P. v. Thomas

Filed 2/5/10 P. v. Thomas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Gary Paden, Judge.

Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez, Supervising Deputy Attorney General, Lloyd G. Carter and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant Daniel Thomas stands convicted, following a jury trial, of first degree murder in which he personally and intentionally discharged a firearm, causing death, and which was committed for the benefit of or in association with a criminal street gang. (Pen. Code,^[1] 186.22, subd. (b)(1), 187, subd. (a), 12022.53, subd. (d).)^[2] His motion for a new trial was denied, and he was sentenced to a total unstayed term of 50 years to life in prison. He now appeals. For the reasons that follow, we will affirm.

FACTS

I

Prosecution Evidence

The Shooting and Aftermath

Early on the morning of January 14, 2006, Joseph Acosta and his friend, Rick Campbell, drove to the Acapulco Club in Sultana. When they drove up in a black pickup, appellant and Ismael Sauceda were in the parking lot, talking to two females. It was about closing time. Acosta greeted Sauceda and appellant, with whom he was acquainted.

No more than half an hour after Acosta and Campbell arrived, a group of four or five men walked out of the bar. They were inebriated and staggering. They were quiet, not laughing or talking to each other.

Appellant approached Salvador Chavez, who was wearing a blue baseball hat and was the first to exit the bar, and asked in English if he was a scrapa, a derogatory term for Sureno.^[3] Chavez responded in Spanish that he was nothing and did not want any problems. The other men with him also said they did not want any problems. They seemed scared.

The confrontation began to move from the door to near Rick Campbells truck, as one of the trucks belonging to Chavez and his group was there. Appellant was insisting Chavez was a scrapa, and was using gang-affiliated words, such as scrapa and Sureno (the enemies of the Nortenos), to call Chavez out. Chavez walked around appellant, and the men with him followed. They were trying to leave. The whole time they were walking, they were saying in Spanish that they did not want any problems. Chavez also said, in Spanish, that he did not bang. Neither Chavez nor anyone in his group made any threats.

When they walked around him, appellant got back in front of them. Sauceda went over as if to back up appellant.^[4] Acosta told appellant to leave Chavez alone, and that the men did not want any problems. Appellant said, Fuck that. This is Norte. Sulta, then pulled a gun from his waistband and shot Chavez three or four times. Appellant and Chavez were face to face, about two feet apart. Appellant was wearing a red beanie with an N on it. Based on Acostas experience with Nortenos, this meant Norte and was something worn around Sultana to show ones colors. Chavez walked a couple of feet around a car that was in the lot, then fell to the ground. Appellant and Sauceda fled.

Saucedas version of events was somewhat different than Acostas version. He and appellant had been friends since elementary school. They got together at some point on Friday, January 13, 2006. Late that evening, they met up with another friend, Ivan, and a 16-year-old whose name Sauceda could not recall and whom he did not know well, by Saucedas house in Sultana. Their purpose that night was simply to be together and have a good time. They were not looking for trouble. They walked around for a while, then ended up by the Redwood Inn, where they ate some tacos. From there, they went to the Acapulco Club, a bar just up the street from the Redwood Inn. They did not go into the bar due to their age, but instead hung around outside the door, which was propped open. They could see inside and made eye contact with two women named Felisia and Rosalinda, who came outside and began talking with them.

The two women went back inside after about five minutes, drank some more beers, and danced. At some point, Ivan left to go home, and Acosta and Rick Campbell arrived. Felisia and Rosalinda came out and went back inside a couple more times.

At 2:00 a.m., people came out of the bar, as it was closing time. Sauceda, who was standing by a truck, got into an argument with a man who gave him a weird, evil look.^[5] Sauceda thought the man might be a Sureno, although he was not dressed like one. A Sureno would have known Sauceda was a Norteno by the way he was dressed that night. Sauceda began saying gang-related stuff. He did not recall whether he asked if the man was a scrapa, but he said something about Norte, and the man said some things back. The man said, in Spanish, that people from Sultana aint nothing. Sauceda thought they were going to fight, but the two women pulled him back.

Meanwhile, appellant was arguing with a group of at least five men by the entrance to the bar. Sauceda who did not see what precipitated the argument heard more than one voice yelling. He did not know whether one of the voices belonged to appellant; he did not hear appellant yell Norte or Sulta Boys. The person appellant was arguing with was saying that he did not want any problems. Acosta started telling appellant to let it go, that the man was a pisa someone from Mexico, most likely a farmworker who did not claim. Speaking both to appellant and to Sauceda, Acosta said it was not worth it. Sauceda did not see anyone with weapons, and no one charged at him with a baseball bat. Sauceda was not really watching appellant; instead, he was in [his] own scene.

As the women were pulling Sauceda back, he heard gunshots. He ran home. Appellant and the 16-year-old also ran. When Sauceda reached his house, he saw appellant standing by appellants car, which had been left earlier that evening across the street by Ivans house. Appellant asked if he could go inside with Sauceda. The 16-year-old also went inside with them. They went into Saucedas room, where they stayed with the lights off. Appellant told Sauceda not to turn on the lights. It was also Saucedas idea to leave the lights off; there was a police helicopter, with its searchlight, overhead. Appellant said he had messed up. He also said he was not feeling well, so Sauceda got him a drink of water. Appellant lay down on a mattress on the floor. There was a little light from outside, and Sauceda saw appellant lift up the mattress. Appellant appeared to put something underneath it, but Sauceda was not sure what was going on. Eventually, they all went to sleep.

A few hours later, when it was starting to get light out, there was knocking on the door.^[6] Appellant said there were cops outside. He tried to hand Sauceda a beanie with a heavy object wrapped inside. From the weight, Sauceda assumed it was the gun. Appellant told Sauceda to stash it, but Sauceda tossed it back to him. The police said they wanted to talk to Sauceda, so he went out to them. When they asked if there was anybody else in the house, Saucedas mother said yes, and so appellant also came out.

Tulare County Sheriffs Detective Fernandez interviewed Sauceda and appellant later that day. Appellant denied being involved in any shooting. He said they heard the shooting when they were eating burritos at a taco truck at the Redwood Inn, so they took off running so they would not get hit. Appellant denied being at the bar where the shooting occurred.

A search warrant was executed at Saucedas apartment. Inside the bedroom used by Sauceda, officers found some gang paraphernalia. They also found a red beanie with a white N on it. Inside the beanie was a .25-caliber semiautomatic handgun with three live rounds in the magazine and a live round in the chamber. Subsequent tests showed the four spent shell casings found at the scene of the shooting were fired from that gun.

An autopsy showed that Salvador Chavez suffered four gunshot wounds, three to the left chest and one to the left index finger. The three chest wounds were all entrance wounds, and two produced through-and-through wounds to the heart. The cause of death was exsanguination due to multiple gunshot wounds to the chest, with Chavez bleeding to death within minutes. The bullets recovered from his body were consistent with having been fired from the gun found in the beanie in Saucedas room. Chavez had a blood-alcohol level of 0.28 percent.

A bag containing live ammunition was found during execution of a search warrant on a trailer on the property of Hope Pizana, appellants grandmother, whose address appellant gave as his when he was booked. The information Fernandez had was that when appellant stayed with Pizana, he stayed in her house and not in the mobile home in back. Gang graffiti was found on various buildings on the property.

The Gang Evidence

According to Sauceda, the Sulta Boys are just a group of friends from the same place. A Norteno is a gangster. The Sulta Boys have no connection with Nortenos, and are not a gang. They do not associate with other groups, but simply keep to themselves. They have no leader, and there is no special initiation to go through to become a Sulta Boy. There are perhaps seven or eight in the group; all are just people who live in the Sultana area. They hang around the neighborhood and talk, drink beer, and play basketball. Sauceda was not aware of the Sulta Boys committing any crimes. He never saw any of them with any kind of weapon.

Sauceda admitted telling Herman Martinez, an investigator for the district attorneys office, that Sulta Boys is a Norteno group and a subset of Nortenos. Basically everyone in Sultana who claims to be a gang member is Norteno. There are not a lot of Surenos in Sultana, and claiming to be Sureno in that area would not be a good idea. Sauceda considered himself a member of the Sulta Boys in January 2006; sometimes appellant was present when Sauceda hung out with the group. Sauceda did not recall whether appellant ever claimed to be a Sulta Boy or whether he ever claimed Norteno. Sauceda told Martinez, however, that appellant was a Sulta Boy, an associate just like Sauceda. Appellant was wearing Saucedas red beanie with the white N at the time of the shooting, because it was a cold night. The two had cut their hair so short that morning that they were almost bald, and when they got to the Acapulco, appellant said he was cold and asked for something to cover his head. Sauceda had the beanie in his pocket. The beanie which was a Nebraska Cornhuskers hat that Sauceda had purchased at a sports store was the only one Sauceda had. Sauceda liked the hat because of the N, which helped him identify as Norteno. He also had a burgundy beanie with a 49ers emblem on it, which he was wearing that night along with a red jacket.

The search of Saucedas residence following the shooting turned up his binder and what Sauceda termed gang-related graffiti, some of which was done by a friend. The binder had on it a Huelga bird, which to Sauceda meant Norte. It was a symbol the Nortenos used. In addition to the beanie appellant had worn, Sauceda had a belt buckle with N on it and some red shoe laces. He had the items because of his affinity toward Nortenos. Sauceda also knew that the number 14 had a special meaning for Nortenos, because N was the 14th letter of the alphabet. X4 stood for Nortenos. Nortenos do not like Surenos, who associate with the color blue and number 13. Saucedas nickname was Pee Wee; appellants nickname was Nappy. Sauceda was nicknamed Pee Wee when he was a baby.

Tulare County Sheriffs Detective Hamlin testified as an expert on gangs. According to Hamlin, the two dominant gangs in Tulare County are northern (Norteno) criminal street gangs and southern (Sureno) criminal street gangs. The two are rivals.

Nuestra Familia is the primary northern gang in the California prison system; they are the shot callers for all northern gangs in California. People getting out of prison and returning to their communities will often bring orders from the shot callers in Nuestra Familia to the streets. Those getting out of jail, who have had to adhere to rules set forth by Nuestra Familia while in custody, will take the rules back to the streets. For instance, if there is someone they no longer want in their gang, they have to go through the chain of command to a shot caller to receive an okay to assault or kill the gang member. Also, if there are drug ties in a certain area, that money can be filtered back into the shot callers in prison.

Hamlin had heard of Sulta Boys, which, from his experience, was a northern gang that claimed the community of Sultana as its turf. Hamlin had talked to approximately five members of Sulta Boys, had read police reports involving and talked to other police officers concerning the group, and had seen graffiti associated with it, primarily in Sultana.

Nuestra Familia, Norteno, and Sulta Boys are all basically under the same umbrella. They all have alliance to the north. When street cliques such as Sulta Boys go into the prison system, the cliques no longer exist. They are now considered under the Norteno umbrella. Nuestra Familia is the top level. The Nortenos fall under that. They are not necessarily members of Nuestra Familia, but they are run by Nuestra Familia. Nortenos are essentially the general gang. Then there are the subcliques like Sulta Boys, Brown Pride Catella, North Side Dina, and other local community Norteno gangs. Within the Nortenos there are different levels of gang membership. The criminal street gangs often will have a shot caller frequently someone who is older than the rest or has committed more violent crimes or a lot of crimes for the gang and underneath that level is the general membership. These members sometimes refer to themselves as soldiers, as they are willing to go out and do work for the gang. Underneath that level are the associates who just hang out with the gang, but are not around when the crimes are committed. If someone wants to move up in the gang, he needs to be willing to commit crimes and do work for the gang crimes of opportunity or against a rival gang to gain notoriety for the gang and the gang member himself. Such crimes help the gang by what gang members believe is a type of respect, but it is actually fear instilled in the public or in rival gangs. That benefits the gang because people do not want to come forward or testify about gang crimes, and it keeps rival gang members out of the gangs area. However, someone does not necessarily have to commit crimes to become a member of a gang. Some people have said they are considered a member just by growing up in a certain area or having an older family member in a gang. Jumping in being beaten by gang members for a certain length of time used to be a common way of becoming a gang member in Tulare County. As gang crimes have carried stiffer penalties, however, gangs have had a harder time finding members. Now, many gangs allow people to become members by hanging around long enough or by committing a crime to show they are down for the gang.

To the extent it has any organizational structure, Sulta Boys is a very loose organization. This is typical of Tulare County street gangs, which might have one person who is considered a shot caller and the rest falling underneath him, or which may not have anybody who is a shot caller per se. To Hamlins knowledge, Sulta Boys do not have any shot caller. They are, however, a northern-affiliated gang that has been in the area since the late 1990s. From past contacts, Hamlin estimated that 25 to 40 people are in Sulta Boys.

Nortenos associate with the color red and number 14, for the letter N, which is the 14th letter of the alphabet and is related to Nuestra Familia. Roman numeral 14, X4, and four dots are also associated with the group. Surenos associate with the color blue and number 13, for the letter M, which is the 13th letter of the alphabet and is related to Le Eme. That is the prison gang for all Southerners.

Hamlin estimated that there are approximately 2,500 northern gang members in Tulare County. He personally investigated one crime in which Sulta Boys members were involved. He had investigated 300 to 400 in which Nortenos were involved. Norteno gangs primarily commit crimes of assault on all different levels, including simple battery, assaults with deadly weapons, shooting at inhabited dwellings, attempted murder, and murder. He was familiar with a shooting that took place in Sultana on February 13, 2004. In that case, the suspects confronted the victim, whom they believed to be a southern gang member. The suspects yelled out derogatory terms for Southerners, then shot at the victim with a shotgun and struck him in the face. Juan (Johnny) Alvarez was convicted of assault with a deadly weapon as a result of the shooting. As far as Hamlin knew, Alvarez belonged to Sulta Boys. However, Hamlin did not locate any connection between him and appellant.

Hamlin was also familiar with two shootings that took place in Cutler and Orosi on May 22, 2004. In the first shooting, the suspect fired at a residence when there were people inside. One of the family members who lived there was believed to be a southern gang member. In the other shooting, the victim, who was in a wheelchair, was wearing blue clothing and had a blue bandanna tied to his wheelchair. He was a member of OGS (Original Gangster Surenos), who claim Orosi as their turf. The suspect shot him. Daniel Mendoza was convicted of assault with a deadly weapon as a result of the shootings. Mendoza was a member of the northern gang Brown Pride Catella, which was out of Cutler-Orosi. Hamlin did not find any connection between him and appellant.

Hamlin spoke to other officers about appellant, read all of the reports in this case, and researched appellants one prior contact with law enforcement. He also interviewed appellant himself, just after Fernandez and other detectives interviewed appellant in connection with this case. In that interview, appellant related that he was 18 years old, and that he was born and raised in Sultana. Although he moved from town to town, he considered himself as having lived there basically his entire life. He hung out with the guys who lived in Sultana. He was born into being a Northerner. It was just something he was born into. He hung out with [a]ll the home boys from Sultana, but not with anybody else from other cities. He had no problem with Northerners from other cities, however. Sulta Boys were just neighborhood kids, but a person had to be born and raised in Sultana to belong. People who moved to Sultana were not allowed to be in the Sulta Boys. Appellant did not know how many individuals were in Sulta Boys, but believed there were a good few, but less than 25. They all back[ed] up Norte. Appellant admitted having only God can judge me tattooed on one hand, a cross on his arm, and Sultana on his other arm. Although Hamlin found no tattoos of a 14, X4, four dots, or anything that said Norteno or Norte, he considered the Sultana tattoo to be gang-related because, while it is uncommon for people to get the name of a neighborhood tattooed on their bodies, it is very common with gang members. Appellant had been booked into jail for driving under the influence when he was 18, and he told them he was a Northerner to make sure they did not put him in with Southerners.

Hamlin examined the notebook that was seized from Saucedas residence. There were several items of gang-related writing, such as Sulta, references to northern gangs, and monikers. One of the drawings contained 93666 the zip code for Sultana with the three crossed out. This is often done by northern gang members to disrespect the number three because of its connection to southern gang members. Threes and Ss are often crossed out. Sulta Boys was written in the notebook, and there was a drawing of a Huelga bird. A Huelga bird the symbol of the United Farm Workers is associated with Northerners. Among other items in the binder was a list of monikers, including Nappy. The list was something Sulta Boys would write as a type of roll call. With respect to the red hat with the letter N, wearing it would show everyone else in the gang culture who you back-up. What youre down for. The red belt, belt buckle with the letter N, and red shoe laces found at Saucedas residence were all northern gang-associated attire. )!

Hamlin also examined photographs taken of the graffiti on the sheds and other buildings on Hope Pizanas property. The graffiti included a Huelga bird, above which was spray-painted Danny. There were also other northern references, including derogatory terms for southerners and obscenities directed at them. There were names that may have been monikers; X4, which is a way of writing the number 14; and the number 559, which is the area code they claim as their turf. With respect to the contents of one of the rooms inside the mobile home on the property, Hamlin was struck by the absence of the color blue. There was a black tennis shoe with a red sole and red accent on the side, which would be common attire for a Norteno. The words Sultana and Sulta, sometimes with the S crossed out, were written at several places.

Based on all of the information available to him, including his interview with appellant, Hamlin opined that appellant was a northern gang member of the Sulta Boys subclique. The key factors were appellants knowledge of the Sulta Boys and admission

of being a Northerner in the interview; the attire he was wearing when the crime was committed, specifically the amount of red; the comments made back and forth between him and the victim; and the graffiti located at his residence. Hamlin further opined that the shooting of Salvador Chavez would benefit and was in association with northern criminal street gangs. The crime was committed in a public area in the presence of a number of people. The words that were exchanged showed the gang affiliation, and the crime showed that appellant was willing to do work for the gang, and was not afraid to

commit such a crime in such a public area. This would benefit his status within the gang, showing them he was willing to do work and giving him notoriety and status. It would also benefit the gang in that the victim was perceived to be possibly a rival southern gang member who was making derogatory remarks toward Northerners. It showed that northern gangs are to be feared and that Sultana is northern territory. Northerners would see it as gaining respect; it would instill fear in the public and in rival gang members.

II

Defense Evidence

The Shooting and Aftermath

On the night of the shooting, Felisia Perez and Rosalinda Garcia were at the Acapulco Bar. They arrived about an hour and a half before closing time. Sauceda, whom they knew, was there. He was standing outside of the bar, by the door. With him was appellant, whom the women had not met before that evening.

Perez greeted Sauceda and went inside the bar to meet her boyfriend. Garcia initially went inside, but was in and out, talking with appellant and Sauceda by the door. Inside the bar, in addition to Perez, her boyfriend, and the bars staff, were four or five unknown Mexican males. Near closing time, Perez came back outside and joined Garcia, Sauceda, and appellant, who were by a vehicle near the front door. Among the other vehicles in the lot was a black truck, in which some men had arrived about an hour after the women. Perez never saw the men go inside the bar.

When the bar was closing and people were coming out, Perez and Garcia were already outside, talking with Sauceda and appellant. According to Perez, an argument started between appellant, Sauceda, and the four or five Mexican men who had been inside the bar. Those men, who appeared to be intoxicated, came outside and were starting stuff. Chavez walked out of the bar and started pushing appellant for no reason.^[7] An argument started. Perez heard some of it. It was about the colors red and blue, which she knew were gang colors. The Mexican men were saying they liked blue, and then appellant and Sauceda argued back. Appellant used the term Norte and told Chavez he was a Norteno.^[8] Chavez, who was speaking Spanish, said Sur trece and started pushing appellant. Chavezs companions were right behind him, and Perez, Garcia, Sauceda, and appellant were surrounded by them.

The group of men were associated with a white Mustang and a green truck. At one point, one of the group went to the green truck and grabbed a metal baseball bat, saying he was going to fuck [Sauceda] up. He then walked toward Perez and Sauceda and swung the bat one time. Sauceda ducked and pushed Perez, then the man stood in front of Sauceda, holding the bat down with both hands.^[9] He and Sauceda were arguing the whole time. When he swung the bat, Sauceda backed down and actually stepped away.

The man with the bat was off to appellants side. Chavez and the others in Chavezs group were still in front of him. Appellant was by the black truck. Perez saw appellant get pushed hard four or five times; he stumbled toward Garcia, who was standing near him and to the side, but did not fall. Perez did not believe Chavez had anything in his hands, but at some point she heard him say he was going to kick somebodys ass. While this was going on, the men associated with the black truck were sitting inside that truck. Neither of them got out before the shooting. At no time while the dispute was occurring did Perez see either of them say anything to Sauceda.

Perez was looking toward Sauceda, and so did not see any of the shots fired. She heard them, though, and then saw Chavez take a step back and fall. Everyone ran. Perez and Garcia got in their vehicle and left. When they left, police were at the scene. Perez saw the occupants of the black truck outside of their vehicle, talking to the police.

Garcias recollection was somewhat different. According to her, she and Perez arrived no more than 10 to 20 minutes before the bar closed. Sauceda was alone when they got there. Appellant walked up from the taco truck by the Redwood Inn while Garcia was greeting Sauceda the first time she came out of the bar. Appellant was with someone, but the other man left before long. Appellant then started talking to Garcia.

Garcia, Perez, Sauceda, and appellant were standing outside, talking, when people started leaving the bar because it was closing. Two men came out and walked toward a green truck, then Chavez and his group, all of whom were drunk, exited a few seconds later and headed for a white sports car. Garcia and her companions were still talking together, then they heard Chavezs group arguing with the two men in the green truck. Chavezs group approached the other men, and a fight appeared imminent. Sauceda went over and tried to stop them. Appellant was still talking to Garcia and Perez, but then the men in Chavezs group started surrounding Sauceda and appellant went over to defend him. Appellant was telling them not to fight and trying to get Sauceda to leave. Three of the men then focused on appellant and started in with him. Chavez started pushing appellant and telling him sur trece, which Garcia understood to mean that he was a Sureno or Southerner. Appellant said it was not even about that, but Chavez just kept on. Garcia never heard appellant utter any gang slurs.

Perez pulled Sauceda by the arm. He made a movement to try to get her to leave him alone, but then Garcia grabbed his arm and told him to come on and go, that it was not worth it. Sauceda and appellant were about five to seven feet apart at this point. Garcia also told appellant to let it go, that it was not worth it, but Chavez pushed appellant three times, harder each time. The third time, both appellant and Garcia, who was holding on to him, stumbled back. Chavez appeared angry and frustrated. He was pushing appellant and egging him on. He was drunk and wanted to fight with somebody.

Before the fight started, two men pulled up in a black truck. Sauceda said it was his friend, and he went over to talk to them and then introduced appellant, Perez, and Garcia to them. After the fight started and Chavezs group was confronting appellant, the driver of the truck stood outside the vehicle, holding a metal bat with a black handle. He was approximately three feet to the side of and slightly behind appellant, and would have been visible to appellant from the corner of his eye. He did not swing the bat or say anything, but just stood there, watching.

When Chavez pushed appellant for the final time, Chavezs friends were nearby and it appeared that they were moving toward appellant, too. The two main ones were right in his face. After the second push, the man in the black truck came out with the bat. At the third push, when Garcia was trying to get appellant to leave it alone, appellant looked at her and said, Just wait. He pushed her to the side, as she was standing kind of in front of him, and she saw appellant shoot Chavez. She did not see him pull out the gun, but she saw fire come from it. The shots were fired within a matter of seconds after the third push. At the time they were fired, Chavez was in front of appellant, perhaps two to three feet away, and backing up. He moved six to seven feet after the gunshots, then his body just fell flat.

The Gang Evidence

Hope Pizana, appellants grandmother, owned a two-acre ranch near Sultana that was searched in connection with this case. Appellant did not live at her house, but sometimes stayed overnight with her. Her house was at the front of the property. All of the graffiti was on her next-door neighbors property, not hers.

Dr. Lewis Yablonsky, an emeritus professor of criminology and sociology at California State University, Northridge, testified as an expert on gangs. In connection with this case, he reviewed police reports, the preliminary hearing transcript, and other information, and interviewed appellant.

According to Yablonksy, there are three categories of active gangsters. First are the so-called OGs the Original Gangsters or, as they are known in Hispanic gangs, Veteranos. These are individuals who are heavily involved in gang activity and usually have fairly long records. They develop a reputation for violence and crime. They are the leaders or shot callers. Second are those referred to on the streets as Gs. They are the soldiers or followers. They participate in gang activity and crime. Third are the so-called wannabes. These are usually younger individuals. They are like interns trying to develop status in the gang, and have to put in work. Work involves violence and criminal activities something that enhances the gangs reputation. A wannabe ultimately wants to be initiated into the gang or acknowledged as a gang member, although the process takes different forms with different gangs. Often, if an individual has an older family member in a gang, he does not necessarily go through the process because he is assumed to be part of the gang.

Yablonsky had also identified three categories of nonactive gangsters. First are the gangsta groupies. These are youngsters who like hip hop music, dress like gang members, admire the gangsta, and are in the wrong place at the wrong time or are present with real gang members and so end up as codefendants in gang crimes, but are

not really active gangsters. Second are residents in gang neighborhoods. In certain heavily influenced gang neighborhoods, certain individuals are almost automatically considered part of a gang in the sense that they are sort of adopted. They may not be

committing crimes, but they become identified because they are residents in a gang neighborhood. Sultana is an example; it is primarily a northern area, and there are no Surenos in the area. This factor may come into play during classification in a jail: If someone is from a neighborhood known as being heavily Norteno or Sureno, for example, a person identified as being from that area will be identified as being a gang member. Third are former gang members. Some people wake up and decide they do not want to do this anymore, so they start doing other things and get out of the gang. Dropouts fall within this category.

Yablonskys research showed a definite difference, in terms of the degree of cohesion, organization, and structure, between prison gangs and street gangs. The gangs in the communities are much looser in terms of organization and structure. In his view, there is no real Norteno or Sureno organization except in prison. On the streets, young people will use the Sureno or Norteno identification as a type of defense mechanism, while having no actual gang affiliation. Similarly, some individuals being booked into jail or going to prison will take on some sort of identification for self-protection.

Yablonsky did not see the shooting in this case as a gang-related act of violence. Instead, he saw it as a conflict that took place late at night or early morning, and that did not have the three major criteria of the gang law, viz., was it directed by the gang, did it enhance the gangs reputation, or was it in association with another gang individual. Yablonsky also did not see appellant as a gang member. Instead, he placed appellant in the category of living in a gang area and probably associating with certain gang individuals. To Yablonsky, the most significant factor that caused him to conclude appellant was not a gang member was the fact appellant had no prior record of gang violence or any type of rap sheet.

DISCUSSION

I

Batson-Wheeler Claim

Appellant, who is Hispanic, challenges the trial courts denial of his Batson-Wheeler^[10]motion, which was brought as a result of the prosecutors peremptory excusals of several prospective jurors who were Hispanic. Hispanics are a cognizable group for purposes of Batson-Wheeler analysis.^[11] (People v. Trevino (1985) 39 Cal.3d 667, 686, disapproved on other grounds in People v. Johnson (1989) 47 Cal.3d 1194, 1221.)

The purpose of peremptory challenges is to allow a party to exclude prospective jurors who the party believes may be consciously or unconsciously biased against him or her. (People v. Jackson (1992) 10 Cal.App.4th 13, 17-18.) Peremptory challenges may properly be used to remove prospective jurors believed to entertain specific bias, i.e., bias regarding the particular case on trial or the parties or witnesses thereto. (Wheeler, supra, 22 Cal.3d at p. 274.) However, [a] prosecutors use of peremptory challenges to strike prospective jurors on the basis of group bias that is, bias against members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendants right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.] [Citation.] (People v. Bell (2007) 40 Cal.4th 582, 596; see Batson, supra, 476 U.S. at pp. 88-89; Wheeler, supra, 22 Cal.3d at pp. 276-277.)

The United States Supreme Court has reaffirmed that Batson states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citations.] Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. [Citations.] Third, [i]f a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. [Citation.] [Citation.] (People v. Avila (2006) 38 Cal.4th 491, 541, quoting Johnson v. California (2005) 545 U.S. 162, 168.) The California Supreme Court has endorsed the same three-part structure of proof for state constitutional claims. [Citations.] (People v. Bell, supra, 40 Cal.4th at p. 596; Wheeler, supra, 22 Cal.3d at pp. 280-282.)

With these principles in mind, we turn to the facts of the case before us.

A. Factual Background

Prospective Juror Nos. 702817 and 715059 both of whom had Hispanic surnames were among the first 18 individuals examined during voir dire.^[12] In part, No. 702817 related that he was a supervisor at Ruiz Foods; was charged with murder in the early 1990s, but released due to lack of evidence, and harbored no animosity toward anyone but the Tulare Police Department; did not think Tulare County had a serious gang problem, but instead believed it was mainly junior-high-age youngsters and the younger generation, and that it was a phase; and his wifes whole family were ex-Norteno members The prosecutor excused No. 702817 with his third peremptory challenge.

No. 715059 related that he had been a bartender at the Depot Restaurant for approximately nine years; believed Tulare County had a gang problem, but had not experienced any of his coworkers claiming gang association or anything similar; and had had no contact with law enforcement from situations at the Depot, had never seen the police there except possibly pulling someone over, and had not seen fights in the parking lot or similar activity in the last few years. When asked whether he had been a victim of any kind of crime, he replied that he had had a girlfriend stolen once. When asked if he had seen anything happen at the Depot or been a victim there, he responded, A lot of things happen at the Depot, but thats not a crime. The prosecutor excused No. 715059 with his fourth peremptory challenge.

No. 645963, who also had a Hispanic surname, was among the second panel called for voir dire. She related that she had a brother who had been in and out of jail for drug-related offenses, but felt he had been treated appropriately; had lived in Visalia all her life and was presently unemployed, but had previously been a receptionist at a day spa; and followed the news, reading the Visalia Times Delta daily and watching television news regularly in the morning and sometimes in the evening. The record does not reflect which peremptory challenge the prosecutor used to excuse this prospective juror, but the prosecutor exercised eight peremptory challenges against prospective jurors (not including alternates).^[13]

Following the excusal of No. 645963, defense counsel raised a Batson-Wheeler claim. He argued that of the prosecutors eight peremptory challenges, three had been exercised so as to exclude Hispanics, specifically Nos. 645963, 715059, and 702817. Counsel acknowledged that he could understand some concern with respect to No. 702817 because he was once charged with murder, but asserted there was no justification with respect to the other two. This ensued:

THE COURT: Mr. Sliney [prosecutor] do you want to respond to that?

MR. SLINEY: First off, is the court finding a prima facia [sic] indication?

THE COURT: Im not sure. Certainly there is a prime fascia [sic] group. I mean the Hispanics are a recognized group. My notes are that you have excused out of your eight peremptories four were used for Hispanics. So with that in mind I would like for you to just respond as to those four peremptories. []  []

MR. RUMERY [defense counsel]: Who was the fourth one? Maybe I missed that. I didnt get it down.

MR. SLINEY: To be honest with you I dont have any idea but I can start with (Badge Number 645963) . Basically my concern is the fact that she was born and raised apparently in Visalia. Has been a lifer here. Went to school here. Doesnt think that gangs are she said not a serious problem. She indicated that they were never a problem when she was in school.

And she talked about a niece who had problems at school and indicated that the niece didnt relate she kind of waffled on whether it was gang related but my concern is that she basically is sticking her head in the sand and doesnt recognize that these problems exist in Tulare County.

(Badge Number 702817) I remember. Indicated that he had basically a lot of family members that were Nortenos in Dinuba. He worked at Ruiz Foods. One of our witnesses has worked at Ruiz Foods. Been fired from Ruiz Foods or left Ruiz Foods. I guess quit. Didnt indicate that he knew the witness after I stated the name.

That was my largest concern was his gang ties. The fact that he said all his wifes family members were gang members yet he was not a gang member and the fact that he worked at Ruiz Foods and yet never mentioned he knew the person by the name of Joseph Acosta and my concern is that he did know Mr. Acosta and just didnt bring it up because apparently Mr. Acosta left Ruiz Foods because of some sort of conflict. []  [] (Badge Number 715059) because he worked at the Depot. Theres been police activity at the Depot. We just had a case where there was a PC 69 case that went to trial for basically a big fight in the parking lot. Police chasing someone, all kinds of things.

That and the fact that he just didnt seem to take the proceedings seriously. I dont think he was being honest with his years at the Depot. And theres no way he could have not known about the police activity with the PC 69 that took place in the parking lot. I think people were tazed. I dont know what department it went to trial in, but my concern is he just wasnt being truthful. []  []

MR. SLINEY: And the court has mentioned a fourth and I really have no idea who youre talking about.

THE COURT: I dont recall it either. []  [] Well at this point

MR. RUMERY: I think

THE COURT: Im not finding any systematic exclusion of Hispanics by

MR. RUMERY: Can I make a comment about what he said about (Badge Number 715059)? I think his reasoning is suspect because the questions that hes saying about police action at the Depot was never questioned of, of (Badge Number 715059).

THE COURT: He did ask him.

MR. RUMERY: He asked if he knew of any police action and he said no. [] It could have been on a time when he was off on vacation. He could have not been working that day and for him to use that as an excuse is not correct, and like I said, three Hispanics have gotten past cause issues into the box and theyve all been excused by the prosecution.

THE COURT: Well, I would also say this, I agree with Mr. Sliney. (Badge Number 715059) did not seem to be taking things seriously. He seemed to have some type of attitude. Maybe he was nervous. Maybe he was somewhat intimidated. Maybe he was being evasive. Maybe he didnt take the matter seriously but he his responses seemed to the court odd. Thats all Ill say so anything else you want to add Mr. Rumery?

MR. RUMERY: No.

THE COURT: Your motion is denied.

The prosecutor also exercised two peremptory challenges during selection of the alternate jurors. After the alternate jurors were sworn, defense counsel renewed his Batson-Wheeler motion, based on the prosecutors challenge to No. 737748. The trial court denied the motion, observing: [T]here are two Hispanics on the jury at this point. I believe (Badge Number 675026) and (Badge Number 622883). Certainly (Badge Number 737748) I believe its understandable why the prosecutor might remove him. He was friends or family that knew, he knows gang members.^[14]

B. Analysis^[15]

The trial court expressed uncertainty as to whether it was finding a prima facie case of improper discrimination, step one of the Batson-Wheeler analysis. The issue need not detain us: Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot. (Hernandez v. New York (1991) 500 U.S. 352, 359 (plur. opn. of Kennedy, J.); People v. Lewis (2008) 43 Cal.4th 415, 471.) Accordingly, we proceed to step two.

At step two, the prosecutor must come forward with a race-neutral explanation for each challenged excusal. (People v. Silva (2001) 25 Cal.4th 345, 384.) In evaluating the race neutrality of an attorneys explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law. [] A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutors explanation. Unless a discriminatory intent is inherent in the prosecutors explanation, the reason offered will be deemed race neutral. (Hernandez v. New York, supra, 500 U.S. at pp. 359-360 (plur. opn. of Kennedy, J.).) At this step, the explanation need not be persuasive, or even plausible. (Purkett v. Elem (1995) 514 U.S. 765, 767-768.)

The prosecutor stated race-neutral reasons with respect to Nos. 645963 (lived in Visalia entire life and went to school there, but did not think gangs were a serious problem), 702817 (family members were Nortenos; worked at Ruiz Foods but never mentioned Acosta, who left there because of a conflict), and 715059 (not truthful regarding knowledge of police activity at the Depot; not taking proceedings seriously). Relying on United States v. Bishop (9th Cir. 1992) 959 F.2d 820 (Bishop), appellant appears to contend that the prosecutors use of residence with respect to No. 645963 was a pretext for race. Bishop is neither controlling nor apposite (see People v. Williams (1997) 16 Cal.4th 153, 190-191), and the extent to which it is still viable, in light of Purkett v. Elem, supra, 514 U.S. 765, is suspect (see Boyde v. Brown (9th Cir. 2005) 404 F.3d 1159, 1171, fn. 10). In any event, in Bishop the prosecutor explained his challenge of an African-American prospective juror as based in part on the fact the prospective juror lived in a predominantly low-income, African-American neighborhood and accordingly was likely to believe police pick on black people. (Bishop, supra, 959 F.2d at p. 821.) Such was not the use to which the prosecutor in the present case put the fact of the prospective jurors residence in Visalia. Moreover, while finding the excuse before it did not constitute a race-neutral explanation for the strike (id. at pp. 821-822), Bishop stated: This is not to say that residence never can constitute a legitimate reason

for excluding a juror. On the contrary: What matters is not whether but how residence is used. Where residence is utilized as a link connecting a specific juror to the facts of the case, a prosecutors explanation based on residence could rebut the prima facie showing. (Id. at p. 826.) The prosecutor here did not run afoul of Bishop.

Accordingly, we move to step three. At this stage of the Batson-Wheeler analysis, the trial court must decide whether the opponent of the peremptory strike has proved purposeful racial discrimination by a preponderance of the evidence. (Purkett v. Elem, supra, 514 U.S. at p. 767; People v. Hutchins (2007) 147 Cal.App.4th 992, 997-998.) The persuasiveness of the proffered justification now becomes relevant (Johnson v. California, supra, 545 U.S. at p. 171), as implausible or fantastic justifications will often be found to be pretexts for purposeful discrimination (Purkett v. Elem, supra, 514 U.S. at p. 768). However, a prosecutor is presumed to use his or her peremptory challenges in a constitutional manner (People v. Alvarez (1996) 14 Cal.4th 155, 193; Wheeler, supra, 22 Cal.3d at p. 278), and the justification proffered for the particular excusal need not support a challenge for cause, and even a trivial reason, if genuine and neutral, will suffice. [Citation.] (People v. Arias (1996) 13 Cal.4th 92, 136; accord, People v. Williams, supra, 16 Cal.4th at p. 191.) What is required are reasonably specific and neutral explanations that are related to the particular case being tried. (People v. Johnson, supra, 47 Cal.3d at p. 1218.)

Once the prosecutor come[s] forward with an explanation that demonstrates a neutral explanation related to the particular case tried (People v. Johnson, supra, 47 Cal.3d at p. 1216), the trial court must then satisfy itself that the explanation is genuine (People v. Hall (1983) 35 Cal.3d 161, 167). In [this] process, the trial court must determine not only that a valid reason existed but also that the reason actually prompted the prosecutors exercise of the particular peremptory challenge. (People v. Fuentes (1991) 54 Cal.3d 707, 720.) This demands of the trial judge a sincere and reasoned

attempt to evaluate the prosecutors explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily, for we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination. [Citation.] (People v. Hall, supra, 35 Cal.3d at pp. 167-168.) In undertaking this evaluation, the trial court need not make affirmative inquiries, but must find the race-neutral explanations to be credible. (People v. Hamilton (2009) 45 Cal.4th 863, 907.) When a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its ruling, reviewing it under the substantial evidence standard. [Citations.] (People v. Jurado (2006) 38 Cal.4th 72, 104-105; accord, People v. Lenix (2008) 44 Cal.4th 602, 627.) Deference does not, of course, imply abandonment or abdication of judicial review. (Miller-El v. Cockrell (2003) 537 U.S. 322, 340.)

Substantial evidence supports the trial courts ruling as to each of the challenged prospective jurors. The prosecutors stated reasons for excusing No. 702817 were both inherently plausible and supported by the record (see People v. Panah (2005) 35 Cal.4th 395, 442; People v. Silva, supra, 25 Cal.4th at p. 386); moreover, he was once charged with murder, although he professed to harbor no animosity toward the district attorneys office. The prosecutors stated reasons for excusing No. 715059 were also inherently plausible and supported by the record. Even the trial court commented on the prospective jurors demeanor and felt he had some sort of attitude. As the trial court was in the best position to observe the prospective jurors demeanor, its implied finding that the prosecutors reasons including the demeanor-based one were sincere and genuine, is entitled to great deference (People v. Stanley (2006) 39 Cal.4th 913, 939), and we see no reason to reject that finding.

We reach the same conclusion with respect to No. 645963. We have undertaken the requisite comparative analysis (see People v. Lenix, supra, 44 Cal.4th at pp. 607, 621-622); [v]iewing such comparative evidence in light of the totality of evidence relevant on the claim, we conclude it does not demonstrate purposeful discrimination. (People v. Cruz (2008) 44 Cal.4th 636, 659.) Appellant points to Nos. 623259 and 712429 as being non-minority jurors who were not challenged despite their opinion that there was not a serious gang problem in Tulare County. However, No. 645963 stated that she followed the news, reading the Visalia Times Delta daily and watching television news regularly at least once a day. In conjunction with his change of venue motion, defense counsel submitted numerous articles from the Visalia Times Delta that had to do with gangs. A number of other prospective jurors who believed Tulare County had a serious gang problem came to that conclusion at least in part based on what they read in the newspaper. No. 623259 did not read the local news, except sometimes the Fresno Bees fishing column, and did not feel he had enough information to say whether Tulare County had a serious gang problem. No. 712429 read the Fresno Bee and watched local television news; she believed Tulare County had a gang problem, but that it was not as serious as Fresnos and law enforcement was doing a good job suppressing it. Appellant has called to our attention no prospective juror who read the Visalia newspaper on a daily basis and yet did not think there was a significant or serious gang problem, and our review of the record shows none.

Finally, we note that two trial jurors, and two alternates, had Hispanic surnames. While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection. [Citation.] (People v. Ward (2005) 36 Cal.4th 186, 203; accord, People v. Lewis, supra, 43 Cal.4th at p. 480.) Our review of the record as a whole demonstrates that substantial evidence supports the trial courts conclusion that the prosecutors peremptory excusals of Nos. 645963, 702817, and 715059 were not motivated by discriminatory intent. (See People v. Cruz, supra, 44 Cal.4th at p. 661.) The Batson-Wheeler motion was properly denied.

II

Instructional Error

Over defense objection that there was no mutual combat shown by the evidence, the trial court instructed, pursuant to CALCRIM No. 3471: A person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only if, one, he actually and in good faith tries to stop fighting. [] And two, he indicates by word or by conduct to his opponent in a way that a reasonable person would understand that he wants to stop fighting and that he has stopped fighting. [] If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight.

CALCRIM No. 3471 correctly states the law as contained in section 197.^[16] Appellant did not ask the trial court to define mutual combat for the jury. (See People v. Miceli (1951) 101 Cal.App.2d 643, 649.)