State v. CristobalState v. Cristobal
McHUGH, Presiding Judge:
¶ 1 Saul Cristobal appeals from his conviction of aggravated assault with an “in concert” enhancement, a second degree felony, see
¶ 2 The background in this case is the same as in the companion case of State v. High, 2012 UT App 180, 282 P.3d 1046, 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
¶ 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).
¶ 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, 33 Cal.4th 1040, 16 Cal.Rptr.3d 880, 94 P.3d 1080, 1086 (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, 208 Ill.App.3d 586, 153 Ill.Dec. 492, 567 N.E.2d 450, 455 (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, 46 A.D.3d 1234, 850 N.Y.S.2d 645, 648-49 (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, 282 P.3d 1046, 1050. 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 Neighborhood 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.
¶ 8 WE CONCUR: WILLIAM A. THORNE JR., and MICHELE M. CHRISTIANSEN, Judges.