P. v. Flores

P. v. Flores >



















Filed 8/5/10 P. v. Flores
CA2/4









NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 FOUR






>

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL J. FLORES, Defendant and Appellant.

B215304 (Los Angeles County Super. Ct. No. TA086229)

APPEAL from a judgment of
the Superior Court of Los Angeles
County, Gary R. Hahn, Judge.
Affirmed.

Cheryl Barnes Johnson, under
appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr.,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Tannaz
Kouphpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.



Appellant and defendant Michael J.
Flores was convicted of attempted murder. In addition, the jury found true the
allegation that the crime had been committed for the benefit of a gang. On appeal, defendant contends substantial
evidence does not support the jury’s verdict and finding, and that the trial
court erred in admitting into evidence a jailhouse conversation between
defendant and his girlfriend. We
disagree and affirm.



>FACTUAL AND PROCEDURAL BACKGROUND

A. Information

Defendant was
charged by information, along with codefendants James Douglas Cox and Harold S.
Carey, with the attempted willful, deliberate and premeditated murder of Carlee
Jackson (Pen. Code, § 664/187, subd. (a)).[1] The information further alleged that Cox
personally and intentionally discharged a firearm within the meaning of section
12022.53, subdivisions (b) through (d), and that a principal to the crime: (1) personally and intentionally discharged a
firearm which caused great bodily injury within the meaning of section 12022.53,
subdivisions (d) and (e)(1); (2) personally and intentionally discharged a
firearm within the meaning of section 12022.53, subdivisions (c) and (e)(1);
and (3) personally used a firearm within the meaning of section 12022.53,
subdivisions (b) and (e). The
information also alleged, pursuant to section 186.22, subdivision (b)(1)(C),
that the offense was committed “for the benefit of, at the direction of, and in
association with a criminal street gang
with the specific intent to promote, further and assist in criminal conduct by
gang members.”





B.
Evidence at Trial

1. Prosecution’s
Case

a. Carlee
Jackson

Jackson testified that he was an inactive
member of the Tree Top Piru (Tree Top) gang.
On May 27, 2006, he was living on Hickory Street in Compton in a household that included his
mother and his sister, Erica Conner. Jackson left the house at approximately 9:00 a.m. to walk to a liquor store located
around the block on Rosecrans. When he
went inside the store, he saw codefendant Carey, whom he knew as “Booty.” Jackson had seen Carey around the
neighborhood many times and was aware that Carey was a member of the Fruit Town
Piru (Fruit Town) gang, a rival of Tree Top, whose
claimed territory was on the other side of Rosecrans. Carey was alone.

Carey said to Jackson:
“What’s the Fruits like.” Jackson interpreted this as Carey’s way of
letting Jackson know that he (Carey) was a member of Fruit Town and as an implicit threat or
challenge. Jackson replied: “Well, so what.” Carey left the store. Jackson made his purchases and began walking
home, west on Rosecrans.

As Jackson turned onto Hickory Street, he saw a burgundy four-door car
parked just south of Rosecrans. Inside
the vehicle were defendant, Carey, and codefendant Cox, whom Jackson knew as “Cheeks.” Defendant was in the driver’s seat, Cox was
sitting next to him, and Carey was in the back seat. Jackson knew defendant and Cox well, having
seen them hundreds of times around the neighborhood. Jackson had also seen defendant driving the
burgundy car on more than one occasion in the past, with Cox or Carey as
passengers. Jackson believed that both defendant and Cox
were members of Fruit Town.
Cox had, on a prior occasion, confronted Jackson outside the liquor store and told Jackson to tell his brother Jimmy that Cox
was going to “smoke his ass.” Jackson also recalled multiple occasions
when Cox yelled “fuck Tank Tops” while passing Jackson on the street.[2]

When Jackson saw the burgundy car with the
defendants inside, he froze. Cox got out
of the car, pulled the hood of his sweatshirt over his head and reached into
his waistband. Jackson turned and ran. He heard multiple gunshots and heard Cox
say: “Fuck Tank Tops.” Jackson ducked into a nearby barbershop and
hid. He asked a woman to call 911. He realized he had been shot - in the hip
and buttocks - when law enforcement personnel arrived.[3]

Jackson’s sister, Erica, came into the
barbershop. Jackson told her he had been shot by the
“Fruit Loops.”[4] However, when deputies questioned him, Jackson said he had been shot by “some
Mexicans” belonging to the “T-Flats” gang.[5] Jackson gave the deputies misinformation
because he was afraid of being labeled a snitch, which would have put him and
his family in jeopardy.

Approximately
one month after the incident, Jackson was arrested for possession of an
assault rifle. Interviewed by detectives
at that time, Jackson told them that Cox had shot him and
also told them of defendant’s and Carey’s involvement. The detectives had not offered Jackson any type of deal or made any
promises of leniency prior to his conversations with them. The detectives did not suggest that Jackson identify any particular person as
having been involved in the shooting.

b. Erica
Conner

Erica Conner
was called to testify. In response to
the prosecutor’s questioning, she initially denied seeing a burgundy four-door
vehicle driven by defendant, recognizing Cox or Carey inside, hearing gunshots,
or seeing Cox get out of the car and shoot someone.[6] She admitted, however, that in an interview
approximately one month after the shooting, she had told a detective that she
had seen the burgundy car with Cox and Carey inside and observed Cox shoot at Jackson.
In addition, she admitted that during the interview she had identified
Cox and Carey in photographic lineups and had tentatively identified defendant
as the driver. Conner testified that
when she ran to her brother after he was injured, he had said “Fruit Town got me.”

The prosecutor
read Conner’s testimony from the preliminary hearing in which she described
seeing a burgundy, four-door car. Conner
had also described seeing a light skinned African-American man jump out and
shoot at Jackson.[7] According to her preliminary hearing
testimony, the shooter looked like Cox, but was not Cox. The prosecutor also read preliminary hearing
testimony in which Conner said that Carey was in the car, but did not shoot a
weapon and that everything she told the detective in the June 2006 interview
was the truth.

Conner’s June
2006 interview with detectives was played to the jury. In it, Conner stated that she saw members of Fruit Town shoot her brother on the morning of
May 27. Conner specifically identified
“Cheeks” (Cox) as the shooter. Prior to
the shooting, she had seen the car circle the block where she and Jackson
lived. The occupants appeared to be
“looking for somebody.” Conner was
standing in front of her house, five to seven houses from the corner where the
car was parked. Conner could not
definitely identify defendant as the driver.
However, she had seen Carey and a Hispanic “dude with a ponytail” in the
burgundy car a few weeks later, on the day another gang member was killed.[8] Conner tentatively identified defendant as
the man she had seen with Carey on that occasion.[9] Conner also informed Detective Rodriguez that
three years earlier, she heard Cox threaten to “kick [the] ass” of Conner’s
brother Jimmy.



c. Detective
Q Rodriguez

Detective Q
Rodriguez interviewed Erica Conner in June 2006, while she was in a juvenile
facility. He also transported Conner to
court for the preliminary hearing in October 2006. Two Tree Top gang members were present at the
hearing, including Conner’s uncle, Dwayne Cowens. Rodriguez described Cowens as “a shot
shooter” and “a killer . . . on parole.” There were also several Fruit Town gang members present at the
preliminary hearing, including Cox’s sister, Mimi.[10] Immediately after seeing the gang members,
Conner told Rodriguez she could not testify.
After the hearing, she was interviewed again.[11] In the second interview, also recorded and
played to the jury during trial, Conner apologized for lying. She explained that she had become “scared”
and “everything just went blank.” In
addition, she expressed concern that her mother could be killed. During this interview, Conner stated that
after seeing the defendants in court, she recognized Carey and Cox as having
participated in the shooting, but not defendant.

Detective
Rodriguez was also the prosecution’s gang expert. He described Fruit Town as a criminal gang of over 200
members involved in crimes such as murder, armed robbery, burglary and the sale
of PCP. He described predicate crimes
committed by Fruit Town gang members, including Steven Cheatham,
Cox’s cousin. He explained that Fruit Town was engaged in rivalries with
numerous gangs, including Tree Top and Tortilla Flats. The territory claimed by Tree Top bordered
the territory claimed by Fruit Town.


Detective
Rodriguez identified defendants, Cox and Carey as members of Fruit Town.[12] Defendant had come to Rodriguez’s attention
as the victim of a shooting on May 13 or 14 of 2006. All three defendants had tattoos, which
Detective Rodriguez identified as being Fruit Town gang-related. Detective Rodriguez described a set of
apartments on Rosecrans, known as the Alley or Hell Hole, as a stronghold for
Fruit Town, where numerous shootings, murders, attempted murders, and arrests
occurred, including defendant’s shooting.
He stated that according to gang records in his custody, all three
defendants had been located and confronted by authorities in those
apartments.

Asked to
assume the facts established by the evidence in the case, Detective Rodriguez
expressed the opinion that the crime was committed for the benefit of Fruit Town.
He explained that it benefitted Fruit Town by causing fear and intimidation
among rival gang members and potential witnesses, and enhanced the gang’s
reputation by showing that its members had the courage and daring to enter a
hostile gang’s territory and shoot a member of the rival gang. He also explained that the words Carey spoke
to Jackson in the liquor store could be
construed as a challenge or threat.



d. Defendant’s
and Cox’s Telephone Calls[13]

(1) Defendant’s
Telephone Call

The
prosecution played a recording of a telephone call between defendant and his
girlfriend which took place while defendant was incarcerated, awaiting
trial. During the conversation,
defendant repeatedly denied having done anything wrong. However, at one point he said: “I didn’t do this shit intentionally.” At another point, he said: “[I]f somebody comes, it’s just out of
nowhere, I mean just hypothetically speaking, say I was with you that night,
that day. And you know I’m with you.
. . . And they come say I did something, but you and me know
that we’ve been together. So, now I go
to jail, I come in contact with the police . . . .” His girlfriend responded: “That’s never happened.”

There were a
number of references to defendant being a gang member or hanging around gang
members during the recorded conversation.
For example, defendant’s girlfriend repeatedly reproved him for “the
company” he kept and “the people” he hung around. She said “you have to separate yourself from
that element” and “[y]ou have to learn that, to be a member, you don’t have to
be active.” When defendant said “[y]ou
make it seem like . . . I’m just some gang banging-ass nigga,”
she responded: “You are.” Flores protested her characterization of his involvement with
gangs, but did not deny being a gang member.



(2) Cox’s
Telephone Calls

The
prosecution played recordings of telephone calls Cox made from jail on August
30, November 8 and November 10, 2006.[14] In the recording from August 30, Cox asked
his sister Mimi whether a person he called “Old Girl” and “his sister”
(apparently referring to Erica Conner) was still in juvenile custody. Mimi said Conner was “cool” and “scared” and
was talking to Mimi. In the recording
from November 8, Cox spoke to “G-Wayne” about the “snitch” (apparently Jackson) who was possibly being hidden by
authorities.[15] Cox and G-Wayne also discussed the
possibility that Jackson was still in jail. G-Wayne said he was “trying to see who I can
send to the house,” apparently referring to Jackson’s and Conner’s mother’s
house. Cox said to his grandmother, who
came on the line briefly, “I might need you grandma. You hear me‌”
He then asked Mimi to “[t]ell grandma I[] need her
. . . to tell the truth on that day, when we was all over there
that morning for her birthday.” Later
during that same conversation, Cox said to G-Wayne: “Mimi be acting, like she is so stupid and
retarded . . . she don’t catch on to shit.” G-Wayne replied: “Yeah, she gotta catch on, your motherfucker
can’t be saying that shit over the phone.”[16]



2. Defense
Case

a. Cox’s
Defense

Cox called
Marquerra Dawson, his cousin. She
testified that on their grandmother’s birthday, Cox was at the grandmother’s
house, cooking chicken. Mary Ophelia Bellows,
Cox’s grandmother, testified that her birthday falls on May 27 and that Cox
spent the night of May 26, 2006, at her house. After he awoke, he and his uncle went to buy
food. When they returned, Cox cooked
chicken for the family. Trena Lawson, a
defense investigator, testified concerning the difficulty she had seeing the
crime scene from the location where Conner was reportedly standing when the
shooting took place.



b. Defendant’s
Defense

Defendant
called Marquis Green, who claimed to be the owner of the burgundy car
identified by Jackson as the one used by the defendants
when he was shot. Green testified that
the car had not been operational since 2005, and that he had never let
defendant or anyone else use the car.



>DISCUSSION

A. Substantial
Evidence Supports Defendant’s Guilt As an Aider and Abettor

Defendant’s
guilt was based on aiding and abetting Cox, the shooter. “[A] person aids and abets the commission of
a crime when he or she, acting with (1) knowledge of the unlawful purpose of
the perpetrator; and (2) the intent or purpose of committing, encouraging, or
facilitating the commission of the offense, (3) by act or advice aids,
promotes, encourages or instigates, the commission of the crime.” (People
v. Beeman (1984) 35 Cal.3d 547, 561.)
An aider and abettor is chargeable as a principal. (People
v. Sully (1991) 53 Cal.3d 1195, 1227.)
“‘Whether defendant aided and abetted the crime is a question of fact,
and on appeal all conflicts in the evidence and reasonable inferences must be
resolved in favor of the judgment.’” ( >People v. Campbell (1994) 25 Cal.App.4th
402, 409, quoting People v. Mitchell
(1986) 183 Cal.App.3d 325, 329.)

The
defendant’s intent to aid and abet “may be inferred from all of the
circumstances,” including the defendant’s “companionship” and “his conduct
before and after the offense.” ( >People v. Laster (1971) 18 Cal.App.3d
381, 388-389; accord, People v. Campbell,
supra, 25 Cal.App.4th at p. 409; see In
re Jose D. (1990) 219 Cal.App.3d 582, 585 [evidence sufficient to support
finding of accomplice culpability on all counts where, after verbal
confrontation with first two victims of assault, defendant/driver maneuvered
car to within three feet of them as companion pointed gun and thereafter parked
car in front of third victim immediately before companion shot him]; >People v. Chagolla (1983) 144 Cal.App.3d
422, 429 [“farcical” for defendant who, with his brother and others, drove past
victim’s house multiple times, during which brother poked rifle out car window,
to claim he was “oblivious [to] what was going on” when brother shot multiple
times into parked car and occupied house, seriously injuring young girl].) “[M]ere presence at the scene of an offense
is not sufficient in itself to sustain a conviction.” (People
v. Laster, supra, at p.
388.) It is, however, “a circumstance
which will tend to support a finding that an accused was a principal.” (Ibid.)


Contending
that the evidence showed only that he was “in a car with a person who got out
of the car and shot Jackson,” defendant argues that his
conviction must be reversed because there was insufficient evidence he had
knowledge of Cox’s intent and intended to assist in the commission of the
shooting. Defendant’s characterization
of the evidence is incorrect.

Defendant’s
conviction was not based on “mere presence at the scene” or companionship
alone. The prosecution presented
evidence that defendant, Carey and Cox all belonged to Fruit Town, a gang engaged in a violent rivalry
with Jackson’s gang - Tree Top - and that Fruit Town’s claimed territory bordered the
liquor store where Jackson was first confronted. The prosecution established that defendant
had been seen driving Carey and/or Cox in the burgundy car on other occasions,
including an occasion when Carey was armed.
The prosecution also established that Cox had directed threats toward Jackson’s family and yelled derogatory
comments about Tree Top at Jackson.
On the day of the shooting, defendant was driving his companions in the
burgundy car. Immediately prior to the
shooting, defendant’s companion Carey verbally confronted Jackson, issuing a gang challenge. A few minutes later, the three codefendants
were seen circling the block where Jackson lived, with defendant behind the
wheel. Conner stated that they appeared
to be “looking for somebody.” Defendant
parked the car, positioning it between Jackson’s home and the liquor store, where
they would be sure to see him as he walked home. The vehicle was parked off Rosecrans where Jackson would be unlikely to spot it until
he turned the corner onto Hickory.
Shortly after Jackson came around the corner, Cox stepped
out of the car and fired at him, yelling “Fuck Tank Tops” as he shot. This evidence was sufficient to demonstrate a
plan to confront and assault Jackson and that defendant was an active
participant in the plan. The evidence
was sufficient to support the jury’s conclusion that defendant aided and
abetted Cox’s attack on Jackson.



B. Substantial
Evidence Supports the Gang Allegation

Section
186.22, subdivision (b)(1)(C), the gang allegation charged against defendant,
imposes additional punishment for “any person who is convicted of a felony
committed for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist
in any criminal conduct by gang members.”
To impose the additional sentence, both parts must be established - (1)
that the offense was “committed for the benefit of, at the direction of, or in
association with any criminal street gang” and (2) that the defendant committed
the offense with “the specific intent to promote, further, or assist in any
criminal conduct” by members of the street gang. (See People
v. Gardeley (1996) 14 Cal.4th 605, 615-616 (Gardeley).)

“‘Criminal
street gang’” is defined as “‘any ongoing organization, association or group of
three or more persons, whether formal or informal, having as one of its primary
activities the commission of one or more’ criminal acts enumerated in
subdivision (e) of the statute, and which has ‘a common name or common
identifying sign or symbol, [and] whose members individually or collectively
engage in or have engaged in a pattern of criminal gang activity.’” (Gardeley,
supra, 14 Cal.4th at p. 616, italics
and fn. omitted, quoting § 186.22, subd. (f).)
“‘Pattern of criminal gang activity’ is defined as ‘the commission,
attempted commission, or solicitation of two or more’ . . . of
the offenses enumerated in [subdivision (e) of section 186.22] ‘provided at
least one of those offenses occurred after the effective date of this chapter
[September 26, 1988,] and the last of those offenses occurred within three
years after a prior offense, and the offenses are committed on separate
occasions, or by two or more persons.’”
(Gardelay, >supra, at p. 616, italics omitted,
quoting § 186.22, subd. (e).)

“‘Benefit’” as
it relates to section 186.22 is properly defined as “anything contributing to
an improvement in condition, advantage, help, or profit.” (In re
Alberto R. (1991) 235 Cal.App.3d 1309, 1322.) To support a true finding under section
186.22, “the record must provide some evidentiary
support, other than merely the defendant’s record of prior offenses and past
gang activities or personal affiliations, for a finding that the crime was
committed for the benefit of, at the direction of, or in association with a
criminal street gang.” ( >People v. >Martinez (2004) 116 Cal.App.4th 753, 762.)

Defendant does
not dispute that Fruit Town is a criminal street gang or that
its members engaged in the requisite predicate acts. He contends that there was insufficient
evidence that the shooting of Jackson was committed for the benefit of Fruit Town or that he had the specific intent
to benefit Fruit Town through his participation in the
crime. With respect to benefit in
general, defendant contends the “only evidence” offered to establish it was the
opinion testimony of Detective Rodriguez, and that the detective’s opinion was
untrustworthy because he believed “each and every crime committed by a gang
member is always for the benefit of the street gang.” Defendant’s assessment of Rodriguez’s
testimony is incorrect. As stated above,
Rodriguez explained that he believed the shooting benefitted Fruit Town because it enhanced Fruit Town’s reputation by showing that its
members had the courage and daring to enter a hostile gang’s territory and
shoot a member of the rival gang, and because it intimidated members of the
community. Rodriguez’s opinion
concerning benefit was supported by (1) the evidence of the ongoing rivalry
between Fruit Town and Tree Top; (2) the evidence that Cox had in the past made
derogatory remarks about Jackson’s gang and issued threats directed at Jackson’s
brother, a fellow Tree Top member; (3) the evidence that shortly before the
shooting, Carey issued a gang challenge to Jackson in the liquor store; (4) the
evidence that the liquor store was on the border between the two gangs’ claimed
territories; and (5) the evidence that Cox yelled “fuck Tank Tops” during the
shooting.

Defendant
seeks to compare this situation to those in People
v. Killebrew (2002) 103 Cal.App.4th 644, 652, where the gang officer
testified that “when one gang member in a car possesses a gun, every other gang
member in the car knows of the gun and will constructively possess the gun,”
and In re Frank S. (2006) 141
Cal.App.4th 1192, 1199, where the expert gave her opinion of the juvenile’s
specific reason for possessing a knife.
In each case, the court held that the expert invaded the province of the
trier of fact by testifying to his or her belief concerning the accused’s
intent. (People v. Killebrew, supra,
at pp. 657-658; In re Frank S., >supra, at p. 1199.) Officer Rodriguez did nothing of the kind
here. He testified concerning certain
historical facts - e.g., the existence of the Fruit Town/Tree Top rivalry, the
territory claimed by the gangs, and the gang membership and involvement of the
relevant individuals. He also explained
to the jury the meaning of Carey’s cryptic statement to Jackson and how shooting a rival gang member
benefits a gang. He did not attempt to
express an opinion concerning the internal mental state of any of the
defendants. In this regard, the
situation is analogous to that in People
v. Olguin (1994) 31 Cal.App.4th 1355, where the expert testified concerning
typical gang member reaction to a rival crossing out a gang’s graffiti or
shouting out a rival gang’s name; the court found that “[t]he reason for defendants
seeking out the person who crossed out their graffiti” and their “violent
response” to hearing someone yell a rival gang name “were matters sufficiently
beyond common experience to require interpretation by one having in-depth
knowledge of street gang.” ( >Id. at p. 1371; see also >People v. Vazquez (2009) 178 Cal.App.4th
347, 354 [expert testified that murder of non-gang member benefitted
defendant’s gang because “violent crimes like murder elevate the status of the
gang within gang culture and intimidate neighborhood residents who are, as a
result, ‘fearful to come forward, assist law enforcement, testify in court, or
even report crimes that they’re victims of for fear that they may be the gang’s
next victim or at least retaliated on by that gang . . . .’”]; >People v. Romero (2006) 140 Cal.App.4th
15, 19 [expert testified that shootings of African-American men benefitted
Latino gang by elevating status of shooters and their gang].) The same is true here. Officer Rodriguez’s opinions assisted the jury
in evaluating the evidence to determine whether the charged gang allegation was
supported, but did not tell the jurors how to decide the ultimate issue.

Defendant
alternatively contends that there was insufficient evidence of his intent - as
opposed to that of Cox or Carey - to support the gang enhancement. The evidence discussed above which supported
defendant’s culpability as an aider and abetter also supported the jury’s
finding with respect to the enhancement.
There was no need for the prosecutor to present evidence that defendant
personally confronted Jackson with a gang challenge or personally yelled
derogatory comments about Jackson’s gang.
The fact that his codefendants and fellow Fruit Town members did these things, and that
he assisted his codefendants by driving the car as they searched for Jackson and by locating a favorable position
from which to ambush him as he returned home from the liquor store, supported
the conclusion that defendant held the requisite intent to benefit Fruit Town.




C. The
Tape of Defendant’s Jailhouse Conversation Was Properly Admitted

As discussed,
the prosecution played a tape of a telephone conversation between defendant and
his girlfriend, which took place while defendant was incarcerated and awaiting
trial. Trial counsel raised relevance
objections to the contents of the tape when the prosecutor proposed introducing
it. Counsel also contended that large
portions of the tape were unduly prejudicial.
To demonstrate relevance, the prosecutor pointed to the discussions of
defendant’s gang membership, defendant’s statement that he did not “do this
shit intentionally,” and the statements intimating his girlfriend should say
she was with him “that night, that day” if “hypothetically” someone asked. The court agreed with the prosecution that
the conversation was relevant, and to the extent some of the statements were
difficult to comprehend or appeared to support defendant, the prosecutor would
be free to argue an interpretation that supported guilt and that defense
counsel would be free to argue the opposite.[17]

Defendant
asserts the trial court erred in allowing the prosecution to play the tape of
his jailhouse conversation with his girlfriend, contending the content was
irrelevant to any issue before the court or, to the extent it was relevant,
should have been excluded under Evidence Code section 352. Evidence is subject to exclusion under
Evidence Code section 352 if “its probative value is substantially outweighed by
the probability that its admission will (a) necessitate undue consumption of
time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.”
“[E]vidence is probative if it is material, relevant, and necessary. ‘[H]ow much “probative value” proffered
evidence has depends upon the extent to which it tends to prove an issue by
logic and reasonable inference (degree of relevancy), the importance of the
issue to the case (degree of materiality), and the necessity of proving the
issue by means of this particular piece of evidence (degree of
necessity).’” (People v. Thompson (1980) 27 Cal.3d 303, 318, fn. 20, disapproved
in part on another ground in People v.
Rowland (1992)4 Cal.4th 238.) A
trial court’s broad discretion in determining whether to admit or exclude
evidence under Evidence Code section 352 will not be overturned absent an abuse
of that discretion. ( >People v. Minifie (1996) 13 Cal.4th
1055, 1070.)

The taped
conversation was relevant for the reasons raised by the prosecutor at
trial: it was evidence of defendant’s
gang membership; one of his statements put him at the scene of the crime; and
his discussion with his girlfriend about what she might “hypothetically” say if
she were asked where he was “that night, that day” could be viewed as an
oblique attempt by someone who knew he was being taped to manufacture an
alibi. The evidence concerning gang
membership may have been somewhat cumulative.
It did not, however, subject defendant to undue prejudice as such
evidence was crucial to explain the motive for the shooting and to support the
gang enhancement. Accordingly, it was
properly before the jury. Defendant’s
acknowledgment of his gang membership, his participation and his possible
attempt to manufacture an alibi were not at all cumulative and were prejudicial
only to the extent they fairly supported a finding of guilt. Defendant appears to suggest that certain
portions of the conversation were unduly prejudicial because they served to
portray his relationship with his girlfriend in a negative light without
contributing to any issue. However, he
does not identify any specific portions that should have been redacted or
excised. Moreover, by hearing the entire
conversation, the jurors were better able to interpret the ambiguous parts on which
the prosecution relied. The trial court
was within its discretion to permit the entire tape to be played.



>DISPOSITION

The judgment
is affirmed.

>NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS









MANELLA,
J.



We concur:









WILLHITE, Acting P. J.









SUZUKAWA, J.







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