Filed 2/7/14 P. v. Miles CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A134877
v.
CHARLES R. MILES,                                                    (Contra Costa County
                                                                     Super. Ct. No. 05-08-07883)
         Defendant and Appellant.


         Jason Coca died after being shot six times at a 2007 Halloween party in Pinole,
California by defendant Charles R. Miles. Miles was charged with the murder of Coca
(Pen. Code, § 187), 1 being a felon in possession of a firearm (§ 12021, subd. (a)(1)), and
participation in a criminal street gang (§ 186.22, subd. (a)). The indictment against Miles
also alleged firearms and criminal street gang enhancements (§§ 12022.53, subds. (b),
(c), (d), (e)(1); 186.22, subd. (b)(1).)
         The prosecution’s theory was that Miles, a member of the Norteño street gang,
shot Coca in retaliation for Coca’s earlier shooting of a fellow Norteño gang member.
Miles ultimately acknowledged shooting Coca, but claimed the shooting was in self-
defense. A jury found Miles guilty on all counts and found the murder to be in the first
degree.
         On appeal, Miles does not contend that the evidence was insufficient to support his
conviction. Rather, he contends that he was prejudiced, individually and cumulatively,


         1
             Statutory references are to the Penal Code, unless otherwise indicated.


                                                             1
by four errors at his trial: (1) the court abused its discretion by admitting into evidence a
statement made at the earlier shooting of another Norteño gang member; (2) the
prosecution violated its discovery obligations by revealing that statement, and the witness
who would testify to the statement, while trial was underway; (3) some provisions of
CALCRIM No. 1403, with which the court instructed the jury, were not supported by
sufficient evidence; and (4) the court erroneously allowed an expert witness to testify
about the intent of a hypothetical Norteño in a hypothetical situation.
       We find no merit in Miles’s assertions of error and affirm, without the need to
examine Miles’s claims of prejudice.
                                     BACKGROUND
I. Procedural Background
       On July 1, 2008, the Contra Costa County Grand Jury returned an 11-count
indictment against Miles and Patrick Joseph Botello. Counts 1 through 4 of the
indictment charged Miles and Botello with the murder of Dominic Porter (§ 187), the
attempted murder of Marquez Pierce (§§ 187, subd. (a), 664, subd. (a)), shooting into an
inhabited dwelling (§ 246), all allegedly committed on August 1, 2007, and participation
in a criminal street gang (§ 186.22, subd. (a)), with various gang and firearm
enhancements attendant to counts 1 through 3. In connection with these charges, Miles
alone was charged in count 6 with being a felon in possession of a firearm (§ 12021,
subd. (a)(1)) and in count 11 with being a felon in possession of ammunition (§ 12316,
subd. (b)(1)).
       Counts 5, 7, and 8 were alleged to have been committed on October 31, 2007.
These counts charged Miles alone with the murder of Coca (§ 187), being a felon in
possession of a firearm (§ 12021, subd. (a)(1)), and participation in a criminal street gang
(§ 186.22, subd. (a)). Attendant on count 5, the indictment charged firearm
enhancements. (§ 12022.53, subds. (b), (c), (d), (e)(1).) Attendant on counts 5 and 7, the
indictment charged a criminal street gang enhancement. (§ 186.22, subd. (b)(1).)
       Counts 9 and 10 charged Botello alone with assault with a deadly weapon (§ 245,
subd. (a)) and dissuading a witness (§ 136.1, subd. (a)(1)).


                                              2
       The trial court granted severance of counts and ordered three trials: (1) a joint trial
on counts 1 through 4, 6, and 11 (the Porter murder trial); (2) a trial of Miles alone on the
three counts (5, 7, and 8) arising from the Coca murder, the case at issue in this appeal;
and (3) a separate trial of Botello on counts 9 and 10. On March 24, 2010, a jury in the
Porter murder trial convicted Botello on counts 1 through 4, but acquitted Miles on all
counts except count 11 (felon in possession of ammunition), which was renumbered as
count 5 for trial. Count 6 (renumbered to count 7, felon in possession of a firearm) was
not submitted to the jury, and the court subsequently dismissed it on the People’s motion.
       For the separate trial of Miles, original counts 5, 7, and 8 were renumbered as
counts 6, 8, and 9. Trial began on April 14, 2010, but the court declared a mistrial on
April 20 after Miles’s counsel declared a conflict of interest
       A new trial began on October 17, 2011. On November 8, 2011, the jury returned a
verdict of guilty on all counts. The jury found the murder to be in the first degree and the
firearm and criminal street gang enhancements to be true.
       At a hearing on February 10, 2012, the court denied Miles’s motion for a new trial
and a motion, made pursuant to People v. Marsden (1970) 2 Cal.3d 118, to replace his
appointed counsel. The court then sentenced Miles to state prison for a total term of 58
years and eight months to life, structured as follows: 25 years to life for murder, 25 years
to life for the firearm enhancement attendant to the murder, four years for the gang
enhancement attendant to the murder, three years for being a felon in possession of a
firearm, eight months for being a felon in possession of ammunition (the count on which
Miles had been found guilty in the joint trial with Botello), and one year for a felony
assault to which Miles had pleaded guilty on a different docket.
       Miles filed a timely notice of appeal on February 10, 2012.




                                              3
II. Factual Background 2
A. The January 2007 Shooting of Botello
       We briefly describe a shooting in January 2007 because of Miles’s claims of error
concerning the admission of a statement made by Botello. At that time, Daryl England
was one of the police officers who responded to the shooting in which Botello and
Fernando Salguera were wounded outside the J & A Market in El Sobrante, California.
Botello had gunshot wounds in both legs and Salguera had two wounds in the back.
Harold Arroliga, a friend of Salguera’s brother, Kenneth Salguera (Kenneth), was at the
scene. England testified at triak that about 15 to 20 minutes after he arrived at the scene
of the shooting, as Botello was put on a gurney and loaded into an ambulance, Botello
yelled, “Don’t talk to the police. We’ll take care of this ourselves.”
B. The Shooting of Coca
       On October 31, 2007, more than 50 people, including Coca, attended a Halloween
party at a Pinole, California, residence. Arroliga was at the party and when he saw Coca,
he called Kenneth. Arroliga told Kenneth that he should come to the party, and that the
person who shot his brother was there. Kenneth was already on his way to the party
when Arroliga called him. Miles was with Kenneth, in Kenneth’s truck, when Arroliga
called Kenneth.
       About 11:00 p.m., fights broke out and the partygoers went outside into the street.
Coca was challenging “everybody that was there,” including Joey Bonnett, an
acquaintance of Miles. Arroliga believed the argument between Coca and Bonnett to
have been about the January shooting. Bonnett and Kenneth saw Coca gesture as if
reaching for a gun, but no one actually saw a gun. Within 15 seconds of making such a
gesture, according to Kenneth, “someone” shot Coca multiple times.3
       Police officers responded about 11:50 p.m. Coca was already dead. The doctor
who performed the autopsy of Coca testified that the body had six gunshot wounds.

       2
        We do not review the facts of the Porter murder trial, at which Miles and Botello
were co-defendants, because they are not at issue in this appeal.
      3
        At trial, none of the prosecution witnesses identified Miles as the shooter.


                                             4
       Miles testified on his own behalf as the sole defense witness. He went to the
Halloween party with Kenneth and carried a handgun with him. Miles knew Coca and
believed him to be the person who had shot Botello and Salguera in January 2007.
       According to Miles, Coca reached as if he was “going to pull out a gun” and Miles
“got scared.” Coca’s hand was behind him and Miles could not see if he was holding a
gun. Thinking that Coca was going to shoot him, Miles drew his own gun and began
firing at Coca from about 10 feet away.
       Miles left the scene with Kenneth and eventually went to Kenneth’s house.
Bonnett and Arroliga also came there. Miles told them not to talk with anyone about the
shooting. Miles later told people to say he had not been at the party.
C. Gang-Related Evidence
       Jeff Palmieri testified as an expert in the area of criminal street gangs and believed
that both Miles and Botello were Norteños who belonged to Varrio San Pablo (VSP), a
Norteño subgroup. Miles had tattoos on his arms, hands, neck, and face signifying
Norteño membership. The tattoos included several variations of the number 14
(associated with “N,” the fourteenth letter of the alphabet), a Huelga bird, the letters VSP,
and the letters EBN (East Bay Norteño). A copy of the “14 Bonds,” the Norteño training
manual containing the rules that “they live by,” was found in the search of Miles’s
bedroom. Much of the clothing found in Miles’s bedroom was red, the color worn by
Norteños.
       Palmieri testified that the Norteños are a gang engaged in criminal activity,
including murder, assault, drug dealing, and illegal possession of firearms. Palmieri
believed that Botello’s conviction for the murder of Porter was part of a pattern of
Norteño criminal activity, as was Miles’s conviction for assault with a deadly weapon
committed in San Pablo, California in July 2006. If a member of a Norteño subgroup is
assaulted, the other members will find out about it.
       Palmieri was presented with the following hypothetical set of facts: a Norteño
wearing jeans with red in them came to a party knowing there was a person at the party
whom the Norteño believed had shot another Norteño; the Norteño intervened as the


                                             5
person was about to fight someone else; the Norteño shot the person six times in front of
a crowd; and a red bandana was found in the street. Palmieri testified that such a crime
would be for the benefit of the Norteños and would promote their criminal conduct.
Palmieri said he would reach the same conclusion even if the Norteño happened upon the
other person at the party without knowing ahead of time that he was going to be there.
Palmieri stated that gang members often attack rivals when they encounter them by
chance.
       Miles was arrested on November 7, 2007, and Police Officer Mike Pistello
interviewed him. Miles told Pistello that he had been in San Francisco at the time Coca
was shot. He said that he had heard about the shooting from “his little homies” and
believed that Coca had been shot because Coca had shot Botello.
       Miles acknowledged that he and Botello were Norteños. He denied telling the
police after his arrest that he had heard Coca was shot because Coca had shot Botello.
                                      DISCUSSION
I. Botello’s Statement at the January 2007 Shooting
       As noted above, England testified that after Botello and Salguera were shot in
January 2007, Botello shouted out: “Don’t talk to the police. We’ll take care of this
ourselves.” Miles contends that it was error for the court to allow this statement to be
admitted into evidence and that he was prejudiced by that error.
A. Background
       On October 27, 2011, while the prosecution case was in progress, the prosecutor
disclosed that he intended to introduce testimony by England concerning Botello’s
January 2007 statement.
       Defense counsel made several objections: (1) the statement was hearsay; (2) the
statement was irrelevant because Botello’s intent could not be imputed to Miles, there
being no evidence that Miles heard the statement or that Botello ever conveyed it to
Miles; (3) in an Evidence Code section 352 analysis, the statement would be very
prejudicial to Miles; (4) the defense was prejudicially disadvantaged by this sudden
revelation because of lack of opportunity to investigate; and (5) there was insufficient


                                             6
foundation for England to testify as to whether Botello was “under the stress of the
moment” when he made the statement.
       The court ruled that Botello’s statement would be admissible under Evidence
Code section 1240 because “[i]t does explain a condition perceived by the declarant at the
time, which is that he was in a situation where he didn’t want anybody but himself and
his gang to take care of the problem. It was also made spontaneously under the stress of
excitement caused by the perception that he didn’t want that because he’d just been shot.
So, I do think it fits within the spontaneous statement exception.” The court also stated
that it believed the statement would be admissible under Evidence Code section 1250.
B. Admissibility under Evidence Code section 1250
       Evidence Code section 1250, subdivision (a), provides, in relevant part: “Subject
to [Evidence Code] Section 1252, evidence of a statement of the declarant’s then existing
state of mind, emotion, or physical sensation (including a statement of intent, plan,
motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the
hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of
mind, emotion, or physical sensation at that time or at any other time when it is itself an
issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct
of the declarant.” Evidence Code section 1252 in turn provides: “Evidence of a
statement is inadmissible under this article if the statement was made under
circumstances such as to indicate its lack of trustworthiness.”
       “[A]n appellate court applies the abuse of discretion standard of review to any
ruling by a trial court on the admissibility of evidence . . . .” (People v. Waidla (2000) 22
Cal.4th 690, 724.)
       Miles argues that Botello’s statement was not admissible under Evidence Code
section 1250 because Botello’s state of mind was not an issue in the case.4 However, the


       4
         Miles also contends that the People have waived any argument that Botello’s
statement was admissible under Evidence Code section 1250 because they did not present
section 1250 as a ground for admitting the statement to the trial court. Miles cites People
v. Hines (1997) 15 Cal.4th 997, 1034, fn. 4, and Lorenzana v. Superior Court (1973) 9

                                              7
trial court explained at the hearing why Botello’s state of mind was at issue: “With
respect to whether . . . Botello’s intent can be imputed to Miles, that’s exactly what the
issue is here in this gang case. . . . I think that the fact of [Miles’s] possession of the 14
Bonds and the closeness of his relationship with Botello, and the fact that when . . .
Botello—in the wake of . . . Botello’s shooting at the earlier party in the summer, he went
to [Miles’s] home after that. And the fact that . . . Arroliga called Salguera and said, Hey,
the guy who shot your brother is here, and the expectation, at least imputed—impliedly
that something be done about that, but that all of that together, I think leads to a
reasonable inference that this was done for the purpose of the gang. [¶] And I think it is
a fair inference from the evidence that because the closeness of their relationship and
[Miles’s] adherence to the principles of the gang, based on the 14 Bonds and other
evidence I expect Detective Palmieri is going to put in, that there’s a sufficient inference
that this was the motive. And it was done for the purpose of the gang. [¶] So, it’s
certainly relevant. And I think it’s a fair inference, not a necessary inference but a fair
inference the jury can make.”
       In People v. Riccardi, the contested statements concerned a decedent’s fear of the
defendant. (People v. Riccardi (2012) 54 Cal.4th 758, 813-814.) The court concluded
“that evidence of the decedent’s state of mind, offered under Evidence Code section
1250, can be relevant to a defendant’s motive—but only if there is independent,
admissible evidence that the defendant was aware of the decedent’s state of mind before
the crime and may have been motivated by it.” (Id. at p. 820.)
       This case is similar to Riccardi. Botello’s direction not to talk to the police
because “we” would take care of it was relevant to Miles’s motive. Independent,


Cal.3d 626, 640, in support of this contention. However, both cases involved evidence
which had been excluded in the trial court and both cases held that the party advocating
for admission could not argue on appeal a ground for admission that it had not presented
to the trial court. Neither case stands for the proposition that when a trial court
determines that evidence is admissible on a ground different from that originally
proposed, the party advocating for admission may not argue on appeal that the trial court
was correct.


                                               8
admissible evidence supported a reasonable inference that Miles was aware of Botello’s
state of mind before he shot Coca and may have been motivated by it. Miles and Botello
grew up together and would “hang out” with each other. Both belonged to VSP, a subset
of the approximately 35 Norteño gang members in west Contra Costa County. That
Miles was an ardent Norteño was demonstrated by his gang tattoos, including one on his
face, and the book of gang rules found in his room. Palmieri testified that Norteños
would “take some kind of action” if “disrespected,” so as not to appear weak. After Coca
was shot, Miles told the police that the shooting was in retaliation for the shooting of
Botello. Given all of these facts, a trier of fact could reasonably infer that, in the 10
months between the two shootings, Botello communicated to Miles his intent that the
Norteños should “take care of this ourselves” and that Miles was motivated by this intent.
Such a conclusion would not be, as Miles would have it, “complete speculation.”
       Botello’s state of mind was at issue in this case because it was relevant to establish
Miles’s motive and independent, admissible evidence supported the reasonable inference
that Botello’s intent was communicated to Miles and that Miles was motivated by that
intent. Accordingly, we find no abuse of discretion in the trial court’s conclusion that
Botello’s statement was admissible under Evidence Code section 1250. We need not
address whether the statement was also admissible as a spontaneous statement under
Evidence Code section 1240.
C. Alleged Discovery Violation
       Miles further claims that the court erred in admitting Botello’s statement because
failure to disclose the statement before trial “violated [Miles’s] statutory discovery rights
under [section] 1054.1” and “also violated [Miles’s] 5th and 14th Amendment due
process rights to notice.”
       We disagree that the prosecution was guilty of a discovery violation. Section
1054.1 requires a prosecuting attorney to disclose the names and addresses of all persons
he or she intends to call as witnesses at trial. Section 1054.7 provides: “The disclosures
required under this chapter shall be made at least 30 days prior to the trial . . . . If the



                                               9
material and information becomes known to, or comes into the possession of, a party
within 30 days of trial, disclosure shall be made immediately . . . .”
       The prosecutor learned of Botello’s statement on the same day that defense
counsel was informed of the statement and the court held a hearing on its admissibility.
Miles’s counsel expressed “100 percent confidence” in the prosecutor’s good faith.
Because the facts to which England would testify were not known to the prosecutor 30
days before trial and were promptly conveyed to defense counsel, there was no violation
of California discovery requirements.
       Miles cites no case suggesting that the disclosure of incriminating information or
identification of a witness during the course of a trial constitutes a violation of due
process. The one case that Miles does cite, Donnelly v. DeChristoforo (1974) 416 U.S.
637, has nothing to do with the disclosure of incriminating information or the identity of
witnesses. As the United States Supreme Court has stated: “There is no general
constitutional right to discovery in a criminal case, and [Brady v. Maryland (1963) 373
U.S. 83] did not create one; as the Court wrote recently, ‘the Due Process Clause has
little to say regarding the amount of discovery which the parties must be afforded. . . .’ ”
(Weatherford v. Bursey (1977) 429 U.S. 545, 559, quoting Wardius v. Oregon (1973) 412
U.S. 470, 474.)
       There having been no discovery or due process violation, we are left with the
court’s decision to admit Botello’s statement despite Miles’s objection that the defense
was prejudicially disadvantaged by a lack of opportunity to investigate. As with other
determinations concerning the admission of evidence, we review this issue for abuse of
discretion. (People v. Waidla, supra, 22 Cal.4th at p. 724.)
       Miles asserts that his case was prejudiced by the late disclosure because “[i]f
timely disclosure had been furnished, defense counsel would have had time to investigate
and interview Fernando Salguera and the paramedics [who attended to Botello]. That
investigation probably would have shown that Botello was talking with many people,
which would have shown that he was not under the stress necessary for a spontaneous
statement.” This assertion of prejudice is rank speculation and, in any case, irrelevant


                                              10
because we have concluded that Botello’s statement was admissible under Evidence
Code 1250, whether or not it was admissible as a spontaneous statement.
       The court directly addressed the opportunity to interview paramedics as follows:
“And as to the ambulance drivers, you certainly could see if you could find them. My
guess is that they will have absolutely no recollection because none of it would have
mattered to them. They wouldn’t really care what somebody said when they’re getting
into the ambulance. They care about what the person’s condition is and can they keep
him stable until they get to the hospital. And my guess is, from an incident that happened
back in 2007, four years ago, almost to the day, the likelihood that they would remember
something significant is very, very small. So I don’t see that there’s any real prejudice of
letting this in at this point.”
       Further, the trial court offered defense counsel the opportunity to interview
Arroliga, who was present at the shooting of Botello and Salguera, in an Evidence Code
section 402 hearing, to determine what he could offer about the circumstances of
Botello’s statement.5 The court also offered “to sign a removal order” and “bring
[Botello] here” to testify about the circumstances of his statement.6 Defense counsel did
not follow up on either of the court’s offers to mitigate the lack of prior opportunity for
investigation. Nor did defense counsel request a continuance to locate and interview the
paramedics and Salguera.
       We discern no abuse of discretion by the trial court in how it dealt with Miles’s
assertions of prejudice because the late disclosure provided no opportunity to investigate.
Miles cannot now credibly claim that he was prejudiced by the late disclosure and


       5
          During the hearing, the prosecutor confirmed that Arroliga remained under
subpoena and was subject to recall.
        6
          The court also suggested that defense counsel contact Botello’s appellate
counsel “to ask whether he’d be willing to let you talk to him” but conceded that he
probably would not “because there would be Fifth Amendment issues with respect to any
complicity he may have had in this incident.” The court finally concluded: “my guess is
that there’s no way that you’re going to get anything from . . . Botello no matter what,
whether you brought him here, whether you talk to his counsel.”


                                             11
consequent lack of opportunity to interview Salguera and the paramedics when defense
counsel showed no interest in interviewing Arroliga, a witness who was available.
II. CALCRIM No. 1403
       Miles also contends that there was insufficient evidence to support the jury’s use
of evidence of gang activity in determining whether Miles actually believed in the need to
defend himself or in reaching a conclusion about Miles’s credibility generally. We
disagree and conclude that sufficient evidence supported the instruction.
       The trial court instructed the jury, using CALCRIM No. 1403, as follows: “You
may consider evidence of gang activity only for the limited purpose of deciding whether:
[¶] The defendant acted with the intent, purpose, and knowledge that are required to
prove the gang-related crimes and enhancements charged; or [¶] The defendant had a
motive to commit the crimes charged; or [¶] The defendant actually believed in the need
to defend himself. [¶] You may also consider this evidence when you evaluate the
credibility or believability of a witness and when you consider the facts and information
relied on by an expert witness in reaching his or her opinion. [¶] You may not consider
this evidence for any other purpose. You may not conclude from the evidence that the
defendant is a person of bad character or that he has a disposition to commit crime.”
A. Credibility
       CALCRIM No. 1403 was at issue in People v. Samaniego (2009) 172 Cal.App.4th
1148 (Samaniego), cited by Miles. In that case the defendant also contended “that
instructing the jury in accordance with CALCRIM No. 1403 was erroneous. He argue[d]
that it was improper to allow the jury to consider gang expert testimony as to motive and
witness credibility . . . and that such evidence should have been limited to proof of the
gang enhancement.” (Id. at p. 1167.) The defendant argued that the subjects of motive
and witness credibility in the instruction “do not apply unless the evidence unique to the
case supports them.” (Id. at p. 1168.)
       The Samaniego court found that the evidence “supported instructing the jury that it
could consider gang evidence on the issue of witness credibility. At trial, several
witnesses testified differently than at the preliminary hearing or in prior statements given


                                             12
to police. . . . The disparities in the witnesses’ testimony justified use of gang evidence to
provide a plausible explanation for them.” (Samaniego, supra, 172 Cal.App.4th at p.
1169.)
         As with the witnesses in Samaniego, Miles’s testimony at trial differed from a
prior statement made to police. At trial, Miles admitted to shooting Coca, but claimed
that the shooting was in self-defense. However, when interviewed by police after his
arrest, Miles claimed not to have been present and suggested that Coca had been shot
because Coca had shot Botello earlier that year. This discrepancy directly placed Miles’s
credibility at issue and the evidence of gang activity was relevant to the jury’s decision
whether to believe that Miles was more forthcoming about motive at the time of his arrest
(even while still denying involvement) or at trial. The evidence of gang activity would
tend to explain why, even when another explanation for Coca’s shooting might have been
more advantageous, explanation of the shooting as retribution was the motive that Miles
originally suggested.
         We find ample justification in the evidence for the jury’s use of gang evidence to
reach a determination as to Miles’s credibility. Miles seeks to distinguish Samaniego
from his own case because in Samaniego it was not the defendant’s own credibility that
was at issue. However, we find nothing in the reasoning of Samaniego, or in other cases
that have found gang activity evidence to be relevant on the issue of credibility,7 that
would bar the use of such evidence when the defendant’s own credibility is at issue.
B. Belief in the Need to Defend
         Miles also contends that there was no evidence supporting the use of evidence of
gang activity for the purpose of determining whether he actually believed in the need to
defend himself. We find it impossible to separate the questions of Miles’s credibility, his

         7
         Samaniego cited People v. Ayala (2000) 23 Cal.4th 225, 277, and People v.
Sanchez (1997) 58 Cal.App.4th 1435, 1450, for the proposition that “[g]ang evidence is
also relevant on the issue of a witness’s credibility.” (Samaniego, supra, 172
Cal.App.4th at p. 1168.) Miles discusses both cases to show that it was not the
defendant’s credibility that was at issue. This is true, but Miles points to nothing in the
reasoning of these cases that would not apply to a testifying defendant’s own credibility.


                                              13
belief in the need to defend himself, and the actual motive for Miles’s shooting of Coca.
On the facts of this case, the answer to one of these questions would determine the
answers to the others.
       The prosecution theory was that the motive for Miles’s shooting of Coca was
retaliation for Coca’s earlier shooting of Botello and Salguera. “Gang evidence is
relevant and admissible when the very reason for the underlying crime, that is the motive,
is gang related.” (Samaniego, supra, 172 Cal.App.4th at p. 1167.) Evidence of gang
activity was relevant and admissible on the issue of motive in this case, as well as on the
issue of Miles’s credibility, as discussed above. Because the question of whether Miles
actually believed in the need to defend himself is inextricably intertwined with the issues
of motive and his own credibility, we conclude that there was evidentiary support in this
case for the use of evidence of gang activity for the purpose of deciding whether Miles
actually believed in the need to defend himself.
III. The Hypothetical Question Posed to Palmieri
       Finally, Miles also contends that the trial court erred by allowing Palmieri to state
an opinion about Miles’s intent. That is not what happened.
A. Background
       The prosecutor posed a hypothetical question to Palmieri: “If a Norteño gang
member came to a party where he knew a person that he believed had shot another
Norteño was present, and found him about to fight another individual, and the Norteño
shot the person six times, killing him in front of a crowd of people, while the Norteño
was wearing Exhibit 5A,[8] or something similar, and a red bandana was found in the
street later . . . , in your opinion, would that Norteño be acting for the benefit of, at the
direction of, or in association with the Norteños?.” Palmieri answered, “Yes.” The
prosecutor continued: “And in your opinion, would the Norteño be acting with the intent


       8
          Exhibit 5A was a pair of black and red Girbaud jeans that police found on the
floor of Miles’s bedroom in a search of his house on November 8, 2007. A gunshot
expert found particles consistent with gunshot residue on the pants and Bonnett testified
that the shooter wore pants “something like” exhibit 5A.


                                               14
to promote, further, or assist in criminal conduct by the Norteño gang member?” Defense
counsel objected and the court overruled the objection, after which Palmieri answered,
“Yes.”
         Defense counsel renewed his objection and after a discussion, out of the presence
of the jury, the court sustained the objection. When the jury returned, the prosecutor
returned to the hypothetical and asked additional questions, without objection. The court
never told the jury that defense counsel’s objection had been sustained and that they
should disregard Palmieri’s answer concerning the intent of the hypothetical Norteño.
B. The Hypothetical Question Posed to Palmieri Was Proper
         “Generally, an expert may render opinion testimony on the basis of facts given ‘in
a hypothetical question that asks the expert to assume their truth.’ [Citation.] Such a
hypothetical question must be rooted in facts shown by the evidence, however.” (People
v. Gardeley (1996) 14 Cal.4th 605, 618 (Gardeley).)
         “Otherwise admissible expert opinion testimony which embraces the ultimate
issue to be decided by the trier of fact is admissible. (Evid. Code, § 805.) This rule,
however, does not permit the expert to express any opinion he or she may have.
[Citation.] ‘ “Undoubtedly there is a kind of statement by the witness which amounts to
no more than an expression of his general belief as to how the case should be
decided . . . . There is no necessity for this kind of evidence; to receive it would tend to
suggest that the judge and jury may shift responsibility for decision to the witnesses; and
in any event it is wholly without value to the trier of fact in reaching a decision.” ’ ”
(People v. Killebrew (2002) 103 Cal.App.4th 644, 651 (Killebrew), disapproved in part in
People v. Vang (2011) 52 Cal.4th 1038, 1047-1048 (Vang).)
         Miles relies primarily on Killebrew for the proposition that it is not legitimate,
even in a hypothetical question, to explore the question of intent. However, in Vang the
California Supreme Court made it clear that Killebrew, while correct in finding that an
expert may not testify regarding whether the specific defendant acted for a gang reason,
does not place any limitation on hypothetical questions. We quote at length from Vang.



                                               15
       “We discussed Killebrew in People v. Gonzalez (2006) 38 Cal.4th 932,
(Gonzalez). In Gonzalez, the defendant argued that testimony by the gang expert
(Sergeant Garcia) violated Killebrew by expressing an opinion, in response to
hypothetical questions, regarding whether some of the witnesses had been intimidated by
gang members. We rejected the argument. ‘Sergeant Garcia merely answered
hypothetical questions based on other evidence the prosecution presented, which is a
proper way of presenting expert testimony.’ (Gonzalez, supra, at p. 946, citing Gardeley,
supra, 14 Cal.4th at p. 618.) We explained that the ‘witness did not express an opinion
about whether the particular witnesses in this case had been intimidated. [Citation.] [¶]
It is true that Sergeant Garcia’s opinion, if found credible, might, together with other
evidence, lead the jury to find the witnesses were being intimidated . . . . But this
circumstance makes the testimony probative, not inadmissible.’ (Gonzalez, supra, at p.
947.)[9]
       “We explained Killebrew’s limited significance. ‘[Killebrew, supra, 103
Cal.App.4th 644] is somewhat unclear in this regard. Although its legal discussion states
that the expert “informed the jury of his belief of the suspects’ knowledge and intent on
the night in question,” its factual account states that “[t]hrough the use of hypothetical
questions, Darbee [the expert] testified that each of the individuals in the three cars” had
certain knowledge and intent. (Id. at p. 658.) The opinion never specifically states
whether or how the expert referred to specific persons, rather than hypothetical persons.
Obviously, there is a difference between testifying about specific persons and about
hypothetical persons. It would be incorrect to read Killebrew as barring the questioning
of expert witnesses through the use of hypothetical questions regarding hypothetical
persons. As explained in People v. Gonzalez, supra, 126 Cal.App.4th at page 1551,




       9
         “Throughout our discussion, we cited with approval People v. Gonzalez [(2005)]
126 Cal.App.4th 1539 (a different Gonzalez ), which stated the relevant law and
discussed Killebrew correctly.”


                                             16
footnote 4, use of hypothetical questions is proper.’ (Gonzalez, supra, 38 Cal.4th at p.
946, fn. 3, italics added.)[10]
         “To the extent that Killebrew, supra, 103 Cal.App.4th 644, was correct in
prohibiting expert testimony regarding whether the specific defendants acted for a gang
reason, [fn. omitted] the reason for this rule is not that such testimony might embrace the
ultimate issue in the case. ‘Testimony in the form of an opinion that is otherwise
admissible is not objectionable because it embraces the ultimate issue to be decided by
the trier of fact.’ (Evid. Code, § 805 [citations].) Rather, the reason for the rule is similar
to the reason expert testimony regarding the defendant’s guilt in general is improper. ‘A
witness may not express an opinion on a defendant’s guilt. [Citations.] The reason for
this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony
often goes to the ultimate issue. [Citations.] “Rather, opinions on guilt or innocence are
inadmissible because they are of no assistance to the trier of fact. To put it another way,
the trier of fact is as competent as the witness to weigh the evidence and draw a
conclusion on the issue of guilt.” ’ [Citations.]” (Vang, supra, 52 Cal.4th at pp. 1047-
1048.)
         Vang makes it quite clear that Killebrew may not be read to place a limitation on
the hypothetical questions placed to an expert witness. While it would have been
improper, under Killebrew, to question Palmieri about Miles’s intent, Vang makes clear




         10
          “. . . [¶] The defendant in Gonzalez, supra, 38 Cal.4th 932, relied on
Killebrew, supra, 103 Cal.App.4th 644, to argue the trial court had erred in permitting
hypothetical questions. We rejected the argument, partly on the basis that it is incorrect
to read Killebrew as prohibiting the ‘questioning of expert witnesses through the use of
hypothetical questions.’ (Gonzalez, supra, at p. 946, fn. 3.) The comment in Gonzalez in
question thus directly responded to the defendant’s argument and was necessary to fully
explain why that argument lacked merit.
       “In any event, we repeat what we said in Gonzalez: We disapprove of any
interpretation of Killebrew, supra, 103 Cal.App.4th 644, as barring, or even limiting, the
use of hypothetical questions. Even if expert testimony regarding the defendants
themselves is improper, the use of hypothetical questions is proper.”


                                              17
that asking Palmieri about the intent of a hypothetical Norteño in a hypothetical situation
is not the same thing.
       Miles counters that “Vang allows an expert to answer a hypothetical question as to
whether a crime would benefit a gang, or whether the crime would be ‘gang-related
activity.’ That is a different question than whether the defendant, or a hypothetical
Norteño, acted with the required specific personal intent.” Miles reads Vang far too
narrowly; Vang’s discussion of hypothetical questions and Killebrew are not limited to
the specific hypothetical questions that were at issue. As Vang stated: “We disapprove
of any interpretation of Killebrew . . . as barring, or even limiting, the use of hypothetical
questions.” (Vang, supra, 52 Cal.4th at pp. 1047-1048, fn. 3.)
       We conclude that the hypothetical question posed to Palmieri was proper. The
court initially overruled defense counsel’s objection and there was no abuse of discretion
in that ruling. Although the court reversed itself and sustained defense counsel’s
objection, the jury was not informed. The result, as far as the jury was concerned, was
that defense counsel’s objection was overruled and Palmieri’s answers to the hypothetical
questions remained in evidence. There can be no prejudicial error in that result because
the question was proper and Palmieri’s answer was admissible.11
IV. Cumulative Error
       Because we have found Miles’s assertions of error to have no merit, we need not
consider his argument that the cumulative prejudice of the claimed errors requires
reversal.
                                      DISPOSITION
       The judgment of the trial court is affirmed.




       11
          When the prosecutor addressed Miles’s specific intent to benefit the gang in
closing argument, he did not refer to Palmieri’s answer concerning the intent of the
hypothetical Norteño. This is an additional indication that Miles was not prejudiced.


                                              18
                                              _________________________
                                              Brick, J.*


We concur:


_________________________
Haerle, Acting P.J.


_________________________
Richman, J.




      * Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



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