Filed 10/19/15 P. v. Arriaga CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEJANDRO ARRIAGA,

Defendant and Appellant.

 H040529

 (Santa Clara County

 Super. Ct. No. C1230121)

Defendant Alejandro Arriaga appeals from a judgment of conviction entered after 

a jury found him guilty of shooting at an inhabited dwelling (Pen. Code, § 2461– count 

1) and attempted murder (§§ 664, subd. (a)/187 – count 2). The jury also found that 

defendant committed both offenses for the benefit of a criminal street gang (§ 186.22, 

subd. (b)(1)(C) & (4)) and that he personally discharged a firearm during the commission 

of the attempted murder (§ 12022.53, subds. (b), (c)). The trial court sentenced defendant 

to 35 years to life in state prison. Defendant contends: (1) there was insufficient 

evidence to support the finding that one of the gang’s primary activities was committing 

crimes; and (2) the trial court erred in admitting evidence of uncharged offenses. We 

affirm the judgment.

 

1

 All further statutory references are to the Penal Code unless otherwise indicated.
2

I. Statement of Facts

A. Charged Offenses

On April 9, 2012, Jose Cano was having a party with about seven friends. His 

daughter Chanelle was also present. Defendant, who had not been invited, arrived at 

Cano’s house at about 4:00 p.m. or 4:30 p.m. Defendant was drunk. Cano had 

previously spoken to defendant six to eight times and knew him as “Dro” and “Cabbage 

Patch.” Cano asked defendant if he wanted a beer and defendant grabbed one. When one 

of Cano’s friends said it was her beer, Cano told defendant to take the beer and leave. 

Defendant left. 

About 15 minutes later, defendant returned to Cano’s house. Defendant was loud 

and obnoxious. Cano took defendant into his bedroom and told him that he was 

disrespecting him and his friends. Defendant responded by stating that he was a 

“Northerner,” and “I’m from the west side.” He also claimed, “This is my varrio,” and 

“This is my hood.” Cano told defendant to leave. When Cano thought defendant was 

going to hit him, he pushed him towards the front door. Defendant stumbled and his red 

Chicago Bulls baseball cap fell off. As defendant left, he looked upset. 

About 10 minutes after defendant left, Chanelle told Cano that someone was at the 

front door. Cano responded that he would answer the door. Both Cano and Chanelle 

heard defendant yell, “Hey, Joe.” Immediately thereafter, three gunshots were fired. 

Everyone in the house hit the floor. One bullet struck the bedroom door frame to the left 

of where Cano was standing. Chanelle glanced out the window and saw defendant enter 

the front passenger seat of a black Dodge Magnum. Cano called 911. 

Between 5:00 p.m. and 6:00 p.m. on April 9, 2012, Edward Armond was riding his 

bike to Cano’s house to retrieve a tool that Cano had borrowed from him. When Armond 

was close to Cano’s house, he heard a gunshot. As he pulled up to the entrance to Cano’s 

driveway, he saw defendant’s Dodge Magnum in the driveway and defendant pointing a 
3

gun at the front door of Cano’s house. As Armond watched, defendant fired two more 

shots. Armond turned around and left. 

The police retrieved a red Chicago Bull’s baseball cap and two bullets from 

Cano’s house. One bullet was lodged in the front door and the other was lodged in the 

bedroom door frame. The police also found a bottle of Corona beer in Cano’s driveway. 

When the police went to defendant’s apartment, they saw a black Dodge Magnum 

with two male occupants driving on the street about 40 feet away from them. After the

driver looked at the police and sped off, they chased the Dodge Magnum with their lights 

and siren on. The driver of the vehicle ran some red lights, drove up to 100 miles per 

hour, lost control, and crashed into two parked cars in a driveway. The driver, who was 

wearing a red shirt underneath a gray sweatshirt, exited the vehicle and ran. The police 

chased him, but he escaped by jumping over a fence. Meanwhile, defendant walked to 

the front door of the house and sat on the porch. The residents called 911. Defendant 

was wearing a gray and red sweatshirt and white shoes with red trim when he was 

arrested. 

The police searched the Dodge Magnum, which had a strong odor of alcohol. 

They found a red and black baseball cap in rear of the vehicle and a baseball bat in the 

trunk. They did not find a gun in the vehicle or along the path that the driver had taken. 

After transporting defendant to the police station, an officer conducted a gunshot 

residue test. A criminalist tested these samples and determined that there was gunshot 

residue on defendant’s hands and the sleeves of his sweatshirt. 

Detective Clayton Le testified as an expert on criminal street gangs in Santa Clara 

County. In Detective Le’s opinion, defendant was a San Jose Norteno gang member 

based on the facts of the present case and his previous contacts with the police. Detective

Le considered defendant’s statements “I’m a Northerner, this is my hood” and “I’m west 

side,” which he made to Cano. He explained that defendant’s reference to “west side” 

indicated that he was a Norteno gang member from the west side of San Jose. According 
4

to Detective Le, “West Side Mob” gang members refer to themselves as “west side” and 

their territory is near Luther Avenue where the shooting occurred in this case. He also 

explained that members of San Jose Norteno will use both Northerner and Norteno to 

describe themselves and that defendant’s statement “this is my hood” indicated that he 

was claiming the neighborhood for his gang. Detective Le testified that Nortenos 

commonly wear red clothing and both defendant and the driver of the Dodge Magnum 

were wearing red clothing on the night of the shooting. Detective Le also testified that 

defendant had been seen with two Norteno gang members, Michael Zapian and Robin 

Wanes, on prior occasions. There are over 500 members of San Jose Norteno in Santa 

Clara County. 

Detective Le testified that he had conducted investigations involving several 

Norteno gang members. Ezekiel Tadeo and Justin de la Garza were convicted of assault 

with a deadly weapon with a gang enhancement after an incident in which a woman’s 

hand was sliced. When police conducted a probation search of Jeremiah Garcia, who had 

a felony record for possession of narcotics, they found metal knuckles, a shotgun, and a 

stolen pistol. Robert Ebertowski was convicted of criminal threats with a gang 

enhancement after he threatened to kill some police officers. Jeremiah Rocho was 

convicted of attempted murder after he stabbed a Sureno gang member. Detective Le 

testified that other crimes committed by San Jose Nortenos include homicide, carjacking, 

shooting into homes or cars, kidnapping, car theft, arson, possession of illegal firearms, 

vandalism, and drug sales. 

Detective Le discussed three prior court cases involving Norteno gang members. 

When the police were trying to arrest Manuel Fuentes, he retrieved a handgun from his 

waistband and threw it. Fuentes was convicted of possession of an illegal weapon with a 

gang enhancement. Armando Mata and Manuel Sandoval stabbed the victim, who had 

objected to having them in his house. Mata and Sandoval were convicted of assault with 

a deadly weapon with a gang enhancement. Richard Lopez stabbed a Sureno, who had 
5

been sitting in his car in a Norteno neighborhood. Lopez was convicted of attempted 

murder with a gang enhancement and Britney Elaban was convicted of accessory after 

the fact with a gang enhancement. Based on the police reports, court documents, and 

conversations with investigating officers, Detective Le concluded that San Jose Norteno 

gang members engage in a pattern of criminal activity within the meaning of section 

186.22. Detective Le also identified murder, assault with a deadly weapon, illegal 

possession of a firearm, shooting into an occupied dwelling, and attempted murder as the 

primary activities of San Jose Nortenos. 

The parties stipulated that defendant was the registered owner of a black Dodge 

Magnum from January 11, 2011 to November 7, 2013. The parties also stipulated: 

defendant’s DNA was located inside the Chicago Bulls baseball cap found in Cano’s 

house; defendant’s DNA was located inside the baseball cap found inside his Dodge 

Magnum; and defendant’s fingerprints were on the bottle of Corona beer found on 

Cano’s driveway. 

B. Uncharged Offenses

On December 3, 2011, defendant was listening to loud music in his car while 

parked in front of his residence. The trunk and the car doors were open and defendant 

was drunk. Joseph Villalobos asked defendant to move his car and to stop making noise. 

Defendant became upset and told Villalobos that he “kill[s] people who bother him.”

Villalobos saw a black baseball bat in the trunk of the car and returned to his residence. 

The following day, Villalobos found that his car had been vandalized. The car no

longer had windows and was “smashed all over.” Villalobos found the aluminum bat,

which he had previously seen in defendant’s trunk, near his car. He contacted the police. 
6

II. Discussion

A. Sufficiency of the Evidence

Defendant contends that there was insufficient evidence to support the “primary 

activities” element of the gang enhancement finding. 

“ ‘We review the sufficiency of the evidence to support an enhancement using the 

same standard we apply to a conviction. [Citation.]’ ” (People v. Wilson (2008) 44 

Cal.4th 758, 806.) “[W]e review the entire record in the light most favorable to the 

judgment to determine whether it contains substantial evidence—that is, evidence that is 

reasonable, credible, and of solid value—from which a reasonable trier of fact could find 

the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in 

support of the judgment the trier of fact could have reasonably deduced from the 

evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, 

reversal of the judgment is not warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither 

reweighs evidence nor reevaluates a witness’s credibility.’ ” (People v. Albillar (2010) 51 

Cal.4th 47, 60.)

Section 186.22, subdivision (f) defines a “ ‘criminal street gang’ ” as “a group of 

three or more persons” that has as “one of its primary activities the commission of one or 

more of the criminal acts enumerated” in the statute. A criminal street gang must also 

have “a common name or common identifying sign or symbol” and its members must 

“engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f).)

“The phrase ‘primary activities,’ as used in the gang statute, implies that the 

commission of one or more of the statutorily enumerated crimes is one of the group’s 

‘chief’ or ‘principal’ occupations. [Citation.]” (People v. Sengpadychith (2001) 26 

Cal.4th 316, 323 (Sengpadychith).) “Sufficient proof of the gang’s primary activities

might consist of evidence that the group’s members consistently and repeatedly have 

committed criminal activity listed in the gang statute.” (Id. at p. 324.) “Also sufficient 
7

[to show the gang’s primary activities] might be expert testimony,” i.e., testimony by a

gang expert based on the expert’s conversations with gang members, the expert’s 

personal investigations of gang crimes, and information the expert has obtained from 

other law enforcement officers. (Ibid.)

Here, Detective Le testified as an expert regarding criminal street gangs in Santa 

Clara County. He had received over 175 hours of formal gang training and had been a 

member of the Gang Investigation Unit for nearly two years. He had participated in over 

a hundred gang investigations, which involved crimes committed by Nortenos. Detective 

Le had also talked to over 200 gang members about gangs and gang lifestyles. Detective 

Le opined that San Jose Nortenos met the definition of a criminal street gang under 

section 186.22 based on his training, experience, and contact with gang members. His 

own participation in investigations of Norteno gang members involved those who were 

convicted of assault with a deadly weapon, illegal possession of a firearm, and attempted 

murder. He also based his opinion on court records of other Norteno gang members who 

were convicted of these same offenses. According to Detective Le, other crimes 

committed by San Jose Norteno gang members included homicide, carjacking, shooting 

into homes or cars, kidnapping, car theft, arson, possession of illegal firearms, vandalism, 

and drug sales. Detective Le subsequently identified murder, assault with a deadly 

weapon, illegal possession of a firearm, shooting into an occupied dwelling, and 

attempted murder as the primary activities of San Jose Nortenos.

2

 

2

 Defendant argues that Detective Le never offered an opinion as to the primary 

activities of San Jose Nortenos. We disagree. Detective Le testified that section 186.22 

defines a criminal street gang as including, among other things, members who 

“collectively or individually participate in a pattern of criminal activity whose primary 

activity is one of the enumerated offenses of 186.22 previously referred to, the murder, 

the assault with a deadly weapon, illegal possession of a firearm, shooting into an 

occupied dwelling.” (Italics added.) Detective Le had previously testified that San Jose 

Nortenos committed these offenses. 
8

Relying on In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.), 

defendant argues that there was insufficient evidence of the gang’s primary activities. In 

that case, the expert witness, who had been working in the gang enforcement unit for an 

unspecified period of time, testified regarding the primary activities of Varrio Viejo: “‘I 

know they’ve committed quite a few assaults with a deadly weapon, several assaults. I 

know they’ve been involved in murders. [¶] I know they’ve been involved with auto 

thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’ ” (Id. at pp. 609, 611.) 

In concluding that there was insufficient evidence to support the gang enhancement, the 

Court of Appeal reasoned: “Lang’s entire testimony on this point is quoted above—he 

‘kn[e]w’ that the gang had been involved in certain crimes. No specifics were elicited as 

to the circumstances of these crimes, or where, when, or how Lang had obtained the 

information. He did not directly testify that criminal activities constituted Varrio Viejo’s 

primary activities. Indeed, on cross-examination, Lang testified that the vast majority of 

cases connected to Varrio Viejo that he had run across were graffiti related. [¶] Even if 

we could reasonably infer that Lang meant that the primary activities of the gang were 

the crimes to which he referred, his testimony lacked an adequate foundation. ‘The 

requirements for expert testimony are that it relate to a subject sufficiently beyond 

common experience as to assist the trier of fact and be based on matter that is reasonably 

relied upon by an expert in forming an opinion on the subject to which his or her 

testimony relates. [Citations.]’ [Citation.] . . . . We cannot know whether the basis of 

Lang’s testimony on this point was reliable, because information establishing reliability 

was never elicited from him at trial.” (Alexander L., at pp. 611-612, fn. omitted.) 

Alexander L. is distinguishable from the present case. Here, Detective Le testified 

regarding his gang training, his conversations with gang members, and his participation 

in gang investigations in Santa Clara County. As Sengpadychith, supra, 26 Cal.4th at 

p. 324 acknowledged, this testimony provided a reliable basis for Detective Le’s expert 
9

opinion as to the primary activities of the San Jose Nortenos. Thus, there was substantial 

evidence to support the primary activities element of section 186.22, subdivision (f).

Defendant also argues that “eight crimes committed by a group of over 500 people 

proves only ‘the occasional commission of those crimes by the group’s members,’”

quoting Sengpadychith, supra, 26 Cal.4th at p. 323. However, defendant overlooks 

Detective Le’s testimony that the primary activities of San Jose Nortenos included some 

of the offenses enumerated in section 186.22.

B. Admissibility of Evidence of Uncharged Offenses

Defendant next contends that the trial court erred when it admitted evidence that 

he had previously threatened Villalobos and vandalized his car. 

1. Background

The prosecutor brought a motion in limine in which he sought the admission of an 

incident in December 2011. On that occasion, defendant was playing loud music from 

his car in front of a residence owned by Villalobos. When Villalobos told defendant that 

he could not park his car there while playing loud music, defendant became angry and 

said that he would “kill people who bother him.” Villalobos noticed that there was a 

black aluminum bat in defendant’s car. The next day, Villalobos discovered that his car 

had been vandalized. He also saw a bat similar to the one that he had seen in defendant’s 

trunk near his car. The prosecutor argued that this evidence was relevant to prove 

defendant’s intent, motive, and the gang allegation under Evidence Code section 1101. 

Defense counsel objected and argued that the evidence was irrelevant and unduly 

prejudicial. The trial court admitted the evidence of the uncharged offenses to prove 
10

motive, that defendant committed the charged offenses to benefit the gang, or that 

defendant acted with the specific intent to kill.3 

2. Analysis

“ ‘Subdivision (a) of [Evidence Code] section 1101 prohibits admission of 

evidence of a person’s character, including evidence of character in the form of specific 

instances of uncharged misconduct, to prove the conduct of that person on a specified 

occasion. Subdivision (b) of [Evidence Code] section 1101 clarifies, however, that this 

 

3

 Prior to Villalobos’s testimony, the trial court instructed the jury pursuant to 

CALCRIM No. 375: “[T]his is [a] case in which you use evidence for one purpose and 

not another. You may hear evidence that the defendant committed other offenses, 

vandalism and criminal threat that was not charged in this case. You may consider this 

evidence only if the People have proved by a preponderance of the evidence that the 

defendant, in fact, committed vandalism and criminal threat. [¶] Proof by a 

preponderance of the evidence is a different burden than proof beyond a reasonable 

doubt. A fact is proved by a preponderance of the evidence if you conclude that it is 

more likely than not that the fact is true. If the People have not proved this burden, you 

must disregard this evidence entirely. [¶] If you decide that the defendant committed 

vandalism or criminal threat, you may, but are not required to, consider that evidence for 

the limited purpose of deciding whether or not the defendant had a motive to commit the 

charged offenses or the defendant committed the charged offenses for the benefit of, at 

the direction of, or in association with a criminal street gang with the specific intent to 

promote, further, or assist in criminal conduct by gang members or that the defendant had 

the specific intent required for count two [attempted murder charge]. [¶] Do not consider 

this evidence for any other purpose. In evaluating this evidence, consider the similarity 

or lack of similarity between the vandalism and/or the criminal threat and the charged 

offenses. [¶] Do not conclude from this evidence that the defendant had a bad character 

or is disposed to commit crimes. If you conclude that the defendant committed the 

uncharged act of vandalism and/or criminal threat, that conclusion is only one factor to 

consider along with all the other evidence. It is not sufficient by itself to prove that the 

defendant is guilty of the charged crimes. The People must still prove each charge 

beyond a reasonable doubt. [¶] You will get this instruction again at the end of the case 

along with all the other instructions. I’m giving this particular one to you now so that 

you’ll know how to treat this evidence. You use it for the limited purpose of deciding 

whether or not a certain aspect of the charged offenses is true. [¶] The mental state that I 

refer to, the motive to the committed charged offenses, whether or not the charged 

offense was for the benefit of a street gang or whether the mental state required for count 

two is true.” 
11

rule does not prohibit admission of evidence of uncharged misconduct when such 

evidence is relevant to establish some fact other than the person’s character or 

disposition.’ [Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava).) Thus, 

evidence may be admitted to prove, among other things, intent and motive. (Evid. Code, 

§ 1101, subd. (b).) 

“ ‘When reviewing the admission of evidence of other offenses, a court must 

consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value 

of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule 

or policy requiring exclusion even if the evidence is relevant. [Citation.] Because this 

type of evidence can be so damaging, “[i]f the connection between the uncharged offense 

and the ultimate fact in dispute is not clear, the evidence should be excluded.”

[Citation.]’ ” (Fuiava, supra, 53 Cal.4th at p. 667.) Moreover, the probative value of the 

uncharged offense must be weighed against the danger “of undue prejudice, of confusing 

the issues, or of misleading the jury.” (Evid. Code, § 352.)

“ ‘ “We review for abuse of discretion a trial court’s rulings on relevance and 

admission or exclusion of evidence under Evidence Code sections 1101 and 352.”

[Citation.]’ [Citation.]” (Fuiava, supra, 53 Cal.4th at pp. 667-668.)

We first consider whether the evidence of the uncharged offenses was admissible 

to prove intent. “To be admissible, there must be some degree of similarity between the 

charged crime and the other crime, but the degree of similarity depends on the purpose 

for which the evidence was presented.” (People v. Jones (2011) 51 Cal.4th 346, 371.) 

“The least degree of similarity is required to prove intent or mental state.” (People v. 

Thomas (2011) 52 Cal.4th 336, 355.) “In order to be admissible to prove intent, the 

uncharged misconduct must be sufficiently similar to support the inference that the 

defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ 

[Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)
12

The California Supreme Court has explained that the relevance of uncharged 

offenses to prove intent is based on the doctrine of chances, that is, “‘the instinctive 

recognition of that logical process which eliminates the element of innocent intent by 

multiplying instances of the same result until it is perceived that this element cannot 

explain them all. . . . In short, similar results do not usually occur through abnormal 

causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends 

(increasingly with each instance) to negative accident or inadvertence or self-defense or 

good faith or other innocent mental state, and tends to establish (provisionally, at least, 

though not certainly) the presence of the normal, i.e., criminal, intent accompanying such 

an act . . . .’ [Citations.]” (People v. Robbins (1988) 45 Cal.3d 867, 879-880 (Robbins), 

superseded by statute on another ground as stated in People v. Jennings (1991) 53 Cal.3d 

334, 387, fn. 13.) In Robbins, the defendant confessed that he had sodomized and choked 

a young boy to death. (Robbins, at p. 872) At trial, he tried to establish that he had 

confessed falsely and though he admitted that he had killed the boy, he claimed that there 

had been no sexual activity or any sexual motive for the killing, and that the killing was 

not intentional. (Id. at p. 873.) Robbins held that the evidence that the defendant had 

previously lured a young boy into his truck, sodomized him, and strangled him was 

admissible to prove lewd intent and intent to kill. (Id. at pp. 880-881.)

The Attorney General argues that the charged and uncharged incidents in the 

present case were sufficiently similar so that the jury could reasonably infer that 

defendant harbored a similar intent in each case, that is, with intent to kill and with the 

specific intent to promote, further, or assist in criminal conduct by gang members. She 

points out that both the charged and uncharged offenses occurred only four months apart 

in the same neighborhood when defendant was drunk and obnoxious. 

We agree that defendant’s prior threat to “kill people who bother him” was 

admissible to prove intent as to counts 1 and 2. “[A] generic threat is admissible to show 

the defendant’s homicidal intent where other evidence brings the actual victim within the 
13

scope of the threat. [Citations.]” (People v. Rodriguez (1986) 42 Cal.3d 730, 757 [the

defendant’s prior threat to kill any police officer who would attempt to arrest him was 

properly admitted to show intent in shooting two police officers].) However, evidence 

that defendant had vandalized Villalobos’s car was not relevant to prove defendant acted 

with the intent to kill Cano when he shot at Cano’s front door or with the intent to 

promote criminal conduct by gang members. The Attorney General also notes that 

defendant was disrespected in his “hood” and defendant overreacted by responding 

violently in both incidents. However, the charged incident involved defendant’s attempt 

to kill Cano with a gun by firing through his front door while the uncharged incident

involved vandalizing Villalobos’s car with a bat. Defendant’s hitting the victim’s car 

with a bat does not support the inference that defendant intended to kill when he shot at 

Cano’s front door. Moreover, there was no evidence that the uncharged offenses were in 

any way gang-related. Unlike in Robbins, the evidence of defendant’s hitting the car with 

a bat and the charged offenses were not sufficiently similar to support the inference that 

defendant had the same intent on both occasions. Thus, the trial court erred when it 

admitted the evidence of defendant’s vandalizing the car on the issue of intent to kill. It 

also erred when it admitted evidence of the uncharged offenses on the issue of the 

specific intent to promote, further, or assist in criminal conduct by gang members.

In contrast to the issue of the admissibility of uncharged offenses to prove intent, 

“the probativeness of other-crimes evidence on the issue of motive does not necessarily 

depend on similarities between the charged and uncharged crimes, so long as the offenses 

have a direct logical nexus. [Citations.]” (People v. Demetrulias (2006) 39 Cal.4th 1, 

15.) 

The Attorney General argues that there was a nexus between the uncharged 

offenses and the charged offenses, because defendant “reacted violently to feeling 

disrespected in his gang territory and tried to prove to the neighbors in his ‘hood’ that 

their disrespect of him and his gang would not be tolerated.” However, the evidence of 
14

the uncharged offenses did not include any references to disrespecting a gang member or 

his gang, and thus, did not tend to prove defendant’s motive as to the charged offenses. 

Accordingly, it was error to admit the evidence of the uncharged offenses on the issue of 

motive.

Though we have concluded that the trial court abused its discretion in admitting 

evidence of the uncharged offenses to show motive, evidence of the vandalism to show 

intent, and evidence of the uncharged offenses to show intent to promote criminal 

conduct by gang members, reversal is not required.4The erroneous admission of 

evidence constitutes reversible error only if it resulted in a miscarriage of justice. (Cal. 

Const., art. VI, § 13; Evid. Code, § 353, subd. (b).) A reviewing court should declare a 

miscarriage of justice only when the court concludes it is reasonably probable the 

defendant would have obtained a more favorable result in the absence of the error. 

(People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

Relying on People v. Woodward (1979) 23 Cal.3d 329 (Woodward),

5

People v. 

Rucker (1980) 26 Cal.3d 368 (Rucker),6and People v. Cardenas (1982) 31 Cal.3d 897, 

(Cardenas), defendant claims that “[a] long period of deliberation, by itself, is an 

indication that the error was prejudicial.” He points out that the evidentiary portion of the 

trial lasted about six days and the jury deliberated for about nine hours before returning 

its verdict. 

In Woodward, our Supreme Court held that the trial court erred when it allowed a 

nonparty witness to be impeached with felony convictions that were unrelated to 

truthfulness. (Woodward, supra, 23 Cal.3d at p. 340.) Regarding prejudice, Woodward

 

4

 Defendant concedes that the error did not affect his conviction for shooting at an 

inhabited dwelling. 

5

 Woodward, supra, 23 Cal.3d 329, superseded by statute on another ground as 

recognized by People v. Castro (1985) 38 Cal.3d 301, 307-310.

6

Rucker, supra, 26 Cal.3d 368, superseded by constitutional amendment on another 

ground as stated in People v. Elizalde (2015) 61 Cal.4th 523, 531.
15

stated: “The issue of guilt in this case was far from open and shut, as evidenced by the 

sharply conflicting evidence and the nearly six hours of deliberations by the jury before 

they reached a verdict. Clearly, the jury had misgivings about [the victim’s]

identification of [defendant] as the culprit.” (Woodward, at p. 341.) We agree with 

People v. Walker (1995) 31 Cal.App.4th 432 (Walker), which concluded that Woodard

was not controlling on this point: “We find nothing in [Woodard] which relates the 

length of the jury’s deliberations with the length of the trial such that we can make any 

comparison between the facts of this case and those in Woodard. . . . Accordingly, we 

decline to take Justice Bird’s isolated comment that the jury deliberated for nearly six 

hours as legal authority for us to conclude that because defendant’s jury deliberated for 

nearly six and one-half hours the case was closely balanced such that the exclusion of [a 

witness’s] testimony was prejudicial.” (Walker, at p. 437.)

Rucker and Cardenas also do not assist defendant. Rucker, supra, 26 Cal.3d 368 

held that the admission of evidence of two interviews between the defendant and law 

enforcement to rebut the defense of diminished capacity was error. In determining 

prejudice, Rucker stated: “The question of the degree of [defendant’s] criminal liability 

was not clear-cut since the sole issue presented to the jury was the defense of diminished 

capacity. The fact that the jury deliberated nine hours before reaching a verdict 

underscores this fact.” (Id. at p. 391.) Cardenas, supra, 31 Cal.3d 897 held that the 

admission of evidence of the defendant’s addiction to heroin as well as the defendant’s 

and several defense witnesses’ gang membership was error. (Id. at pp. 904, 906, 907.) In 

discussing prejudice, Cardenas reasoned: “This court has held that jury deliberations of 

almost six hours are an indication that the issue of guilt is not ‘open and shut’ and 

strongly suggest that errors in the admission of evidence are prejudicial. (See People v. 

Woodard (1979) 23 Cal.3d 329, 341 . . . .) Here, the jury deliberated twice as long as the 

jury in Woodard, a graphic demonstration of the closeness of this case.” (Cardenas, at 

p. 907.) As in Woodard, there is no indication in Rucker or Cardenas as to the length of 
16

the trials, and thus we cannot compare the facts of the present case and those in Rucker

and Cardenas. In our view, “the length of the deliberations could as easily be reconciled 

with the jury’s conscientious performance of its civic duty, rather than its difficulty in 

reaching a decision.” (Walker, supra, 31 Cal.App.4th at p. 439.) 

Nor are we persuaded by defendant’s argument that the jury’s request for 

readbacks of the testimony of Cano and Chanelle as well as that of the police officers 

who had interviewed Cano demonstrates that the prosecution case was a close one. Here, 

the evidence against defendant was overwhelming. Defendant points out that he could 

not see anyone inside the house when he fired through the front door. However, two 

witnesses heard defendant call Cano to his front door immediately prior to his firing the 

gun three times. Thus, the evidence established that defendant was expecting Cano to 

come to the door when he fired the shots. Moreover, defendant’s prior threat to “kill 

people who bother[ed]” him tended to prove that he acted with the intent to kill Cano, 

who had asked him to leave his house. Defendant also notes that he had no gang tattoos 

and had never been previously identified as a gang member. During the incident, 

defendant was wearing Norteno gang colors and made references to gang membership by 

stating that he was a Northerner from the west side and by claiming the neighborhood for 

his gang. In addition, defendant was accompanied by someone wearing Norteno colors 

on the night of the shooting and he had been seen with two Norteno gang members on 

prior occasions. This evidence supported Detective Le’s opinion that defendant 

committed the crimes for the benefit of the Norteno gang. Accordingly, it is not 

reasonably probable that defendant would have obtained a more favorable result in the 

absence of the erroneous admission of the evidence of the uncharged offenses. (Watson, 

supra, 46 Cal.2d at p. 836.)7

 

7

 The strength of the evidence against defendant in the present case renders it 

factually distinguishable from People v. Pearch (1991) 229 Cal.App.3d 1282, 1295 and 

(Continued)
17

Defendant also argues that the lack of probative value of the uncharged offenses 

evidence and its highly prejudicial nature deprived him of his federal due process right to 

a fair trial. 

“[T]he admission of evidence, even if erroneous under state law, results in a due 

process violation only if it makes the trial fundamentally unfair. [Citations.]” (People v. 

Partida (2005) 37 Cal.4th 428, 439.) “Only if there are no permissible inferences the 

jury may draw from the evidence can its admission violate due process. Even then, the 

evidence must ‘be of such quality as necessarily prevents a fair trial.’ [Citations.] Only 

under such circumstances can it be inferred that the jury must have used the evidence for 

an improper purpose.” (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.) In 

our view, the evidence of the uncharged offenses was not so prejudicial that it rendered 

his trial fundamentally unfair.

III. Disposition

The judgment is affirmed.

 

People v. Williams (1971) 22 Cal.App.3d 34, 38-40. Defendant’s reliance on People v. 

Hernandez (1988) 47 Cal.3d 315 (Hernandez) is also misplaced. At issue in Hernandez

was whether CALJIC No. 8.75 included ambiguous language that had infected jury 

deliberations. (Hernandez, at pp. 351-352.) It was in this context that Hernandez noted 

that there was “no indication of disagreement or deadlock, no request to the court for 

further instructions or the rereading of particular testimony.” (Id. at p. 352.)
18

_______________________________

Mihara, J.

WE CONCUR:

______________________________

Bamattre-Manoukian, Acting P. J. 

______________________________

Grover, J.