Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA070902. Tomson T. Ong, Judge.
Neil Rosenbaum, under appointment by the Court of Appeal, 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 Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Cesario Vasquez was sentenced to 25 years to life for the first degree murder of 15-year-old Brian Cruz (Brian), plus 25 years to life for a firearms discharge enhancement (Pen. Code, § 12022.53, subd. (d)), plus 10 years for a criminal street gang enhancement (§ 186.22, subd. (b)(1) (section 186.22(b)(1)). He contends that (1) there was insufficient evidence of premeditation and deliberation, (2) there was insufficient evidence for the section 186.22(b)(1) finding, (3) the trial court committed reversible error when it refused to allow testimony by the defense gang expert, (4) the trial court gave an erroneous instruction on the failure of the defense to timely disclose evidence, (5) there was no evidence to support some of the self-defense instructions that were given, (6) the prosecutor committed prejudicial misconduct during final argument, (7) his conviction must be reversed due to cumulative error, and (8) the additional 10 years that was imposed for the gang enhancement must be stricken.
All statutory references are to the Penal Code unless otherwise stated.
Appellant and respondent agree that the 10-year enhancement should be stricken, and we do not further discuss it.
We conclude that there is substantial evidence for the first degree murder conviction and the gang enhancement, but find that the cumulative effect of several errors requires reversal for further proceedings.
FACTS
We summarize the testimony in detail, as the different versions of what happened just before the shooting are important to the issues in this case. There was no dispute, however, that (1) appellant was in the front passenger seat of the Honda car driven by Carlos Z.; (2) Ignacio A. was in the back seat behind appellant; (3) the front windows, but not the back windows were open; (4) there were two other men in the back seat, Carlos’s brother, Cesar Z., and Efrain D.; (5) after Ignacio displayed the Graffiti Artists hand sign from the back seat, Brian, the victim, yelled something at the Honda and made a gesture with his hands; (6) Brian walked over to the Honda quickly and leaned against it, next to where appellant was sitting; (7) appellant pulled out a loaded gun and shot Brian in the face; and (8) appellant fled that same day to Mexico. There were evidentiary conflicts over whether (1) Brian yelled the name of the Rancho San Pedro gang and made that gang’s hand sign before he ran to the Honda, (2) Brian actually leaned into the Honda, (3) Brian was joined at the Honda by one or more of his companions, and (4) Brian or one of his companions punched appellant and/or poked him with a sharp object before appellant fired the gun.
For clarity, and meaning no disrespect, we use first names in referring to the people who were present during the confrontation, as some of them have the same last names.
1. Prosecution Evidence
Around 11:00 p.m. on July 8, 2006, Brian met with a small group of people at the Hooters Restaurant in Long Beach to celebrate his first day of work at a pizza establishment. In addition to Brian, the group consisted of Brian’s older sister Debbie C., his cousin Jesus L., his cousin Damion O., and a friend named Jose V. Debbie, Jesus, and Jose testified at the trial.
The other members of the group drank beer, but Brian did not, as he was too young. The group left the restaurant shortly after midnight, so that the older members could drop Brian off and proceed to a bar. The sidewalk was crowded with people, and cars were lined up on the street. The group walked along the sidewalk of Pine Avenue toward Ocean Boulevard. There were slight discrepancies about their position, but it appears that Brian walked “a little ahead of” the others, as some members of the group discussed the various cars they saw.
The small Honda that held appellant and his four companions drove near Brian and his group.
Jesus, who was in Brian’s group, testified that the man in the Honda’s rear passenger seat, later identified as Ignacio, started “throwing up gang signs” and “screaming” something unintelligible. Brian responded by yelling something Jesus could not hear and throwing his hands up “above his shoulder area, in an open position, palms open.” Brian then started “walking fast” toward the Honda, with nothing in his hands.
Jose, also in Brian’s group, testified that he was in front of the group when he heard Brian say, “What’s up? What’s up?” Jose turned around and saw Brian and Damion standing next to the front passenger’s window of the Honda. On cross-examination, Jose added that “people might think” Damion was a gang member, as Damion had a “bald shaved head.”
Debbie, Brian’s sister, testified that she heard someone yell something and then heard Brian say, “What?” Debbie saw Brian throw up his hands in a gesture that involved “hands open [and] palms facing each other.” Brian said “stuff” to the people in the car, and they said “stuff” back to him. There was so much noise in the area that Debbie did not hear the words.
Jesus and Debbie then saw Brian walk up to the open front passenger window of the Honda, next to appellant’s seat. Brian said more “stuff” to the people in the Honda. His hands were empty. Jesus saw Brian’s hands “gripped around the door like someone trying to lean in,” but Jesus was “not sure” if Brian actually reached inside. Debbie testified that Brian “lean[ed] against” but not into the Honda.
Within “[a] few seconds” of when Brian walked up to the Honda, Debbie and Jesus rushed over to Brian and tried to grab him. They touched his shirt and shoulder. Jesus saw appellant “turn[] his body and his head left and lean[] back toward the driver[,] moving as if he was going to be hit.” Appellant pulled out a revolver from his waistband and fired once. Brian fell to the ground, mortally wounded. Damion ran to Brian and held him. The Honda sped away.
Numerous police officers were in the area. When officers stopped the Honda a few blocks away, appellant was missing from the front passenger seat. The other occupants of the Honda were arrested. Appellant was taken into custody in Tijuana later that day, after officers followed his brother to the border. About 24 hours after the shooting, appellant was interviewed in Long Beach by Detective Malcolm Evans. Evans did not see scratches or bruises on appellant’s face. Appellant showed Evans a mark above the nipple on the right side of his chest, another mark on his right arm, and one on the right bicep area. There also were two small tears in appellant’s shirt, one of which was in the chest area.
The autopsy showed that Brian died from a single gunshot wound. The bullet entered near his chin and traveled from “right to left, front to back, and downward.” He was five feet four inches tall and weighed 108 pounds. The revolver that fired the bullet was found in a trash can near where the Honda was stopped. Its chamber held one unexpended bullet and one empty bullet casing.
At the trial, Jesus testified that Brian did not belong to a gang. Debbie explained that Brian appeared in a photo, defense exhibit B, making a hand sign, but that was the hand sign flashed by members of Debbie’s coeducational softball team and supporters of the team when they wanted “to get everybody excited.” Brian was making a sign that involved the numbers two and zero because the team was named the “Two-0 Block,” as some of its members came from 20th Street in San Pedro. Damion and Jesus were also on the team.
The People called Ignacio, who was inside the Honda, as a prosecution witness. His version of important facts differed from the testimony of Debbie, Jesus, and Jose.
Ignacio testified that he belonged to a group called “Graffiti Artists,” but appellant did not belong to that group. Ignacio identified himself as “a tagger,” not “a gangster.” Earlier on the night of the shooting, he went to a party with appellant and their companions. They then drove around on Pine Avenue, “just having fun[,] looking for girls.” Appellant’s window was down. Ignacio, who was in the back seat behind appellant, had his window up. A boy on the sidewalk yelled “Rancho San Pedro” and displayed the hand sign of that gang. He wore “thuggish,” too-large clothes, and looked at Ignacio as if “he wanted problems.” Ignacio responded by displaying the hand sign of Graffiti Artists. The boy’s companions included a “bald,” tattooed man in a white tank top, and another man. The man in the tank top ran to the car and punched appellant many times. The boy and the other man also ran to the car and reached their hands inside. Appellant moved sideways and yelled that he was “getting stabbed.” A shot rang out, and the car pulled away.
Ignacio further testified that he was frightened when the detectives interviewed him following his arrest, so he did not tell them appellant said he was being stabbed. He added that, on a later date, he was assaulted by a group of people who said they were members of Rancho San Pedro.
The tape of Ignacio’s police interview after his arrest was played for the jury. During the interview, he said the group in the Honda went to a party and then drove on Pine Avenue. A boy “who was maybe Rancho” said to them, “[W]hat the f--- [are] you guys looking at?” Ignacio looked at the boy and “threw up” the sign of Graffiti Artists. The boy responded by “talking trash.” An “older guy with a tank top” came up to the Honda and asked its occupants where they were “from.” The boy and the man in the tank top said they were from “Rancho San Pedro.” One of them started hitting appellant “a lot.” Appellant pulled out a gun and fired it. Ignacio had not known that appellant had a gun with him.
Detective Hector Gutierrez testified as the People’s gang expert. He explained that gang members earn respect by committing violent crimes. The Graffiti Artists was formed in 2002 or 2003 “as a tagging crew,” but the group later “evolved into a full[-]on gang.” “[A] tagging crew is kids who will go out and... put up graffiti on walls. They are into drawing and spray painting. A gang will go out and commit crimes for the benefit of their gang. They will do violent crimes like assault, robberies, murder, things like that.” Gutierrez had investigated three or four crimes in which Graffiti Artists were either suspects or victims. In his opinion, the gang’s “primary activities” were “murder, robberies, assault with [a] deadly weapon, [and] a lot of vandalism.”
Besides this case, Detective Gutierrez knew of one other violent crime by Graffiti Artists. On December 8, 2005, a member of the gang named Theo Johnson and several other men committed an assault and robbery on a lone man. Committing a violent crime like that would enhance the gang’s reputation. A copy of Johnson’s conviction for that robbery was introduced into evidence.
Detective Gutierrez had spoken with the investigating officer and reviewed the reports in this case. In his opinion, appellant was a member of “the Graffiti Artists gang.” He based that opinion partly on the booking information, which indicated that appellant belonged to that gang and used the moniker “Looney.” Gutierrez also relied on the facts that appellant displayed the gang’s hand sign in a photo, People’s exhibit 12, and other detectives had told Gutierrez that Efrain was an admitted member of that gang. In Gutierrez’s opinion, appellant shot Brian for the benefit of the Graffiti Artists gang, whether or not Brian displayed the gang sign of or belonged to Rancho San Pedro, as gang members commit violent crimes to acquire increased respect for themselves and their gang, and committing a crime like this on a crowded street would lead to increased respect.
Detective Evans testified that appellant told him he was “a former member of Graffiti Artists” who “used to go by the moniker of Looney.”
On cross-examination, Detective Gutierrez said that this was the only case he knew of in which a member of Graffiti Artists used a gun. Johnson’s robbery conviction was the only conviction of a member of that gang for a violent crime, but its members had been convicted of vandalism, also called “tagging.” In his opinion, even if Brian reached into the car and tried to stab appellant, and appellant fired in the belief he had to protect his life, the gun was still fired to benefit Graffiti Artists. He added that, in retaliation for Johnson’s robbery and assault on the lone man, Johnson was the victim of an assault with a deadly weapon, which was committed by members of a gang from Long Beach. One of Johnson’s companions, either Ricardo Guerrero or Edgar Luanza, was shot and killed during that attack.
2. Defense Evidence
Carlos, the driver of the Honda, was called as a defense witness. Carlos testified that he himself was not a member of Graffiti Artists, and he did not know if appellant was, but Ignacio belonged to Graffiti Artists. After the party, they were “cruising around” on Pine Avenue, “looking at girls.” They chatted with some girls they saw. Carlos then observed “some guys walking down the street.” One of them, a Hispanic male in a blue hat, yelled “Rancho San Pedro” and made a gesture with his fingers. The person in the hat, another person who wore a white shirt and had very short hair, and possibly a third person ran up to the car. The person with the short hair said, “What, what, what,” put his hands inside the car, and hit appellant more than once. The person in the baseball hat came up to the car, put his hands inside, and also punched appellant. Appellant yelled at them to stop. He leaned toward Carlos and said he was being stabbed. Carlos put his hand on appellant’s chest to protect it, and “felt a sharp object pierce [his] skin,” which made him realize that appellant really was being stabbed. A gunshot was fired, and Carlos drove away.
Appellant testified in his own behalf. He said he formerly belonged to Graffiti Artists but was no longer a member at the time of the shooting. He was driving around with his companions, “looking at girls.” He heard the word “Rancho” and saw two or three “guys” approach the car quickly. Appellant thought the people approaching the car belonged to Rancho San Pedro. They put their hands inside the car through the open window and attacked him. He feared for his life. He leaned toward Carlos. He felt a puncture wound on his shirt. He pulled out the gun to avoid being stabbed. Fearing for his life, he pulled the trigger once. Afterwards, he ran from the car and fled to Mexico, as he feared the police would not believe him. He had the gun with him because his friend Edgar had been shot and killed by gang members, and he himself had been shot at in front of his house. People harassed him when he went out, for no reason. He bought the gun two or three months earlier, and carried it with him, loaded, on days when he “had a bad feeling.”
The next defense witness, Whitney M., was a bystander who testified that she was with friends on the sidewalk that night. They talked to the “nice” boys in the Honda and arranged to meet them at a nearby club. When Whitney and her friends started to walk away, three Hispanic boys who were walking down the street tried to talk to them. Then, the three boys “started running” toward the Honda. One of them, who was at the front passenger door, “dug in his pocket” and “started swinging in the car.” His hands were inside the car, and he was hitting the person in the front seat. The people who were with him also put their hands in the car. Whitney and her friends started running and then heard a gunshot.
On cross-examination, Whitney added that she used to go to school with Carlos, the driver of the Honda. She did not hear the three boys on the sidewalk say anything to the people in the Honda before they ran to it.
3. Prosecution Rebuttal Testimony
When appellant was interviewed he said the first person who approached the Honda wore a gray shirt and was “[b]ald[,] with just a little hair.” He did not mention that the person wore a cap.
The jury heard the tape of Carlos’s interview with Detective Evans. Carlos said appellant “used to hang out with” members of Graffiti Artists. The group in the Honda went to a party and then drove on Pine Avenue. They talked with three women about going to a nightclub. Then, “some guys yelling Rancho San Pedro” came up to them. One of them wore a blue hat and displayed the sign for that gang. The other one, who wore a plain white T-shirt, was “bald,” skinny, and tall. The person in the hat came up to the car, said “what” three times, and started “socking” appellant in the face. Appellant told Carlos he thought the person had a knife. Carlos did not see a knife, but he felt “a little poke” on his hand, although neither he nor Detective Evans saw a mark on that hand during the interview. Appellant leaned toward Carlos, took a gun from his waistband, and fired a shot. Appellant had owned a gun since his friend Edgar was shot, but Carlos did not know appellant had the gun with him that night. Carlos drove away, appellant got out, and the police stopped the Honda.
DISCUSSION
1. Sufficiency of the Evidence
Appellant contends that there was insufficient evidence for the findings of (a) premeditation and deliberation and (b) the criminal street gang allegation.
A. Sufficiency of the Evidence of Premeditation and Deliberation
Appellant was convicted of first degree murder, rather than second degree murder, based on a jury finding that the murder was committed with premeditation and deliberation. He contends that there was no substantial evidence of premeditation and deliberation. We find that there was substantial evidence from which a reasonable jury could find those elements of first degree murder.
Premeditation and deliberation can occur in a brief interval. The test is not the amount of time, but the amount of reflection. “A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder of the first degree.” (CALJIC No. 8.20; see also People v. Memro (1995) 11 Cal.4th 786, 862-863.)
“‘“Generally, there are three categories of evidence that are sufficient to sustain a premeditated and deliberate murder: evidence of planning, motive, and method. [Citations.] When evidence of all three categories is not present, ‘[reviewing courts have required] either very strong evidence of planning, or some evidence of motive in conjunction with planning or a deliberate manner of killing.’ [Citation.] But these categories of evidence, borrowed from People v. Anderson (1968) 70 Cal.2d 15, 26-27... ‘are descriptive, not normative.’ [Citation.] They are simply an ‘aid [for] reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.’ [Citation.]”’” (People v. Prince (2007) 40 Cal.4th 1179, 1253, quoting People v. Elliot (2005) 37 Cal.4th 453, 470-471.)
Under the established rules of review, when we assess the sufficiency of the evidence, we view the evidence in the light most favorable to the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053; see also People v. Sales (2004) 116 Cal.App.4th 741, 746.) That means we view the facts to be that Brian did not identify himself in any way as a member of Rancho San Pedro. He responded to Ignacio’s Graffiti Artists hand sign by making a gesture with his hands that was not a gang sign, and then yelling back and forth with the people in the Honda. He then approached the Honda, stood at its open window, leaned against it, and continued to argue with its occupants. Appellant pulled out the loaded gun from his waistband, pointed it, and fired, shooting Brian in the face. Appellant belonged to the Graffiti Artists gang, which had evolved from a “tagging crew” into a street gang that committed violent crimes. Committing a violent crime like shooting Brian on a crowded street would enhance the reputation of appellant and the gang, thereby benefiting the gang.
The above facts were sufficient to justify a finding by a reasonable trier of fact that appellant went out with his companions that night, carrying a loaded gun, with the intention of committing a shooting that would enhance the gang’s reputation. The carrying of a loaded gun was a form of planning activity. There was evidence of premeditation through the manner of killing, as appellant took the time to point the gun at Brian’s face before he shot it. There was evidence of motive, as it would increase the reputation of the Graffiti Artists gang if one of its members committed a crime like that in a crowded area. We therefore find sufficient evidence of premeditation and deliberation.
B. Sufficiency of the Evidence for the Section 186.22(b)(1) Finding
The jury found that appellant committed the murder for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members.
Appellant contends that the evidence did not meet some of the requisite elements for that enhancement, as set forth in section 186.22, subdivisions (b)(1), (e), and (f). We disagree.
With certain exceptions, section 186.22(b)(1) provides for the punishment of “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members....”
Section 186.22, subdivision (f) defines the term “criminal street gang” as an “ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more [listed offenses], having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”
For the purpose of this case, section 186.22, subdivision (e) defines the term “pattern of criminal gang activity” as “the commission of, [or] attempted commission of, two or more of the [listed] offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.” The list of offenses, sometimes called predicate offenses, includes “(2) Robbery,... [¶] (3) Unlawful homicide or manslaughter, [and] [¶]... [¶] (20) Felony vandalism, as defined in paragraph (1) of subdivision (b) of Section 594.”
Appellant contends there was insufficient evidence that it was a “primary activity” of Graffiti Artists to commit one of the predicate offenses, that the members of Graffiti Artists engaged in a “pattern of criminal activity,” that he was a member of Graffiti Artists at the time of the crime, that he shot Brian “for the benefit of” Graffiti Artists, or that he had the requisite specific intent. We reject those contentions based on People v. Gardeley (1996) 14 Cal.4th 605, 615 (Gardeley).
In Gardeley, the defendants were admitted gang members who severely beat up the victim, in an area where the gang sold drugs. Specifically, the defendants approached the victim; shoved him; asked him, “What are you doing here, white boy?”; pushed him; punched him; hit him on the head; pursued him when he tried to flee; knocked him to the ground; repeatedly punched and kicked him; hit his thighs and rib cage with a bat or stick; broke a large rock into pieces on his head; and took his money and jewelry. (Gardeley, supra, 14 Cal.4th at pp. 610-611.) The police gang expert testified that the crime resulted from gang-related activity, as “criminal street gangs rely on such violent assaults to frighten the residents of an area where the gang members sell drugs, thereby securing the gang’s drug-dealing stronghold.” (Id. at p. 619.) Gardeley found that the jury could reasonably conclude from that expert testimony that the attack on the victim was committed “‘for the benefit of, at the direction of, or in association with’ that gang, and ‘with the specific intent to promote, further, or assist in... criminal conduct by gang members....’” (Ibid.)
The expert in Gardeley also testified that the gang’s primary activity was selling narcotics, but the gang also engaged in witness intimidation. As both of those crimes were in the list of predicate offenses, Gardeley found sufficient evidence that the gang’s primary activities met section 186.22, subdivision (f)’s definition of a “criminal street gang.” (Gardeley, supra, 14 Cal.4th at p. 620.)
Gardeley then considered whether the prosecution had proven the requisite “pattern of criminal gang activity” that is required by section 186.22, subdivision (e). (Gardeley, supra, 14 Cal.4th at p. 624.) There was evidence that another member of the gang had previously committed a predicate offense, shooting at an inhabited dwelling, within the pertinent period. The evidence in the current crime provided the second statutorily required predicate offense, as it showed that the defendants had committed two predicate offenses, assault with a deadly weapon and attempted murder.
Detective Gutierrez’s testimony in this case resembles that of the gang expert in Gardeley. Gutierrez testified that Graffiti Artists began as a tagging crew and later evolved into a criminal street gang whose members were willing to commit violent crimes for the benefit of the gang. According to Gutierrez, the gang’s primary activities were “murder, robberies, assault with [a] deadly weapon, [and] a lot of vandalism.” More detailed questioning showed that Gutierrez exaggerated the prior violent crimes by Graffiti Artists, as, in addition to the homicide in this case, its members had committed a single violent crime, the robbery by Theo Johnson and his companions in December 2005. Gutierrez also testified that members of the gang had been convicted of vandalism, normally called “tagging,” and Johnson and a gang member named Edgar Luanza had been the victims of an attack by members of another gang. In Gutierrez’s opinion, appellant was a member of Graffiti Artists who shot Brian to benefit the gang, as commission of a violent crime on a crowded street would lead to increased respect for appellant and the gang.
The predicate offenses in section 186.22, subdivision (e) include robbery, unlawful homicide, and felony vandalism. Appellant emphasizes that Detective Gutierrez did not specify whether the prior acts of vandalism by Graffiti Artists were felonies or misdemeanors. We find that the nature of the vandalism does not matter, as the combination of Detective Gutierrez’s testimony, Johnson’s conviction for robbery, and appellant’s commission of the current homicide showed the requisite predicate offenses for section 186.22, subdivision (e) under Gardeley, supra, 14 Cal.4th at page 625.
Appellant also argues that the current crime does not qualify as a predicate offense because he was no longer a member of Graffiti Artists when he killed Brian. We reject that argument because there was conflicting evidence regarding appellant’s current membership, and we must resolve that evidentiary conflict in favor of the judgment.
Appellant further argues that there was insufficient evidence that he shot Brian “in association with” or “for the benefit of” Graffiti Artists. That argument lacks merit, in light of the specific testimony by Detective Gutierrez that the crime was committed to benefit that gang.
Finally, appellant maintains that there was insufficient evidence that he committed the crime “with the specific intent to promote, further, or assist in any criminal conduct by gang members,” as required by section 186.22(b)(1). He focuses on his own testimony that he fired the gun to protect himself from physical harm from Brian. Viewing the evidence in favor of the judgment, we find sufficient evidence of that intent through the combination of (a) the witnesses who testified that Brian’s hands were empty when he stood next to the car, (b) the fact appellant was carrying a loaded gun, and (c) the expert evidence that it would benefit appellant’s gang to commit a shooting on a crowded street. (See Gardeley, supra, 14 Cal.4th at p. 619 [gang expert’s testimony justified reasonable conclusion that the crime was committed with the requisite specific intent].)
2. Exclusion of Testimony by the Defense Gang Expert
There is merit in appellant’s contention that the trial court erred in excluding the testimony of the defense gang expert, Dr. James Shaw.
A. The Discussions of and Ruling on the Defense Gang Expert
Early in the trial, defense counsel, Mr. Seymour Amster, said he wanted to ask Brian’s friend Jose about the picture of Brian making a hand sign, as that issue would come up with the defense gang expert. The trial court said, “You keep talking about a gang expert. How is the character of the victim relevant in this case?” Defense counsel explained that he would show that Brian acted in a manner consistent with a trait of violence. The defense theory was that someone who was approached by a gang member had a right to resort to violence faster, in self-defense, than someone who was approached by a person who was not a gang member. There would be evidence that Brian said he was a member of the Rancho San Pedro gang. The defense expert would testify that Brian’s approach to the car was consistent with the violent behavior of gang members. The court decided they needed to ask the gang expert if the sign Brian was making in the photo was “a gang symbol or [a] peace sign.”
The discussion of the issue resumed before Brian’s sister Debbie testified. The prosecutor said Debbie would explain that the hand sign that Brian was making in the photo, defense exhibit B, was the hand sign of her softball team, “The Two-0 Block.” The family had brought along plaques and a T-shirt of that team. Defense counsel had no objection. Debbie’s ensuing testimony included the anticipated testimony about the hand sign.
The defense filed a detailed motion on the admissibility of its gang expert.
At the hearing on the motion, defense counsel explained that Dr. Shaw would give his opinion that Brian was a Rancho San Pedro gang member. That testimony was relevant because it verified statements by Ignacio, Carlos, and appellant that Brian identified himself as a member of that gang. That verification would support two inferences: (1) that Brian approached the car to cause injury or murder, as a gang member would be expected to react with violence when he saw Ignacio’s gang challenge; and (2) appellant acted out of fear for his life, because he knew the violent behavior of members of that gang. The trial court believed it made no difference whether Brian belonged to that gang, as appellant had no right to use a gun in response to a knife attack. Defense counsel responded that the People had presented a gang expert and, “[t]o keep these scales balanced,” the defense was entitled to present its own gang expert, to show what appellant could reasonably believe when a member of Rancho San Pedro approached the car. The prosecutor said there was no evidence that Brian was a member of Rancho San Pedro, and the opinion of a “book-smart Ph.D.” was not relevant. The court decided that, even though it had appointed Dr. Shaw as a gang expert for the defense, it needed to hear from him at an Evidence Code section 402 hearing, “to determine his extent of knowledge of Rancho San Pedro.”
The Evidence Code section 402 hearing began with the court’s questioning of Dr. Shaw. Shaw indicated that he had a master’s degree from the University of Southern California, where he studied at the Delinquency Control Institute. He also had a Ph.D. in education. He based his doctoral dissertation on his interviews with over 100 youths who were incarcerated for homicide crimes. He had done a qualitative study on the Rancho San Pedro gang, had read about that gang, and had received information about it from other people. He had not done field research on it, had not interviewed any of its members, did not recall that the leader of the Mexican Mafia came from it, and had not visited its boundaries. He believed that both Brian and Brian’s cousin Jesus were members of it.
The court asked Dr. Shaw what other gangs in the San Pedro area were “at war with or in [the] neighboring jurisdiction” of Rancho San Pedro. Shaw named “Dodge City” and “Young Crowd.” He did not know the origin of Young Crowd or whether that gang was “a spinoff of Rancho San Pedro” that was friendly with Rancho San Pedro. He did not know the exact location of Dodge City, but it would not surprise him if it was located in a particular area the court mentioned, which he had not visited. He did not know the ethnic composition of Dodge City, but it would not surprise him if it was a Crips or Black gang.
Defense counsel then questioned Dr. Shaw. Shaw said he was named as a gang expert on the court-appointed panel of the Los Angeles Superior Court. He had done training for or with the Department of Justice, the Norwalk Sheriff’s Department, the Multiagency Task Force Against Gangs, the Los Angeles Sheriff’s Department’s Youth Leadership Academy, the Gang Awareness Project, and the Gang Risk Intervention Program. He taught daily in the high school gang program at the school of the Los Padrinos Juvenile Court. He had 11 to 17 students in his class, most of whom were members of Hispanic gangs. He had previously heard of the Hispanic gang known as Rancho San Pedro. To prepare for this case, he had reviewed the expert testimony of Officer Charles Blomeley in a criminal case that involved two members of that gang. He knew it was a Hispanic criminal street gang that had been around since 1950, used a particular hand sign, and was involved in various crimes. In his opinion, a gang member who believed he was flashed a gang sign by another gang member would have reactions that were “[m]arkedly different” from the reactions of a civilian. If someone identified himself as a member of Rancho San Pedro, “[h]e would be inviting trouble.” If a person saw a gang sign flashed from a car, responded “Rancho San Pedro,” displayed a gesture with hands extended in the air, walked to the front passenger window, and said hostile words, that behavior would be “consistent with gang behavior,” because the gang member would believe he had to confront and react violently to the gang challenge he saw. The gang member would also believe he had to create fear in the rival gang member he was approaching, so he might arm himself and try to harm that person. Gang members are more likely to be carrying weapons than the civilian population, and they are “getting younger all the time,” so it did not matter that Brian was 15 years old. In Shaw’s opinion, if the members of a baseball team flashed a hand sign when they scored a run or were victorious, that was “gang activity,” as the hand sign was used to publicly display that the team was superior to the other team. Shaw believed that, in the photo, defense’s exhibit B, Brian was “definitely flashing a gang sign.”
The prosecutor then questioned Dr. Shaw. Shaw explained that in defense exhibit B, Brian appeared to be making the sign of two fingers and a zero, which would signify the 20th Street clique of Rancho San Pedro. Shaw had not spoken with Officer Blomeley about Rancho San Pedro, and “the bulk” of his knowledge about that gang came from reading Blomeley’s testimony. He had not met Brian, discussed Brian with officers of the Harbor Division, or attempted to locate field identification cards that might identify Brian as a gang member.
The court then heard argument from counsel. The prosecutor argued that the pertinent inquiry under Evidence Code section 1103 was Brian’s character for violence, as shown by specific acts of violence, rather than aggression by the gang as a whole. Dr. Shaw could not say whether or not Brian was a member of that group, and even if he was, not all gang members engage in aggressive behavior. Moreover, all Shaw knew about that specific gang was what he had read in a transcript. Defense counsel replied that experts routinely rely on hearsay, the prosecution gang expert had relied on hearsay, and Shaw did not need specific knowledge about the Rancho San Pedro gang in order to testify about the usual reaction of gang members when they see a gang sign flashed. The jury could determine the weight of the evidence, but appellant was entitled to show that Brian acted in conformity with the behavior of a Rancho San Pedro gang member, which would justify appellant’s belief that he had to resort to violence when Brian confronted him.
After further discussion, the trial court made this ruling:
“[T]he defense is entitled to offer the conduct of the victim in conformity of the character and traits thereto. However, not through Dr. Shaw. I’m excluding him, and I’ll explain to you why. [¶] He’s an expert in gang[s]. He does not [have] sufficient expertise in Hispanic gangs let alone Rancho San Pedro and let alone Brian Cruz in his character traits. To allow him to make that inferential leap that Brian Cruz’s conduct is the same as a gang member, any gang member, let alone Hispanic gang or Rancho San Pedro gang, in logic we call that a hasty generalization or slippery slope. I’m not inclined to go there. [¶] Under Evidence Code section 352, and Mr. Seymour Amster has protected his appellate rights, his client’s appellate rights should this be reviewed, the court exercises discretion and find[s] that the probability of its admission will create a substantial danger of confusion of the issue and misleading of the jury because of the slippery slope logic behind it and probative value is minimal at best. [¶] I’m the one that appointed Dr. Shaw to assist the defense, but insofar as his testimony specifically as to the [Evidence Code section] 1103[, subdivision] (a) evidence as to Brian Cruz, to get from Brian Cruz to gang in general would have to leapfrog Hispanic gangs and Rancho San Pedro gang members and what they do, and I don’t know which clique Brian Cruz [is from]. Based thereon, you would have to inferentially leap through two different stages, and I think that’s a slippery slope and hasty generalization. That is the ruling of the court.”
Defense counsel asked if he could say during closing argument that Brian was a gang member. The court responded that defense counsel could make that argument, but Dr. Shaw could not testify, as he was not qualified as an expert.
B. Analysis
A trial court has wide discretion to admit or exclude expert testimony, and its discretion will not be interfered with on appeal unless a clear abuse of discretion is shown. (People v. Valdez (1997) 58 Cal.App.4th 494, 506.)
The trial court ruled both that Dr. Shaw was not qualified as an expert and that his testimony was inadmissible under Evidence Code section 352, as Shaw had insufficient knowledge about one specific gang, Rancho San Pedro.
Appellant’s argument below was based partly on Evidence Code section 1103, which permits a criminal defendant to present character evidence about a crime victim “to prove conduct of the victim in conformity with the character or trait of character.” On appeal, he bases his argument not on Evidence Code section 1103 but on his right to have his gang expert testify about the customary behavior of gang members in response to an adversary’s hand sign.
“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” (Washington v. Texas (1967) 388 U.S. 14, 19; see also Crane v. Kentucky (1986) 476 U.S. 683, 690.)
“‘[T]rial judges in criminal cases should give a defendant the benefit of any reasonable doubt when passing on the admissibility of evidence as well as in determining its weight.’” (People v. Wright (1985) 39 Cal.3d 576, 584-585 (Wright), quoting People v. Murphy (1963) 59 Cal.2d 818, 829.)
“California law permits a person with ‘special knowledge, skill, experience, training, or education’ in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ (Id., subd. (a).) The subject matter of the culture and habits of criminal street gangs, of particular relevance here, meets this criterion. [Citations.]” (Gardeley, supra, 14 Cal.4th at p. 617, italics added.)
An expert may base his opinion on matter “personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Evid. Code, § 801.) In other words, the expert “may rely on statements made by and information received from other persons.” (Cal. Law Revision Com. com., 29B Pt. 3A West’s Ann. Evid. Code (2009 ed.) foll. § 801, p. 25.) Gang experts have testified on such subjects as “the size, composition or existence of a gang [citations], gang turf or territory [citations], an individual defendant’s membership in, or association with, a gang [citations], the primary activities of a specific gang [citations], motivation for a particular crime, generally retaliation or intimidation [citations], whether and how a crime was committed to benefit or promote a gang [citations], rivalries between gangs [citations], gang-related tattoos, gang graffiti and hand signs [citations], and gang colors or attire [citations].” (People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657.) A gang expert may not testify, however, “that a specific individual had specific knowledge or possessed a specific intent,” as that is “an improper opinion on the ultimate issue.” (Id. at p. 658.)
In accordance with Gardeley, supra, 14 Cal.4th 605, and related cases, the People’s gang expert here described the custom and habits of gangs, to establish that appellant’s behavior met the requirements for the section 186.22(b)(1) allegation. The defense sought to show, through the testimony of Dr. Shaw, that the violent behavior by Brian that was described by appellant, Carlos, Ignacio, and Whitney, was also consistent with typical gang behavior. Shaw’s testimony would have supported the defense theory that appellant acted in self-defense or in an unreasonable belief in the need for self-defense. Shaw was on the panel of gang experts, had been appointed as a gang expert by the trial court, worked routinely with members of Hispanic gangs at a juvenile court school, and had done research on gang members who had committed homicides. The court created an extra, unjustified requirement, specific expertise in Rancho San Pedro, including interviews with its members and visits to its territory. At most, those points went to the weight of Shaw’s testimony, and not to his qualifications. In light of his considerable expertise in the behavior of Hispanic gang members, Shaw could utilize other sources of information and did not need personal experience with Rancho San Pedro, in order to testify about how Hispanic gang members customarily behave. (Evid. Code, § 801, subd. (b); see also Gardeley, at pp. 618-619 [expert’s opinion can be based on inadmissible hearsay].)
Another pertinent case is the one on which appellant relied below, Wright, supra, 39 Cal.3d at pages 582-585. The court there held that the trial court should not have excluded the testimony of two defense experts who would have said the victim had heroin in his system within 24 hours of his death, as that testimony would have corroborated the defendant’s claim that he shot in self-defense, and would have impeached the testimony of the victim’s wife and the prosecution’s expert witness regarding when the victim last used heroin. Similarly here, the jury heard Detective Gutierrez’s opinion that appellant was a gang member, but it did not hear Dr. Shaw’s opinion that Brian was also a gang member. Moreover, there was conflicting evidence about whether Brian leaned into the Honda, punched appellant, and had a weapon. Shaw’s testimony about the typical behavior of gang members in response to a gang challenge would have supported the credibility of the witnesses who indicated that Brian physically attacked appellant when he approached the Honda. Whether Shaw’s testimony was believed was a matter for the jury. Exclusion of that testimony altogether constituted an abuse of discretion.
We postpone analyzing prejudice while we discuss the other issues in this case.
3. The Instruction on Late Discovery
Appellant contends the trial court committed prejudicial error when it gave CALJIC No. 2.28 as a sanction for the belated discovery of the witness Whitney.
A. The Record
Shortly after 10:00 a.m. on August 7, 2007, the prosecutor and defense counsel told the court that there was a new defense witness, Whitney. Discussion of the issue was postponed until the People rested. When that event happened that afternoon, the court asked defense counsel why Whitney was not on the witness list. Defense counsel said he had only learned at 7:00 or 7:30 that morning that Whitney would be testifying, and he had given that information to the prosecutor as soon as he saw her that morning. He explained that his investigator had been unsuccessfully trying to contact a witness named Shawntell. There was a statement from Shawntell in a police report, indicating that she and her friend Whitney were present on the night of the shooting. The only details about Whitney in the report were that she was a Black female with a specified birthday. There had been insufficient information for locating Whitney, and the defense had been unable to find Shawntell at her address. Using his own initiative, the defense investigator had just located Whitney.
The court decided that it would not exclude Whitney’s testimony, but it would consider an instruction about late discovery, as it was an unfair surprise that the People had not heard about Whitney until that morning.
When the instructions were later discussed, defense counsel objected that neither he nor appellant had done anything wrong, so the modified version of CALJIC No. 2.28 the prosecutor had drafted was inappropriate. Defense counsel had more information about how the defense investigator found Whitney, and the investigator was waiting outside the courtroom. Defense counsel explained that around 5:00 p.m. on Monday, August 6, the investigator was “staking out” Shawntell’s residence when, by “pure luck,” Whitney came to visit that location. The investigator interviewed Whitney and served her with a subpoena. Defense counsel retrieved the message about that interview at 7:00 the following morning and disclosed the information to the prosecutor as soon as he saw her.
The trial court ruled that it would give CALJIC No. 2.28 and would not permit defense counsel to explain to the jury why Whitney had not previously been named as a witness. Defense counsel would be permitted only to argue to the jury that appellant should not be blamed for the conduct of his attorney.
The modified version of CALJIC No. 2.28 that was given stated:
“The prosecution and the defense are required to disclose to each other before trial the evidence each intends to present at trial so as to promote the ascertainment of the truth, save court time and avoid any surprise which may arise during the course of the trial. Concealment of evidence or delay in the disclosure of evidence may deny a party a sufficient opportunity to subpoena necessary witnesses or produce evidence which may exist to rebut the non complying party’s evidence. [¶] Disclosures of evidence are required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of trial must be disclosed immediately. In this case, the Defendant Cesario Vasquez concealed or failed to timely disclose the following evidence: the anticipated testimony of witness Whitney M[.] was disclosed to the People by the Defendant on Tuesday, August 7, 2007, at around 9:45 a.m. [¶] Although the Defendant’s concealment or failure to timely disclose evidence was without lawful justification, the Court has, under the law, permitted the production of this evidence during the trial. [¶] If you find that the concealment or delayed disclosure was by the defendant Cesario Vasquez personally, or was authorized by, or done at the direction and control of the defendant, and relates to a fact of importance, rather than something trivial, and does not relate to subject matter already established by other credible evidence, you may consider concealment or delayed disclosure as evidence tending to show the defendant’s consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.” (Italics added.)
During his final argument, defense counsel referred to “an instruction about late discovery,” and asked the jury not to blame appellant if counsel personally had done something wrong, as counsel was “the one in charge of discovery.” Defense counsel’s summary of the evidence included Whitney’s testimony that the person who approached the car reached into a pocket and then put his hand into the car. The prosecutor responded by arguing that Whitney was a friend of Carlos’s and her version of events differed from the other evidence, so there was reason to question whether she was even present that night. The prosecutor’s argument did not refer, however, either directly to CALJIC No. 2.28 or to its substance.
B. Analysis
The instruction should not have been given because the defense did nothing wrong, but by chance located a critical witness who could not previously be found. Even though appellant personally had nothing to do with the belated finding of Whitney, the instruction told the jury that “the Defendant Cesario Vasquez concealed or failed to timely disclose” Whitney’s testimony until around 9:45 that morning, “without lawful justification,” which could be used to show his consciousness of guilt.
In People v. Lawson (2005) 131 Cal.App.4th 1242, this court reversed the defendant’s conviction because the trial court initially prohibited testimony by a defense witness, and then gave CALJIC No. 2.28 in a form similar to the instruction here, without mentioning how the jury was to use the instruction.In Lawson, we concluded that the instruction should not havebeen given because the People had actually known about the witness all along. We recognized in Lawson that CALJIC No. 2.28 is a “problematic” instruction that has been “roundly criticized” in such cases as People v. Cabral (2004) 121 Cal.App.4th 748, People v. Saucedo (2004) 121 Cal.App.4th 937, and People v. Bell (2004) 118 Cal.App.4th 249. (Lawson, at pp. 1247-1248.) “With rare exception, CALJIC No. 2.28 should not be given without providing the jury some guidance as to how it should consider the discovery violation.... At the very least, [that guidance] should include a warning that the jury cannot infer a consciousness of guilt from the discovery violation.” (Id. at p. 1248.) Here, the jury was expressly told that it could make exactly that improper inference. The trial court also refused to allow the jury to hear the reason for the late discovery, which left the impression that there was something suspicious about Whitney, compared to the other witnesses in the case.
CALJIC No. 2.28 has been replaced by CALCRIM No. 306, which gives the jurors more guidance on how it may consider the instruction. It provides, in pertinent part: “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the (People/defense) failed to disclose: _________ [within the legal time period]. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure. [¶] [However, the fact that the defendant’s attorney failed to disclose evidence [within the legal time period] is not evidence that the defendant committed a crime.]”
We again defer the consideration of prejudice until the end of our opinion.
4. The Disputed Self-defense Instructions
It was the People’s theory that appellant was riding with his fellow gang members in the Honda, Ignacio threw out a gang sign, Brian argued with the people in the Honda, Brian walked up to the open front passenger window and continued the argument, and appellant suddenly pulled out a loaded gun and shot Brian. It was the defense theory that appellant did not know that Ignacio had displayed a gang sign, and appellant shot Brian out of justifiable self-defense, after Brian yelled out the name of his gang, approached the car, reached inside, punched appellant, and stabbed him with a sharp object. Defense counsel also argued, alternatively, that the appropriate verdict was voluntary manslaughter, if the jurors found that appellant shot Brian out of an unreasonable belief in the need for self-defense or from a sudden quarrel or heat of passion.
The trial court gave numerous instructions on self-defense. Appellant contends the trial court should have deleted the third paragraph of CALJIC No. 5.17 and should not have given CALJIC Nos. 5.54, 5.55, and 5.56, as those instructions lacked evidentiary support. (People v. Hannon (1977) 19 Cal.3d 588, 597-598.) Those contentions also have merit.
CALJIC No. 5.17 explains that an actual but unreasonable belief in the need for self-defense is voluntary manslaughter. Appellant argues that the third paragraph, which is italicized below, should have been deleted, as there was no evidence that “his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force or attack.” He maintains there was no evidence that he knew Ignacio flashed the gang sign from the back seat or that he himself had any communication with Brian before Brian approached the Honda. But even if appellant yelled something at Brian from the Honda’s open window, or even if appellant knew Ignacio flashed the gang sign, there was no “unlawful or wrongful conduct” by appellant that would justify Brian’s physically attacking him, assuming the jury believed Brian made such an attack. There was therefore no basis in the evidence for the third paragraph of CALJIC No. 5.17.
CALJIC No. 5.17 stated: “A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary manslaughter. [¶] As used in this instruction, an ‘imminent’ peril or danger means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer. [¶] However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force or attack.” (Italics added.)
Appellant also argues that there was no evidentiary basis for giving (1) CALJIC No. 5.54, which states that the right of self-defense is only available to the person who initiates an assault if he refuses to continue fighting and communicates that desire; (2) CALJIC No. 5.55, which states that the “right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense”; and (3) CALJIC No. 5.56, which sets forth the applicable rules of self-defense for participants in mutual combat. The trial court gave those three instructions, over defense objection, after the prosecutor argued they contained issues the jury would decide, as there was evidence that appellant “and his group [were] the aggressor by verbally attacking or... instigating the incident....” We do not see how words yelled from the Honda or Ignacio’s throwing of the gang sign could have made appellant the aggressor. The three instructions should not have been given.
CALJIC No. 5.54 states in pertinent part: “The right of self-defense is only available to a person who initiated an assault, if [¶] 1. He has done all the following: [¶] A. He has actually tried, in good faith, to refuse to continue fighting; [¶] B. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he wants to stop fighting; and [¶] C. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he has stopped fighting. [¶] After he has done these three things, he has the right to self-defense if his opponent continues to fight, or if the victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense.”
CALJIC No. 5.56 states in pertinent part: “The right of self-defense is only available to a person who engages in mutual combat: [¶] 1. If he has done all the following: [¶] A. He has actually tried, in good faith, to refuse to continue fighting; [¶] B. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he wants to stop fighting; and [¶] C. He has caused by words or conduct his opponent to be aware, as a reasonable person, that he has stopped fighting; and [¶] D. He has given his opponent the opportunity to stop fighting. [¶] After he has done these four things, he has the right to self-defense if his opponent continues to fight, or if the other party to the mutual combat responds in a sudden and deadly counterassault, that is, force that is excessive under the circumstance, the party victimized by the sudden excessive force need not attempt to withdraw and may use reasonably necessary force in self-defense.”
We assume the jury followed CALJIC No. 17.31, which advised the jury to disregard any instructions that applied to facts that did not exist. Standing alone, it is unlikely that the errors in the self-defense instructions would be prejudicial, but we will consider them in conjunction with the other errors in this case.
5. The Final Argument
During her closing argument, the prosecutor stated that if the tears in appellant’s shirt had been caused by a knife, there would have been more than “three little pinpricks” on appellant’s body. She continued:
“I stumbled on this one yesterday by my own clumsiness and ineptitude. And I swear it was not intentional. My pinprick. I poked myself with one of the pushpins. Couldn’t get it to stop bleeding.”
Defense counsel immediately objected, “I don’t think that’s evidence.” The objection was overruled. This was clearly an erroneous ruling, as the prosecutor’s argument amounted to testimony about an important issue in the case, namely whether appellant was stabbed. (See, e.g., People v. Kirkes (1952) 39 Cal.2d 719, 724.) Although the trial court admonished the jury that the argument of counsel was not evidence, further damage was done when the prosecutor immediately continued: “So much so that I got blood all over my charts. I got blood all over a Kleenex. Open this shirt [referring to appellant’s shirt] and look at it, open it up. You will be amazed at what you see or what you don’t see.”
The trial court’s ruling paved the way for additional impermissible argument by the prosecutor. Contrary to respondent’s argument, this issue was not waived, as defense counsel interposed a timely objection. Although the objection was not expressly made on the ground of prosecutorial misconduct, the objection that the prosecutor was arguing facts not in evidence fairly alerted the trial court to the point, and any further objection would have been futile. We will consider the court’s ruling on this subject when we discuss the question of the prejudice from the combination of errors in this case.
6. Prejudice
We have held in the preceding discussion that the trial court erred in (1) excluding the testimony of the defense gang expert, (2) giving CALJIC No. 2.28 regarding the belated discovery of the witness Whitney, (3) giving several self-defense instructions that lacked evidentiary support, and (4) allowing the prosecutor to discuss her personal “pinprick.”
Appellant testified that he fired the gun after he heard somebody yell “Rancho,” two or three men approached the car quickly, the men reached inside the car and attacked him, and he felt a puncture wound that made him believe he was being stabbed. We know the jury did not reject appellant’s testimony out of hand, as it requested a transcript of it during deliberations. His testimony was supported by some of the witnesses and contradicted by others. It was confirmed in part by tangible evidence. The evidence permitted a variety of verdicts, depending on what facts the jury found true.
Respondent argues that the jury’s finding of first degree murder shows that it rejected appellant’s attempt to put Brian in the role of the aggressor. However, the jury did not hear all of appellant’s evidence on that point, as Dr. Shaw was not permitted to testify. Moreover, the evidence of the bystander Whitney, which corroborated appellant’s version in important respects, was greatly weakened by the giving of CALJIC No. 2.28.
Respondent also emphasizes the standard instructions the jury received, which included advisements to base the facts on the evidence, to consider the instructions as a whole, to disregard any instruction which applied to facts that were found not to exist, and not to conclude that the court was expressing an opinion because it gave an instruction. None of those general instructions likely had the impact of the strong, specific language in CALJIC No. 2.28, which indicated that appellant personally had concealed or failed to disclose evidence until the morning of August 7, 2007, and that concealment or failure to disclose could be used to show his consciousness of guilt. Moreover, the giving of the unnecessary instructions on self-defense further confused the important self-defense issues in this case. These problems were compounded by improper argument by the prosecutor.
We are convinced that the cumulative effect of the errors here requires reversal for retrial under the standard of People v. Watson (1956) 46 Cal.2d 818, 836, as it is reasonably probable that, but for the trial court’s errors, appellant would have achieved a more favorable result at trial.
DISPOSITION
The judgment is reversed.
We concur: RUBIN, ACTING P. J., BAUER, J.
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to section VI, article 6 of the California Constitution.