(Super. Ct. No. 07F08201)
The opinion of the court was delivered by: Raye , P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After defendant Jimmy Navarro exchanged words with Adrian Hutchins, he fatally shot Hutchins. An information charged defendant with first degree murder and discharge of a firearm from a motor vehicle. (Pen. Code, §§ 187, subd. (a), 12034, subd. (c).)*fn1 A jury found defendant guilty on both counts, and the court sentenced him to life in prison without the possibility of parole plus 25 years to life. Defendant appeals, contending the court erred in admitting gang evidence and impeachment evidence, committed instructional error, and erred in denying defendant's motion for a hearing on confidential juror information. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of May 8, 2007, defendant rode in a car driven by his friend, Curtiss Young. The duo passed a park, where defendant and the victim, Adrian Hutchins, exchanged words. Defendant shot and killed Hutchins.
Defendant was charged with first degree murder and discharge of a firearm from a motor vehicle. The information alleged the special circumstance of discharging a firearm from a vehicle with the intent to inflict death, and that defendant intentionally and personally discharged a firearm, proximately causing great bodily injury or death. (§§ 190.2, subd. (a)(21), 12022.53, subd. (d).) Defendant entered a plea of not guilty.
A jury trial followed. The following evidence was introduced at trial.
Officers arrived at the park and found an African-American man lying on the ground. Joshua Spivey approached and began going through the man's pants pocket. When one of the officers grabbed his hand, Spivey assumed a fighting stance.
Officers found a cell phone on the grass and 11 bullet cases in the street. Officers did not find a gun.
Dominick Novoa's Testimony
Dominick Novoa belonged to the Flat Dog Crips gang along with Spivey and Hutchins. The park was part of their neighborhood. Members of the Flat Dog Crips have obligations to other members. An unknown car in the neighborhood would pique their curiosity.
According to Novoa, Flat Dog Crips defend themselves by fighting, but they do not start anything -- they finish it. If someone starts something, "We are not going to be no punks." Novoa would not want to be caught "slipping," which means not having a gun.
The night of the incident, Novoa had a barbeque at his house with Hutchins, Spivey, and Conrad Johnson. Later that evening they went to the neighborhood park. Novoa and Spivey returned to the house; Hutchins remained in the park. Hutchins returned to Novoa's house later, drunk, and began to walk home. Novoa told Spivey to go with him.
When Novoa went into the kitchen, he heard gunshots. As he ran outside, Novoa saw a black car zoom past with its headlights off.
Joshua Spivey's Testimony
Spivey also lived near the park and belonged to the Flat Dog Crips. He attended Novoa's barbeque and went to the park with the others. Hutchins was drinking and smoking marijuana. Hutchins was "pretty drunk."
A black Mercedes drove down the street, slowing for the speed bumps. Hutchins threw his hands up toward the car, but Spivey did not remember if Hutchins said anything.
As the car made a U-turn, Hutchins asked Spivey for a gun. Spivey told him he did not have one. As the car approached, an occupant said, "What's up, homey?" Hutchins stepped toward the car, "did the hand thing," and said, "What's up, homey." As Hutchins leaned forward, the Hispanic passenger began shooting. Spivey heard eight shots.
Spivey jumped into the grass and saw Hutchins wobble backwards and fall to the sidewalk. After the shooting ended, Spivey ran over to Hutchins, who was struggling to breathe.
Following the shooting, Spivey searched for Hutchins's marijuana and cell phone so he could take them before the police arrived. Spivey was trying to prevent Hutchins from getting into trouble. Spivey did not hide a gun or try to get someone else to hide a gun.
Curtiss Young's Testimony
Curtiss Young stayed with defendant and helped him around the house. Anna Hernandez was defendant's girlfriend.
The day before the shooting, Young accompanied defendant to a car dealership, where he picked up a black Mercedes-Benz. Young drove the new car and helped defendant, who was in a wheelchair, get in and out of the vehicle. The duo drove around, making several stops. Although Young did not see a gun in defendant's possession, he had seen defendant with a gun before; defendant "always has a gun."
Sometime after dark, defendant told Young to drive by the park. As they drove by, Young saw a group of people "kicking it" and "party[ing]" on the other side of the park. As Young drove toward the group, he saw a "bunch of youngsters," 18 to 21 years old, in the street, so he slowed down.
An African-American man ran up to the side of the car and started yelling. The man began arguing with defendant, and the argument was loud and angry. Young kept driving, but defendant angrily told him to turn around.
Young testified defendant pulled out a gun and "cocked it back." As Young stopped the car, the man defendant had been arguing with approached the vehicle with his hand in "his waist line by his belt." At that moment, Young heard between 10 and 12 gunshots.
Young could not recall telling detectives that the pair exchanged expletives prior to the shooting. Young did not see a gun in the other man's hand and did not see a gun pointed at the car. According to Young, "[I]f he didn't have a gun, he was acting like he had one," and "If he didn't have something, he was bluffing." The man pulled a dark object from his waistband.
Young ducked and "hit the gas." As he drove away, he ran up over the curb. Defendant asked Young why he was messing up his car. They drove back to defendant's house but did not discuss the incident. A couple of days later, Young drove defendant to a paint shop, where defendant had the Mercedes painted white.
A few months later, Young wrote the district attorney a letter stating he had heard that members of defendant's family had put a $20,000 to $50,000 hit on Young. Young feared for his safety.
Both defendant and Young had similar "m-o-b-b" tattoos; Young's meant "me and him" and indicated his respect for defendant, who had helped him when he was homeless. Young testified he did not fear defendant, "but I do value my safety." Defendant had not made any threats against him.
Three months after the shooting, a detective interviewed Young. Young denied any knowledge of the shooting until the detective told him he had been identified as the driver.
Young told the detective a person walked up and leaned into the car with his right hand in his waistband or jacket pocket area. According to Young, "He ran up on me. He ran up on [defendant]." The shooting had not been planned. In a later interview, Young told a criminal investigator that he had seen the man reach into his waistband but had not seen a gun.
The shooting occurred in May 2007. In August 2007 an officer conducting surveillance on defendant saw a man, a woman, and defendant with his wheelchair get into a white Mercedes at defendant's house. Defendant sat in the back. Later that afternoon, officers saw the Mercedes and attempted a stop. The car sped away and officers saw the rear passenger throw something out the window. Subsequently, an officer found a handgun in a driveway in the area where the object was thrown.
A search of defendant's house revealed a loaded magazine for the same type of handgun that had been thrown from the Mercedes. Forensic analysis established that the bullets which killed Hutchins and the shell casings found at the scene of the murder came from the handgun thrown from the Mercedes.
Detective Donald Schumacher testified as an expert specializing in Hispanic street gangs. He stated that the primary activities of criminal street gangs are crimes like murder, drug dealing, and shootings.
The Norteno gang color is red; the Sureno gang favors blue. Sacramento has more Norteno than Sureno gang members. The Varrio Diamond is a subset of the larger Norteno gang.
Schumacher considers numerous criteria in ascertaining whether a person belongs to a gang: possession of gang graffiti, gang clothing, gang tattoos, participation in gang crimes, and any correspondence that identifies a person as a gang member.
A person has to meet a minimum of two criteria to be validated. Such validation is not automatic, but is subjective. Schumacher noted defendant had been involved in three qualifying gang-related crimes. Defendant sports a red northern star tattoo and a Sacramento Kings tattoo, which could be code for SK, or Sureno Killer.
In addition, defendant had repeated associations with known gang members, another validating criterion. Also, when jailed, defendant requested housing on the "northerner side." Finally, defendant's possession of multiple weapons contributed to Schumacher's opinion that defendant was a validated gang member. Given all of these factors, Schumacher determined that defendant was a validated Norteno gang member.
Schumacher also testified about the Flat Dog Crips street gang. The Flat Dog Crips claim the area around the park. Both the Flat Dog Crips and the Nortenos hang out in the same neighborhoods and generally coexist peacefully.
Gang members value the concept of respect to the point that killing can result from perceived disrespect. One way of gaining respect is through violence. In the gang milieu, if a gang member suffers disrespect, such disrespect must be answered or the reputation of the gang will suffer. Among gang members, verbal arguments can escalate into violence.
According to Schumacher, the statement "[W]hat's up homey" can be a gang expression for "is there a problem, and if so, what are we going to do about it?" ...