Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA316272, Norman J. Shapiro, Judge.
Law Offices of Dennis A. Fischer, Dennis A. Fischer, John M. Bishop, Alan S. Yockelson 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 Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P.J.
After altercations at a night club in Hollywood, a security guard at the club was fatally shot and a patron wounded in the leg. A jury convicted appellant David Suen of the first degree murder of Ron Emerick (Pen. Code, § 187, subd. (a)) and assault with a firearm on Kevin Wong (§ 245, subd. (a)(2)), but found not true several enhancement allegations of the personal use of a firearm. Appellant was sentenced to a total prison term of 25 years to life, plus four years.
All statutory references are to the Penal Code, unless otherwise indicated.
The jury was unable to reach a verdict on a third count, the attempted murder of Brian Watsabaugh, and the trial court declared a mistrial. Thereafter, upon the prosecutor’s motion, the court dismissed that count.
Contrary to appellant’s contentions: (1) substantial evidence supports his convictions of murder and assault; (2) the admission of DNA test results and cell tower records did not violate his Sixth Amendment right to confrontation, because the evidence was not testimonial; (3) the trial court did not err in admitting limited evidence of appellant’s admission of his gang affiliation, because such evidence was relevant to support the credibility of the prosecution’s main witness (former codefendant Milton Do); and (4) the trial court properly denied appellant’s motion to dismiss for alleged violation of his statutory right to a speedy trial. We thus affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
In the early morning of January 27, 2007, Ron Emerick was working as a security guard at the entrance of the Vanguard nightclub on Hollywood Boulevard, and Brian Watsabaugh was working there as a doorman. It was “Asian night” at the club, and appellant went there with Johnnie Nguyen and other friends. Appellant apparently became quite intoxicated, vomited in bathroom, and then was escorted out of the club by two security guards because of his degree of intoxication.
At some point, appellant and Nguyen approached the front entrance of the club and tried to convince Emerick to let them back inside. Emerick refused to let them back inside the club. Emerick then contacted other security personnel, who escorted them from the premises.
Soon thereafter, when appellant and Nguyen were refused reentry and as they were escorted to the valet, appellant angrily yelled several comments. One of the club’s security officer’s heard appellant say, “Fuck that, ” and “We [are] going to come back. Somebody’s going to get, you know, dealt with.” Another security officer heard someone say, “I’ll be back.” The assistant manager at the club heard appellant angrily say to Emerick, “I’m going to blast you.”
A security guard at the perimeter of the premises helped escort appellant and Nguyen away from the entrance. The security guard heard appellant say, “I will get you, fool. I will be back for you, fool. Fuck you, motherfucker.” As they neared the valet, appellant eventually calmed down. Appellant and Nguyen got into a dark-colored car, similar to a BMW, with no license plates on it. A man and woman were already in the car, which then headed down Hollywood Boulevard.
Meanwhile, earlier in the evening, Nguyen had called Milton Do and asked Do to go by appellant’s house in Arcadia to pick up a gun. Nguyen asserted that a rival gang, known as the Black Dragon, was going to be at a club and that the gun would be used for backup. Do and Nguyen were both members of the Chinatown Boys gang, and Do had met appellant approximately a month earlier through gang affiliated friends.
Appellant later sent Do a text message telling him exactly where the gun was located. Do’s girlfriend, Cindy Nguyen, drove her car to pick up Do. After midnight, they drove to appellant’s house, where Do got appellant’s gun and a box of bullets from the garage.
Do and his girlfriend then met appellant, Nguyen, and several others at a restaurant in Hollywood. Nguyen and two other people were in appellant’s dark-colored BMW. Appellant switched shirts with another man in the parking lot, and then he got into the front passenger seat of Cindy Nguyen’s car, a silver Toyota Corolla. Do gave appellant the gun and a pair of gloves.
Do and appellant headed toward the Vanguard club. Appellant explained to Do that instead of a confrontation with a rival gang, they were going to the club to have a confrontation with a security guard, because appellant had been thrown out of the club. Appellant told Do that he had a confrontation with a security guard at the club, who had heard appellant shout “Chinatown Boys” and then threw him out of the club.
Do drove around the club several times so appellant could find the security guard he was looking for. At some point, they removed the license plates from the car. Do eventually parked the car on Hollywood Boulevard, and appellant got out with the gun. Appellant went to the front of the club, and Do heard several gunshots.
The doorman at the club, Brian Watsabaugh, saw appellant walk toward the front entrance of the club and shoot Ron Emerick three times with a silver, stainless steel revolver. Appellant paused, fired two more times at Emerick, and then as appellant ran away, he fired one final time at Emerick, who died from a gunshot wound to the chest. Kevin Wong, who was leaving the club at the time of the shooting, was wounded in the leg by a bullet. Watsabaugh ran after appellant and saw him jump head first into a parked silver Toyota Corolla.
Once appellant was inside the car, Do drove off. He made a U-turn into traffic, hit a car, and kept driving on Hollywood Boulevard. Do attempted to enter the nearby 101 freeway onramp, but he lost control of the car and crashed into some concrete barriers. Do and appellant fled from the car, ran together, and attempted to avoid the police.
Bystanders near the freeway onramp heard the car crash and saw two Asian males exit the car and flee. The police arrived, searched for appellant and Do, and eventually located them hiding under a freeway overpass. Appellant spoke to the officers in an Asian language, claimed he did not speak English, and identified himself with a false name.
After searching the area, the police recovered a.357 Magnum pistol from a trash can. There were six spent casings in the gun. Bullet fragments found in Emerick’s clothing and at the scene of the shooting were all fired from the gun found in the trash can.
Investigators took DNA samples from the deployed airbags of the crashed Toyota. Erika Jimenez, a DNA analyst with Orkid Cellmark, testified at trial that appellant and Do were both possible donors of DNA found on the passenger’s side airbag. Do was also a possible donor of DNA on the driver’s side airbag, but appellant was excluded as a donor of DNA on the driver’s side airbag.
Detective Robert Vargas testified at trial regarding T-Mobile cell tower location records. He explained that the various tower identification numbers that corresponded to various cell phone calls associated with Johnnie Nguyen’s cell phone number at approximately the time of the shooting, indicated that the cell towers were located in the area of Koreatown. The cell tower site evidence thus suggested that Nguyen was not at that time in Hollywood and countered appellant’s subsequent claim at trial that Nguyen was involved in the shooting.
After the shootings, several Vanguard club employees participated in field identifications. Glen Mapanao identified appellant as the person he had escorted from the bathroom earlier in the evening. He also recognized Do as another person who was escorted from the club. Joseph Trentcosta identified appellant as the person who was escorted from the club and who made various threatening statements. Trentcosta also identified Do as another person escorted from the club. Similarly, Troy Peebles identified appellant as the person who was escorted from the club and who made various statements, and he identified Do as another person escorted out.
Watsabaugh also viewed appellant and Do and recognized both. However, he identified appellant as the driver of the car, and Do as the shooter. Luis Mendez, who observed the car crash and saw the two men flee, could not identify which man was the driver and which was the passenger.
When Do was arrested, he agreed to talk to the police. However, he was not truthful and asserted that a rival gang had been after him and appellant. Do also told his girlfriend to lie to the police. Do explained that he was not truthful because he was afraid of gang retaliation. Ultimately, Do accepted a plea agreement, pled guilty to second degree murder, was sentenced to a prison term of 15 years to life, and agreed to testify truthfully at appellant’s trial. As previously detailed, Do testified that he was the driver, it was appellant who fired the shots at the security guard, and Johnnie Nguyen was not present in the car.
Do also noted that after the shooting appellant remarked, “It made us known, ” meaning the Chinatown Boys became better known. The gang had died down, and appellant was trying to bring them back together. Previously, during a traffic stop in February of 1999, appellant had claimed membership in the Chinatown Boys gang.
In his defense at trial, appellant acknowledged that he had in the past associated with the Chinatown Boys gang, but asserted he was not an official member of the gang and did not have the required gang tattoos. Appellant knew that Johnnie Nguyen had gang tattoos, but appellant associated with him anyway because they and their girlfriends were friends.
According to appellant, on the night of the shooting, he and Johnnie Nguyen arrived at the Vanguard club at approximately 11:00 p.m., and both of them proceeded to drink a lot. At some point, they went to the restroom, where appellant saw a security guard holding Nguyen, who had vomited and was yelling at the guard. The security guard escorted Nguyen out of the club, and appellant followed. Nguyen was upset, belligerent, and did not want to leave.
Nguyen’s girlfriend had the car keys and was still inside the club, so Nguyen called Do to pick them up. Do arrived soon thereafter in his girlfriend’s car. Appellant asserted that Nguyen then drove the car, Do sat in the front passenger seat, and appellant got in the back. Appellant began to feel the effects of the alcohol and fell asleep in the backseat. Appellant also claimed that he woke up when heard he heard gunshots and the sound of people running. Do jumped into the passenger seat, and Nguyen sped away but soon crashed the car.
Appellant further asserted that Do grabbed him and told him to run, and then to hide so that Do would not get caught. Appellant claimed that when the police apprehended them, he gave a false name because he did not want to cooperate after the police told him he was guilty of murder.
DISCUSSION
I. Substantial evidence supports appellant’s convictions of first degree murder and assault with a firearm.
Appellant’s contention that there was insufficient evidence to support his convictions is premised on the assumption that the jury must have convicted him as an aider and abettor and not as the shooter. This assumption is based on the jury’s finding not true the special allegations that appellant personally used a firearm in the commission of the murder and the assault, and not true that he personally inflicted great bodily injury during the commission of the assault. Thus, appellant theorizes that if the jury found he did not personally use the firearm or inflict the injuries, it must have found him guilty as an aider and abettor.
Discounting the testimony of Do and some of the personnel at the Vanguard club that appellant actually was the shooter, appellant asserts there was insufficient evidence he acted as an aider and abettor “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560; see People v. Lizarraga (1990) 219 Cal.App.3d 476, 481.) In arguing his lack of the requisite specific intent and knowledge for aiding and abetting, appellant focuses, for example, on the following: the prosecutor’s alternative aiding and abetting theory (if the jury found appellant was the driver); an arresting officer’s testimony that appellant appeared so intoxicated he had to be held up or he would have fallen down; appellant’s claim that he had over a dozen “shots” of alcohol and thereafter was purportedly in a drunken sleep in the backseat of the car before the shootings; and DNA evidence which arguably did not eliminate the possibility that appellant was in the backseat (though his DNA was found on the passenger side airbag).
Appellant’s creative but strained attack on the sufficiency of the evidence is fundamentally flawed because, contrary to his assumption, the jury did not necessarily find him guilty based on the theory of aiding and abetting. It is well settled that a “reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support’” the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Here, the compelling hypothesis supporting appellant’s guilt, as found by the jury, is the reality that seemingly inconsistent findings may result from the jury’s leniency or mercy.
Cases have long acknowledged that the most likely cause of inconsistent jury findings is “‘“the mercy of the jury, of which the appellant can neither complain nor take further advantage.”’” (People v. Amick (1942) 20 Cal.2d 247, 252.) Thus, “an inherently inconsistent verdict is allowed to stand;... if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both.” (People v. Santamaria (1994) 8 Cal.4th 903, 911.)
The situation in People v. Lopez (1982) 131 Cal.App.3d 565 is instructive. There, a jury found the defendant guilty of assault with a deadly weapon, but also found that he did not personally use a firearm. As appellant similarly seeks to do in the present case, Lopez contended that the court could not analyze the evidence for sufficiency under the theory that he was the direct perpetrator, because the jury had found he did not personally use a firearm. (Id. at pp. 569-570.) The appellate court rejected Lopez’s argument and explained that seemingly inconsistent findings on an offense and an enhancement may be the result of mercy or leniency. (Id. at p. 571.)
Juries may “acquit out of compassion or compromise or because of ‘“their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.”’” (Standefer v. United States (1980) 447 U.S. 10, 22.) Even where, as here, a jury is confronted with a straightforward choice as to the defendant’s role and there is no “uncertainty” from conflicting inferences as to the aider and abettor versus actual shooter (People. v. Thompson (2010) 49 Cal.4th 79, 120), the jury may still exercise leniency.
A review of sufficiency of the evidence “involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt. [Citations.] This review should be independent of the jury’s determination that evidence on another count [or an enhancement allegation] was insufficient.” (United States v. Powell (1984) 469 U.S. 57, 67.) “[W]e review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (People v. Zamudio, supra, 43 Cal.4th at p. 357.)
In the present case, Do testified that he went to appellant’s garage where he got a gun and bullets, met appellant at a restaurant in Hollywood, and gave appellant the gun. Do then drove appellant to the Vanguard club. Appellant told Do he had earlier been thrown out of the club, and that they were going to the club for the security guard. Do drove around the club several times, at some point the license plates were removed from the car, and then Do parked on Hollywood Boulevard. Appellant got out of the car and went to the front of the club, after which Do heard several gunshots and appellant ran back into the car. Appellant dove into the passenger window as he was being chased by one of the club’s security guards. Do sped away, but crashed the car near a freeway onramp. Soon thereafter, police found Do and appellant hiding under the freeway overpass and found the murder weapon in a nearby trash can. As a result of the shooting, Emerick died and Wong was wounded in the leg.
Such evidence and reasonable inferences therefrom-even apart from DNA evidence, cell phone tower records, and other testimonial evidence-constitute substantial evidence of appellant’s guilt of the crimes charged. Appellant’s attack on the sufficiency of the evidence is thus unavailing.
II. The admission of DNA test results and cell tower records did not constitute testimonial evidence and thus did not violate appellant’s Sixth Amendment right to confrontation.
Appellant contends that pursuant to Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___, 129 S.Ct. 2527 (Melendez-Diaz), his constitutional right to confrontation was violated by (1) the testimony of a DNA analyst regarding DNA testing by another analyst, and (2) the testimony of a police detective who explained cell tower site records absent explanatory testimony from a employee of the cell phone company. Respondent urges Melendez-Diaz itself requires that defendants specifically object and assert a confrontation clause violation (id. at pp. 2532, fn. 1, 2534, fn. 3, & 2541), and that appellant’s mere hearsay and lack of foundation objections are insufficient to preserve a claim of violating the confrontation clause of the Sixth Amendment. (Compare People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19 [finding hearsay objection did not preserve confrontation claim], and People v. Chaney (2007) 148 Cal.App.4th 772, 778-780 [same], with People v. Gutierrez (2009) 45 Cal.4th 789, 809-813 [finding hearsay objection did preserve Sixth Amendment claim, but not addressing some prior contrary case law].) Apart from whether the lack of a Sixth Amendment objection forfeited the Melendez-Diaz issue, appellant’s contention is without merit because the evidence complained of was not testimonial and, in any event, any error was harmless beyond a reasonable doubt.
The evidence that is not testimonial does not violate the confrontation clause.
The confrontation clause bars the admission of testimonial out-of-court statements by witnesses not appearing at trial, unless the witnesses are unavailable and the defendant had a prior opportunity to cross-examine them. (Crawford v. Washington (2004) 541 U.S. 36, 53-54, 59.) Only “‘testimonial statements’” implicate the confrontation clause and Crawford’s holding. (Davis v. Washington (2006) 547 U.S. 813, 821.) Statements are “testimonial” only if they cause the declarant to be a witness within the meaning of the Sixth Amendment, such as statements in response to police interrogations designed to elicit evidence to convict a defendant of a crime. (Id. at pp. 821-824.) Testimonial statements also include prior testimony at a preliminary hearing or before a grand jury or at a prior trial (Crawford, at pp. 68-69), as well as a declaration or affirmation made for the purpose of establishing or proving some fact. (Id. at pp. 51-52.)
Melendez-Diaz addressed a case where the prosecutor introduced certificates of analysis, rather than in-court testimony, to establish that the substance recovered from the defendant was cocaine and to show how much cocaine he possessed. Although referred to as certificates, the documents were indistinguishable from sworn affidavits, because they were sworn declarations affirming or establishing facts regarding the nature and amount of the substance recovered. (Id. at p. 2532.) Such certificates of analysis were thus deemed testimonial statements (ibid.), which could not be admitted without violating the confrontation clause, absent a showing that the analysts who prepared them were unavailable to testify at trial and that the defendant had a prior opportunity to cross-examination the analysts. (Ibid.) Notably, the court specifically rejected the suggestion that the confrontation clause required that every person whose testimony might be relevant to the authenticity of a sample or the accuracy of a testing device appear in person as a part of the prosecution’s case. (Id. at p. 2532, fn. 1.)
In People v. Geier (2007) 41 Cal.4th 555 (Geier), the court held that certain reports concerning laboratory analysis of DNA evidence did not violate the confrontation clause, even though the analyst who prepared the reports did not testify. (Id. at pp. 596-609.) In Geier, the analyst’s supervisor testified at trial and described the tests, the manner in which the reports were prepared, the reliability of the tests, and the results reflected in the reports. (Id. at pp. 594-596.) The court concluded that the reports “constitute a contemporaneous recordation of observable events rather than the documentation of past events. That is, [the analyst] recorded her observations regarding the receipt of the DNA samples, her preparation of the samples for analysis, and the results of that analysis as she was actually performing those tasks.” (Id. at pp. 605-606.) Thus, the reports were not testimonial and did not offend the confrontation clause of the Sixth Amendment.
We note that our Supreme Court has granted review in several cases to address how the decision in Melendez-Diaz affects the decision in Geier. (See, e.g., People v. Dungo (2009) 176 Cal.App.4th 1388, review granted Dec. 2, 2009, S176886; see also Bullcoming v. New Mexico (Sept. 28, 2010, 09-10876) ___ U.S. ___ [2010 WL 2008002] [certiorari granted on a similar confrontation clause issue].)
Geier, supra, 41 Cal.4th 555, relied in large part on Davis v. Washington, supra, 547 U.S. 813, where one of the items of evidence at issue was “a 911 tape in which the victim... described the attack on her by defendant to the 911 operator as it was occurring.” (Geier, supra, at p. 603.) Davis held that the victim’s statements to the 911 operator “were not testimonial, ” in contrast to a second victim’s comments to the police given after the assault on her had concluded. (Ibid.) Based on that analysis, Geier articulated the principle that “contemporaneous recordation of observable events, ” as opposed to “documentation of past events, ” is not testimonial for purposes of the confrontation clause. (Id. at p. 605.)
As explained in Geier, “a statement is testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial. Conversely, a statement that does not meet all three criteria is not testimonial.” (Geier, supra, 41 Cal.4th at p. 605.) Based on that test for determining whether evidence is testimonial, Geier ruled that evidence and laboratory reports, even produced by the police with the intent that they will be used in a future prosecution, are not testimonial because they reflect the “contemporaneous recordation of observable events rather than the documentation of past events.” (Ibid.)
Additionally, Geier noted that “[r]ecords of laboratory protocols followed and the resulting raw data acquired are not accusatory. ‘Instead, they are neutral, having the power to exonerate as well as convict.’” (Id. at p. 607.) Thus, by its very nature, a report analyzing an item of evidence is not testimonial.
The DNA lab reports.
In the present case, the DNA lab reports were not testimonial hearsay. The reports were based on direct observation of test results, and the DNA analysts completed the laboratory notes and documentation in a timely fashion, thus “constitut[ing] a contemporaneous recordation of observable events rather than the documentation of past events.” (Geier, supra, 41 Cal.4th at p. 605.) We also note that a DNA analyst testified in detail about how the forensic analysis was conducted by others at her company, the quality control maintained, the procedures used, and her expert conclusions.
Thus, in contrast to the situation in Melendez-Diaz, supra, 129 S.Ct. 2527, where the prosecutor introduced affidavits without a witness to support them, here, appellant’s trial counsel was free to cross-examine the witness on DNA issues and did so extensively. We also note that admission of the DNA lab reports was consistent with the well established evidentiary principle that an expert witness “may base an opinion on reliable hearsay, including out-of-court declarations of other persons.” (In re Fields (1990) 51 Cal.3d 1063, 1070; see Geier, supra, 41 Cal.4th at p. 608, fn. 13; People v. Gardeley (1996) 14 Cal.4th 605, 618.)
Accordingly, the DNA evidence was not prohibited by Melendez-Diaz, supra, 129 S.Ct. 2527, and was properly admitted.
The cell tower site records.
Nor does Melendez-Diaz, supra, 129 S.Ct. 2527, prohibit admitting evidence of the cell tower site records of which appellant complains. The cell tower records did not involve, nor were they themselves, affidavits or other formalized testimonial materials. Rather, the 4, 000-page document listing the California cell tower site locations (from which a one-page document containing the cell tower locations related to Nguyen’s phone records was taken) were business records maintained by T-Mobile in the regular course of its business. In fact, the records were akin to evidence previously offered by appellant’s trial counsel, which he characterized as “official T-Mobile records” of subscriber information. To the extent cell tower site location records were “prepared in the regular course of equipment maintenance [they] may well qualify as nontestimonial records.” (Id. at p. 2532, fn. 1.) Even if the records were not prepared in the course of equipment maintenance or were not formally deemed a business record exception to the hearsay rule (see Evid. Code, § 1271), they were the official records of a business and not testimonial. (Crawford v. Washington, supra, 541 U.S. at p. 56.)
Accordingly, the cell tower site records were properly admitted.
Harmless error.
Even assuming the trial court erred in admitting evidence of DNA testing and cell tower site records, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see Melendez-Diaz, supra, 129 S.Ct. at p. 1242, fn. 14.) In the present case, the jury was specifically admonished that an expert witness’s “opinion is only as good as the facts and reasons on which it is based.” Appellant had an unrestricted opportunity at trial to question the experts presenting the evidence complained of. In cross-examining the DNA analyst, appellant thoroughly inquired into the circumstances of the collection of DNA and the adequacy of the DNA testing procedures. Similarly, appellant subjected the police detective’s explaining the cell tower site evidence to extensive cross-examination regarding his training, knowledge, and experience with T-Mobile cell site records and his analysis of those records.
Additionally, the evidence of appellant’s guilt was compelling, and abundant evidence contradicted his claim that he was in the backseat of the car while Johnnie Nguyen drove and Do purportedly sat in the front passenger seat. For example, a bystander who observed the car crash into a barrier near the freeway onramp testified that although he was not certain of who was driving, only two people fled from the car-one from the driver’s seat and the other from the front passenger seat.
Also establishing the absence of Johnnie Nguyen from the car, both Do and his girlfriend testified to that effect. Do testified that only he and appellant were in the car when they left the restaurant parking lot. Do’s girlfriend testified that Do drove off in her car with appellant, and that she and several others were in appellant’s car as Johnnie Nguyen drove them to a karaoke bar in Koreatown.
Accordingly, because (1) appellant’s defense was undermined by several witnesses as noted above, (2) the prosecution’s case was supported by substantial evidence, and (3) the witnesses presenting the DNA and cell tower evidence were subjected to cross-examination, any error regarding admission of that evidence was harmless beyond a reasonable doubt.
III. The trial court did not err in admitting evidence of appellant’s acknowledgment of his prior gang affiliation.
As in the present case, where no gang enhancement is alleged, “evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Evidence of a defendant’s gang affiliation “creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged.” (People v. Williams (1997) 16 Cal.4th 153, 193.)
Nonetheless, evidence of gang affiliation may be relevant to “help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (People v. Hernandez, supra, 33 Cal.4th at p. 1049 .) Because of the potentially inflammatory impact on the jury of gang-related evidence, the trial court must carefully scrutinize the evidence, even if it is relevant. (People v. Williams, supra, at p. 193.) The test of relevance is whether the evidence has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) The trial court has broad discretion in determining the relevance of gang of evidence. (See People v. Heard (2003) 31 Cal.4th 946, 973.)
Appellant contends the trial court erred in admitting irrelevant and inflammatory gang evidence, which purportedly denied him due process and a fair trial. Specifically, appellant argues that the evidence of his Chinatown Boys gang affiliation had minimal probative value that was outweighed by its potential to prejudice the jury. The evidence of his gang affiliation was revealed when the prosecutor presented testimony from an officer who had conducted a traffic stop of appellant in 1999, at which time he admitted he had been a member of the Chinatown Boys gang for five years.
Such limited gang evidence was relevant on the issue of the credibility of Do, the prosecution’s main witness and an accomplice who received leniency in exchange for his testimony which identified appellant as the shooter. During the trial, Do testified that Johnnie Nguyen called him at work and told him to pick up a gun from appellant’s house and to bring it to the Vanguard club for protection from the rival Black Dragon gang. Do and Nguyen were both members of the Chinatown Boys gang. Do first met appellant approximately a month earlier and met him through mutual friends who associated with the Chinatown Boys gang. Do acknowledged that he “knew” appellant “as a Chinatown Boy.” Do explained that the gun was for appellant, but that Do was supposed to wait outside with the gun in the event anything happened between appellant and a Black Dragon gang member.
Do further testified that appellant later told him they were going to the club for a security guard and not for the Black Dragon gang. Appellant explained to Do that appellant had an altercation with a security guard at the club who heard him shout the name Chinatown Boys near the bathroom, and who then had appellant removed from the club. Do offered to shoot the security guard on behalf of the gang. Appellant declined Do’s offer because Do did not know which security guard. Do also testified that he was initially untruthful to the police because he was afraid of gang retaliation.
Appellant moved to exclude any gang evidence unrelated to the testimony of Do and his girlfriend, specifically any evidence regarding appellant’s gang affiliation, urging it was more prejudicial than probative under Evidence Code section 352. The prosecutor argued that such evidence had become relevant and was admissible as rebuttal evidence based on appellant’s cross-examination of Do, wherein he had attacked Do’s credibility by having Do acknowledge he was unaware of any gang name for appellant and that appellant had no gang tattoos. The prosecutor reasoned that if the evidence was excluded, the defense could argue Do was not credible because there would be no corroborating evidence that appellant was affiliated with the Chinatown Boys gang. Defense counsel argued his cross-examination had not related to any gang affiliation, but had concerned establishing the closeness between Do and Nguyen.
Thereafter, the trial court held an Evidence Code section 402 hearing and heard testimony from the officer who had completed a field identification card related to appellant’s gang affiliation. The court ruled that it would exclude testimony related to the field identification because appellant had invoked his right to remain silent at the time the information was obtained. However, the prosecutor then presented trial testimony from another officer, who had conducted a traffic stop of appellant during which he admitted he had been a member of the Chinatown Boys gang for five years.
We find that the evidence of appellant’s gang affiliation was quite limited in scope and relevant to the issue of Do’s credibility because it corroborated Do’s testimony. The prosecution’s case was largely based on the testimony of Do, an admitted accomplice who had accepted a plea bargain and had obtained leniency for his participation in the crime, in exchange for his testimony that identified appellant as the shooter. Do’s testimony became even more significant as various eyewitnesses to the shooting and the events preceding it were unable to identify appellant and misidentified various people as participating or being present, when other evidence refuted those claims.
Accordingly, the trial court carefully scrutinized the issue of gang evidence and did not abuse its broad discretion in allowing limited police testimony of appellant’s admission of gang affiliation. Appellant sought to undermine Do’s credibility, and corroborating evidence of appellant’s gang affiliation was consistent with Do’s testimony and thus relevant to witness credibility. Nor did such evidence of gang affiliation deny appellant a fair trial or rise to the level of violating any due process rights. (See Estelle v. McGuire (1991) 502 U.S. 62, 67-68; People v. Steele (2002) 27 Cal.4th 1230, 1246.)
IV. The trial court properly denied appellant’s motion to dismiss for alleged violation of his speedy trial rights.
Appellant contends the court prejudicially erred in denying his motion to dismiss for violation of the statutory right to a speedy trial, because the court’s ruling was based on a finding of good cause to continue the codefendant’s case under section 1382, subdivision (a)(2)(B). Appellant does not argue that the court abused its discretion in finding former codefendant Do had demonstrated good cause, based on the prosecution’s late discovery, for a continuance under section 1050.1. Appellant’s sole argument is that the court erred in denying his motion to dismiss because joinder of codefendant Do’s case with his did not constitute good cause to continue appellant’s trial beyond the 10-day grace period under section 1382.
After appellant filed his opening brief in the present case, our Supreme Court addressed a similar issue in People v. Sutton (2010) 48 Cal.4th 533 (Sutton). In Sutton, the trial court found good cause to continue the trial of both of the jointly charged defendants, over their personal objections, because counsel for one of the defendants was engaged in trial on another matter. The defendants alleged that good cause did not exist to continue the trial beyond the statutory deadline, thereby violating their statutory speedy trial rights. (Id. at pp. 540-545.)
The Supreme Court in Sutton held that trial court acted within its discretion in finding good cause to continue a jointly charged codefendant’s trial because his counsel was unavailable due to engagement in another trial. (Id. at pp. 556-558.) Most significantly for appellant’s contention, the court further held that the substantial state interests served by proceeding in a single joint trial supported a finding of good cause, such that the engagement of codefendant’s counsel in another matter was good cause to continue the joint trial of both jointly charged defendants. (Id. at pp. 558-562.) We also note that the court in Sutton specifically disapproved of the holdings in two of the cases relied upon by appellant (i.e., People v. Escarcega (1986) 186 Cal.App.3d 379 & Arroyo v. Superior Court (2004) 119 Cal.App.4th 460), to the extent those cases wrongly held or suggested that the state interests served by a joint trial cannot constitute good cause to continue a codefendant’s trial beyond the statutory deadline. (Sutton, supra, at p. 546.)
Applying the principles in Sutton to the present case, it is apparent that the trial court properly exercised its discretion in finding good cause to continue the case under section 1050.1, because the substantial state interests served by proceeding with a single joint trial constituted sufficient good cause to continue the trial as to appellant. (Sutton, supra, 48 Cal.4th at pp. 558-562.) Whether the good cause for a continuance is late discovery, as here, or the unavailability of counsel in Sutton, the substantial state interests in a joint trial still prevail. Thus, appellant’s contention is unavailing.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.