People
v.
Garza

This case is not covered by Casetext's citator
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIASep 11, 2018
D073723 (Cal. Ct. App. Sep. 11, 2018)

D073723

09-11-2018

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ALEX GARZA, Defendant and Appellant.

Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FVA1301203) APPEAL from a judgment of the Superior Court of San Bernardino County, Gerard S. Brown, Judge. Affirmed. Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

Defendant Joseph Alex Garza appeals from a conviction after a jury found him guilty of voluntary manslaughter. Garza shot the victim, a member of a rival gang, after Garza spotted the victim and some friends walking down Garza's street, toward his residence.

On appeal, Garza raises two claims. First, he challenges the trial court's admission of the testimony of a gang expert who was called by the prosecutor during the prosecution's case-in-chief. Garza contends that the trial court abused its discretion in permitting the prosecutor to present the testimony of a gang expert because there was no gang offense charged and no gang enhancement alleged. He asserts that the gang expert's testimony was cumulative and unduly prejudicial, and therefore, should have been excluded.

Second, Garza requests that this court conduct an independent review of the in camera Pitchess hearing held by the trial court to determine whether the court properly denied his motion for discovery with respect to a police detective's personnel files.

Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

We conclude that Garza's appellate contentions do not entitle him to relief, and we affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

On July 7, 2013, N. Peralta, G. Orta, D. Perez, and Reyes Prieto were at Peralta's home in Fontana when they decided to go purchase cigars and chips from a nearby liquor store. Peralta was a member of the East Side Fontana (ESF) gang.

The men decided to walk to a store that was farther from Peralta's home than another nearby store, because the cigar that they were looking for was sold for less than what it was being sold for at the nearby store. The men took an indirect path to the store, which led them into an area known as Walnut Village.

At around the same time, a different group of four men—J. Wrenn, N. Summers, D. Alvarez, and Garza—were driving home after a pick-up game of basketball. This second group of men drove by the first group of men. Garza recognized the first group of men as residents of the "East Side," which caused Garza to become "riled up."

Later testimony by a gang expert revealed that Garza, Summers, and Alvarez were affiliated with a different gang, Another Latin Crew or ALC, at the time of the shooting.

Alvarez dropped Garza off at Garza's home on Fern Street and went to park the vehicle. As Alvarez was parking, the "East Siders" were walking down the street, in the direction of Garza's residence, but on the opposite side of the street.

As this was happening, Garza ran into his house and returned with a rifle.

Orta, who was a member of the first group, noticed a man smoking a cigarette in the driveway of a house. Orta approached the man, identified at trial as K.L., whom Orta did not know, and asked for a cigarette. K.L. refused. At trial, K.L. testified that he heard someone shout, "[H]ey," and then heard a popping sound. After a moment, K.L. realized that the sound that he had heard was gunfire, and he ducked behind a car in the driveway. Orta testified that he heard someone say, " 'Where you from,' " spoken in anger, and then heard gunfire. Orta and his friends scattered.

Wrenn testified that he saw Garza come out of his house and into the front yard, holding a rifle. Wrenn saw Garza raise the rifle, point it at the group across the street, and angrily ask, " 'Where you from, fool[?]' " Prieto and Peralta responded, " 'East Side.' " According to Wrenn, Garza almost immediately aimed the gun, and Wrenn heard gunfire.

Prieto was struck by at least two bullets. He escaped to a nearby garage, where he collapsed and became unresponsive. Peralta had followed Prieto, but continued to run through the house that was attached to the garage where Prieto collapsed, and into the backyard, where he climbed on top of a back wall until the shooting stopped. When he returned to the garage, he asked a resident to call 911, and waited there with Prieto.

Prieto was treated at the scene but died from a bullet wound that perforated a blood vessel in his abdomen.

Police investigating the shooting found .22 caliber Super X bullet casings in a flower bed, in the driveway, and in the yard of Garza's home. Police found the same type of ammunition inside the residence. A crime scene investigator performed a bullet trajectory analysis based on bullet holes found in a vehicle near where K.L. had been standing and concluded that the shooter had likely fired from Garza's front yard.

Peralta was interviewed by police. He denied that he and his group had been armed. He also denied knowing anyone on Fern Street, and denied "beefing with anyone." Later, however, Peralta admitted that ALC was "involved" and that ALC and ESF were "having a beef." He also acknowledged knowing that Garza and Alvarez lived on Fern Street. Peralta testified at trial that he did not know who shot Prieto. He also denied having hidden a gun in a field behind the house where Prieto collapsed. Peralta explained that he had run through "[t]he front of the house, garage, ran through the black [sic], hop[ped] on the wall," and then "stayed on the wall" in the backyard of the house because he did not want to get shot. However, shortly after defense counsel began to cross-examine Peralta about his recorded interviews with police, Peralta refused to answer any questions. The trial court held him in contempt for refusing to answer the questions, and remanded him into custody. Peralta continued to refuse to answer questions for the remainder of the trial, even after he was returned to the courtroom several times and provided an opportunity to testify.

Approximately two and a half weeks after the shooting, Garza was approached by law enforcement officers, and he fled. When interviewed after his apprehension, Garza at one point claimed that he had not been in Fontana at the time of the shooting.

Officer Casey Kirkland testified for the prosecution as a gang expert. Kirkland explained to the jury that gangs will often establish certain locations as their territory, and that gang members are expected to "put in work for their gang," which means committing, among other things, certain crimes such as assaults, shootings, and stabbings. Gangs control their territories through fear and intimidation, and by marking the area with graffiti.

We provide a brief summary of Officer Kirkland's testimony here, and provide a more detailed description in the discussion section of this opinion.

Kirkland also explained that gang members typically do not report crime to law enforcement, and instead choose to settle their differences between themselves. Gang members use "gang-banging" or "banging" in order to determine whether another individual is a friend or a member of a rival gang. The most common example of "banging" that Kirkland hears during investigations is a gang member asking another individual, " 'Where you from.' " This is considered a "[v]ery hostile" gesture. If the person responding "want[s] to go by [his or her] gang culture, [he or she] ha[s] to respond back [with] what neighborhood [he or she is] from, regardless of where [the person is], regardless of if [the person is] prepared for it, [he or she has] to still say it, especially when [that person is] with other members." Kirkland explained that it is "important for a gang member" to "bang back" (i.e., state his or her neighborhood in response to a question about his or her status) because "[i]t's part of [his or her] duties" to the gang.

Kirkland testified that ALC and ESF were both violent criminal street gangs with territory in Fontana. Their territories overlapped. Around the time of the shooting in this case, they were in conflict with one another. According to Kirkland, Peralta and Prieto were associated with ESF, while Summers, Alvarez, and Garza were affiliated with ALC. Kirkland explained that if an ALC member "banged" on a rival gang member who then claimed his or her own gang, the ALC member would be expected to respond in some violent way toward that individual.

1. The defense case

Summers testified for the defense. On July 7, 2013, Garza, Summers, Wrenn and Alvarez drove back to Walnut Village after playing basketball in a park. Garza and Alvarez lived in Walnut Village. On their way to Garza's house, Summers noticed an unfamiliar group of men dressed in gang attire walking in the neighborhood. According to Summers, Garza and Alvarez seemed fearful. Garza had Alvarez drop him off in front of Garza's house.

Garza had been involved in conflicts with members of ESF before. A few months prior to this shooting, he was confronted by an ESF member at a Walmart. On another occasion, he had fought with, and been threatened by, an ESF member.

According to Summers, the guys "dressed like gangsters" were walking in the street toward Garza's house. Summers heard someone ask " '[w]here you from' " and then heard gunfire. Summers was not sure who had asked the question, or who had fired the gun. Summers testified, however, that "[i]n the middle of them representing where they were from, it looked like somebody kind of reached for their waistband."

Summers testified that he had agreed to be questioned by Detective Kevin Goltara after Goltara threatened Summers with a murder charge. Summers stated that he was sure that he had told Goltara that he had seen someone from the ESF group reaching for his waistband.

Goltara had testified that Summers had told Goltara that he thought he had seen a member of the ESF group reach for his waistband and believed that someone may have been shooting at his group.

Fontana Police Officer Shannon Vanderkallen testified that at the time of trial, the gang rivalry between ESF and ALC was the most heated gang rivalry in Fontana. He opined that a gang member would be concerned if he saw rival gang members approaching his house.

Fontana Police Officer Buddy Porch testified that Peralta had admitted that he and Prieto were ESF gang members. Another Fontana Police Officer, Samuel Ferguson, testified that ESF's primary activities were murder, attempted murder, and assault with firearms. Ferguson has known ESF members to conceal firearms in order to thwart police investigation into their activities.

The defense called its own gang expert, Gregorio Estevane, a private investigator. Estevane testified about the links between gangs that exist inside of prison and those that exist outside. He provided information regarding the Surenos gang, which is controlled by the Mexican Mafia, and the Nortenos gang, which is controlled by Nuestra Familia. ESF is a criminal street gang associated with the Mexican Mafia. Estevane opined that there was a strong possibility that Prieto was being recruited or mentored by one of the leaders of ESF. According to Estevane, ALC had refused to "clique up" with ESF. This would have been a sign of disrespect and may have provided ESF with a reason to seek retribution against ALC. B. Procedural background

The San Bernardino County District Attorney charged Garza with murder (Pen. Code, § 187, subd. (a)(1)), and further alleged that Garza personally discharged a firearm causing death (§ 12022.53, subd. (d)).

Further statutory references are to the Penal Code unless otherwise indicated.

A jury acquitted Garza of murder, but found him guilty of the lesser included offense of voluntary manslaughter. The jury found true the enhancement allegation that Garza personally discharged a firearm.

The trial court sentenced Garza to 16 years in prison, which includes a term of 6 years for the manslaughter conviction, plus an additional 10 years for the firearm enhancement.

Garza filed a timely notice of appeal.

III.

DISCUSSION

A. The trial court did not err in admitting much of the gang expert testimony, despite the absence of substantive gang charges; to the extent that the court erroneously permitted the prosecutor to elicit testimony that violated the court's earlier order excluding testimony regarding certain matters, the error was not prejudicial

1. Additional background

In a pretrial motion filed with the court, the prosecution sought to admit gang expert testimony in order "to provide testimony of the culture and habits of gangs to assist the jury in evaluating a witness's testimony." (Capitalization omitted.) During in limine motions, the defense sought to preclude the prosecution from presenting the testimony of a gang expert in the prosecution's case-in-chief.

The prosecutor argued that the gang expert's testimony would be relevant to help the jury understand gang psychology and sociology, including issues regarding being a witness or cooperating with law enforcement in matters involving gangs, the idea of "snitching within the gang culture," the particularized meaning of " 'Where you from,' " the purpose of gang graffiti and the existence of gang territories, as well as the significance of reputation in a gang and how gang members demonstrate loyalty or respect. The prosecutor pointed out that it appeared that these issues were matters "that the defense will try to introduce to make their defense from what has been discussed in jury selection." The prosecutor offered that with respect to "all these areas [it] would be helpful to the jury to understand . . . what is beyond the experience of a common person."

The prosecutor was apparently anticipating that the defense would argue that Garza acted in self-defense and would present evidence regarding the gang affiliation of the victim and others in his group.

The trial court ruled that a gang expert would be permitted to testify, subject to the possible exclusion of certain subjects pursuant to Evidence Code section 352. Defense counsel raised additional arguments at that point, noting that courts have made clear that "gang evidence is prejudicial," and arguing that without a gang allegation, "there's no relevance." The court ultimately ruled that the prosecution would be permitted to call a gang expert, and that the court and the attorneys "c[ould] go into the specifics" of areas of testimony to be excluded at the time the gang expert testified.

The court conducted an Evidence Code section 402 hearing regarding the expert's testimony. At the conclusion of the hearing, the court indicated that it was inclined to allow some testimony pertaining to gangs during the prosecution's case-in-chief. The court tentatively ruled that information relating to the Mexican Mafia, drug sales, and taxation would not be admissible. However, the court stated that it would allow the gang expert to testify as to "basic descriptions about ALC and East Side Fontana," the territories of those gangs, and the feud between them. In addition, the expert would be permitted to describe gang graffiti, to explain what it means to "put[ ] work in for the gangs," and also to explain "signs and symbols and particular hand signs . . . as well as 'Where are you from' and gang challenge[s]." The court further concluded that it would allow the gang expert to testify regarding witness and victim "[w]illingness or unwillingness to cooperate with law enforcement."

The court stated that it would not allow the gang expert to testify that either gang was a "186.22 criminal street gang or what their major or main crimes are, enumerated crimes under 186.22," because, the court stated, "under [Evidence Code section] 352, I don't think that's appropriate." The court did ultimately tell the attorneys, however, that there was "nothing final" about what the court was saying, and that the court's preliminary ruling was instead "what[ ] my initial tentative reactions are, having heard testimony as to what the scope of his testimony should be."

During the prosecution's case-in-chief, but prior to the prosecutor calling the gang expert, defense counsel again registered an objection to the prosecutor calling a gang expert in the People's case-in-chief. Defense counsel contended that he did not "understand the purpose of Officer Kirkland's testimony" given that "[t]here's no gang allegation." The court responded that the attorneys and the court had spent a lot of time "go[ing] through this already," and that the court had "made numerous rulings" and "both sides said, [']we all agree with you, Your Honor.['] " Defense counsel then argued that what Kirkland would offer would be merely "duplicative testimony that we already heard."

The prosecutor responded that there had been no expert testimony regarding ALC and gang culture. Defense counsel reiterated that he did not believe that the gang information was relevant "without a gang allegation." The court concluded, "I do believe that in order for the jury to properly understand this case, they need to have some testimony about gangs . . . ."

When the prosecutor called Officer Kirkland to testify, defense counsel again objected to "any gang expert coming -- expert testimony coming in since this is not a gang allegation case." The court overruled the objection, stating, "Well, I already made all my rulings on that. You made your record on that, so we don't need to revisit that one."

Officer Kirkland explained that gang members "bang" on strangers by asking them where they are from. "Banging" is considered a hostile act, and if a person "bangs" on a member of a rival gang, some type of retaliation is likely to occur. Responding to "banging" is part of a gang member's duties, and the failure to respond is considered to be a display of weakness.

Officer Kirkland testified that he was "familiar with" ALC because he had "dealt with that gang over the years" and it was "one of our more violent gangs in the city of Fontana." Defense counsel objected to this characterization, and the court directed Kirkland not to give his "opinion about that kind of thing at this point." Kirkland was then asked about his knowledge of ESF and whether he knew that ESF had engaged in acts of violence. Kirkland testified that ESF had approximately 20 to 30 members at the time of the shooting. He explained the boundaries of the gang's territory, as well as some of the history of the gang, including the fact that ESF "had beefs" with ALC and other gangs around the time of the shooting.

Kirkland testified that Peralta and Prieto had been affiliated with ESF at the time of the shooting. However, he had not seen any evidence that would lead him to conclude that Perez or Orta were, or had been, members of that gang.

Kirkland then began providing similar information regarding ALC. According to Kirkland, ALC had around 20 to 30 members at the time of the shooting. Kirkland described ALC's territory, and explained the history of ALC, including that it got its start as a "party crew" in the 1990's, which meant that the members would "go to parties, they would drink, hang out." Kirkland continued, "[B]ut then it started to escalate since then with assaults, shootings, stabbings."

No objection was made at this point. --------

According to Kirkland, at the time of the shooting, ALC was "rivaling with" ESF, among others.

Kirkland was asked to identify individuals in a photograph. He verified that the photograph depicted a number of ALC members, and that the individuals were wearing ALC gang paraphernalia and were displaying gang signs consistent with ALC. Garza was one of the individuals in the photograph. Kirkland testified that Garza, Summers, and Alvarez were affiliated with ALC at the time of the shooting.

Kirkland also testified that in 2012, a member of another of ALC's rival gangs, DSW, had challenged Summers by asking him where he was from. When Summers responded that he was affiliated with ALC, the DSW member shot and killed Summers's female companion.

Kirkland opined that if an ALC member encountered an ESF member in ALC's territory, the ALC member would be expected to take "some type of action." At a minimum, the ALC member would be expected to "confront" the ESF member, which could involve asking, " 'Where you from[?]' " Kirkland also testified that if an ESF member was "challenged with 'where you from,' " the ESF member would "have to respond," because otherwise he or she would be "looked at as a coward." From there, the confrontation could escalate to an assault or a fight, and a weapon might be used.

2. Legal standards

We review the trial court's evidentiary rulings for an abuse of discretion. (See, e.g., People v. Guerra (2006) 37 Cal.4th 1067, 1113 [abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence].)

A proper exercise of discretion is " 'neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Exercises of discretion must be " 'grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.' " (Ibid.)

"Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative. [Citations.] A properly qualified gang expert may, where appropriate, testify to a wide variety of matters, including gang graffiti. [Citations.]" (People v. Avitia (2005) 127 Cal.App.4th 185, 192 (Avitia).) However, gang evidence may not be admitted "if introduced only to 'show a defendant's criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.]' [Citations.]" (Ibid.)

"In cases not involving [a] gang enhancement, . . . evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.] But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]" (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)

However, "even where gang membership is relevant, because it may have a highly inflammatory impact on the jury, trial courts should carefully scrutinize such evidence before admitting it." (People v. Williams (1997) 16 Cal.4th 153, 193 (Williams).)

3. Analysis

Garza contends that because he was not facing gang charges or a gang enhancement, and because the gang expert's testimony was otherwise "irrelevant," the court abused its discretion in admitting the testimony. According to Garza, the gang expert's testimony was "cumulative." He argues that "Peralta, Wrenn, Snyder, and Goltara all testified to various general aspects of gang culture and to the specifics of the instant case," which meant that there was no need for the gang expert's testimony.

We disagree with Garza's view of the evidence and the relevance of the gang expert's testimony, and conclude that the trial court's ruling, setting forth which topics it would allow the prosecution's gang expert to testify to, including topics related to general background regarding the two gangs at issue here, as well as understanding gang territories and gang psychology and sociological matters, did not constitute an abuse of discretion.

It is beyond dispute that California courts have approved of the admission of gang evidence in cases in which no gang enhancement is alleged. (See People v. Carter (2003) 30 Cal.4th 1166, 1194 [court's admission of gang expert testimony regarding state of relations between differing gangs, as well as gangs' territories, significance of phrases used by gang members, and testimony that entry by gang member into rivals' territory would not have been mistaken, was not an abuse of discretion; evidence was relevant to show identity, motive and intent of the shooter]; Williams, supra, 16 Cal.4th at p. 193 [admitted gang evidence was relevant to demonstrate motive and identity]; see also People v. Gonzalez (2012) 210 Cal.App.4th 724, 737-738 [admission of gang evidence was not an abuse of discretion because it was probative of defendant's motive for shooting at victim].)

The gang evidence that the trial court allowed the gang expert to offer, including evidence regarding the gangs' territories, signs and symbols, language, clothing, rivalries, and their beliefs and practices, was probative of motive and intent in this case. At a minimum, the gang expert's testimony helped to explain how and why this incident, in which a group of men were simply walking down the street, escalated so quickly into a shooting. The evidence as to the territories of the two gangs at issue, as well as their rivalry, was particularly probative of these issues. Also, evidence regarding the specialized meaning of one gang member asking a stranger where he is from, and the meaning of a gang member's response, was more probative than prejudicial.

Garza contends that even if some of the gang evidence was relevant, it was cumulative of other gang evidence that was presented by other witnesses, and as such, the probative value of the gang expert's testimony was significantly outweighed by its prejudicial effect. We disagree. Although there was some testimony from other witnesses that touched on the rivalry between ALC and ESF, the gang expert's testimony provided an overview of the two gangs and their histories in broader gang culture, and provided additional background regarding the importance of territory and, importantly, the significance of respect and representing one's gang when confronted by a member of a rival gang. The gang expert's testimony was also particularly helpful in assisting the jury to understand why so many of the percipient witnesses were reluctant to testify. Peralta repeatedly refused to answer any questions, despite ultimately being held in contempt of court for his refusal. Wrenn also expressed reluctance to testify, stating, "I don't want to be testifying here" and "I don't want to be cooperating with the judge or the police . . . ." The gang expert was able to explain that the consequences of "snitch[ing]" in gang culture could impact a person for his entire life.

The gang-related evidence was clearly relevant to and probative of Garza's intent, which he had not conceded at trial, distinguishing this case from the principal case on which Garza relies, Avitia, supra, 127 Cal.App.4th 185. Avitia involved charges of illegally discharging a firearm and possession of an assault weapon; no gang enhancements were alleged. (Id. at p. 193.) The trial court permitted the prosecutor to present evidence regarding several posters involving gang graffiti that were found at the defendant's house. (Ibid.) The appellate court concluded that the defendant's conviction for illegally discharging a firearm had to be reversed because the admission of that gang-related evidence was improper and prejudicial. The defendant had offered to stipulate to the only issue that the evidence of the gang graffiti was introduced to establish—i.e., that certain guns in question, which bore gang indicia, belonged to the defendant. (Id. at pp. 193-194.) Avitia thus does not provide a basis to conclude that the trial court abused its discretion in permitting the prosecution to call the gang expert to testify as to a number of issues in the prosecution's case-in-chief in this case.

However, at one point during Kirkland's direct examination, the prosecutor elicited from Kirkland testimony that the ALC had turned from a "party crew" into a gang sometime after its origin in the 1990's and that the group's activities "started to escalate since then with assaults, shootings, stabbings." In addition, the court allowed the prosecutor to elicit from Kirkland testimony regarding the violent activities of ESF, as well as those of a third gang—a gang that was responsible for the shooting death of the young female companion of Summers during a "banging" incident. This testimony was presented despite the court having made an earlier ruling that it would not allow the gang expert to testify that either ALC or ESF was a "186.22 criminal street gang or what their major or main crimes are, enumerated crimes under 186.22." Garza also challenges the admission of the testimony concerning the death of the young female companion of Summers's, who was murdered after Summers was the object of a gang challenge.

Although the admission of testimony on these topics appears to have violated the trial court's earlier evidentiary ruling, for multiple reasons we conclude that its admission was not prejudicial. The standard of prejudice that we are to apply is clear: "The erroneous admission of gang or other evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded." (Avitia, supra, 127 Cal.App.4th at p. 194.)

First, although Kirkland did mention that ALC had morphed from a "party crew" into a full-fledged gang after its activities escalated to include "assaults, shootings, stabbings," Kirkland did not testify about any of the facts underlying such offenses. Thus, while he mentioned that the gang had engaged in such activities, he provided no inflammatory details. Further, to the extent that Kirkland provided details about the murder of Summers's companion, it was clear that the murder had been carried about by a different gang, not Garza's, and placed Garza's gang in a more sympathetic light, as the indirect victims of that attack. That testimony provided an explanation as to why members of Garza's gang might respond with violence to a perceived threat from a rival gang, and provided support for Garza's defense that he was in fear of the rival gang members and acted in self-defense.

To the extent that Garza is complaining that Kirkland testified about the primary activities of ESF in violation of the trial court's order to avoid discussing the "major or main crimes" of either gang, it is clear that such testimony was harmless, given that a defense witness testified that ESF's primary activities were murder, attempted murder, and assault with firearms. If the defense witness's testimony was admitted without objection, then the prosecution's expert's testimony to similar effect could not have been prejudicial.

Moreover, given the final verdict, it is simply not reasonably probable that Garza would have obtained a more favorable result if the gang expert had not testified about the criminal activities of the two gangs or the murder of the girl. The jury did not find Garza guilty of first degree murder as charged, but instead, found him guilty of the lesser included offense of voluntary manslaughter. This verdict demonstrates that the jury found that Garza acted in imperfect self-defense. Garza essentially conceded that he was the shooter. In the absence of any evidence that the ESF members were, in fact, armed, it is not reasonably probable that the jury would have concluded that Garza shot at the ESF members in perfect self-defense. We therefore conclude that any error in the admission of Kirkland's testimony regarding the types of violent crimes that the ALC gang members had engaged in, as well as his testimony regarding the shooting of the companion of an ALC gang member, was not prejudicial. B. The Pitchess proceeding

Garza filed a pretrial motion for an order directing the prosecution to provide the confidential personnel records of Detective Goltara, seeking discovery of any materials showing (1) complaints made against Goltara regarding a number of things, including excessive force, fabrication of charges or evidence, or fabrication of reasonable suspicion and/or probable cause; (2) any discipline imposed on Goltara; (3) "[a]ny other material which is exculpatory or impeaching"; and (4) the statements of any other officers who were complainants or witnesses to the other items.

The trial court conducted an in camera hearing to review the files provided by the law enforcement agency involved. Neither defense counsel nor the prosecutor attended the hearing. The transcript of the in camera hearing that the court ordered sealed has remained under seal. Garza requests that this court conduct an independent review of the material related to the Pitchess hearing. The People do not oppose the request.

In People v. Gaines (2009) 46 Cal.4th 172, 179, the Supreme Court summarized the manner by which a party may discover evidence in confidential police officer personnel records under Pitchess and its progeny:

"[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.] Good cause for discovery exists when the defendant shows both ' "materiality" to the subject matter of the pending litigation and a "reasonable belief" that the agency has the type of information sought.' [Citation.] A showing of good cause is measured by 'relatively relaxed standards' that serve to 'insure the production' for trial court review of 'all potentially relevant documents.' [Citation.] If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citations], 'the trial court should then disclose to the defendant "such information [that] is relevant to the subject matter involved in the litigation." ' [Citations.]"


On appeal, this court is required to review the "record of the documents examined by the trial court" and determine whether the trial court abused its discretion in refusing to disclose the contents of the officer's personnel records. (People v. Mooc (2001) 26 Cal.4th 1216, 1229; see also People v. Hughes (2002) 27 Cal.4th 287, 330.)

We have examined the sealed reporter's transcript of the September 2, 2014 in camera Pitchess hearing. The custodian of records was properly sworn. Although our record does not contain a copy of the documents that the custodian of records brought to the hearing for the trial court to review, the transcript reveals that the trial court reviewed Goltara's entire personnel file. A sealed transcript "in which the court 'state[d] for the record what documents it examined,' is adequate for purposes of conducting a meaningful appellate review. [Citation.]" (People v. Myles (2012) 53 Cal.4th 1181, 1209.) Our review reveals no abuse of discretion by the trial court.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J. WE CONCUR: McCONNELL, P. J. BENKE, J.