(Super. Ct. No. 08F09955)
The opinion of the court was delivered by: Blease , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Jesse Pashenee of (count one) attempted murder, a felony (Pen. Code, §§ 664/187, subd. (a)), (count two) aggravated mayhem, a felony (Pen. Code, § 205), and (count three) assault with a deadly weapon or by means of force likely to produce great bodily injury, a felony.*fn1 (Pen. Code, § 245, subd. (a)(1).) The jury also found true the allegations that defendant personally used a deadly or dangerous weapon (a knife) during the commission of the crime (§ 12022, subd. (b)(1)), and that he personally inflicted great bodily injury upon the victim within the meaning of section 12022.7.
The charges stemmed from an incident in which the victim, Ramon Bravo, Sr., interceded when defendant and his companion were hitting a third young man. As Bravo walked away, defendant attacked him with a knife, slashing him in the head and face and stabbing him in the neck.
The trial court sentenced defendant to life in prison for count two, aggravated mayhem, plus a determinate term of one year for the related weapons enhancement. The sentences for the other convictions were stayed pursuant to section 654.
We shall conclude that the personal weapons use enhancement to count three must be stricken, but that the judgment should otherwise be affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On November 16, 2008, Ramon Bravo, Sr. and his son, Ramon Bravo, Jr., drove to Johnston Park, where they parked, got out of the car, and waited for some friends.*fn2 As they were waiting, Ramon Sr. saw defendant and a companion (later identified as Joe Gallegos) grab a third young man, who was alone, and start hitting him. Ramon Sr. was 44 years old at the time of trial, and defendant was 17 years old at the time of the offense. Ramon Sr. told defendant and Gallegos to leave the boy alone. They asked Ramon Sr. who he was, and he responded, "nobody." Ramon Sr. did not know the boy being attacked.
Ramon Sr. testified that he started walking back to his car when he noticed the back of his head felt hot. He did not immediately realize his head was bleeding. He turned around and defendant, who was right behind him, cut him from the bottom of his nose down past the corner of his mouth. Defendant cut the top of Ramon Sr.'s head, his neck, and his shoulder. In all, Ramon Sr. had about six wounds.
Ramon Sr., who was unarmed, managed to get back into his car, and Ramon Jr. drove him to a hospital. As a result of the multiple lacerations to the face, shoulder, scalp and ear, Ramon Sr. lost a considerable amount of blood. He was transfused with two units of blood, which equates to approximately a 20 percent blood loss.
During the investigation into the attack, information surfaced that Ramon Jr. was a validated member of the Sureno criminal street gang. Ramon Jr. had recognized defendant from when they had both been incarcerated at Boys' Ranch. Defendant was a Norteno, an enemy of the Surenos, and had given Ramon Jr. mean looks when they had been at Boys' Ranch.
Based on Ramon Jr.'s information, the police showed Ramon Sr. a photo lineup that included defendant's picture.*fn3 Ramon Sr. very quickly identified defendant as his attacker. Ramon Jr. identified Joe Gallegos as the person who had been with defendant during the attack on Ramon Sr.
Police went to the house in Elk Grove where defendant lived with his parents and searched his bedroom. They found several notebooks with defendant's name and Norteno graffiti in them. They found bullets and a cell phone. The banner on the phone contained Norteno gang writing. There was also a folder with several monikers (gang nicknames) written on it, including "Demon," which referred to defendant, "Fat Boy," which referred to David Gallegos, and "Savioso," which referred to Joe Gallegos. The Gallegoses were Nortenos, and identified with the Varrio Northside subset, or VNS.
Police also found several letters authored by defendant. In one, he wrote, "Im gon do iz smoke a chop 2 the neck get sum pussy then go kill skrapz[.]" "Scrap" is a derogatory term for a Sureno gang member. He also wrote, "Thatz all the fuck I won do. I ain't kilt me a skrap in hella long."
In another letter he wrote, "u know chill'n smoke'n blunts wit the homiez doin wat we do make'n show my hood scrap free." This meant he wanted to make sure there were no Surenos in his neighborhood. Another letter said, "I fired on this scrap last Sunday . . . ." Another said, "Im juss chill'n tho push'n line on these scrapz, me and my nigga 4rm the Diamonds beat up 2 skrapz, it wuz a 2 on 2, we wuz gett'n on they shit they can't fuck wit us." The Diamonds is another Norteno subset.
A few months after the attack, Ramon Jr. was sent back to Boys' Ranch. While he was there, Northern gang members told him they were going to get him back for snitching. They "snaked" him, which meant that they came at him from behind and hit him without him seeing them. They always threw gang signs at him and told him they were going to pay him back. All of this was started by Joe Gallegos, who had been with defendant during the attack on Ramon Sr., and who was at Boys' Ranch with Ramon Jr. He said that he was going to get Ramon Jr. and his dad. Once, when Ramon Sr. visited Ramon Jr. at Boys' Ranch, one of the inmates bumped into him and told him to watch his back.
Detective Brian Kinney from the Sacramento Police Department testified as a gang expert specializing in Hispanic street gangs. He testified regarding Norteno gang tattoos and other visual identifiers including clothing, hairstyles, and hand signals. He also testified that loyalty within the gang culture is second to none. He testified that the punishments for snitching range from verbal lashings for very minor offenses to threats, assaults, and death.
Defendant testified at trial. He admitted that he was in the park on the day of the attack with Joe Gallegos. He admitted he had a knife in his pocket, which he kept for protection. He admitted that both he and Joe Gallegos were Norteno gang members, and that they both had tattoos on their hands indicative of their gang membership.
Defendant testified that he had been drunk, and that he and Gallegos had been talking to a girl when they heard Ramon Sr. cursing in a loud voice. He then saw two other males armed with metal nunchuks. One of the other men was Ramon Jr. The other was Victor Bravo, a person defendant had never met before. Defendant testified that Ramon Sr. had a knife. Defendant claimed he only pulled out his knife because he wanted the men to back away. They did not back away, however, but started swinging their weapons. They struck defendant on the top of the head. Ramon Sr. cut him on his right hand in the webbing between his thumb and index finger. He dropped his knife, and after he picked it up he started swinging with his eyes closed "just wildly out of fear." He did not know at the time that he had struck anyone. After that, Joe Gallegos yanked him to the sidewalk, and they ran away.
Defendant argues the trial court committed error with three of its evidentiary rulings: (1) the admission of evidence defendant was involved in a gang; (2) the admission of defendant's letters and other writings found at his home, and (3) the admission of evidence that bullets were found in his room.
A. Gang Evidence and Gang-Related Writings
Defendant sought to exclude evidence of his gang membership and gang paraphernalia found in his room on the grounds that the evidence was not relevant, and that its prejudicial effect outweighed its probative value pursuant to Evidence Code section 352. In ruling on the defendant's in limine motion, the trial court found the evidence of defendant's gang membership was relevant to motive, and that it was "fairly central to establishing evidence of a motive[.]" Defendant now argues that the trial court abused its discretion in admitting this evidence, and that even if relevant, the evidence was so inflammatory that it denied his right to due process and a fair trial.
With regard to defendant's letters and diary entries, the prosecutor argued the items were relevant to defendant's specific intent to murder and maim. Defense counsel conceded there might be some relevance to intent, but argued the evidence was highly prejudicial.
The trial court has broad discretion to admit relevant evidence over an objection that the probative value of the evidence is outweighed by the danger of undue prejudice, confusion, or consumption of time. (People v. Lewis (2001) 26 Cal.4th 334, 374.) We will not disturb the trial court's ...