Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA291701. Larry Fidler, Judge.
Richard C. Neuhoff, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Yun K. Lee and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Albert Campos was convicted, following a jury trial, of one count of first degree murder of Christian Gonzalez in violation of Penal Code section 187, subdivision (a). The jury found true the allegations that appellant personally used a firearm within the meaning of section 12022.53, subdivision (b), personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c), causing great bodily injury and death within the meaning of section 12022.53, subdivision (d). The jury found not true the allegation that the murder was committed for the benefit of a criminal street gang within the meaning of section 186.22. The trial court sentenced appellant to 25 years to life in state prison for the murder conviction, plus 25 years to life for the section 12022.53, subdivision (d), firearm allegation.
Appellant appeals from the judgment of conviction, contending that the trial court erred in admitting the preliminary hearing testimony of absent witness Martha Jacobo and portions of the police interview of appellant, and further contending that the prosecutor acted improperly in referring to appellant's criminal past. We affirm the judgment of conviction.
Facts
On the morning of July 22, 2005, Gabriel Hinojos helped appellant put a rearview mirror on his truck. The work was done in the parking lot of Homeboy Industries ("Homeboy"), where Hinojos was employed. Hinojos later saw appellant talking to Father Gregory Boyle, the founder of Homeboy.
Serena Fuentes was employed at Homegirl Café, located down the street from Homeboy. About 11:00 a.m., Fuentes went to Homeboy while on a break from the café. Martha Jacobo, a Homegirl's employee, was at Homeboy, as was Christian Gonzalez. Gonzalez was a member of the Primera Flats gang. Appellant entered the building wearing a cap and a serious expression.
Hinojos offered to drive Jacobo back to the café. They got into his car, which was in the parking lot of Homeboy. When they tried to drive out of the lot, Gonzalez blocked the exit with his car. Jacobo asked Gonzalez to move his car, but he refused. Gonzalez turned off his car and said: "I could sit here all day."
Hinojos heard gunshots, saw a person leaning in the passenger seat of Gonzalez's car and then saw that person pull back out of the window and move away from the car. Hinojos could not identify the person and testified that he was not even sure if the person was male or female. He did not see which way the person ran. Hinojos later told police that the shooter was wearing a white t-shirt, black pants and a hat. He also said that there was no one else in the area except himself, Jacobo, Gonzalez and the shooter.
Gonzalez got out of the car and said: "Help me." Hinojos went over, caught Gonzalez, laid him on the ground and went to the office of Homeboy to get help.
Maria Ramirez lived in a house at the end of the alley where the shooting occurred. She heard gunshots, looked out her window, saw Gonzalez lying on the ground and saw someone run past her window. The man put something into his waistband. She later told police that the runner was wearing a white t-shirt, blue jeans and a gray baseball cap. She also told the detective that after the person ran by her window she heard screeching tires. She could not identify the person in a photographic line-up.
Los Angeles Police Detective Juan Gutierrez came to the scene. He observed that the alley behind Homeboy dead-ended into the 5 freeway but that there was a walkway for pedestrians to exit the alley. Detective Gutierrez recovered six expended shell casings from a.357 caliber gun.
Jacobo later told Detective Gutierrez that the shooter was wearing a white t-shirt, a baseball cap and perhaps khaki shorts. She also stated that before the shooting she saw the shooter speak with Fuentes. Jacobo selected appellant from a photographic line-up as the shooter. She told detectives that on a scale of one (less certain) to ten (most certain) her certainty was about a seven. After making the identification, Jacobo told Detective Gutierrez that she did not want to get involved in the case.
Detective Gutierrez then interviewed Fuentes, who stated that she saw "Terms" walk into the Homeboy office on July 22, looking mad and upset. He walked toward the back of the building. About three minutes later, people started running toward the back of the building. She went to the back and saw Gonzalez lying on the ground. She selected appellant from a photographic line-up as the person she knew as "Terms."
Appellant was arrested on October 12, 2005. He was interviewed by Detective Gutierrez and his partner Detective Caballero. The interview was recorded. The jury heard evidence of portions of the interview. Appellant admitted that he was at Homeboy on July 22, 2005. He was wearing long black shorts, a USC shirt and a Nike baseball cap. He stated that he entered through the front of the building, looking for Father Boyle. He did not find him and left the building through the back. A person got out of a car, pointed a gun at appellant and asked him where he was from. Appellant ran and hid between two cars in the Homeboy parking lot. He heard several gunshots, and ran away down the alley. As he ran, he saw the individual who had confronted him get in his car and leave. Appellant did not see Gonzalez's car or anyone who had been shot. Appellant knew Gonzalez from Homeboy. Appellant admitted that he was a member of the Cuatro Flats gang. There were some inconsistencies in appellant's statements.
At trial, Los Angeles Police Officer Michael Soliman testified as an expert on criminal street gangs. He testified that appellant was an admitted Cuatro Flats gang member and Gonzalez was a Primera Flats gang member. At the time of the shooting, the two gangs were rivals. Officer Soliman explained that Homeboy, the area in front of the Homeboy building and the back parking lot are considered "no-banging" areas, but the alley behind Homeboy was considered Cuatro Flats territory. Officer Soliman also explained that cooperating with the police was viewed as a sign of disrespect for a gang and that people who lived in gang neighborhoods often feared retaliation if they cooperated with police.
In his defense, appellant offered the testimony of Los Angeles Police Officer Richard Bertoldo that Maria Ramirez did not mention hearing screeching tires when he interviewed her on the day of the shooting. Appellant also offered the testimony of a neighbor that he lived with his mother, siblings and grandmother.
Discussion
1. Availability of Martha Jacobo
Appellant contends that the trial court erred in finding Martha Jacobo to be an unavailable witness and permitting the People to introduce her preliminary hearing testimony. He contends that the People did not exercise reasonable diligence to find Martha Jacobo. Appellant further contends that the admission of Jacobo's testimony violated his Sixth Amendment right to confrontation.
A witness's prior testimony is not barred by the hearsay rule if she is unavailable as a witness and the party against whom the former testimony is offered was a party to the proceeding in which the testimony was given and had the right and opportunity to cross-examine the witness. (Evid. Code, § 1291, subd. (a).)
A witness is unavailable if she is absent from the hearing "and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process." (Evid. Code, § 240, subd. (a)(5).) The proponent of the statement has the burden of showing evidence that the witness is unavailable. (People v. Smith (2003) 30 Cal.4th 581, 609.) Whether the proponent has exercised reasonable diligence in attempting to secure a witness's presence is a question dependent upon the totality of the facts of the individual case. (People v. Sanders (1995) 11 Cal.4th 475, 523.) The court's determination of the proponent's diligence is reviewed de novo. (People v. Cromer (2001) 24 Cal.4th 889, 892-893.)
The totality of the proponent's efforts must be considered in assessing whether it exercised reasonable diligence. (People v. Sanders, supra, 11 Cal.4th at p. 523.) The court may consider whether the witness would have been produced if reasonable diligence had been exercised. (Ibid.) While the proponent must exercise reasonable diligence, he need not do everything possible to procure a witness for trial. Thus, a finding of unavailability is not defeated by a showing that the proponent could have done more to locate the witness. (People v. Cummings (1993) 4 Cal.4th 1233, 1298.) As appellant acknowledges, Jacobo knew she was required to appear in court and was actively avoiding being found and brought into court to testify. The trial court could and did properly consider this circumstance. (See People v. Sanders, supra, 11 Cal.4th at p. 523 [court may consider whether the witness would have been produced if reasonable diligence had been exercised].)
We find that the People exercised due diligence in attempting to locate Jacobo. She was thus unavailable within the meaning of Evidence Code sections 240 and 1291. Appellant acknowledges that he had an opportunity to cross-examine Jacobo at the preliminary hearing. There was no violation of appellant's Sixth Amendment rights. (People v. Smith, supra, 30 Cal.4th at p. 609 [constitutional and statutory requirements are in harmony].)
Over the course of several hearings beginning on January 4, the prosecutor detailed his office's efforts to locate Jacobo. The prosecutor explained that on November 15, 2006, District Attorney Investigator Richard Collins located Jacobo at Homegirl Café and served a subpoena to appear in court for appellant's trial on November 29, 2006. According to the prosecutor and the clerk's transcript in this case, Jacobo did appear in court on that date, and was ordered to return to court on January 3, 2007. Jacobo did not appear on January 3, and a body attachment was issued for her.
This is not reflected in the reporter's transcript for that date.
The body attachment for Jacobo issued on January 4, 2007. Officer Raul Soto went to Homegirl Café. Employees told him that Jacobo had called in sick. Officer Soto then went to Jacobo's mother's home. Jacobo's mother allowed him to search her residence. Jacobo was not there. The apartment was a studio, and there were no cribs or beds that would indicate that children were living there. The mother told Officer Soto that Jacobo was in fear for herself and her children and would not be coming to court. Officer Soto left messages for Jacobo at both places. Later that day, Jacobo called the district attorney's office and left a message acknowledging that she was aware that the officer was looking for her. She did not leave any contact information.
On January 8, the court held a hearing to determine whether Jacobo was an absent witness whose preliminary hearing testimony could be used at trial. The court indicated that the district attorney should have someone return to Jacobo's place of work and residence to look for her.
On January 8, District Attorney Investigator Richard Collins went to Homegirl Café and spoke with the manager, Patty Zarate. Zarate told Collins that Jacobo "was not coming into work." Zarate said that she would attempt to call Jacobo at the telephone numbers Zarate had for her. Collins spent an hour outside the café watching to see if Jacobo would come by. She did not. Collins twice called the cell phone number which Jacobo had previously given him. He left a message the first time. His second call was answered by a man who said that Collins had the wrong number. Collins also called Jacobo's sister-in-law and mother and told them that there were warrants out for Jacobo's arrest and that she should come to court. Both women agreed to try to contact Jacobo.
On January 9, Collins checked and learned that the warrants for Jacobo were still outstanding. He drove to the sister-in-law's house and spoke with her. The sister-in-law had not seen Jacobo for about a year, and had last spoken with her about four months ago. Collins then drove to Jacobo's mother's house. The mother told Collins that she had not seen Jacobo for about a week and did not believe that she could convince Jacobo to come to court. She repeated that Jacobo was afraid. Collins waited outside the house for about 20 minutes, but did not see Jacobo. Collins went to Homeboy Industries, spoke with the manager and learned that Jacobo's boyfriend's name was Carlos Perez. He was unable to obtain any more information. Collins waited outside for about 15 minutes, but did not see Jacobo.
On Sunday, January 14, the prosecutor drove to Homegirl Café and Homeboy Industries. Both were closed and a sign indicated that they would also be closed on Monday for a holiday. He then went to Jacobo's mother's residence and watched the building for about two hours, starting about 11:00 a.m. He did not see anyone matching the description of Jacobo or her mother.
On January 15, Detective Gutierrez went to Jacobo's mother's house about 9:30 a.m. and watched the house for about an hour. He did not see Jacobo. He called the residence but there was no answer. He went by Homeboy Industries and Homegirl Café, both of which were closed.
On January 16, the court found that Jacobo was actively trying to conceal herself and the People had exercised "more than due diligence" in trying to find her.
Appellant contends that leads on Jacobo's whereabouts were not competently explored and the above-described efforts did not show "persevering application [or] untiring efforts." We find that the People made appropriate efforts. Representatives of the People repeatedly visited Jacobo's place of work and her mother's house, which was the only residential address available for Jacobo. They spoke with her fellow employees, her mother and her sister-in-law and attempted to find her boyfriend. They called the cell phone number Jacobo had given them, and asked others to call her as well. Jacobo's phone message to the prosecutor showed that she was aware that the prosecutor and his representatives were looking for her.
Appellant complains that two of the five visits to Homegirl Café took place on days when the restaurant was either known to be closed or should have been known to be closed and that police conducted only short periods of surveillance of the café. We see no reason that the prosecutor should have known that the café would be closed on Sunday, January 14. Many, if not most, restaurants are open on weekends. We agree that there was no apparent reason for Detective Gutierrez to return to the restaurant on Monday, when the prosecutor had observed a sign that the restaurant would be closed that day. That still leaves four visits by representatives of the People in a 12 day-period. Visits on the 4th, 8th and 9th when the café was open did not find Jacobo present at the café.
Appellant contends that the People should have visited the café daily and conducted surveillance of the café. We do not agree. On January 4, employees told Officer Soto that Jacobo had called in sick. On January 8th, the café's manager Patty Zarate told investigator Collins that Jacobo "was not coming into work." Jacobo knew that police were looking for her. It was at the café that investigators had successfully served her with a subpoena for trial in November. Diligence did not require the People to conduct surveillance on or even daily visits to a location which Jacobo seemed to be avoiding.
Appellant also contends that the People should have asked Zarate for Jacobo's work schedule and for the contact numbers that Zarate had for Jacobo. Since there was every indication that Jacobo was not coming to the café when she was scheduled to work, a work schedule would have been useless. Telephone numbers would not give a physical location for Jacobo. Perhaps Collins could have reached Jacobo at one of the telephone numbers, but there is no reason to believe that such contact would have been useful. Jacobo was already aware that she was required to appear in court.
Appellant also complains that the People conducted surveillance of Jacobo's mother's apartment only during the daytime and not in early morning, the evening or at night. He offers no reason to believe that such times would have been more effective. Further, police searched her mother's very small apartment and found no evidence that Jacobo was currently staying there. While it was not impossible that Jacobo would come by the apartment for some reason, it was not at all likely since she had moved out of the apartment in an apparent attempt to avoid being found by police.
Appellant further complains that the People should have attempted to get more information from Jacobo's mother, sister-in-law or friend Serena Fuentes about Jacobo's boyfriend Carlos Perez. Certainly, this is an avenue that the People could have explored, although there is no reason to believe that Perez would have helped police locate Jacobo.
Appellant also contends that police should have contacted "the social services department" and Jacobo's prior probation officer, "broadcast a bulletin out of county," and attempted to determine what kind of vehicle Jacobo might have been driving. There are many avenues to explore in looking for a witness, but not every avenue needs to be explored in every case. Appellant offers no explanation of what information Jacobo's prior probation officer might have been expected to have. An old address? Jacobo's mother's address? Two warrants were in the system for Jacobo. It is difficult to see what would be gained by "broadcasting a bulletin."
Finally, appellant points out that the People took no action to locate Jacobo on January 10, 11, 12 or 13. We agree that there is no evidence of activities during that period. That does not defeat a finding of due diligence. There were only a handful of places to visit and people to contact. From January 4th to the 8th, those leads repeatedly failed to yield any clues as to Jacobo's whereabouts. It would have been more than reasonable to conclude that Jacobo would not return to her known locations until the trial was over. There was little else for the People's representatives to do in that time period. It was prudent for the prosecutor and Detective Gutierrez to each make a last attempt to locate Jacobo on January 14 and 15 respectively, but those efforts had almost no chance of success. We do not fault the People for failing to beat their heads against a brick wall for the four preceding days.
2. Appellant's police interview
Appellant contends that the trial court erred in permitting the People to introduce a redacted version of the October 12, 2005 interview of appellant by Detectives Gutierrez and Caballero because the interview contained several inadmissible statements by the detectives. He further contends that the trial court compounded the error by refusing to instruct the jury that the detectives' statements during the interview were not to be considered for the truth of the matter asserted. All four statements identified by appellant were, in context, attempts to persuade appellant to change his account of events and provide incriminating details or confess. Assuming there was error in admitting the statements, we see no prejudice to appellant under the Watson or Chapman standard of review. (People v. Watson (1956) 46 Cal.2d 818; Chapman v. California (1967) 386 U.S. 18.)
a. Appellant's address
After appellant stated that he lived at 548 South Soto Street, one of the detectives asked: "How come nobody seems to know anything about you over there?" Appellant contends that the detective's question was inadmissible hearsay which referred to the out-of-court statements of unidentified witnesses and although phrased as a question was actually an assertion of fact. He contends that the statement was prejudicial because it implied that appellant would lie about even minor things and so was not credible.
The exchange as a whole does not suggest that appellant was being untruthful. Appellant replied to the question by stating: "I just go and rest my neck. Go to sleep and [OV]." Thus, appellant provided a reasonable explanation of why neighbors might not be familiar with him. The detective then asked: "So who do you live there with?" Appellant replied: "My grandma, my mom, my two little brothers." Appellant does not point to any other statements suggesting that appellant was being untruthful about his residence. There was no reason for the jury to believe that appellant was lying about his residence, a fact which had absolutely no relevance to the case.
In the interview, the detective expressed skepticism of appellant's statement about just sleeping at the Soto Street address, saying: "Well, they say you don't come around." Appellant then replied: "I don't know why they would say that." This exchange was redacted from the transcript of the interview given to the jury.
b. Opinion evidence about appellant's version of events
At one point, when appellant was giving his version of events, one of the detectives remarked: "See it don't make sense, what [you're] saying." Appellant contends that this was improper opinion evidence.
In context, the comment is most reasonably understood as an attempt to get appellant to change his account of events. The comment was made as part of a long exchange in which the detectives repeatedly asked appellant why he did not behave differently at the time of the shooting, and suggested that a rational person would have acted differently. Appellant consistently answered that he just reacted, that he was scared and that he did not know what to do.
Detectives asked appellant why he ran out in the open if, as he claimed, he heard gunshots. Appellant replied: "My first reaction was to run... just duck and run." The detectives came back to the topic, asking: "If you were running for your life, how come you didn't you run through the office." Appellant replied: "I wanted to go to my house." The detective said that did not make sense. Appellant repeated that his reaction was to run home. The detective then asked why appellant did not run straight down the alley. Appellant replied that he was scared and did not know what to do.
We see no possibility of prejudice to appellant from the remark. It was part of the officer's interview technique. The officer was not claiming any special expertise in assessing credibility. (Compare People v. Sergill (1982) 138 Cal.App.3d 34, 39 [police officer improperly testified he could usually determine "with a high degree of accuracy" whether a child's statements were true, and that he believed the child victim was telling the truth to him].) Further, the comment was not made under oath and was not directed at a jury or other audience in an attempt to persuade.
c. Implication of additional witnesses
During the interview, a detective stated that he knew that appellant was "so close" to the victim that "we even heard that even you said hi to [the victim] or acknowledged him some how that's how close." The detective also stated that one of the "things I know are absolute facts" was that appellant did not run east down the alley but ran west "out to State Street." Appellant contends that the jury would have concluded that these statements had a basis in evidence from eyewitnesses not heard in court.
The interview as a whole showed that these statements were ruses by the detectives. Detective Gutierrez first told appellant that they knew he was so close to the victim "because that's what the witnesses said." Then he made the above-quoted statement: "We even heard that even you said hi to [the victim] or acknowledged him some how that's how close." Appellant replied: "I didn't see him right there." Detective Caballero then said: "[T]here is people in the alley who have nothing to do with homeboys okay, and these are the people who picked you out." He added: "[T]hey picked you out doing the shooting, okay." Detective Gutierrez also added: "But one thing we know is that you were there and you were right with [the victim]."
The most reasonable understanding of the above exchange is that the non-Homeboy people in the alley were the witnesses who said that appellant was close to the victim. At trial, Detective Gutierrez acknowledged that the statement about the unaffiliated people in the alley was not true, and was a ruse or deceit technique. Thus, the statement about hearing that appellant was close to the victim was necessarily also a ruse.
The second statement must also be considered in context. Detectives first told appellant that "There's somethings that we know that happened that day in the alley that we for sure are facts either because we have witnesses or maybe we have pictures or a video tape whatever but we know for sure certain things happened." Shortly thereafter, Detective Gutierrez told appellant: "There are things that I know that are absolute facts. I know you didn't run this way in the alley, you ran out to State Street." The detective added: "There were people in the alley who saw things okay."
The most reasonable understanding of this exchange is that either the (fictitious) non-Homeboy people in the alley told the detectives which way appellant ran or there were videotapes or photos of appellant running. At trial, Detective Gutierrez acknowledged that there were no videotapes or pictures of events in the alley. Thus, the statement about running was also a ruse or deceit technique.
d. Opinion about the district attorney's assessment of the investigation
One of the detectives said to appellant: "Albert, Albert let me explain something to you. This case is going to be presented to the District Attorney. Okay. He is going to hear all our facts then he's gonna hear your story what of what you told us. What do think he is gonna believe?... He's gonna believe our witnesses. I mean we just... I mean we don't make the case it's our witnesses who do. Okay, I think he is gonna believe our witnesses. That's why it's important... if something happened out there now is the time to let us know." Appellant contends that this statement amounts to an improper opinion that the prosecutor would believe the witnesses presented by the police and also that the witnesses proved appellant's guilt.
We see nothing prejudicial about this statement. It is most reasonably understood as an attempt to get appellant to change his version of events and confess. The detective's prediction about the prosecutor's reaction was speculation and irrelevant, but harmless. The detectives had not presented their case to a prosecutor at that point, and did not purport to have any special knowledge of a specific prosecutor's actual reaction. The detective did not state that he personally believed that the police witnesses proved appellant's guilt. To the contrary, the detectives' use of ruses in the interview showed that the case against appellant was not overwhelming.
e. Refusal to give special instruction.
The trial court refused appellant's request to give the following instruction: "With respect to the tape recorded interviews that have been admitted into evidence, you are instructed that the statements and questions of the police officers are not to be considered for the truth of any matter asserted in the statement or question. The questions or statements may only be considered if they helped you to understand the answers and statements of the individual being interviewed."
We see no possible "compounded" prejudice to appellant from the lack of such an instruction. As we discuss above, appellant's address was not significant and the other "factual" statements above were clearly ruses. The "opinion" remarks were part of the detectives' technique to get appellant to confess. It is not reasonable to understand them as being offered for the truth of the matter asserted. Further, the jury was instructed with CALCRIM No. 222 which states in pertinent part: "'Evidence' is the sworn testimony of witnesses, the exhibits admitted into evidence and anything else I told you to consider as evidence. [¶]... [The attorneys'] questions are not evidence. Only the witnesses' answers are evidence." Although this instruction does not refer to police officers, it does make the point that it is a witness's answer to a question which is evidence, not the question itself. This instruction, coupled with the detectives' admission that they used ruses and deceit in the interview was sufficient to advise the jury on this topic.
3. Prior criminal activity
Appellant contends that the prosecutor repeatedly offered evidence of appellant's prior criminal activity, and that this evidence violated his federal constitutional rights to due process and a fair trial and was prejudicial. We do not agree.
The prosecution's gang expert testified that a "true G" or "true gangster" was someone who was willing to do whatever it took to promote and protect their neighborhood, including "tagging, selling drugs, running guns, shooting people, stealing cars, murders." The prosecutor asked the expert if appellant was a "true G." Appellant's attorney asked to approach the bench, but this request was denied. The expert testified that in his opinion, appellant was a true G, based on the officer's "contacts with him, who he has been associated with in the past, his arrest record, the progression of his criminal history starting –" Appellant objected. The court sustained the objection, ordered the answer stricken and instructed the jury to disregard the testimony.
Appellant contends that this instruction was insufficient, particularly in light of subsequent testimony which referred to appellant's arrests and to drug sales by appellant's gang.
The gang expert testified that appellant had admitted his gang affiliation to "some peace officers who are assigned to the Whittier Police Department." The expert then testified that appellant used the nickname of "Cloudy" and "admitted to the moniker of Termite when he was arrested by the Whittier PD." The trial court refused appellant's request to strike the arrest reference, but instructed the jury: "[T]he fact that somebody is arrested does not mean anything. It's not relevant to this case. It's simply -- the only reason here is to be aware that admission was made. You are not to speculate why any arrest was made." The trial court then instructed the prosecutor to "proceed carefully."
Appellant contends this testimony re-affirmed that appellant had prior arrests and the trial court's instruction to the prosecutor suggested that appellant's criminal history must have been considerable.
Later, the gang expert opined that drug sales were a large part of the activities of the Cuatro Flats gang. Appellant contends that this linked appellant with major drug activity.
Still later, the jury heard portions of the detectives' interview of appellant in which a detective asked appellant if he had "ever been here to Hollenbeck before." Appellant gave a nonverbal reply. The detective then asked: "To the detective part? You've been here?" Appellant gave a nonverbal reply.
Appellant contends that this also reinforced that appellant had an arrest record.
We see no prejudice to appellant from the above-quoted statements. The court's two admonitions were timely and thorough. "A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith. [Citations.] It is only in the exceptional case that 'the improper subject matter is of such a character that its effect... cannot be removed by the court's admonitions.' [Citation.]" (People v. Allen (1978) 77 Cal.App.3d 924, 934-935.) This is not such an exceptional case. No details of appellant's criminal history were mentioned.
A consideration of the subsequent testimony cited by appellant does not alter our analysis. The court's instruction to the prosecutor to proceed carefully is most reasonably understood in context as telling the prosecutor not to delve into the details of the arrest because it was not relevant. Appellant did not confirm that he had been to Hollenbeck station before. A gang enhancement was alleged in this case, making the activities of appellant's gang relevant.
Appellant relies on People v. Thompson (1980) 27 Cal.3d 303 and People v. Bentley (1955) 131 Cal.App.2d 687 to show prejudice. This reliance is misplaced. In those cases, the defendant's prior bad acts were identified and were very similar to the charged offenses. In Thompson, details of a prior robbery were offered to prove an intent to steal in the current case. (People v. Thompson, supra, 27 Cal.3d at p. 314.) In Bentley, the defendant was charged with the sexual molestation of a child and the prior bad act was that the defendant had been a suspect in another sexual molestation case. (People v. Bentley, supra, 131 Cal.App.2d at pp. 690-691.) Here, there was no information about the nature of appellant's prior criminal history and no link to the charges in this case.
4. Ineffective assistance of counsel
Appellant contends that if any of the above claims were forfeited by his trial counsel's failure to act to preserve the claims, he received ineffective assistance of counsel. Respondent did not raise any claims of forfeiture, and we have found no instances of forfeiture. Thus, we need not consider this claim.
5. Cumulative error
Appellant contends that even if the above claimed errors do not require reversal when considered individually, the cumulative effect of the errors require reversal. We have found only a few minor errors, and those errors considered cumulatively did not deny appellant a fair trial and do not require reversal.
Disposition
The judgment is affirmed.
We concur: TURNER. P. J., MOSK, J.