IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO A116157

Transcription

1 Filed 5/27/08 P. v. Ponce CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, v. JESUS ANTONIO PONCE, Defendant and Appellant. A (San Mateo County Super. Ct. No. SC059983) A jury found defendant Jesus Antonio Ponce guilty of first degree murder and found true an allegation he had intentionally and personally discharged a firearm, proximately causing the death of Jaime Contreras Meza. (Pen. Code, 187, 189, , subd. (d).) The jury also found true allegations that Ponce committed the murder while an active member of a criminal street gang, and that the murder was carried out to further the activities of the gang and for its benefit. (Pen. Code, , subd. (b)(1), 190.2, subd. (a)(22).) Ponce was sentenced to life in prison without the possibility of parole, with a consecutive term of twenty-five years to life for personal use of a firearm. Ponce makes seven arguments on appeal: (1) the trial court erred in failing to instruct the jury on imperfect defense of others; (2) the trial court erred by failing to instruct on heat of passion; (3) there was insufficient evidence to support the first degree murder conviction; (4) the trial court erred in admitting certain gang evidence; (5) trial counsel provided ineffective assistance to the extent that he failed to object to such gang evidence and to certain portions of the prosecutor s closing argument; (6) the cumulative 1

2 impact of these asserted trial errors mandates reversal; and (7) the 10-year sentence imposed, but stayed, on the Penal Code section , subdivision (b)(1) allegation must be stricken. We conclude, as the People properly concede, that the trial court erred in imposing the 10-year gang enhancement pursuant to Penal Code section , subdivision (b)(1). We further conclude that the court did not commit any other error, that there was substantial evidence, and that Ponce has not established his ineffective assistance of counsel claim. Consequently, with the exception of the 10-year enhancement, which we vacate, we affirm. FACTUAL BACKGROUND A. The Shooting On the night of November 13, 2004, 18-year-old Ponce attended a party in Belmont given by Luis Contreras and his girlfriend to celebrate a friend s twenty-first birthday. Guests, including Ponce, Miguel Hernandez, and Jesus Yuriar, started to arrive between 8:00 p.m. and 10:00 p.m.. At some point later that evening, Hernandez asked Contreras to buy some more beer, and Yuriar drove Hernandez, Contreras, and Ponce to a liquor store in San Mateo where Contreras had bought beer before despite being underage. When the four young men arrived at the liquor store, Contreras and Hernandez went inside; Ponce and Yuriar stayed in the car parked in front of the store, as Contreras had asked them, as they looked younger and Contreras feared the liquor store would not sell them beer if they came inside. As his counsel admitted in opening statement, Ponce was a member of the West Side San Mateo gang (WSSM), and WSSM was associated with a larger criminal street gang called the Norteños. Hernandez and Yuriar were also members of WSSM, as was the friend for whom Contreras gave the birthday party. Contreras had been a WSSM member, but was no longer a member. Nonetheless, he remained on friendly terms with WSSM members. 2

3 Members of WSSM, as well as Norteños, associate with the color red, for example, by wearing red clothing, and with the number Ponce had dots tattooed on his hands one dot on one hand and four dots on the other signifying the number 14. The Norteños consider members of the criminal street gang called the Sureños to be their enemies. The Sureños identify with the color blue and with the number That night, Ponce wore a predominantly red San Francisco 49ers jersey; Hernandez wore a red shirt; and Contreras, the former gang member, wore a black San Francisco Giants T-shirt. Juan Caytano and his friend Arturo Bandala drove to the same liquor store that night to buy beer, arriving at around 12:30 a.m.; they parked in front of the store, a couple of spaces away from Yuriar s car. The victim, a 20-something, Hispanic man named Jaime Meza, had also parked his car in one of the five spaces in front of the store. As Caytano walked to the store s entrance, he saw Meza whom he had met before. They shook hands and walked to the entrance together, Meza telling Caytano that he was there to buy some beer. Caytano was wearing a red vest, Meza a blue plaid shirt and a blue canvas belt. Despite their clothing, neither Caytano nor Meza was a gang member. Before Caytano and Meza got inside the store, Ponce approached Meza and asked, what do you claim? 3 Meza replied that he claimed nothing, and that he was just coming from his work. Ponce asked Meza what he claimed three more times before Meza went inside the store, and each time received the same nothing response. All three men then went into the liquor store. Contreras and Hernandez bought a 12-pack of beer and went outside to put the beer into the trunk of Yuriar s car. While they did this, Ponce waited on the sidewalk. 1 The number 14 is significant to Norteño gang members because the letter N is the fourteenth letter of the alphabet. 2 The number 13 is significant to Sureños because the letter M is the thirteenth letter of the alphabet and the Sureños are affiliated with the Mexican Mafia, also known as La Eme, which means M in Spanish. 3 According to the People s gang expert, when a gang member asks a person what he claims, the gang member wants to know to which gang the person claims allegiance. 3

4 After opening the trunk, Yuriar went over to Ponce and they talked about checking out Meza, and then Hernandez joined Yuriar and Ponce. Meza left the store with Caytano, and walked toward his car. Ponce twice more asked Meza what he claimed. Meza again responded nothing, and said that he was coming from work and did not want any trouble. Ponce also said two or three times to Meza, Show me your belt. 4 And then Ponce kicked Meza in the hip. Meza did nothing in response to the kick, except to get into his car. He tried to shut his car door, but Hernandez and Ponce held it open. Contreras told Yuriar to just leave, and Yuriar got into his car. Contreras said to Hernandez and Ponce, let s just go, but they did not move. Rather, Hernandez hit Meza in the face once or twice while he sat in his car, and then Ponce hit him once more. Meza did not fight back. He finally succeeded in closing his car door and started his car. Hernandez then said to Ponce, Let s go, it s over. Yuriar pulled his car up behind Meza s car, blocking it. Hernandez walked to Yuriar s car. Ponce kicked the door to Meza s car, and then started to head toward Yuriar s car, walking behind Hernandez. As Hernandez tried to open the rear door to Yuriar s car, Meza backed up his car three to six feet, pinning Hernandez between the two cars for five to ten seconds. Hernandez testified that he screamed when Meza s car hit him. 5 Meza drove his car forward and back into the parking space. Hernandez freed himself and got into Yuriar s car without any help. At the time, Hernandez believed his legs were broken. However, he never received any medical treatment for his legs, and was able to walk not long after the incident. 4 Hernandez testified that the significance of seeing if somebody was wearing a belt was to see which gang he belongs to depending on the color of the belt. 5 Contreras testified that Hernandez did not scream at that point; he instead simply made a facial expression indicating that he was like in pain. Another witness testified that Hernandez responded to being hit by kicking Meza s car and then moving out of the car s way. 4

5 When Meza pulled his car forward, Contreras, who was standing in front of Meza s car, saw that Meza looked scared. At that point, Ponce pulled out a gun from his pants and fired it three or four times in rapid succession at Meza through the driver s side window of Meza s car. 6 As he fired, Ponce stood three to six feet from where Meza sat in his car. Ponce had run back toward Meza s car in order to get to that spot before shooting at Meza. 7 After Ponce had fired the first shot, Yuriar s car burn[ed] rubber and drove right off, with Hernandez and Yuriar its only passengers. Once Ponce finished firing the initial set of shots, Meza backed his car out and started to drive away. Ponce then ran behind Meza s car and fired more shots. 8 Meza s car went out of the driveway of the shopping center where the liquor store was located, across the street, and up a curb, where it stopped after crashing into an apartment building. A witness who lived in that building noticed a broken window on the driver s side of the car, and saw a man wearing a maroon football jersey running in the opposite direction of the car. Yuriar drove back to pick up Ponce and Contreras, both of whom were running. As soon as they were both in Yuriar s car, Contreras asked Ponce if he had used a B-B gun; Ponce responded that it was a real gun. Contreras asked why Ponce had shot Meza, and Ponce said, I couldn t see my homeboys get hit like that or I couldn t see Miguel get smashed. Both Contreras and Hernandez testified that they did not know before the shooting that Ponce had a gun. And Hernandez testified that there was no plan that night to look for Sureño gang members. 9 6 Witnesses testified that they heard between three and seven shots at that point. 7 Bandala testified that Ponce started shooting at Meza while he was backing up his car, and continued firing while Meza started pulling his car back forward into the parking space. Bandala did not see Meza s car hit Hernandez or Yuriar s car. 8 Some witnesses testified that they heard no more shots after the initial set of shots. Other witnesses testified that they heard up to as many as ten shots in the second set. 9 Hernandez and Yuriar were charged along with Ponce in count one of the information with murdering Meza. Counts two and three charged Hernandez and Yuriar, 5

6 B. The Investigation of the Shooting A San Mateo police sergeant found Meza s car at the apartment building across the street from the shopping center. The motor was running and the driver s door was open. Meza was inside and appeared to be dead. The pathologist who performed the autopsy concluded that Meza died of multiple gunshot wounds. There were three entrance gunshot wounds on the left side of Meza s body; two of these wounds were in Meza s left shoulder, and a third, the most severe injury, was in Meza s left, lower chest. The pathologist concluded that two of the wounds indicated that the bullets traveled in a slightly downward trajectory and toward the right side of Meza s body. He found two bullets and a very small metallic fragment in Meza s body corresponding to each of the three entrance wounds. He acknowledged that the wound where he found the fragment could have been caused by the same bullet that caused the other entrance wound to Meza s left shoulder. Five days after the shooting, San Mateo police officers executed search warrants at the homes of both Yuriar and Ponce for items related to gang activity. From Yuriar s home, they seized a red baseball cap, a red aluminum baseball bat, and a letter with what appeared to be references to WSSM or to the Norteños. From Ponce s home, they seized numerous items: a composition book with WSSM written on its cover, and inside of which many of the S s and at least one 13 had been crossed out; a red notebook with similar notations; several items with the number 14 on them and several red items, such as red paisley print napkins, a red belt, a red glove; and a school paper Ponce had written entitled The Art of War dated August 18, The school paper reads as follows: Kicking back with the carnales ready for the funk. We ain t even tripping cause we got them heats to dump. 10 My enemies are large in quantities but our soldiers have qualities. respectively, with voluntary manslaughter. Before Ponce s trial, Hernandez and Yuriar entered no contest pleas to voluntary manslaughter, and each was sentenced to state prison for a term of eleven years. 10 Heats to dump means guns to shoot in gang parlance. 6

7 But when the gang task force comes, homies are quick to run. Ain t trying to get caught cause the hall ain t no fun. Now, we are at the parque drinking some brew, watching out for the boys in blue. We see some fool, now we know he s our enemy so we got to smash. We grab him and crack him with a forty bottle and take his cash. So we head out before 5-0 comes. And that s just one day in the gangsta life. The officers did not find a San Francisco 49ers jersey. C. Prior Gang-Related Incidents Involving Ponce San Mateo Police Sergeant David Peruzzaro testified that on March 3, 2004, he saw Ponce and four other Hispanic males chasing a male Hispanic juvenile down the street, and heard Ponce and another pursuer say, we re going to kill you, Scrappa. 11 While Ponce said this, he lifted his sweatshirt with one hand and reached into his waistband with the other. However, Peruzzaro did not see Ponce with a weapon. Paruzzaro followed Ponce and the others, but lost them. He arrested Ponce for the incident two days later. Peruzzaro did not know whether the juvenile being chased was a gang member, but he knew that the juvenile associated with Sureño gang members. Ponce told Peruzzaro that the juvenile was wearing a blue sweatshirt at the time of the incident, and that he (Ponce) believed that the juvenile was a Sureño gang member. San Mateo Police Officer George Heald testified that he registered Ponce as a gang member on June 1, 2004, after Ponce had been convicted or adjudicated in violation of a gang-related crime. When Heald interviewed Ponce as part of the registration process, Ponce told him that he had been associated with the Norteños for two to three years, and that he joined the gang just because he hung out with friends who were gang members. Henry Escobar testified that in October 2004, he was walking home from high school when he was confronted by a group of ten or more young men in two cars, one of whom was Ponce. After Ponce got out of one of the cars, Escobar saw him take 11 Scrappa is a derogatory term for a Sureño gang member. (See People v. Valdez (1997) 58 Cal.App.4th 494, 501, fn. 6 (Valdez).) 7

8 something out of his waistband and put it in the car s trunk, and then pull out a blue baseball bat from the trunk. One of the men started fighting with Escobar, but Ponce did not get involved. San Mateo Police Officer Albert Yee interviewed Escobar the day after this incident. Escobar told Yee that Misael Joachim had beaten him up. Escobar also told Yee that Ponce, whom he knew as Diablo, had pulled out a black semi-automatic weapon during the incident and put it in a car trunk. According to Escobar, Diablo taunted him during the fight with Joachim, telling Joachim to beat him up. Before leaving Escobar, Diablo yelled out, West Side San Mateo, X-I-V. D. Testimony by the People s Gang Expert San Mateo Detective Rick Decker testified as an expert in gangs and gang psychology. Decker testified that in 1993 the WSSM split into two rival factions, one with allegiance to the Norteño street gang, which had its roots in the Nuestra Familia prison gang, and the other with allegiance to the Sureño street gang, which had its roots in the Mexican Mafia prison gang. The faction allied with the Norteños retained the name WSSM. According to Decker, the WSSM split led to a bitter feud between the two factions, which began with ethnic origin and now continues today over... the color of clothing. Decker reviewed police reports, as well as photographs and property seized in the police searches, and concluded that Ponce, Hernandez, Yuriar, and Contreras were members of the WSSM. Based on these same evidentiary sources, Decker opined that Ponce shot Meza for the benefit of the Norteño street gang. Because Meza was a Hispanic male between the ages of 16 and 25, and was wearing blue, the color associated with Sureños, Decker opined that he could have appeared to be a Sureño gang member to a rival gang member, or even to a police officer. DISCUSSION I. Failure to Instruct on Imperfect Defense of Others Ponce s trial counsel requested instructions on the doctrine of imperfect defense of others, based on evidence that Meza hit Hernandez with his car, pinning Hernandez 8

9 against Yuriar s car, just before Ponce shot Meza. The trial court refused to give the instructions, concluding that the evidence did not support an inference that Ponce acted to defend, protect, or assist Hernandez. Ponce asserts that this was error. We conclude it was not, in light of the evidence in this case. Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter. (In re Christian S. (1994) 7 Cal.4th 768, 771.) For the same reason, one who kills in imperfect defense of others in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury is guilty only of manslaughter. (People v. Randle (2005) 35 Cal.4th 987, 997 (Randle).) Imperfect defense of others is a description of one type of voluntary manslaughter, which is a lesser included offense of murder. (People v. Barton (1995) 12 Cal.4th 186, ; Randle, supra, 35 Cal.4th at p. 997.) Consequently, the trial court was obligated to instruct on this doctrine if there was evidence substantial enough to merit consideration by the jury that under this doctrine the defendant [was] guilty of voluntary manslaughter. (People v. Michaels (2002) 28 Cal.4th 486, 529.) Conversely, there was no obligation to instruct on this doctrine if there was no substantial evidence to support it. (See In re Christian S., supra, 7 Cal.4th at p. 783 [a trial court must give a requested instruction concerning imperfect self-defense only if there is substantial evidence in support]; see also People v. Oropeza (2007) 151 Cal.App.4th 73, 78 (Oropeza) [ The trial court is not required to present theories the jury could not reasonably find to exist ].) Substantial evidence in this context means evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist. (People v. Blair (2005) 36 Cal.4th 686, ) On appeal, we review independently whether the trial court erred in refusing to instruct on imperfect defense of others. (Ibid.) 9

10 Such review leads us to conclude that there was no such error here there was no substantial evidence from which a jury of reasonable persons could conclude that Ponce believed Hernandez to be in imminent danger of death or great bodily injury at the time he shot at Meza. To support instructions on defense of others, there must have been (1) evidence from which the jury could find that [Ponce] actually had such a belief, (Oropeza, supra, 151 Cal.App.4th at p. 82) and (2) evidence that Ponce believed the harm to Hernandez was imminent. Fear of future harm no matter how great the fear and no matter how great the likelihood of the harm will not suffice. The defendant s fear must be of imminent danger to life or great bodily injury. [T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.... [ ] This definition of imminence reflects the great value our society places on human life. [Citation.] Put simply, the trier of fact must find an actual fear of an imminent harm. Without this finding, imperfect self-defense is no defense. (In re Christian S., supra, 7 Cal.4th at p. 783.; see also Randle, supra, 35 Cal.4th at pp [same true of imperfect defense of others].) This rule is a fortiori applicable here, where the threat had passed. Here, Ponce did not start shooting at Meza until after Meza had pulled his car forward, away from Hernandez and back into the parking space. There is no substantial evidence that when Ponce opened fire, Hernandez was in any imminent danger, because at that point he was no longer pinned against Yuriar s car. 12 Indeed, as soon as Meza drove his car forward, Hernandez was able to get into Yuriar s car without assistance. 12 It is true that Bandala testified that Ponce began firing at Meza while Meza s car was still in reverse. But Bandala did not testify that Meza s car hit Hernandez or Yuriar s car. Bandala s testimony consequently does not support an inference that Ponce shot at Meza either to prevent Meza s car from hitting Hernandez or Yuriar s car, or to free Hernandez from being pinned up against Yuriar s car. (See People v. Hill (2005) 131 Cal.App.4th 1089, 1101 [instructions need not be given where the supporting evidence is minimal and insubstantial ].) 10

11 And shortly after Hernandez got into Yuriar s car and Ponce had fired the first shot at Meza, Yuriar s car burn[ed] rubber and drove right off. But Ponce fired at least two more shots at that point, even though Yuriar and Hernandez had already driven away and were in no danger of being stricken by Meza s car. (See People v. Uriarte (1990) 223 Cal.App.3d 192, 198 [concluding there was no evidence the defendant believed it was necessary to shoot the victims in order to save his wife, stating [w]e cannot overcome the fact that the defendant continued shooting after the victim was already incapacitated, which was hardly necessary to rescue his wife ]; cf. People v. Hardin (2000) 85 Cal.App.4th 625, 634 fn. 7 [once the victim had been disarmed and the defendant straddled her while she lay on the floor, the defendant, who relied on imperfect self defense, could no longer entertain the belief that [the victim] constituted an imminent and deadly peril to him ].) And, as noted, there was evidence that Ponce then ran behind Meza s car as it drove away and fired a second set of shots. 13 Ponce contends that his statement to Contreras that he shot Meza because I couldn t see my homeboys get hit like that or I couldn t see Miguel get smashed demonstrates that Ponce shot Meza to prevent further injury to Hernandez and/or further damage to Yuriar s automobile. But Ponce s statement says nothing about whether, at the time he shot at Meza, he in fact feared imminent harm to Hernandez. The harm to Hernandez had already happened by the time Ponce started shooting. Ponce argues that there was no guaranty that Meza, angered by the treatment he had received from [Ponce] and his friends, was not going to back up again and hit Hernandez and/or the vehicle he was entering. But there was no evidence that Meza was angry, and no evidence suggesting that Meza might back up his car a second time. Indeed, there was no evidence that Meza intended to hit Hernandez or Yuriar s car in the first place, nor any evidence as 10 shots. 13 Some witnesses testified that, after a pause, they heard a second set of as many 11

12 that Ponce actually believed Meza acted intentionally. 14 Even if the shooting was the direct and immediate result of Hernandez getting hit by Meza s car, as Ponce argues on appeal, the only inference to be drawn from Ponce s statement was that he shot Meza because he could not stand to see Hernandez get hit or get smashed. This is revenge. Or retaliation. It is not defense of others. Randle, supra, 35 Cal.4th 987, the case emphasized at oral argument, and holding that the defense of imperfect defense of others is available in California, is easily distinguishable. There, victim Robinson confronted defendant Randle while he was in the process of stealing a stereo speaker from a car owned by Robinson s cousin, Lambert. Robinson told defendant that he was going to beat your ass. Defendant then fired a gun several times without hitting Robinson, and fled on foot with his cousin, Bryon W., carrying a backpack full of Lambert s stereo equipment. (Randle, supra, 35 Cal.4th at p. 991.) Robinson went to get his own cousin and the two men got into a truck to pursue defendant and Bryon. They caught Bryon, but not defendant, and the two took turns severely beating Bryon. After they recovered the stolen stereo equipment and returned to the truck, Robinson returned to beat Bryon some more, while his cousin drove off to get the victim s father. All the while, Bryon was hollering his lungs out. Defendant came on the scene and shouted, Get off my cousin, but Robinson continued beating Bryon. Defendant then opened fire, killing Robinson. Bryon testified that he believed defendant saved his life. And defendant testified that he fired his gun to make the [victim] stop beating Bryon. (Randle, supra, 35 Cal.4th at pp ) In short, in Randle there was evidence not only that Bryon faced imminent harm because the victim showed no signs of stopping the beating, but also testimony that defendant fired his gun to stop the beating and that Bryon believed defendant had saved his life. The facts here are a far cry. 14 Ponce s counsel conceded as much during closing argument, when he explained that when Meza backed up his car, he was trying to get out of there, and nobody can blame him for that. 12

13 Likewise harmful to Ponce, as it was to defendant Oropeza, is that Ponce did not testify and made no out-of-court comments indicating that when he fired, he believed it necessary to defend [Hernandez s] life or to avoid great bodily injury. It is the case that the substantial evidence of a defendant s state of mind may be found in the testimony of witnesses other than a defendant. [Citations.] Here, however, no witnesses testified [Ponce] fired out of fear or testified [Ponce] appeared fearful.... No witness to the incident... stated they believed deadly force was necessary to protect [Hernandez].... The only substantial evidence of [Ponce s] state of mind is found in testimony concerning his aggressive and provocative behavior. It suggests only that he fired [at Meza] as an act of aggression. (Oropeza, supra, 151 Cal.App.4th at p. 82.) 15 In sum, there was no error in refusing to instruct the jury on imperfect defense of others. But even assuming there were, Ponce has not demonstrated any prejudice that is, that had such instructions been given, it is reasonably probable that Ponce would have obtained a more favorable result. (See Randle, supra, 35 Cal.4th at p [the harmless error rule set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson) applies to error in failing to instruct on imperfect defense of others in a noncapital case].) Under the Watson standard, a conviction of the charged offense may be reversed in consequence of this form of error only if, after an examination of the entire cause, including the evidence (Cal. Const., art. VI, 13), it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred [citations]. (Randle, supra, 35 Cal.4th at p ) In determining whether there was prejudice [under Watson], the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations and the entire verdict. (People v. Guiton (1993) 4 Cal.4th 1116, 1130.) 15 In addition, the doctrine of imperfect defense of others is arguably not available to Ponce based on the evidence that Ponce s own wrongful conduct in attacking Meza helped to create the circumstances leading to Meza s pinning Hernandez against Yuriar s car as Meza was attempting to flee. (See In re Christian S., supra, 7 Cal.4th 768, 773, fn. 1); but see Randle, supra, 35 Cal.4th at p. 987.) 13

14 The evidence here demonstrates that there is no reasonable probability that the jury would have accepted an imperfect defense of others theory. As Ponce acknowledges, there is no dispute that he shot and killed Meza: as Ponce s attorney told the jury in opening statement, this is not a whodonuit, this is a what-was-it. And it is uncontroverted that Ponce confronted, and then attacked, Meza after he exited the liquor store for no apparent reason other than the fact that Meza was wearing blue. As Ponce s counsel on appeal concedes, the attack was undeniably gang related. Meza s only response to his attack was to attempt to leave by getting into his car, shutting the door and putting his car in reverse. By the time Meza finally succeeded in doing these things, Yuriar had pulled his car behind Meza s car, preventing Meza from fleeing. Again, there is no evidence that Meza then intentionally hit Hernandez with his car, or that Ponce believed this act was intentional. On the contrary, the evidence suggests that Meza was afraid and wanted to avoid conflict. Numerous times he told Ponce that he did not claim membership in any gang and did not want any trouble. And he did not fight back when Ponce and Hernandez attacked him. Meza s car pinned Hernandez for at most ten seconds without causing Hernandez any injuries warranting medical treatment. Meza then pulled forward, and looked scared. Ponce proceeded to shoot at him three times at close range, firing at least two of those shots after Hernandez and Yuriar had already driven away. When Meza then tried to drive out of the shopping center, Ponce shot at him some more. The above demonstrates that the evidence to support the imperfect self-defense theory was, at best, extremely weak compared to the evidence that Ponce shot Meza in an act of unprovoked aggression. (People v. Sakarias (2000) 22 Cal.4th 596, 621 [no reversible error for failure to instruct on a lesser include offense under such circumstances].) Moreover, the jury s verdicts manifest that it rejected Ponce s theory of the case that he shot at Meza solely because his car hit Hernandez. While arguing that the gang allegations did not apply, Ponce s counsel told the jury that Ponce shot Meza as a reaction to what was going on with Miguel Hernandez. He was trying to help his friend. 14

15 He was not trying to assist or benefit the reputation of the West Side San Mateo gang. Why did you do it? I couldn t stand to see Miguel get hit or smashed. Not so everybody s gonna know that West Side, you know, represents, not because he was a damn Scrappa he deserved to die. That s just not what happened here.... [ ] Was that shooting done for the benefit of the gang, for the benefit of West Side San Mateo? And it was not. That happened to save Miguel Hernandez. The jury rejected this argument, specifically finding that Ponce shot Meza for the benefit of a criminal street gang. Necessarily, the jury concluded that Ponce s motive was not to protect Hernandez, but to further the activities of his gang. (CALJIC No [Special Circumstances Intentional Killing by Active Street Gang Member (Penal Code 190.2, subd. (a)(22); see also People v. Manriquez (2005) 37 Cal.4th 547, 582 [ The jury s verdict finding defendant guilty of the first degree murder of [the victim] implicitly rejected defendant s version of the events, leaving no doubt the jury would have returned the same verdict had it been instructed regarding imperfect selfdefense ].) II. Failure to Instruct on Heat of Passion Ponce s trial counsel requested heat of passion manslaughter instructions. The trial court refused the request, reasoning that there was no evidence that the passion of an ordinarily reasonable person would have been aroused by the facts and circumstances confronting Ponce. Ponce argues this was error, asserting that even if there was not sufficient evidence under the reasonable person standard, there was sufficient evidence from which a fully-instructed jury could have concluded that [Ponce s] heat of passion, albeit unreasonable, was such as to negate deliberation and premeditation so as to reduce the degree of murder to second degree. Again Ponce relies upon evidence that Ponce did not shoot at Meza until after Hernandez was hit by Meza s car. As he puts it, A jury could well have reasonably concluded that [Ponce] did not deliberate or premeditate the homicide, but rather acted in a heat of passion after seeing Meza s automobile hit Hernandez and hearing Hernandez scream. We disagree. 15

16 One form of voluntary manslaughter is defined as the unlawful killing of a human being without malice aforethought upon a sudden quarrel or heat of passion. [Pen. Code,] 192, subd. (a).) (People v. Cole (2004) 33 Cal.4th 1158, 1215 (Cole).) But not just any kind of heat of passion will suffice for manslaughter. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) It must be heat of passion due to provocation. (Ibid.) And the provocation must be sufficient based on an objective standard. (Cole, supra, 33 Cal.4th at p ) As our Supreme Court has put it, The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively.... [T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, because no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. (Steele, supra, 27 Cal.4th at pp ) Here, there was no substantial evidence to support lesser included instructions for manslaughter based on heat of passion. (See Michaels, supra, 28 Cal.4th at p. 529 [lesser included instructions are required if the evidence in support was substantial enough to merit consideration by the jury ]; see also People v. Breverman (1998) 19 Cal.4th 142, 154 [no requirement to instruct on a lesser included offense when there is no evidence that the offense was less than that charged ].) There is no evidence that Meza did anything which would have provoked an ordinarily reasonable person to shoot at him or which would have otherwise aroused the passions of an ordinarily reasonable person. (See Cole, supra, 33 Cal.4th at p [objective, reasonable person element for heat of passion requires provocation by the victim ].) Meza s only provocative act was to wear a blue shirt and blue belt. Meza did not fight back when Ponce and Hernandez attacked him, the unprovoked attack which set in motion the events leading to the 16

17 shooting. And as discussed in section I ante, there is no evidence that Meza intentionally hit Hernandez when he was trying to back up his car. Indeed, Ponce s counsel admitted all this, and more, during his closing argument, acknowledging that Ponce and Hernandez attacked Jaime Meza for no good reason, no reason whatsoever. Counsel further conceded that Mr. Meza did nothing wrong. There is no evidence before you whatsoever that he provoked Mr. Ponce in any way. This was an illegal attack. Finally, he conceded that Ponce s act of shooting Meza was inexcusable. Jesus Ponce put himself in that situation. He created this situation that Mr. Meza was just trying to escape from. Under these circumstances, Meza s act of hitting Hernandez with his car, which did not inflict any significant injuries on Hernandez, would not have provoked an ordinarily reasonable person to shoot at Meza. Ponce asserts that he had no way of telling whether Meza s act was accidental or intentional. All he knew was that his friend, Hernandez, had been hit and screamed in pain. But a reasonable person in these circumstances would not assume that Meza acted intentionally and would not respond by pulling out a gun and shooting at Meza multiple times 16 not to mention would not have brought a loaded gun with him on a beer run in the first place. Even assuming it was error not to instruct on manslaughter-based-on-heat-ofpassion, Ponce has not demonstrated any prejudice. For the same reasons discussed in section I ante, had such instructions been given, it is not reasonably probable that Ponce would have obtained a more favorable result. (Randle, supra, 35 Cal.4th at p [the Watson harmless error standard applies to error in failing to instruct on a lesser included offense].) And as also there discussed, the verdicts finding Ponce guilty of first degree murder and finding that Ponce shot Meza for the benefit of a criminal street gang indicate that the jury rejected Ponce s theory of the case. (See People v. Heard (2003) 31 Cal.4th 16 Ponce s trial counsel admitted to the jury that shooting and killing Meza in response to Hernandez getting hit by Meza s car was inexcusable, unjustifiable, appalling. 17

18 946, 980, 982 [where jury necessarily determined that defendant acted with the requisite specific intent when it convicted him of sexual offenses, any error in failing to instruct on involuntary manslaughter as a lesser included offense of murder based on his theory that he was not conscious at the time of the offenses of what he was doing was harmless].) As Ponce correctly asserts, [t]he test of whether provocation or heat of passion can negate deliberation and premeditation so as to reduce first degree murder to second degree murder... is subjective. (People v. Padilla (2002) 103 Cal.App.4th 675, 678.) Consistent with this, the court instructed the jury with CALJIC No. 8.73, as follows: If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation. 17 This instruction explained that provocation may suffice to negate premeditation and deliberation, reducing a homicide to second degree murder. (People v. Rogers (2006) 39 Cal.4th 826, ) The court also instructed the jury under CALJIC No. 8.71, that if it had a reasonable doubt as to whether the murder was of the first or second degree it must give the defendant the benefit of the doubt and return a verdict of second degree murder. The jury was also instructed: If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree. (CALJIC No. 8.20, italics added.) People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, ) 17 The trial court omitted from this instruction the following language which appears in CALJIC No. 8.73: but the provocation was not sufficient to reduce the homicide to manslaughter. (CALJIC No (Fall ed.).) 18

19 As one Court of Appeal noted in the exact same situation, Under this combination of instructions, the jury had to find premeditation and deliberation before it could return a verdict of first degree murder. It also had to find that the intent to kill was not formed under a condition which precluded deliberation.... The important factor is that the jury make a finding as to each element. The instructions given required it to do so. (People v. Fitzpatrick, supra, 2 Cal.App.4th 1285, 1295, fn. omitted.) Finally, Ponce s trial counsel argued to the jury that Ponce did not premeditate or deliberate shooting Meza, but instead opened fired in a rash unthinking moment in response to seeing Hernandez get hit by Meza s car. In so doing, Ponce s counsel relied upon indeed quoted these particular instructions regarding the effect of provocation on premeditation and deliberation. Thus, for example, counsel quoted from CALJIC No. 8.20, noting that the intent to kill must have been formed upon a preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation. Okay? I m not asking you to walk a mile in his shoes. He s standing there seeing his friend getting crushed by a car screaming. The instructions given, as well as defense counsel s arguments based on them, show that the jury was adequately instructed on, and was specifically asked to consider, whether Ponce s heat of passion negated deliberation and premeditation so as to reduce the crime to second degree murder. It concluded that it did not. III. Sufficiency of the Evidence to Support the First Degree Murder Conviction Ponce next argues that there was insufficient evidence to support his first degree murder conviction. Ponce is wrong. Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation.... Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of 19

20 solid value from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. (People v. Perez (1992) 2 Cal.4th 1117, 1124.) In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), the Supreme Court explained that in order for a killing with malice aforethought to be first rather than second degree murder, [t]he intent to kill must be... formed upon a pre-existing reflection,... [and have] been the subject of actual deliberation or forethought.... [Citation.] We have therefore held that [a] verdict of murder in the first degree... [on a theory of a willful, deliberate, and premeditated killing] is proper only if the slayer killed as a result of careful thought and weighing of considerations; as a deliberate judgment or plan; carried on coolly and steadily, [especially] according to a preconceived design. (Id. at p. 26.) The Supreme Court went on to identify three categories of evidence relevant to determining premeditation and deliberation: (1) planning activity; (2) motive, including facts about the defendant s prior relationship and/or conduct with the victim; and (3) manner of killing. (Id. at pp ) It has also been held that the Anderson factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation. (People v. Stitley (2005) 35 Cal.4th 514, 543; see also Perez, supra, 2 Cal.4th at p [ Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation ]; People v. Lenart (2004) 32 Cal.4th 1107, 1127 [ The Anderson factors are not the exclusive means for establishing premeditation and deliberation ].) However, where the record discloses evidence in all three [Anderson] categories, the verdict generally will be sustained. (Stitley, supra, 35 Cal.4th at p. 543.) This is such a record. Regarding planning, the first Anderson factor, Ponce went to the liquor store that night with a loaded, concealed gun. From this evidence the jury could infer he was ready to use deadly force that night. (See People v. Young (2005) 34 Cal.4th 1149, 1183 (Young) [possession of a loaded gun provides evidence of planning from which the jury 20

21 could infer that defendant considered the possibility of murder in advance and intended to kill ]; see also People v. Morris (1988) 46 Cal.3d 1, 23 [when one brings along a deadly weapon which is subsequently employed, it is reasonable to infer that one considered the possibility of homicide from the outset ].) Regarding motive, the second Anderson factor, it was undisputed that Ponce was a WSSM member and that he attacked Meza because he wore blue, the color associated with the rival Sureño gang. There was also evidence that in March 2004 Ponce had chased and threatened to kill a young Hispanic man who wore blue and whom Ponce believed was a Sureño. And regarding the third Anderson factor, the manner in which Ponce killed Meza indicated some preconceived design to kill. (Morris, supra, 46 Cal.3d at p. 22.) Ponce shot at Meza at close range (three to six feet away) after Hernandez was no longer pinned by Meza s car. (People v. Halvorsen (2007) 42 Cal.4th 379, 422 [shooting victims from within a few feet indicated a method of killing sufficiently particular and exacting to permit an inference that defendant was acting according to a preconceived design ].) Even though the time between when Hernandez was pinned and when Ponce opened fire was brief, the jury could reasonably conclude that Ponce had sufficient time to premeditate and deliberate, particularly in light of the evidence of Ponce s gang motive. (Lenart, supra, 32 Cal.4th at p [ We have never required that there be an extensive time to premeditate and deliberate ]; Perez, supra, 2 Cal.4th at p [ premeditation can occur in a brief period of time ]; People v. Sanchez (2001) 26 Cal.4th 834, 849 [ Premeditation can be established in the context of a gang shooting even though the time between the sighting of the victim and the actual shooting is very brief ].) Further, Ponce continued to fire at Meza at least two more times after Hernandez and Yuriar had driven away. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1208 [shooting numerous times at an occupied car showed the shooting was purposeful ].) There was also evidence Ponce chased Meza s car and continued to shoot as Meza drove away. (See People v. Wells (1988) 199 Cal.App.3d 535, 541 [running after the victim and firing three bullets into his back indicated premeditation and deliberation].) Finally, there was evidence that 21

22 the gun Ponce used was a single-action revolver, which required him to pull back the hammer manually each time he fired the gun. From this evidence the jury could infer that with each shot Ponce made a conscious decision to use deadly force on Meza. And were there any doubt on this and there is not it is erased out of the mouth of Ponce himself that he couldn t see his homeboys get hit... couldn t see [Hernandez] get smashed. Ponce argues that there was insufficient evidence of deliberation and premeditation because at the time of the shooting, the altercation between [Ponce] and his friends, and Meza was over and the shooting was the direct result of Hernandez being struck. He relies on evidence that after Ponce and Hernandez attacked Meza, they started to walk to Yuriar s car when Meza backed his automobile up and struck Miguel Hernandez. It was then, and only then, that [Ponce] pulled out a gun and rapidly shot Meza. During the earlier confrontation there was no evidence that [Ponce] displayed a gun, or threatened to kill Meza or that he made reference to a gun or any weapon in any way. Simply, there was no evidence of a deliberate and premeditated killing. We are not persuaded. A reasonable jury could disbelieve this interpretation of the evidence. (See People v. Johnson (1980) 26 Cal.3d 557, 579; Young, supra, 34 Cal.4th at p [ The jury, as the sole judge of the credibility of witnesses, could reasonably have rejected defendant s theory ].) 18 IV. Admission of Gang Evidence. Ponce argues that the trial court erred in admitting into evidence (1) gang-related lyrics from a CD entitled Northern Warrior found by police in Ponce s bedroom and 18 As the prosecutor argued at trial, the evidence did not establish that the initial attack and the shooting were separate incidents: Who agreed this was over? Miguel Hernandez stopped punching the victim. That s clear. And he started to walk around the back of the car. But Jesus Ponce punched him right on the heels of that, and then he started kicking his car. Who said this was over? And then Jesus Yuriar blocks his car in. 22

23 (2) testimony by the People s gang expert about the two notorious prison gangs, Nuestra Familia and the Mexican Mafia. There was no error. A. Procedural and Factual Background. Before trial, the prosecutor moved to admit the Northern Warrior CD along with a videotape, a music DVD, and another CD entitled Casper Locs, all of which the police had seized from Ponce s bedroom. The videotape depicted several gang murders, and the lyrics in the DVD and CDs urged and glorified the killing of Sureños by Norteños. Ponce s counsel objected, contending that the evidence was cumulative and prejudicial under Evidence Code section 352 and would deprive Ponce of the right to a fair trial. Counsel based his objection in part on the fact that there was no dispute about whether Ponce was a gang member and on the fact that the evidence was generically about gang members or Norteños, and not about WSSM members in particular. The trial court was initially inclined to exclude all of the items. However, when the court learned that the police had found the Northern Warrior CD in the CD player in Ponce s bedroom, it reconsidered, and ultimately decided to exclude all of the items under Evidence Code section 352 except the third track from the CD, which the court concluded was more probative than prejudicial. In conscientious, detailed fashion, the court explained that the lyrics to that particular song had probative value because they glorified the Norteño gang and demonstrated the general murderous intent that is preached by members of the Norteño gang. More poignantly, the court observed that the song was probative because it does something that the gang expert would not be able to do, namely, it brings the hatred to life. Finally, the court noted that because the CD was found in the CD player in Ponce s room, it was reasonable to infer that Ponce had listened to it. The court admitted a transcript of the CD s third track and that track was played for the jury. The following refrains are representative of the song s references to gang violence: Northern villains be killers [ ] Spillin our blood for the cause. [ ] Never leave your pad without your pano. [ ] And a gun in your drawers. [ ] Cause shit gets hectic, shit gets hectic [ ] And people die when hoods collide. [ ] Fourteen caliber stars 23