In re A.H.

Filed 11/25/09 In re A.H. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge.

Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

The court re-adjudged appellant, A.H., a ward of the court (Welf. & Inst. Code,  602) after it sustained allegations charging appellant with challenging another to fight (Pen. Code, 415, subd. (1))^[1]and vandalism (Pen. Code, 594, subd. (a)). On appeal, appellant contends the court erred when it allowed the introduction of gang evidence. We will affirm.

FACTS

At appellants jurisdictional hearing, Tulare County Sheriffs Lieutenant Christopher Wenzinger testified that on December 21, 2008, at approximately 12:30 p.m. he was on duty in Pixley when he saw a Toyota Corolla parked on the roadway. Two males were standing by the car and two males, appellant and J.C., were standing approximately 20 feet south of it. Wenzinger saw J.C. and appellant bend over, reach to the ground, and then make a motion as if they were throwing something. After the four males got in the Corolla and were driving off, Wenzinger pulled over the Corolla. During the stop, Z.W. ran up to Wenzinger and told him that the males had been chasing him, throwing rocks, and threatening him.

Deputy Lucas Vance testified he arrived on the scene and spoke with Z.W. Z.W. told Vance he was riding his bicycle east on Terra Bella Avenue when he saw J.C., with whom he had previously fought, riding in the front passenger seat of the Corolla. The car stopped and J.C. and appellant got out. J.C. then stated, Im going to fuck you up, buster, south side.^[2]

Z.W. had an injury on his right pinky and stated that it was caused by one of the rocks thrown at him by J.C. Z.W. also stated that appellant did not say anything to him or throw anything at him.

Deputy Joseph England interviewed appellant after the incident. Appellant stated that he and his cohorts were driving to a store when J.C. told the driver to stop because he recognized Z.W. and wanted to fight him. Appellant exited the vehicle with J.C. and walked with him as he approached Z.W., insulted him, and attempted to fight him. Appellant further stated that he remained silent and was not involved in any physical altercation.

Z.W. was a reluctant witness and testified that he did not want to testify or be at the hearing. Nevertheless he admitted that the males in the car said something gang related to him.^[3] Z.W. got off his bicycle and started running as two males got out of the car. He did not know what the two males did because he did not look back.

The prosecution presented a picture of appellant taken the day of the underlying incident. The photograph showed appellant wearing a blue Los Angeles Dodgers sweater, a blue bandanna hanging out of one of his rear pants pockets, and three dots on appellants left hand. Defense counsel objected to the introduction of the photograph and Deputy Vances testimony authenticating it on the grounds that it was not relevant because it was gang evidence and its prejudicial impact outweighed its probative value. The court overruled the objection and admitted the evidence even though the prosecution did not present any evidence explaining the significance of the three dots, the blue sweater or the blue bandanna.^[4]

DISCUSSION

Appellant contends the gang evidence had little probative value because no expert testimony was presented to explain its significance and it was cumulative to show appellants association with J.C. Thus according to appellant, the court abused its discretion in admitting gang evidence over his Evidence Code section 352 objection because it was inflammatory, and the courts error in admitting this evidence was prejudicial. We will reject these contentions.

The prosecutions theory of the case was that appellant aided and abetted J.C. in challenging appellant to fight.

[] Section 31 provides that [a]ll persons concerned in the commission of a crime, ... whether they directly commit the act constituting the offense, or aid and abet in its commission, ... are principals in any crime so committed. A person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime. [Citation.] [Citations.] (In re Malcolm M. (2007) 147 Cal.App.4th 157, 165.)

Moreover,

[t]he admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial courts decision exceeds the bounds of reason. [Citation.] Evidence of gang activity and affiliation is admissible where it is relevant to issues of motive and intent [citations], and, while admissible evidence often carries with it a certain amount of prejudice, Evidence Code section 352 is designed for situations in which evidence of little evidentiary impact evokes an emotional bias. [Citation.] (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369, italics added.)

Gang evidence is also admissible to show a witnesss reluctance to testify. (People v. Harris (1985) Cal.App.3d 944, 957-958.)

The gang evidence here was not cumulative because it was relevant not only to show appellants association with J.C., but also to explain why the victim was reluctant to testify and to show appellants motive and intent in accompanying J.C. out of the car. And, although the prosecution did not present any evidence to explain the significance of the three dots on appellants hand, the blue sweater and the blue bandanna, appellant did not object to the introduction of this evidence on foundational grounds. Thus, appellant forfeited these grounds for challenging the introduction of this evidence. (Evid. Code,  353 [A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion ].) Accordingly, we conclude that the court did not err when it allowed the prosecution to introduce this evidence.

In finding that appellant aided and abetted J.C. in challenging the victim to fight, the court stated in pertinent part: [W]ith respect to the words or conduct[, in] this instance, the conduct is several. There was a chase. There was a throwing of rocks. There was the wearing of blue. There was the discussion in the car that he, [J.C.], intended to fight [Z.W.]. (Emphasis added.)

It is clear from the above quote that the court inferred appellant and J.C. were fellow gang members or gang associates based on the evidence that appellant was wearing blue, and that the court considered this evidence at least on the issue appellants motive and intent in exiting the car with J.C. Appellant wearing blue, however, did not support this inference because, as noted earlier, the prosecution did not provide any evidence linking the wearing of blue or the three dots on appellants hand to membership in a gang. Nevertheless, any error in the court drawing this inference from this evidence was harmless because the inference was supported by other properly admitted evidence.

The only statement of record from the males in the car to the victim was J.C.s statement, Im going to fuck you up, buster, south side. Thus, the court could reasonably infer that the victim was referring to this statement when he testified that the males in the car said gang-related things to him and that J.C. was a gang member. It could also infer from this statement and the conduct of the other males in accompanying J.C. in the car, exiting it with him after J.C. said he was going to fight the victim, and getting back into the car with J.C. after the confrontation, that they too were either gang members or associates.

Further, even assuming the court erred in admitting the gang evidence complained of, the error was harmless. The Supreme Court has held that the application of ordinary rules of evidence does not implicate the federal Constitution, and thus we review allegations of error [in the admission of evidence] under the reasonable probability standard of People v. Watson (1956) 46 Cal.2d 818, 836 . [Citation.] (People v. Harris (2005) 37 Cal.4th 310, 336.)

Here, the record contains strong evidence that appellant aided J.C. in challenging the victim to fight. Appellant was aware that J.C. intended to fight the victim before he and J.C. got out of the car because he heard J.C. say that was what he intended to do when J.C. told the driver to stop. Appellant also exited the car and accompanied J.C. as he left the immediate area of the car and went after the victim. Further, Lieutenant Wenzinger testified that he saw appellant and J.C. making movements as if they were picking up rocks from the roadside and throwing them. Deputy Vance testified the victim told him he received an injury to his pinky from being struck by a rock that was thrown at him. The court could reasonably find from the above evidence that both appellant and JC threw rocks at the victim and that by doing so, appellant actively encouraged and aided J.C. in challenging the victim to fight.

Additionally, the prejudicial impact of the gang evidence at issue was minimal because the record contained other properly admitted evidence from which the court could infer that appellant was a gang member or associate. Finally, we note that the inflammatory nature of the gang evidence was minimal because it was not extensive and the case was tried to the court, not a jury.

Appellant cites the victims statement to Deputy Vance that appellant did not throw any rocks and said nothing to him, and appellants own self-serving statement to Deputy England that he did nothing, to contend that there is an Irreconcilable Conflict in the Evidence, Most of Which Point[s] to Appellants Innocence. (Boldface omitted.) We disagree.

On the day of the incident, the victim told Deputy Vance that rocks were thrown at him and one of them struck him injuring his finger. As noted above, Lieutenant Wenzingers testimony that he saw appellant and J.C. apparently throwing rocks provided strong circumstantial evidence that appellant and J.C. both threw rocks at the victim. Further, in light of this testimony, the court could reasonably find that when the victim stated that appellant never threw anything at him he actually meant only that he never saw appellant throw anything at him, especially since the victim was running away from appellant and J.C. during the underlying incident.

Appellant also misplaces his reliance on People v. Avitia (2005) 127 Cal.App.4th 185 to contend the court erred in admitting gang evidence. Avitia is inapposite because there, the appellate court found that the only purpose for introducing gang evidence was to show the defendants criminal disposition. (Id. at p. 194.) Here, the evidence was relevant to show motive and intent and to explain the victims reluctance to testify. Accordingly, we reject appellants contention that the court prejudicially erred when it allowed the prosecutor to introduce the complained of gang evidence.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, A.P.J.; Levy, J.; and Hill, J.

^[1] All further statutory references are to the Penal Code, unless otherwise indicated.

^[2] Defense counsel did not object to this testimony.

^[3] Defense counsel did not object to this testimony.

^[4] With respect to the vandalism charge, the parties stipulated that on January 23, 2009, a probation worker made a compliance check at appellants residence and found that the transmitter to appellants electronic monitor had the letters WAS scratched on it three times. Appellant admitted scratching the letters on the transmitter.