Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles D. Sheldon, Judge.
Melanie K. Dorian, 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, Kenneth C. Byrne and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
In this appeal, Kevin Garcia challenges his conviction of possession for sale of cocaine base and the jury’s finding of a gang enhancement. We independently review the denial of Garcia’s request for pretrial discovery of a police officer’s personnel file and find no abuse of discretion. We reject Garcia’s challenges to the gang enhancement, including his arguments that (1) the court should have bifurcated the trial on the enhancement; (2) the gang expert offered improper opinion testimony regarding Garcia’s and his associates’ gang membership; and (3) the gang enhancement was not supported by substantial evidence. We also reject Garcia’s claims that the trial court improperly admitted evidence of his uncharged misconduct and that his trial counsel rendered the ineffective assistance of counsel. We affirm.
PROCEDURAL BACKGROUND
Garcia was charged with one count of possession for sale of cocaine base (Health & Saf. Code, § 11351.5). A Penal Code section 186.22, subdivision (b)(1)(A) gang enhancement also was alleged. A jury convicted Garcia as charged. The trial court sentenced Garcia to a six-year prison term, consisting of four years for the substantive offense and two years for the enhancement.
Garcia’s appeal was not timely, but finding good cause, this court reinstated the appeal.
FACTUAL BACKGROUND
1. Prosecution Case-in-Chief
On July 5, 2007, Officer Oscar Lopez was patrolling a Wilmington neighborhood known as Ghost Town when he saw Garcia, whom Lopez recognized. Cognizant of an outstanding warrant for Garcia’s arrest, Lopez told Garcia to put his hands on his head. Garcia fled, and Lopez chased him. During the ensuing pursuit, Lopez observed Garcia throw an object to the ground. Shortly after throwing the object, Garcia surrendered. Lopez arrested Garcia, who was carrying $721 in mixed denomination bills. In the area where Lopez saw Garcia discard an object, Lopez found a small plastic bag containing two off-white rocks. The rocks consisted of 6.11 grams of cocaine base. Once apprehended, Garcia told officers that he fled because he was aware of the warrant for his arrest.
Officer Charles de Rosier conducted surveillance of Ghost Town as part of a joint investigation with the Department of Alcohol, Tobacco, and Firearms. Working undercover, de Rosier purchased contraband approximately 500 times in Ghost Town, and persons selling to him stored the contraband either in their waist or in their buttocks. De Rosier testified Garcia used the name K-Dub. Based on the amount of the cocaine base, (worth approximately $600), and the $721 found on Garcia, de Rosier opined that Garcia possessed the cocaine base for sale. De Rosier also relied on the fact that Garcia previously had denied using cocaine. On cross-examination by defense counsel, de Rosier estimated he had five prior contacts with Garcia, including an arrest on February 25, 2007, and another arrest the year before.
Officer Mark Maldonado testified as a gang expert. He had been a police officer for over 12 years and had received training in the area of criminal street gangs. Maldonado regularly patrolled Ghost Town, a small area with few entrances, which Maldonado described as entrenched with narcotic sales. Maldonado had made over 1,000 gang-related arrests.
According to Maldonado, the Ghost Town Blood gang (GTB) claimed Ghost Town. The primary activities of GTB members included narcotics trafficking, assaults with deadly weapons, attempted murders, murders, and grand thefts, but the gang’s most common activity was narcotic sales. Maldonado explained that GTB controlled drug trafficking in Ghost Town. Only GTB members sold narcotics in Ghost Town, and GTB would lose money if others were permitted to sell there. No non-GTB member would be permitted to sell narcotics in Ghost Town. GTB members heavily relied on narcotics sales to make money. GTB members used the profits from the sale of narcotics to purchase additional narcotics and to purchase weapons.
Maldonado opined that Garcia was a GTB member because he associated with other GTB members at known GTB locations, and because Garcia sometimes wore red, a color claimed by GTB. Maldonado had over 20 contacts with Garcia. Additionally, Garcia had been arrested for crimes consistent with gang membership. When provided a hypothetical based on the facts of this case, Maldonado opined that the possession for sale of the cocaine base was for the benefit of the GTB gang. Based on his contacts with them, Maldonado also opined that Isaiah Cortez Posey, who had been convicted of attempted murder, Richard Angelo McMurray, who had been convicted of assault with a firearm, and Shame Sprewell, who had been convicted of possessing cocaine base for sale, were GTB members.
2. Defense Case
Garcia testified in his defense. He stated that he had had prior contacts with Lopez, who threatened to “get” him on several occasions, even when Garcia was “just walking down the street....” Garcia’s extended family, many of whose names he claimed to be unable to remember, lived in Ghost Town. His girlfriend also lived there. Despite having known her for more than a year, Garcia could not recall his girlfriend’s last name. Garcia claimed that his girlfriend had given him $721 to purchase a used car and that she had obtained the money either from her school or through Job Corps. Garcia denied being a member of any gang and denied throwing an object to the ground when Lopez chased him. He explained that he fled from Lopez to avoid being arrested under the outstanding warrant. Garcia claimed that he surrendered because Lopez drew his weapon. Garcia also claimed that, at the time Lopez stopped him, he was under the influence of cocaine, having found some on the street.
On cross-examination, Garcia stated that he met de Rosier on July 31, 2007, when de Rosier told Garcia there was a warrant for his arrest. When asked if he was stopped and searched by Maldonado, Garcia admitted that Maldonado had searched him and had found rock cocaine in his buttocks. Garcia testified that he once had a job mowing his neighbor’s lawn, but otherwise was unemployed.
3. Rebuttal
Officer Giovanni Boccanfuso worked as Officer Lopez’s partner on July 5, 2007. Along with Lopez, he recovered the bindle containing cocaine base from the ground near where Garcia surrendered after the chase. Boccanfuso did not see Garcia throw anything, but Lopez had been closer to Garcia. According to Boccanfuso, following his arrest, Garcia did not claim to be under the influence of cocaine.
During rebuttal, de Rosier testified regarding multiple arrests of Garcia and again referred to the larger investigation of Ghost Town. De Rosier arrested Garcia on February 25, 2007. On that day, he had observed Garcia hand an object to the driver of an SUV. De Rosier detained Garcia, who was carrying an off-white substance resembling rock cocaine and $60. Garcia told de Rosier he did not use drugs, and Garcia did not appear to be under the influence of cocaine.
De Rosier testified Garcia had been arrested on July 31, 2007. According to de Rosier, officers did not hold Garcia in custody on July 5, 2007, in part, because the substance he discarded had not been analyzed and, in part, because officers were concerned that incarcerating Garcia may have jeopardized the large scale investigation of Ghost Town. According to de Rosier, no non-GTB member had been arrested for possession of cocaine for purposes of sale in Ghost Town.
During rebuttal, Maldonado testified he had seen Garcia with various members of the GTB gang. On April 23, 2006, officers had observed Garcia sell contraband. Following a search, Maldonado had recovered rock cocaine from Garcia’s buttocks.
DISCUSSION
1. The Trial Court Did Not Abuse its Discretion in Denying Garcia’s Motion for Discovery of Officer Lopez’s Personnel Files
Garcia argues that this court should review the sealed transcript of the trial court’s in camera review of documents it considered pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
a. Additional Background
Prior to trial, Garcia sought discovery of complaints in Lopez’s personnel file. Garcia claimed such discovery was relevant to his proposed defense that Lopez planted the cocaine base and lied about Garcia’s having thrown it. The trial court found good cause for the discovery of evidence in Lopez’s personnel file and conducted an in camera review of the file. The trial court identified for the record each document it reviewed. It found no discoverable evidence. Our record contained a sealed transcript of the trial court’s summary of the documents it reviewed.
b. Legal Analysis
A Pitchess motion is a procedure to request discovery of law enforcement personnel files. (People v. Mooc (2001) 26 Cal.4th 1216.) If good cause is shown, a trial court should review the information in the officer’s personnel file in chambers and disclose to the defendant only “‘such information [that] is relevant to the subject matter involved in the pending litigation.’” (Id. at p. 1226, quoting Evid. Code, § 1045, subd. (a).) “Once the defense has established good cause, the court is required to conduct an in camera review of the records to determine what, if any, information should be disclosed to the defense.” (People v. Samuels (2005) 36 Cal.4th 96, 109.) The trial court should make a record of the documents it examined. (People v. Mooc, supra, 26 Cal.4th at p. 1229.)
Here, the trial court followed the required procedures. It reviewed documents in camera, and kept a record of the documents it reviewed. As Garcia requested, we have independently reviewed the sealed transcript. We find no abuse of discretion in the denial of discovery of Lopez’s personnel files. (People v. Samuels, supra, 36 Cal.4th at p. 110 [applying abuse of discretion standard to review of denial of Pitchess discovery].)
2. The Trial Court Did Not Abuse its Discretion in Denying Garcia’s Motion to Bifurcate the Gang Enhancement
Prior to trial, the court denied Garcia’s request to bifurcate the gang enhancement from the substantive charge. Garcia challenges this ruling, arguing that gang evidence was not relevant, the prejudicial impact of the gang evidence outweighed its relevance, the court erred in failing to give a limiting instruction, and his counsel was ineffective in failing to request a limiting instruction.
A gang enhancement increases the punishment for a felony if the felony “was related to a criminal street gang.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047 (Hernandez).) In Hernandez, our Supreme Court made clear that “the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense.” (Hernandez, supra, 33 Cal.4th at p. 1048.) Proof of the gang enhancement requires evidence that the substantive offense “‘had been “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.”’” (Id. at p. 1047.) “‘In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a “pattern of criminal gang activity” by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called “predicate offenses”) during the statutorily defined period.’” (Id. at p. 1047, italics omitted.)
A defendant seeking bifurcation of the gang enhancement has the burden “‘to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’” (Hernandez, supra, 33 Cal.4th at p. 1051.) Trial on a gang enhancement should be bifurcated where the gang evidence is “so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant’s actual guilt.” (Id. at p. 1049.)
Where a gang enhancement is not bifurcated, the trial court generally has no sua sponte duty to provide a limiting instruction defining proper inferences from the gang evidence. (Id. at p. 1052.) In Hernandez, the court rejected the argument that counsel was ineffective for failing to request a limiting instruction. “‘A reasonable attorney may have tactically concluded that the risk of a limiting instruction... outweighed the questionable benefits such instruction would provide.’” (Id. at p. 1053, quoting People v. Maury (2003) 30 Cal.4th 342, 394.) Additionally, the Hernandez court found the failure to give a limiting instruction was harmless. (Id. at p. 1054.)
Here, the trial court did not abuse its discretion in denying Garcia’s motion to bifurcate the gang enhancement. (Hernandez, supra, 33 Cal.4th at p. 1048 [applying abuse of discretion standard].) Garcia failed to clearly establish that the prejudicial nature of the gang evidence outweighed its probative value. The gang allegation was related to the substantive offense because the prosecution was required to prove that Garcia committed the substantive crime for the benefit of, at the direction of, or in association with GTB. The majority of gang evidence was probative of Garcia’s motive for selling the cocaine base. Although the evidence of other crimes committed by GTB members was relevant only to the enhancement, that evidence was brief and did not cause Garcia undue prejudice. (See Hernandez, supra, 33 Cal.4th at p. 1040 [even where evidence inadmissible in a trial of the substantive offense by itself, a court may still deny bifurcation of gang enhancement].)
There is no merit to Garcia’s claim that the trial court abdicated its responsibility to decide the propriety of bifurcating trial on the gang enhancement. The court heard argument from both sides and issued a ruling on the disputed issue. That the court agreed with the reasoning of the prosecutor does not show the court abdicated its judicial role.
As we explain in section 4, substantial evidence supported the gang enhancement. This case, therefore is distinguishable from People v. Albarran (2007) 149 Cal.App.4th 214, where the appellate court considered whether a new trial on the substantive charge was warranted where the trial court dismissed the gang enhancement after gang evidence had been admitted. The distinction is important because some evidence properly admitted when a gang enhancement is alleged may be found unduly prejudicial in cases not involving a gang enhancement. (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)
The trial court was not required to give a limiting instruction sua sponte. (Hernandez, supra, 33 Cal.4th at p. 1051.) Garcia’s claim that his counsel was ineffective for failing to request such an instruction is unpersuasive, as Garcia demonstrates neither the absence of a tactical reason for failing to request the limiting instruction nor prejudice, the two required elements of an ineffective assistance of counsel claim. (See Hernandez, supra, 33 Cal.4th at p. 1054.) Garcia’s contention that the jury could have convicted him of the substantive offense based on his “gang status alone” ignores the specific jury instructions identifying the elements necessary to establish possession for sale of a controlled substance and requiring that the jury find those elements beyond a reasonable doubt.
3. Garcia Demonstrates No Error in the Admission of Expert Testimony that Garcia and his Associates Were Members of GTB
Garcia argues the court erred in allowing improper expert testimony that Posey, McMurray, Sprewell, and Garcia were members of GTB. We disagree.
Gang experts may base their opinions on personal investigations of crimes committed by gang members and information from colleagues and law enforcement agencies. (People v. Gardeley (1996) 14 Cal.4th 605, 620.) Testimony by a gang expert may establish that a person is a member of a gang. (Id. at p. 625; see also People v. Villegas (2001) 92 Cal.App.4th 1217, 1227-1228 [rejecting challenge to expert testimony concerning gang’s documented membership]; People v. Ruiz (1998) 62 Cal.App.4th 234, 238, 243 [finding admissible gang expert testimony regarding defendant and other person’s gang membership].) In short, “an individual’s membership in a criminal street gang is a proper subject for expert testimony.” (People v. Duran (2002) 97 Cal.App.4th 1448, 1464.)
4. Substantial Evidence Supports the Gang Enhancement
Emphasizing that he was alone and arguing that he intended to benefit only himself from the sale of cocaine base, Garcia contends that the record lacks sufficient evidence to support the gang enhancement. “To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) The same deferential standard applies to determine the sufficiency of a gang enhancement. (People v. Ortiz (1997) 57 Cal.App.4th 480, 484.)
As previously mentioned, Penal Code section 186.22, subdivision (b)(1) provides an enhanced sentence for any person who is 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....” As we explain, substantial evidence supports each element.
There was evidence, which the jury could have credited, that Garcia was a member of GTB. Maldonado identified him as a member of GTB and de Rosier knew Garcia as K-dub. Additional evidence showed that selling narcotics was a primary activity of GTB members. Evidence that GTB controlled the drug trafficking in Ghost Town and that only GTB members were allowed to sell narcotics there supported the reasonable inference that Garcia was selling cocaine base with the permission and under the rules established by GTB. Further, there was evidence that GTB benefited from the narcotic sales in Ghost Town because profits from the narcotic sales were used to purchase both narcotics and weapons. A reasonable juror could have inferred that Garcia possessed the cocaine base for sale in gang territory and intended to benefit GTB with profits made from the sale. This same evidence supports the finding that Garcia specifically intended to promote GTB by sharing profits with it. Otherwise, Garcia would not have been permitted to sell in that area.
People v. Ferraez (2003) 112 Cal.App.4th 925 (Ferraez), reached a similar conclusion. There, the defendant argued that his purpose in selling contraband was personal, not gang-related. The court found substantial evidence supported the gang enhancement where the evidence showed the defendant had permission from a gang friendly to his own to sell drugs, and an expert testified that a gang’s reputation could be enhanced through drug sales and that the gang could benefit from the proceeds of the drug sales. (Id. at p. 931.) While the defendant in Farrarez admitted to being a gang member and having permission to sell drugs, here the evidence was substantially similar albeit not through direct admissions of Garcia. In short, substantial evidence supports the gang enhancement.
The Farrarez court stated “the expert’s testimony alone would not have been sufficient to find the drug offense was gang related.” (Ferraez, supra, 112 Cal.App.4th at p. 931.) This statement has been interpreted to mean that generally an expert’s “testimony alone is insufficient to find an offense gang related.” (People v. Ochoa (2009) 179 Cal.App.4th 650, 657.) We understand Ferraez to hold that the gang expert’s testimony in that case, without more, would not have been sufficient to sustain the conviction, not that a gang expert’s testimony may never be sufficient. Here, the same evidence was presented as in Ferraez regarding gang control of narcotics sales in a particular area and regarding Garcia’s gang membership. We find no meaningful distinction between this case and Ferraez.
5. Prior Bad Acts
Garcia argues the court erred in admitting evidence of prior bad acts, including (1) prior contacts with police showing his gang membership, (2) prior uncharged drug sales, and (3) prior arrests. He argues the trial court should have excluded this evidence; alternatively, he contends his trial counsel rendered ineffective assistance by failing to object to its admission.
Garcia has forfeited his evidentiary challenges. With one exception, no specific legal objection to the evidence was presented in the trial court (and some of the evidence was elicited by defense counsel). (People v. Doolin (2009) 45 Cal.4th 390, 437 [to preserve claim of error on appeal, defendant must have objected in trial court on specific ground raised on appeal]; People v. Partida (2005) 37 Cal.4th 428, 435 [objection must inform trial court and opposing party of the specific reason evidence should be excluded]; Evid. Code, § 353 [no verdict shall be set aside for the erroneous admission of evidence unless there was a timely objection or a motion to exclude or strike stating the specific ground for the objection].) Counsel initially objected, under Evidence Code section 352, to evidence of Maldonado’s contacts with Garcia demonstrating his gang affiliation. However, the court deferred its ruling, and when the prosecutor stated Maldonado would testify about his prior contacts with Garcia, defense counsel offered no legal basis to exclude the evidence. Garcia therefore forfeited this challenge in addition to those where no objection had been made. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1181.)
Garcia argues the trial court abdicated its responsibility to make evidentiary rulings. The court, however, was not obligated to make an explicit ruling where no objection was made. (People v. Fierro (1991) 1 Cal.4th 173, 238.) “‘[T]he trial court... has no sua sponte duty to exclude evidence....’” (People v. Medina (1995) 11 Cal.4th 694, 727.)
We now turn to Garcia’s alternative argument that his counsel rendered ineffective assistance. To successfully assert an ineffective assistance of counsel claim, Garcia must show both that counsel’s performance fell below an objective standard of reasonableness and that, but for counsel’s errors, it was reasonably probable the result of the proceeding would have been different. (In re Hardy (2007) 41 Cal.4th 977, 1018; see also Porter v. McCollum (2009) 558 U.S. ___ [130 S.Ct. 447].)
Garcia cannot show his trial counsel was ineffective for failing to object to evidence of Maldonado’s prior contacts with him as demonstrating his gang affiliation. It was not reasonably probable that an objection would have been successful. (People v. Williams (1997) 16 Cal.4th 153, 159.) Garcia’s contention that his association with other gang members and his gang-related activities “had no bearing on the charged drug offense” overlooks the fact that he also was charged with a gang enhancement. Evidence that Maldonado saw Garcia with other gang members in locations frequented by gang members was highly probative of Garcia’s gang membership, a fact Garcia denied. Because Garcia does not show the evidence would have been excluded had an objection been made, he fails to show his counsel was ineffective for failing to object to its admission. (See ibid; see also People v. Cudjo (1993) 6 Cal.4th 585, 626 [counsel was not ineffective for failing to object to admission of prior conviction where such conviction was admissible for purposes of impeachment].)
Maldonado testified that he came in contact with Garcia over 20 times including at known gang locations with other GTB members.
Similarly, Garcia fails to show an objection to evidence that he previously sold contraband would have been successful. The prohibition against admitting evidence of other crimes or misconduct to show a criminal disposition was inapplicable because the evidence had been admitted to impeach Garcia’s credibility. (Evid. Code, § 1101, subd. (c); People v. Doolin, supra, 45 Cal.4th 390, 438.) Garcia testified that he smoked cocaine but did not sell it. Evidence of prior sales impeached this testimony. Moreover, evidence of possession for sale demonstrated moral turpitude. (People v. Harris (2005) 37 Cal.4th 310, 337), and was therefore relevant to Garcia’s credibility. (People v. Wheeler (1992) 4 Cal.4th 284, 295, superseded by statute on other grounds as stated in People v. Duran, supra, 97 Cal.App.4th at p. 1459; People v. Lepolo (1997) 55 Cal.App.4th 85, 90 [misconduct involving moral turpitude but not resulting in a conviction also admissible].) Finally, it was not reasonably probable that an objection under Evidence Code section 352 would have been successful, because the evidence of prior sales was highly probative to rebut Garcia’s testimony. Because Garcia does not show an objection to this evidence would have been successful, he fails to show his counsel rendered ineffective assistance by failing to object. (People v. Cudjo, supra, 6 Cal.4th at p. 626.)
Garcia admitted that he was found with cocaine in his buttocks. Maldonado testified that, on April 23, 2006, officers observed Garcia selling contraband, and following a search, found cocaine in his buttocks. De Rosier testified that on February 25, 2007, he detained Garcia and found him carrying an off-white solid resembling rock cocaine and $60 in miscellaneous denominations.
In contrast, an objection to the evidence that Garcia had suffered multiple other arrests might have been successful. Evidence of arrests has been held inadmissible. (People v. Medina, supra, 11 Cal.4th at p. 769 [“mere arrests are usually inadmissible, whether as proof of guilt or impeachment....”]; People v. Anderson (1978) 20 Cal.3d 647, 650 [“it has long been held that evidence of an accused’s prior arrests is inadmissible”]; People v. Williams (2009) 170 Cal.App.4th 587, 610 [same].)
During cross-examination by defense counsel, de Rosier testified that he arrested Garcia on February 25, 2007 and sometime in 2006. Maldonado testified that he arrested Garcia with other gang members and that Garcia was arrested for crimes consistent with gang membership. Garcia admitted to being arrested February 25, 2007 and July 31, 2007. During rebuttal, on direct examination, De Rosier testified Garcia was arrested July 31, 2007. De Rosier testified that although Garcia was arrested July 5 (for the charged crime), he was not held in custody because the evidence had not been analyzed and because officers decided that if Garcia remained in custody a larger investigation of Ghost Town would have been jeopardized. When defense counsel cross-examined de Rosier, he asked why Garcia was released from custody on July 5, 2007, and de Rosier reiterated that officers did not want to jeopardize a larger investigation of Ghost Town.
However, Garcia has not shown counsel was ineffective in failing to object. “‘Failure to object rarely constitutes constitutionally ineffective legal representation.’” (People v. Gray (2005) 37 Cal.4th 168, 207.) “‘“[T]rial counsel’s tactical decisions are accorded substantial deference [citations], [and]... [a] reviewing court will not second-guess trial counsel’s reasonable tactical decisions.”’” (People v. Maldonado (2009) 172 Cal.App.4th 89, 97.)
Counsel may have had a tactical reason for not objecting to the evidence that Garcia had been arrested and for eliciting some of that evidence. During his closing argument, defense counsel argued that the police were out to get Garcia and they had a long history with him and disliked him. That argument was consistent with Garcia’s testimony that officers had threatened to arrest him when he was “just walking down the street going to somebody’s house.” In addition, defense counsel informed the court that he sought to use evidence of the larger investigation to show that everyone in Ghost Town was “guilty by association.” Based on the record on appeal, we cannot eliminate the possibility that counsel had a valid tactical reason for failing to object to the evidence.
Even if counsel’s performance were deemed deficient, Garcia has failed to show he suffered prejudice as a result of the introduction of the evidence of his arrests. Garcia’s defense was predicated on his credibility, which he attempted to bolster by emphasizing that he admitted his past indiscretions. The existence of an arrest warrant was also central to Garcia’s defense because it was the sole reason he gave for running from Lopez. Thus, at least one prior arrest was necessary to his defense, and the other arrests were no more inflammatory. Finally, the evidence against Garcia was strong, making it unlikely that the exclusion of evidence of prior arrests would have resulted in a more favorable verdict. Garcia was the only witness to testify for the defense, and his credibility was impeached with admissible evidence of his prior sales activity and by his own unwillingness to identify his family members or girlfriend. In short, Garcia has not demonstrated prejudice necessary for his ineffective assistance of counsel claim.
Garcia challenges de Rosier’s rebuttal testimony regarding the larger investigation of Ghost Town. Some of this testimony was elicited by defense counsel, and no objection was made to the remainder of it. Garcia’s contention therefore is forfeited. Additionally, for the same reasons Garcia did not suffer prejudice from his trial counsel’s failure to object to the evidence of prior arrests, he did not suffer prejudice from counsel’s failure to request a limiting instruction regarding them.
6. Garcia Has Not Shown He Received Ineffective Assistance of Counsel Based on His Counsel’s Decision that He Testify
Garcia’s remaining contention is that his trial counsel rendered ineffective assistance when he decided to allow Garcia to testify based on the erroneous understanding that the prosecution’s evidence would be limited to the facts (which were not identified) of a search warrant. We disagree.
After trial, defense counsel moved for a mistrial. He explained: “I have advised my client about dangers, pluses and negatives of testifying. In an attempt to find out how far the door would be opened, I believe we had a motion in limine relating to what type of conduct the [prosecutor] would get into. I believe that that was going to be contents of the search warrant.” The trial court denied the motion for a mistrial.
Assuming that counsel would have recommended against Garcia testifying had he known the scope of admissible evidence, the record does not show Garcia would have chosen to refrain from testifying. (People v. Robles (1970) 2 Cal.3d 205, 215 [“the right to testify in one’s own behalf is of such fundamental importance that a defendant who timely demands to take the stand contrary to the advice given by his counsel has the right to give an exposition of his defense before a jury”].) Nor does Garcia show it was reasonably probable a better result would have ensued had he exercised his right not to testify. Garcia was the only defense witness. Had he chosen not to testify, the only evidence before the jury would have been Lopez’s account that he saw Garcia throw something to the ground and later recovered two rocks of cocaine base. Similarly, with respect to the enhancement, Garcia’s testimony was the only evidence that challenged his gang membership. Thus, Garcia fails to show that the introduction of the evidence of prior arrests undermines confidence in the verdict. (People v. Jones (2009) 178 Cal.App.4th 853, 860 [reasonable probability the results of the proceeding would be different is a probability sufficient to undermine confidence in the outcome], citing Strickland v. Washington (1984) 466 U.S. 668, 694.)
Because we find no cumulative error, we need not consider Garcia’s argument that the cumulative errors require reversal.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.
The cases relied on by Garcia are not helpful. People v. Albarran, supra, 149 Cal.App.4th 214, did not involve a challenge to the sufficiency of the evidence of the gang enhancement. In People v. Ramon (2009)175 Cal.App.4th 843,851, it was impossible to determine whether the defendant was acting on his own behalf or on behalf of his gang when he received a stolen vehicle and carried an unregistered firearm. (Ibid.) In addition, those crimes were not among the gang’s primary activities. (Id. at p. 853.)