Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC063512A
Jones, P.J.
Jaime Andres Barros appeals from a judgment entered after a jury convicted him of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) ), participation in a criminal street gang (§ 186.22, subd. (a)), and possession of a dangerous weapon (§ 12020, subd. (a)). He contends his conviction must be reversed because he received ineffective assistance of counsel. We disagree and will affirm.
Unless otherwise indicated, all further section references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 5, 2006, near 6:00 p.m., teenagers Aliton Woodson, Brandon Austin, and Anthony Estrada were walking on a dirt path near El Camino Real in South San Francisco when they passed a Hispanic youth. The youth made comments about a local gang named “C Street” and tried to start a fight. The teenagers resisted. As the Hispanic youth walked away, he made a cell phone call.
The teenagers were frightened and they walked quickly to a fast food restaurant. After a few minutes, they started to walk home. As they did, a green car drove past. The car stopped at an intersection and three of the four occupants jumped out. All were wearing red clothing. One man, later identified as appellant, approached the teenagers. Without saying a word, appellant swung a bat at Woodson’s head. The bat came very close, but Woodson ducked just in time. The teenagers ran to a nearby store. They hid there until an acquaintance gave them a ride home.
Several persons witnessed the assault. Todd Rael and his wife Nicole were sitting in a car at a stoplight. They saw appellant swing a bat at Woodson. As the teenagers ran away, Todd heard appellant yell, “C Street Bitch.” Todd said appellant and the other men walked to a green car and drove away. He called 911 and described appellant, and the car in which he fled.
The incident was also witnessed by Elvia Castro and her son Antonio who were in a different car at the same stoplight. Both said they saw appellant swing a bat at Woodson. He missed, but the bat hit Castro’s car. Castro was upset that her car had been damaged and she followed appellant to the BART parking lot.
South San Francisco Police Officer Sean Curmi was on patrol that evening when he heard a report about an assault. The report said the four suspects were last seen driving a green Mazda. Curmi saw a green Mazda with four occupants drive by. He decided to follow it. When the driver committed a traffic offense, he stopped it. Appellant and three others were inside. They were wearing red, and Curmi knew them to be gang members or associates. A black aluminum baseball bat was found inside the car.
An in-field show-up was conducted at the BART parking lot. The Raels both positively identified appellant as the man who swung a bat at Woodson’s head. Todd Rael said the black metal bat was the same bat that was used in the incident.
Castro and her son Antonio also came to the BART lot. Both identified appellant as the one who chased Woodson and hit their door with his bat.
Based on these facts, an information was filed charging appellant with the offenses we have set forth above. As is relevant here, the information included several enhancements including allegations that appellant had one prior strike within the meaning of the three strikes law (1170.12, subd. (c)(1)), had a prior serious felony conviction (§ 667, subd. (a)), and had served a prior prison term (§ 667.5, subd. (b)).
The case proceeded to trial where the prosecution presented the evidence set forth above. Appellant presented a SODDI defense. He buttressed his case with inconsistencies in the various eyewitness reports.
A defense of “‘some other dude did it . . . .’” (People v. Benjamin (1975) 52 Cal.App.3d 63, 72.)
The jurors rejected appellant’s defense. They convicted him on all counts and found all of the enhancements to be true. In a court trial that followed, the court found the prior conviction and prison term allegations to be true.
Subsequently, the court sentenced appellant to 16 years in prison.
II. DISCUSSION
The prior strike, prior serious felony, and prior prison term allegations alleged in the information were all based on the same offense: Appellant’s conviction on October 31, 2000, of second degree robbery. (§ 212.5, subd. (c).)
Near the beginning of trial, appellant’s counsel asked the court to bifurcate the trial of those allegations. The trial judge granted the request ruling that no evidence other than that specifically authorized would be allowed regarding the “robbery conviction alleged as priors one, two and three.”
Subsequently at trial, the prosecution presented testimony from Corporal Bruce McPhillips of the South San Francisco Police Department. McPhillips qualified as an expert in gangs and gang related crime in South San Francisco. During his testimony, McPhillips described appellant’s earlier robbery conviction as follows:
“Q. [Prosecutor] And you testified earlier that it was your opinion that Mr. Barros was a member of the Cypress Park Locos, is that correct?
“A. [McPhillips] Correct.
“Q. Is that partially based upon a robbery case he was involved in in the year 2000?
“A. Yeah, I believe so.
“Q. Have you reviewed the police reports for a robbery that occurred on August 24th, the year 2000, involving Mr. Barros?
“A. I have.
“Q. And was he convicted of a robbery for that particular case?
“A. Yes, he was.”
Corporal McPhillips went on to state his belief that appellant committed the robbery to bolster his membership in his gang.
Appellant now contends trial counsel should have objected to McPhillips’s testimony on this point because it was inconsistent with the court’s earlier bifurcation ruling. Appellant contends trial counsel was constitutionally ineffective and that his conviction must be reversed as a result.
The standard of review we must use to evaluate this argument is familiar. A defendant who contends he received ineffective assistance has the burden of proving that (1) trial counsel’s performance was deficient in that it fell below an objective standard of reasonableness when measured by prevailing professional norms, and (2) there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) An appellant who alleges ineffective assistance on direct appeal bears an especially heavy burden of proof: “‘[I]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ the claim on appeal must be rejected. [Citations.]” (People v. Wilson (1992) 3 Cal.4th 926, 936, quoting People v. Pope (1979) 23 Cal.3d 412, 426; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)
Applying this standard we conclude trial counsel was not ineffective because there was a very good reason why he did not object.
Appellant was charged in count two with participating in a criminal street gang within the meaning of section 186.22, subdivision (a). As is relevant, that section states: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity . . . shall be punished by imprisonment in a county jail . . . or by imprisonment in the state prison . . . .” (Italics added.) The phrase “pattern of criminal gang activity” is defined by section 186.22, subdivision (e) to mean “the commission of . . . two or more of the following offenses . . . and the offenses were committed on separate occasions, or by two or more persons.” Section 186.22, subdivision (e) then sets forth 33 separate offenses that can be used to prove a “pattern of criminal gang activity.” One of those enumerated offenses is robbery. (§ 186.22, subd. (e)(2).)
Prior to trial, the prosecutor filed a motion asking that he be allowed to admit evidence to prove the section 186.22 charge. As is relevant here, the prosecutor stated he wanted to admit evidence that three members of appellant’s gang committed predicate crimes within the meaning of section 186.22. The third crime the prosecutor identified was appellant’s robbery offense.
The trial court conducted a hearing on appellant’s motion where the prosecutor reiterated that he wanted to admit evidence of three predicate crimes, including appellant’s robbery offense. After ascertaining that the prosecutor would connect the predicate crimes to appellant’s gang through expert testimony, the court ruled the prosecutor could admit the evidence in question: “I’ll accept the offer of proof then and, of course, that’s not withstanding any contemporaneous objection that defense may have with regard to foundation or other issues . . . .”
With this background, it is apparent why defense counsel did not object to the testimony appellant has identified. Corporal McPhillips was simply providing testimony that the court had approved earlier and that was needed to establish the section 186.22 offense. Counsel cannot be deemed ineffective because he failed to raise a nonmeritorious objection. (People v. Marlow (2004) 34 Cal.4th 131, 144.)
None of the arguments appellant makes convince us the trial court erred.
First, appellant argues the prosecutor’s pretrial motion regarding the prior crimes “did not even touch on evidence of [his] prior conviction[.]” This is simply incorrect. The prosecutor stated his intent to present evidence about appellant’s prior robbery conviction in both the written and oral material that he presented to the court.
Next, appellant contends Corporal McPhillips’s testimony was admitted only to prove appellant was a gang member, not to prove the elements of the offense. Appellant has not cited, and we are not aware of, any place in the record where the court limited McPhillips’s testimony as appellant suggests. Absent such a limitation, the testimony could be used for any purpose. (1 Witkin, Cal. Evid. (4th ed. 2000) Circumstantial Evidence, § 31, pp. 361-362.)
Next, appellant argues the evidence in question was not needed to support the charges that had been filed. He contends that “other evidence was more than enough” to prove that he was a gang member. However, the prosecution did not just have to prove that appellant was a gang member. It had to prove that members of appellant’s gang committed two or more predicate crimes. (§ 186.22, subd. (e).) Mere gang membership was not enough.
In a related argument, appellant argues the evidence presented was not necessary to establish the elements of section 188.22, subdivision (f). As we have stated, the testimony McPhillips provided was in fact relevant and required under section 188.22, subdivision (e).
Section 186.22, subdivision (f) sets forth the definition of a “criminal street gang” and describes the requirements needed to characterize an organization as such as gang.
Finally, appellant argues that trial counsel should have objected to the evidence in question under Evidence Code section 352. While the evidence in question undoubtedly was prejudicial in that it was harmful to the defense, this is not the type of “prejudice” against which Evidence Code section 352 protects. “The prejudice which . . . Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” (People v. Karis (1988) 46 Cal.3d 612, 638.) The “prejudice” referred to in Evidence Code section 352 applies to evidence which tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. (Ibid.) “Prejudicial” is not synonymous with “damaging.” (Ibid.) The evidence in question here was highly relevant and was required to establish the elements of the offense. It was not more prejudicial than probative.
We conclude counsel was not ineffective because he failed to object as appellant suggests.
Having reached this conclusion, we need not determine whether any possible error was prejudicial.
III. DISPOSITION
The judgment is affirmed.
We concur: Needham, J., Stevens, J.