Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA061852. Mark S. Arnold, Judge.
Nancy J. Mazza for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant and appellant Lewis Gray appeals from the judgment entered following a jury trial that resulted in his conviction of the first degree murder and second degree robbery of Alhurt Neal. He contends the trial court erroneously: (1) admitted gang evidence; (2) instructed the jury regarding the gang evidence; and (3) instructed the jury regarding the permissible inferences from evidence of possession of stolen property. We affirm.
In addition to the murder and second degree robbery, defendant was charged with various firearm enhancements pursuant to Penal Code sections 12022, subdivision (a)(1), 12022.53, subdivisions (b), (c), and (d), each of which was found true by the jury.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution
Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), the evidence established that the Pioneer Club is an after-hours bar located on the northwest corner of Vermont Ave. and 88th Street. Among the patrons at the club in the early morning hours of January 17, 2004, were defendant and victim Alhurt Neal. Another club patron, Eric Brown, testified that defendant was one of several men playing pool and drinking beer in the back room of the club; Brown heard defendant and some of the other men discussing shooting someone and taking their money; defendant was doing most of the talking.
That night, Neal drove his friend, Andrew Smith, to the club and parked on 87th Street, the street north of the club. From their arrival about 2:30 a.m. until the club closed about 4:00 a.m., Neal and Smith sat at the bar and each drank two beers. When the club was closing, Smith agreed to finish his drink before meeting Neal at Neal’s car in several minutes; this was to give Neal a chance to walk a woman, Sharon Mitchell, to her car.
Mitchell testified that she had gone to the club to visit a friend – the club owner’s son. Arriving about 2:00 a.m., she parked on the west side of Vermont Ave., a little north of the club. She was standing at the bar when she saw Neal, whom she had seen at the club on prior occasions, enter; Mitchell promised to save Neal a dance, but they did not dance that night. When Mitchell left the club about 4:00 a.m., Neal walked with her to her car. As she was about to unlock the driver’s side door, Mitchell hesitated because she saw Neal trying to open the passenger side door. Mitchell next saw Blake Moody jump out and grab Neal from behind while defendant stepped in front of Neal and said, “Drop your jewelry.” Initially unaware that she was witnessing a robbery, Mitchell watched as Neal struggled to break free from Moody. Defendant repeated his command to “drop your jewelry,” this time in a “real mean” and “real loud” voice. Extricating himself from Moody, Neal ran toward the street. Defendant took two quick steps toward Neal and fired twice in Neal’s direction. Neal fell into the street, fatally wounded. Mitchell next saw defendant and Moody lean over Neal’s body and move their hands, but she could not see whether they took anything. Defendant and Moody then ran south on Vermont, in the direction of the club. After ducking behind her car for a few moments, Mitchell ran back into the club, where she told people there had been a shooting. Recognizing Smith as Neal’s friend, Mitchell told him what had happened, but would not give him her name or number because she was afraid. Before the police arrived, Mitchell moved her car.
Mitchell identified defendant and Moody from photographic lineups and at trial.
Mitchell testified that she did not talk to the police that night because she was afraid “they would try to get me, too.” (Italics added.) After she learned Neal had died, she spoke to Smith, who convinced her to tell the police what she had seen. But, still concerned for her own safety, Mitchell would not give the police her name or contact information. When she identified defendant from the photographic lineup shown to her by the police, she wrote only her first name on the picture because she was afraid “they would find out who I was.” (Italics added.) Neither the prosecution nor the defense clarified with Mitchell who “they” were.
Meanwhile, Brown, who had seen and heard defendant in the back room earlier that night, was sitting in his parked car on the east side of Vermont when he heard two gunshots. Turning around, Brown saw one man lying on the ground; a second man standing over that man and taking his money; and a third man, defendant, running away with a gun in his hand.
Brown testified that he left the scene before the police arrived that night because he did not want to get involved. When Detective Patrick Tapia called him a few months after the shooting, Brown refused to talk to him for the same reason. But when Tapia called Brown again in October of 2005, Brown agreed to talk to him. Brown explained: “Things changed. I changed. And I didn’t want it to be me or somebody I knew that was killed and nobody came to help him, you know, so I changed my mind.”
Club security guard Kevin Welsh was escorting two women to their car parked on 88th Street when he heard gunshots. Welsh ran back to the club. As defendant and a companion ran by the club from the direction of 87th Street toward 88th Street, Welsh asked defendant what had happened. Defendant responded, “One of my homeboys got shot.” Welsh did not notice whether there was anything in defendant’s hands. He lost sight of them when they turned west onto 88th Street.
Welsh testified, over defense objection, that sometime before the trial a gray Cutlass drove up in front of where he was then working and someone in the car said, “I know who you are. I know your son.” Welsh recognized one of the occupants of the car as a gang member, but Welsh did not know which gang. The trial court instructed the jurors that there was no evidence that defendant had anything to do with this event and that they could consider the evidence “solely for the purpose of weighing Mr. Welsh’s mental state and evaluating Mr. Welsh’s mental state today, as he is testifying as a witness.”
Neal’s friend, Smith, was still sitting at the bar when he heard two gunshots outside the club. As he walked outside to meet Neal a few moments later, Smith saw Sharon Mitchell run back into the club. Then, Smith saw Neal laying face down on the ground, bleeding; Neal’s shirt was in a nearby gutter and the gold chains, bracelets and rings Neal had been wearing earlier that night were gone. Smith waited with Neal for the paramedics. Neal died at the hospital a short while later.
The next day, homicide detective Patrick Tapia interviewed Smith and Neal’s common law wife, Claudia McConico. On January 20, Sharon Mitchell called Tapia and told him what she had seen. Mitchell later identified defendant and Moody as Neal’s assailants from photographic lineups. From photographic lineups, Brown also identified defendant as the person he heard talking about shooting someone in the back room of the Pioneer Club and as the person he saw running with a gun in his hand.
Because she was afraid she could be in danger if she got involved, Mitchell would only identify herself as “Sharon” and would not give Tapia any contact information. Tapia was able to determine her identity from her car license plates.
About 3:15 a.m. on January 25, 2004, Sheriff’s Deputy Daniel Leon arrested defendant. The jewelry and belt defendant was wearing were booked into evidence. Neal’s common law wife identified the jewelry as Neal’s.
In April 2004, Walter Davis was arrested for being a felon in possession of a firearm. The parties stipulated that the gun found in Davis’s possession, a .40-caliber Glock, was the weapon used to shoot Neal. Davis testified that he had purchased this gun from Robert Hawkins a few weeks before Davis’s arrest.
Hawkins and Moody were separately charged with Neal’s murder. Both were members of the 94th Street Hoover Crips.
B. The Defense
Defendant testified that he was not a gang member. He admitted being stopped by police on several occasions but denied ever telling them he was a member of the 94 Hoover gang, or that his moniker was “Boy.” Defendant explained that his late uncle, to whom he was very close, was a member of the Hoover gang and his aunt was a former member; defendant wears a belt with an “H” buckle as a remembrance of his late uncle. Wearing the belt is also sometimes helpful when he is in “the neighborhood” because it makes people think he is a member of the Hoover gang, and thus avoids having them ask what gang he is from. Although defendant is not a gang member, he is sometimes involved in Hoover-related activities, like barbeques, through his uncle. When he was at social events with his uncle, he sometimes dressed in orange and blue and displayed the 94 Hoover gang sign.
Somewhat of a regular at the Pioneer Club, defendant arrived there between 1:00 a.m. and 2:00 a.m. on January 17, 2004. He noticed Mitchell standing at the bar, holding a beer and dancing by herself. When defendant went outside for fresh air about 3:00 a.m., Moody and Hawkins were among the 15 to 20 people, including some gang members, he saw congregated on the sidewalk. After a while, he saw Sharon Mitchell leave the club, followed by victim Neal. Apparently referring to Neal, Moody said, “He’s a Blood;” and Hawkins said, “See his chains.” Defendant surmised that Moody and Hawkins were going to rob Mitchell and Neal when he saw the two men follow Mitchell and Neal as they walked north on Vermont. Defendant watched Hawkins grab Neal from behind and tussle with him. Defendant heard a shot fired, but he did not know who fired it. After people started running, defendant heard a second shot fired. As he was running away, defendant saw security guard Welsh. Because he did not know who had been shot, defendant told Welsh, “They’re back there shooting. I think my homeboy got shot.” Defendant then ran to his truck, which he had parked on 88th Street, and drove home. The next day, defendant learned that someone at the club had been shot.
Mitchell testified that she drank only water that night.
Defendant returned to the club the next week because he had done nothing wrong. After he was arrested, defendant lied to the police when he told them, among other things: Hawkins and Moody had not been at the club that night; he heard the shots but did not know who killed Neal; as he was driving away in his car two other people jumped in the car; when he ran to his car there was someone named Jay already sitting in the driver’s seat; immediately before the shooting, he was chasing after a girl named Nickie, who was driving north on Vermont; he was a few feet away when the shooting occurred and felt the bullets graze past his ear; the shooter was a six-foot-two-inch tall dark guy with a long, skinny face. Defendant explained that he lied to the police because he was afraid: “They’re gang members, and if they find out you talked to the police and put them in jail, your family – I have lots of brothers and sisters out there, and I didn’t want my family to be harmed.” Defendant was aware that Moody and Hawkins were both maintaining that defendant was the person who shot Neal.
The trial court instructed that this evidence was admissible on the issue of why defendant would initially tell the police he did not know the shooter, but then implicate Hawkins and Moody.
Defendant’s father, Lewis Gray, testified that he had associated with a Blood gang when he was young. Defendant, however, had never lived in the territory claimed by the Hoover gang. On the day Neal was killed, defendant lived with Gray and the rest of his immediate family in Fontana. Gray identified some of the jewelry that had been identified as belonging to Neal, as items Gray knew belonged to defendant prior to January 2004.
Criminalist Kari Sanae Yoshida, of the Sheriff’s Department, testified that she analyzed DNA from a watch, two bracelets, two shell casings, Neal’s blood stained shirt, and a sample from defendant. There was insufficient DNA on the watch and the shell casings to get a profile of the contributor; there was DNA on one bracelet from two people, one of whom may have been defendant, but neither of whom was Neal; on the second bracelet, defendant and Neal were both excluded as the contributors of the DNA.
C. Rebuttal
Sergeant William Green of the Fontana Police Department’s Gang Unit testified that defendant had admitted being “affiliated” with the Hoover Crips, which means his friends were members of that gang. During the execution of a search warrant at defendant’s Fontana home in June 2003, various items evidencing gang membership were found. This included a photograph (People’s Exh. No. 40), which depicted defendant wearing an orange shirt, blue pants and throwing a Hoover gang sign. Also depicted in the photograph were defendant’s brother and cousin wearing blue and orange.
Detective Tapia testified that defendant does not look anything like Moody and Hawkins. When Tapia interviewed defendant on January 25, 2004, defendant said, “I did not do -- I did not shoot. I never shot or robbed.” At the time defendant made this statement, he was told only that he had been identified as the shooter; nothing had been mentioned about a robbery.
In August 2005, defendant and Moody were put in a cell together and their conversation was tape recorded. Defendant, who did most of the talking, told Moody to say that Moody was not at the club the night of the shooting.
D. Surrebuttal
Defendant explained that he did most of the talking during the August 2005 conversation with Moody because defendant was trying to persuade Moody that defendant had not snitched on Moody.
DISCUSSION
A. Gang Evidence Was Admissible
Defendant contends the trial court erred in admitting (1) evidence that a member of some unnamed gang threatened Welsh shortly before the trial; and (2) Aguilera’s opinion about defendant’s gang membership and the nature of gangs. He argues that the evidence was irrelevant because there were no gang-related charges or enhancements. Alternatively, he argues that the evidence was more prejudicial than probative under Evidence Code section 352. We find neither argument persuasive.
Defendant also challenges the following statements made by the prosecutor during argument: “The defendant and several of his fellow gang members were lurking inside and outside the club, checking out the patrons looking for someone to rob.” “The defendant and his fellow gang members watched them go and they were ready.” “The police interviewed various witnesses, but nobody who saw anything was willing to talk, to cooperate. They were too afraid, too fearful of gang retaliation.” “We’ll hear about the defendant’s gang membership and about how that relates to his behavior that night and later on.” But defendant’s failure to object in the trial court makes this contention not cognizable on appeal. (People v. Combs (2004) 34 Cal.4th 821, 854 (Combs).) In any event, as we explain, the contention is without merit.
1. The Law
Only relevant evidence is admissible and, except as otherwise provided by statute, all relevant evidence is admissible. (Evid. Code, §§ 350, 351.) Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Section 352 gives trial courts broad discretion to exclude even relevant evidence if it is substantially more prejudicial than probative. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) A trial court’s section 352 ruling is reviewed for abuse of discretion. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.)
Because witness credibility is of consequence to the determination of any action, evidence that a witness is afraid to testify is admissible because it is relevant to credibility. It is not necessary that the witness testify that he or she is afraid (People v. Harris (1985) 175 Cal.App.3d 944, 957 (Harris)), nor is it necessary to show that the witness’s fear is directly linked to the defendant. (Olguin, supra, 31 Cal.App.4th at p. 1368.)
In cases not involving a gang offense or enhancement, evidence of gang membership is so potentially prejudicial that it should not be admitted if its probative value is minimal. But gang evidence is nevertheless admissible when relevant to a material issue. One such issue is identity. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 (Hernandez).) In People v. Champion (1995) 9 Cal.4th 879 (Champion), evidence that the defendants were members of the same gang as other persons involved in the commission of the crimes “fortified the testimony of the persons who identified defendants as participants in the murders. Thus, evidence of defendants’ gang membership tended ‘logically, naturally, and by reasonable inference’ to establish their identities as perpetrators of those offenses, and the trial court did not abuse its ‘broad discretion’ [citation] when it determined that the evidence of gang membership was relevant. [Citation.]” (Id. at p. 922, overruled on other grounds in Combs, supra, 34 Cal.4th at p. 860.)
In addition to identity, gang evidence may also be admissible on the issue of witness credibility where a reasonable inference from the evidence is that a witness is afraid to testify because the defendant belongs to a gang. (Olguin, supra, 31 Cal.App.4th at pp. 1368-1369; Harris, supra,175 Cal.App.3d at p. 957.)
Harris rejects defendant’s argument that “[i]t must be shown that the witness’s fear was related to the witness’s knowledge that the offender was a gang member; that the witness had some knowledge that gangs retaliate.”
The relevancy of gang evidence to a witness’s state of mind is not limited to explaining why a witness may be refusing to answer questions. It is also relevant to enhance a witness’s credibility because “[a] witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony.” (Olguin, supra,31 Cal.App.4th at p. 1368.) The court in Olguin explained that “the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility. For this purpose, it matters not the source of the threat. It could come from a friend of the defendant, or it could come from a stranger who merely approves of the defendant’s conduct or disapproves of the victim. It could come from a person who perceives a social or political agenda to have been advanced by the defendant’s actions. It could come from a member of the witness’s profession, religion, or subculture, who disapproves of the witness’s involvement for some reason. . . . [¶] Regardless of its source, the jury would be entitled to evaluate the witness’s testimony knowing it was given under such circumstances. And they would be entitled to know not just that the witness was afraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witness’s fear. A witness who expresses fear of testifying because he is afraid of being shunned by a rich uncle who disapproves of lawyers would have to be evaluated quite differently than one whose fear of testifying is based upon bullets having been fired into her house the night before the trial.” (Id. at p. 1369.)
2. The Challenged Evidence
After defendant’s motion in limine to exclude gang evidence was denied, the prosecutor made several references to gangs during his opening argument. The prosecutor presented evidence that defendant admitted membership in the 94 Hoover gang when he was detained by police on three occasions in 2003. On one such occasion, defendant was with Moody and Hawkins.
Before trial, defendant moved to exclude “any evidence, statements or argument regarding gangs or any alleged gang membership of defendant or witnesses” on the grounds that such evidence was not relevant to any material issue and, moreover, was more prejudicial than probative under section 352. Relying on Olguin, supra, 31 Cal.App.4th 1355, the People countered that the evidence was relevant to, among other things, the credibility of testifying witnesses as well as to explain why many witnesses would not immediately cooperate in the investigation. The trial court concluded that gang evidence was more probative than prejudicial to explain why Mitchell and Brown were not immediately cooperative with investigating officers and why defendant would return to Pioneer Club just a week after the killing.
Detective Aguilera, an expert in criminal street gangs, opined: defendant, Moody and Hawkins were all member of the 94th Street Hoover Crips; 88th Street and Vermont is within the territory claimed by the 94th Street Hoover Crips; gangs maintain their claim on a territory by committing “anything from theft to murder. Shootings. Vandalisms. Graffiti. Intimidate witnesses, intimidate citizens. They’ll do whatever they can to show they do have ahold of that area[;]” gang members commonly commit crimes together and transfer weapons among themselves; the majority of witnesses to crimes committed by gang members are afraid to come forward; and gang members are sometimes unconcerned with being identified as the perpetrator of a crime because they are aware that witnesses are afraid to come forward. Over defendant’s objection, Aguilera additionally opined on rebuttal: a person who did not live in the neighborhood claimed by a gang could still be a member of that gang if he had other connections to the gang, such as relatives; the distinction between members and affiliates/associates is that associates do not go out and actively commit crimes with gang members; Hoover gang members favor Houston Astro baseball hats and the colors orange and blue; there is a trend toward gang members not getting tattooed to make it more difficult for the police to associate them with a particular gang. Aguilera reiterated his opinion that defendant was a member of the Hoover gang.
3. Analysis
Here, the evidence of gang membership was relevant to both identity and witness credibility. Under the reasoning of Champion, evidence that defendant was a member of the 94th Street Hoover Crips, the same gang to which Moody and Hawkins belonged, and that Moody and Hawkins were also involved in the commission of the murder and robbery, fortified the testimony of the witnesses who identified defendant as a participant. Thus, evidence of defendant’s “gang membership tended ‘logically, naturally, and by reasonable inference’ to establish their identities as perpetrators of those offenses, and the trial court did not abuse its ‘broad discretion’ [citation] when it determined that the evidence of gang membership was relevant. [Citation.]” (Champion, supra, 9 Cal.4th at p. 922.)
Regarding witness credibility, there was abundant evidence that witnesses were afraid that cooperation with the investigation would put their own safety at risk. The jury was entitled to hear evidence which would allow them to evaluate the reasonableness of this fear, including gang evidence. (Harris, supra, 175 Cal.App.3d at p. 957 [gang evidence admissible to explain witnesses’ failure to answer questions].)
Moreover, under the reasoning of Olguin, supra, 31 Cal.App.4th 1355, evidence that Mitchell, Brown and Welsh testified despite fear of recrimination was important to evaluate their credibility. The jury was “entitled to know not just that the witness was afraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witness’s fear. A witness who expresses fear of testifying because he is afraid of being shunned by a rich uncle who disapproves of lawyers would have to be evaluated quite differently than one whose fear of testifying is based upon bullets having been fired into her house the night before the trial.” (Id. at p. 1369.) Under these circumstances, the trial court did not abuse its discretion in determining that the probative value of the gang evidence outweighed any potential prejudice.
B. The Jury Instruction on Use of Gang Evidence Was Proper
Defendant contends the trial court erred in instructing the jury with a modified version of CALJIC No. 17.24.3 as follows: “Gang evidence, including evidence that the defendant is a gang member, has been introduced for a limited purpose in this case. [¶] This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you for the limited purpose of explaining the conduct of witnesses, explaining a witness’ state of mind, attitude, actions, and presence or lack of bias or prejudice, explaining the conduct of defendant, or determining the identity of the perpetrator of these crimes. [¶] For the limited purposes for which you may consider this evidence, you must weigh it in the same manner as you do all other evidence in the case.” He argues that, by allowing the jury to consider gang evidence on the issue of identity, after the trial court had indicated such evidence was admissible only on the issue of witness credibility, the trial court improperly expanded the use of this evidence to the ultimate issue of guilt. We disagree.
Defendant did not object in the trial court to this instruction. Ordinarily, a defendant who does not object in the trial court cannot complain on appeal that an instruction was not complete. (People v. Cole (2004) 33 Cal.4th 1158, 1211.) “[B]ut a trial court in a criminal case is required—with or without a request—to give correct jury instructions on the general principles of law relevant to issues raised by the evidence. [Citation.] Further, an appellate court can address an incorrect instruction to which no objection was made at trial if the instruction impaired the defendant’s substantial rights. (Pen. Code, § 1259.)” (People v. Mutuma (2006) 144 Cal.App.4th 635, 640.)
Here, apart from whether defendant’s failure to object resulted in a forfeiture of the issue, defendant’s contention is without merit. As already noted, the gang evidence was admissible on the issue of identity. (Hernandez, supra, 33 Cal.4th at p. 1049; Champion, supra, 9 Cal.4th at p. 921.) That this was not the grounds urged by the prosecutor in arguing defendant’s motion in limine, nor the grounds for admitting the evidence articulated by the trial court, is immaterial. This is because we review the correctness of the trial court’s ruling, not the reasons underlying it. (People v. Koontz (2002) 27 Cal.4th 1041, 1076, fn. 4.) Inasmuch as the evidence was admissible on the issue of identity, the trial court properly instructed on this use of the evidence.
C. CALJIC No. 2.15 Was Properly Given
Defendant contends the trial court erroneously gave CALJIC No. 2.15. Relying on People v. Morris (1988) 46 Cal.3d 1 (Morris) [overruled on another point in People v. Sassounian (1995) 9 Cal.4th 535, 544, fn. 5], defendant argues that the instruction was inappropriate because defendant contested that the property was stolen. We disagree.
As given, CALJIC No. 2.15 reads: “If you find that a defendant was in possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crime of robbery. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant’s guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt. [¶] As corroboration, you may consider the attributes of possession -- time, place and manner, that the defendant had an opportunity to commit the crime charged, the defendant’s conduct, and any other evidence which tends to connect the defendant with the crime charged.”
As with the gang evidence instruction, defendant did not object to the giving of CALJIC No. 2.15. Again, apart from whether the failure to do so constitutes a forfeiture of the issue, the contention lacks merit.
In Morris, the defendant was convicted of special circumstance first degree murder committed during the commission of a robbery. (Morris, supra, 46 Cal.3d at p. 9.) A witness saw an African-American man shooting into a Long Beach bathhouse restroom, but did not see the shooter’s face. The witness identified the defendant as being the same general size and shape as the man he saw firing into the restroom. (Id. at p. 10.) There was no evidence that the victim, whose nude body was found on the restroom floor minutes after the shooting, had any personal property in his possession at the time of the murder, or that any personal property of the victim’s was ever recovered. (Id. at p. 20.) The only evidence of robbery was that the victim had borrowed a Sears credit card from a friend two months before the murder; the friend never saw the card again. Three days after the murder, a man who looked like the defendant presented a credit card bearing the name of the victim’s friend to a Sears sales clerk; suspicious of the man’s behavior, the clerk contacted security but the man left before he could be questioned. (Id. at p. 11.) Observing that the only evidence of the defendant’s possession of stolen property was the store clerk’s testimony that defendant was the man or “looked like” the man who presented the Sears card which had been loaned to the victim, our Supreme Court concluded it would have been advisable to have given CALJIC No. 2.15 with modifications, but failure to do so was not prejudicial in light of the instructions as a whole. (Id. at pp. 40-41.)
In People v. Rubio (1977) 71 Cal.App.3d 757 (Rubio), cited by the court in Morris, the arresting officer found $100, presumably the fruit of the robbery, scattered in a flowerbed located where the defendant had been standing when he was arrested. The jury was given CALJIC No. 2.15, but not CALJIC No. 1.24 [defining actual and constructive possession]. The court concluded that it was error to give CALJIC No. 2.15, reasoning, “In the absence of an instruction defining possession, the jury must have assumed that the evidence established, without dispute, defendant’s possession of stolen property. In actuality, however, this was an open question.” (Rubio, at p. 768, fn. omitted.)
Morris and Rubio are inapposite. Here, there was evidence that the victim had personal property in his possession at the time of the murder; minutes after the murder, the property was missing; a week later, defendant was found in actual possession of the victim’s personal property. This evidence was sufficient to establish that defendant was in possession of stolen property and thus to warrant giving CALJIC No. 2.15. Contrary to defendant’s assertion, CALJIC No. 2.15 is not limited to situations in which the evidence of possession of stolen property is undisputed. Rather, it is for the jury to resolve any conflicts in the evidence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.
All undesignated statutory references are to the Penal Code.
During voir dire the trial court asked the prospective jurors: “[T]here’s not going to be evidence that [this] is a gang-motivated crime like you’ll hear about in a drive-by shooting and, you know, a gang commits some type of crime against another gang. This is not a gang-motivated crime. At least there’s not going to be any evidence of that at all. There may be evidence, however, of [defendant’s] affiliation with a gang, and that would be relevant only to just certain issues that arise in the case. [¶] Is there anybody here whose feelings about gang membership are so strong that if they hear testimony – and the question is going to be is the testimony believable that he’s affiliated with a gang. But what my question goes to is, if you hear such testimony, and assuming that you believe [defendant] is affiliated with a gang, you don’t need to hear any more, as far as you’re concerned, he’s guilty of robbery, he’s guilty of murder, you don’t care what the rest of the evidence is like?” There was a stipulation to excuse the single juror who answered affirmatively.