Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. NA071555 Arthur Jean, Judge.
Law Offices of Anthony D. Zinnanti and Anthony D. Zinnanti, under appointment by the Court of Appeal and the California Appellate Project, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
RELEVANT PROCEDURAL HISTORY
On May 25, 2007, an amended information was filed, charging appellant Dwain Luis Brazil with offenses on two different dates. Under count 1, the information alleged that on August 4, 2006, appellant assaulted Marilyn Ann Jackson with a firearm (Pen. Code, § 245, subd. (a)(2)). Accompanying count 1 were allegations that appellant had personally used a firearm (§§ 667.5, subd. (c), 1192.5, subd. (c), 12022.5) and caused great bodily injury (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)).
All further statutory citations are to the Penal Code.
Under counts 2 through 4, the information charged that on September 2, 2006, appellant assaulted Regina Laquita Ridley and Rachaun Shamarie Ridley with a firearm (§ 245, subd. (a)(2)), and made criminal threats to Rachaun Shamarie Ridley (§ 422). Accompanying each of counts 2 through 4 were allegations that appellant personally used a firearm (§§ 1192.7, subd. (c), 12022.5, 667.5, subd. (c)), and committed the offense for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist criminal gang conduct (§ 186.22, subd. (b)(1)). The amended information further alleged that appellant had suffered a prior felony conviction (§ 667.5, subd. (b)). Appellant pleaded not guilty to the charges.
Trial was by jury. Following the close of evidence and prior to jury deliberations, the trial court granted appellant’s motion to strike the gang allegations under counts 2 through 4, and admonished the jury to disregard the expert testimony presented in support of these allegations. The jury found appellant guilty as charged, and also found true the remaining special allegations. Appellant admitted his prior conviction. The trial court sentenced appellant to a term of imprisonment totaling 19 years and four months.
FACTS
A. Prosecution Evidence
1. Count 1
In August 2006, Marilyn Jackson lived with her family -- including her sister, Regina Ridley, her brother, Rachaun Ridley, and her cousin, Shai Gilliam -- in an apartment building in Long Beach. Jackson testified as follows: Between 4:00 and 5:00 p.m. on August 4, 2006, she went outside the building on an errand. As she left the building, she encountered appellant, who was talking to other individuals, including two persons she knew as “Man” and “Eric.” Jackson had seen appellant around the building, and knew him as “Damage” and “Dwain.” For approximately 45 minutes, she conversed pleasantly with appellant, who remarked that she had “gr[own] up.”
Appellant eventually removed a gun from his pocket and displayed it to Jackson. When Jackson said that the gun looked like a fake, appellant loaded two bullets into it. He sat down beside Jackson, placed the gun on her right hip, and pulled the trigger, but the gun did not fire. He next pointed the gun at her head and pulled the trigger, but the gun again did not fire. He aimed the gun at Man, said “Move it,” then swung the gun back toward Jackson and discharged it into her left knee. Appellant fled in a car. Jackson spent two weeks in a hospital recovering from her gunshot injury. At some point, appellant came to Jackson’s residence and tried to apologize for the shooting.
Shai Gilliam testified that she heard a gunshot while in the apartment. When she looked down from a balcony, she saw appellant put a gun in his pocket and make a call on a cell phone. Appellant and Man then drove away in a car.
2. Counts 2 through 4
During the evening of September 2, 2006, Marilyn Jackson returned home in a van driven by her sister, Regina Ridley. Also present in the van was Shai Gilliam. As they entered the parking lot of Jackson’s apartment block, they saw appellant in the lot, standing next to his car.
According to Jackson and Regina Ridley, Regina parked her van behind appellant’s car to block his departure, and phoned Rachaun Ridley and the police. Gilliam left to find help. Appellant asserted that he had turned himself in for shooting Jackson, pulled out the gun with which he had shot Jackson, and pointed it at Rachaun, who had appeared at the scene. Appellant threatened to shoot Rachaun unless Regina moved her van, and pointed the gun at Regina when she tried to phone the police. After she moved the van, appellant drove away.
Rachaun Ridley testified as follows: He was watching television when Gilliam told him that Regina Ridley needed help regarding appellant in the parking lot. He went to the parking lot and asked appellant whether he had shot Jackson. Appellant replied affirmatively, and said that he had turned himself in. Appellant pointed a gun at Rachaun’s head, and threatened to kill him unless Regina Ridley moved her vehicle. After Regina complied, appellant -- who continued to point his gun at Rachaun -- walked to his car and said, “I am from the Rolling 20’s, and I will kill you.” Rachaun understood this remark as a reference to a gang, and he felt additional fear as a result.
According to Gilliam, after Regina Ridley blocked appellant’s car, Regina told appellant that she was going to call the police. Gilliam ran to the apartment building and called for help. When she returned to the parking lot, she saw appellant point a gun at Rachaun Ridley, and then drive away.
When appellant was arrested on September 11, 2006, his car contained a “speedy loader,” a device that permits a person to load a revolver’s chambers simultaneously.
B. Defense Evidence
Sarah McCord testified that on August 4, 2006, she was talking with a friend named “Tristin” across the street from Marilyn Jackson’s apartment building. Appellant was nearby. She saw a man she knew as “Damage” -- but who is not appellant -- arguing with a girl across the street. She heard a shot and saw the man run away. McCord told an investigator for the Public Defender that she never saw a gun (or that she did not know whether the man had a gun); she also told an investigator for the District Attorney that she had seen a gun.
Long Beach Police Department Officer Oscar Morales testified that he interviewed Marilyn Jackson on August 4, 2006. She said that “Damage” -- who she described as six feet in height and 150 to 170 pounds in weight -- had pointed his gun at her hip and neck before it accidentally discharged into her knee.
Appellant testified on his own behalf. According to appellant, prior to the shooting of Jackson, he stood outside Jackson’s building, talking with Jackson, Sarah McCord, a male he knew as “Damage,” and Tristin Thomas, whom he also knew as “Man.” He believed that Damage was the man Jackson had identified in her testimony as “Eric.” Appellant described Damage as six feet in height and 150 to 170 pounds in weight, and himself as six feet four inches in height and 210 pounds in weight.
Appellant further testified that Damage displayed a gun, loaded it with two bullets, and pointed it at Jackson and appellant. Appellant pushed the gun away from himself and turned to leave. He heard a shot, and saw Jackson holding her knee as Damage ran away. He picked up Jackson, carried her to her family members who had appeared on the scene, and left, fearful that police officers would discover that he had been smoking marijuana. Approximately 30 minutes later, appellant returned to the apartment building, where he encountered Rachaun Ridley. Rachaun said that unless appellant turned in the shooter, he would identify appellant as the perpetrator.
Appellant further testified that on September 2, 2006, a woman parked her van behind his car in the building’s parking lot. When he asked her to move the van, she refused. Rachaun Ridley appeared and demanded that appellant reveal Damage’s location. Appellant denied any knowledge about Damage. When the van was eventually moved, appellant drove away. Appellant denied that he threatened anyone with a gun or made any admission about shooting Jackson.
According to appellant, he found the speedy loader on the tennis courts at Cerritos College, which he attended. He used it as a pen holder.
C. Rebuttal
Rachaun Ridley testified that on August 4, 2006, he worked until 5:00 or 5:30 p.m., and arrived home between 6:30 p.m. and 7:00 p.m. He learned that Jackson had been shot, and went to the hospital to see her. He neither saw nor talked to appellant on that date, and never threatened to accuse appellant of the shooting if appellant failed to disclose Damage’s location. Rachaun reaffirmed his testimony that appellant admitted shooting Jackson when Rachaun confronted him in the parking lot.
DISCUSSION
Appellant contends that the trial court improperly denied (1) his motion to bifurcate trial of the gang allegations, and (2) his request to sanitize the prior conviction. In addition, he requests this court independently review the in camera proceeding conducted pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), to determine whether the trial court erred in denying pretrial disclosure of any information.
A. Bifurcation of Gang Enhancements
Appellant contends the trial court committed reversible error in denying his motion to bifurcate trial of the gang allegations. We disagree.
1. Governing Principles
Section 186.22, subdivision (b)(1), provides a sentence enhancement for a defendant convicted “of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1).) As our Supreme Court explained in People v. Hernandez (2004) 33 Cal.4th 1040, 1051 (Hernandez), when a gang enhancement has been alleged, the trial court may decline to bifurcate trial of the enhancement unless the defendant makes a clear showing of prejudice. In cases not involving a gang enhancement, evidence of gang membership is properly excluded if its probative value is minimal, due to the potential for prejudice to the defendant. (Id. at p. 1049.) Nonetheless, even in cases of this kind, gang evidence is often admissible as relevant to many issues, including identity, motive, and intent. (Ibid.) In contrast, when a gang enhancement is alleged, considerations of efficiency and the conservation of judicial resources weigh in favor of submitting gang evidence to the jury. In this respect, a bifurcation request invokes considerations pertinent to a motion to sever charged offenses. (Ibid.) Accordingly, in cases involving gang allegations, the trial court may properly deny bifurcation absent a clear showing that a joint trial carries a substantial danger of undue prejudice, even though some evidence bearing on the enhancement would be inadmissible in a separate trial of the underlying offense. (Id. at pp. 1049-1050.)
2. Underlying Proceedings
At the preliminary hearing, the prosecutor contended there was sufficient evidence to support gang allegations regarding the assaults on Marilyn Jackson, Regina Ridley, and Rachaun Ridley, as well as the criminal threats to Rachaun Ridley. Rachaun Ridley testified that after appellant threatened him with a gun and Regina Ridley moved her van, appellant went to his car, continuing to hold the gun. As appellant entered his car, he said that he was from “the 20’s,” and that he would “kill [Rachaun] dead.” Long Beach Police Detective Hector Gutierrez, a gang expert, provided testimony about the Rolling 20’s Crips, and opined that appellant was a member of the gang. According to Gutierrez, all the offenses arising from the incidents on August 4 and September 2, 2006, were for the benefit of the gang. He stated that the Rolling 20’s Crips used weapons to build a reputation for violence in the community, and intimidated witnesses to inhibit criminal prosecutions. The magistrate nonetheless concluded that no evidence supported a gang enhancement regarding the August assault on Jackson.
The complaint before the magistrate at the preliminary hearing is not in the record.
The gang is also called “the Roll’n 20’s gang” and the “Rollin’ 20’s Crip[s]” in the record.
Appellant filed a motion to set aside the information (§ 995), contending, inter alia, that insufficient evidence had been presented at the preliminary hearing to support the remaining gang allegations. Appellant argued that there was no evidence that his acts on September 2, 2006, were intended to benefit a gang, as Regina Ridley had initiated the incident. On May 25, 2007, the trial court concluded there was sufficient evidence to support the remaining gang allegations.
On May 25, 2007, the first day of trial, appellant asked the trial court to bifurcate trial of the gang allegations. Noting that appellant had mentioned his gang membership in threatening Rachaun Ridley, the trial court denied the motion. At trial, Detective Gutierrez testified that the Rolling 20’s gang claims two neighborhoods in Los Angeles, and has at least 488 members. Gang members engage in a variety of crimes, including murder, robbery, transportation of narcotics, prostitution, and witness intimidation. According to Gutierrez, the gang is “extremely violent.” Members often identify themselves by displaying the colors black, yellow, and gold; however, with increasing frequency, they avoid overt gang indicia to avoid gang enhancements for crimes. Gutierrez opined that appellant was a member of the gang. Gutierrez also identified members of the gang other than appellant who had been convicted for, respectively, possession of cocaine for sale and possession of a controlled substance. He opined that the crimes charged against appellant in counts 2 through 4 had been committed for the benefit of the gang.
The prosecution’s case-in-chief ended with Gutierrez’s testimony. Immediately following his testimony, appellant asked the trial court to strike the gang allegations for want of substantial evidence to support them (§ 1118.1). The trial court granted the request, remarking: “[B]ut for the parting shot [of appellant], . . . to the effect that he is in Rolling 20’s, [“]I will kill you,[”] this is not a gang case at all.”
Although appellant’s counsel referred to section 1118 in asserting the motion, the parties do not dispute that the appropriate statutory basis for the motion was section 1118.1. Under section 1118.1, “‘[t]he “test to be applied by the trial court under the section is . . . the same test applied by an appellate court in reviewing a conviction: whether from the evidence, including reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged [citations]” [Citations.]’” (People v. Allen (2001) 86 Cal.App.4th 909, 913, quoting People v. Lines (1975) 13 Cal.3d 500, 505.)
In instructing the jury that the gang allegations had been dismissed, the trial court stated: “Please don’t speculate as to why you no longer have to decide that. Please accept it that it is just not part of what you have to decide in the case. After the case is all over, I would be glad to explain why it is no longer for you to decide. But at this point, it is just not something that I should be explaining to you. [¶] And you say, [“W]e are the jury in this case. Why don’t we get to know that?[”] The answer is you don’t. The law says you don’t. Accept it. [¶] Secondly, Detective Gutierrez’s testimony, because his testimony went to that allegation, I am going to ask you to put it out of your mind. And you are going to say[, “]How can we do that?[”] Well, you are going to do that. And you will find that jurors in fact do it. So please do not consider Detective Gutierrez’s testimony for any purpose whatsoever. It just didn’t happen.”
3. Analysis
Appellant contends the trial court committed reversible error in denying his request to bifurcate trial of the gang allegations accompanying counts 2 through 4 (the assaults on Regina and Rachaun Ridley and the criminal threats against Rachaun Ridley). He argues that if the trial court had properly scrutinized Detective Gutierrez’s proposed testimony, it would have recognized -- as it later ruled in granting the section 1118.1 motion -- that the testimony was insufficient to support the gang allegations, and thus would have barred the gang evidence prior to trial. He further argues that the admission of the gang evidence denied him a fair trial, as the trial court’s ruling on the section 1181.1 motion establishes that Gutierrez’s trial testimony had no probative value.
We find guidance regarding the assessment of appellant’s contentions in Hernandez. There, our Supreme Court, relying on an analogy between bifurcation requests and motions to sever offenses, concluded that the trial court’s discretion to deny bifurcation is broader than its discretion to admit gang evidence when no gang enhancement has been alleged. (Hernandez, supra, 33 Cal.4th at p. 1050.) Generally, a ruling on a severance motion is reviewed in light of the facts before the trial court at the time of the motion. (People v. Johnson (1988) 47 Cal.3d 576, 590, overruled on another ground in People v. Reyes (1998) 19 Cal.4th 743, 752-754.) Nonetheless, even if the ruling was correct, the judgment must be reversed if the defendant shows that joinder “‘actually resulted in “gross unfairness” amounting to a denial of due process.’” (People v. Mendoza (2000) 24 Cal.4th 130, 162, quoting People v. Arias (1996) 13 Cal.4th 92, 127.) In view of the analogy between bifurcation and severance, we adopt a similar analytical approach here. For the reasons explained below, we conclude that (1) the trial court did not err in denying the bifurcation request in light of the then-available facts, and (2) the admission of the gang evidence did not deny appellant a fair trial.
We begin with appellant’s contentions regarding the propriety of the ruling on the bifurcation request. At the outset, we reject appellant’s contention that the trial court improperly denied the request on the basis of a “nominal” review of the gang evidence. Although trial courts must “carefully scrutinize” such evidence before admitting it (People v. Albarran (2007) 149 Cal.App.4th 214, 222 (Albarran)), the burden of establishing the necessity for bifurcation falls upon the defendant (Hernandez, supra, 33 Cal.4th at p. 1051). Because the trial court ruled on appellant’s section 995 motion shortly before it denied the bifurcation request, it was aware of the gang evidence presented at the preliminary hearing. In seeking bifurcation, appellant identified no other gang evidence likely to be presented at trial. Accordingly, nothing before us suggests that the trial court was unfamiliar with the proposed gang evidence when it ruled on the bifurcation request.
Nor did the trial court err in denying bifurcation at the time of the request. In assessing this ruling, we examine a variety of factors, including the extent to which the gang evidence was admissible regarding the underlying offenses, and the extent to which the evidence offered in support of the gang allegation might have improper inflammatory effects. (Hernandez, supra, 33 Cal.4th at pp. 1050-1051.) Here, the information charged appellant with making criminal threats to Rachaun Ridley. This offense, in its current form, was created to address the use of threats by criminal street gangs. (People v. Moore (2004) 118 Cal.App.4th 74, 79-81.) To establish the offense, the prosecutor was obliged to show that appellant threatened to kill Rachaun “with the specific intent that the statement . . . be taken as a threat,” which facially conveyed a “gravity of purpose and an immediate prospect of execution of the threat” so as to cause Rachaun “reasonably to be in sustained fear for his . . . safety.” (§ 422.) Under the circumstances of this case, appellant’s gang-related remarks to Rachaun Ridley were admissible to establish the charge of criminal threats, even absent any gang allegation. (See People v. Butler (2000) 85 Cal.App.4th 745, 754-755 [in case not involving gang allegation, defendant’s reference to his gang membership, coupled with his other remarks and conduct, constituted criminal threat].)
Moreover, the testimony at the preliminary hearing constituted substantial evidence in support of the gang allegation accompanying the charge of criminal threats. In People v. Hill (2006) 142 Cal.App.4th 770, 772-773 (Hill), the defendant was involved in a minor traffic accident with a woman. When she told the defendant to look where he was driving, he mentioned his gang, accused her of “disrespecting” him, displayed a gun, and threatened to “bop” her with it. (Ibid.) A jury found the defendant guilty of making criminal threats, and found true an accompanying gang allegation. (Id. at p. 773.) On appeal, he argued there was insufficient evidence to support the gang allegation, as there was no evidence that in making the threat, he had “the specific intent . . . to promote, further, or assist in any criminal conduct by gang members.” (Id. at p. 774, quoting § 186.22, subd. (b)(1), italics omitted.) The court in Hill rejected this contention, reasoning that the defendant’s criminal threat, by itself, constituted “‘criminal conduct by gang members,’” and that there was no statutory requirement that he intend to promote some other gang-related crime. (Hill,at p. 774.)
Here, as in Hill, there is no evidence that appellant deliberately initiated the incident on September 2, 2006. Nonetheless, even if -- as the trial court later concluded in connection with the section 1118.1 motion -- appellant lacked the specific intent required for gang enhancements in connection with his assaults on Regina and Rachaun Ridley, there was ample testimony at the preliminary hearing to support a gang enhancement regarding the criminal threats to Rachaun. Rachaun testified that appellant first identified himself as a gang member and threatened Rachaun after Regina had moved her van, when appellant -- who held a gun -- was about to leave the scene; in addition, Detective Gutierrez testified that witness intimidation enhanced the gang’s reputation and deterred prosecutions against its members. In view of Hill, this evidence was sufficient to establish that appellant was a gang member, and that appellant, in threatening Rachaun, satisfied the statutory requirements for a gang enhancement.
As the evidence at trial regarding the criminal threats charge materially resembled the evidence at the preliminary hearing, we reject the trial court’s conclusion in connection with the section 1118.1 motion that the gang allegation accompanying the charge failed for want of substantial evidence. Because the existence of substantial evidence in the context before us presents a question of law, we are not bound by the trial court’s determination. (See People v. Cole (2004) 33 Cal.4th 1158, 1213 [denial of section 1118.1 motion is reviewed independently].) In departing from the trial court on this matter, we do not reverse the grant of the section 1118.1 motion, which cannot be challenged on appeal. (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 563, p. 806.)
Under these circumstances, the denial of the bifurcation request was not an abuse of discretion at the time of the request. Some of the gang evidence was admissible with respect to the criminal threats charge, and the proposed expert testimony supported the gang allegation accompanying one of the charges. In our view, the trial court was not obliged to order a separate trial of the gang allegation, even if it attached exclusively to the criminal threats charge, because the assaults on Regina and Rachaun Ridley and the criminal threats formed a single course of conduct, the evidence regarding these offenses was intertwined, and the case for each offense was reasonably strong. (Cf. People v. Burnel (2005) 132 Cal.App.4th 938, 946-948 [trial court may properly deny severance of gang offense from other offenses when the offenses form a single course of conduct and the evidence regarding the offenses is cross-admissible and intertwined].) Accordingly, the trial court properly denied bifurcation.
We also conclude that the admission of the gang evidence did not deny appellant due process. For the reasons explained above, the gang evidence was properly admitted in support of the criminal threats charge and associated gang allegation. Nonetheless, to the extent that Detective Gutierrez’s testimony regarding the other gang allegations carried a potential for undue prejudice, the trial court’s admonition to the jury to disregard his testimony cured the effects of the evidence.
Generally, we presume that jurors comply with a trial court’s instructions and admonishments. (People v. Adcox (1988) 47 Cal.3d 207, 253.) In suitable circumstances, an instruction cures potential prejudice from the improper admission of evidence, even when the existence of prejudice is assessed under the stringent beyond-a-reasonable-doubt test for federal constitutional error found in Chapman v. California (1967) 386 U.S. 18, 24. Thus, in People v. Frank (1990) 51 Cal.3d 718, 725-728, a jury convicted the defendant of first degree murder with special circumstances. During the penalty phase of trial, the trial court admitted evidence of the defendant’s molestation of a child, and permitted the prosecutor to refer to a different molestation; the trial court then concluded that it had erred on these matters, and admonished the jury at length to disregard the evidence and references. (Id. at pp. 725-727.) After the jury returned a death verdict, the defendant challenged the admonition’s efficacy. (Ibid.) Applying the no-reasonable-possibility-of-prejudice test -- which is equivalent to the Chapman test (People v. Lancaster (2007) 41 Cal.4th 50, 94) -- our Supreme Court concluded that the admonition was sufficient to cure any prejudice from the errors, as the evidence and references were cumulative over other properly admitted evidence. (Ibid.; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82-83 [defendant’s federal constitutional claims predicated on erroneous admission of expert’s opinion testimony failed in light of limiting instructions regarding testimony].)
Here, the evidence regarding appellant’s own gang-related remarks to Rachaun Ridley were properly admitted to establish the offense of criminal threats, and Detective Gutierrez’s testimony was otherwise admissible to establish the associated gang allegation. Because his testimony regarding the other gang allegations was cumulative, the trial court’s admonition cured any prejudice arising from the erroneous admission of this testimony. Appellant’s contention that he was denied due process therefore fails.
Appellant contends that because the admonition was limited to Detective Gutierriez’s testimony, it could not cure the prejudice arising from the erroneous admission of gang testimony from Detective Theodore Covey, who arrested appellant. We disagree. According to Covey, gang units assisted in the arrest, and a gang unit transported appellant to jail. In our view, Covey’s fleeting references to gang units were too minor to amount to a denial of due process. (People v. Mendoza, supra, 24 Cal.4th at p. 163.)
In view of this conclusion, it is unnecessary for us to address whether the erroneous admission of Detective Gutierrez’s testimony was prejudicial under the less demanding standard in People v. Watson (1956) 46 Cal.2d 818, which is applicable to state law error (People v. Epps (2001) 25 Cal.4th 19, 29).
Appellant’s reliance on Albarran, supra, 149 Cal.App.4th is misplaced. There, the defendant was charged with attempted murder and other crimes, all of which were accompanied by gang allegations. (Id. at p. 217.) Prior to trial, the defendant tried unsuccessfully to exclude the gang evidence on the basis of Evidence Code section 352. (Albarran, supra, 149 Cal.App.4th at p. 217.) After the jury found him guilty as charged, and found the gang allegations true, the defendant sought a new trial, asserting that there was insufficient evidence to support the gang allegations, and that the admission of the irrelevant and prejudicial gang evidence warranted a new trial. (Ibid.) The trial court granted the motion solely with respect to the gang allegations. (Ibid.) On appeal, the defendant challenged the pretrial evidentiary ruling and the ruling on the new trial motion. (Id. at pp. 222-223.) In reversing the judgment, the majority in Albarran focused primarily on the ruling on the new trial motion, and concluded that appellant had been denied due process because an excessive amount of the gang evidence admitted at trial was irrelevant to the gang allegations and underlying offenses. (Albarran, supra, 149 Cal.App.4th at pp. 227-232.) In a footnote, it declined to examine the pretrial evidentiary ruling in light of the analogy to severance explained in Hernandez, as the propriety of the analytical approach based on the analogy had not been raised by the parties. (Albarran, at p. 230, fn. 14.)
The dissent in Albarran advocated the analytical approach based on the analogy. (Albarran, supra, 149 Cal.App.4th at pp. 233-242 [Perluss, P.J., dissenting].)
Unlike Albarran, the analytical issue is squarely presented here: appellant attacks only the ruling on his pretrial bifurcation request, and the parties have discussed the analytical approach in their briefs. For the reasons explained above, we have applied that approach. Moreover, unlike Albarran, much of the gang evidence admitted at trial was relevant to an underlying offense and the associated gang allegation. Additionally, the trial court admonished the jury to disregard the gang expert’s testimony entirely. Under these circumstances, we see no reversible error.
For similar reasons, the remaining case authority upon which appellant relies is inapposite. In each case, the trial court admitted inflammatory gang evidence with little probative value, and gave no instruction adequate to cure prejudice from the evidence. (People v. Avitia (2005) 127 Cal.App.4th 185, 193-195; People v. Maestas (1993) 20 Cal.App.4th 1482, 1494-1498.) That is not what occurred here.
B. Refusal to Sanitize Prior Conviction
Appellant contends the trial court erred in denying his request to sanitize his prior felony conviction, which was admitted to impeach him. He argues that the trial court improperly allowed the jury to hear that his prior conviction was for assault by means likely to produce great bodily injury, despite its similarity to the crimes charged against him.
A prior felony conviction involving moral turpitude -- that is, a general readiness to do evil -- is admissible for impeachment purposes. (People v. Castro (1985) 38 Cal.3d 301, 317.) As our Supreme Court has explained, the rationale underlying this principle is that the commission of a felony that involves moral turpitude provides a basis for inferring that the felon “is more likely to be dishonest than a witness about whom no such thing is known.” (Id. at p. 315.) Assault by means of force likely to produce great bodily injury is a crime of moral turpitude for the purpose of impeachment. (People v. Elwell (1988) 206 Cal.App.3d 171, 175.)
In determining whether to admit such a prior conviction, “‘[t]he trial court should consider four factors . . .: (1) whether the prior conviction reflects adversely on an individual’s honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions. [Citation.]’ [Citation.]” (People v. Green (1995) 34 Cal.App.4th 165, 182, quoting People v. Muldrow (1988) 202 Cal.App.3d 636, 644.) The trial court has the discretion to sanitize references to the conviction. (People v. Sandoval (1992) 4 Cal.4th 155, 178.)
Prior to trial, appellant’s counsel stated that appellant intended to testify, and admit a prior conviction for assault with a deadly weapon other than a firearm, or by means likely to produce great bodily harm (§ 245, subd. (a)(1)). Appellant’s counsel conceded that the prior conviction was admissible to impeach appellant, but argued that its similarity to the charged offenses might create prejudice. She asked the trial court to sanitize the conviction as “simply a felony conviction.” In rejecting the request, the trial court stated: “I don’t think it is meaningful to the jury to have an unnamed generic felony conviction come in.” During appellant’s direct examination, his counsel elicited that he had suffered a conviction in January 2002 for assault by means likely to cause great bodily injury. The trial court subsequently instructed the jury that it could not consider appellant’s prior conviction as evidence of a propensity to commit a crime.
Appellant’s sole contention is that the trial court abused its discretion in assessing whether the similarity between the charged offenses and his prior conviction was likely to create undue prejudice. We disagree. The trial court may properly admit evidence of prior crimes similar to a charged offense when exclusion of this evidence would “allow the defendant a ‘“false aura of veracity.”’” (People v. Muldrow, supra, 202 Cal.App.3d at p. 647, quoting People v. Castro (1986) 186 Cal.App.3d 1211, 1217 [defendant properly impeached with evidence of five prior convictions, including three burglary convictions identical to charged offense]; see People v. Green, supra, 34 Cal.App.4th at pp. 182-183 [evidence of four prior convictions for auto theft admissible to impeach defendant charged with auto theft].)
In People v. Johnson (1991) 233 Cal.App.3d 425, 458-459 (Johnson), the defendant, who was charged with murder, asked the trial court to sanitize his prior murder conviction as “an unspecified ‘felony’ conviction.” He argued that the similarity between the offenses was likely to create undue prejudice, and his other prior convictions for assault and aggravated escape were sufficient for the purpose of impeachment. (Id. at p. 458.) The trial court rejected the request. (Id. at p. 459.) The appellate court affirmed, reasoning that the trial court properly concluded that disclosure of the defendant’s prior murder conviction was necessary to the jury’s assessment of his credibility. (Ibid.)
In view of Johnson, we see no error. The trial court could reasonably have concluded that informing the jury merely that appellant had an unspecified felony conviction would have impaired the jury’s ability to assess appellant’s credibility. The requested sanitization stripped the conviction of any connection to moral turpitude supporting an inference about appellant’s credibility, as some felonies are not crimes of moral turpitude (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation At Trial, § 307, pp. 385-386). The trial court thus acted within its discretion in rejecting appellant’s request to sanitize his prior conviction.
C. Pitchess Motion
Appellant requests that we independently review the in camera hearing at which the trial court denied his Pitchess motion. The motion sought discoverable material within the personnel records of Detective Gutierrez and Long Beach Police Department Officer C. Zamora, who participated in a traffic stop that led to appellant’s arrest. According to the motion, Detective Gutierrez reported that a passenger in appellant’s car stated that appellant claimed to be a Rolling 20’s Crip. The trial court granted the motion solely with respect to Detective Gutierrez, limited to information relevant to “truth telling and failure to tell the truth.” Following the in camera review on April 26, 2007, the court concluded there were no discoverable records.
We review this determination for abuse of discretion. (People v. Jackson (1996) 13 Cal.4th 1164.) We have independently examined the materials the trial court scrutinized (People v. Mooc (2001) 26 Cal.4th 1216, 1229), and conclude there is no basis to disturb its ruling on the Pitchess motion.
Appellant does not challenge the scope of the in camera hearing.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.