P. v. Cortes












Filed 3/23/17 P. v. Cortes CA6







NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

LEOPOLDO ALEJANDRO CORTES,

Defendant and Appellant.

H040743
(Santa Cruz County
Super. Ct. No. F12812)

I. INTRODUCTION
In February2008, a jury convicted defendant Leopoldo Alejandro Cortes of first degree murder (Pen. Code, § 187, subd. (a))[1] and found true an allegation that defendant personally used a deadly weapon (§ 12022, subd. (b)(1)). This court reversed the judgment in January 2011, finding that the trial court had improperly restricted the testimony of the defense psychiatric expert. (People v. Cortes (2011) 192 Cal.App.4th 873 (Cortes I).)
In November 2013, upon retrial, a jury found defendant not guilty of first degree murder but convicted him of second degree murder. The jury found true the deadly weapon allegation. In January 2014, defendant was sentenced to a prison term of 16 years to life.
On appeal, defendant contends the trial court erred by (1) instructing the jury that the owner, occupant, or agent of a home may use reasonable force to make a trespasser leave, (2) admitting gang evidence, and (3) improperly instructing the jury on how to consider evidence of uncharged offenses and gang evidence. For reasons that we will explain, we will affirm the judgment.
II. BACKGROUND
Defendant stabbed and killed Chris Carr at a high school party held on January 27, 2006. Defendant was prosecuted for murder, but he claimed he was guilty, at most, of voluntary manslaughter, because he was provoked and acted in the heat of passion or because he believed he needed to act in self-defense.
A. The Party
17-year-old Justine French,[2] a senior at Aptos High School, held a party on January 27, 2006, when her parents were out of town. The theme of the party was “truckers and trailer trash.” Justine personally invited her “core group of girls,” but she expected that word of the party would spread, such that “[a] lot of [the] senior class” would show up.
Justine had two older brothers, Casey and Tyler.Justine called Christen, Tyler’s then-girlfriend (and wife at the time of trial), to tell her about the party. Casey and Tyler brought Carr,Greg Gomez, and Forrest Gleitsmanto the party.
Justine met Carr for the first time that night. Carr told Justine that if she needed anything, “he had [her] back,”and he told Tyler that he would not let anything get out of hand.
According to Brandon Vega Larkin, there were more than 60 people at the party when he arrived around 10:00 p.m. He had been to other parties at the French residence, and he had heard about this party through “word of mouth.” Most people at the party were from Aptos High School.
The party was “festive,” with many people in costume. People played ping pong, hung out at the fire pit, and danced. However, as the night went on, people came inside the house, and particularly into the kitchen. This upset Justine, who decided she wanted the party to end. She anticipated that her closest friends would spend the night, but she intended to “make everyone [else] leave.” At that point, there were about 50 or 60 people at the party.
Some time after midnight,Justine “made a general announcement” in a loud voice, saying, “[T]he party is over, if you’re not staying here, time to go.” Christen also began asking people to leave, and some did.
Before asking people to leave, Justine had noticed a group of males that had recently arrived. The group included defendant, who was wearing a red beanie with a Santa Cruz West Side logo on it. Defendant was known by the nickname “Butters,” which was given to him when he was younger and a little heavyset.
Defendant’s group also included Taurean Jacobs, Mike Hernandez, Dylan Ramey, and Eric Pridemore. Defendant had attended Aptos High School previously but was not a student there at the time of the party. Jacobs had graduated from Aptos High School in 2005. Hernandez had left Aptos High School before 2005 without graduating.
Christen thought defendant’s group “looked like gangsters,” and Gleitsman likewise described the group as “gangster or thuggish.” No one in the group was in costume. Justine was “confused as to why they would be at [her] house,” since she had never really talked to any of them. The group did not seem to be participating in the party activities. According to Christen, the group’s demeanor indicated they were “looking for trouble.”
At the time of Justine’s announcement, the group of males was in the kitchen and would have heard her request that they leave. Christen also went over to the group and asked them to leave. The group did not leave, however. Other people also seemed to ignore Justine’s announcement.
Justine asked Carr, “Can you help,” explaining, “No one is listening to me.” Christen also asked Carr to help her get “guys out of here.”Carr began asking people to leave, as did Casey, Gomez,Gleitsman, and French family friend Brianna Brownsfield.
Gleitsman and Gomez told defendant’s group to leave, but they just “stood there.” Defendant asked Gomez, “who are you” and said he was “Alex Cortes from the Westside.” Defendant put his hand out, and although his body language was “a little aggressive,” Gomez shook his hand. Gomez raised his voice and repeated that defendant and his friends needed to leave, but Christen came over and said “everything is okay,” indicating that the group could stay.
Aaron Gates pulled defendant outside. Defendant was upset, so Gates tried to calm defendant down. Referring to chewing tobacco, Gates suggested that defendant “pack a chew.” Defendant replied, “I’m already packing” and lifted the front of his shirt to reveal a knife handle. Gates then heard a commotion from inside the house, and defendant said, “I got to go” and went back into the house.
B. The Stabbing
After defendant returned to the kitchen, Carr asked him to leave, saying “you guys need to go.” Defendant and his friends did not leave however; they “[j]ust kind of stood there.” The encounter became more heated. Defendant and Carr were “in each other’s faces,” yelling aggressively and “claiming” Watsonville. Carr told defendant to “get the fuck out.”Defendant moved towards Carr, puffed out his chest, and said, “fuck you, West Side Santa Cruz[,] fool.” Carr responded, “I don’t give a fuck about West Side.”
As Carr yelled at defendant, some spit from his mouth hit defendant’s face. Defendant then “charged” at Carr, pushing Carr into a wall in the hallway. Carr also got punched in the head.
Defendant and Carr “went to the ground together.” At one point, Carr was on top of defendant, and defendant was punching Carr from underneath. However, most of the fight involved pushing and wrestling, without any blows being thrown.
After wrestling on the ground for about 30 seconds to a minute, defendant and Carr managed to stand up. At that point, defendant had a knife in his hand; he had pulled it from his waistband area in a manner that indicated he did not want anyone to see what he was doing. Defendant and Carr then fought again, and defendant stabbed Carr. Shortly thereafter, Carr fell down, face-first, bleeding.
Gleitsman went over to Carr and yelled out, “oh, my God, he’s been stabbed, he’s been stabbed.” He told someone to call 9-1-1. Defendant’s group had left the house at that point.
C. Testimony of Defendant’s Girlfriend
Defendant’s girlfriend, Julia Mark, picked defendant up later that night. In the car, defendant told Mark that “some shit went down” and that he had stabbed someone once or twice during a fight. Defendant did not say that he had been in fear for his life or that he was protecting someone else.
Defendant lived with his sister and her husband, Tony Cardenas, on Younglove Avenue on the west side of Santa Cruz. According to Mark, Cardenas was involved in gangs. Defendant looked up to Cardenas and considered him a big brother, but Mark was not sure whether defendant himself was involved in a gang. Mark had once heard defendant say, “Westside, mother fucker” to someone at a flea market.
Mark drove defendant home after picking him up. When they arrived, Cardenas told defendant to take off his clothes, and then washed them and helped clean blood from defendant’s shoes.
Mark knew that defendant regularly carried knives. Mark and defendant had a “pretty volatile” relationship.
D. Investigation and Defendant’s Interview
Witnesses identified defendant as the person who had stabbed Carr. A red knit hat with a “WS” and “Santa Cruz” logo was found in the kitchen of the French residence,and a knife with a four-inch blade was found outside the residence, at the edge of a pond. DNA from the knife blade matched Carr.
Defendant was arrested later on the morning of January 28, 2006, while sitting in a car outsideof his home. The car contained photographs of defendant flashing gang signs and a CD case on which defendant had written “Westside.” Inside the residence, officers found wet clothing in the washing machine, red and black sneakers next to a bottle of bleach, a red Oakland A’s hat, a red beanie with a Westside logo, a red baseball cap with a Westside logo and gang writing inside, and a white San Francisco Giants baseball cap with Norteño gang writing “all over it.”
Defendant’s interview at the police station was played for the jury at trial. During the interview, defendant was wearing a red sweatshirt with a “WS” logo on the back, which stood for Westside. During a break in the interview, defendant turned his sweatshirt inside-out. Defendant also had tattoos on his fingers: he had one dot on one finger of one hand, and he had one dot on four fingers of the other hand.
At the beginning of the interview, DetectiveHenry Montes[3]advised defendant of his Miranda rights; defendant indicated he understood his rights and agreed to talk. Defendant claimed that on the night of the party, he had been “sitting at home” with his girlfriend. He denied having gone to a party. Detective Patrick Dimick told defendant that people at the party had recognized defendant and that defendant’s story was not consistent with information from defendant’s own girlfriend and family. Defendant then admitted he had gone to the party but claimed he had “nothing to do with the fight.”He claimed that the fight involved one of his friends and “some guy.” He then stated that during the fight, he had been “shoved” and had “pushed back, but that was it.” Defendantindicated that some people at the party did not like him, including “South-Siders.” He admitted that he often carried knives “to protect [him]self.”
After Detective Dimick told defendant that DNA evidence was “going to be coming” and that defendant’s friends were going to give statements, defendant admitted that he had pushed Carr after a “little conversation.” Detective Montes asked if defendant was afraid of something. Defendant replied, “I have a lot of fear” and explained that his parents had done “bad shit” when he was growing up. Defendant had chosen to be “a gangster.”
Defendant gave a variety of descriptions of the stabbing. At one point he told an officer that he was showing his knife to a friend, and that he had begun punching people around him without realizing the knife was still in his hand. At another point, defendant said he did not know why he stabbed Carr, claiming, “it just . . . slipped in . . . .” Defendant also asserted that Carr had fallen into the knife, but he then admitted stabbing Carr multiple times in the back and chest. Defendant claimed he “just didn’t think about it” as he was stabbing Carr. He claimed he heard screams and heard his friend say that he had been spit on, and that there were “like three people” on him during the fight.
After the interview, police took a DNA sample from defendant’s cheek. Defendant was also examined; he had no injuries.
Defendant was allowed to make a phone call, during which he stated that “everyone ratted” on him and that he was “going to be locked up for a long time.” The person on the other end of the line told him, “[I]t was self defense,” and defendant replied, “It was self defense.” Defendant was then transported to the hospital for a blood draw. On the way to the hospital, defendant stated that he was going to retain a particular defense attorney and “go with the self-defense thing.”
Dr. Richard Mason performed an autopsy on Carr. Carr had a bruise on his eye, a cut on his lip, and some abrasions. Carr had sustained five stab wounds in the front of his chest, seven stab wounds in his back, and one stab wound in the back of his left forearm. One chest wound had penetrated his heart, and two of the back wounds had penetrated his lungs. Dr. Mason opined that Carr had died due to stab wounds to the heart, chest, and abdomen, which had caused blood to collect in the pericardial sac and chest cavities.
E. Gang Expert Testimony
Detective Montes testified that Norteño gangsters affiliate with the color red, the number 14, and the letter N. Members of the Westside Santa Cruz Norteño gang often had tattoos of the number 14 and the letter N, plus “WS” for Westside and “SC” for Santa Cruz. Often, Westside Santa Cruz Norteño gang members had tattoos on their hands: one dot on one hand, and four dots on the other hand. These gang members often wore sweatshirts with the “WS” logo. Detective Montes believed that defendant turned his sweatshirt inside out during the police interview in order to hide his gang affiliation.
Santa Cruz County Sheriff’s Sergeant Roy Morales testified as the prosecution’s gang expert.[4] Westside Santa Cruz was a Norteño street gang that committed crimes including graffiti, battery, assault with a deadly weapon, homicide, and weapons possession. The Westside Santa Cruz gang adopted the Santa Cruz surfing apparel logo. Sergeant Morales believed that defendant was a member of the Westside Santa Cruz gang. The residence where defendant lived was in the Westside Santa Cruz Norteño territory.
Reputation and respect are important to gang members. A gang member can gain respect by winning a fight and can lose respect by losing a fight. Gang members often arm themselves so that they will not lose a fight. When a gang member is disrespected, he will lose respect if he does not react. If a gang member walks up to a rival and states his gang membership, and the rival says, “I don’t care about your gang,” the gang member will lose respect if he does not issue the gang challenge again or use violence. A gang member would feel disrespected if he said “what’s up Westside” to a non-gang member who responded, “I don’t care about the Westside.”
F. Evidence of Defendant’s Gang Membership and Gang Fights
Santa Cruz Sheriff’s Deputy Mark Pool,[5] who had been working as a School Resource Officer at Aptos High School, testified about several incidents involving defendant.[6]Deputy Pool first testified about a conversation he had with defendant on August 27, 2014. Defendant was in the area where Norteño students hung out. Defendant’s tattoos included the dots on his fingers, four dots on his elbow, and a “WS” tattoo on his upper arm. Defendant admitted he was a Westside Santa Cruz Norteño gang member. Defendant said he had been jumped in, and then jumped out, but that he was “still backing Westside and other Norteño gangs.”
On August 30, 2014, there was a gang-related fight on the Aptos High School campus. Deputy Pool interviewed defendant, who said that two of his friends had been “mad dogged” by a Sureño gang member that morning. Defendant and his friends later walked over to the area where Sureño gang members hung out. One Sureño gang member was sitting on a railing but jumped off as defendant’s group approached. Believing he was going to be jumped, defendant punched the Sureño in the face. Another Sureño then hit defendant, who punched that person in response. Defendant admitted he may have said that “it smelled like Sur rats” before the fight started, and that he had been yelling “Norte” during the fight.
On September 17, 2004, Deputy Pool met with defendant on the high school campus again. Defendant was wearing a red shirt and was in possession of a red and black baseball cap. The cap had “Westside, WS Santa Cruz” on the front and some gang writing on the inside.
On September 28, 2004, there was another fight on the Aptos High School campus. Defendant had fought with two Sureño gang members. One of the Sureños had looked at defendant, so defendant had said “what.” One of the Sureños had suggested they go into a bathroom. Defendant dropped his backpack and punched the Sureño in the face, then continued hitting him in the face and head, even after a teacher told him to stop. Defendant tried to push the Sureño over a railing. Defendant stated that if he had the chance, he would jump one of the Sureños again, and he threatened the other Sureño, saying he would “kick his ass.”
G. Uncharged Offense Evidence
Santa Cruz County Sheriff’s Sergeant Peter Hansen spoke to the victim of a reported battery on October 21, 2004. Defendant and two others walked by, and the victim identified them. Defendant told Sergeant Hansen that one of the victims had challenged him to a fight and had started the fight by kicking defendant. Defendant was arrested for battery.
On November 25, 2005, defendant took two packages of underwear from Mervyn’s at the Capitola Mall. Loss prevention officers followed defendant into another store in the mall and asked defendant to return with them to Mervyn’s. Defendant refused and appeared ready to fight, then resisted when the loss prevention officers told him he was under arrest. After the officers arrested defendant, they searched him and found the stolen underwear as well as a knife.
H. Defendant’s Testimony
Defendant testified about how his parents had “split up” during his childhood. When defendant was about 11 years old, his mother’s boyfriend, named Charlie, got angry and attacked defendant. Charlieflipped over a table, grabbed defendant by the shirt, yelled at defendant, and spit in defendant’s face. Defendant resisted, but Charlie pushed him down to the ground, then picked him up and slammed him into a kitchen counter. Defendant urinated on himself during the incident.
Defendant initially attended Watsonville High School, where he played football, but he transferred to Aptos High School in his junior year. His mother used methamphetamine at the time, and they were evicted for not paying their bills. He got into fights at Aptos High School and hung out with Norteños, and he was expelled in his junior year. Defendant stopped playing football and instead “chose to participate in gang activity or be a gang member.”
Sometime in 2005, defendant moved in with his sister and Cardenas. Cardenas was “kind of like a brother figure” to defendant. Cardenas told defendant he was a gang member—specifically, a “northerner” who was “from the West Side”—anddefendant noticed how “everyone respected him.” Defendant’s sister would also say “Westside” and make Westside gang signs. When defendant was about 15 or 16 years old, Cardenas tattooed defendant’s last name on defendant’s arm and “signed” the tattoo with “WS.” Defendant did not think that the tattoo made him a gang member; he thought it made him “cool.” Defendant subsequently got other tattoos from Cardenas, including an “SC” tattoo on his forearms,and one dot tattooed on one elbow and four dots on the other. Cardenas told him that the dots meant that defendant represented Norteños. Cardenas also told defendant that Sureños were their enemies and that “you go after” them. Defendant later got “Westside” tattoos on his forearm and his neck, which to him referred to the west side area of Santa Cruz, not to a gang. However, defendant admitted that when he got dots tattooed on his hand, he was trying to further associate himself with the Norteño gang.
Defendant testified about the events of January 27, 2006. He had been upset earlier that evening due to a fight with Mark, his girlfriend, and due to a fight between his sister and Cardenas. Defendant decided to go hang out with his friends at Ramey’s house. Hernandezsaid he had been invited to a party,and defendant and his friends agreed to go.
Defendant had a knife on a sheath on his belt. He carried the knife because he “liked the way it looked” but also “for protection” or to “show off.”
After arriving at the party, defendant had some brief conversations with people he knew. He heard someone say that “the party might be breaking up,” but he did not see anyone leaving, and he was not asked to leave.
Defendant went to the kitchen, which was really crowded. Three people, including Carr and Gomez, immediately approached him. Carr asked who defendant knew at the party and whether defendant knew “who the fuck” Carr was. Carrclaimed, “I’m Northside Watsonville.” Defendant responded by putting his hand out to shake Carr’s hand and saying he was “from the Westside of Santa Cruz.” Defendant was trying to defuse the situation by telling Carr he was from “Westside” because Northside Watsonville and Westside were “both northern gangs.” Defendant had “a little puffed out chest” as he responded to Carr. Although Carr did not shake defendant’s hand, Gomezdid.
Gates then led defendant out of the kitchen and into the garage. They had a brief conversation, during which defendant showed Gates the knife he was carrying. Defendant heard a fight inside the house, so he went back inside the house. He saw Carr holding Hernandez by the collar, pushing him against a wall. Defendant pushed Carr to get him off of Hernandez. Carr stumbled backwards, then regained his balance and tackled defendant into a wall, which knocked the wind out of him. Defendant pulled out his knife, “panicking” and wanting to get away from Carr. He had similar feelings when he was attacked by his mother’s boyfriend. When he swung the knife at Carr, he did not intend to kill him; he was only trying to get away from him. Defendant remembered stabbing Carr in the back, falling to the floor with Carr, and then getting up and running away. Defendant did not remember stabbing Carr in the arm, chest, or stomach.
Later that night, Cardenas told defendant to tell the police that he had been home all night. When defendant was interviewed by the police, he initially lied because he was scared. He turned his sweatshirt inside-out because it was dirty, not to hide his gang affiliation or to keep people from identifying him.
I. Other Defense Lay Witnesses
Cody Ramirez, who knew defendant from middle school, had a brief conversation with defendant at the party. Defendant seemed happy. Ramirez later saw a “scuffle” between Carr and some of defendant’s friends. He saw someone place his hands around Hernandez’s throat, then saw Carr come out of “a pile of people” and fall down. Ramirez did not remember anyone telling people to leave, but he told an investigator that the girl throwing the party had asked people to leave after defendant arrived.
Joseph Iese also saw defendant at the party, which he had heard about at school. He first saw defendant outside the French residence. He also saw a group of older people in the kitchen. The group of older people was “trying to regulate” the party, by “shoulder checking” younger people. No one in the group askedhim to leave the party, and he did not hear anyone asking people to leave the party. While sitting outside the kitchen, Iese observed “a commotion” inside. He went inside and saw a fight involving a number of people. After people started running away, Carr stood up and yelled, “where is he,” then fell down.
Private investigator Ross Jernigan spoke with defendant’s girlfriend, Mark, on September 20, 2006. Mark described defendant as shaking and scared on the night of the stabbing. Defendant had toldMark that during the party, “some guy” had “rushed” him, and that he “had to stab him to get away.”
Jacobs, one of the members of defendant’s group at the party, saw defendant arguing with Carr.[7]After Hernandez separated them, defendant and Carr continued to interact, so Hernandez returned and asked, “why is he trying to be such a tough guy.” In response, Carr grabbed Hernandez around the neck. Hernandez pushed Carr off. Defendant then pushed Carr’s chest, and the two began fighting. Jacobs, who had not seen a knife during the fight, followed defendant out afterwards. While driving away from the party, defendant said he had stabbed Carr because he had been “surrounded.”
Hernandezknew the French siblings from Aptos High School, and he had attended previous parties at their house.[8] Hernandez heard about the party from a friend he had run into at a video store. That friend also called Hernandez from the party, saying he should come. When the group arrived at the party, Hernandez recognized people he knew.
At the party, Hernandez saw defendant arguing with Carr, and he saw that Carr had friends standing behind him, including Gomez.Hernandez got in between defendant and Carr and “split them up.” Gomez, who knew Hernandez, stated that Hernandez was “cool.” Hernandez returned to his prior conversation, but a few minutes later he saw thatCarr was arguing with Jacobs. Hernandez again went over and stopped the argument by saying “we are here to have a good time, we’re not trying to start a problem.” Hernandez explained that he had been invited to the party, and he shook hands with Gomez and Gleitsman. Afterwards, Hernandez resumed his conversation once again, although he “realized maybe they don’t want us here.”
A short while later, Hernandez saw defendant arguing with Carr again. Hernandez got in between them again, and he pulled defendant back. Carr seemed “pretty mad” and appeared to be instigating the arguments. Hernandez again told Carr “we are just here to have a good time,” and he asked, “[W]hy do you have to be a tough guy[?]” Carr angrily replied, “because I am a fucking tough guy.” Carr spit in Hernandez’s face as he talked. As Hernandez wiped the spit off, Carr lunged at him, grabbed his shirt collar, and tried to choke him.
Hernandez tried to get Carr off of him, and defendant pushed Carr away. Defendant and Carr both fell to the ground. Hernandez saw Carr on top of defendant, pinning defendant down. Hernandez did not ever see a knife. The next thing he remembered was Jacobs telling him, “let’s go.” He and Jacobs met up with Pridemore outside the house. While they tried to figure out exactly what had happened and where defendant was, someone came outside and yelled, “[H]e stabbed him.” Hernandez, Jacobs, and Pridemore returned to their car and found defendant waiting for them. Defendant was “kind of hiding” and looked scared. During the car ride, defendant stated, “[Y]eah, I did it.”
Hernandez gave an initial statement to the police in which he lied about what had happened. Hernandez said that defendant had not gone to the party with him nor left the party with him. However, after making that statement, Hernandez felt guilty, so he called the detective back and told him the truth.
J. Defense Expert Witness
Clinical psychologist Harvey Dondershire testified as an expert on mental defects and disorders. Dr. Dondershire was hired to perform a psychiatric assessment of defendant. Heinterviewed defendant, reviewed a number of records, and interviewed defendant’s mother and Charlie, her boyfriend.
Dr. Dondershire characterized defendant’s background as one involving abuse, neglect, and trauma. When a person has suffered from chronic abuse, neglect, and trauma, the prefrontal cortex of the person’s brain can be weakened. Such a person will tend to overreact and have difficulty controlling impulses and emotions. When such a person is confronted with extreme stress, the response may be disassociation, which is an emergency mechanism that dampens emotional reaction.
The incident involving Charlie was traumatic for defendant, and the memory of such an event could be triggered at a later point in time. Defendant showed signs of post-traumatic stress disorder (PTSD) following that event. Defendant had reported that during the confrontation with Carr, he had been thrown against a wall and had not been able to breathe. Defendant had said, “I knew the feeling,” which Dr. Dondershire assumed meant that he was remembering the feeling he had when Charlie had assaulted him.
Dr. Dondershire opined that during the confrontation with Carr, defendant’s “stress response chemicals” had begun flowing, and during his fight with Carr, defendant had disassociated. Defendant’s account of the stabbing was consistent with a “spectator response,” in which defendant saw himself doing the action but did not feel himself acting.
K. Prosecution Rebuttal Evidence
Defendant’s girlfriend, Mark, testified that in the year before the Carr stabbing, defendant had hit or pushed her on two occasions, and he had dragged her on a third occasion. She had suffered a black eye on one occasion. She did not report any of the violence to the police.
Dr. Anlee Kuo, an expert in the field of child and adolescent forensic psychiatry, reviewed Dr. Dondershire’s materials as well as other documents in defendant’s case.[9] In Dr. Kuo’s opinion, Dr. Dondershire did not perform a proper forensic assessment. Dr. Dondershire relied on a limited amount of information rather than gathering as much information as possible: for instance, he did not obtain defendant’s mental health records or juvenile records. Dr. Dondershire relied too heavily on his interview with defendant. He did not adequately consider defendant’s history of lying or defendant’s history of anger and violence, and his report was not consistent with standard reporting methodology.
Dr. Kuo also disagreed with Dr. Dondershire’s opinions. Dr. Dondershire did not diagnose defendant with a dissociative disorder, yet he claimed that defendant had disassociated during the incident. Moreover, defendant had denied suffering any symptoms of PTSD. Defendant’s description of his fight with Carr was not consistent with being in a dissociative state, since he did not report any “re-experiencing” of the prior trauma he experienced.
L. Defense Surrebuttal Evidence
Jeff Christopher and defendant spent a lot of time together when they were growing up. Christopher saw defendant and Mark shove each other on Halloween in 2005. Christopher separated them. He did not see Mark with any injuries, including a black eye.
Lacey Dent was friends with Mark when Mark was dating defendant. During that time, Mark did not tell her that defendant had been violent with her, and Lacey never saw Mark with a black eye. However, Dent did see defendant get angry with Mark on one occasion, and she saw him throw a package of Top Ramen at Mark. Mark had recently told Dent about additional domestic violence.
M. Verdicts and Sentence
The jury found defendant not guilty of first degree murder, convicted him of second degree murder, and found true an allegation that he had used a deadly weapon. Defendant was sentenced to a prison term of 16 years to life, consisting of a one-year term for the weapon use allegation and a term of 15 years to life for the murder.
III. DISCUSSION
A. Trespass Instruction
Defendant contends the trial court erred by instructing the jury, pursuant to CALCRIM No. 3475, that the owner, occupant, or agent of a home may use reasonable force to make a trespasser leave. Defendant contends: “The instruction was misleading because the law of trespass did not reasonably apply under the facts shown by the evidence.” He claims the error lessened the prosecution’s burden of proof and violated his due process rights, in that it allowed the jury to find he was “not legally entitled to act in self-defense.”
1. Proceedings Below
In one of its motions in limine, the prosecution requested “the jury be instructed that ‘self-defense’ may not apply if the property owner was rightfully ejecting a trespasser.” The prosecution argued that defendant did not have the right to use self-defense if he was being lawfully ejected for trespassing.
At the jury instruction conference, the trial court noted that the defense was objecting to CALCRIM No. 3475 (“Right to Eject Trespasser from Real Property”). Defendant’s trial counsel argued that the instruction had “no application to the facts of this case.” She argued that defendant had “every right” to be at the party and that the prosecution had not been proceeding on the theory that defendant committed the assault in response to being ejected from the property.
The trial court noted that a significant issue at trial had been the question of whether or not defendant had been invited to the party. One of the prosecutors asserted that the defense had been put on notice of the trespass theory by the prosecution’s motion in limine. The other prosecutor asserted that the instruction applied because there was evidence that Justine directed Carr to tell defendant’s group to leave. Defendant’s trial counsel argued that the evidence did not make it “clear” that Carr’s intent was to “eject” defendant from the premises. The trial court ruled that it would give the instruction, noting that the defense could “argue the facts in relation to the instructions.”
The trial court instructed the jury pursuant to CALCRIM No. 3475 as follows: “The owner of a home, or the agent of the owner may requestthat a trespasser leave the home or property. If the trespasserdoes not leave within a reasonable time and it would appear toa reasonable person that the trespasser poses a threat to the homeor property or the occupants, the owner or the lawful occupants,or their agents may use reasonable force to make the trespasserleave. [¶] Reasonable force means the amount of force that a reasonableperson, in the same situation, would believe is necessary to makethe trespasser leave. [¶] If the trespasser resists, the owner or owner’s agent mayincrease the amount of force he uses in proportion to the forceused by the trespasser and the threat the trespasser poses to theproperties. [¶] In deciding whether [the] owner or the owner’s agent usedreasonable force, consider all the circumstances as they wereknown to or appeared to the owner’s agent and consider whata reasonable person in a similar situation with similarknowledge would have believed.”
The trial court instructed the jury pursuant to CALCRIM No. 2932 as follows: “Trespass is defined as: [¶] One, a defendant willfully entering, remaining [in] a non-commercial dwelling, house, or other residential placebelonging to someone else. [¶] And, two, the defendant entering or remaining without theconsent of the owner or the owner’s agent or person in lawfulpossession of property. [¶] Someone commits an act willfully when he does itwillingly or on purpose. [¶] An agent is a person who is authorized an [sic] act for someoneelse in dealing with third parties.”
The trial court also instructed the jury on lawful self-defense (CALCRIM No. 505) and told the jury that provocation could reduce a murder to voluntary manslaughter (CALCRIM No. 522). The trial court instructed the jury on principles of voluntary manslaughter, including sudden quarrel/heat of passion (CALCRIM No. 570) and imperfect self-defense (CALCRIM No. 571).
2. Analysis
Defendant contends the trial court erred by giving the trespass instruction because it “did not reasonably apply under the facts shown by the evidence.”Defendant argues that the trespass instruction “eliminated [his] right of self-defense” and “impaired his claim to have acted in imperfect self-defense” by implying that it would be unreasonable for him to believe that he needed to defend himself, since he was resisting a lawful effort to eject him from the French home.
“The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty ‘to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.’ [Citation.] ‘It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference [citation].’ [Citation.]” (People v. Saddler (1979) 24 Cal.3d 671, 681 (Saddler); see also People v. Petznick (2003) 114 Cal.App.4th 663, 677 [“the rule is that a trial court needs to give only those requested instructions that are supported by substantial evidence”].) On appeal, we independently review the trial court’s finding that a particular instruction is applicable. (People v. Alvarez (1996) 14 Cal.4th 155, 217.)
It is proper to give trespass instructions when a defendant claims self-defense or imperfect self-defense, if there is substantial evidence to support a finding that the defendant was a trespasser. For instance, in People v. Hardin (2000) 85 Cal.App.4th 625, the defendant was convicted of second degree murder after he ran into the victim’s house and killed her with a hammer. The defendant claimed that after he had entered the victim’s house, she had initiated the force by coming at him with a hammer. (Id. at pp. 631-632.) On appeal, the defendant complained that the jury had been allowed to find that, by trespassing, he had created the circumstances justifying the victim’s use of deadly force. (Id. at p. 634.) The appellate court found no error, explaining: “The entire situation was created by defendant. [The victim’s] use of force was privileged; defendant’s was not.” (Ibid.; see also People v. Watie (2002) 100 Cal.App.4th 866, 878 [proper to give trespass instructions where the defendant claimed he shot the victim in self-defense because jury could have found that the victim “had a right to use force to defend himself in his home”].)
In this case, defendant asserts that the evidence established hewas not a trespasser because he had been “impliedly invited” to the residence. Defendant points to Justine’s testimony about intending that invitations to the party spread by word of mouth to friends of her friends, and to Vega’s testimony about how it was typical for high school parties to operate that way. Defendant further contends that even though he remained on the property after Justine announced the party was over, he could not have been found to be a trespasser because the announcement was “conditional and ambiguous,” such that defendant could not reasonably have known he was supposed to leave. Defendant notes that after Gomez specifically said that defendant’s group needed to leave, Christen said that defendant “was cool” and that his group “could stay.”
For several reasons, we agree with the People that the trespass instructions were relevant legal principles in this case and that substantial evidence supported the giving of those instructions. (See Saddler, supra, 24 Cal.3d at p. 681.)
First, evidence in the record supported an inference that defendant was not impliedly invited to the party. Justine testified that she invited her “core group of girls” and that she expected the party to spread such that “[a] lot of [the] senior class” would show up. Defendant was not a member of the senior class at Aptos High School, nor were others in his group. When defendant and his friends arrived, Justine was “confused as to why they would be at [her] house.” Christen testified that the group’s demeanor indicated they were “looking for trouble,” i.e., that they knew they had not been invited and were not welcome.
Second, evidence in the record supported an inference that any implied invitation was revoked when Justine and others asked defendant to leave. First, Justine made a “general announcement” saying that it was “time to go.” Defendant was in earshot at the time. Contrary to defendant’s claim, Justine’s announcement was not rendered conditional or ambiguous by the fact that she indicated that everyone “not staying” should leave. A reasonable person would have understood Justine’s reference to people who were “staying” to mean people who had been explicitly invited to spend the night. Moreover, Christen followed up Justine’s announcement by directly asking defendant and his group to leave, but they did not. Gomez likewise directly asked defendant and his group to leave, but they refused, and defendant began an aggressive altercation with Gomez. The fact that Christen then apparently tried to diffuse the situation by saying “everything is okay” does not preclude a finding that defendant was a trespasser at that point, in light of the prior requests that defendant and his group leave.
Third, even if Christen gave defendant permission to stay when she told Gomez, “everything is okay,”evidence in the record supports an inference that defendant’s permission to stay was revoked when Carr later told defendant that he needed to leave. Defendant argues that Carr’s statement was not an effective revocation of his invitation because Carr was not acting as Justine’s agent.Defendant contends that Carr was doing a “ ‘mere favorfor [Justine], without being subject to any legal duty of service and without assenting to any right of control.’ ” (See Insurance Co. of North America v. Hanks, Conard & Sons, Inc. (1967) 250 Cal.App.2d 156, 161.) If we were to accept defendant’s argument, however, we would also have to find that Christen was not acting as Justine’s agent when she gave defendant permission to stay after he was told to leave by Gomez. In any event, we find no merit to defendant’s argument.“ ‘An agency relationship may be informally created’ ” (ibid.) and Civil Code section 2295 defines an agent as “one who represents another . . .in dealings with third persons.” “No particular words are necessary [to create an agency relationship], nor need there be consideration. All that is required is conduct by each party manifesting acceptance of a relationship whereby one of them is to perform work for the other under the latter’s direction. [Citations.]” (Malloy v. Fong (1951) 37 Cal.2d 356, 372.) Evidence in the record here supported an inference that Carr was not merely doing a favor for Justine but that he agreed to act as her agent when she asked him to help get people to leave the party. Carr told people to leave only after Justine gave him directions to do so, showing that Justine maintained a right of control.
Even assuming the trial court erred by instructing the jury on trespass, the error was harmless. Although defendant asserts that the asserted error should be assessed under the prejudice standard for federal constitutional errors, the proper standard is that set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson). Contrary to defendant’s claim, the asserted error did not lessen the prosecution’s burden of proof or violate defendant’s due process rights. While “[i]t is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case,” the giving of an unsupported instruction does not violate the federal Constitution. (People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130 (Guiton).)
“Under Watson, reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred. (Guiton, supra, 4 Cal.4th at p. 1130.) “In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict. [Citation.] Furthermore, instruction on an unsupported theory is prejudicial only if that theory became the sole basis of the verdict of guilt . . . .” (Ibid.)
In this case, the jury was instructed that “[y]ou must decide what the facts are” and that “[s]ome of the instructions may not apply, depending on your findings about the facts of the case.” (CALCRIM No. 200.)None of the instructions told the jury that defendant was a trespasser. Rather, the instructions made it clear that it was up to the jury to decide whether defendant was trespassing and whether Carr was an agent. The jury was fully instructed on self-defense and other applicable principles of homicide.
Additionally, the circumstances of the stabbing overwhelmingly showed that defendant did not act in self-defense, imperfect self-defense, or the heat of passion. Defendant told Gates that he was “packing” and showed his knife before the stabbing. (See Cortes I, supra, 192 Cal.App.4th at p. 913 [defendant’s statements to Gates showed either “an intent to fight” or “a premeditated, deliberated intent to fight to the finish”].) Witnesses testified that after re-engaging with Carr, defendant “charged” at Carr, who was unarmed,then pulled the knife out during a pause in the fight and stabbed Carr multiple times. (See ibid. [Carr’s multiple stab wounds were a “critical piece of evidence” but did not necessarily show premeditation and deliberation].)Although defendant provided a different version of the events, he was not credible. Defendant had initially denied being at the party, then denied being involved in the fight, then denied that he had done anything besides push Carr. After admitting he had used a knife, defendant still made inconsistent statements about what had happened, at one point claiming that the knife had just “slipped in” and later stating that Carr had fallen into the knife. Defendant did not claim self-defense until after a phone call from jail in which the person on the other end of the line told him, “[I]t was self defense.” Further, Dr. Dondershire’s testimony aboutdefendant having disassociatedprior to the stabbing was not consistent with defendant’s statements, and his expert testimony was alsorendered less credible by Dr. Kuo, who criticized Dr. Dondershire’s methodology and disagreed with his opinions.
On this record, even assuming that the trial court erred by giving the trespass instructions, reversal is not required because it is not reasonably probable that without those instructions, the result would have been more favorable to defendant. (See Guiton, supra, 4 Cal.4th at p. 1130; Watson, supra, 46 Cal.2d at p. 836.)
B. Gang Evidence
Defendant makes several arguments concerning the admission of gang evidence. First, he contends the evidence was irrelevant and should have been excluded pursuant to Evidence Code section 352. Second, he contends that by seeking to admit the gang evidence at the second trial, the prosecution acted vindictively. Third, he contends that the law of the case doctrine barred the gang evidence from being admitted at the second trial. Fourth, he contends judicial estoppel barred the gang evidence from being admitted at the second trial.
1. Proceedings at First Trial
At the first trial, defendant filed a motion in limine seeking to exclude certain evidence as prejudicial and irrelevant, including “any mention of gangs, gang slogans, or gang attire.” Defendant’s motion referenced the evidence of his red hat and the evidence of his statements referencing “Westside.”
The prosecution filed a motion in limine seeking to admit defendant’s “prior bad acts,” including his previous fights. The motion referenced one of the fights in which defendant had talked about how he “does ‘back up’ Westside Santa Cruz Nortenos” and how he “hates the Surenos.” Defendant filed a response to the prosecution motion, arguing that evidence of defendant’s gang-related statements was not relevant.
During the hearings on motions in limine at the first trial, the trial court ruled inadmissible any evidence about “gang affiliation, gang name-calling, use of the word ‘scrap,’ ”finding such evidence “irrelevant to this case”and “prejudicial to [defendant].”The evidence of defendant’s prior fights at Aptos High School was presented in a sanitized manner that did not suggest the incidents were gang-related. (See Cortes I, supra, 192 Cal.App.4th at p. 884.)
On direct examination by the prosecutor during the first trial,Gleitsman described how defendant and Carr had interacted at the party. Gleitsman testified that defendant told Carr, “Fuck you. West side Santa Cruz, fool,” and that Carr replied, “I don’t care about West Side.”
Before the defense began presenting its case at the first trial, the prosecutor asked whether “extra steps” should be taken to ensure the defense witnesses did not bring up any “items that have been precluded.” The prosecutor noted, “There’s always problems with gang stuff” and that he anticipated one or more witnesses would testify that defendant would introduce himself as “Alex Cortes from the west side.” Defendant’s trial counsel indicated he had advised his witnesses to comply with the trial court’s earlier ruling by not mentioning “anything about gangs, north side, west side, Santa Cruz, Watsonville, or [ ] anything like that on direct or cross-examination.”
When Gomez testified for the defense at the first trial, he described how defendant had introduced himself “as Alex Cortes,” in a “defensive manner.” On cross examination, the prosecutor asked Gomez whether defendant had introduced himself by saying, “I am Alex Cortes from the west side.”Gomez said, “Yes,” but defendant objected. The trial court sustained the objection and admonished the jury to disregard the question and response.
On appeal after the first trial, defendant’s arguments included a claim that the prosecutor committed misconduct “by injecting gang evidence into the trial despite an in limine ruling excluding such evidence.” (Cortes I, supra, 192 Cal.App.4th at p. 877.) After concluding that the trial court had improperly restricted the testimony of Dr. Dondershire, this court “briefly” addressed the prosecutorial misconduct claim in the event it arose again upon retrial. (Id. at p. 914.) This court found that the prosecutor did not commit misconduct, explaining: “The court’s [in limine] ruling did not clearly prohibit the prosecutor from eliciting testimony from the witnesses about what defendant and others said on the night of the stabbing, even if their testimony referenced ‘the west side.’ On the one hand, defendant’s reference to the west side was relevant to show that he exhibited a menacing or belligerent attitude. On the other hand, the comment’s menace or belligerence was in large part attributable to the fact that it obliquely suggested that he was involved in a gang. In our view, on remand the court will need to decide whether the relevance of references by defendant and others to the west side is outweighed by its potential to stigmatize defendant as a gang member, to his prejudice, and rule clearly on the issue. (Evid.Code, § 352.)” (Cortes I, supra, at pp. 915-916.)
2. Proceedings at Second Trial
At the second trial, the prosecution filed a motion in limine regarding gang evidence. The prosecution requested permission to call a gang expert (specifically, Sergeant Morales) to testify about “certain limited aspects of gang culture or the ‘gang mentality.’ ” The prosecution represented that Sergeant Moreno would provide “limited information” about the Norteño street gang and an opinion about defendant’s gang association. Sergeant Moreno would also testify about respect and disrespect in gang culture, the significance of claiming gang membership, the nature of gang assaults, and other similar matters. In addition, the prosecution sought to introduce the evidence of defendant’s prior gang fights, the evidence of gang-related items found at defendant’s home, and defendant’s statements regarding his gang membership. The prosecution indicated it would not introduce “irrelevant” evidence about gangs, “such as testimony pertaining to Nuestra Familia and the extraordinary violence that the members of that organization commit.” The prosecution would also not “argue guilt by simple association with [a] gang” and would seek a limiting instruction regarding the gang evidence.
The prosecution argued that the gang evidence was relevant to defendant’s motive and intent, despite the lack of a gang allegation. The prosecution noted that in Cortes I, supra, 192 Cal.App.4th 873, this court had “indicated” that the evidence of defendant’s prior acts of violence had been properly admitted to prove intent at the first trial. The prosecution further noted that this court had found no prejudice from the inadvertent admission of evidence that defendant had claimed West Sideand that this court had “specifically stated” that on retrial, the trial court could determine whether to admit gang evidence. The prosecution also argued that the gang evidence was relevant to whether defendant acted in the heat of passion or in self-defense or in defense of others. Additionally, the prosecution argued that the gang evidence was admissible to impeach and cross-examine the defense’s expert witness.
Defendant filed a motion in limine seeking to exclude the prosecution witnesses from testifying about “any alleged gang affiliation,” asserting that the admission of such evidence would violate defendant’s rights to due process and a fair trial, as well as Evidence Code section 1101, subdivision (a). Defendant pointed out that gang evidence had been excluded at the first trial, asserting that “all parties” had agreed that such evidence was “irrelevant and prejudicial.” Defendant argued that the case should not be “morphed into” a gang case and that the proposed gang evidence (including expert testimony) would be irrelevant, highly prejudicial, and inflammatory.
At the hearing on the parties’ respective motions, the trial court indicated it believed the gang evidence was admissible. The trial court noted there was evidence that the confrontation with Carr escalated after defendant said he was “from the Westside” or claimed to be “Westside Santa Cruz” and Carr said he did not care about Westside. The trial court noted that defendant’s mental state would be at issue and that evidence of “gang mentality” and defendant’s affiliation or association with “the Westside gang” would be relevant to motive and intent. In response to the defense’s concerns about prejudice, the trial court noted that because there was no gang allegation, it would not be necessary for the prosecution to prove gang predicate offenses or primary activities. (See § 186.22, subd. (a).)
Defendant’s trial counsel pointed out that most witnesses had not heard defendant say anything about Westside Santa Cruz and that the comment could have been related to where defendant lived. She argued that the weak inference of defendant’s gang association did not justify the admission of “highly prejudicial evidence.”
The prosecutor asserted that several prosecution witnesses would testify that defendant’s group looked like “gangsters or gangster wannabe’s,” that defendant was wearing a red Westside Santa Cruz beanie, and that defendant had made “a gang claim” by stating that he was “from the Westside.” Gleitsman would testify that after Carr told defendant to leave, defendant said, “Westside Santa Cruz, fool” to Carr and that Carr responded, “[F]uck you, I don’t care about the Westside,” which was “when things elevated.” The prosecutor also noted that defendant admitted to being involved with gangs during his police interview. The prosecutor argued that since that evidence would be coming in, the jury should hear from an expert who could explain the significance of Carr’s statement to defendant.
The trial court found there was a “sufficient foundational basis” for a gang expert’s testimony, which would help the jury understand issues of “gang mentality, culture, and practices.” The trial court found that the evidence to be admitted through the gang expert was “more probative than prejudicial” under Evidence Code section 352, but that there needed to be “some meaningful limits” on the testimony.
The trial court also found it would be “appropriate” to allow the prosecution to present evidence specific to defendant’s gang participation and association, finding it “relevant on the issue of motive and intent and his state of mind at the time of the commission of the charged offense.” The trial court also found it would “avoid a mini trial” to have the evidence of the gang fights be presented through the testimony of one witness: Deputy Pool.
At the end of the second trial, the trial court instructed the jury on the gang evidence pursuant to CALCRIM No. 1403: “You may consider evidence of gang association or gang membershiponly for the limited purpose of deciding whether or not the defendant acted with the intent to kill or with maliceaforethought; or whether the defendant had a motive to commit the alleged offense inthis case; or whether the defendant actually believed in the need to defendhimself; or whether the defendant acted in the heat of passion; or whether the defendant’s alleged actions in this case were the resultof mistake or accident. [¶] You may not consider this evidence for any other purpose. [¶] Don’t conclude from this evidence that the defendant has a badcharacter or is disposed to commit crimes. [¶] Evidence of the defendant’s gang membership or gang association by itself is not sufficient to prove the defendant’s guilt. The Prosecution still has the burden of proving the defendant guilty beyond a reasonable doubt.”
3. Evidence Code section 352
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
“Evidence Code section 352 requires the exclusion of evidence only when its probative value is substantially outweighed by its prejudicial effect. ‘Evidence is substantially more prejudicial than probative ... [only] if, broadly stated, it poses an intolerable “risk to the fairness of the proceedings or the reliability of the outcome” [citation].’ [Citation.]” (People v. Tran (2011) 51 Cal.4th 1040, 1047 (Tran).)
“In cases not involving the gang enhancement, . . . evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.] But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) For instance, gang evidence was relevant and admissible in a murder prosecution where the prosecution’s theory was that the defendant, a member and leader of a Blood gang, shot the victim “for at least appearing to be a Crip.” (People v. Williams (1997) 16 Cal.4th 153, 194.)
In this case, there were facts suggesting that defendant had a gang motive for the stabbing. Defendant wore what could reasonably be interpreted as gang attire, including a red beanie with a Santa Cruz West Side logo on it. After failing to comply with Gleitsman and Gomez’s instructions to leave the party, defendant issued what could reasonably be interpreted as a gang challenge, asking Gomez, “who are you” and saying he was “Alex Cortes from the Westside.” Defendant also issued what could reasonably be interpreted as a gang challenge when he puffed out his chest and told Carr, “fuck you, West Side Santa Cruz fool.” And it was reasonable to infer that defendant reacted with violence to the perceived disrespect of Carr’s response—“I don’t give a fuck about West Side”—because as a gang member, he would have lost respect if he had not done so.
The probative value of the gang evidence, which provided a potential motive for the stabbing, was not outweighed by its prejudicial effect. First, Sergeant Morales’s general testimony about Norteño gangs and the Westside Santa Cruz gang was relatively brief, as was the testimony about defendant’s admission to being a gang member and about his prior gang-related fights. Defendant asserts that admission of the gang evidence “seriously ballooned the amount of time it took to try the case,” noting that the second trial was substantially longer than the first, in terms of court days and pages of reporter’s transcript, but the Attorney General points out that the increased trial length can also be attributed to longer examinations of witnesses on other issues. Moreover, “ ‘We review the correctness of the trial court’s ruling at the time it was made, ... and not by reference to evidence produced at a later date.’ [Citation.]” (People v. Robertson (2012) 208 Cal.App.4th 965, 991.)
Second, none of the gang-related testimony was particularly inflammatory, especially in comparison to the charged offense. And nothing in the record supports defendant’s claim that admission of gang evidence made the jurors so anxious and fearful that they became distracted and unfocused. Although one juror reported exchanging looks with defendant and feeling nervous after seeing a gang member during lunch, she was excused from the jury and replaced by an alternate. No other jurors expressed concerns about the gang evidence.
Finally, the jury was given a limiting instruction immediately after the testimony about defendant’s gang membership and prior gang-related fights, and the jury was given another limiting instruction regarding that evidence at the end of the trial. (See People v. Hendrix (2013) 214 Cal.App.4th 216, 247 [analysis of prejudice under Evidence Code section 352 includes consideration of whether the trial court gave a limiting instruction].)
Defendant attempts to analogize this case to People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), but that case is distinguishable. Albarran involved a shooting outside of a party. The prosecution’s theory was that “the motive for the shooting was to gain respect and enhance the shooter’s reputation . . . within the gang,” but no such motive was “apparent from the circumstances of the crime,” which did not involve a rival gang, an announcement of gang membership, or bragging about the crime. (Id. at p. 227.) Moreover, in Albarran, “extremely inflammatory gang evidence was admitted,”i.e., crimes committed by other gang members which had no connection to the charged crime. (Ibid.) Here, the circumstances of the crime—including defendant’s gang attire and statements—did suggest a gang-related motive for the stabbing, and here, the trial court did not admit potentially inflammatory evidence about crimes committed by other gang members.
In sum, the admission of gang evidence was not an abuse of discretion under Evidence Code section 352. (See Tran, supra, 51 Cal.4th at p. 1049.)
4. Vindictive Prosecution
“[A]n inference of vindictive prosecution is raised if, upon retrial after a successful appeal, the prosecution increases the charges so that the defendant faces a sentence potentially more severe than the sentence he or she faced at the first trial. [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 731.)
Defendant contends that the prosecution changed legal theories by seeking to admit gang evidence at the second trial, and that this amounted to vindictive prosecution. However, the record does not support defendant’s claim that the prosecution changed legal theories. As recounted above, at the first trial, the trial court ruled gang evidence inadmissible during motions in limine. Nothing in the record indicates the prosecutors conceded that this ruling was correct. In particular, the record does not indicate that one of the prosecutors expressed any explicit or implicit agreement with the trial court’s prior ruling when he asked whether “extra steps” should be taken to ensure the defense witnesses did not bring up any “items that have been precluded.”
Moreover, defendant cites no case finding vindictive prosecution due to a prosecutor’s introduction of new evidence upon retrial. The cases defendant cites involved a prosecutor’s decision to file new charges after dismissal of the original charge (United States v. Groves (9th Cir. 1978) 571 F.2d 450, 451; In re Bower (1985) 38 Cal.3d 865, 877), a prosecutor’s addition of more charges after a defendant’s successful motion for change of venue (U.S. v. DeMarco (9th Cir. 1977) 550 F.2d 1224, 1226), a prosecutor’s filing of increased charges after the defendant refused to waive certain rights (U.S. v. Ruesga-Martinez (9th Cir. 1976) 534 F.2d 1367, 1368), a prosecutor’s decision to bring more serious charges after an appeal (see Blackledge v. Perry (1974) 417 U.S. 21, 29), a prosecutor’s decision to allege additional prior convictions after a mistrial was declared and the defendant refused to enter into a plea bargain (Twiggs v. Superior Court (1983) 34 Cal.3d 360, 364), and a trial court’s imposition of a harsher sentence after a retrial(see North Carolina v. Pearce (1969) 395 U.S. 711, 713). Contrary to defendant’s claim, the prosecution’s decision to seek the admission of gang evidence at the second trial, on this record, did not raise any comparable presumption of vindictiveness.
5. Law of the Case
“ ‘[W]here an appellate court states a rule of law necessary to its decision, such rule “ ‘must be adhered to’ ” in any “ ‘subsequent appeal’ ” in the same case, even where the former decision appears to be “ ‘erroneous’ ” ’ [Citations.] Thus, the law-of-the-case doctrine ‘prevents the parties from seeking appellate reconsideration of an already decided issue in the same case absent some significant change in circumstances.’ [Citation.]” (People v. Boyer (2006) 38 Cal.4th 412, 441 (Boyer).) “For the doctrine to apply, ‘ “ ‘the point of law involved must have been necessary to the prior decision, ... the matter must have been actually presented and determined by the court, and ... application of the doctrine will not result in an unjust decision.’ [Citations.]” [Citation.]’ [Citation.]” (People v. Superior Court (Plascencia) (2002) 103 Cal.App.4th 409, 432 (Plascencia).) Even where the issue presented in the prior appeal was not “ ‘absolutely necessary to the determination of the question whether the judgment appealed from should be reversed,’ ”the law of the case doctrine applies if the issue was “ ‘proper as a guide to the court below on a new trial.’ [Citation.]” (Boyer, supra, at p. 442.)
Defendant contends that the law of the case doctrine applies here because the “inadmissibility of gang evidence” was “an integral part” of this court’s prior decision on the issue of prosecutorial misconduct. Defendant acknowledges that this court did not “directly rule on the admissibility of gang evidence and resolved the [prosecutorial misconduct issue] solely for advisory purposes,” but he points out that this court instructed the trial court only to clearly rule on the admissibility of various “west side” references, and not to reassess the admissibility of gang evidence in general. (See Cortes I, supra,192 Cal.App.4th at pp. 915-916.) Defendant argues that because this court noted that the prosecutorial misconduct issue could arise again upon retrial, the underlying ruling barring the introduction of gang evidence was necessary to the Cortes I decision.
The Attorney General asserts that defendant is barred from raising this claim on appeal because he did not objectbased on the law of the case doctrine below. (See People v. Neely (1999) 70 Cal.App.4th 767, 781.) Defendant asserts that he “placed the issue squarely before the trial court” by raising due process arguments against the introduction of gang evidence at the second trial. We disagree that defendant’s motion in limine raised law of the case as a ground for excluding the gang evidence. In any event, defendant’s claim fails on the merits.
This court did not explicitly or implicitly approve the trial court’s ruling on gang evidence at the first trial. The admissibility of gang evidence was not “ ‘ “ ‘actually presented and determined’ ” ’ ” by this court in Cortes I. (See Plascencia, supra, 103 Cal.App.4th at p. 432.) The issue presented and decided in the prior appeal involved the question of whether the prosecutor had violated the trial court’s in limine ruling. This court decided that no prosecutorial misconduct had occurred because the trial court’s ruling did not clearly prohibit the prosecutor from eliciting the testimony at issue, and this court expressed the “view” that the trial court should make a clearer ruling about the admissibility of that testimony on remand. (Cortes I, supra, 192 Cal.App.4th at pp. 915-916.) The trial court’s ruling prohibiting the prosecution from introducing other gang evidence was not at issue, and this court’s prior opinion did not serve as a “ ‘guide to the court below on a new trial’ ” with respect to the admissibility of gang evidence. (See Boyer, supra, 38 Cal.4th at p. 442.)
Moreover, “an unconditional reversal ordinarily wipes the slate clean,” and “parties are entitled to have the trial court ‘redetermine’ evidentiary and other matters after an unconditional reversal. [Citation.]” (People v. Anderson (2008) 169 Cal.App.4th 321, 332 (Anderson); see also People v. Mattson (1990) 50 Cal.3d 826, 852 [law-of-the-case doctrine did not compel the trial court to exclude defendant’s confessions at second trial].) “[O]n retrial the court must reevaluate matters committed to judicial discretion, without relying upon any exercise of judicial discretion in the prior trial.” (Anderson, supra, at p. 332.) The admissibility of gang evidence was an evidentiary issue subject to the trial court’s discretion at the second trial. Following our unconditional reversal in Cortes I, the trial court was permitted to make a different ruling on the admission of the gang evidence than it had at the first trial.
In sum, thelaw-of-the-case doctrine did not preclude the admission of gang evidence at the retrial.
6. Judicial Estoppel
“ ‘ “Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] The doctrine’s dual goals are to maintain the integrity of the judicial system and to protect parties from opponents’ unfair strategies. [Citation.] Application of the doctrine is discretionary.” ’ [Citation.]The doctrine applies when ‘(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’ [Citations.]” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987.)
Defendant contends that in this case, the doctrine of judicial estoppel applies to the trial court’s admission of gang evidence because the prosecutionhad taken a different position regarding the gang evidence at the first trial. He asserts that at the first trial, one of the prosecutors “agreed with and did not dispute the court’s decision to exclude gang evidence.”
Defendant’s claim fails for at least two reasons.[10] First, because “[q]uestions of estoppel are questions of fact,” failure to raise the issue below results in forfeiture of the issue on appeal. (Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187 Cal.App.3d 299, 319.) Second, as previously discussed and contrary to defendant’s claim, the prosecutor did not express any explicit or implicit agreement with the trial court’s prior ruling at the first trial when he asked whether “extra steps” should be taken to ensure the defense witnesses did not bring up any “items that have been precluded.” In fact, the prosecution initially sought to introduce certain gang evidence in its motion to admit defendant’s “prior bad acts,” including his previous fights.
In sum, the trial court’s ruling admitting gang evidence did not violate principles of judicial estoppel.
C. Limiting Instruction
Defendant contends the trial court erred “by refusing to give versions ofCALCRIM 375 on uncharged offense evidence and CALCRIM 1403 on gang evidencerequested by the defense and giving prosecution-drafted versions of the same instructionsinstead.” He argues that as given, the instructions improperly emphasized that the jury could use the uncharged offense evidence and gang evidence to find that he did not act in the heat of passion or with an actual belief in the need to defend himself. According to defendant, this resulted in the lowering of the prosecution’s burden of proof, violating his due process rights to a fair trial, a jury trial, and proof beyond a reasonable doubt.
1. Proceedings Below
The trial court instructed the jury pursuant to CALCRIM No. 375 as follows: “The People presented evidence that the defendant committedthe offenses of battery and petty theft that were not charged inthis case.You may consider this evidence only if the People have proved,by a preponderance of the evidence, that the defendant, in fact,committed the offenses and those acts. [¶] . . . [¶] If you decide that the defendant committed the offenses and any of those acts,you may, but are not required to consider that evidence for thelimited purpose of deciding whether or notthe defendant acted with the intent to kill or with maliceaforethought; or whetherthe defendant had a motive to commit the offense alleged inthis case; or whetherthe defendant actually believed in the need to defendhimself; or whetherthe defendant acted in the heat of passion; or whetherthe defendant’s alleged actions in this case were the result ofmistake or accident. [¶] In evaluating this evidence, consider the similarity or lack ofsimilarity between the uncharged offenses and the acts. [¶] Consider the similarity or lack ofsimilarity between the uncharged offenses and the charged offense. [¶] Don’t consider this evidence for any purpose except forthe purposes of determining the defendant’s credibility. [¶] Don’t conclude from this evidence that the defendant has a badcharacter or is disposed to commit the crime. [¶] If you conclude that the defendant committed the unchargedoffenses, that conclusion is only one factor to consider alongwith all the other evidence. It is not by itself sufficient to provethat the defendant is guilty of murder. The People must stillprove the charge beyond a reasonable doubt.” (Italics added.)
Defendant’s proposed version of CALCRIM No. 375 would not have specifically told the jury it could consider the uncharged offenses on the issues of whetherdefendant actually believed in the need to defendhimselfand whetherdefendant acted in the heat of passion.
The trial court gave the following version of CALCRIM No. 1403: “You may consider evidence of gang association or gang membershiponly for the limited purpose of deciding whether or not the defendant acted with the intent to kill or with maliceaforethought; or whether the defendant had a motive to commit the alleged offense inthis case; or whether the defendant actually believed in the need to defendhimself; or whether the defendant acted in the heat of passion; or whether the defendant’s alleged actions in this case were the resultof mistake or accident. [¶] You may not consider this evidence for any other purpose. [¶] Don’t conclude from this evidence that the defendant has a badcharacter or is disposed to commit crimes. [¶] Evidence of the defendant’s gang membership or gang association by itself is not sufficient to prove the defendant’s guilt. The Prosecution still has the burden of proving the defendant guilty beyond a reasonable doubt.” (Italics added.)
Defendant’s proposed version of CALCRIM No. 1403 would have told the jury the gang evidence could be considered only for motive.
2. Analysis
Defendant does not argue that the challenged instructions were legally incorrect. Nor does he cite any legal authority for his claim that these limiting instructions improperly specified the potential relevance of the uncharged offense evidence and gang evidence. In considering defendant’s claim, we view the challenged portions of the instructions “ ‘in the context of the instructions as a whole and the trial record’ to determine ‘“whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ [Citations.]” (People v. Reliford (2003) 29 Cal.4th 1007, 1013.)
Considering the instructions as a whole, we find no reasonable likelihood that the jury would view them as emphasizing certain potential uses of the uncharged acts and gang evidence. The trial court here complied with the Bench Notes to CALCRIM No. 375, which specify: “The court must instruct the jury on what issue the evidence has been admitted to prove and delete reference to all other potential theories of relevance. [Citations.]” The standard CALCRIM No. 1403 instruction specifically provides for the option of telling the jury that gang evidence may be considered for determining whether the defendant actually believed in the need to defend himself and whether the defendant acted in the heat of passion. The instructions listed several potential uses of the uncharged acts and gang evidence; they did not draw the jury’s attention to any one potential use over the other or send a signal to the jury that the uncharged acts and gang evidence was in fact relevant to a particular issue. The instructions did, however, emphasize that the jury was not to use that evidence to conclude that defendant had a bad character or a criminal disposition, and they emphasized that the uncharged acts and gang evidence were not sufficient to prove defendant’s guilt.
In sum, the versions of CALCRIM No. 375 and 1403 given here did not lower the prosecution’s burden of proof.
D. Cumulative Error
Defendant contends that even if each asserted error was independently harmless, the cumulative effect of those errors requires reversal. (See People v. Hill (1998)17 Cal.4th 800, 844 [“a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error”].) However, we have not found multiple errors, and thus there can be no cumulative error.
IV. DISPOSITION
The judgment is affirmed.






______________________________________
BAMATTRE-MANOUKIAN, J.





WE CONCUR:




__________________________
ELIA, ACTING P.J.







__________________________
MIHARA, J.










Publication courtesy of California free legal advice.
Analysis and review provided by Carlsbad Property line Lawyers.
San Diego Case Information provided by www.fearnotlaw.com






People v. Cortes
H040743

[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2]Since the French family members have the same surname, we will refer to them by their first names for purposes of clarity and not out of disrespect.
[3] At the time of trial, Detective Montes was working as an inspector for the District Attorney’s office. We will refer to him as a detective because that was his position at the time of the relevant events.
[4] After finding Sergeant Morales qualified to testify as a gang expert, the trial court instructed the jury: “[T]his gang evidence is only to be considered by you in evaluating whether [defendant] had a motive to commit the crime charged, whether [he] had any specific intent or mental state for the crime charged . . . . [¶] So don’t consider this gang evidence for concluding that [defendant] has some predisposition to commit crimes or that he has personally associated with any of the persons that are spoken about who have committed other crimes. [¶] It’s for the limited purpose, not to conclude that [defendant] is a person of bad character, just to evaluate motive and specific intent on the night in question.”
[5] At the time of trial, Deputy Pool was working as a police officer in Texas. We refer to him as a deputy because that was his position at the time of the relevant events.
[6] Following Deputy Pool’s testimony about the incidents, the trial court instructed the jury not to “misuse this evidence that you’re hearing now about prior fights or testimony that you heard yesterday about the petty theft,” explaining, “[Y]ou cannot conclude from this evidence that [defendant] has a bad character or that he has a disposition to commit crimes. [¶] These offenses are not charged in this case. And if you conclude after all the evidence is presented that it’s more probably true than not that [defendant] committed these acts . . . , you can consider the evidence for the purpose of [e]valuating his state of mind on the night in question. [¶] You can consider this evidence for the purpose of determining his mental state or whether he had . . . motive to commit the charged offense.”
[7] Jacobs’s prior testimony was read to the jury.
[8] Hernandez’s prior testimony was read to the jury.
[9] Dr. Kuo had not testified at defendant’s first trial.
[10] The Attorney General contends the doctrine of judicial estoppel “does not apply to the prosecution in criminal cases,” but the cases cited in her brief do not set forth such a bright-line rule. In People v. Suff (2014) 58 Cal.4th 1013, the court declined to decide“whether the doctrine may apply against the prosecution in a criminal action.” (Id. at p. 1061, fn. 12.) In People v. Watts (1999) 76 Cal.App.4th 1250, the court noted, “It has been stated that the doctrine has not been applied against the prosecution in criminal actions [citations]” but also that “it has been postulated that the doctrine might apply where a prosecutor’s assertion of inconsistent theories would act to undermine society’s confidence in the fairness of the process [citation]” or “if the prosecution pursued wholly irreconcilable theories in attempting to secure a conviction against two defendants at two different trials.” (Id. at p. 1262.)