Opinion
F041224.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. GEORGE DEMON FRUTOS, JR., Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Robert P. Whitlock and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, George Demon Frutos, Jr., of transporting cocaine (Health & Saf. Code, § 11352) and possession of cocaine base for sale (Health & Saf. Code, § 11351.5). In a separate proceeding, Frutos admitted a prior prison term enhancement (Pen. Code, § 667.5 , subd. (b)). On August 5, 2002, the court sentenced Frutos to an aggregate six-year term. On appeal, Frutos contends the court abused its discretion when it: 1) denied his motion to bifurcate the trial on a gang enhancement (§ 186.22, subd. (b)(1)) that the jury found not to be true; and 2) allowed the prosecutor to introduce evidence of his membership in a gang and of the criminal activities of that gang. We will affirm.
FACTS
In the early morning hours of April 24, 2002, Frutos was driving his fathers green Chevrolet Caprice when Bakersfield Police Officers Michael Allred and Richard Davis activated the emergency lights of their patrol car in order to pull Frutos over for speeding. Frutos stopped his car, got out, and began walking toward a store. Officer Allred called out twice to Frutos. Frutos turned around the second time and asked what was going on. Officer Allred asked Frutos for his license and car registration. Frutos told him they were in the car and leaned in through the drivers side to look for them. Allred saw Frutos reach for something on the seat and then move his hands below the seat, toward the floorboard. He then asked Frutos to step aside and escorted him to the back of the patrol car. Officer Davis looked under the front seat and found a pouch containing a clear plastic bag with 14 smaller plastic bags and a total of 37.75 grams of cocaine base inside.
Officer Allred testified as an expert that the cocaine was possessed for sale. He based his opinion primarily on the packaging and the estimated $ 600 to $ 800 street value of the cocaine base.
Bakersfield Police Officer Kenneth Grove testified as an expert that Frutos was a member of the Eastside Crips gang. One primary function of this gang was the sale of cocaine and marijuana to fund their activities. In order to establish that the Eastside Crips was a criminal street gang, Grove also testified regarding some of the gangs illegal activities.
Frutoss father, George Frutos, Sr., testified he owned the green Caprice and the cocaine base found inside. George, Sr., bought the cocaine base from a man at California Park. He did not tell Frutos the cocaine base was in the car because he did not want him to know he used cocaine. Frutos borrowed the Caprice while George, Sr., was taking a shower.
Frutos testified his father did not tell him there were drugs under the seat of the Caprice and that he was not otherwise aware of their presence there. Frutos denied being a member of the Eastside Crips.
DISCUSSION
Each of the two counts in the information in this matter also alleged a gang enhancement, i. e., that Frutos committed the underlying offense for the benefit of a street gang. Prior to the taking of testimony, the defense moved in limine to bifurcate the trial on the gang enhancements and the prior prison term enhancement from the rest of the case. The court initially agreed. However, after defense counsel disclosed that Frutoss father was going to testify that the cocaine base belonged to him, the court ruled that it would not bifurcate the gang enhancement because the prosecutor was entitled to introduce evidence of Frutoss involvement in the Eastside Crips gang and that gangs criminal activities in order to negate Frutoss defense. Frutos makes two related contentions that are best addressed as a single issue. Frutos contends that the evidence relating to the Eastside Crips gang and his membership in that gang was relevant only to show his propensity to commit the crimes charged. Thus, according to Frutos, because of the prejudicial nature of that evidence, the court abused its discretion when it denied the defense motion to bifurcate the trial on the gang enhancement and when it determined that the "gang evidence" was admissible under Evidence Code section 352. We will find no prejudicial error.
"Section 186.22, subdivision (b)(1) imposes additional punishment when a defendant commits a felony for the benefit of, at the direction of, or in association with a criminal street gang. To establish that a group is a criminal street gang within the meaning of the statute, the People must prove: (1) the group is an ongoing association of three or more persons sharing a common name, identifying sign, or symbol; (2) one of the groups primary activities is the commission of one or more statutorily enumerated criminal offenses [including the sale, possession for sale, or transportation of controlled substances]; and (3) the groups members must engage in, or have engaged in, a pattern of criminal gang activity. [Citations.]" (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.)
Evidence Code section 352 provides:
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
"The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial courts decision exceeds the bounds of reason. [Citation.] Evidence of gang activity and affiliation is admissible where it is relevant to issues of motive and intent [citations], and, while admissible evidence often carries with it a certain amount of prejudice, Evidence Code section 352 is designed for situations in which evidence of little evidentiary impact evokes an emotional bias. [Citation.]" (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369-1370.)
Here, the prosecution presented evidence to show that the Eastside Crips gang was a criminal street gang within the meaning of section 186.22, that one of the primary activities of its members was to sell cocaine and marijuana to finance the gangs activities, and that Frutos was a member of the gang. This evidence was essential to prove the gang enhancement charged against Frutos. Further, evidence of the activities of the Eastside Crips and Frutoss membership in the gang was also relevant to prove the substantive offenses because it tended to show that Frutos had a motive for carrying the cocaine base found in the Caprice, that he had knowledge that the cocaine base was in the car, and that he possessed the cocaine base with the intent to sell it. Accordingly, we find that the court acted within its discretion when it denied Frutoss request to bifurcate the gang enhancement and when it allowed the prosecutor to introduce evidence relating to the criminal activities of the Eastside Crips gang and Frutoss membership in that gang.
However, even if we were to find that the court erred in admitting this evidence, we would find that any error in doing so was harmless. Twice during the testimony of the prosecutors gang expert, the court admonished the jury at length that they could use the gang evidence only to determine the validity of the charged gang enhancement. Further, we presume the jury adhered to the trial courts limitations on this testimony. (People v. Ballard (1988) 203 Cal. App. 3d 311, 320, 249 Cal. Rptr. 806; People v. Zack (1986) 184 Cal. App. 3d 409, 416, 229 Cal. Rptr. 317.)
Moreover, as noted earlier, the danger in admitting evidence whose prejudicial impact is greater than its probative value is that the evidence tends to evoke an emotional bias against the defendant. (People v. Olguin, supra, 31 Cal.App.4th 1355, 1369.) Here, the clearest evidence that the gang evidence did not evoke in the jury an emotional bias against Frutos is the jurys findings that the gang enhancements were not true. Accordingly, we find that the court did not abuse its discretion when it refused to bifurcate the trial of the gang enhancement or when it allowed the prosecution to introduce the evidence of the criminal activities of the Eastside Crips gang and Frutoss membership in that gang. Alternatively, we find that Frutos was not prejudiced by the admission of this evidence into the record.
DISPOSITION
The judgment is affirmed. --------------- Notes: All further statutory references are to the Penal Code, unless otherwise indicated.