Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA288830. Barbara R. Johnson, Judge.
Christine C. Shaver, 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, Lance E. Winters and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
A jury convicted Shawn D. Jones (appellant) of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) (count 1) and carrying a loaded firearm (§ 12031, subd. (a)(1)) (count 2). The jury found true the allegation that appellant suffered a prior conviction of a serious or violent felony within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). The jury also found true the allegations that appellant suffered two prison priors within the meaning of section 667.5, subdivision (b).
All further references to statutes are to the Penal Code unless stated otherwise.
The trial court sentenced appellant to five years in state prison. On count 1, the trial court imposed double the midterm of two years and one year for one of the prison priors. The trial court struck the other prison prior and stayed the sentence in count 2 pursuant to section 654.
Appellant contends on appeal that: (1) the trial court committed prejudicial error in failing to conduct a full Marsden hearing where appellant complained that trial counsel refused to call his only alibi witness and did not inform appellant until the day of trial; (2) trial counsel provided ineffective assistance of counsel in failing to move for bifurcation of the gang enhancement from the charged offense where there was no direct evidence the crime was committed for the benefit of and in association with a criminal street gang and where the evidence was unnecessary to prove elements of the charged crime; and (3) appellant’s motion for mistrial should have been granted because the trial court erred in allowing the prosecution’s gang expert to testify to alleged bad acts and uncharged crimes that were irrelevant to the gang enhancement and unduly prejudicial pursuant to Evidence Code section 352.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTS
I. Prosecution Evidence
On August 13, 2005, Officer Arthur Gallegos of the Los Angeles Police Department was assigned to the Gang Enforcement Detail of the Southwest Division. For approximately two years he had been monitoring the criminal activities of the Rolling 20’s Blood street gang—interviewing witnesses and obtaining intelligence about the gang. Officer Gallegos’s partner, Officer Pablo Soto, had been assigned to the gang detail for two years at the time of trial.
Officer Gallegos saw appellant regularly during his daily patrols of the neighborhood. He had never cited appellant, although he had detained him and warned him for various Vehicle Code violations. Officer Soto had known appellant for approximately one year and had had about 50 contacts with appellant. Officer Soto knew appellant as a gang member. Appellant often spoke with the two officers about the Rolling 20’s gang and its history. Most of Officer Gallegos’s contacts with appellant were unpleasant. Appellant was belligerent and yelled at police officers to leave him alone.
One month before August 13, 2005, Officer Gallegos saw appellant being arrested at Loren Miller Park. At the police station later on, Officer Gallegos heard appellant say, “Next time you guys come in contact with me, I’m going to have a strap.”
On August 13, 2005, at approximately 7:15 p.m., the two officers were traveling northbound on Catalina Street when they came to a residence at 2641 South Catalina Street that had generated neighborhood complaints about narcotics sales. Officer Gallegos saw appellant standing with his back to the patrol car and facing Timothy Alfred (Alfred), another Rolling 20’s gang member.
The officers stopped their car and spoke with appellant and Alfred. Officer Soto was outside the police car and Officer Gallegos was inside. Appellant was normally assertive, but on that day he was uncharacteristically nervous. He was hesitant and fidgeting. When Officer Gallegos got out of the patrol car, appellant immediately ran southward. Officer Gallegos pursued him and saw that appellant ran with his hand placed on his right pants pocket, grasping it with a closed, hardfisted grip. Because of this gesture and because of appellant’s previous demeanor, Officer Gallegos suspected appellant possessed a gun. At first Officer Soto joined the pursuit but he stopped. Officer Soto ordered Alfred to the ground and watched as Officer Gallegos pursued appellant.
Officer Gallegos never lost sight of appellant, and appellant was still grasping at his lower-right pants pocket as he ran. Appellant finally stopped and removed a Phoenix Arms .22-caliber semiautomatic handgun from his pocket. Because he feared for his life, Officer Gallegos drew his weapon and pointed it at appellant. Appellant looked in Officer Gallegos’s direction and said, “I ain’t fucking with you” and threw the gun into the yard of a residence at 2647 South Catalina Street. Appellant then jumped the fence at 2641 South Catalina Street and ran toward the rear of the property. Officer Gallegos did not follow because a rottweiler was tied to the fence and because he was familiar with appellant. He knew appellant’s name and moniker, which was “Spook.” Also, Officer Gallegos did not wish to leave appellant’s gun unsecured. Officer Gallegos entered the yard where appellant had thrown the gun and secured it by standing over the gun until additional officers arrived.
Officer Soto heard Officer Gallegos yell that appellant had a gun that he threw in a yard. Later, Officer Soto saw the gun where Officer Gallegos told him appellant had thrown it. Officer Joseph Meyer photographed appellant’s gun and cleared it. The gun was loaded with three bullets.
Police officers, police dogs, and a helicopter searched for appellant for approximately 30 to 40 minutes, but he was not found. Alfred was arrested and taken into custody. Appellant was arrested approximately one month later in an unrelated incident.
Officer Stacey Szymkowiak testified as a gang expert at appellant’s trial. For three years she was part of the Southwest Division Gang Enforcement Detail and was assigned to the Rolling 20’s Bloods. Officer Szymkowiak stated that the gang had approximately 300 members. She explained the territorial reach of the gang, their manner of dress, and their most common tattoos and hand signs. She told the jury about their tagging signatures and the practice of crossing out rival gangs’ graffiti as a threat or warning.
Officer Szymkowiak told the jury about finding graffiti in the heart of Rolling 20’s territory with various monikers, including that of “Spook,” and she showed a photograph of the graffiti to the jury. Appellant shared this moniker with a Fruit Town Brim gang member. Fruit Town Brim was a neighbor Blood gang to the Rolling 20’s, but their territory was not near the alley where she found the graffiti. “Spook” was written near “Little Boo,” which was the moniker of an older gang member with whom Officer Szymkowiak had seen appellant.
Officer Szymkowiak described appellant’s various tattoos. Appellant was made to stand up, remove his shirt, and show his tattoos to the jury. Officer Szymkowiak stated her opinion that appellant is a Rolling 20’s gang member.
Officer Szymkowiak stated that the Rolling 20’s commit every type of crime. She testified regarding two felonies—assault with a firearm and possession of cocaine base for sale—that were committed by two Rolling 20’s members. She believed these crimes were committed for the benefit of the gang.
Officer Szymkowiak explained that shot callers were older gang members who are feared and respected and who direct gang activities. She had information that appellant was a shot caller for the 29th Street Clique beginning in early 2004. The prosecutor gave Officer Szymkowiak a hypothetical based on the facts of the instant case. She was of the opinion that the instant crimes were committed for the benefit of the gang. Her opinion was based on her knowledge of why gang members carry guns and the facts of appellant’s case.
Officer Szymkowiak had personally encountered appellant approximately 20 to 30 times, and she had seen him 40 or 50 times. Appellant was aggressive and loud and often caused a disturbance. She had found him friendly only one time—when his child and the child’s mother were present. He was not very well-liked in the gang because he was seen as a bully. A gang member told Officer Szymkowiak that appellant regularly carried a gun and had threatened gang members with it. Appellant had a reputation for fighting with police and smoking PCP.
In October 2004 Officer Szymkowiak conducted a parole search at appellant’s Van Buren street address and found none of appellant’s clothing or property, although his family lived there. The parties stipulated that appellant had been convicted of a prior felony.
II. Defense Evidence
Evelyn Marie Willis (Willis), appellant’s aunt, lived at 2910 Van Buren Place and testified that appellant stayed there around five nights a week. He received mail there and kept clothing in the house. Willis did not know if appellant was in a gang. When police searched the home in August 2004, she showed the police some of appellant’s clothing in a drawer and in a shed.
Jacobi Charles Williams (Williams), who did not know appellant, testified that Officers Gallegos and Soto pulled him over on May 5, 2005. The officers got out of their car and drew their weapons. The officer who had been driving ordered him to get “the fuck out of the car.” Williams was wearing his seat belt, and he told the officer this while keeping his hands in the air. The officer told him to take off the seat belt and get out. The other officer went through the glove compartment and searched under the seats while the driver pointed a gun at the small of Williams’s back as he patted him down. Williams kept asking why he was being stopped. He offered his license and insurance, but the officer just grabbed his arm and led him to the sidewalk. The officers gave no explanation but repeatedly asked him if he was involved in gangs and if he had heard anything about the rumor that young Black men in white T-shirts were to be shot by Latino men on the Cinco de Mayo holiday. After approximately 35 minutes, the officers wrote him a ticket for not wearing a seat belt. Williams fought the ticket but lost.
III. Rebuttal Evidence
Officer Soto testified that he remembered Williams because Williams had filed a complaint against him. On May 5, 2005, Officers Soto and Gallegos were asked to monitor the area of Manual Arts High School. Officer Soto saw Williams roll through a stop sign and noticed he was not wearing his seat belt. Officer Soto approached Williams and told him why he was being stopped. He asked him to step on the sidewalk because there was a lot of traffic. Officer Soto asked Williams for information and filled out a field investigation card. When Officer Soto asked Williams if he had a moniker or was affiliated with a gang, Williams became agitated. Williams denied being in a gang and said he lived in Louisiana. Officer Soto found that Williams had no warrants. He then warned Williams about driving through the stop sign and cited him for not wearing a seatbelt. Officer Gallegos was standing on the sidewalk next to Williams the entire time. Neither Officer Soto nor Officer Gallegos drew a weapon, patted down Williams, or searched his car during the 10-minute stop. Officer Soto did inform Williams of the risk of wearing a white T-shirt at that time. The stop occurred at 2:00 or 3:00 in the afternoon while there was a lot of traffic, and there were many pedestrians in the area.
DISCUSSION
I. Denial of Marsden Motions
A. Argument
Appellant contends the trial court abused its discretion in failing to fully explore the last of appellant’s many complaints against his court-appointed attorney. According to appellant, there was reason to believe that there had been a serious breakdown of the attorney-client relationship, and obliging appellant to continue with his counsel impaired his Sixth Amendment right to effective assistance of counsel.
B. Proceedings Below
The record shows that the trial court held seven Marsden hearings between January 19, 2006 and May 5, 2006. In all instances it denied appellant’s request for a different attorney. On May 8, 2006, during voir dire, appellant told the trial court that he wished to represent himself because he did not want his attorney to “take [him] down,” saying, “I’ll take my own self down.” Appellant went on to say “She’s supposed to ask me about the juror, is it okay, is it not okay. She don’t do nothing. She makes her own decisions for herself.” The trial court asked if appellant was unhappy with his attorney’s decisions, and appellant replied, “Exactly. She don’t want to do nothing.” The trial court stated, “No. No. We don’t want to go into Marsden territory. We just want to . . . . make you understand that if you represent yourself, you can’t go back and forth. It’s not a good idea to represent yourself.” When asked if he had ever represented himself, appellant said he had not, but he would rather take himself down “than her take me down. I can’t blame nobody but myself.”
The trial court asked appellant if he was ready to go to trial, and appellant replied that if necessary, he was. The trial court then stated, “All right. I need to ask him some questions, and it may develop into Marsden.” The prosecutor offered to leave the courtroom and did so.
At the Faretta hearing, the trial court asked appellant if he had been to trial before and appellant said he had not. The trial court explained how the trial procedure works. It stated that appellant’s attorney was very well prepared, and merely because appellant disagreed with her methods, it was not a good idea for appellant to represent himself. Appellant claimed that all the information his counsel had, she received from him, and the trial court disagreed. It explained that appellant could not have obtained what his attorney had without making the proper motions. The trial court explained to appellant the pitfalls of representing himself and told him he would be on his own. In reply, appellant stated, “We don’t see eye-to-eye.” The trial court said that appellant had already had his Marsden hearing and they were not presently talking about seeing eye-to-eye.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
The trial court inquired about appellant’s education and certain trial procedures, and appellant expressed ignorance about the procedures. The trial court again asked appellant if he did not see the importance of his attorney’s knowledge, and appellant complained that his attorney was doing things for her interest rather than his and that he knew the good points to argue. He said he would like to have a better understanding of his defense. Lastly, appellant complained that his attorney had told him they would not need his only alibi witness. Appellant said he did not understand that because “This dude for me. I wasn’t there when he was in jail. He’s fixing up to get on the stand and tell the jury that I was never there with him.” At that point, appellant’s attorney remarked, “Well, he’s a gang member with tattoos on his face.” The trial court asked appellant, “Don’t you think that a juror is going to look at a gang member with a tattoo on his face.” Appellant retorted, “He’s not in Calgangs.” The trial court replied, “They can use their common sense that he doesn’t have to be in Calgangs. If he has a tattoo on his face, do you think that the jury is—that the person that you have is going to say, “I’m not a gang member?” He’s going to admit he’s a gang member, and they’re going to know he’s a gang member because of the tattoos on his face. And they’re going to associate—guilt by association. You’re calling him; that means you must be a gang member, too.” The trial court told appellant that the jury would not believe the witness because he is a gang member and because he went to jail the day of the offense. Appellant retorted, “By hisself. Why don’t she interview him in the first place, then? Why don’t she get him? Why does she wait until today to say they don’t need him when we’re in trial?”
The trial court explained that his attorney acted in this way “because she has experience to know. You want her to do her best, not how you think it should go. You’ve never been to trial, and she’s been to trial several times.” Appellant replied that he had been in jail as long as his attorney had been a lawyer and that he had “seen some cases.” Appellant stated, “This is my life.” The trial court asked counsel if she had anything to add and she replied, “Since it’s not a Marsden, I’m not going to address the things that he’s said about me, Your Honor. So I don’t really have anything to add.”
The trial court gave appellant a form to fill out regarding representing himself but indicated it was not inclined to grant him pro. per. status. After the prosecutor entered the courtroom, appellant told the trial court he had changed his mind, and voir dire proceeded.
C. Relevant Authority
A defendant’s Sixth Amendment right to the assistance of counsel entitles him to substitute appointed counsel “‘“if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.”’” (People v. Welch (1999) 20 Cal.4th 701, 728; People v. Memro (1995) 11 Cal.4th 786, 857.)
Where a defendant expresses a desire to discharge his attorney, he must be afforded an opportunity to express the specific reasons why he thinks he is not receiving adequate representation. (People v. Vera (2004) 122 Cal.App.4th 970, 978–979.) The California Supreme Court has held, “The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing.” (People v. Lucky (1988) 45 Cal.3d 259, 281; see also People v. Padilla (1995) 11 Cal.4th 891, 927, disapproved on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
A trial court’s duty to conduct a Marsden inquiry arises only after the defendant gives “some clear indication” that he or she wishes a substitute attorney. (People v. Lucky, supra, 45 Cal.3d at p. 281 & fn. 8; People v. Leonard (2000) 78 Cal.App.4th 776, 787 [duty to conduct Marsden inquiry arises only when defendant asserts directly or by implication that his counsel’s performance has been so inadequate as to deny him the constitutional right to effective counsel].) “A request for self-representation does not trigger a duty to conduct a Marsden inquiry [citation] or to suggest substitution of counsel as an alternative.” (People v. Crandell (1988) 46 Cal.3d 833, 854–855; see also People v. Clark (1992) 3 Cal.4th 41, 105.)
D. No Error or Abuse of Discretion
We conclude there was no abuse of discretion in that the trial court properly conducted a hearing pursuant to appellant’s request to represent himself, during which appellant seized upon the opportunity to make a few more complaints about his attorney. Appellant was no stranger to making Marsden motions, and had he wished to further pursue the complaints he made in his Faretta hearing, he well could have. Appellant’s repeated reference to taking himself down clearly indicates that he was only interested in pursuing the idea of representing himself at that point. His complaints about his attorney arose in the context of the trial court explaining the advantages of having an experienced and well-prepared defense counsel and the trial court’s remarks indicating that appellant’s counsel was better prepared than many of the attorneys it had seen. Even after appellant had changed his mind about representing himself, he did not make another Marsden motion.
Appellant did not expressly request or give a clear indication that he wanted new counsel, and we conclude that appellant’s comments at the hearing did not constitute an implied request for a Marsden motion. Even though the trial court invited defense counsel to add to the discussion if she so desired, the trial court was not required to question appellant’s attorney concerning appellant’s complaints, especially given appellant’s extensive history of Marsden hearings. (People v. Young (1981) 118 Cal.App.3d 959, 966; see also People v. Crandell, supra, 46 Cal.3d at pp. 854–855.)
In any event, the record shows that the previous Marsden hearings had allowed the trial court to become well acquainted with appellant’s mindset and with the degree of competence of appellant’s attorney. From the first Marsden hearing, the trial court had heard appellant complain that his counsel was not fighting in his best interest, as he phrased it, and the trial court had each time found this to be not true. The records of the hearings show that defense counsel answered each of appellant’s allegations satisfactorily. As stated previously, a difference of opinion between a defendant and his attorney over trial tactics does not impose a duty on a trial court to hold a Marsden hearing. (People v. Lucky, supra, 45 Cal.3d at p. 281.) “A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense.” (People v. Welch, supra, 20 Cal.4th at p. 728.)
The trial court informed appellant during his second Marsden hearing on January 25, 2006, that “your misunderstanding of the law or your belief as to tactical approaches to the case do not equate to any failure on Ms. Johnston’s part in representing you.” The record of the March 2, 2006 Marsden hearing reveals that the trial court was also aware that appellant possessed a rigid certainty that certain trial tactics he had in mind should be pursued by his attorney regardless of whether her education and experience suggested otherwise. As the trial court noted, one of the psychologists who interviewed appellant stated that appellant “does not want to accept [his attorney’s] legal opinions over his legal opinions.” The trial court had also dealt with appellant’s complaints that his attorney was not calling witnesses that appellant believed should have been called in the April 26, 2006 Marsden hearing. The trial court found that appellant had been properly represented and had a tendency to second-guess his attorney.
Therefore, the trial court heard all it needed to hear from appellant and his attorney at the Faretta hearing. To the extent that appellant was making a Marsden motion, the trial court had heard the identical issue before and decided the motion against appellant. There was no need to inquire further. Under the circumstances recounted ante, the trial court adequately addressed appellant’s concerns without conducting a formal Marsden hearing.
Even if the trial court erred in failing to conduct a formal Marsden hearing, we conclude that that error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 36; People v. Chavez (1980) 26 Cal.3d 334, 348–349 [Marsden does not establish a rule of per se reversible error].) Appellant presents no evidence that a Marsden motion would have been granted, or, if granted, it would have altered the result. The record strongly suggests otherwise.
II. Alleged Ineffective Assistance of Counsel
A. Argument
Appellant contends that his trial counsel’s representation was deficient because she failed to move to bifurcate the gang enhancement from the charged crimes. According to appellant, his case was a simple weapon possession charge without a victim, and the gang evidence was not necessary to prove the possession. At no time did appellant say or do anything that indicated he belonged to a gang or was acting to promote a gang, such as using a gang slogan or flashing a gang sign.
Appellant claims his is precisely the type of case where bifurcation was necessary to avoid undue prejudice. There could be no possible tactical reason for counsel to not make a bifurcation motion, and if the motion had been made, it would have been an abuse of discretion for the trial court to deny it. There is a reasonable probability that absent this failure the result of the case would have been different, and appellant’s conviction must be reversed.
B. Relevant Authority
The defendant bears the burden of proving ineffective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 216.) To establish constitutionally inadequate assistance of counsel, a defendant must prove (1) deficient performance by counsel as determined by prevailing professional standards, and (2) prejudice, or a reasonable probability that, but for the deficient performance, the trial would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687–696 (Strickland); In re Cudjo (1999) 20 Cal.4th 673, 687.) To demonstrate prejudice, “[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” (Strickland, supra, at p. 693.) “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694; see People v. Weaver (2001) 26 Cal.4th 876, 961.) When a claim of ineffective assistance of counsel is based on counsel’s failure to make a motion, the defendant must show that had reasonably competent counsel made such a motion, it would have been successful. (See People v. Grant (1988) 45 Cal.3d 829, 864–865.)
A trial court has broad discretion in determining whether to bifurcate a gang enhancement allegation from a charged offense. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048–1050 (Hernandez).) “[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]” (Id. at p. 1049.)
C. No Ineffective Assistance of Counsel
We disagree with appellant’s assertion that his counsel was ineffective in failing to seek bifurcation of the gang allegations. We believe such a motion would have been unsuccessful and appellant suffered no prejudice due to the alleged omission.
In Hernandez, relied upon by appellant, the California Supreme Court determined that the trial court did not abuse its discretion in denying the defendant’s motion to bifurcate the gang enhancement charges from the underlying robbery charges. (Hernandez, supra, 33 Cal.4th at pp. 1044, 1048.) The Hernandez court noted that a trial court has the discretion to bifurcate certain issues such as prior convictions from the determination of the defendant’s guilt. (Id. at p. 1048.) The court distinguished prior conviction allegations, which relate to a defendant’s status and may have no connection to the charged crime, from criminal street gang enhancement allegations. The latter are attached to the charged crimes and are “inextricably intertwined” by definition with those crimes. (Ibid.) Therefore, there is generally less need for bifurcation with a gang enhancement than with a prior conviction allegation. (Ibid.; see also People v. Martin (1994) 23 Cal.App.4th 76, 81.)
Bifurcation is thus warranted only when the other evidence of the predicate acts required to establish the gang enhancement is unduly prejudicial, or when gang evidence about the defendant 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.” (Hernandez, supra, 33 Cal.4th at p. 1049.) The Hernandez court also stated that, “[e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself—for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged—a court may still deny bifurcation.” (Hernandez, supra, 33 Cal.4th at p. 1050.) The court analogized the bifurcation issue to the severance of charged offenses, in which judicial economy is a factor to be considered. “When the offenses are joined for trial the defendant’s guilt of all the offenses is at issue and the problem of confusing the jury with collateral matters does not arise. The other-crimes evidence does not relate to [an] offense for which the defendant may have escaped punishment. That the evidence would otherwise be inadmissible may be considered as a factor suggesting possible prejudice, but countervailing considerations that are not present when evidence of uncharged offenses is offered must be weighed in ruling on a severance motion. The burden is on the defendant therefore to persuade the court that these countervailing considerations are outweighed by a substantial danger of undue prejudice.’ [Citation.]” (Ibid.)
Hernandez recognized that “[t]he analogy between bifurcation and severance is not perfect” (Hernandez, supra, 33 Cal.4th at p. 1050), but concluded that “the trial court’s discretion to deny bifurcation of a charged gang enhancement is . . . broader than its discretion to admit gang evidence when the gang enhancement is not charged. [Citation.]” (Ibid.) The court concluded that “[e]ven if some of the expert testimony would not have been admitted at a trial limited to guilt, the countervailing considerations that apply when the enhancement is charged permitted a unitary trial.” (Id. at p. 1051.)
We believe that in the instant case the gang evidence was not “extraordinarily prejudicial” and that it was relevant to appellant’s guilt of the charged offenses. (Hernandez, supra, 33 Cal.4th at p. 1049.) First, this is a case where the gang evidence was clearly intertwined with the substantive offenses, and the trial court would have exercised its broad discretion to deny any request by trial counsel to bifurcate the gang evidence. Both Officer Gallegos and Officer Soto were gang officers assigned to the gang unit. Their knowledge of appellant stemmed from their work with gangs, as did Officer Gallegos’s awareness of appellant’s “strap” comment, and the officers’ reason for speaking with him at the address on Catalina Street the day of the incident. That appellant was a gang member also explained how Officer Gallegos was able to identify appellant even though he gave up the chase—because he knew appellant’s name and his moniker.
Most importantly, the gang evidence was relevant to appellant’s motive for being armed, as Officer Szymkowiak testified. Gang members have many reasons to carry guns, as opposed to ordinary citizens. They use them to protect themselves and their fellow gang members, to protect their reputation in the neighborhood, and to intimidate people in the neighborhood so that they do not call the police if they observe the member committing a crime. Gang members gain respect, power, and money from robberies and shootings committed with handguns. Officer Szymkowiak also explained that having a chambered round benefited the gang because the gun was ready for use at any time in case a gang member had to protect himself from rival gangs or just to handle business. As stated in Hernandez, “[t]he People are entitled to ‘introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.’ [Citation.] ‘[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.’ [Citations.] [¶] Expert testimony repeatedly has been offered to show the ‘motivation for a particular crime, generally retaliation or intimidation’ and ‘whether and how a crime was committed to benefit or promote a gang.’ [Citation.]” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) “[T]he motive here was relevant and important, both to the actual crime committed . . . and to the requisite intent for the enhancement. Case law holds that where evidence of gang activity or membership is important to the motive, it can be introduced even if prejudicial. [Citations.]” (People v. Martin, supra, 23 Cal.App.4th at p. 81.)
Given the facts of this case, we do not believe it reasonably probable that the trial court would have granted a motion by defense counsel to bifurcate the gang allegation. Appellant has therefore failed to establish prejudice resulting from the absence of a motion to bifurcate the gang allegation, and we need not determine whether counsel’s omission was the result of a reasonable tactical purpose. (See, e.g., People v. Maury (2003) 30 Cal.4th 342, 394 [trial court would not have abused its discretion by denying severance motion had it been made, and no reasonable probability existed that the motion would have been granted; therefore defendant failed to establish prejudice from counsel’s omission]; People v. Mattson (1990) 50 Cal.3d 826, 876 [claim of ineffective assistance of counsel based on trial attorney’s failure to make motion or objection must demonstrate not only lack of tactical reason but also that the motion or objection would have been meritorious].)
We conclude that appellant’s claim of ineffective assistance of counsel is without merit.
III. Denial of Mistrial Motion Based on Admission of Improper Gang Expert Testimony
A. Argument
Appellant contends the trial court should have granted his mistrial motion based on the court’s failure to exclude portions of Officer Szymkowiak’s testimony. According to appellant, many of the officer’s statements constituted impermissible hearsay, were irrelevant to the gang allegation, and were unduly prejudicial pursuant to Evidence Code section 352.
B. Proceedings Below
During cross-examination, defense counsel asked for a mistrial based on Officer Szymkowiak’s mention of appellant having been “arrested for a gun in the past.” An immediate objection was sustained and the statement was stricken. The mistrial motion was denied.
Before cross-examination resumed on the following day, defense counsel addressed the trial court, stating, “Officer Szymkowiak testified that Mr. Jones was a shot caller, that gang members feared Mr. Jones, that Mr. Jones has a reputation for being a bully, that the officer thinks that he’s a bully due to things he’s done, that Mr. Jones carries a gun, that Mr. Jones threatens others with that gun, that Mr. Jones smokes PCP, that there’s narcotics activity at 2641 Catalina, that due to citizen complaints she knows that, that Mr. Jones fights with the police. The police have told her that. And that—and a stricken, already stricken comment that Mr. Jones has had a gun in the past. I objected to them on various bases. And so the record is clear, I’m objecting to all of those statements of the officer on the basis of irrelevance, impermissible character evidence, a discovery violation because I haven’t had notice of those things, notice of any character evidence or the basis of that as an expert opinion. Unreliable hearsay. And an expert may not testify to incompetent hearsay under the guise of stating reasons for the opinion under People v. Killebrew . . . 103 Cal.App.4th 644 at 659. . . . And also under 352, because I think that this testimony was very prejudicial and not very probative. Two of those items, the one that the court already struck and the items saying that Mr. Jones fights with the police I believe were already excluded before trial. And they were testified to anyway.
“As a consequence, I believe that Mr. Jones’ rights have been violated under the United States Constitution and under the California State Constitution, as well as the state discovery laws. I believe his specific rights are the right to a fair trial, the right to counsel, right to due process, and constitutional right to confront and cross-examine witnesses. I object to all of that. And as a result, I request a mistrial. If the court is not inclined to grant a mistrial or denies my request, I would request that instead, the testimony, the complete testimony of Officer Szymkowiak be stricken and the gang allegation be dismissed.”
The trial court denied the motion and the request. The trial court also refused counsel’s request to strike the specific items of testimony she had mentioned.
C. Relevant Authority
An appellate court applies the abuse of discretion standard of review to any ruling on a motion for a mistrial. (People v. Williams (1997) 16 Cal.4th 153, 211.) A motion for mistrial should be granted only when a defendant’s chances of receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 282.) “‘[The Supreme Court has] explained that “[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.”’” (People v. Cox (2003) 30 Cal.4th 916, 953.) “It is not an abuse of discretion when a trial court denies a motion for mistrial after being satisfied that no injustice has resulted or will result from the occurrences of which complaint is made.” (People v. Eckstrom (1986) 187 Cal.App.3d 323, 330.)
D. No Abuse of Discretion
We agree with the trial court’s ruling and find no abuse of discretion. Evidence Code section 802 provides, in pertinent part, that “[a] witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter . . . upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion.” Expert testimony may be “premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions” and is reliable. (People v. Gardeley (1996) 14 Cal.4th 605, 618.) If the threshold requirement of reliability is satisfied, “even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony.” (Ibid.; see also People v. Duran (2002) 97 Cal.App.4th 1448, 1463.)
As stated in the previous section, testimony regarding appellant’s gang ties was relevant to show his motive and was therefore admissible. The probative value of evidence of motive “generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence” (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1550) and “where evidence of gang activity or membership is important to the motive, it can be introduced even if prejudicial. [Citations.]” (People v. Martin, supra, 23 Cal.App.4th at p. 81.)
Appellant claims, however, that Officer Szymkowiak went well beyond what was necessary to prove the gang enhancement by including irrelevant and prejudicial statements regarding appellant that were based on hearsay that was inadmissible and not of the type reasonably relied upon by expert witnesses. Her testimony also informed the jury by strong inference that she believed appellant was guilty of the current crime, which was improper opinion on the ultimate issue in the case. Also, even if there was minimal probative value to the contested testimony, the court failed to conduct an Evidence Code section 352 analysis, which would have shown that the risks far outweighed any probative value of the hearsay statements.
Although appellant takes issue with some of Officer Szymkowiak’s sources, an officer testifying as a gang expert, like any other expert, may give testimony that is based on hearsay, including conversations with gang members. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324; People v. Gardeley, supra, 14 Cal.4th at p. 620; People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9.) A gang expert’s opinion may also be based upon the expert’s personal investigation of past crimes by gang members, conversations with gang members, and information about gangs learned from the expert’s colleagues or other law enforcement agencies. (People v. Sengpadychith, supra, at p. 324; People v. Gardeley, supra, at p. 620; People v. Vy, supra, at p. 1223, fn. 9; People v. Duran, supra, 97 Cal.App.4th 1448, 1463.) A gang expert’s overall opinion is typically based on information drawn from many sources and on years of experience, which in sum may be reliable. (People v. Gardeley, supra, at p. 620.)
Furthermore, although an expert is not permitted to express his or her own belief in the defendant’s guilt or innocence, or to give an opinion regarding the specific knowledge or intent of the defendant on trial, otherwise admissible expert opinion testimony that embraces the ultimate issue to be decided by the trier of fact is also admissible. (People v. Killebrew (2002) 103 Cal.App.4th 644, 651; Evid. Code, § 805.) The California Supreme Court has read People v. Killebrew “as merely ‘prohibit[ing] an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial.’ [Citations.]” (People v. Gonzalez (2006) 38 Cal.4th 932, 946.) Contrary to appellant’s assertions, Officer Szymkowiak gave no testimony indicating her own opinion as to appellant’s guilt of the charged offenses—either expressly or impliedly. When considered along with the rest of the evidence, Officer Szymkowiak’s testimony, if found credible by the jury, might have influenced the jury to find appellant was in possession of a handgun on the day in question. However, as stated in People v. Gonzalez, supra, 38 Cal.4th at page 947, “this circumstance makes the testimony probative, not inadmissible. [Citation.] ‘The law does not disfavor the admission of expert testimony that makes comprehensible and logical that which is otherwise inexplicable and incredible.’”
With respect to Evidence Code section 352, although the record contains no explicit analysis weighing the probative value against the prejudicial effect of the evidence by the trial court, the fact that the trial court considered defense counsel’s objections and admitted the evidence indicates such analysis was performed. We presume the court’s official duty has been regularly performed. (Evid. Code, § 664; see People v. Martin, supra, 23 Cal.App.4th at p. 82.)
Appellant further maintains that it is reasonably probable he would have obtained a more favorable result had the evidence been excluded. (See People v. Earp (1999) 20 Cal.4th 826, 878.) He argues that the prosecution used Officer Szymkowiak’s damaging testimony during closing argument to bolster a case that was not overwhelming. The evidence inflamed the jury and seriously undercut appellant’s plausible defense, which was that the officers were untruthful. Appellant brought into question the credibility of both officers. He elicited that there was evidence that prints were never taken from the gun despite orders that it be held for prints. In addition, Officer Gallegos testified that photographs were taken of the gun on the ground, yet the photographs could not be found when requested by the defense. Appellant also presented the testimony of Williams regarding the two officers’ conduct that led to the filing of a formal complaint.
We conclude that, in light of the strength of the evidence of appellant’s guilt, appellant suffered no undue prejudice, and any error in allowing the complained-of testimony was harmless under any standard. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson (1956) 46 Cal.2d 818, 836.) Officer Gallegos’s testimony was corroborated by Officer Meyer, who photographed the gun, and by Officer Soto, who saw appellant run with Officer Gallegos in pursuit. Officer Soto testified that he heard Officer Gallegos shout that appellant had a gun and that he later saw the gun in the spot where Gallegos told him appellant had thrown it. Furthermore, the trial court instructed the jury that it must disregard and must not consider for any purpose any testimony that the trial court ordered stricken from the record. (CALCRIM No. 222.) The trial court also informed the jury that certain evidence “may have been admitted for a limited purpose” and that the jury “may consider that evidence only for that purpose and for no other.” (CALCRIM No. 303.) The jury was also read an instruction specifically referring to some of the sources Officer Szymkowiak named in her testimony. The jury was told that it could consider the statements made by those sources only to evaluate the expert’s opinion and that it should not consider the statements as proof of the truthfulness of the statements.
The instruction was read as follows: “Officer Szymkowiak testified that in reaching her conclusions as an expert witness, she considered statements made by Anthony Chandler, Grayvon Stubbs, Mark Brown, Keleisha Terrell, Jamilah Terrell, unnamed gang members, citizens and police officers. I am referring only to the statements of others that relate to her opinion regarding the gang allegations made before trial and outside of your presence. You may consider those statements only to evaluate the expert’s opinion. Do not consider those statements as proof that the information contained in the statements is necessarily true.” (CALCRIM No. 360.)
We conclude that the trial court did not abuse its discretion in denying appellant’s mistrial motion and that appellant suffered no undue prejudice by the admission of the entirety of Officer Szymkowiak’s testimony.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.