IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Saul Cristobal,

Defendant and Appellant. )

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) MEMORANDUM DECISION

Case No. 20100818

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F I L E D

(July 6, 2012)

2012 UT App 181

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Fourth District, Provo Department, 091403145

The Honorable Lynn W. Davis

Attorneys: Robert M. Congelliere, Provo, for Appellant

Mark L. Shurtleff and Andrew F. Peterson, Salt Lake City, for Appellee

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Before Judges McHugh, Thorne, and Christiansen.

McHUGH, Presiding Judge:

¶1 Saul Cristobal appeals from his conviction of aggravated assault with an “in

concert” enhancement, a second degree felony, see Utah Code Ann. § 76

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‐ 103 (2008);

id. § 76

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‐ 202; id. § 76

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‐ 203.1 (Supp. 2011), and riot, a third degree felony, see id. § 76

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101 (2008). 1 We affirm.

1. Since the events giving rise to the charges in this case, the Utah Legislature has made

material changes to the aggravated assault statute. Therefore, we cite the version of that

statute in effect when the alleged offense occurred. Compare Utah Code Ann. § 76

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‐ 103

(continued...)¶2 The background in this case is the same as in the companion case of State v. High

,

2012 UT App 180, released concurrently with this opinion, and we do not restate it in

detail here. At trial, Cristobal testified that he is a former member of Provo Varrio

Locotes, or PVL, a street gang. While Cristobal raised other arguments in his appellate

brief, at oral argument he limited his claim on appeal to a challenge under rule 403 of

the Utah Rules of Evidence to the Gang Activity Evidence. 2 The final part of an analysis

under rule 404(b) of the Utah Rules of Evidence is a rule 403 balancing of the probative

value of the evidence against its risk of unfair prejudice. 3 See High

, 2012 UT App 180,

¶ 29 (stating that relevant evidence “‘may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice’” (quoting State v. Nelson

‐ Waggoner, 2000 UT 59, ¶ 20, 6 P.3d 1120)). With one exception, all of the evidence

challenged by Cristobal also formed the basis of High’s appeal. See id. ¶ 42. As

explained in State v. High

, either that evidence was properly received or any assumed

error in admitting it was harmless. See id. ¶¶ 41

‐ 54. The only evidence that Cristobal

challenges but High does not is the testimony that PVL considers Provo to be its

territory (the territory testimony). Cristobal concedes the relevance of this evidence, but

argues that it should have been excluded because its probative value was substantially

outweighed by the danger of unfair prejudice.

1. (...continued)

(2008), with id. § 76

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‐ 103 (Supp. 2011). Because the legislature has not made any

substantive changes to the provisions of the other statutes discussed in this opinion, we

cite the current version of the Utah Code with respect to all statutes except the

aggravated assault statute.

2. The Gang Activity Evidence includes evidence that PVL considers Provo to be its

territory, that PVL’s purpose is to fight rival gangs within that territory, that fighting

and aggressive behavior earns status within PVL, and that codefendant Lonny High

acknowledged that he knew such activity was probably illegal. See State v. High

, 2012

UT App 180, ¶ 42.

3. The Utah Rules of Evidence were amended in 2011. The amendments were intended

to “be stylistic only” and not intended to “change any result in any ruling on evidence

admissibility.” See Utah R. Evid. 403, 2011 advisory committee’s notes. Therefore,

unless otherwise indicated, we cite the current version of the rules for the reader’s

convenience.

20100818

‐ CA 2¶3 “‘We review a trial court’s decision to admit or exclude evidence under [r]ule 403

. . . [using] an abuse of discretion standard.’” State v. Downs

, 2008 UT App 247, ¶ 6, 190

P.3d 17 (alterations in original) (quoting State v. Castillo

, 2007 UT App 324, ¶ 6, 170 P.3d

1147) (additional internal quotation marks omitted). Rule 403 provides that a “court

may exclude relevant evidence if its probative value is substantially outweighed by a

danger of

. . . unfair prejudice.” The rule is “inclusionary” and “presumes the

admission of all relevant evidence except where the evidence has an unusual propensity

to unfairly prejudice, inflame, or mislead the jury.” State v. Kooyman

, 2005 UT App 222,

¶ 26, 112 P.3d 1252 (internal quotation marks omitted).

¶4 The territory testimony is relevant to the “in concert” enhancement and motive

because it explains why gang members might congregate in the area and exhibit

hostility toward intruding nonmembers. See People v. Hernandez

, 94 P.3d 1080, 1086

(Cal. 2004) (“Evidence of the defendant’s gang affiliation—including evidence of the

gang’s territory

. . . —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.”) ; People v. Ayala

, 567 N.E.2d 450, 455 (Ill. App. Ct. 1990) (holding that evidence

that the victims were in territory claimed by two rival gangs was relevant and

admissible to prove motive for a seemingly inexplicable attack); People v. Cherry

, 850

N.Y.S.2d 645, 648

‐ 49 (N.Y. App. Div. 2007) (holding that the trial court did not err in

admitting expert testimony on gangs, including “the geographic areas ascribed to the

local gang,” where it “explained a possible motive, namely the perceived disrespect by

one victim who was not a gang member but sold drugs in an area controlled by the

gang”). The State alleged that Cristobal, his codefendant Lonny High, and an

unidentified third man, had initiated an unprovoked attack on two brothers as they

walked along the Provo River Parkway. See High

, 2012 UT App 180, ¶ 5. Where neither

brother was affiliated with PVL or a gang rival to PVL, the territory testimony was

needed to prove the state’s theory that the brothers were harassed and then brutally

attacked for no apparent reason while using the Provo River Parkway. The fact that the

brothers were in the gang’s territory at the time of the altercation made it more likely

that High and Cristobal were the aggressors.

¶5 We are likewise not convinced that the territory testimony would likely “rouse

the jury to overmastering hostility.” See State v. Allen

, 2005 UT 11, ¶ 24, 108 P.3d 730

(internal quotation marks omitted). By the time the State elicited this testimony, the

jury was aware that “Provo Varrio Locotes” translates in English to “Provo

20100818

‐ CA 3Neighborhood Crazies,” thereby suggesting that the gang considers Provo its

“neighborhood.” Under these circumstances, the additional fact that PVL claims Provo

as its territory carries little risk of unfair prejudice.

¶6 Therefore, we conclude that the trial court did not exceed its discretion by

admitting the territory testimony.

¶7 Affirmed.

____________________________________ Carolyn B. McHugh,

Presiding Judge

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¶8 WE CONCUR:

____________________________________ William A. Thorne Jr., Judge

____________________________________ Michele M. Christiansen, Judge

20100818

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