Opinion
B224424
10-12-2011
THE PEOPLE, Plaintiff and Respondent, v. KALVIN FOX et al., Defendants and Appellants.
Julie Schumer, under appointment by the Court of Appeal, for Defendant and Appellant Kalvin Fox. Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant Max Cortes. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA108761)
APPEAL from judgments of the Superior Court of Los Angeles County. Paul A. Bacigalupo, Judge. Affirmed as to Defendant and Appellant Max Cortes. Reversed as to Defendant and Appellant Kalvin Fox.
Julie Schumer, under appointment by the Court of Appeal, for Defendant and Appellant Kalvin Fox.
Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant Max Cortes.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
Following trial to a unified jury, Max Cortes and Kalvin Fox were convicted of attempted murder (Pen. Code, §§ 664, 187, subd. (a)) and assault with a deadly weapon, a knife (§ 245, subd. (a)(1)). The jury further found that Cortes personally used a deadly weapon and personally inflicted great bodily injury. (§§ 12022.7, subd. (a), 12022, subd. (b)(1)). The trial court sentenced Cortes to an aggregate term of 10 years in prison; the court sentenced Fox to an aggregate term of five years in prison. Fox and Cortes each filed an appeal, which we address together in this opinion. We affirm the judgment as to Cortes; we reverse the judgment as to Fox.
All section references are to the Penal Code except as otherwise noted.
FACTS
On September 19, 2009, S.R. and his wife invited some friends and relatives to their son's birthday party. S.R. began drinking at about 1:00 or 2:00 p.m. and drank "pretty much continually from early afternoon on." In the words of his own trial testimony, S.R. became "intoxicated," but not to where he "couldn't comprehend what was going on and conversate [sic] with people." Later during the evening, other friends and relatives arrived to watch a fight on television. At about 10:00 p.m., one of S.R.'s guests asked him for permission to allow two of the guest's friends, Fox and Cortes, to join the gathering. S.R. said "okay," provided they did not cause any problems. After the televised fight ended, people "socialized" in the backyard, drinking "beer, tequila, everything."
Around midnight, S.R. decided to walk four to six people to the front of the house to get them to leave because he "just didn't feel comfortable not knowing [them]." As S.R. got to the driveway, he heard a "commotion" like "something fall" at the side of his house. When S.R. checked out the noise, he saw Fox on the ground, intoxicated, with people standing over him. S.R. "picked [Fox] up" and "carried him" out of the side yard and "left him pretty much in [S.R.'s] driveway." The "next thing" S.R. could remember, he and Fox were "arguing back and forth" in front of a neighbor's house. Cortes and several others were standing nearby. Either Fox or Cortes began shouting out, "Harbor Hills," and "cussing." When S.R. yelled back, "Don't be bringing that gang shit around my house," either Fox or Cortes answered with statements to the effect, "Fuck you" and "I'll fuck you up." During his trial testimony, S.R. stated he "honestly" did not know who said "Harbor Hills" or the other "fuck you up" statements, but knew it was "one of the two."
A defense witness at trial, J.M., testified that she and some others had decided on their own to leave because S.R. was "getting loud and obnoxious," as he often did when he drank.
Eventually, Fox and S.R. began fighting — throwing punches and kicking each other. While Fox and S.R. were fighting, Cortes "would come, and . . . throw a little hit at [S.R.] and run away." When asked by the prosecutor at trial whether he was "basically fighting both defendants at the same time," S.R. answered, "I never got my hands on Cortes." S.R.'s testimony regarding the incident essentially was along these lines: As S.R. was "fighting Fox [in] a full-on fight," Cortes "would just kind of hop in and out, throw a little punch here and there" and then kept "running away." At some point or points during this "chaotic" fighting, Cortes repeatedly stabbed S.R., although S.R. did not realize at the time that he had been stabbed. After some unknown length of this fighting, S.R. lost his breath and fell on the ground.
S.R. could not remember who threw the first punch. The testimony from the various witnesses at trial differed in perspective about whether S.R. or Fox landed more punches and kicks on the other, and about who had been more vulnerable when their punches and kicks were dispatched.
M.B., S.R.'s neighbor, was driving home from work when he saw the fight. M.B. stopped his car and went to break up the combatants. By the time M.B. got to the group, S.R. was on the ground and Fox was on top of him, and Cortes was bent over both of them, making a "sticking motion" toward S.R. M.B. yelled at Fox and Cortes to get off S.R., and separated the three. M.B. helped S.R. stand up and walk back to his house. S.R. had trouble breathing and had blood all over his hand, arm and over the front of his shirt. Fox asked M.B. what he was doing, and M.B. replied that he was a neighbor and was stopping the fight. Fox looked aggressive and continued to "talk trash" toward S.R. and M.B.
When M.B. said the fight was over and that Fox and Cortes should leave, Fox made a gang sign with his hands and said, "This is Harbor Lomas." At that point, M.B. replied, "Fuck Harbor Lomas," and he and Fox exchanged a few blows. While this was going on, S.R. told M.B. that "this is personal. You don't need to be in this." Cortes then told M.B. to leave because he did not belong there. M.B. said he was not going anywhere until Fox and Cortes left.
Then, suddenly, S.R. and Fox were apologizing to each other, and S.R. fell into Fox's arms. Cortes again told M.B. to leave. At that point, M.B. turned his attention toward Cortes, and Cortes said, "Harbor Hills." When someone yelled that the police were coming, Fox and Cortes backed away.
Cortes ran to a Nissan, while Fox faced off against M.B., and said: "Why are you here? Why don't you leave?" At about the same time, M.B. lifted S.R.'s shirt, saw that he had a number of bloody gashes across his back and stated, "I don't want you hitting my neighbor anymore. And you guys are punks for stabbing him." Cortes and Fox got into the car with three or four other men and women. M.B. heard Fox tell Cortes, "You should have killed him, homie" and heard Cortes say something like, "I should have got him." The car drove away.
S.R. was hospitalized for six days. He suffered stab wounds to his back, side, chest, stomach, and hand. His right lung had collapsed.
Later, S.R. communicated with different people who had been at the party at his house, and asked for and received information about his attackers. On September 29, 2009, S.R. gave Fox's and Cortes's names to Los Angeles County Sheriff‘s Department Detective Steven Sather. Later, S.R. and M.B. both identified Fox and Cortes from a "six-pack" photographic lineup.
In November 2009, the People filed an information charging Cortes and Fox in count 1 with the attempted murder of S.R. (§§ 664, 187, subd. (a)) and in count 2 with assault with a deadly weapon — a knife — upon S.R. (§ 245, subd. (a)(1)). The information further alleged that Cortes personally used a deadly weapon, and that he personally inflicted great bodily injury on S.R. (§§ 12022.7, subd. (a), 12022, subd. (b)(1).) Initially, the information alleged a gang enhancement under section 186.22, but the People dismissed the gang enhancement the same day the information was filed.
In February 2010, the charges were tried to a single jury, at which time the People presented evidence establishing the facts summarized above. S.R. and M.B. were the prosecution's primary witnesses regarding the events surrounding the stabbing. Fox and Cortes did not testify. Other defense witnesses provided evidence that S.R. was intoxicated and the aggressor. Identity was not an issue at trial. Cortes's trial counsel conceded there was "no question that [Cortes] used the knife" but urged the jury to find that he had acted in defense of Fox, who was intoxicated to a point of defenseless, being beaten and kicked in the head by S.R., who had a temper and had been drinking all day. Cortes's trial counsel further argued that the manner of stabbing ("slight jabbing") refuted an intent to kill, but showed only an effort to get S.R. to back away from Fox. Fox's counsel argued that Fox was not guilty of attempted murder or assault "because Mr. Cortes [was] not guilty of attempted murder or assault." Fox's counsel further argued that Fox was not guilty as an aider and abettor because he did nothing to promote or assist Cortes's actions, and did not have any intent to help Cortes commit a crime nor do much of anything due to his intoxication.
On February 23, 2010, the jury returned verdicts finding Fox and Cortes guilty as charged.
On April 23, 2010, the trial court sentenced Fox to an aggregate term of five years in prison as follows: a low term of five years on count 1 (attempted murder). The court imposed and stayed sentence on count 2 (aggravated assault) pursuant to section 654. The court sentenced Cortes to an aggregate term of 10 years in prison as follows: a midterm of seven years on count 1, plus a three-year term for the great bodily injury finding attached to count 1, plus a one-year term for the deadly weapon finding, stayed. The court imposed and stayed sentence as to count 2 pursuant to section 654.
Fox and Cortes filed timely appeals.
DISCUSSION
Cortes's Appeal
I. The Gang Evidence Issue
Cortes argues his convictions must be reversed because (1) the trial court erred when it allowed the prosecution to present gang evidence, and (2) the error prejudiced Cortes. We agree that some parts of the prosecution's gang evidence should not have been admitted, but we find the error did not prejudice Cortes.
A. The Governing Law
Gang evidence is admissible when it is logically relevant to a material issue in a case, is not used merely as character evidence, and is not more prejudicial than probative. (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) Accordingly, gang evidence may be admitted to establish a defendant's motive or other fact regarding a charged offense apart from his or her mere propensity to commit a crime, provided the value of the evidence on the fact for which it is offered is not outweighed by the prejudicial effect of the evidence. (People v. Williams (1997) 16 Cal.4th 153, 193.) Prejudice in this context does not mean that the evidence is damaging to a defendant's case in that it tends to prove guilt. Instead, prejudice means that the evidence uniquely tends to evoke an emotional bias against the defendant. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
As the Supreme Court has observed, evidence of a defendant's gang affiliation, his or her gang's territory, signs, practices, and rivalries may help establish identity, motive, specific intent, or other issue pertinent in determining guilt on a charged offense. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) But the Supreme Court has further cautioned that attaching relevance to gang evidence does not necessarily open the door to admissibility. A trial court must weigh the probative value of gang evidence on an issue pertinent to guilt against the possible inflammatory impact that the evidence may have on the jury. (People v. Williams, supra, 16 Cal.4th at p. 193.) When a defendant challenges a trial court's decision allowing the prosecution to present relevant gang evidence, the issue is reviewed under the abuse of discretion standard. (People v. Champion (1995) 9 Cal.4th 879, 923.)
B. The Trial Evidence
As the statement of facts summarized above indicates, the prosecution presented evidence that Fox and Cortes made various statements about the Harbor Hills gang in the course of the events on September 19 and 20, 2009. Further, the prosecution presented evidence that Cortes has the words "Harbor Hills" tattooed in two- to three-inch letters on his back. Although there was no gang enhancement allegation at issue at trial, the prosecution called Los Angeles County Sheriff's Department Deputy Leonard Hayes to give testimony as a gang expert. Hayes testified that the Harbor Hills gang is based in the Harbor Hills housing development in Lomita and that its members attempt to "gain respect" within the gang by committing violent crimes and drug-related felonies. Gang members write graffiti throughout the area, including "187" for murder, and announce their gang to intimidate area residents. By announcing "Harbor Hills" during an encounter, a gang member represents that the gang is behind him. Answering a hypothetical question posed by the prosecutor, Hayes testified that, if a person told a gang member, "Don't bring your gang shit here," the gang member would take that as a challenge to the gang and would respond violently. During Hayes's testimony, he referred to photographs obtained from the internet to support his explanation of gang culture, including photographs which showed Fox and Cortes making gang signs.
Apart from the broader issue of the admissibility of the gang evidence, the more specific issue of the admissibility of the photographs is separately addressed below.
C. Admissibility
Cortes was prosecuted as the stabber. There was no dispute as to identity, or as to his act of stabbing the victim. There was no gang rivalry issue; S.R. was not a gang member. The primary issues as to Cortes were whether he acted in defense or imperfect defense of Fox after Fox and S.R. became embroiled in a drunkards' mutual combat, and whether Cortes had an intent to kill while he was stabbing S.R. The trial court ruled that the prosecutor would be allowed to present evidence showing that Cortes and Fox belonged to the Harbor Hills gang because it would help the jury to understand why Cortes intervened in the fight between S.R. and Fox. Up to this point, we are satisfied there was no error.
As explained above, the evidence showing that Fox and Cortes shouted out "Harbor Hills" and similar statements was evidence of events as they unfolded during the stabbing, and, as such, was properly admitted. The published cases on gang evidence did not demand the editing of this evidence to hide an honest and full depiction of the events that occurred during the commission of the charged offenses. The trial court properly found that evidence of Fox's and Cortes's mutual affiliation in a gang would help jurors to determine whether Cortes intervened to stab S.R. as a defender or a willing attacker. The evidence of Cortes's gang tattoo would fall under this rubric as well, as would evidence that Fox and Cortes were known members of the Harbor Hills gang as shown by "field identification cards" compiled by local police. The issue then is the further gang evidence presented in this case.
We believe that the gang evidence was too expansive in this case. The prosecutor used the evidence of Fox's and Cortes's gang affiliation and gang-related statements as a corner stone upon which it piled on several additional layers of gang evidence that should not have been admitted, given there was no gang benefit enhancement allegation at trial. Deputy Hayes essentially opened his testimony by recounting that he was assigned to the Harbor Hills housing development in 2002 after there had been two gang-related murders within one and a half weeks. At worst, the deputy's allusion to two gang murders was inadmissible because it was not relevant to any issue in Cortes's case. At best, the testimony was more prejudicial than probative. (Evid. Code, §§ 210, 350, 352.)
Deputy Hayes continued his testimony by describing law enforcement's mission, which was to get the Harbor Hills gang out of the housing development by arresting its members whenever possible and evicting gang members' families. Again, we see no relevance to this evidence on an issue involving Cortes's guilt. Hayes also testified that, in his experience as a gang officer, he observed and/or learned that the members of the Harbor Hills gang commit "violent crimes, assaults, robberies, burglaries, or buying or selling drugs for the gang." Again, this evidence of the gang's activities had little bearing on Cortes's motive or intent at the time of the stabbing. It is one thing to posit that one member of a gang would willingly attack a person engaged in a fight with another member of the gang; it is another thing to offer "expert" testimony which suggested that every member of the gang, simply by virtue of his membership in the gang, may be considered a violent criminal.
The trial court recognized a possible issue. During Deputy Hayes's testimony, in response to a defense objection to "this wholesale evidence about gang activities," the court commented: "That's my concern, to the extent it's not an enhancement case. [¶] . . . [¶] . . . I think by going further into what you would normally prove up on a gang enhancement case, this would be relevant and appropriate, but I'm just concerned --" At that point, the prosecutor agreed to finish up her questions.
The photographs used by Deputy Hayes during his testimony likewise had little to do with any disputed issue involved in Cortes's case. For example, the deputy discussed a photograph showing a rival gang's name had been crossed out, with a "187" tagged alongside, explained that this was a signal for murder, and suggested the possibility of a gang war between the Harbor Hills gang and the Harbor City Crips. Hayes testified that violence and murder could be expected in such a gang war. This information was not relevant in Cortes's case because the stabbing was not related to any gang war.
Additionally, Deputy Hayes's description of how gang members "gain[] respect" by "putting in work" for the gang had no bearing on the limited issues of motive and intent. According to Hayes, "putting in work" means that gang members commit crimes, including crimes of violence, assaults, robberies, burglaries, and buying and selling drugs for the gang. The more money a gang member generates for the gang, the more "notoriety" and "respect" he gains within the gang. Again, making money for one's gang did not have any relevance to the issues in Cortes's case.
The evidence discussed above in the form of Deputy Hayes's testimony did little to add to the issues involved in Cortes's case. In short, parts of Hayes's testimony went too far in light of the issues in Cortes's case.
D. Prejudice
To the extent that parts of Deputy Hayes's testimony should not have been admitted, we find the error did not prejudice Cortes. It is not reasonably probable that a result more favorable to Cortes would have occurred absent the error. (People v. Davis (1996) 42 Cal.App.4th 806, 813 [use of gang evidence examined for, and found to be, harmless error]; see also People v. Watson (1956) 46 Cal.2d 818, 836.) Evidence of Fox's and Cortes's mutual gang affiliation was properly admitted. It was not disputed that Cortes stabbed S.R. multiple times, and, in fact, stabbed him so severely that it resulted in a week-long stay in the hospital, with a collapsed lung. The evidence, with or without the added inadmissible gang evidence, overshadowed Cortes's defense that he merely acted to defend Fox, who was flailing around, intoxicated, with another person who also was in the same condition. We are confident that the added, inadmissible gang evidence did not affect the result of Cortes's trial, and that the jury would have found in any event that Cortes exercised an opportunity to move in and attack S.R. when Cortes saw S.R. entangled with Fox. In sum, we are confident that the jurors would have found that Cortes attempted to kill S.R. even without the gang evidence that went too far.
We also reject Cortes's argument that the introduction of the gang evidence resulted in a violation of his federal constitutional right to a fair trial. First, Cortes did not raise the constitutional issue below, and, thus, it is forfeited on appeal. (See People v. McPeters (1992) 2 Cal.4th 1148, 1174.) Second, we disagree that the evidentiary error created a problem of constitutional magnitude. (People v. Cudjo (1993) 6 Cal.4th 585, 611 [as a general rule, the erroneous exercise of discretion under the rules of evidence does not implicate a defendant's federal due process rights].) Finally, as we have explained, we do not see that the gang evidence in the form of the expert testimony caused prejudice to Cortes because other gang evidence was properly admitted. We would find this to be true even under the heightened standard of Chapman v. California (1967) 386 U.S. 18, 24. Cortes's trial was fair and he was convicted because he was the stabber, not because of his status as a gang member.
II. The Photograph Exhibits Issue
Cortes contends his convictions must be reversed because the trial court allowed the prosecution to present photographic evidence concerning the Harbor Hills gang without a proper foundation authenticating the photographs.
A. The Trial Setting
During his expert testimony concerning the Harbor Hills gang, Deputy Hayes used six photographs obtained from internet "social networking" websites such as MySpace to help explain the verbal content of his testimony. As part of his overall objection to the deputy's proposed testimony, Cortes objected to the photographs, arguing that they were irrelevant and more prejudicial than probative. He did not object to the photographs on the ground of lack of authentication.
Exhibits 16, 17, 18, and 19 showed gang members, including Fox and Cortes, making gang hand signs. Exhibit 20 showed gang graffiti on the side of a building, including the numbers "187" and an "X" marked over a rival gang's name. Exhibit 21 showed "Hills" painted on a street curb.
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B. Analysis
Cortes first argues that, to the extent his authentication claim is deemed waived for failure to make a specific objection on that ground, we must examine whether his trial counsel was ineffective in failing to preserve the issue for appeal. The People have argued in their respondent's brief that the issue is waived. We agree that authentication claim was forfeited by the failure to make an objection on that ground at trial. (People v. Demetrulias (2006) 39 Cal.4th 1, 21-22.) The present case demonstrates the soundness of this waiver rule. Authentication is largely fact dependent and had a proper objection been made, the People could have attempted to present a factual foundation authenticating the photographs.
Turning to Cortes's ineffective assistance of counsel claim, we are not persuaded by his arguments to find reversal is warranted on such a ground insofar as the photographs are concerned. Assuming that an authentication objection should have been made, and that such an objection would not have been futile, we are not persuaded that the deficient trial representation prejudiced Cortes. To prevail on an ineffective assistance of counsel claim, a defendant must establish that his trial counsel's performance was deficient. More specifically, that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. A defendant must also show that the error or omission prejudiced the defendant's case, or, stated another way, that the result of his case would have been different absent the deficiency. (Strickland v. Washington (1984) 466 U.S. 668.) For the reasons stated above in addressing the broader gang evidence issue, Cortes's showing on appeal does not persuade us that he was prejudiced by any failure to object to the photographs for lack of authentication. We are not persuaded that the use of the photographs at trial tipped the scales in favor of conviction. Some evidence that the charged offenses had a gang connection was properly admitted, and the addition of the photographs did not cause the jury to convict Cortes. The evidence that he stabbed S.R. repeatedly, and put him in the hospital for a week's stay with a collapsed lung, caused the jury to convict Cortes of aggravated assault and attempted murder.
III. The Prior Criminal Acts Evidence Issue
Cortes contends his convictions must be reversed because the trial court allowed the prosecutor to present evidence of his prior criminal acts in violation of Evidence Code section 350 (relevance) and section 1101 (character evidence). Further, he argues, any probative value was outweighed by its potential for causing prejudice and should not have been admitted under section 352 (discretion of court to exclude evidence). We agree with Cortes that the evidence should not have been admitted, but find the error did not prejudice Cortes.
A. The Trial Setting
Before Deputy Hayes testified as an expert, both Fox's and Cortes's trial counsel objected to his proposed testimony regarding the Harbor Hills gang. When Hayes testified on direct examination by the prosecutor at trial, he informed the jury that Cortes had been arrested for possession of marijuana in 2005, and that he had been detained for loitering or trespassing with other gang members in 2008. Hayes testified that he first met Cortes during a narcotics surveillance in 2005 in the Harbor Hills housing development. Cortes's trial counsel did not object to these parts of Hayes's testimony during this examination.
B. Admissibility
Our first task is to address the People's argument that Cortes waived any claim of error regarding the prior criminal acts evidence because he did not object during Deputy Hayes's trial testimony. The forfeiture issue here is no different from the forfeiture issue in the authentication context (ante) because the admissibility of the prior criminal acts evidence involves a fact-dependent issue which could have been addressed had an objection been raised. Accordingly, we find Cortes's claim waived on appeal by direct challenge, but address his claim under the rules governing ineffective assistance of counsel.
Nonetheless, we agree with Cortes's that no mention should have been made about his prior marijuana arrest and the detention for loitering. As our starting point, we cite the overriding rule that no evidence is admissible except relevant evidence. (Evid. Code, § 350.) The concept of relevant evidence has two components: (1) evidence must have a tendency to prove or disprove the fact for which it is offered; and (2) evidence must tend to prove or disprove a factual matter that is actually at issue in an action. (See People v. Hill (1992) 3 Cal.App.4th 16, 29.) We agree with Cortes that the evidence of his criminal history failed the second component noted because it was not relevant to any material issue in his case. Cortes's criminal history had no bearing on the charged offenses. He was charged with crimes arising from his act of stabbing S.R. on September 19 and 20, 2009. The fact that Cortes had engaged in prior criminal behavior involving marijuana possession or loitering did not contribute any information which would have helped the jury to decide whether he acted in the belief he needed to defend Fox. The evidence of Cortes's prior criminal acts did not tend to show his motive nor did it tend to prove any element of the charged offenses, and as such, it was not relevant and should have been excluded under section 350. Further, we agree with Cortes that the only fact that the evidence of his past criminal history tended to establish was that he was a person of bad character in violation of section 1101. At a minimum, its probative value was outweighed by its potential for prejudice. (§ 352.)
We are not persuaded to reach a different conclusion by the People's argument that the evidence of Cortes's 2008 detention for loitering with fellow gang members and his 2005 arrest for possession of marijuana was relevant to show his affiliation with the Harbor Hills gang, which, when joined with Fox's affiliation with the same gang, showed a motive for S.R.'s stabbing. The possession of marijuana arrest did not show gang affiliation. Second, as to the loitering with other gang members evidence, we have already concluded that the prosecution properly introduced evidence that Cortes yelled out the name of the Harbor Hills gang, that he had a Harbor Hills tattoo on his back, and that he and Fox were members of the Harbor Hills gang. Assuming the prior loitering crime evidence tended to show gang affiliation, it was unnecessary in light of the other evidence. Accordingly, assuming that the prior loitering crimes evidence had any probative value, we find its value was outweighed by its potential for causing prejudice. (Evid. Code, § 352.)
C. Prejudice
In order for Cortes to prevail on his claim of ineffective assistance of counsel, he must persuade us that the prior criminal acts evidence should have and would have been excluded upon his trial counsel's objection. Further, that the admission of the evidence adversely affected the outcome of his trial. We think the admission of the evidence of Cortes's prior criminal history was not prejudicial. As we have already explained above, it was proper for the prosecution to introduce some evidence of Cortes's gang affiliation. The added evidence that he had been arrested for possession of marijuana and detained for loitering did not, in our view, add anything of weight tipping the scales in favor of conviction. The jury did not convict Cortes because he had committed prior marijuana and loitering crimes. The jury convicted Cortes because he stabbed S.R. so severely that it resulted in his serious injuries.
IV. The CALCRIM No. 357 Instruction Issue
Cortes contends his convictions must be reversed because the trial court erred in instructing the jury on "adoptive admissions" using CALCRIM No. 357. We disagree.
Eyewitness M.B. testified that, during the course of events outside S.R.'s house, he lifted S.R.'s shirt, saw that S.R. had been stabbed, and yelled at Fox and Cortes that they were punks for stabbing him. At the request of the prosecutor, the court instructed the jury with CALCRIM No. 357. The instruction informed the jurors they could find that Fox and Cortes admitted stabbing S.R. — by way of adopting M.B.'s statement at the scene — provided the jurors determined that Fox and Cortes naturally would have denied M.B.'s statement about the stabbing if they had not actually been involved.
Assuming the trial court erred by instructing the jury with CALCRIM No. 357, we see no possibility of prejudice to Cortes in the context of this case. There was no dispute that Cortes stabbed S.R. CALCRIM No. 357's explanation of adoptive admissions may help jurors identify a criminal actor in a certain case, depending on the particular circumstances presented, but the instruction was largely superfluous and meaningless in Cortes's current case, where the issue was not the identity of the stabber, but whether the known stabber had a viable defense to the stabbing. The instruction did not impact the question whether Cortes acted in defense of Fox or with a specific intent to kill. We see no possibility under any standard of review that, had the instruction with CALCRIM No. 357 been omitted, the result of Cortes's trial would have been more favorable.
Fox's Appeal
I. The Gang Evidence Issue
Fox contends his convictions must be reversed because (1) the trial court erred when it allowed the prosecution to present gang evidence, and (2) the error prejudiced Fox. We agree.
For the reasons we discussed in addressing Cortes's arguments regarding the gang evidence, we agree with Fox that the trial court erred in allowing the prosecution to introduce the broad spectrum of gang evidence that it did. But unlike Cortes, we find the gang evidence did prejudice Fox. As to Fox, this case is an example of a situation in which the cautionary warnings in the published cases about the use of gang evidence are well-heeded.
The prosecution presented two theories of criminal liability as to Fox: (1) he aided and abetted Cortes's criminal stabbing of S.R.; or (2) he aided and abetted Cortes's commission of a lesser offense, and Cortes's act of stabbing was a natural and probable consequence of the lesser offense. We find the gang evidence prejudiced Fox because the evidence showing Fox's criminal liability under the prosecution's theories, in our view, may not have resulted in convictions in the absence of the full spectrum of gang evidence.
The evidence in this case does not show that two gang members jointly jumped a victim and a stabbing ensued. If this was the state of the evidence, we would have little difficulty affirming convictions for stabbing-related crimes as to both gang members. (People v. Montes (1999) 74 Cal.App.4th 1050 [escalating violence may be found to be a natural and probable consequence when multiple gang members join in an initial attack].) However, even viewed in the light most favorable to the jury's verdicts, the evidence at trial did not show such a scenario. The evidence showed that Fox and S.R. were both intoxicated, that they began arguing, that either Fox or Cortes yelled out "Harbor Hills," that S.R. retorted, "Don't be bringing that gang shit around my house." The next thing S.R. could remember, he and Fox were fighting. It was during this fight, as Fox and S.R. flailed around at each other, that Cortes took an opportunity to stab S.R. several times. Based on this evidence, the prosecution's theory that Fox aided and abetted Cortes was not overly compelling. On the contrary, we do not see evidence in the record showing that Fox did any act, or uttered any comment, encouraging or helping Cortes to stab S.R. To the extent the jury may have applied the aiding and abetting theory, we find it likely the jury did so based on the thinking that criminal liability could be assigned to Fox by virtue of his mutual affiliation in the same gang as Cortes. In short, the record persuades us that Fox may have been convicted on the basis of the gang evidence, and the jury's perception that Fox was a "bad person" because he was in a gang, and not on evidence showing he actually aided and abetted Cortes.
Our view is the same under the prosecution's natural and probable consequences theory. In the abstract, we agree with the proposition that a trier of fact reasonably could find that a violent crime by one gang member was a natural and probable consequence of a lesser crime by another gang member. In other words, one gang member's lesser crime might act as a fuse igniting another gang member's more violent crime. But this theory in its application in Fox's current case was not clear cut because the evidence did not strongly show that Fox initiated any crime. S.R. could not say who had thrown the first punch in his fight with Fox, and eyewitness M.B. came upon the fight after it was already in progress. The direct evidence of the events outside S.R.'s house, standing without the full phalanx of gang evidence presented by Deputy Hayes's expert gang testimony, may not have convinced the jury to find that Cortes's act of stabbing S.R. was a natural consequence of anything done by Fox.
In our view, Fox's situation is similar to that faced by the defendant in People v. Albarran (2007) 149 Cal.App.4th 214. There, a jury convicted defendant of attempted murder, shooting at an inhabited dwelling, and attempted kidnapping in the course of a carjacking, with gang enhancement findings under section 186.22. Division Seven of our court reversed and remanded the case with directions to grant defendant's motion for new trial. In so ruling, Division Seven found that evidence of defendant's gang membership may well have been relevant to show motive, but that additional gang evidence concerning the gang, including evidence showing gang members had threatened police, references to the "Mexican Mafia," and facts about other gang members and crimes, none of which had a connection to the charged crimes, was so prejudicial that it supported a conclusion that the jury may have convicted defendant apart from the evidence of his actual guilt. (Id. at pp. 223-232.) In this case, where the evidence showed little more than that Fox got involved in a drunkards' fight, and that Cortes may have acted of his own volition without being aided or abetted, we have a similar concern.
II. The Sufficiency of the Evidence Issue
Fox contends his attempted murder conviction must be reversed because it is not supported by substantial evidence. We disagree.
In reviewing a claim of insufficient evidence in support of a conviction, we apply well-settled rules: (1) we review the evidence in the light most favorable to the jury's decision; (2) we presume in support of the jury's decision the existence of every fact the jury could reasonably deduce from the evidence; (3) we may not substitute our own conclusions for those reached by the jury; and (4) we may not reassess the credibility of the witnesses. (People v. Farnam (2002) 28 Cal.4th 107, 142-143; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) A large part of Fox's claim on appeal addresses the issue of his intent. Because intent is rarely admitted or otherwise susceptible of direct proof, it may be inferred from the circumstances surrounding the charged offense, and reasonable inferences drawn by the jury from the circumstances of the offense are sufficient to constitute substantial evidence of intent. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139; People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Pre (2004) 117 Cal.App.4th 413, 420.) With these rules in mind, we turn to Fox's argument on appeal.
The People's theory of criminal liability against Fox at trial was that he was guilty of attempted murder and assault with a deadly weapon because he aided and abetted the stabbing, or he aided and abetted some lesser crime and the stabbing was a natural and probable consequence of the lesser crime. As to the aiding and abetting theory, the prosecutor urged that Fox and Cortes acted as fellow gang members, yelled out "Harbor Hills," and then assaultive conduct began. In the prosecutor's words, "[T]his is what they do for their gang. This is how they act. This is the kind of crime that they commit. It's not going to surprise defendant Fox that his homeboy is stabbing somebody. They're down. They're doing it. They're doing it for Harbor Hills, because their gang got disrespected." As to the natural and probable consequence theory, the prosecutor argued that Fox and Cortes initially committed a disturbance of the peace by yelling "Harbor Hills," which amounted to a challenge to fight, or they committed a simple assault, and those crimes, coupled with the victim's responsive disrespect would likely — according to the gang expert's testimony — ignite into a foreseeable, attempted murder.
Although the jury's verdict is poisoned by the excessive gang evidence, we cannot say — when viewing the remaining evidence in the light most favorable to Fox's convictions — that under no hypothesis is there evidence to support the jury's verdict. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Fox and S.R. were intoxicated. Fox, in fact, was falling down drunk and had to be carried out of the side yard by S.R. S.R. characterized the incident as a drunken brawl. He did not know who threw the first punch or how the fight started. The fight was described as "chaotic." We disagree with Fox that, under these circumstances, "it strains credulity" to conclude that Fox saw and processed that Cortes had pulled out a knife and stabbed S.R. In our view, upon properly presented evidence, a jury could reasonably conclude that Fox continued fighting with S.R. with the design to distract S.R. so that Cortes could move in and commit the stabbing. In other words, there is room in this case for application of liability by an aiding and abetting theory as to Fox. The problem with Fox's first trial is that the prosecution relied heavily, indeed almost exclusively, on the excessive gang evidence to convince the jury to convict Fox.
III. The Evidentiary and Instructional Issues
Because we have found that parts of Deputy Hayes's testimony concerning gangs necessitates reversal of Fox's conviction, we need not address his additional contentions that the trial court improperly allowed the prosecution to present photographic evidence during the deputy's testimony and erred by instructing the jury on the law of "natural and probable consequences" using CALCRIM No. 403 and "adoptive admissions" using CALCRIM No. 357. These trial issues may be addressed as necessary in the context of the new trial.
DISPOSITION
The judgment as to Max Cortes is affirmed. The judgment as to Kalvin Fox is reversed.
BIGELOW, P. J. I concur:
RUBIN, J.
FLIER, J., Concurring and Dissenting
I concur in the majority opinion reversing Fox's conviction. I respectfully dissent, however, with respect to the discussion affirming Cortes's conviction. I am of the opinion that it was reversible error for the trial court to admit any gang evidence.
The People dismissed the gang benefit enhancement in this case on the same day the information was filed. This was not a gang-related incident, and the evidence of Fox's and Cortes's gang-related statements, their gang affiliation, and the several additional layers of gang evidence from Deputy Hayes's testimony were not relevant to a material issue in the case. The gang evidence seems to have been offered only as evidence of their criminal disposition, and the trial court erred in allowing it to be introduced. "Gang evidence should not be admitted at trial where its sole relevance is to show a defendant's criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense." (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.)
Even if gang membership was relevant, which I do not believe it was, any slight probative value was far outweighed by the prejudicial effect of the inflammatory evidence. (Evid. Code, § 352; People v. Cox (1991) 53 Cal.3d 618, 660 ["When offered by the prosecution, we have condemned the introduction of evidence of gang membership if only tangentially relevant, given its highly inflammatory impact"]; People v. Cardenas (1982) 31 Cal.3d 897, 905 [evidence of common gang membership more prejudicial than probative when it presented a "real danger" that jury would improperly infer the defendant had a criminal disposition by virtue of his membership in a gang].)
Absent the admission of the gang evidence, it is reasonably probable that a result more favorable to Cortes would have occurred. (People v. Cardenas, supra, 31 Cal.3d at p. 907 [use of gang evidence found to be prejudicial error requiring reversal of conviction]; People v. Watson (1956) 46 Cal.2d 818, 836.) Specifically, it is reasonably probable that the jury would have found Cortes acted in defense or imperfect defense of Fox.
In my view, the fact that the jury convicted Fox of attempted murder on these facts speaks volumes about the prejudicial effect of the gang evidence that was allowed to be introduced. It is the rare case when this court determines that an error was so prejudicial as to one defendant that a reversal is warranted but not as to a codefendant tried before the same jury who heard the same evidence. I do not believe that result makes sense in this case, even considering the different facts relative to each defendant.
In view of the foregoing, I would also reverse Cortes's conviction.
FLIER, J.