Filed 2/25/98

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Merced County. William T. Ivey, Judge.

Bruce Laning, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Shirley A. Nelson and Wayne K. Strumpfer, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Edward Fuentes was convicted, following a jury trial, of first degree murder (Pen. Code, § 187; count 1) and attempted robbery (Pen. Code, §§ 211, 664; count 2). As to each count, the jury found appellant was armed with a firearm during commission of the offense (Pen. Code, § 12022, subd. (a)(1)). Appellant was sentenced to 29 years to life in prison, and ordered to pay a $5,000 restitution fine and to be housed at the California Youth Authority (Welf. & Inst. Code, § 1731.5, subd. (c)). This timely appeal followed.

In the published portion of this opinion, we hold that admission of extrajudicial statements of coparticipants, pursuant to Evidence Code section 1230, did not deny appellant his rights under the confrontation clause of the Sixth Amendment to the United States Constitution. In the unpublished portion, we reject his remaining contentions.

On the night of November 4, 1995, appellant and his friends ¾ Ricky Fernandez, Marco Reyna, Leng Vang, Keith Scott, Ray Alarcon, and Johnny De Leon ¾ drove from Reyna’s house in Merced to Planada. There, De Leon, Alarcon, and Fernandez got out of the car and one of them (apparently Fernandez) shot Isabel Sotelo in an attempted robbery. Sotelo later died. As Fernandez was himself shot (presumably by Sotelo) badly enough to need medical treatment, the group then concocted a story about his being the victim of a drive-by shooting in Merced. Police later determined there had been no such shooting. Ultimately, law enforcement officers recovered both the car and the probable murder weapon, a rifle which bore Fernandez’s palm print, from the home of Reyna’s mother.

Reyna, who was granted immunity in return for his testimony, testified that the plan to rob someone was made by the group (all of whom were D.B.S. gang members) before they left the house to go to Planada. Reyna said the rifle belonged to appellant, and that appellant was present during the discussion of the robbery. Reyna said appellant later told him that Fernandez was shot trying to rob Sotelo.

Appellant testified and admitted that he drove the car. However, he denied knowing what De Leon, Alarcon, and Fernandez were going to do when they got out of the vehicle. Appellant said he did not know anything about a robbery until detectives told him. Keith Scott, who also testified for the defense, similarly denied that there was any discussion or plan relating to a robbery. However, whereas appellant denied helping to make up the cover story about how Fernandez was shot, Scott testified that everyone made up that story together.

Sergeant Martin of the Merced Police Department, who testified as an expert on gangs, opined that the driver of the car (appellant) knew what was going to happen when the others got out of the vehicle.

A. Background

At trial, Johnny De Leon, Ray Alarcon, and Ricky Fernandez (all of whom were charged with criminal offenses arising out of the Sotelo homicide) asserted their Fifth Amendment privilege against self-incrimination, and refused to testify. The prosecution then sought to have statements they made to police admitted into evidence pursuant to Evidence Code section 1230 (declarations against interest). Appellant objected, contending portions of the statements were self-serving and, because the declarants would not be available for cross-examination, admission of the statements would violate his Sixth Amendment rights to confront and cross-examine witnesses.

The trial court determined that De Leon, Alarcon, and Fernandez were unavailable as witnesses. It ruled that statements concerning what took place in Planada would be admitted; however, statements which were not against the declarant’s penal interest (for instance, a statement by Alarcon that appellant loaded the rifle, but Alarcon was bored so he unloaded it and reloaded it) would be excluded as violative of appellant’s Sixth Amendment rights. To that end, the court and counsel went through the transcripts of the tape-recorded statements to determine what evidence would be admitted. The trial court emphasized that it would not allow the prosecutor to place into evidence anything that incriminated appellant without defense counsel having an opportunity to cross-examine the declarant.

Over appellant’s standing objection, the statements were admitted at trial through testimony by Detectives Perez and De Busk, who interviewed the three. De Leon told the detectives that he and Fernandez had confronted the people in Planada to rob them of their money. Alarcon related that he heard someone say "‘give me your money,’" but he did not know who said this. The plan was that Alarcon would hold a McDonald’s cup in order to collect the money or jewelry. Fernandez was supposed to keep the gun pointed at the victims, who were supposed to place their valuables in the cup. Alarcon related that De Leon had a small .22 caliber gun that he pointed at the victims, but it was on safety and there was only one bullet in it. There were 12 or 13 bullets in the rifle, which Alarcon said he had loaded. Fernandez told detectives that they were in Planada and saw two guys walking. The group went around the corner and Fernandez got out of the car with the rifle and demanded their money. De Leon had a handgun, and Alarcon had a cup to hold the money. Fernandez said he was the only one who did the shooting.

B. Analysis

We start with the proposition that the statements in question constituted hearsay and that, as a general rule, hearsay evidence is inadmissible. The chief reasons for this general rule of inadmissibility are that the statements are not made under oath, the adverse party has no opportunity to cross-examine the declarant, and the jury cannot observe the declarant’s demeanor while making the statements. (1 Witkin, Cal. Evidence (3d ed. 1986) The Hearsay Rule, § 558, p. 533; see Williamson v. United States (1994) 512 U.S. ___, ___ [129 L.Ed.2d 476, 482] [discussing theory behind federal hearsay rule].)

Section 1230 codifies an exception to the general rule for declarations against interest. It provides:

"When hearsay evidence is admitted it is usually because it has a high degree of trustworthiness. [Citations.] Thus, declarations against pecuniary or proprietary interest are admitted because they are unlikely to be false. [Citation.] A declaration against penal interest is no less trustworthy." (People v. Spriggs (1964) 60 Cal.2d 868, 874.) In order to exclude untrustworthy statements, however, "[t]he statement must be so far contrary to the declarant’s interests ‘that a reasonable man in his position would not have made the statement unless he believed it to be true.’ [Citations.]" (1 Witkin, Cal. Evidence, supra, The Hearsay Rule, § 691, p. 677; see Williamson v. United States, supra, 512 U.S. at p. ___ [129 L.Ed.2d at p. 482] [discussing similar requirement in Fed. Rules Evid., rule 804(b)(3), 28 U.S.C.].) Moreover, the declarant must be unavailable as a witness (§ 1230; People v. Smith (1970) 13 Cal.App.3d 897, 902); the proponent of the evidence must use the in-court testimony of the declarant if possible (1 Witkin, supra, § 690, p. 677).

Appellant concedes that De Leon, Alarcon, and Fernandez were unavailable as witnesses due to their refusals to testify. A declarant who asserts his or her Fifth Amendment privilege not to testify is "unavailable" within the meaning of the statute. (People v. Gordon (1990) 50 Cal.3d 1223, 1251; People v. Spriggs, supra, 60 Cal.2d at p. 875, fn. 3; People v. Lopez (1980) 110 Cal.App.3d 1010, 1021.) Appellant also correctly concedes that the statements ¾ carefully limited as they were to statements which were specifically disserving to the interests of the declarants ¾ constituted declarations against interest within the purview of section 1230. (People v. Leach (1975) 15 Cal.3d 419, 441 & fn. 17; see Williamson v. United States, supra, 512 U.S. at pp. ___ [129 L.Ed.2d at pp. 482-483] [Fed. Rules Evid., rule 804(b)(3), 28 U.S.C.].)

Given the foregoing, it is clear the trial court did not abuse its discretion in admitting the challenged statements pursuant to section 1230. (See People v. Gordon, supra, 50 Cal.3d at pp. 1250-1251 [applying abuse of discretion standard].) Despite the fact the statements met the requirements of that statute, however, appellant contends his Sixth Amendment rights to confrontation and cross-examination were violated by their admission. In so arguing, appellant primarily relies on Bruton v. United States (1968) 391 U.S. 123 and this court’s opinion in People v. Coble (1976) 65 Cal.App.3d 187.

In Bruton v. United States, supra, 391 U.S. 123, a joint trial was held for Bruton and Evans at which Evans’s confession, which implicated himself and Bruton, was admitted into evidence. Evans did not testify at trial. Under state evidentiary rules, Evans’s confession was inadmissible hearsay as to Bruton, and the jury was instructed to that effect. (Id. at pp. 123-125.) The United States Supreme Court reversed Bruton’s conviction, holding that "because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining [Bruton’s] guilt, admission of Evans’ confession in this joint trial violated [Bruton’s] right of cross-examination secured by the Confrontation Clause of the Sixth Amendment." (Bruton, supra, at p. 126.) The court stated:

There are two major differences between the situation in Bruton and that in the present case. First, the statements admitted into evidence here did not directly inculpate appellant, but incriminated him only in the sense they showed that a robbery was intended. Appellant’s involvement depended on unrelated evidence. Even where Bruton would otherwise apply, the lack of facial incrimination removes the evidence from Bruton’s restrictions and permits admission of such evidence with a proper limiting instruction. (Richardson v. Marsh (1987) 481 U.S. 200, 208, 211.) Second, as we have seen, the statements here were properly admitted under state rules of evidence, a situation not present in Bruton. In fact, in that case the United States Supreme Court took pains to "emphasize that the hearsay statement inculpating [Bruton] was clearly inadmissible against him under traditional rules of evidence .…" (Bruton v. United States, supra, 391 U.S. at p. 128, fn. 3.) The court noted that it did not have before it "any recognized exception to the hearsay rule" insofar as Bruton was concerned, and it was careful to note that it "intimate[d] no view whatever that such exceptions necessarily raise questions under the Confrontation Clause." (Ibid.) Indeed, Bruton is but a part of "the complex body of case law relating to the interplay of the confrontation clause with the hearsay rule[.]" (U.S. v. York (7th Cir. 1991) 933 F.2d 1343, 1362, cert. den. sub nom. York v. United States (1991) 502 U.S. 916.)

We must determine whether, despite these significant differences, admission of the evidence violated the confrontation clause.

"The Confrontation Clause of the Sixth Amendment, extended against the States by the Fourteenth Amendment, guarantees the right of a criminal defendant ‘to be confronted with the witnesses against him.’ The right of confrontation includes the right to cross-examine witnesses." (Richardson v. Marsh, supra, 481 U.S. at p. 206.) Literally read, the language of the confrontation clause would require exclusion of any statement made by a declarant not present at trial. This would abrogate virtually every hearsay exception ¾ a result long rejected by the United States Supreme Court as unintended and too extreme. (Ohio v. Roberts (1980) 448 U.S. 56, 63.) On the other hand, that court has also rejected the notion of absolute congruence between the confrontation clause and hearsay rules: "While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law." (California v. Green (1970) 399 U.S. 149, 154.)

The United States Supreme Court has described the interplay between the two principles thus:

We hold that insofar as declarations against penal interest are concerned, the requirements of section 1230 (as interpreted in People v. Leach, supra, 15 Cal.3d at p. 441 & fn. 17) are identical to those of the confrontation clause. Since the statements at issue here were properly admitted under section 1230, we conclude there is no constitutional violation.

In so holding, we need not determine whether section 1230, insofar as it concerns declarations against penal interest, codifies a firmly rooted hearsay objection. (See People v. Spriggs, supra, 60 Cal.2d at pp. 874-875 [establishing admissibility of declarations against penal interest as hearsay rule exception]; People v. Wilson (1993) 17 Cal.App.4th 271, 278 [holding exception is "firmly rooted in the law."]; Williamson v. United States, supra, 512 U.S. at p. ___ [129 L.Ed.2d at p. 486] [recognizing split in federal authorities and declining to decide question].) If it does, of course, reliability can be inferred without more. (Ohio v. Roberts, supra, 448 U.S. at p. 66.) Even if it does not, however, the evidence "may nonetheless meet Confrontation Clause reliability standards if it is supported by a ‘showing of particularized guarantees of trustworthiness.’ [Citation.]" (Lee v. Illinois (1986) 476 U.S. 530, 543.) In our view, a declaration which "so far subjected [the declarant] to the risk of … criminal liability … that a reasonable man in his position would not have made the statement unless he believed it to be true" (§ 1230) bears adequate "indicia of reliability" so as to satisfy the confrontation clause. "[T]he very fact that a statement is genuinely self-inculpatory … is itself one of the ‘particularized guarantees of trustworthiness’ that makes a statement admissible under the Confrontation Clause." (Williamson v. United States, supra, 512 U.S. at p. ___ [129 L.Ed.2d at p. 486].)

Of course, a trial court deciding whether to admit evidence under section 1230 must still examine the evidence, in the first instance, for trustworthiness. As the California Supreme Court has explained,

When sufficient trustworthiness is present to make the statement truly against interest within the meaning of section 1230 and the declarant is unavailable, admission of the statement does not violate the federal Constitution. In short, the same facts that render a statement admissible under the Evidence Code "provide indicia of reliability sufficient to satisfy the confrontation clause .…" (People v. Wilson, supra, 17 Cal.App.4th at p. 278.)

In People v. Greenberger (1997) 58 Cal.App.4th 298, Division Four of the Second District Court of Appeal reached the same conclusion ¾ "that admission of a statement possessing sufficient indicia of reliability to fall within the hearsay exception of a declaration against penal interest does not deny a defendant the right of confrontation guaranteed by the United States Constitution." (Id. at pp. 330-331.) In so holding, the court criticized this court’s opinion in People v. Coble, supra, 65 Cal.App.3d 187 as being based on a misreading of the plurality opinion in Dutton v. Evans (1970) 400 U.S. 74 and as running afoul of article I, section 28, subdivision (d) of the California Constitution. (Greenberger, supra, at p. 330.) We agree that, to the extent it can be read as imposing a restriction on the admission of evidence which is not required to satisfy the confrontation clause, Coble was wrongly decided.

In Coble, the defendant was convicted of robbery after the trial court admitted into evidence a tape-recorded statement which was given to police by a witness who was a possible coconspirator, accomplice, or aider and abettor, and which inculpated the defendant. At trial, the witness invoked his Fifth Amendment privilege against self-incrimination, and the statement was admitted pursuant to section 1230. On appeal, the defendant claimed that admission of the statement violated his Sixth Amendment right to confront witnesses. (People v. Coble, supra, 65 Cal.App.3d at pp. 190-191.)

This court found that the statement in question was both inculpatory and exculpatory: the witness attempted to minimize his role in the crime while emphasizing that of the defendant. Relying on People v. Leach, supra, 15 Cal.3d at pages 441-442 and footnote 17, we held that, because of the exculpatory character of the statement, it did not satisfy the requirements of section 1230 and, hence, was not admissible as a declaration against penal interest. (People v. Coble, supra, 65 Cal.App.3d at pp. 191-192.) We observed that the trial court should have deleted all portions of the statement which related to the defendant, and that the remaining portions were irrelevant because the witness had not been charged with any crime. (Id. at p. 192.)

We have no quarrel with Coble’s conclusion that the statement did not meet the requirements of section 1230. However, the Coble court went further and held that, even assuming the statement met the requirements of section 1230, its admission violated the defendant’s Sixth Amendment rights. (People v. Coble, supra, 65 Cal.App.3d at p. 193.) This part of the opinion does not withstand analysis.

The Coble court began by observing:

The court then turned to an examination of Dutton v. Evans, supra, 400 U.S. 74. At issue in that case were statements admitted pursuant to a Georgia statute which provided, "‘After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all,’" including statements made during the concealment phase. (Dutton v. Evans, supra, 400 U.S. at 78.) In finding no Sixth Amendment violation, the Supreme Court declined to equate the confrontation clause and the hearsay rule, but instead confined itself to deciding the case before it. (Dutton, supra, at p. 86.) The court observed:

Somehow, from the foregoing and a concurring opinion in Dutton, the Coble court distilled the following rule: "If the extra-judicial statement is of minor importance or on a collateral issue and it satisfies the requirements of hearsay exceptions established by the rules of evidence, it is admissible, but if the extra-judicial statement goes to the heart of the case, if it is ‘crucial’ or ‘devastating’ to the defendant, then it cannot be admitted unless the defendant’s constitutional right of confrontation is satisfied." (People v. Coble, supra, 65 Cal.App.3d at p. 195.) The United States Supreme Court has never imposed such a restriction on the admission of evidence. We hereby disapprove Coble to the extent it imposes such a limitation.

A. Background

At the outset of trial, the prosecutor moved, in limine, for admission of evidence of appellant’s gang affiliation pursuant to section 1101, subdivision (b). Based on an offer of proof concerning his expert’s testimony, the prosecutor asserted that appellant’s gang membership or association was admissible to show the existence of a conspiracy to commit robbery, motive to commit the crime, knowledge of the crime, and his intent as an aider and abettor. Defense counsel objected, arguing that the prosecution had another witness who would testify that appellant was a willing and knowing participant in the discussion of the robbery, and that admission of gang evidence would simply lead to "gangs on trial, rather than Eddie Fuentes on trial." Counsel conceded there might be some slight probative value, but argued it was far outweighed by the prejudicial effect. The trial court observed that while such evidence might be admissible, it was the court’s responsibility to carefully balance probative value against the potential for prejudice, and that it would not rule on the issue without hearing the expert’s testimony outside the presence of the jury.

Sergeant Martin subsequently testified outside the jury’s presence. After further argument, in which defense counsel contended that permitting Martin to testify that everyone in the car knew what was going on constituted speculation under the guise of expertise, the trial court asked to hear testimony from another officer concerning past assaultive behavior by the group. To this end, Merced Police Officer Price testified, outside the jury’s presence, that he was assigned to Golden Valley High School in Merced as the Youth Development Officer. As part of his duties, he collected information on possible gang members and passed this information to Sergeant Martin. Last year, Price was assigned to gang intervention, and one of the vice principals from the school called him to the campus to intervene regarding a problem between two different groups of students. One group called itself D.B.S. This group would "hang together" and try to walk the halls in an intimidating fashion, to the point where school officials told them they could not walk in that fashion around campus. In talking to members, Price learned that they claimed the color blue. Price subsequently spoke to student Alex Hill, a known D.B.S. member, who told him that members of his gang had been arrested for a shooting in Planada. Hill named Alarcon, Scott, De Leon, appellant, Leng Vang, Fernandez, and Reyna.

After further argument, during which the trial court wondered whether there had to be a criminal act before the presently charged offenses to qualify the group as a gang, the court tentatively ruled it would not permit expert opinion on criminal street gangs. However, it invited further input from the parties.

The next day, the court informed the parties that its research showed that conduct in the present case could be used to establish a criminal street gang. After further discussion in which the court looked to the requirements of the criminal street gang statute (Pen. Code, § 186.22) for instruction, the court ruled there was sufficient evidence that D.B.S. was a criminal street gang so as to allow the use of expert testimony for the limited purpose for which it was offered. After argument concerning probative value versus prejudicial effect, the trial court ruled that the evidence’s probative value was not substantially outweighed by the "substantial danger of undue prejudice," so the evidence would be admitted. Appellant was granted a continuing objection to Martin’s testimony.

Martin, who was in charge of the Gang Violence Suppression Unit, testified before the jury that a "[c]riminal street gang is a group of two or more persons joined together, the purpose, furtherment of the gang and to commit criminal activity. They have a common name, common kinship." Martin first became aware of the gang called D.B.S. about two years earlier. The incident involved in this trial was what moved them from a group of people associating together to a criminal street gang.

Martin validated approximately five members in the gang, and estimated another five to seven people were associates or potential members. In order to be validated as a gang member, a person had to meet at least three of ten established criteria, and have a criminal activity. Alex Hill and Keith Scott were validated members of D.B.S. D.B.S. claimed the color blue, which identified the gang as a Crip sect. Martin found literature in Scott’s room that indicated D.B.S. was a Crip sect.

In response to a hypothetical question based on the prosecution’s evidence at trial, Martin gave his opinion that the driver of the car knew what was going to happen when the others got out of the vehicle. Martin explained that although gangs may not be highly sophisticated, by nature they are tactical. They use plans and tactics that are thought out. It would be important for the driver of the car to know what was going on, in order to assist in the getaway and to help locate possible victims.

B. Analysis

1. Sufficiency of the Evidence

Appellant first contends the evidence was insufficient to establish that D.B.S. was a criminal street gang. He appears to base this on the members’ lack of prior criminal records, and the fact Martin had never seen or heard of appellant doing gang graffiti, seen him in a gang photograph, or seen him flashing gang signs.

At the outset, we observe that appellant was not charged under Penal Code section 186.22, which criminalizes active and knowing participation in a criminal street gang when coupled with willful promotion or assistance of felonious conduct by the gang’s members (Pen. Code, § 186.22, subd. (a)), and which provides a sentence enhancement upon conviction of a felony committed for the benefit of, and with specific intent to promote, a criminal street gang (Pen. Code, § 186.22, subd. (b)). Accordingly, that D.B.S. may not have met all criteria for being a "criminal street gang" under that statute is not dispositive of whether the trial court properly allowed the challenged testimony. However, as the trial court recognized, the statute is instructive.

Subdivision (f) of Penal Code section 186.22 defines "criminal street gang" as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (23), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engaged in or have engaged in a pattern of criminal gang activity." "Pattern of criminal gang activity" is defined in subdivision (e) of the statute as "the commission of, attempted commission of, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses provided… the offenses were committed on separate occasions, or by two or more persons .…" Robbery and murder are two of the enumerated offenses. (Pen. Code, § 186.22, subd. (e)(2), (3).)

It is apparent from the language of subdivision (e), which lists "commission of" and "conviction of" in the disjunctive, that a conviction for specified conduct is not required. Nor must the offense(s) have been committed by the defendant; commission by one or more gang members is sufficient. (See In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1003.) Moreover, a pattern can be established by two or more incidents, each with a single perpetrator, or, as here, by a single incident with multiple perpetrators committing one or more specified offenses. (Ibid.) Furthermore, the trial court properly relied on the current incident; a predicate offense may be proved through evidence in the case currently being tried. (People v. Loeun (1997) 17 Cal.4th 1, 10-11; see People v. Gardeley (1996) 14 Cal.4th 605, 625; In re Nathaniel C., supra, 228 Cal.App.3d at pp. 1002-1003.) Finally, that appellant may not have been observed flashing gang signs, etc., is immaterial; it was undisputed that the group had a common name, and even appellant himself and his own witness (Keith Scott) testified that appellant was a member.

The culture and habits of street gangs are proper subjects for expert testimony under section 801, subdivision (a). (People v. Gardeley, supra, 14 Cal.4th at p. 617.) Here, the evidence sufficiently established that D.B.S. was a criminal street gang so as to permit admission of the testimony.

2. Section 352

Appellant also contends the evidence should have been excluded as more prejudicial than probative. He is incorrect.

Section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." In this regard, "the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124, citations & emphasis omitted.) The same standard applies to the decision of a trial court to admit expert testimony (People v. McAlpin (1991) 53 Cal.3d 1289, 1299) or gang evidence (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.)

Evidence of a criminal defendant’s gang membership creates a risk the jury improperly will infer the defendant has a criminal disposition and is therefore guilty of the crimes charged. (People v. Williams (1997) 16 Cal.4th 153, 193; People v. Luparello (1986) 187 Cal.App.3d 410, 426.) Because of such evidence’s potential for having a "‘highly inflammatory impact’" on the jury, a trial court should carefully scrutinize the evidence before admitting it. (People v. Champion (1995) 9 Cal.4th 879, 922.) However, evidence of gang membership is properly admitted when it is relevant to a question in issue such as motive or intent. (People v. Funes (1994) 23 Cal.App.4th 1506, 1518; People v. Frausto (1982) 135 Cal.App.3d 129, 140.)

Here, appellant was tried on theories of aiding and abetting, and conspiracy. "A ‘person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.’" (People v. Marshall (1997) 15 Cal.4th 1, 40, quoting People v. Beeman (1984) 35 Cal.3d 547, 561.) Conspiracy requires an intent to agree and an intent to commit the offense which is the object of the conspiracy. (People v. Swain (1996) 12 Cal.4th 593, 600; People v. Horn (1974) 12 Cal.3d 290, 296.)

Appellant’s knowledge and intent were very much in issue in this case, and the challenged evidence was highly probative on these points. The evidence was not cumulative of Reyna’s testimony; because he had been granted immunity, his testimony may have been suspect in the eyes of the jury and, as defense counsel told the trial court during argument on the gang evidence issue, the defense was strongly contesting Reyna’s testimony as he had given at least two other versions of events. (Contrast People v. Maestas (1993) 20 Cal.App.4th 1482, 1495.) Thus, while evidence of appellant’s gang membership, together with Martin’s testimony thereon, may have been prejudicial to a certain degree, it was highly probative of issues the prosecution was required to prove. (See People v. Olguin, supra, 31 Cal.App.4th at p. 1370.) Accordingly, the trial court did not abuse its discretion in admitting the evidence.

Appellant now says the trial court erred. He argues that, pursuant to CALJIC No. 2.20, the jury was permitted to consider anything that had a tendency in reason to prove or disprove his testimony. However, it is not clear that the jury asked its question in terms of appellant’s credibility.

In any event, appellant has failed to show how his age was relevant, either to the jury’s determination of his credibility or otherwise. As for the effect of his age on his mode of thinking, appellant asserts that "[c]ertainly" his age and maturity would have bearing on both his testimony and his intent; that the prosecution had to prove he was aware of the intent of his cohorts; and that "[t]he thought processes of an immature sixteen year old boy are different from those of a mature adult." Appellant’s saying this is so neither makes it relevant nor makes it a proper consideration for the jury. No evidence related to the effect of appellant’s age on his mode of thinking was presented at trial nor can we conclude, as appellant would have us do, that consideration of such an effect is "common sense." There is nothing before us to suggest that being 16 or 17 years old affects a person’s credibility or affects his or her mode of thinking with regard to intent or awareness. Under the circumstances of this case, the trial court did not err in answering the jury’s question as it did.

Last, appellant contends his due process rights were violated because the prosecutor threatened defense witness Keith Scott with prosecution if he testified.

At the outset of trial, defense counsel stated that he intended to call Scott, who had not been charged in this incident, as a witness. Defense counsel asked the court to appoint an attorney for Scott, as the prosecutor had informed counsel it had been decided to charge Scott. Upon inquiry by the court, the prosecutor stated that charges were under review, and that Scott would definitely be charged as an accessory and possibly as an aider and abettor or conspirator to murder. When asked why this was happening so late, the prosecutor stated he was hoping Scott would have a change of heart and testify for the prosecution, and that the district attorney’s office was trying to give him as much time as possible to do that. The court appointed counsel for Scott.

Prior to Scott’s testimony, his attorney told the court that he had advised Scott to assert his privilege against self-incrimination since he could potentially face a murder charge. However, Scott wanted to testify anyway. Scott then took the witness stand and affirmed his attorney’s statements. Upon request of the attorney, the court relieved him as counsel.

Scott was subsequently called as a defense witness. During direct examination, defense counsel asked Scott whether he had been made aware that, if he testified for appellant, murder charges would be filed against him. Outside the presence of the jury, this occurred:

Defense counsel was then permitted to elicit from Scott, in front of the jury, that Scott had been told the prosecutor said that if he testified for appellant, murder charges would be filed; that Scott’s lawyer advised him not to testify; and that Scott was testifying anyhow.

B. Analysis

Governmental interference which violates a defendant’s compulsory-process right includes the intimidation of defense witnesses by the prosecution. (In re Martin (1987) 44 Cal.3d 1, 30.) It has been found where, for example, a defense witness declined to testify after being told by the prosecutor that if he testified as anticipated, he could or would be prosecutor for various offenses, including accessory to murder. (U.S. v. Smith (D.C. Cir. 1973) 478 F.2d 976, 977-979.)

However, assuming such prosecutorial misconduct/intimidation/interference is shown here, reversal is not warranted unless prejudice is shown. (People v. Siripongs (1988) 45 Cal.3d 548, 579.) Since there is no evidence Scott refused to testify ¾ indeed, Scott was a major witness for the defense ¾ appellant has failed to establish prejudice. (Ibid.) Accordingly, his contention must fail.

The judgment is affirmed.

Ardaiz, P.J.

WE CONCUR:

Vartabedian, J.

Thaxter, J.