Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA297415, Judith L. Champagne, Judge.
Bruce Zucker, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
VOGEL, J.
Gjuan Dupree Martin was charged with one count of robbery and one count of assault by means likely to produce great bodily injury, with allegations that he had committed both counts for the benefit of a criminal street gang and had suffered one prior strike. (Pen. Code, §§ 211, 245, subd. (a)(1), 667, subds. (b)-(i), 186.22, subd. (b), 1170.12, subds. (a)-(d).) A jury found him guilty of robbery, and not guilty of the charged assault but guilty of the lesser included offense of simple assault (§ 240), and found the gang allegation was not true. The trial court found the strike allegation was true and sentenced Martin to state prison for a term of 11 years. Martin appeals, contending the gang evidence presented to prove the gang enhancement allegation deprived him of his right to a fair trial. We disagree and affirm the judgment.
All section references are to the Penal Code.
FACTS
While driving near the intersection of Western Avenue and 38th Place, Martin collided with a car driven by Cedric Horn. Both men got out of their cars. When Martin angrily blamed Horn for the accident, Horn said they should exchange insurance papers. Martin asked, “Where are you from?” Horn said he was “not from anywhere” and that their encounter was only “about an accident.”
Martin then called over a group of five or six men standing across the street, and all of them (including Martin) started punching, hitting and kicking Horn. After about five minutes, Martin told Horn to hand over his insurance information or Martin would shoot him. Horn went to his car, sat in the driver’s seat, and reached for an envelope. Martin came up to the driver’s door, reached into the car, took the keys from the ignition, then grabbed the envelope from Horn’s hands.
It was at about that point that a passing police officer stopped at the scene to find “numerous” men surrounding a car with another man sitting in the driver’s seat. The men appeared “very hostile” and it looked as though they “were engaged in some sort of physical altercation with the driver,” a “mini riot sort of situation.” The men were “tugging away at the driver,” swearing and saying it was “their hood.” The officer called for back up, which arrived in the form of a helicopter, which caused the assailants to scatter (including Martin, who fled on foot). When Horn was interviewed at the scene, he looked as though his face had been punched and he was afraid.
Martin was located through his abandoned car, which belonged to his girlfriend, Cicely Holmes. Martin called Holmes that evening, told her he had been in an accident and blamed the other driver. When interviewed by the police a few days later, Martin admitted he had left the scene of the accident and said he had “gotten into a fight” with Horn. He denied taking Horn’s car keys.
Martin was charged as noted at the outset, and evidence of the facts summarized above was presented at his trial. In addition, a gang expert testified that the auto accident had occurred in an area claimed by the Rollin’ 30’s Harlem Crips street gang, that the gang was involved in robberies, burglaries, shootings, murders, and thefts, and that Martin was a member of the gang. Martin showed his gang tattoos to the jury. The jury rejected Martin’s mutual combat defense and convicted him as noted above.
DISCUSSION
Martin contends the gang evidence -- which was introduced to prove the gang allegation -- “unfairly prejudiced [his] right to a fair trial on the underlying charges.” He implicitly concedes that such evidence is admissible if logically relevant to some material issue (People v. Albarran (2007) 149 Cal.App.4th 214, 223) but nevertheless claims it should have been excluded in this case. We disagree.
Before trial, defense counsel moved to bifurcate the gang allegations, but the motion was denied on the ground that the facts were “interrelated.” Martin does not claim on this appeal that the ruling was erroneous or an abuse of discretion, and clearly it was not. Beyond that, Martin never objected to the gang evidence per se and thus forfeited his right to challenge it on this appeal. (People v. Partida (2005) 37 Cal.4th 428, 436-437.) That he might incidentally have objected to a few questions is irrelevant in light of his failure to object to the bulk of the gang evidence.
More to the point, the evidence was properly admitted to prove the gang allegation (People v. Avitia (2005) 127 Cal.App.4th 185, 192), and the fact that it might not have been relevant to the robbery or assault charges is legally irrelevant. Of course, the jury’s “not true” finding does not retroactively remove the enhancement allegation from the case or somehow retrospectively taint evidence that was proper when it was admitted. This is a nonissue which could not in any event have caused prejudice to Martin (keeping in mind that a police officer came upon the scene while Horn was still cowering in the car, surrounded by Martin and the other assailants).
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, Acting P.J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.