P. v. Gutierrez

Filed 10/29/07 P. v. Gutierrez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Jose Robert Gutierrez was convicted of one count of murder (Pen. Code,  187),[1] and two counts of attempted deliberate and premeditated murder ( 187/664). The crimes arose out of shootings outside of a Salinas restaurant on January 17, 2004. The jury also found true certain special allegations, including the allegation that the crimes were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). The court sentenced defendant to a term of 125 years to life in state prison.

Defendant claims on appeal that his constitutional rights were violated by the denial of discovery of several documentary items asserted to be confidential; they were reviewed by the court in camera prior to orders denying disclosure. He also argues that the trial court abused its discretion by denying his posttrial motion for disclosure of confidential juror identifying information. Lastly, defendant claims that the court prejudicially erred by admitting gang expert testimony that he claims was irrelevant and prejudicial.

We conclude that the court did not err by denying defendants request for discovery of confidential documents. We hold further that the denial of defendants motion for confidential juror information did not constitute an abuse of the courts discretion. Lastly, we conclude that there was no error in the admission of gang expert testimony. Accordingly, we will affirm the judgment.

FACTS[2]

I. The Shooting Incident

On the evening of January 17, 2004, Gustavo Silva drove his red Chevy pickup truck with two friends, Victor Loyo and Ramiro Barrios, from the Monterey Peninsula to the Northridge Mall in Salinas and then to the parking lot of the Los Arcos Restaurant. They met Leticia Brisenio (Silvas friend), who arrived a short time later in another car along with her cousin, young nephew, and two other women.

Silva and Brisenio were together talking outside the truck on the passengers side; they were standing about even with where the truck bed connected with the cab. Loyo and Barrios were talking on the other side of the truck behind the opening of the drivers door. (Both doors of the truck were open.) The car with the other girls was parked by the drivers side of the truck.

A male approached Loyo and Barrios on the drivers side of the truck. He was wearing black pants, a hooded sweater or sweatshirt, and a black beanie. Silva became suspicious of him by the way he approached his friends. The male asked Barrios and Loyo where they were from. According to Silva, Barrios responded that he was from Monterey . . . he wasnt nothin.  Silva understood from this that Barrios was saying that he wasnt in any gang, that he was an [a]verage working guy. Loyo testified that he was the one who responded, saying, Were not from around here. Were just here listening to music. (Loyo recalled that the male then turned and repeated his question to Silva.)

The male then pulled a gun from the pocket of his sweater and started shooting. He shot Barrios. Loyo started running. The male then went back behind the truck to shoot at Silva, who ran toward the front of the truck and to the front door of the restaurant. Silva was shot in the shoulder, and the bullet passed through his body. As he was running, Silva heard screams. Brisenio was shot in the back as she was running toward the car and was immediately paralyzed.[3]

Salinas Police Officer Steven Long was the first officer to respond to the scene of the shooting, arriving at approximately 9:00 p.m. The area was adequately lit and no additional illumination was needed to conduct the investigation. A deceased male was lying face down in the parking lot next to a light pole. There was a female seated near him (Brisenio) who was screaming that she had been shot in the back and had no feeling in her legs. There was a red pickup truck parked in the lot adjacent to the same light pole near where the deceased male was located. Officer Long observed numerous nine-millimeter shell casings strewn about the truck and in the area of the victims.

Dr. John Hain, a forensic pathologist, performed an autopsy two days after the shooting and concluded that Barrios had sustained at least six gunshot wounds. Four of the gunshot wounds were in the heart or aorta or both, and Dr. Hain opined that any one of those four wounds would have been fatal. Salinas Police Officer Neil Herrier, who attended the autopsy, testified that the six hollow-point bullets recovered were from a nine millimeter handgun.

II. Identification of the Shooter

A. Gustavo Silva

After being treated at the hospital and released that evening, Silva was driven to the police station and interviewed by Salinas Police Officers Rick Maldonado and John Criswell. He was shown two photo lineups but did not recognize anyone in the photographs as having been the shooter. (Defendants photograph did not appear in the photo lineups.)

Eleven months later, on December 16, 2004two days after Officer Criswell had learned that defendant admitted to another gang member that he was responsible for the Los Arcos shootings (see Facts, pt. III, post)Silva was contacted at home by Officer Criswell, who displayed another photo lineup. Silva studied the photographs for one to two minutes; because the shooter had been wearing a beanie, Silva placed a finger above the foreheads of each the four males shown in the photographs. He then went back to the third photograph and stated, Thats him. Officer Criswell cautioned Silva to take a look at the photos one more time and . . . not to feel compelled to pick a photograph just because there were photographs in front of him. Silva told the officer he was positive that the person depicted in the number three photo was the shooter. Silva identified the photograph that depicted the shooter by marking his initials and date next to the photo.[4] Defendant was the person depicted in photo number three.

On April 19, 2005, Silva went with Loyo to the Monterey County Jail to participate in a physical lineup of six males. Silva was somewhat nervous. After looking at the males in the lineup, Silva put a question mark next to the male in position number two on a chart representing the six males he viewed in the physical lineup; he was not sure if that individual was the shooter. Male number two was not defendant.[5]

At trial, Silva did not identify anyone in the courtroom as having been the male who had shot him and his friends. He said that it was too dark at the time of the incident and that he couldnt see his face. Silva testified that he had some concerns for himself, his wife, and daughter about giving testimony in court because he thought the incident had been gang-related.

B. Victor Loyo

Loyo was also interviewed by the police on the night of January 17, 2004, after the shootings. He told Officer Maldonado that he had seen the shooters face and described the person as a Hispanic male in his 20s with a mustache and some facial hair. He also said that he thought that the shooter might have perceived them as having been Sureo gang members because Barrios had been wearing blue. Loyo said that he would probably be able to recognize the shooter if he saw him again. Officer Maldonado showed Loyo a photo lineup (not containing defendants picture); Loyo did not identify the shooter in the lineup.

At his home on December 16, 2004, Loyo was shown a photo lineup of six males by Officer Criswell. The officer advised him that the shooter might or might not be depicted among the photographs. After carefully looking at the photos, Loyo pointed to photo number three as depicting the shooter. Defendant was the person depicted in photo number three. Officer Criswell cautioned Loyo as he had done with Silva; Loyo said that he was positive that the shooter was the person depicted in photo number three. Loyo initialed and dated the photo.[6]

In a later in-person lineup at the jail, Loyo placed a question mark next to the male in position number twowho was not defendanton a chart representing the six males he viewed in the physical lineup; Loyo did this to identify the person who he thought might have been the shooter. Loyo was nervous when he went to the jail for the lineup and was concerned about his safety.

At trial, Loyo did not identify anyone in the courtroom as having been the shooter. He stated that he would have felt safer had he not been required to testify in court.

III. Testimony of John Doe

A. Conversations with Defendant

John Doe[7] had been associated with the Norteo gang for most of his life. He had known defendant (by the nickname, Peewee) for approximately six years, having met him through defendants older brother, Gilbert. The three were all affiliated with the Salinas East Side Market (SEM) Norteo street gang. He had seen defendant in the past wear Norteo colors and throw[ ] gang signs reflecting SEM membership. Doe had seen defendant with gunsa Tech nine, a nine millimeter handgun, a .10 Glock, and a .380 caliber gunboth before and after January 2004.

Doe hung out frequently with defendant, defendants brother, and other gang members, often in defendants garage. On one occasion between January 18 and January 20, 2004,[8] Doe went with a friend to defendants house to buy marijuana from defendants brother. While they were in the garage, defendant asked Doe, ^[]Hey, [John], you heard about what I did? I cleared up my name.^[] Defendant then told Doe that he had cleared his name by participating in shootings in which he thought that he had killed two people and injured a female. Defendant said that he and Gabriel Leybaan SEM street commanderhad driven around until Leyba pointed out the target to [defendant] and told him to handle it. Leyba was the driver and had given defendant the gun.

Defendant told Doe that he had then gotten out of the car, asked these victims where they [were] from . . . [and after] they denied gang involvement, . . . he started shooting. And he seen [sic] somebody run around the car. He ran around the car, shot that dude, and then he shot the girl, and started shooting, looking for witnesses, trying to make sure there were no witnesses.[9] Defendant said that he had shot the female because she was a witness. When he described the shootings to Doe, defendant had made fun of the female by mimicking the way she had screamed after being shot. Doe testified that defendant referred to the victims as scraps, which is a derogatory word for Southerners [Norteos chief rival gang].

In this same January 2004 conversation, defendant said that after the shootings, they had dropped off the gun a short distance away at the home of Jimmy Rodriguez. Although defendant did not say where the shootings had occurred, Doe surmised that defendant had been talking about the Los Arcos shootings that he had heard about shortly before his conversation with defendant, because Rodriguez had lived very close to the restaurant.

Defendant said to Doe that he had shot some people to clear up his name because he had picked up . . . [a] statutory rape case. Doe testified that there is a strict Norteo policy against its members being arrested for any sex-related crimes. Members involved in such crimes would be in trouble with the Norteos: they could be deemed no good, . . . be beaten down or even possibly killed.

Defendant talked about the shootings in Does presence on two subsequent occasions around August 2004 or September 2004.

B. Impeachment Evidence

In December 2004, Doe was arrested on a vehicle theft charge. He initially hoped to improve his position by providing information to the police about the Los Arcos shootings. But the police (including Officer Criswell) told him that they could make no promises concerning the vehicle theft charge. Doe nonetheless described to the officers the information about the shootings that he had been given by defendant. Doe decided to go ahead [and] come out with the information and give [himself] an opportunity to get back to [his] life. Doe saw it as an opportunity to completely pull away from the Norteo gang.

Doe characterized himself as a Norteo dropout. He testified that as a dropout, he was viewed by full-functioning gang members [a]s a target, basically. They [felt] that [Doe] betrayed them by giving up [his] career as a Norteo . . . . Doe testified that he felt that his life and the lives of his family were in jeopardy because he had dropped out of the gang and because he was testifying against defendant. Doe did not receive money from the District Attorneys office in exchange for his testimony, but he did receive assistance through payments to a storage company and U-Haul for his expenses in relocating himself and his family out of the area.

Doe pleaded guilty to vehicle theft in April 2005 and anticipated that he would receive felony probation and a one-year county jail sentence. He testified that he had received no promises concerning the disposition of his case and that his guilty plea was not the result of his agreement to give testimony. Does defense counsel, Alan Kleinkopf, testified that Doe had gotten a pretty good deal . . . , but nothing exceptional. He had not been sentenced as of the time of trial.

On cross-examination, Doe admitted that there had been many times over the years that he had been untruthful to the police, judges, probation officers, and parole officers in efforts to keep himself out of trouble. He agreed that he had used at least three birthdates (one legitimate and two phony) in matters with the police; had used at least two aliases; and had lied to the police in connection with its investigation into an attempted murder.

Doe was also impeached by his past criminal convictions. He admitted that he had been a gang member since the age of 13 and that committing crimes was the gangs primary activity. Doe conceded that his crimes had included burglary at age 13; marijuana possession (both as a juvenile and an adult); violation of a probation condition by testing positive for marijuana; brandishing a firearm; conspiracy to commit assault with a firearm; and vehicle theft.

Edgar Vargas, a fellow Norteo, testified that he met Doe in 1998 or 1999, but they had never really been friends. After his arrest in October 2004 (while on parole) on a weapons possession charge, Vargas told the officer that he had some information that he could give in order to get some help with the District Attorneys Office. The next day, Vargas told Officer Criswell that he had some information about a murder. He did not know when the murder had taken place or the name of the victim. Vargas told Officer Criswell that he had run into Doe on the street one day. He started talking to Doe about a couple of murders that had happened in the area. Doe told Vargas that he had [had] to clean up his name by killing a man at a school who had disrespected a Norteo.

Doe testified that he did not murder a man named David Sigalia at a schoolyard. He further denied that he had told Vargas that he had killed someone in order to do clean up. And Officer Criswellwho was the lead investigator in connection with Sigalias murder at Natividad School in January 2004testified that he had obtained no information that corroborated Vargass claim that Doe was involved in the commission of the crime. (Criswell did, however, receive information about the possible involvement of a person, not Doe, who shared Does forename.)

IV. Defendants Jailhouse Telephone Conversations

The prosecution introduced excerpts from a number of telephone conversations involving defendant while he was in the county jail. In one conversation between defendant and his mother on January 20, 2005 (the date of his arrest), the following exchange occurred: [Mother:] Well, somebody pointed the finger at you. What am I telling you? You all talk too much. [ Defendant:] Yeah, but uh, thats not that either though, ey. It wasnt that, I guess they were looking . . . . [] . . . [] They just said they have a suspicion . . . they, they dont know for a fact it was me or nothing ey.

In another telephone conversation the same day, defendants mother said that  [t]hey had two pages there on the search warrant and they had . . . your name. They were looking for you. After defendants mother told him about various items of clothing the police were looking for, including a black hooded sweater and black pants, defendant said that the reason for the search was probably [t]o see like if they had gun powder or anything . . . . Thats probably why they did it.

On January 21, 2005, defendant and his mother had the following exchange: [Mother:] But if the girl recognized you or if the guy recognized you, thats the only bad thing. . . . [ Defendant:] Nah, they, they still gotta prove it_[,_] [M]om. [ Mother:] Well, yeah, but if the girl says, It was him, thats how its going to be. You understand me? [ Defendant:] Yeah, but just cause she said dont matter though. [] . . . [] They still gotta prove it. They gotta find like evidence. Also, defendants mother said, Theres a lot . . . in your favor; that they never found the gun. . . . [I]f the damned Boy is the one who talked . . . its not going to count. Defendant responded, Uh huh.

On January 21, 2005, defendant asked his father if he had removed everything from the house. Defendants father repeatedly (at least five times) assured him that  everything here is clean.

And on January 27, 2005, in a telephone conversation with an unidentified woman, defendant asked her to [t]ry to get one of your homegirls to put money on my homie[]s books. Defendant identified his homie as Jonah Burgess. The parties stipulated at trial that Burgess was a Norteo.[10]

V. Gang Expert Testimony

Detective Jacqueline Bohn of the Salinas Police Department, who had 15 years of law enforcement experience, testified as a gang expert with specific familiarity concerning the Norteo street gang. Norteos identify with the Roman numeral XIV; the number 4; four dots with one dot; and the color red. The Salinas Police Department tracks over 600 known Norteo gang members in its area. One Norteo neighborhood gang in Salinas is Salinas East Market or SEM.

Detective Bohn opined, based upon a number of factors, that defendant was a member of the Norteo street gang at the time of the Los Arcos shootings. Defendants two brothers were also Norteo SEM gang members. Detective Bohn reported at least seven police contacts between November 1998 and March 2001 in which defendant was in the presence of Norteo gang members. In some instances, defendant was wearing Norteo gang colors or markings. During a November 1999 police contact, defendant told the officer that he backed up Norteos, specifically SEM. On another occasion in March 2001, defendant and another person assaulted a male; after defendants arrest, the police noted that there was gang indicia present in his room. The victim reported that his assailants had yelled Market (referring to SEM).

When defendant was booked into the Monterey County Jail in March 2003, defendant responded to Deputy Sheriff James Ude that he was affiliated with the Norteos and displayed a Norte tattoo on his chest. Defendant admitted to the police that he was a Norteo gang member in September 2004 and in October 2004. In addition to the Norte tattoo on his chest, defendant had a northern star tattoo on his elbow, both tattoos representing his Norteo membership. And he was the victim of a December 2004 shooting perpetrated by a Sureo.

During a search of defendants residence conducted pursuant to a search warrant in January 2005, the police located several items that were indicia of gang membership. These articles included red clothing in defendants closet (including a red bandanna and shoes outlined in red), a sweatshirt memorializing the shooting deaths of two Norteos by the Sureo who had shot and wounded defendant in December 2004, a picture of the car in which the two Norteos had been shot and killed, and a red blanket. (An earlier search of defendants home in November 2004 executed pursuant to a search warrant also yielded indicia of gang membership, including a drawing with SEM and other figures associated with Norteos, and a cellular phone containing a display with the number 14 and Semster, referring to SEM.)

After his arrest in January 2005, defendant admitted to being a Norteo gang member and was housed in a jail pod specifically reserved for Norteos. Detective Bohns search of defendants jail cell in July 2005 disclosed a card containing a poem or song that celebrated gang values and lifestyles.

Detective Bohn testified that the shootings at the Los Arcos Restaurant were committed for the benefit of the Norteo criminal street gang. One relevant fact was that the perpetrator approached the victim and asked,  Where are you from? What do you claim? . . . [T]hats asking what gang theyre from. After someone asks that, there are always shots fired. Another factor relevant to Detective Bohns opinion was that the victim (Barrios) had worn blue (indicating possible Sureo gang membership). The crimes boosted the shooters status as a gang member. They benefited Norteos because the crimes involved taking out a rival gang member. Benefit[] them as far as the fear it puts into the community . . . . [] . . . [] [They] help[] in the recruitment of the gang because other individuals see how dangerous and how violent the gang is and they want to be a part of that. . . . [] . . . [ They] benefit[] them because . . . people dont come forward because theyre afraid [of retaliation].

Detective Bohn offered testimony in support of the gang allegation concerning the Norteos commission of several predicate criminal acts in Monterey County. One involved the August 2002 shooting by a Norteo and an accomplice of a man and the beating of a woman committed in the course of an attempted car theft. Also in August 2002, another Norteo robbed a convenience store. Between September and October 2002, an admitted Norteo was involved in two Salinas bank robberies. And in February 2003, another Norteo was arrested (and later convicted) of possession of a firearm and possession of marijuana for sale.

PROCEDURAL BACKGROUND

Defendant was charged by amended information with three counts. He was charged in count 1 with the first degree murder of Barrios ( 187, subd. (a)); in count 2 with the attempted deliberate and premeditated murder of Leticia Brisenio, identified in the amended information as Jane Doe ( 664/187, subd. (a)); and in count 3 with the attempted deliberate and premeditated murder of Silva, identified in the amended information as John Doe ( 664/187, subd. (a)). The amended information contained the allegation that the murder and two attempted murders were each committed for the benefit of, at the direction of, or in association with the Norteo criminal street gang and with the specific intent to promote, further, or assist in any criminal conduct by gang members ( 186.22, subd. (b)(1)).[11] It was also alleged that defendant intentionally and personally discharged a firearm causing great bodily injury or death in the commission of the three offenses ( 12022.53, subd. (d)). The amended information contained the further allegation that defendant personally inflicted great bodily injury in the commission of the offenses charged in counts 2 and 3. ( 12022.7, subd. (a)).

After a jury trial, on October 13, 2005, defendant was found guilty on all three counts. The jury concluded that each offense was committed for the benefit of a criminal street gang. As to counts 1 and 2, the jury found true the allegation that defendant had personally and intentionally discharge[d] a firearm and proximately cause[d] great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice . . . ( 12022.53, subd. (d)); as to count 3, the jury found true the allegation that defendant intentionally and personally discharged a firearm ( 12022.53, subd. (c)). The jury found that defendant personally inflicted great bodily injury ( 12022.7, subd. (a)) as to count 2 only.

On February 14, 2006, the court sentenced defendant to a total term of 125 years to life (50 years to life as to count 1; 40 years to life as to count 2; and 35 years to life as to count 3). Defendant filed a timely notice of appeal.

DISCUSSION

I. Issues On Appeal

Defendant makes the following contentions:

1. He is entitled to appellate court review of the materials examined in camera by the trial court and to a determination of whether the court erred by denying his request for discovery of materials claimed to have been confidential.

2. The trial court abused its discretion when it denied defendants posttrial motion for release of confidential juror information.

3. The court committed prejudicial error when it admitted gang expert testimony over defendants objection that the gang evidence was cumulative and unduly prejudicial.

We address each of these appellate claims below.

II. Whether The Court Abused Its Discretion By Denying Discovery Requests

Both before the trial commenced and during the trial, defendant sought rulings from the court concerning the discovery of various documents claimed by the prosecution to be confidential and not subject to discovery. Most of the documents concerned information pertaining to Doe. Defendant groups the rulings into four categories that we address separately below.

We have carefully reviewed each confidential document that defendant claims on appeal was discoverable along with the transcripts of all proceedings related to such proposed discovery. The trial court did not err in denying defendant access to those documents.

A. In Camera Proceedings of September 1-2, 2005

The court conducted an in camera hearing over the span of two days (September 1-2, 2005). The prosecution requested the in camera hearing to determine the merits of its position that information should not be disclosed because it was privileged under Evidence Code sections 1040[12] and 1041.[13] The court addressed in camera the following three discovery issues: (1) whether to defer disclosure, for witness safety reasons, of the identity of the key prosecution witness, Doe; (2) whether to order the prosecution to disclose the identity of a confidential informant identified by the court in nonconfidential proceedings as Witness One, whose proposed testimony, the court noted, would bear on the credibility of a witness critical to the prosecution; and (3) whether to order the prosecution to disclose the identity of a confidential informant, identified by the court in nonconfidential proceedings as Witness Two, who the court noted had similar information regarding a witness, again, critical to the prosecution. The courts holding of an in camera hearing to determine whether the privileged matters should be disclosed was the appropriate procedure to address the issue. (People v. Navarro (2006) 138 Cal.App.4th 146, 167-171 [in camera review of search warrant obtained through information from confidential informant]; People v. Haider (1995) 34 Cal.App.4th 661, 666 [in camera hearing to determine propriety of disclosure of confidential police surveillance location information].)

At the conclusion of the in camera proceedings, the court ruled that the prosecution was required to disclose immediately Does identity. The prosecution asked that Does identity be disclosed only to defense counsel and defense investigators, with instructions that the information not be provided to defendant or to his family. Defendants counsel indicated that such a restriction on disclosure was acceptable. Accordingly, there is no order unfavorable to defendant to be reviewed here.

Similarly, after the in camera proceedings were completed, the courtafter balancing the probative value of the potential testimony of Witness One against the interest of keeping the identity of a police informant confidentialordered the prosecution to disclose the identity of Witness One. The prosecution asked that the identity of Witness One be disclosed to defense counsel only (as well as to defense investigators), a condition to which defense counsel agreed. Accordingly, there was no ruling adverse to defendant that is subject to review. The identity of Witness OneEdgar Vargas, who testified that Doe admitted that he had shot someone in a schoolyard (see Facts, pt. IV.B., ante)was disclosed to the defense.

After taking evidence in the in camera proceedings, the court concluded that it was not appropriate to order the disclosure of the identity of the confidential informant, Witness Two. Balancing the minimal probative value of the information from Witness Two against the risk to the confidential informant, the court concluded that there was insufficient cause to require the prosecution to disclose the information to defendant.

As noted, an in camera proceeding is appropriate to determine the propriety of the assertion of privilege and whether [d]isclosure of the identity of the informer is against the public interest because there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice. (Evid. Code,  1041, subd. (a)(2).) Such a determination of necessity involves a balancing of the interests in preserving the informants confidentiality against the need for disclosure under the particular circumstances of the case. Disclosure is required if the informant is a material witness under Evidence Code section 1041 [because] it appears there is a reasonable possibility the informant could give evidence on the issue of guilt which might result in a defendants exoneration. [Citation.] However, [the] defendants showing to obtain disclosure of an informants identity must rise above the level of sheer or unreasonable speculation, and reach at least the low plateau of reasonable possibility. [Citation.] (People v. Luera (2001) 86 Cal.App.4th 513, 525-526.)

After reviewing the matters pertaining to Witness Two that were presented during the in camera proceedings, we conclude that the trial court justifiably held that there was insufficient cause to disclose his or her identity. Specifically, in balancing the interests, the court properly concluded that the probative value of any anticipated testimony of Witness Two was minimal, at best. [T]he record demonstrates, based on a sufficiently searching inquiry, that the informant could not have provided any evidence that, to a reasonable possibility, might have exonerated defendant. (People v. Lawley (2002)27 Cal.4th 102, 160.)

B. Does Juvenile Records

On September 26, 2005, the court conducted an in camera review of Does juvenile file. The court provided a detailed description of the matters contained in that file during the in camera proceedings. The court concluded that nothing in the juvenile file rose to the level of admissible impeachment evidence.

After our review of the matter, we conclude that the court did not err in ordering that Does juvenile file remain confidential. As described above (see Facts, pt. III.B., ante), Doe was impeached with his lengthy criminal history, his frequent dishonesty in his dealings with law enforcement, and his alleged involvement in a schoolyard shooting. It is extremely doubtful that anything in Does juvenile file rose to the level of proper impeachment evidence. But even if there were some material that arguably might have been considered proper impeachment evidence, it would certainly have been subject to exclusion under Evidence Code section 352; at most, the material reflected aged, minor transgressions having minimal probative value, especially in light of the significant, weighty impeachment evidence pertaining to Doe that was actually admitted into evidence.

Defendant, citing People v. Quartermain (1997) 16 Cal.4th 600 (Quartermain), argues that he may have been deprived of his constitutional right to confront witnesses by virtue of the courts refusal to order disclosure of, inter alia, Does juvenile records. That argument fails here because there was no confrontation clause violation. As the court stated in Quartermain: Although the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination. [Citation.] In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. [Citation.] A trial courts limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witnesss credibility had the excluded cross-examination been permitted. [Citations.] (Id. at pp. 623-624.)

Hereas was the case in Quartermain, supra, 16 Cal.4th at page 624there was no confrontation clause violation because Doe was substantially impeached with other evidence. And herein contrast to Quartermain where the excluded impeachment evidence was significant (i.e., evidence that the witness had bribed judges in unrelated matters)the evidence, to the extent that it constituted impeachment evidence at all, was insignificant. The court did not err by refusing to order disclosure of Does juvenile records.

C. Police Report

Before trial, defendant asked that the court review the police report pertaining to Does arrest and ultimate conviction for car theft (Veh. Code,  10851) for the purpose of determining whether materials could be disclosed to the defense for impeachment of that witness. Defendant argued that it was conceivable that there might be material that could be used to impeach Doe on cross-examination. The court agreed to review the police report in camera. After reviewing the report, the court concluded that it contained no material warranting disclosure to the defense. And after Doe completed his trial testimony, the court revisited the matter; it noted that it had again reviewed the police report in light of Does testimony and reaffirmed its decision that it was not discoverable.

The official information privilege of Evidence Code section 1040, subdivision (b)(2) applies to an investigative file maintained by the police concerning a crime. (County of Orange v. Superior Court (2000) 79 Cal.App.4th 759, 763-765.) The investigative file is thus discoverable only after balancing the need for confidentiality against the benefits of disclosure in the individual case. (Id. at p. 765; see also People v. Jackson (2003) 110 Cal.App.4th 280, 290.)

We have reviewed a copy of the police report considered by the court below.[14] Generally, the report concerns the initial investigation into a potential theft of a vehicle (1999 GMC Safari van) and the subsequent arrest of Doe and others in December 2004. There was no material impeachment evidence presented in the police report that warranted its disclosure to defendant. Doe was properly impeached with the vehicle theft conviction that represented the conclusion of the subject discussed in the police report. (See People v. Lang (1989) 49 Cal.3d 991, 1011 [vehicle theft involves crime of moral turpitude admissible to impeach witness].) Any references to the details of the offense would not have been admissible. (People v. Allen (1986) 42 Cal.3d 1222, 1270 [prior-felony-conviction evidence used to impeach witness ordinarily limited to name or type of crime and the date and place of conviction]; People v. Heckathorne (1988) 202 Cal.App.3d 458, 462 [same].) In short, the police report contained nothing that could be used by the defense. The court did not err by denying defendant access to it.

D. November 2004 Search Warrant Affidavit

In his pretrial discovery, defendant sought copies of all search warrants and affidavits in support thereof pertaining to defendants residence over a three-year time span. At pretrial proceedings, the prosecution contended that the request was overly broad and constituted a fishing expedition. The court denied the request. Defendant thereafter renewed his request for the production and unsealing of the affidavit in support of the search warrant that was ultimately executed on November 16, 2004, at defendants residence. Defendants renewed request resulted from the prosecutions having added the name of the affiant, Officer Kendall Gray, to its witness list. The prosecution objected to the unsealing of the affidavit. The court denied defendants request without prejudice to the bringing of a formal motion.

Defendant filed a formal motion to unseal the search warrant affidavit, along with a motion to suppress the fruits of the search conducted on November 16, 2004. The issue was argued further on two separate days. The court reviewed the search warrant affidavit and concluded that it was not discoverable.

The Supreme Court has held that taken together, the informants privilege ([Evid. Code,]  1041), the long-standing rule extending coverage of that privilege to information furnished by the informant which, if disclosed, might reveal his or her identity, and the codified rule that disclosure of an informants identity is not required to establish the legality of a search pursuant to a warrant valid on its face ([Evid. Code,]  1042, subd. (b)) compel a conclusion that all or any part of a search warrant affidavit may be sealed if necessary to implement the privilege [under Evidence Code section 1041] and protect the identity of a confidential informant. (People v.Hobbs (1994) 7 Cal.4th 948, 971; Evid. Code, 1042, subd. (b).) Where the defendant moves to quash or traverse the search warrant, the trial court should conduct an in camera hearing to determine if sufficient grounds exist for maintaining the confidentiality of the informants identity . . . [and] then . . . determine[] whether the entirety of the affidavit or any major portion thereof is properly sealed . . . . (Hobbs, supra, at p. 972.) A defendant who desires to obtain the identity of the informant when the prosecution invokes the privilege under [Evidence Code] section 1041, has the burden of showing a reasonable possibility that the informant could give evidence on the issue of guilt which might result in [the] defendants exoneration. [Citation.] (People v. Otte (1989) 214 Cal.App.3d 1522, 1535.)

As the Supreme Court has explained, [T]he prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. [Citation.] An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citation.] The defendant bears the burden of adducing some evidence on this score. [Citations.] (People v. Lawley, supra, 27 Cal.4th at pp. 159-160.)

Here, the court concluded that there were insufficient grounds to order the unsealing of the sealed portions of the search warrant affidavit. We have reviewed the affidavit in its entirety.[15] We conclude that the trial court did not err in its denial of defendants motion. The sealed portions of the affidavit did not contain material that had any impact upon defendants guilt or innocence with respect to the charged crimes. And the contents of the sealed portions of the affidavit did not provide a basis for disclosing the identity of the informant or his or her communications to the police. Therefore, the court properly denied the motion to unseal the affidavit.

III. Motion For Release Of Personal Juror Information

A. Background

On December 6, 2005, defendant filed a motion for release of confidential juror information. That motion was based upon a short legal memorandum and the declaration of defense counsel, Frank Dice. Counsel declared that he and a private investigator, Paul Keene, had met with one juror. That juror told them that during the testimony of [Doe,] a man was present in the courtroom. This man was referred to by the jurors in deliberations as the intimidator. It was [Dices] impression that the jurors discussed or mentioned the fact that it appeared to them the intimidator was there to discourage testimony on behalf of the defendant. Defense counsel declared that he had been unable to contact other jurors to follow up on the information he had learned from the one juror and that he could not do so unless he obtained further juror identifying information.[16] The People opposed the motion, arguing that defendant had failed to make a prima facie showing of good cause for release of confidential juror information.

The court considered defendants motion in three separate proceedings. In the first proceeding, the court heard argument of counsel.

In the second proceeding, the court inquired of the bailiff who was present through the entire trial concerning his observations about the possible presence of an intimidator. The bailiff stated that there was no one in the audience [at any time during Does testimony who was] intimidating anyone. He noted that, based upon his training and experience, he would have noted any such intimidation immediately. In response to questioning by the court, the bailiff also stated that he was particularly sensitive to security issues in this case because it involved gang-related crimes. The trial judge also noted that he had been very sensitive to any activity in the audience during the trial and that he had observed nothing untoward. He observed that the audience consisted [f]or the most part . . . [of] defendants relatives and that sort of thing. Sort of a support group that came to court. The trial judge indicated further that he believed that the bailiff was very reliable and that he would have brought to the courts attention any evidence of witness intimidation if it had occurred.

At the third proceeding, the court allowed defendant to submit additional evidence, namely, testimony from investigator Keene. Keene testified that he and Dice had met with one juror in Prunedale in early November 2005. Towards the end of the meeting, the juror stated that she had observed a large man with large biceps in the audience during the testimony of Doe; she referred to him as the intimidator. She said that she did not know who the person was, but that she had the impression that the intimidator was there to make sure the person testified. Keene did not know whether the juror had observed that the large man had been present for Does testimony in its entirety (which spanned two days), or that he had been present for only a portion of it. Keene testified that it was his recollection that the juror said that between two and four jurors discussed the subject of the large mans presence at some time during deliberations. Based upon his recollection of the meeting with the juror, he could not state at what point during the deliberations the presence at trial of the intimidator had been discussed among some of the jurors, or the length of time during which those discussions had taken place over the course of the two and one-half days of deliberations.

After hearing further argument, the court denied the motion for release of confidential juror information. The court stated that defendant had presented little more than [i]dle chit-chat between a couple of jurors about the presence of the large man in the audience. It noted further that defense counsels impression of what the juror thought about the man (i.e., that he was there to discourage testimony on defendants behalf) was contrary to Keenes impression (i.e., that the man was there to encourage Does testimony). The court therefore concluded that the surmise presented in the motion was a far cry from the concrete information needed to justify the extraordinary step of compelling post-verdict examination of trial jurors.

B. Discussion of Denial of Motion

Code of Civil Procedure section 206, subdivision (g), provides that after the jury in a criminal case is discharged, a defendant may petition the court for an order releasing information concerning the jurors names, addresses, and telephone numbers for the purpose of preparing a motion for new trial.[17] That statute references Code of Civil Procedure section 237, which provides in part that after records containing criminal jurors personal identification information are ordered sealed at the conclusion of trial, any person may make a motion to obtain access to the sealed records, accompanied by a showing of good cause. (Code Civ. Proc.,  237, subd. (b).)[18]

These statutes were enacted to protect the safety and privacy of jurors. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1091 (Townsel); see also People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322, fn. 8 (Jefflo): [T]he Legislatures concern for juror protection [is] clearly manifested in the current versions of [Code of Civil Procedure] sections 206 and 237.) But as our Supreme Court has also observed, prior to the enactment of Code of Civil Procedure sections 206 and 237, courts were not powerless to protect jurors following their discharge: Despite the absence of any affirmative statutory power, trial courts exercised their inherent powers to ensure jurors were protected, following their discharge from a trial, from threats to their physical safety and invasions of their personal privacy. Such inherent judicial power did not disappear as a result of the Legislatures action in this area. Rather, trial courts retain inherent power to protect both juror safety and juror privacy. (Townsel, supra, at p. 1091.)

To establish good cause under Code of Civil Procedure section 237, a defendant must set forth a sufficient showing to support a reasonable belief that jury misconduct occurred. (See People v. Jones (1998) 17 Cal.4th 279, 317; see also Jefflo, supra, 63 Cal.App.4th at pp. 1321-1322, fn. 8.) Good cause is not established where the allegations of jury misconduct are speculative, vague, or conclusory. (People v. Wilson (1996) 43 Cal.App.4th 839, 852; People v. Rhodes (1989) 212 Cal.App.3d 541, 553-554.) And we review the denial of a motion to compel disclosure of juror information under an abuse of discretion standard. (People v. Jones, supra, at p. 317.)

In Jefflo, supra, 63 Cal.App.4that pages 1318-1319, the defendants motion for disclosure of juror information was based on a declaration that a juror had told the defendants girlfriend the day before the verdict that the jury was hung. Defense counsel declared further that after the trial was concluded, he overheard a juror ask the prosecutor if that [was] all the evidence [he] had. (Id. at p. 1319.) The appellate court upheld the trial courts denial of the defendants motion for disclosure. It found that, even assuming the truth of the girlfriends assertions, the jurors statement simply meant the jury (at the time of the statement) had not yet agreed on a verdict, and did not constitute misconduct. (Id. at p. 1322.) And the court held that the jurors statement to the prosecutor conveyed nothing more than that the juror might have been curious about whether evidence existed that was not presented at trial. This did not mean the evidence that was presented failed to persuade the juror, beyond a reasonable doubt, of [the defendants] guilt. (Ibid.) Finally, the appellate court concluded that the court did not abuse its discretion by declining to conduct a hearing on the alleged jury misconduct. (Id. at pp. 1322-1323.)

Here, as was true in Jefflo, the trial court properly viewed with some skepticism the meager showing in support of defendants motion for disclosure of juror information. There was no direct evidence (i.e., testimony from any juror) concerning juror misconduct. And there was evidence contradicting the presence of a large male in the courtroom during Does testimony. The bailiffwho was experienced in courtroom security issues and was especially sensitive to such issues here because of the gang allegationsdid not observe anyone in the audience who was intimidating any witnesses.

Further, the hearsay evidence presented did not rise to the level of supporting a reasonable belief that there had been juror misconduct. Defense counsel and the defense investigator did not even agree as to the jurors impressions about the unidentified large male in the audience; one thought her impression was that he had been present to discourage testimony favorable to defendant, while the other thought that she had viewed him as having been there to compel Does testimony. And there was no evidence that this one jurors impression of the unidentified malewhatever it may have beenhad any influence upon jury deliberations. The subject of the unidentified male was at most discussed among four jurors. The trial judge noted that the jury deliberated for two and one-half days and that it was his impression that the jury had been very thoughtful and thorough in its deliberations. The court thus concluded that there was no evidence presented by defendant that showed that any discussion between several jurors about the unidentified male played a role of any significance in the overall deliberations of the jury.

The juror misconduct claimed by defendant was founded on speculation and surmise, which are inadequate grounds for releasing confidential juror information. (People v. Wilson, supra, 43 Cal.App.4th at p. 852.) Under these circumstances, the trial court did not abuse its discretion when it found an absence of good cause and denied defendants motion for disclosure of the jurors personal information.

IV. Gang Expert Testimony

A. Background and Contentions

The prosecution introduced substantial gang evidence in connection with the gang enhancement. As presented above (see pt. V of Facts, ante), Detective Bohn offered significant expert testimony concerning the characteristics and criminal activities of Norteos, defendants membership in the Norteo SEM gang, his association over the years with Norteos, and opinion evidence as to whether the Los Arcos shootings were committed for the benefit of the Norteo criminal street gang.

At the outset of the trial, defendant filed a motion in limine to exclude the gang expert testimony on the grounds that it included inadmissible hearsay and was cumulative. Defendant also moved to bifurcate the trial so that the gang enhancement would be tried separately. Those matters were argued extensively. The court denied the motion to bifurcate;[19] it further denied defendants request to limit the scope of the proposed gang expert testimony.

The objections were renewed prior to Detective Bohns testimony, defendant arguing that certain gang evidencenamely, his tape-recorded jailhouse telephone conversationswas cumulative and subject to exclusion under Evidence Code section 352 because its probative value was substantially outweighed by the undue prejudice it would create. The court overruled this objection and concluded that any stipulation offered by defense counsel that defendant was a Norteo was insufficient to warrant the exclusion of the gang evidence. The court held that defendants gang membership and the allegation that he committed the Los Arcos shootings for the benefit of the Norteo criminal street gang needed to be placed in context through evidence other than his mere gang membership. But the court agreed to defense counsels proposal that it preinstruct the jury under CALJIC No. 2.50 at the time of the admission of the gang evidence.

At the beginning of Detective Bohns testimony, the court did in fact caution the jurybased upon an adaptation of CALJIC No. 2.50that the gang evidence (i.e., evidence of gang activity and criminal acts by gang members other than the charged crimes) could not be considered to prove that defendant had a criminal disposition; rather, it was being introduced only to attempt to establish the gang allegation.[20] Further, the trial judgein response to an objection to testimony concerning a particular police contact with defendant in January 2000told counsel in a sidebar conference that the evidence was becoming cumulative: [N]ow Im going to make my own cumulative objection, . . . The court then advised the deputy district attorney that Detective Bohn should refrain from providing the details of the police contacts with defendant on which she was relying. And in addressing defense counsels challenge to the hearsay nature of various police contact information on which Detective Bohn relied, the court instructed the jury that the hearsay the expert referred to was only being permitted to explain the basis for her opinion and was not allowed for the truth of the information.

Defendant argues on appeal that the court committed prejudicial error when it admitted the gang expert testimony. He claims that Detective Bohns testimony providing the details of police contacts with defendant and the introduction of the gang poem or song found in defendants jail cell were cumulative and unduly prejudicial, thereby depriving defendant of a fair trial. He argues that the evidence was particularly cumulative in light of the fact that there was other evidence (i.e., Does testimony) supporting the prosecutions contention that defendant was a Norteo. Defendant contendsbased upon a material misstatement of the governing legal standard[21]that the court should have excluded the gang evidence under Evidence Code section 352.

The Attorney General responds that admission of the gang evidence was appropriate. He argues that evidence of the workings and motivations of the Norteo gang and defendants long-time association with Norteos was essential to explain to lay people unfamiliar with gang culture the motive for the shootings. The court (the Attorney General argues) did not abuse its discretion by allowing the expert testimony of Detective Bohn.

B. Discussion

Without questionand as the Supreme Court has recently reiteratedthe prosecution may utilize expert testimony concerning criminal street gangs to establish the elements of a gang enhancement. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.) M