Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County., Super. Ct. No. VCF186278 Gary L. Paden, Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOMES, J.
Early in the morning on November 18, 2006, a police officer found Nathan Buford lying nonresponsive on the shoulder of a road in Porterville, bleeding from a head wound. He died five days later. The cause of death was a single gunshot wound to the head with a trajectory from back to front. A jury found Jesus Valdez Ruiz guilty of his murder. We affirm.
BACKGROUND
On October 23, 2007, the district attorney filed an information charging Ruiz with Buford’s murder (Pen. Code, § 187, subd. (a)) and alleging his personal use of a firearm (handgun) (§§ 12022.5, subds. (a), (d), 12022.53, subd. (b)), his personal and intentional discharge of a firearm (handgun) (§ 12022.53, subd. (c)), and his personal and intentional discharge of a firearm (handgun) proximately causing death (§ 12022.53, subd. (d)). On January 30, 2009, a jury found him guilty of first degree murder (§§ 187, subd. (a), 189) with personal and intentional discharge of a firearm (handgun) proximately causing death (§ 12022.53, subd. (d)). On August 27, 2009, the court imposed an aggregate sentence of 50 years to life – a 25-to-life term for the firearm enhancement consecutive to a 25-to-life term for the first degree murder.
Later statutory references are to the Penal Code unless otherwise noted.
ISSUES ON APPEAL
Ruiz argues (1) that the court’s ruling denying his request to impeach a witness’s incriminatory statement was a prejudicial violation of his federal constitutional right to confrontation, (2) that the instruction defining as an accomplice the person whom the defense theory of the case portrayed as the lone shooter was a prejudicial violation of his federal constitutional right to due process, (3) that the court’s refusal of a defense instruction barring the jury from considering as evidence against him a witness’s guilty plea to the same incident was a prejudicial violation of his federal constitutional right to due process, (4) that the admission of gang evidence was an abuse of discretion and a prejudicial violation of his federal constitutional right to due process, (5) that the admission of a prior inconsistent statement with inadmissible hearsay caused a miscarriage of justice, and (6) that cumulative prejudice denied him a fundamentally fair trial.
DISCUSSION
1. Impeachment
Ruiz argues that the court’s ruling denying his request to impeach a witness’s incriminatory statement was a prejudicial violation of his federal constitutional right to confrontation. The Attorney General argues that Ruiz’s argument on appeal is outside the scope of his offer of proof at trial, that he forfeited his right to raise a federal constitutional issue on appeal by failing to articulate a federal constitutional objection at trial, and that confrontation clause error, if any, was harmless.
At the preliminary hearing, Rudy Jimenez testified he told Detective Sonia Silva that his brother Charles Jimenez said in a panic and in “shell shock” that Ruiz had shot Buford. Silva testified her investigation showed that Charles heard the bang and saw Buford slump and that “a lot of blood and brain matter” was “everywhere” in Buford’s car.
Solely for brevity, and not from disrespect, later references to the Jimenez brothers are by first names only.
Shortly before the swearing of the jury, the court held an evidentiary hearing to determine whether Rudy’s statement fell within the spontaneous statement exception to the hearsay rule. (Evid. Code, §§ 402, 1240.) Silva, the investigating officer and the sole witness at the hearing, testified that Charles, Ruiz, Buford, and Paul Olmos left Rudy’s house on the night of the shooting and that Charles came back later – terrified, in “shell shock, ” and almost in a panic – and said Ruiz had shot Buford. Silva had not heard of a statement that defense counsel said Charles made to a district attorney’s investigator about never having seen Ruiz or anyone else with a gun. The court noted Charles had a motive to deny everything once he had time for reflection after he told Rudy about the shooting. Silva opined on the basis of her investigation that Rudy’s statement, like the witness statements putting Charles in the car at the time of the shooting, were true. The court took judicial notice of Rudy’s preliminary hearing testimony and ruled his statement admissible “within the purview of Evidence Code Section 1240.” No mention was made at the hearing of Evidence Code section 1202, the statute governing the admissibility of evidence relevant to the credibility of a hearsay declarant.
Evidence Code section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”
Evidence Code section 1202 provides: “Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct. Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing. For the purposes of this section, the deponent of a deposition taken in the action in which it is offered shall be deemed to be a hearsay declarant.”
At trial, Olmos and Rudy, both of whom considered Buford a friend, testified about his death. Olmos testified that he and Buford left together in Buford’s car on the night of the shooting. Buford stopped and picked up Charles, Ruiz, and a person Olmos had never seen. Charles is big, so Olmos got out of the front seat to let him sit there, and Olmos got into the back seat, with Ruiz on his left behind Buford and the stranger on his right behind Charles. As soon as the last person got in, Olmos saw something black and shiny on his left, where Ruiz was sitting, and then he saw a flash, and he heard a shot, and he heard Buford moan.
As soon as the shot was fired, everyone jumped out of the car. Ruiz and the stranger took off right away. Olmos checked on Buford, who made sounds as if he had just been knocked out. Not knowing how serious his injury was, Olmos kept saying, “Wake up, ” but Charles kept saying, “Let’s go.” The two of them ran to Rudy’s house, where Olmos told Rudy that Ruiz had shot Buford in the back of the head. Afterward Charles told Rudy the same thing.
Not wanting to leave Buford behind, Olmos caught a ride back to the scene of the shooting, where he found him slumped over inside the car. Olmos pulled him out of the car, tried to wake him up again, but got no response and, confused and scared, thinking he was dead, left him beside the road and drove off in his car, which he soon ditched. He did not cooperate with the police at first, since telling the police his friend “got shot in the back of the head” by someone he knew was putting his life in jeopardy, but later he pled guilty to accessory after the fact and agreed to testify.
Rudy testified at trial that after Charles, Ruiz, Buford, and Olmos left his house on the night of the shooting Charles came back “scared and shocked” and said Ruiz had shot Buford. Silva interviewed Rudy after the shooting. She told him her investigation placed Charles in Buford’s car at the time of the shooting. He told her Charles said Ruiz had shot Buford.
Michael Chavez, who grew up with Ruiz and met Buford in prison, testified at trial that about a month after Buford’s death he received a phone call from Ruiz saying, “That he did it.” Having known Ruiz for 16 years, Chavez was familiar with his voice. He acknowledged telling detectives in an interview that Ruiz said in a phone call “‘that he killed, he killed Nathan Buford.’” Additionally, Chavez testified Olmos told him that Ruiz killed Buford and that after Olmos left the scene of the shooting he returned later and pulled Buford out of the car to see if he was dead or alive. Olmos told Chavez he was sure Buford was dead. “I’ll eventually die, ” Chavez testified, fearing for his safety after talking to the police and testifying in court.
After Rudy, Olmos, and Chavez testified, the court noted for the record that Charles was not available to testify at trial. The court observed that “both sides had an opportunity to find [him] and he’s gone” and that “unless [his] statements qualify as an admission, a declaration against penal interest for some reason, prior recorded testimony, it’s hearsay as to Charles.” The prosecutor added, “I don’t see any exception to letting hearsay statements in just because Charles Jimenez is not available and present at trial.”
After the jury found Ruiz guilty, the court granted his attorney’s motion for leave to withdraw and appointed the public defender to represent him. The public defender filed a new trial motion citing, inter alia, Evidence Code section 1202 and arguing, inter alia, that the denial of Ruiz’s request to impeach Charles’s out-of-court statement with inconsistent statements in the police report prejudiced him. The prosecutor filed an opposition. The court denied the motion.
On appeal, Ruiz argues that Evidence Code section 1202 permitted the requested impeachment, which would have allowed the jurors to hear statements Charles made to a district attorney’s investigator that four people were in the car at the time of the shooting, that when he heard the shot he bailed out of the car and saw nothing, that he told Rudy Nathan was dead and he did not know what happened, that he never told Silva he saw Ruiz or anyone else with a gun, and that he did not see Ruiz take out a handgun and shoot Buford in the back of the head. The record shows Charles made those statements to the district attorney’s investigator on October 11, 2007.
In the interest of judicial efficiency, we assume, without deciding, that Ruiz’s argument on appeal is within the scope of his offer of proof at trial, that he articulated a federal constitutional objection at trial, and that the court’s ruling was a violation of his federal constitutional right to confrontation. The sole issue still before us, then, is whether he was prejudiced.
The United States Supreme Court emphasizes that “the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless-error analysis” and that “the Constitution entitles a criminal defendant to a fair trial, not a perfect one.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680-681, 684, citing Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
Our review of the record satisfies us beyond a reasonable doubt that there was no prejudice. As the court sagely observed at the evidentiary hearing, Charles had a motive to deny everything once he had time for reflection after he told Rudy about the shooting. Just like Olmos, who testified that telling the police about Ruiz shooting Buford was putting his life in jeopardy, Charles understandably equivocated, obfuscated, and prevaricated. His spontaneous statement to Rudy on the night of the shooting was cumulative to, and less damning than, Olmos’s and Chavez’s testimony about Ruiz’s commission and admission, respectively, of Buford’s murder. The ruling did not deny Ruiz a fair trial.
2. Accomplice Instruction
Ruiz argues that the instruction defining as an accomplice the person whom the defense theory of the case portrayed as the lone shooter was a prejudicial violation of his federal constitutional right to due process. Alternatively, he argues ineffective assistance of counsel if his attorney invited error by “proposing similar instructions and agreeing to the instructions as given.” The Attorney General argues error, if any, was invited and error, if any, was harmless.
Shortly before trial commenced, Ruiz submitted five proposed instructions on accomplices. The first, CALJIC No. 3.10, defined an accomplice as “a person who [is] [was] subject to prosecution for the identical offense charged…against the defendant on trial by reason of [aiding and abetting] [or] [being a member of a criminal conspiracy].” The second, CALJIC No. 3.11, required that “[the testimony of an accomplice]” be “corroborated by other evidence which tends to connect [the]…defendant with the commission of the offense.” The third, CALJIC No. 3.12, instructed on “sufficiency of evidence to corroborate an accomplice.” The fourth, CALJIC No. 3.13, instructed that “one accomplice may not corroborate another.” The fifth, CALJIC No. 3.16, instructed that “if the crime of ___ was committed by anyone, the witness ___ was an accomplice as a matter of law and [his] [her] testimony is subject to the rule requiring corroboration.”
At the instruction settling conference, the court considered the prosecutor’s proposed instructions first. “Now we have the instruction of [CALCRIM No.] 335 which is the accomplice testimony of Paul Olmos, ” the court stated. “And they’re conceding that he was an accomplice, ” to which the prosecutor replied, “Right.” Asked if there was a defense objection, Ruiz’s attorney replied, “No. No objection.” Acknowledging Ruiz’s attorney “requested a lot of instructions on this issue, ” the court noted CALCRIM No. 335 required viewing “accomplice testimony with caution, ” to which Ruiz’s attorney replied, “Okay.” On that record, the court instructed the jury with CALCRIM No. 335 (“Accomplice Testimony: No Dispute Whether Witness Is Accomplice”).
The court gave CALCRIM No. 335 as follows: “If the crime of murder was committed, then Paul Olmos was an accomplice to that crime. You may not convict the defendant of murder based upon the testimony of an accomplice alone, Paul Olmos. You may use the testimony of an accomplice to convict the defendant only if: [¶] One, the accomplice’s testimony is supported by other evidence that you believe. [¶] Two, the supporting evidence is independent of the accomplice’s testimony. [¶] And three, that supporting evidence tends to connect the defendant to the commission of the crime. [¶] Supporting evidence, however, may be slight. It does not need to be enough by itself to prove that the defendant is guilty of the charged crime. It does not need to support every fact about which the witness testified. [¶] On the other hand, it is not enough that the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. [¶] Any testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the other evidence.”
Before considering the merits of Ruiz’s argument, we address the Attorney General’s invited error argument. Since Ruiz’s attorney requested “substantially the same instructions as were given, ” the Attorney General claims the necessary “showing of a tactical purpose” is in the record. “‘The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.’” (People v. Marshall (1990) 50 Cal.3d 907, 931, quoting People v. Wickersham (1982) 32 Cal.3d 307, 330, overruled on another ground by People v. Barton (1995) 12 Cal.4th 186, 200-201.)
To instruct the jury that Olmos was an accomplice if anyone committed the crime of murder, Ruiz requested CALJIC No. 3.16. To instruct the jury that Olmos was an accomplice if the crime of murder was committed, the prosecutor requested, and the court gave, CALCRIM No. 335. On the record and the argument here, the two instructions are fungible. We agree with the Attorney General that the doctrine of invited error precludes appellate review of Ruiz’s argument.
Even so, in the interest of judicial efficiency, we address Ruiz’s argument on the merits to preclude the need to adjudicate his alternative ineffective assistance of counsel claim. (Cf. People v. Cooper (1991) 53 Cal.3d 771, 831.) Ruiz argues that the problem with instructing the jury that Olmos was an accomplice was threefold. First, “labeling Olmos as an accomplice as a matter of law suggested he had to have been helping someone else, ” Ruiz argues, by identifying himself as “the only person he could have been helping.” His argument is at odds with both the evidence and the prosecutor’s theory of the case. Olmos admitted pulling Buford out of the car, leaving him beside the road, driving off in his car, and ditching his car. He admitted not cooperating with the police and only later pleading guilty to accessory after the fact and agreeing to testify. None of that evidence implicated Ruiz. Congruently, the prosecutor argued, “What’s in dispute here and what you’re here to decide basically is whether or not the defendant did it.” Later, he emphasized, “Paul Olmos was a separate case. It had nothing to do with the charging of the defendant.”
Second, “to the extent that the legal definition of ‘accomplice’ does encompass people who commit crimes by themselves, ” Ruiz argues, “the jury was never given the legal definition of accomplice, and thus had no reason to believe they had the authority to find Olmos, rather than Mr. Ruiz, was the shooter.” His argument proves too much and too little. In argument to the jury, the instruction labeling Olmos as an accomplice served Ruiz well. “Mr. Olmos is an accomplice, ” his attorney observed. “He’s an accomplice. In other words, someone that is involved here. And his testimony has to be looked at with caution.” Additionally, the court did define accomplice for the jury. “A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant, ” the court instructed, noting two disjunctive scenarios, one of which was that a “person is subject to prosecution if he or she committed the crime.” (CALCRIM No. 3149, italics added, italics in original.) That the definition of accomplice appeared in the firearm discharge instruction, not the murder instruction, is immaterial since a gunshot wound was the indisputable cause of death. Jurors are presumed able to understand, correlate, and follow the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Third, “because jurors learned that Olmos pled guilty to accessory after the fact, ” Ruiz argues, “they were led to believe that Olmos’ role was not as the sole killer or one of two killers, but as someone who tried to cover up the real killer’s complicity – again, leading to an inference that Mr. Ruiz was the one and only shooter.” The prosecutor’s theory of the case was quite the contrary. He asked the jury to decide which of two men, Ruiz or Olmos, both of whom were in the back seat of Buford’s car, pulled the trigger. “What’s in dispute here and what you’re here to decide basically is whether or not the defendant did it.” The definition of accomplice in CALCRIM No. 3149 authorized the jury to find Olmos pulled the trigger. With no evidence even suggesting he tried to help Ruiz, and with no instruction defining accessory after the fact, a reasonable jury was likely to infer simply that, in the absence of enough evidence to confidently take him to trial, the district attorney’s office agreed to a negotiated plea.
The standard of review of an instruction challenged on due process grounds is whether there is a reasonable likelihood that the jury applied the instruction in a way that denied fundamental fairness. (See Estelle v. McGuire (1991) 502 U.S. 62, 71-73 & fn. 3 (McGuire); People v. Clair (1992) 2 Cal.4th 629, 663 (Clair).) Our review of the instruction at issue, not “‘in artificial isolation’” but “in the context of the instructions as a whole and the trial record, ” satisfies us there is no reasonable likelihood that the jury did so. (McGuire, supra, at p. 72.)
3. Guilty Plea Instruction
Ruiz argues that the court’s refusal of a defense instruction barring the jury from considering as evidence against him a witness’s guilty plea to the same incident was a prejudicial violation of his federal constitutional right to due process. The Attorney General argues that the instruction was not necessary and that error, if any, was harmless.
The instruction at issue, Defendant’s Special Instruction A44.5.1, provided: “The fact that a witness has entered a plea of guilty to charges arising from these events cannot be considered by you as evidence of the guilt of any other person.” People v. Young (1978) 85 Cal.App.3d 594, the sole authority Ruiz cited in support of his proffer, held that informing the jury of the midtrial guilty plea of the codefendant charged as the gunman in a pair of robberies was “irrelevant to the jury’s determination of guilt or innocence” but harmless beyond a reasonable doubt due to other evidence implicating the codefendant’s aiders and abettors (one of whom was a driver, the other of whom was a lookout). (Id. at pp. 598-599, 601-603.)
At the instruction settling conference, the court initially stated, “And I intend to give [Defendant’s Special Instruction A44.5.1], ” but the prosecutor represented, “Your Honor, this is given twice now, ” and the court refused the proffer. “The fact that he has pled shouldn’t effect [sic] a defendant, ” Ruiz’s attorney observed, but the court’s ruling stood.
On appeal, the Attorney General acknowledges the prosecutor’s lack of specificity but notes the court’s instruction with CALCRIM Nos. 226 (“Witnesses”), 316 (“Additional Instructions on Witness Credibility – Other Conduct”) and 335 (“Accomplice Testimony: No Dispute Whether Witness Is Accomplice”) and with Defendant’s Special Instruction A44.31 (“Credibility of Plea Bargain Witness”). The Attorney General notes, too, that Olmos admitted in his testimony before the jury that he was on parole at the time of Buford’s murder. Additionally, the court flagged his testimony alone for special scrutiny by giving an appropriately modified version of CALCRIM No. 301 (“Single Witness’s Testimony”).
The court gave CALCRIM No. 226, in relevant part, as follows: “You alone must judge the credibility or in other words, believability of any witness. In deciding whether testimony is true and accurate, use your common sense and experience. [¶] The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have including any based upon a witness’ disability, gender, race, religion, ethnic background, sexual orientation, gender identity, age, national origin or socioeconomic status. [¶] You may believe all, part or none of any witness’ testimony. Consider the testimony of each witness and decide how much of it you believe. In evaluating a witness’ testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. [¶] Factors you may consider are: [¶] … [¶] Was the witness’s testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case or a personal interest in how the case is to be decided. [¶] … [¶] Has any witness been convicted of a felony. [¶] Has any witness engaged in conduct that reflects upon his or her believability and was any witness promised immunity or leniency in exchange for his or her testimony.”
The court gave CALCRIM No. 316 as follows: “If you find that witnesses or a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness’ testimony. The fact of a conviction does not necessarily destroy or impair a witness’ credibility. It is up to you to decide the weight of that fact and whether that fact makes a witness less believable.”
Ante, part 2, fn. 5.
The court gave Defendant’s Special Instruction A44.31 as follows: “You have heard testimony in this case from the witness Paul Olmos who testified pursuant to a plea bargain with the prosecution. As part of this plea bargain, the witness promised to testify truthfully. The mere fact that Paul Olmos promised to testify truthfully does not mean his testimony is truthful or that the prosecution has a way of knowing that the testimony is truthful. [¶] You must judge the … credibility of Paul Olmos according to the instructions I gave you regarding the credibility or believability of witnesses.”
The court gave CALCRIM No. 301 as follows: “Except for the testimony of Paul Olmos which requires supporting evidence, the testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.”
In the interest of judicial efficiency, we assume, without deciding, that the court’s refusal of Ruiz’s proffered instruction was a violation of his federal constitutional right to due process. The sole issue still before us, then, is whether he was prejudiced. We have already rejected his arguments that the jury’s learning Olmos was an accomplice as a matter of law implied he was helping Ruiz, that the jury’s learning he pled guilty to accessory after the fact implied Ruiz was the sole shooter, and that jurors had no way to decide Olmos, not Ruiz, was the shooter. (Ante, part 2.) Additionally, we take note of how, in argument to the jury, Ruiz’s attorney meticulously savaged the “incredible” web of “lies” and “inconsistencies” that Olmos weaved in a desperate attempt to hide the fact that he, not Ruiz, murdered Buford.
Chapman instructs us to consider “not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279, citing Chapman, supra, 386 U.S. at p. 24.) Our review of the court’s ruling, in the context of the instructions as a whole and the entire record before us, satisfies us beyond a reasonable doubt that there was no prejudice.
4. Gang Evidence
Ruiz argues that the admission of gang evidence was an abuse of discretion and a prejudicial violation of his federal constitutional right to due process. The Attorney General argues that the evidence was relevant to show how an intra-gang murder without gang authorization affected perpetrators and witnesses alike.
Before trial, the prosecutor filed a motion in limine to admit expert testimony about the gang affiliations of Ruiz, Buford, and others and about additional aspects of gang sociology. At the hearing on the motion, Ruiz’s attorney insisted that there was no evidence of a gang connection to the murder and, while acknowledging that “an expert can testify to hearsay, ” emphasized that the law requires reliability. The prosecutor argued that although Buford’s murder was not “a gang related crime” all of the involved people were “documented gang members” so expert testimony was necessary. “Police documentation in and of itself is not reliable evidence of gang association, ” Ruiz’s attorney replied. Emphasizing the relevance of how one gang member could kill another gang member, the court found the evidence “more probative than prejudicial” and granted the motion but expressed a willingness to give a limiting instruction to the jury “on the expert’s testimony regarding the hearsay” if the defense wanted one.
The gang expert testified about the gangs of Porterville and about the gang affiliations of Ruiz and the others. He identified “three northern gangs” – the East Side Poros (ESP), the Varrio Central Poros (VCP), and the West Side Poros (WSP) – which, he testified, normally hung out together, partied together, and got along with each other, though not with their common rivals, which were “Sureño gangs” and “some white gangs.” He testified that Rudy was an ESP member, Ruiz, Chavez, and Charles were VCP members, and Buford and Olmos were WSP members. Chavez, as the “channel” for all three gangs, had the duty to investigate people who cooperated with the police. Norteños are supposed to settle personal conflicts, but since Buford’s murder involved “a northerner killing a northerner” the penalty was death, which “higher ups in Pelican Bay State Prison” impose on the person the investigation identifies as the killer. A northerner killing a northerner, the gang expert opined, is likely to call the channel and admit the crime.
Ruiz emphasizes the prosecutor’s use of gang evidence in her argument to the jury. “The lifestyle of a gang member is a crazy one and it might be one that’s hard to understand, and one that’s hard for you to relate to, but it’s one that’s real and one that exists, ” she began. “Gang members live by their own set of rules and their own set of regulations and the moment that Rudy Jimenez, Michael Chavez and Paul Olmos cooperated with law enforcement they went against those rules and they put their life [sic] in danger.” Ruiz characterizes the evidence that the court’s ruling admitted as “nothing more than bad character evidence” that was not only “highly prejudicial” but also “unnecessary to prove any contested issue in the case.” With commendable candor, he acknowledges, as the record shows, “there was not extended testimony about gangs, ” however.
In People v. Cardenas (1982) 31 Cal.3d 897, the primary authority on which Ruiz relies, our Supreme Court held that the admission of evidence that the defendant and his witnesses were members of a gang that commits criminal acts was an abuse of discretion due to the “real danger” that the jury would infer that he had a criminal disposition. (Id. at pp. 904-905.) Here, on the other hand, the gang expert’s testimony did not show that Ruiz or any other VCP member, or even any member of either of Porterville’s other two northern gangs, committed any gang crimes. Had the court not admitted the evidence, the jury might well have inferred that people feared Ruiz personally rather than the gang generally. Despite the court’s willingness to give a limiting instruction, Ruiz cites to nothing in the record showing he ever requested one. Arguably he might have welcomed the somewhat confusing gang evidence to distract the jury from focusing on the rather straightforward evidence of his personal motive to avenge Buford’s killing of his uncle years ago.
Evidence Code section 352 gives the trial court discretion to exclude otherwise relevant evidence if the prejudicial effect substantially outweighs the probative value. Our duty is to apply the deferential abuse of discretion standard of review. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) The prejudice the statute seeks to avoid is not the damage to a defense that naturally flows from highly probative evidence. (People v. Karis (1988) 46 Cal.3d 612, 638.) “Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors.” (People v. Farmer (1989) 47 Cal.3d 888, 912, overruled on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) The gang evidence here did not prejudice Ruiz in that sense. Since we reject the statutory premise of his constitutional argument, his due process claim likewise fails. (People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3.) The essential question, of course, is “whether the admission of the evidence so fatally infected the proceedings as to render them fundamentally unfair.” (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919.) The record answers that question in the negative.
5. Prior Inconsistent Statement
Ruiz argues that the admission of a prior inconsistent statement with inadmissible hearsay caused a miscarriage of justice. The Attorney General argues that Ruiz forfeited his right to appellate review by failing to object adequately, that there was no error, and that error, if any, was not prejudicial.
Preliminarily, we turn to the Attorney General’s forfeiture argument. After Chavez and Silva testified, the prosecutor sought to impeach Chavez with a recording of a prior inconsistent statement in an interview with detectives. Ruiz’s attorney objected on the ground that “the only thing that should be given to the jury is the things that have to do with inconsistent, not the entire tape.” After the court replied, “Well that is true, ” the playing of the tape commenced on the basis of a stipulation that the court reporter need not transcribe the tape since “everybody” had a transcript. (Peo. Exh. 37.) As soon as Ruiz’s attorney objected to “the rest of the tape, ” the court gave the order, “Stop the tape.”
In the colloquy that ensued, Ruiz’s attorney made a double hearsay objection to a statement Ruiz allegedly made to a third party in the portion of the tape the jury already heard. The court sustained the objection, instructed the jury to disregard the statement, and worked out an agreement with both counsel as to which of the remaining portions of the tape the jury should hear. Our review of the record satisfies us that Ruiz’s attorney adequately objected to the admission of the tape. We reject the Attorney General’s forfeiture argument.
On the merits of the issue before us, Ruiz makes a twofold argument. First, he asserts that the interview “only minimally impeached Chavez’s testimony, since Chavez had essentially admitted during his testimony that he had told police Mr. Ruiz confessed to him.” Chavez’s testimony, however, was evasive. Asked what Ruiz told him, he testified, “That he did it. That was it.” Asked, “Did what?, ” he testified, “You already know what he did.” Asked the same question again, he testified, “You asked me what he said. I already told you.” Asked if Ruiz told Chavez he shot Buford in the back of the head, he testified, “That’s not what he told me.” Asked if Chavez told detectives that Ruiz told him that, he testified he “probably” did.
Evidence Code section 1235 authorizes the admission of prior inconsistent statements “to prove their substance as well as to impeach the declarant.” (People v. Hawthorne (1992) 4 Cal.4th 43, 55, fn. 4.) The fundamental requirement of the statute is the inconsistency of a witness’s prior statement with his or her trial testimony, but courts do not apply the rule mechanically. (People v. Johnson (1992) 3 Cal.4th 1183, 1219.) Inconsistency in effect, rather than express contradiction, governs the admission of a witness’s prior statement, and a claim of lack of memory that amounts to deliberate evasion implies inconsistency. (Id. at pp. 1219-1220.) Here, since the record shows a reasonable basis for finding that Chavez was deliberately evasive on the stand, the court properly admitted his prior inconsistent statement to detectives.
Second, Ruiz argues that Chavez’s interview with detectives contained “damaging hearsay statements” that Olmos and Oggie Duran both said Ruiz shot Buford. In reliance on the statutory mandate that each statement in a multiple hearsay statement meet the requirements of an exception to the hearsay rule, he argues that neither the Olmos statement nor the Duran statement was admissible. (Evid. Code, § 1201.) In the interest of judicial efficiency, we assume, without deciding, that those statements were inadmissible. The sole issue still before us, then, is whether he was prejudiced.
The Olmos statement was cumulative to, and less thorough than, Chavez’s testimony, which included additional details of how Olmos said he left the scene of the shooting, returned later, pulled Buford out of the car, and drove off after figuring he was dead. Ruiz made a double hearsay objection to the Duran statement. The court not only sustained the objection but also admonished the jury not to consider the evidence for any purpose. Ruiz now characterizes the evidence as “highly inflammatory, ” but his new trial motion, which represented successor counsel’s independent evaluation of his trial, argued numerous grounds for relief without mentioning the Duran statement at all. Our reading of the record is congruent with successor counsel’s apparent conclusion that the Duran statement was insignificant in comparison with far more incriminating evidence and far more plausible grounds for a new trial. “We assume the jury followed the court’s admonition, avoiding any prejudice.” (People v. Bennett (2009) 45 Cal.4th 577, 616.) Even if the court had ruled to the contrary, a more favorable verdict was not reasonably probable. (People v. Watson (1956) 46 Cal.2d 818, 836.)
6. Cumulative Prejudice
Ruiz argues that cumulative prejudice denied him a fundamentally fair trial. The Attorney General argues the contrary. On the record of the tangled web of interlocking evidence incriminating him, Ruiz’s argument fails to persuade us. The few errors we assume, without deciding, occurred in his trial, considered individually or collectively, were not prejudicial. (People v. Crew (2003) 31 Cal.4th 822, 860.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, ACTING P.J., DAWSON, J.