Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super. Ct. Nos. RIF118007 & RIF125146, Roger A. Luebs, Judge.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Kristen Kinnaird Chenelia, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut, J.
All statutory references are to the Penal Code unless stated otherwise.
A jury convicted defendant of attempted premeditated murder and assault and found true the related allegations of using a knife and great bodily injury. (§§ 187/664, 245, 12022, subd. (b)(1), 12022.7, subd. (a).) Defendant admitted having a serious prior offense and a strike prior. (§§ 667, subds. (a), (c), & (e)(1), 1170.12, subd. (c)(1).) The court sentenced defendant to a total prison sentence of nine years plus 14 years to life.
Defendant appeals, objecting to the admission of photographs of his gang tattoos and claiming a violation of his Sixth Amendment right to effective assistance of counsel for failure to request an instruction on provocation. We reject both these contentions, as well as defendant’s further claim of cumulative error, and affirm the judgment.
2. Facts
The victim, Eduardo Hernandez, was visiting a friend, Blanca Torres. Her son, Jesus M., asked Hernandez to give him a ride to the hospital to take clothes to defendant, Jesus’s uncle. Hernandez and Jesus delivered the clothes to defendant and returned to the Torres residence before deciding to go to the swap meet. When defendant arrived at the house about 20 minutes later, he yelled at Jesus about money that was missing and Jesus began to cry. Celia, Blanca’s mother, stopped the argument by saying she had the money.
Defendant then argued briefly with Hernandez about whether Hernandez had installed an air conditioner improperly.
Defendant, Hernandez, and Jesus walked outside to Hernandez’s truck. Defendant offered to buy Hernandez a beer or a soda. Hernandez suggested they wait until after he and Jesus returned from the swap meet. Jesus went back to the house and Hernandez got in the driver’s seat. While waiting for Jesus to return, Hernandez chatted with defendant about the truck’s tinted windows.
When Hernandez fiddled with the car radio, defendant grabbed his neck and said, “You remember I told you I was going to kill you” and “I told you that you didn’t respect me.” Defendant pulled out a knife and Hernandez asked him to think about what he was doing. Defendant tried to stab Hernandez and Hernandez pushed himself out of the truck, propelling defendant backward.
The two men struggled. Defendant stabbed at Hernandez’s neck, armpit, and back. Hernandez pushed and hit back. Hernandez was treated for seven stab wounds and numerous lacerations, including a stab wound near the carotid artery.
Hernandez denied having provoked defendant. The prosecution speculated Hernandez may have said something disrespectful to defendant. The defense claimed Hernandez hit defendant first before defendant stabbed him.
3. Photographs of Tattoos
The defense sought to present photographs of defendant’s leg and upper torso to show he had sustained injuries in an attack by Hernandez. The prosecution wanted to counter those images with photographs of the uninjured parts of defendant’s body, including those with gang-related tattoos on them. The court refused to exclude the latter photographs. Two photographs showed defendant’s tattooed chest. A third photograph showed the word “Corona” on defendant’s back.
Defendant contends these photographs had no relevance to the issues in the case and only served to inject inflammatory evidence about defendant’s purported gang affiliation: “In cases not involving a section 186.22 gang enhancement, it has been recognized that ‘evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.]’ [Citations.] Even if gang evidence is relevant, it may have a highly inflammatory impact on the jury. Thus, ‘trial courts should carefully scrutinize such evidence before admitting it. [Citation.]’ [Citations.]
“A trial court’s admission of evidence, including gang testimony, is reviewed for abuse of discretion. [Citations.] The trial court’s ruling will not be disturbed in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. [Citation.]” (People v. Avitia (2005) 127 Cal.App.4th 185, 192-193; People v. Kipp (1998) 18 Cal.4th 349, 369, 371.)
In the present case, the trial court ruled the injuries or lack of injuries to defendant was a central issue and very material and relevant in the case: “I do think if they’re [sic] going to be photographs offered to display injuries and portions of his body, that it is appropriate that the jury get a more complete view of his physical condition. And the photographs designed to address that are relevant. And I don’t think they are particularly prejudicial to the defendant provided there is no comment as to the nature of these tattoos. And provided they’re [sic] not displayed for an unreasonable length of time.” The court allowed three photographs to be admitted. The prosecutor did not mention tattoos or gangs in her closing argument.
The admission of the photographs was not an abuse of discretion. The mere evidence of tattoos is not unduly prejudicial. In People v. Navarette (2003) 30 Cal.4th 458, 496, defendant asserted a photograph “incidentally depicting a tattoo on defendant’s arm, was unduly prejudicial because of negative societal attitudes about tattoos. The photograph in question was relevant to show that defendant had fresh scratches on his body when arrested shortly after the murders, and defendant points to nothing in the record suggesting that any member of the jury was biased against persons having tattoos. Accordingly, we reject the claim. [Citations.]”
Similarly, in the present case, because defendant tried to prove the victim was the aggressor, the three photographs were relevant to show defendant’s injuries were minimal. Although defendant argues on appeal that the foregoing was not relevant to the key issue of premeditation, we conclude it was relevant. If defendant’s injuries were slight, it lends more credence to the prosecution’s theory that the stabbing occurred first and was not provoked by a preliminary assault by the victim.
Furthermore, the photographs were used solely to illustrate the extent of defendant’s injuries. The photographs were not used to establish a gang connection and gangs and gang tattoos were not discussed during the trial. The increasing prevalence of tattoos among younger people also ameliorated any inflammatory effect.
Finally, we deem any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 838.) It is not disputed that defendant stabbed Hernandez and there was no evidence that Hernandez was the initial aggressor. It is not reasonably probable defendant would have achieved a more favorable outcome if the photographs had been excluded.
4. Instructional Error
A police officer testified that Hernandez told him that, before he got out of the truck, defendant had grabbed him by the neck while holding a knife. Hernandez and defendant pushed one another and Hernandez punched defendant. Although this second-hand account of the incident is somewhat imprecise in the details, it establishes that defendant was the initial aggressor when he grabbed Hernandez and threatened him with the knife.
The court gave the jury instructions based on CALJIC Nos. 8.41 and 8.42, which address the mitigating effect of provocation by “sudden quarrel or heat of passion.” Nevertheless, defendant argues defense counsel rendered ineffective assistance of counsel by not requesting a pinpoint instruction on provocation based on CALJIC No. 8.73: “If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation.”
A defendant demonstrates ineffective assistance of counsel when a lawyer’s performance does not meet an objective and reasonable professional standard. (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.) Defendant must also show the lawyer’s deficient performance caused prejudice in that it is reasonably probable there would have been a different outcome otherwise. (Id. at p. 746.) Defendant here cannot establish either element.
First, there was no substantial evidence of provocation. As discussed above, the evidence supported only that defendant was the initial aggressor. Based on this record, the trial court should not have given the pinpoint instruction. (People v. Ward (2005) 36 Cal.4th 186, 214, 215.) Furthermore, the other instructions adequately addressed the issue of premeditation and deliberation as it was affected by evidence of “sudden quarrel or heat of passion.” (See People v. Steele (2002) 27 Cal.4th 1230, 1251.) CALJIC No. 8.73 would have added nothing to the other instructions. In any case, there was no evidence of provocation that it was reasonably probable could have affected the jury’s verdict.
5. Disposition
Defendant threatened Hernandez with a knife and then stabbed him when he responded. In the absence of any prejudicial error, we reject defendant’s final claim of cumulative error and affirm the judgment. (People v. Beeler (1995) 9 Cal.4th 953, 994.)
We concur: Hollenhorst, Acting P. J., Miller, J.