (a)(3)(A); Gov. Code, § 76000,
subd. (a)(3)(A); see People v. Boudames (2006) 146 Cal.App.4th 45, 50-51.) Nor may
the assessment be imposed on other fines imposed by the trial court. (See § 1465.8, subd.
(b); Gov. Code, § 70373, subd. (b).) Further, the clerk was not authorized to insert a fine
that was not ordered by the court. (See People v. Zackery (2007) 147 Cal.App.4th 380,
387-388, 390.) We therefore order the penalty stricken from the minutes. (Ibid.)
                                     DISPOSITION
       The trial court is ordered to correct its minutes of October 25, 2012, by striking
“$100 assessment and surcharge (1464 P.C. & 76000 G.C.).” In all other respects, the
judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                                  ____________________________, J.
                                                  CHAVEZ

We concur:


__________________________, P. J.
BOREN


__________________________, J.
ASHMANN-GERST


                                             18
