P. v. Gater

Filed 10/15/08 P. v. Gater CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed.

I.

INTRODUCTION

Defendant Demetrius Gater appeals from a judgment of conviction and sentence. A jury convicted Gater of murder, two counts of attempted murder, assault with a firearm, and carrying a loaded firearm, based on four separate incidents. The trial court sentenced Gater to 75 years to life plus an additional 20 years.

On appeal, Gater contends (1) that the trial court abused its discretion in denying his motion to sever the murder charge from the other charges, and/or that the joinder of the murder charge with the other charges denied him his right to a fair trial; (2) that his right to a fair trial was violated when the trial court admitted in evidence statements Gater and a fellow Skyline gang member made during wiretapped telephone conversations; (3) that the trial court improperly admitted statements Gater's brother made during a "free talk" interview with law enforcement officers; (4) that the trial court erred in admitting a photograph of the murder victim's body at the scene of the crime; (5) that the trial court erred in admitting in evidence a portion of witness Allan Reddick's police interview in which Reddick said a prayer; (6) that the trial court erred in admitting evidence that Reddick's house had been fire-bombed, as evidence tending to explain why Reddick recanted prior statements in which he had implicated Gater; (7) that the cumulative effect of the errors requires reversal; and (8) that the trial court violated Penal Code section 654^[1]in imposing both a four-year firearm enhancement and a ten-year gang enhancement related to Gater's conviction for assault with a semi-automatic firearm. We conclude that the majority of Gater's assertions of error are without merit. With regard to Gater's challenge to the admission of the statements Gater's brother made during his interview with police and Reddick's prayer at the end of his interview, even if we were to presume that the trial court should not have admitted in evidence either of

these statements, we would conclude that the admission of the statements does not constitute reversible error. We therefore reject Gater's assertion of cumulative error.

With regard to the issue of the application of section 654 to the firearm and gang enhancements, we conclude that the trial court did not err in imposing both the firearm enhancement and the 10-year gang enhancement related to the charge of assault with a firearm, without staying the gang enhancement. Consequently, we affirm the judgment and sentence of the trial court.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

1. The prosecution's case

The charges against Gater arose from four different incidents, three of which involved Gater shooting at rival gang members. In one of those incidents, Gater's victim died. In another, the victim was injured in the groin area, and in the third, the victim escaped without injury. While the final incident did not involve Gater shooting at anyone, police found a loaded semi-automatic firearm in Gater's possession. The prosecution alleged that Gater was a member of a criminal street gang and that he committed the charged crimes for the benefit of his gang.

a. Gang evidence

San Diego Police Detective Andrew Spear testified as a gang expert regarding Gater's affiliation with the Skyline-Piru (Skyline) gang. Detective Spear's primary area of expertise relates to the Skyline and O'Farrell Park (O'Farrell) street gangs. According to Spear, the Skyline and O'Farrell gangs are allies. Their mutual enemies include the Emerald Hills Blood Gang, the Lincoln Park Bloods, and the 59 Brims. Spear testified that the relationship between Skyline and O'Farrell is extremely close, and that disrespect shown toward one gang would be considered disrespect to the other. Spear identified Gater as a member of Skyline. According to Spear, Gater's moniker is "D." Gater and his brother, Marcus, are also called the "Gater Boys." Spear identified a photograph he confiscated during a probation search of another individual as depicting Gater, his brother, and other documented Skyline and O'Farrell members "throwing up" gang signs, meaning that they were displaying hand signs that represent gang affiliations.

Spear explained the meaning of a number of statements Gater made in a letter he wrote from jail to a girl who was apparently a Skyline affiliate. Spear understood Gater to be asking the girl to keep other Skyline members motivated to continue committing crimes so that rival gangs would know that "Skyline's out there, they're a factor, they're out there, they're putting in work . . . they're actively trying to shoot other gang members and kill them."

b. The Alexander murder

Eager Alexander was shot in the back of the head late on November 15, 2002, or early the following morning, on a sidewalk on C Street in downtown San Diego. An ambulance arrived at the scene and transported Alexander to the hospital, where he later died.

In the early morning of November 16, 2002, San Diego Police Detective Bruce Pendleton found two .45-caliber shell casings just southeast of the area where Alexander was found. Pendleton also noticed a bullet hole in a small window of a nearby hotel. He found a .45-caliber bullet inside the hotel, in a rug that was rolled up. Later testing established that the bullet and casings had been fired from the same gun.

Deputy medical examiner Christopher Swalwell conducted an autopsy on Alexander's body on November 17, 2002. Swalwell determined that a gunshot wound to the head caused Alexander's death. The bullet entered above Alexander's left ear and exited through his right eyebrow. Alexander did not die immediately upon being shot, but was declared brain dead several hours after the shooting. Alexander had a few superficial scrapes around his right eye and on the right side of his face. He also had scrapes on the back of his left hand and knee.

Denton Capell, a member of Skyline at the time of Alexander's death, was present at the scene. After Alexander was killed, Capell entered into an agreement with the district attorney's office pursuant to which Capell would receive relocation expenses in exchange for his truthful testimony. Capell testified that members of the Skyline and O'Farrell gangs were present at the scene of the Alexander shooting. Capell said that he did not remember Gater being there. Capell heard two shots that night, and witnessed Alexander fall to the ground, but did not see who shot Alexander. After Alexander was shot, everyone left the scene. Capell acknowledged that he was reluctant to testify as to everything he knew about the Alexander shooting because he feared for his family's safety.

The jury also heard an interview that Detective Pendleton conducted with Capell in February 2005. Capell was in custody at that time for giving false information to a police officer. During the interview, Capell told Pendleton that he saw Gater fire a gun at Alexander twice as Alexander tried to run away from the group of Skyline and O'Farrell members. After the shooting, Capell asked Gater why he had shot Alexander, and Gater replied that he did not know.

Allan Reddick, a friend of Gater's and a Skyline member, was also present at the scene of the Alexander murder. At the time of Gater's trial, Reddick was on probation for having falsely identified himself to a peace officer. Reddick admitted that he did not want to testify against Gater. Reddick claimed that he could not remember many details of the Alexander shooting, including whether Gater had been present at the scene that night. When faced with prior statements he had made to the effect that Gater and his brother Marcus had been present that night, Reddick acknowledged having said that, but ultimately stated that he did not in fact know whether Gater had been there, after all. Although Reddick did not acknowledge that he was afraid to testify, he did admit that he had previously cooperated with police in another matter, and that his house had been burned down afterward.

The jury heard a recording of an interview between Detective Pendleton and Reddick that occurred in October 2003. During that interview, Reddick said that a member of O'Farrell had instigated a fight on the night of the Alexander shooting, and that a group of people had "jumped" Alexander. When Alexander tried to run away from the group, he was shot. Reddick initially told Pendleton that an individual named "Ricky" was the person who instigated the fight and shot Alexander. Reddick subsequently told Pendleton that he had not seen the shooter. When Pendleton told Reddick that he had heard that one of the "Gater boys" was the shooter, Reddick acknowledged that he had heard this, too, and claimed, at first, that he had heard that Marcus Gater was the shooter. After Pendleton told Reddick that he had heard that Demetrius Gater was the shooter, Reddick admitted that he, too, had heard this. When Pendleton asked Reddick whether he had witnessed either of the Gater brothers involved in the fight, Reddick responded, "[M]an I don't want to put my life in danger." Reddick then stated that Demetrius was the shooter, but later qualified his statement, claiming that he knew that the shooter was one of the Gater brothers, but that he did not know which one. Reddick knew that the shooter had been wearing a black hoodie, and that Demetrius had been wearing a black hoodie on the night Alexander was shot, while Marcus had been wearing a gray hoodie.

Gater's brother, William Trice, testified that Gater admitted months after the shooting that he was the one who had shot Alexander. Trice said that he was not present at the scene when the shooting occurred, but that Gater had described to him what had happened. According to Trice, Gater explained that Alexander was "trying to be a bad ass" and was "[t]rying to start shit." Alexander had been "[t]hrowing up gang signs," so Gater and "his homeys" beat up Alexander. Alexander apparently ran off, but then returned. Trice said he guessed that Alexander "wanted more problems." As Alexander tried to run off again, Gater chased him down and shot at him twice. Gater told Trice that he shot Alexander in the back and in the head.^[2]

Another Skyline member, Jimmie Lee Hunter, testified that Gater told him about Alexander's murder while they were incarcerated together.^[3] Gator explained to Hunter that he and some other Skyline and O'Farrell members had gone downtown on the night of the murder and had run into Emerald Hills members, including Alexander. When Alexander approached them, they "jumped" him. Alexander then ran away. As Alexander was running, Gater shot him twice in the head with a .45-caliber gun.

Detective Spear testified that in his opinion, a hypothetical crime based on the facts of Alexander's murder would have been committed for the benefit of a criminal street gang. According to Spear, because the victim was a member of a rival gang, his death would benefit the shooter's gang by demonstrating that the gang's members are willing to perpetuate violence on their rivals. The murder would also bolster a gang's

reputation by causing rival gang members and community members to be in fear, which would mean in turn that people would be less willing to call the police to report crimes and/or testify against a gang member in court.

c. The Roberson attempted murder

Fredrick Roberson was shot by a suspected Skyline or O'Farrell member on the night of April 18, 2003, in Emerald Hills. Roberson suffered a gunshot wound to the groin area. The bullet damaged his femoral vein and artery. He was hospitalized for five days and underwent surgery.

San Diego Police Officer John Cochran responded to the scene of the Roberson shooting. Cochran collected four nine-millimeter shell casings from ammunition for a semi-automatic firearm in the street near where Roberson was shot.

At trial, Roberson could not recall much of what happened on the night he was shot, or what he had told officers after the shooting. He remembered that he had tried to pull a gun out of his pocket, but that he was hit by a bullet before he could get a shot off. Roberson knew Gater from school. Roberson testified that Gater was not the person who shot him and said that he had not seen Gater on the night of the shooting.

Detective Jeff Johnson interviewed Roberson on April 19, 2003 at Mercy Hospital. Roberson told Johnson that just before he was shot, he had been walking home when three cars drove by him and caught his attention. As the cars passed, he heard someone yell, "Fuck Emerald Hills." Roberson started to run and heard a gunshot. The shot hit Roberson. Roberson did not identify the shooter.

Detective Patrick Murphy interviewed Roberson in October 2003. Roberson told Murphy that a line of cars had driven past him on the night he was shot. Someone in one of the cars said, "Fuck Emerald Hills," and someone in another car threw a Skyline gang sign. Roberson said that the shooter was a dark skinned Black male who was riding in a Camaro. Roberson was shown a photographic lineup, which included a picture of Gater. Roberson did not identify any of the individuals in the lineup as having been involved in the shooting.

Detective Murphy interviewed Capell, who told Murphy that he was present when Roberson was shot. Capell said that he had been driving one vehicle in a convoy of about six vehicles. Gater and Reginald Moore were in a blue Camaro. Capell also said that he saw Gater shoot four or five rounds from a .38-caliber revolver. At trial, Capell denied that he was present when Roberson was shot. He also denied having made the statements that Murphy attributed to him.

Trice testified that Gater told him about Gater's involvement in the Roberson shooting. Gater told Trice that he fired between two and four shots, and that he hit Roberson in the stomach.

Detective Spear opined, based on a hypothetical scenario, that a crime like the Roberson shooting would have been committed for the benefit of a criminal street gang, for the same reasons he cited with regard to the Alexander shooting.

d. The Hardy Smith shooting

On September 8, 2003, Hardy Smith, a 59 Brims gang member, was standing outside his home in Paradise Hills when a tan car drove up to the house and stopped. One of the passengers in the car got out and fired two shots toward the house. One shot hit a car and another hit a wall of the house. Smith was not injured.

Eduardo Arreguin testified that he was the person who was driving the car that day, and that Gater was the shooter. According to Arreguin, he was with Gater at Morse High School on the day of the shooting. Arreguin agreed to give Gater and two other individuals a ride in his car. Arreguin drove the group to Moonlight Liquor store. Everyone except Arreguin got out of the car and went into the store. Upon returning to Arreguin's car, Gater got in the front passenger seat and told Arreguin to follow another car that had also been parked at the liquor store.

As Arreguin drove through the neighborhood, Gater pointed to someone and called him "Hardy." As Arreguin and his passengers drove by Hardy Smith's house, someone in front of the house yelled, "Fuck Skyline." Arreguin stopped the car and Gater got out. Arreguin thought that Smith had a gun in his pants, but he never saw Smith display a gun. Arreguin heard arguing and then heard two or three shots. He thought that the gunshots had come from behind him, going toward Smith's house. Gater ran back to the car. Arreguin did not see a gun in Gater's possession.

Ernest Alexander was called to testify at Gater's trial. Ernest said that he did not know anything about the September 8 shooting. Ernest's mother, Vaneisha Haggerty, also said that she knew nothing about the shooting. However, Detective Brian Pendleton had interviewed Haggerty on the day of the shooting. At that time, Haggerty told Pendleton that her son, Ernest, had said that he and a friend had been driving home on the day of the shooting when they noticed that they were being followed by another car. When they arrived home and got out of the car, they noticed that the other car had stopped. Ernest saw the front passenger get out of the car. He told his mother that the "Gater boys" were responsible for the shooting. Haggerty did not allow Pendleton to speak with her son.

On the afternoon of September 8, 2003, 14-year-old Anthony Gonzalez and a friend were in Gonzalez's garage. Gonzalez lived on the same street as Smith. The two boys saw a beige Nissan Maxima pull up and stop in front of Smith's house while Smith was outside washing his car. Gonzalez watched as someone got out of the front passenger seat and said something to Smith. The man lifted his shirt, and Gonzalez could see that he had a gun tucked into his pants. The man walked back to the car, leaned into the car, then turned around and fired two shots toward Smith's house. He then got into the car and the car drove away. Gonzalez could not identify the shooter, but described him as an African-American male, in his 20's.

Smith testified that he remembered washing his car in front of his home on September 8, 2003, but said he remembered nothing about a shooting on that date. Smith had previously told Detective Johnson that he had been washing his car in his driveway when a car pulled up in front of the house. A passenger got out of the car and said, "[W]hat's up." Smith understood this to be a challenge to fight. The passenger then pulled a nine-millimeter handgun from the car. Smith ran back toward his house and heard two gunshots. Smith showed Johnson the bullet holes in his car and house. However, Smith refused to identify anyone who participated in the shooting. Smith told Detective Johnson that he did not want to be a "snitch," and said he was worried about what would happen to his mother if something were to happen to him.

Officer Scott Christie responded to the Smith residence on the day of the shooting. Christie recovered two nine-millimeter shell casings near Smith's car, and noticed a bullet hole in the driver's door of Smith's car and another bullet hole in a wall of Smith's house.

Trice testified at trial that Gater admitted that he had been in a car that was chasing another car away from the Moonlight liquor store. As they approached Smith's house, he saw a group of men from another gang. Gater "called them out," but apparently none of them wanted to fight. Gater told Trice that he acted as if he was going to get back into the car, but instead turned around and started shooting at the men.

Hunter also testified that Gater told Hunter that he participated in the shooting at Smith's house. Gater told Hunter that he and three others drove to Smith's house. Smith was with two other members of the 59 Brims. Gater wanted to fight Smith, but Smith refused. Gater told Hunter that he shot a nine-millimeter gun into the air to scare the men. According to Gater, he wasn't aiming at anyone in the group.

Gang expert Detective Spear was presented with a hypothetical example based on the facts of the Smith shooting. Spear opined that such a shooting would have been committed for the benefit of a criminal street gang.

e. Gater's possession of a weapon

On September 27, 2003, LaQuisha Rodgers and her boyfriend, Lorenzo Peay, were sitting in Peay's car talking to Gater in front of Gater's house on Manzana Drive in San Diego. Gater noticed a police vehicle coming toward them. He leaned toward Peay's car and attempted to throw a gun that he had been carrying in his waistband into the car. As the police officers grabbed Gater and pulled his hands behind his back, the gun fell into Peay's car through the open window.

Officer Frank Wilson arrested Gater. Wilson found a nine-millimeter semi-automatic handgun on the floor of Peay's car near Rodgers's feet. The handgun was loaded with one round in the magazine.

2. The defense

Megan Brown testified that Gater was at a football game with her on the night Alexander was killed. She said that he showed up at her house sometime after 9:30 that evening, and that he was still there when she fell asleep at around 11:30. She testified that Gater was at her house two to three hours after 11:30 p.m. Brown also saw Gater on the day after the shooting and said that Gater was not behaving any differently from the way he usually did. Brown's friend Brittany White testified to similar events. However, White stated that she did not know whether Gater had spent the night at Brown's house.

Tracey Wheeler, one of Trice's ex-girlfriends, testified that Trice lied and abused drugs, and said that he would do or say anything to stay out of jail.

Gater's mother, Pamela Gater, testified that Trice (who is also her son) had a reputation for being untruthful and for using drugs. Pamela Gater testified that Trice told her that he had lied to police officers about Gater's involvement in the crimes because he was facing 15 years in prison and did not want to go to prison.

Gater's counsel questioned San Diego Police Detective D'Ann Carter about an incident in which she responded to Skyline Park on May 16, 2003. During that incident, Carter contacted a group of men, including Thomas Lindsay. Another detective found a nine-millimeter semi-automatic gun in a garbage can near where Lindsay was standing. The San Diego Police Department firearms unit tested the gun and determined that the four casings found at the scene of the Roberson shooting had been fired from that gun.

B. Procedural background

Gater was originally charged with five offenses in two separate cases. On March 3, 2006, the San Diego County District Attorney filed a document entitled "Consolidated Amended Information and Indictment." The consolidated charging document charged Gater with one count of murder ( 187, subd. (a) (count 1)); two counts of attempted murder ( 664, 187, subd. (a) (counts 2 and 3)); one count of assault with a semi-automatic firearm ( 245, subd. (b) (count 4)); and one count of carrying a loaded firearm ( 12031, subd. (a)(1) (count 5)).

On August 11, 2006, a jury convicted Gater on all five counts. Specifically, the jury found Gater guilty of first degree murder with regard to Alexander's death. The jury also found that in the commission of the murder, Gater personally used a handgun ( 12022.53, subd.(b)), personally discharged a handgun ( 12022.53, subd. (c)), and personally discharged a handgun proximately causing the death of another ( 12022.53, subd. (d)). The jury also found true the allegation that Gater committed the murder for the benefit of, at the direction of, or in association with a criminal street gang ( 186.22, subd. (b)(1)).

The jury convicted Gater of premeditated attempted murder as to Roberson ( 664/187, 189). With regard to that offense, the jury found that Gater personally used a handgun ( 12022.5, subd. (a), 12022.53, subd. (b)) and personally discharged a handgun ( 12022.53, subd. (c)). The jury determined that Gater was a principal in the offense, and that at least one principal used a firearm ( 12022.53, subds. (b), (e)(1)), at least one principal discharged a firearm ( 12022.53, subds. (c), (e)(1)), and at least one principal used a firearm proximately causing great bodily injury to another ( 12022.53, subds. (d), (e)(1)). The jury also found true the gang enhancement allegation ( 186.22, subd. (b)(1)).

The jury also found Gater guilty of the attempted voluntary manslaughter of Smith, a lesser included offense of the attempted murder charge ( 664/192, subd. (a)). With regard to this count, the jury found that Gater personally used a firearm ( 12022.5, subd. (a)) and that he committed the crime for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). The jury also convicted Gater of assaulting Smith with a semi-automatic firearm ( 245, subd. (b)), and found true the allegations that Gater personally used a handgun ( 12022.5, subd. (a)) and that he committed the crime for the benefit of a criminal street gang ( 186.22, subd. (b)(1)).

With regard to count 5, the jury found Gater guilty of carrying a loaded firearm ( 12031, subd. (a)(1)). The jury also found that Gater was an active participant in a criminal street gang at the time he committed the offense ( 12031, subd. (a)(2)(C)).

On April 16, 2007, the trial court sentenced Gater to an indeterminate term of 75 years to life, plus a determinate term of 20 years. The sentence consisted of (1) 25 years to life on count 1, plus an additional, consecutive sentence of 25 years to life for the enhancement for intentional and personal discharge of a firearm proximately causing death;^[4](2) life with the possibility of parole, to run consecutively to the sentence on count 1 (count 2), plus an additional consecutive sentence of 25 years to life for the enhancement for personal discharge of a firearm by a principal causing great bodily injury;^[5](3) the midterm of six years, stayed pursuant to section 654 (count 3);^[6](4) the midterm of six years, consecutive (count 4), plus an additional consecutive sentence of 10 years for the gang enhancement and a consecutive sentence of four years for the enhancement for personal use of a handgun; and (5) the midterm of two years, concurrent (count 5).

Gater filed a timely notice of appeal.

III.

DISCUSSION

A. The trial court did not err in denying Gater's motion to sever the murder

charge from the remaining charges

1. Additional background

The prosecutor moved to consolidate the Alexander murder case with the cases involving the charges of attempted murder, assault with a firearm, and possession of a loaded firearm. Gater opposed the motion. The trial court granted the prosecutor's motion and consolidated the cases. The court found that joinder of the offenses "would not be unduly inflammatory."

Gater subsequently moved to sever the murder charge from the remaining charges. Defense counsel argued that because the other two shootings occurred after the Alexander shooting, evidence of the other shootings could not establish Gater's motive or intent at the time Alexander was killed. Defense counsel also argued that the issues of motive and intent were not going to be at issue at trial, and that only the identity of the shooter was in dispute. He further contended that the evidence was not cross-admissible on the issue of identity because the crimes were not sufficiently similar to prove the identity of the perpetrator.

The prosecutor asserted that evidence pertaining to the murder charge would have been admissible in separate trials on the other charges because the offenses were similar enough to support a rational inference as to motive and intent.

The trial court denied Gater's motion to sever the murder charge from the other charges. The court concluded, however, that Gater was entitled to a limiting instruction regarding the cross-admissibility of the evidence as to each of the charges.

Before the presentation of evidence, the trial court gave the jury the following limiting instruction:

"Four separate and distinct incidents will be presented to you during the course of this trial. It is up to you to consider the evidence on each of the four incidents separately and to decide the charges related to each incident separately.

[] . . . []

"You may consider the evidence from one incident in relation to another incident for the limited purpose of determining whether the defendant, Demetrius Gater, had a motive [or] the required intent to commit each charged crime.

"A finding of guilty or not guilty on one count does not automatically mean that you find the same way on the other counts. Judge each count separately.

"You may not conclude that because more than one incident has been charged that the defendant has a bad character or is disposed to commit crime."

The court instructed the jury in a similar manner at the close of evidence.

2. Analysis

a. The law governing joinder of criminal charges

Section 954 permits the joinder of different offenses under certain circumstances: "An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately."

In a situation in which the statutory requirements for joinder are satisfied, a defendant seeking severance must make a clear showing in the trial court of the potential prejudice that could result from joining the charges. (People v. Bradford (1997) 15 Cal.4th 1229, 1314-1315 (Bradford).) This court reviews a trial court's ruling on a motion to sever for an abuse of discretion. (Id. at p. 1315.)

"'"The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial." [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a "weak" case has been joined with a "strong" case, or with another "weak" case, so that the "spillover" effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]' [Citations.]" (Bradford, supra, 15 Cal.4th at p. 1315.)

These criteria "are not equally significant." (Bradford, supra, 15 Cal.4th at p. 1315.) "'[T]he first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would have been admissible, under Evidence Code section 1101, in separate trials on the others.'" (Bradford, supra, 15 Cal.4th at pp. 13151316.) If evidence on each of the joined charges would have been admissible in separate trials on the charges, any likelihood of prejudice in the denial of a motion to sever is dispelled. (People v. Maury (2003) 30 Cal.4th 342, 393.)

b. Trial court did not abuse its discretion in permitting the charges

to be tried together

(i) Evidence of the offenses was cross-admissible

"Evidence of crimes committed by a defendant other than those charged is inadmissible to prove criminal disposition or a poor character. '[B]ut evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code,  1101.) Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. . . .' [Citation.]" (People v. Lenart (2004) 32 Cal.4th 1107, 1123 (Lenart).)

"To be relevant to prove identity, the uncharged crime must be highly similar to the charged offenses, while a lesser degree of similarity is required to establish relevance to prove common design or plan, and the least similarity is required to establish relevance to prove intent. [Citations.]" (Lenart, supra, 32 Cal.4th at p. 1123.) "'[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . ' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant '"probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt), superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.) In addition, evidence of an uncharged crime is admissible only if it has "substantial probative value that is not greatly outweighed by the potential that undue prejudice will result from admitting the evidence. [Citations.]" (Lenart, supra, 32 Cal.4th at p. 1123.)

"'On appeal, the trial court's determination of th[e] issue [of the admissibility of other uncharged crimes], being essentially a determination of relevance, is reviewed for abuse of discretion.' [Citation.]" (Lenart, supra, 32 Cal.4th at p. 1123.)

Gater does not dispute that the crimes meet the statutory requirements for joinder. He also does not specifically challenge whether the crimes were sufficiently similar to be cross-admissible on the issue of intent. Rather, Gater asserts that evidence of the charged crimes was not cross-admissible because "motive and intent were not disputed issues." He contends that the prosecution presented "ample evidence that the various crimes alleged against appellant were all gang-related," and "[t]hus the issue of motive was well-established and not disputed by the defense." Gater further asserts that "[t]he issue of intent to kill was also not contested in the Alexander murder case."

Although Gater's primary defense at trial was that he was not the person who shot Alexander, this fact did not take the issue of intent out of contention. The prosecution still had to prove that Gater intended to kill Alexander. Further, the fact that the prosecution presented other evidence that the crimes were gang related does not mean that the trial court abused its discretion in determining that evidence of the various crimes was cross-admissible for purposes of proving Gater's intent to commit any one of those crimes.

(ii) There was no prejudicial "spillover" effect

We reject Gater's contention that the trial court's refusal to sever the charges created an unfairly prejudicial "spillover" effect, such that the cumulative impact of the evidence of all of the crimes may have caused the jury to believe that Gater was guilty of each individual crime. There was not a charge as to which the evidence was particularly weak. Rather, there was abundant evidence presented to demonstrate Gater's guilt as to each offense. Considering the fact that the evidence of the other crimes was cross-admissible, we are not persuaded that the result of the trial would have been different if these charges had been tried separately.

(iii) None of the charges was unusually inflammatory

Gater contends that joining the Alexander murder charge with the other charges was particularly unfair because the murder charge was highly inflammatory and may have altered the jury's decisions on what he calls "the less inflammatory alleged attempted murder cases." We disagree. Although Alexander died as a result of being shot while Roberson and Smith did not, the facts of all three shootings were similar. None of the shooting incidents was particularly more violent than the others. Gater asserts on appeal that the facts of the Alexander murder were more inflammatory than the facts of the other shootings because Alexander was not armed and was outnumbered by rival gang members. However, although Gater's other victims may have been armed, there was no evidence that either of them displayed a weapon or had the opportunity to draw a weapon. In addition, in those incidents, Gater arrived at the scene flanked by friends. For example, in the Roberson case, Gater shot from one car in a lengthy procession of cars. Because the facts of the Alexander murder are not more inflammatory than those of the other shootings, the trial court did not abuse its discretion in concluding that the charges should be tried together.

b. Joinder of the charges did not result in a denial of due process

Gater asserts that the trial court's denial of his motion to sever amounts to a denial of due process. "'[E]rror involving misjoinder "affects substantial rights" and requires reversal . . . [if it] results in actual prejudice because it "had substantial and injurious effect or influence in determining the jury's verdict."' [Citations.]" (People v. Grant (2003) 113 Cal.App.4th 579, 587.) "In other words, the defendant must demonstrate a reasonable probability that the joinder affected the jury's verdicts. [Citation.]" (Id. at p. 588.)

In light of the fact that evidence as to each shooting was cross-admissible and that the evidence was more than minimally relevant to establishing Gater's intent, Gater has not established that the joinder of counts rose to the level of a constitutional violation. (See People v. Sapp (2003) 31 Cal.4th 240, 259260 ["Having concluded that defendant suffered no prejudice from the joint trial of the three murder counts, we also reject his contention that the joint trial violated his due process rights"], citing United States v. Lane (1986) 474 U.S. 438, 446, fn. 8 ["'Improper joinder does not, in itself, violate the Constitution' but rather 'rise[s] to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial'"].)

B. The wiretapped telephone conversations

Gater asserts that his due process right to a fair trial was violated when the trial court admitted evidence that was obtained through wiretaps of another Skyline member's home and cellular telephones. The challenged evidence includes conversations between Gater and Larry Jones in which the two men discussed the shooting death of an affiliate of the Skyline gang and their reactions to that event, including their desire to commit further violence in retaliation for the death.

1. Additional background

In April and May 2003, officers wiretapped the home and cellular telephones belonging to Larry Jones, a Skyline member. At trial, the prosecution introduced recordings of some intercepted telephone calls between Jones and Gater.

Defense counsel objected to the admission of the intercepted conversations on the ground that the evidence was more prejudicial than probative, and was likely to confuse the issues and mislead the jury. Specifically, defense counsel objected to certain conversations in which Gater and Jones discussed the shooting death of someone who Gater and Jones referred to as Maximilian, an affiliate of Skyline. Maximilian's true name was Melvin Patterson. According to defense counsel, there was an alleged agreement between some Skyline members to go to Oceanside to try to find and shoot members of the gang responsible for killing Patterson. Gater was not charged with any crime related to the Patterson shooting or with any actions taken in response to that killing.

The prosecutor responded that Gater's discussion of Patterson's death was relevant to Gater's motive with regard to the gang, as well as to demonstrate for the jury both Gater's demeanor and his voice. The court admitted the evidence for the purposes the prosecutor identified, and offered to give a limiting instruction to the jury. When asked by defense counsel if the court was ruling that the evidence was relevant, the court stated, "I think it's relevant to show well, look. This is all these crimes are done in furtherance of a criminal street gang. And I suppose that it is, therefore, relevant that he's committed to a criminal street gang, and also that you have proven that Skyline is a criminal street gang, [and] his level of commitment to it and I think is [sic] relevant and his willingness to act on behalf of the criminal street gang is relevant and probative." The court also noted that admitting the conversations in evidence would give the jury an opportunity to hear what Gater's voice sounds like.

The prosecutor added that he intended to use the intercepted telephone conversations to demonstrate that as a result of Patterson's death, Skyline had "taken a loss, one of their members has been killed," and that this event had "stir[red] them into activity," leading to the Roberson shooting a day and a half later. Defense counsel objected to the use of the evidence for this purpose. The court eventually ruled that the prosecutor could not argue that the evidence demonstrated that the Roberson shooting occurred in direct retaliation for Patterson's death. The court reiterated its prior decision that the prosecutor could use the wiretapped conversations to argue that "Mr. Gater's a motivated street gang member that wants to act on behalf of his gang, for the benefit of his gang, and then after this conversation, two days later, he does."

The jury heard several of the intercepted telephone conversations, including two that took place on April 17, 2003. In the first conversation, Gater asked Jones whether he had heard that Patterson had been killed by members of a rival gang. Later in that conversation, Gater said that he needed to get a pistol because the rival gang members had pistols. In another telephone conversation between Gater and Jones that same night, Jones said, "We got to go up there," meaning that they should go to Oceanside, where Patterson had been shot and killed. Gater responded, "For real, tear them niggas' asses up."

The jury also heard a recording of a telephone conversation between Gater, Jones, and Gregory Fulgham, another Skyline gang member, that took place on April 20, 2003. During that conversation, Gater asked Fulgham if he had heard what Gater had done a couple nights before. Fulgham guessed that Gater had shot someone, and Gater told Fulgham that he had shot "Fred Rabbit." Roberson testified that his nickname was "Little Fred Rabbit."

The trial court admonished the jury regarding the wiretap evidence after the prosecutor played the recordings and again at the conclusion of the presentation of all of the evidence. The court instructed the jury:

"Up to this point you have heard a number of voice recordings in this case. You are only to consider these recordings as possible evidence of Mr. Gater's involvement in a criminal street gang, for motive and for voice recognition. [] You are specifically instructed not to consider these recordings as evidence that Mr. Gater had any involvement in the Melvin Patterson/Maximilian shooting or any possible retaliation related to it.

During closing argument, the prosecutor argued that the wiretapped conversations demonstrated that Gater was motivated to shoot and kill other gang members. The prosecutor noted that Gater had talked about his desire to obtain guns, and also commented on Gater's "[c]onstant use of gang terms." According to the prosecutor, the intercepted calls were "hard core gang conversations and gang conduct." The prosecutor also mentioned Gater's discussion regarding the Patterson killing: "And, of course, you also heard the call regarding the Patterson shooting where he and Larry Jones were talking about a fellow Blood who was murdered up in Oceanside, and they both were deciding together we got to do something about that. 'Even the squares got pistols now. We got to do something about that.'"

Later, the prosecutor argued "Why do you know defendant shot Mr. Roberson, the second case? Of course, he had the motive. Emerald Hills-Skyline. It happened the day after Mr. Patterson, Melvin Patterson, is murdered up in Oceanside. You heard him on the phone, hey, we got to do something. He's at least stirred up. Stirred into activity by the Melvin Patterson murder." Defense counsel did not object.

2. Analysis

Gater contends that the conversations between Jones and Gater concerning Patterson's death were irrelevant to any material issues in the case, were unduly prejudicial to him, and confused the issues for the jury. "The abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence. [Citation.] This standard is particularly appropriate when . . . the trial court's determination of admissibility involved questions of relevance . . . and undue prejudice. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1113 (Guerra).) A proper exercise of discretion is "'neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Exercises of discretion must be "'grounded in reasoned judgment and guided by legal principles and legal policies appropriate to the particular matter at issue." [Citation.]" (Ibid.) Thus, although the abuse of discretion standard is deferential, "it is not empty." (People v. Williams (1998) 17 Cal.4th 148, 162.) The standard "asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts. [Citations.]" (Ibid.)

Gater cites Evidence Code section 1101, subdivision (b) to support his assertion that evidence of uncharged crimes is inadmissible to show the defendant's disposition to commit a particular crime, suggesting that evidence concerning the Patterson shooting was inadmissible to show that Gater was disposed to shoot anyone. Evidence Code section 1101, subdivision (b) provides in pertinent part: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact . . . other than his or her disposition to commit such an act." Evidence of the Patterson shooting was not admitted for the purpose of showing that Gater was disposed to commit the Roberson shooting. In fact, the evidence of the "uncharged crime" to which Gater is objecting concerns a crime that Gater is not alleged to have committed. It is thus unlikely that the jury could have used knowledge of the Patterson shooting to infer that Gater was disposed to commit any particular crime.

Gater further contends that the statements he made to Jones during their telephone conversations, and in particular, the discussion of the Patterson shooting, were far more prejudicial than probative. Gater complains that there was "no evidence of any connection between the shooting of Fred Roberson . . . and the shooting of Melvin Patterson," and that the mere fact that the two shootings occurred just days apart "is not dispositive." He claims that "[e]vidence of the Patterson shooting was not relevant as to any of the issues for which it was admitted appellant's involvement in the Skyline gang, his motive, and for 'voice recognition.'"

As the trial court found, however, this evidence was particularly relevant to the question whether Gater committed the Roberson shooting for the benefit of a criminal street gang. Further, contrary to Gater's implied suggestion on appeal, the evidence was not introduced "only to show [Gater's] criminal disposition or bad character . . . ." Rather, it was introduced to show that Gater was motivated to act on behalf of his gang, and it was evidence from which the jury could reasonably infer that Gater shot at Roberson with the specific purpose of benefiting Skyline, a criminal street gang. That issue was clearly in contention at trial.^[7] The evidence was also relevant to the prosecution's claim that the Roberson shooting was a willful and premeditated attempted murder.

We reject Gater's contention that the intercepted telephone conversations were substantially more prejudicial than probative. "'Evidence is substantially more prejudicial than probative (see Evid. Code, 352) if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome." [Citation.]' [Citation.]" (People v. Jablonski (2006) 37 Cal.4th 774, 805.) The content of the conversations was not unduly prejudicial. Although Gater and Jones were clearly discussing gang-related issues, their statements were not particularly inflammatory. The trial court did not abuse its discretion in determining that admitting this evidence would not pose an "intolerable" risk that Gater would not receive a fair trial. Additionally, the court's limiting instruction to the jury mitigated the potential prejudice to Gater that could occur as a result of the introduction of this evidence. The court specifically instructed the jury not to consider the intercepted telephone calls "as evidence that Mr. Gater had any involvement in the Melvin Patterson/Maximilian shooting or any possible retaliation related to it."

Gater further asserts that the admission of recordings of the intercepted telephone calls "created the additional substantial danger of confusing the issues and misleading the jury." Although he does not expressly say so, Gater suggests that the jury might have been confused about whether he had something to do with the Patterson shooting, in light of the fact that he was charged with a number of other shooting-related crimes. It is not likely that the jury was confused about whether Gater was involved in the Patterson shooting, since it was clear from the conversation between Gater and Jones that they were angered by the shooting. Their discussion centered around their desire to retaliate for the Patterson shooting. In addition, the trial court gave a clear admonition to the jury that the jury was not to consider telephone recordings as evidence that Gater was in any way involved in the Patterson shooting, thus dispelling any concern that the jury would be confused about Gater's possible involvement in the Patterson shooting.

C. The recording of Trice's "free talk" with the prosecutor and a detective

Gater contends that Trice's statement about why appellant shot Alexander constitutes inadmissible hearsay. He further contends that this evidence was not properly admissible to bolster Trice's credibility because the statements were admitted as prior consistent statements, which are admissible to prove a witness's credibility only under certain circumstances that Gater contends do not exist here. (See Evid. Code,  791.) According to Gater, the admission of Trice's opinions as to why Gater shot Alexander "served only to inflame the passions of the jury," resulting in undue prejudice to Gater.

1. Additional background

During the prosecutor's case-in-chief, Trice explained on direct examination that he had signed a cooperation agreement with the district attorney's office. In exchange for his cooperation and truthful testimony at Gater's trial, Trice hoped to be allowed to withdraw his previously entered guilty plea to a robbery charge, for which he was facing 15 years in state prison, and instead enter a plea to a non-strike offense. At trial, Trice implicated Gater in the Alexander, Roberson, and Smith shootings.

On cross-examination, Trice acknowledged that he had provided information about Gater's participation in the offenses only after he, Trice, was arrested for robbery. Trice explained that he was taken to the district attorney's office where he engaged in a "free talk," which he described as an interview that took place after the prosecutor promised that he would not use the information obtained during the interview against Trice. Trice understood that after the prosecutor heard the information, the prosecutor would determine whether to offer Trice a deal with respect to the sentence he was facing. Trice agreed to cooperate with the prosecutor and signed a cooperation agreement.

Pamela Gater, Trice and Gater's mother, testified that Trice had a reputation for being dishonest. She further testified that Trice had told her that he had lied when he implicated Gater in the murder because he wanted a sentence shorter than the 15 years he was otherwise facing.

During rebuttal, the prosecution introduced in evidence a transcript of Trice's "free talk." The transcript included the following colloquy:

"[Trice]: Will I see my brothers anymore? I can't see my

mom? Nah, I'm not doing it. I'll go and if you put

me in as a witness I'll go and say I lied just to get

out of jail or some bullshit.

"[Prosecutor]: Right. Right.

"[Trice]: I'm not doing this against my brothers. Anybody

else, I tell you anything and everything.

"[Prosecutor]: I got you.

"[Trice]: But as far as my brother, I'm not going to do that."

After a detective reminded Trice that he had already implicated Gater in previous statements and suggested that Trice could improve his own situation by cooperating, Trice answered the detective's questions about the Alexander murder in a manner consistent with his testimony at trial. When the detective asked Trice why Gater had shot Alexander, Trice said, "Cause he's that way. He always wanted to be the one who has the gun. He always wants to be the one who shoots." When Trice was asked why Gater did "stupid stuff," Trice responded that Gater "[d]oesn't care." In response to being asked whether Gater thought that nothing would happen to him, Trice said, "Yep. Pretty much."

2. Analysis

The People contend that Gater waived his challenge to the admission of Trice's out-of-court statements.^[8] Generally, a defendant fails to preserve a claim for review if trial counsel fails to object to the admission of evidence on the ground raised on appeal. (People v. Dennis (1998) 17 Cal.4th 468, 530 ["The general rule . . . precludes review of questions on admissibility of evidence absent a timely and specific objection in the trial

court on the ground urged on appeal"].) However, Gater also argues that his trial counsel was ineffective for failing to object to the introduction of Trice's free talk interview. We therefore consider the merits of the claim. (See People v. Marlow (2004) 34 Cal.4th 131, 150.)

Gater asserts that the statements Trice made during his free talk interview constitute inadmissible hearsay to which no legal exception applies. According to Gater, Evidence Code section 791, which permits the admission of out-of-court statements that constitute prior consistent statements, is not applicable here.^[9] Gater argues that subdivision (a) of Evidence Code section 791 does not apply because no inconsistent statement had been