Opinion
B192973
11-16-2007
THE PEOPLE, Plaintiff and Respondent, v. DONNIE LEWIS, Defendant and Appellant.
Mark S. Givens, 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, Stephanie C. Brenan and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
A jury convicted Donnie Lewis (appellant) of transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)) (count 1); possession for sale of cocaine base (Health & Saf. Code, § 11351.5) (count 2); and having a concealed firearm in a vehicle (Pen. Code, § 12025, subd. (a)(1)) (count 3). With respect to counts 1 and 2, the jury found true the allegation that appellant was personally armed with a firearm within the meaning of section 12022, subdivision (c). With respect to all three counts, the jury found true the allegation that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1). In the second portion of the bifurcated proceeding, the trial court found appellant guilty of possession of marijuana weighing 28.5 grams or less, an infraction (Health & Saf. Code, § 11357, subd. (b)) (count 4).
All further references to statutes are to the Penal Code unless stated otherwise.
On count 1, the trial court sentenced appellant to the midterm of four years, the low term of two years for the gang enhancement, and the low term of three years for the firearm enhancement for a total of nine years on that count. On count 3, the trial court imposed the midterm of two years, to be served concurrently. The trial court stayed sentencing on count 2 pursuant to section 654. On a pending case in which appellant was convicted of a violation of Health and Safety Code section 11351, the trial court imposed the low term of three years, to be served concurrently. Appellants total commitment period is nine years.
Appellant appeals on the grounds that: (1) there was insufficient evidence to sustain a true finding as to the special gang enhancement, and (2) the prosecution presented evidence of numerous uncharged bad acts that improperly impugned appellants character and established a propensity to commit crimes.
FACTS
I. Prosecution Evidence
At approximately 9:50 p.m. on July 5, 2005, Officer Steven Jenkins of the Los Angeles Police Department was in an unmarked vehicle with his partner, Officer Basket, in the eastbound lanes of Adams Boulevard. Officer Jenkins observed a dark blue Chevrolet Caprice traveling westbound with its lights off and with its front windows tinted. The officers made a U-turn and stopped the vehicle. The two occupants of the Caprice stepped out of the car and onto the sidewalk at Officer Baskets request. Appellant exited the drivers door. The passenger was identified as Aki Davis (Davis).
Officer Basket looked into the vehicle and noticed an odor of burnt marijuana. He saw a baggie of marijuana on a makeshift center console, and he informed Officer Jenkins. Officer Jenkins had the two individuals turn around, and appellant and Davis were handcuffed. When asked if the car was his, appellant replied that he had purchased it a couple of months earlier.
After other officers arrived, Officer Jenkins conducted a more thorough search of the Caprice. When he looked into the glove box he noticed a motor fixed to the back of the dash area with metal plumbers tape. There were wires running underneath the dash and under the flooring. Officer Jenkins later discovered that when the emergency brake pedal was pressed, a steel rod opened the door of the air bag compartment on the passenger side, which did not contain an air bag.
Inside the air bag compartment, Officer Jenkins saw a blue steel semiautomatic pistol, several clear plastic baggies containing an off-white rock substance that resembled rock cocaine, and a piece of black plastic rolled into a ball. The plastic ball contained several other baggies of powdered cocaine. The gun, which used .45-caliber bullets, contained a chambered round and eight rounds in the magazine. Two marijuana cigarettes were recovered from the ashtray of the vehicle. Police found a clean lettermans jacket in the trunk and some live .45-caliber ammunition inside the jacket pocket. There was also a small digital scale in the jacket. Officer Jenkins searched appellants person and found $1,407 in his front pocket. Appellant had two cell phones in his waistband.
Officer Jenkins was of the opinion that appellant possessed the weapon, the bullets in the weapon and jacket, the scale, and the two cell phones for the purpose of sales of narcotics. This opinion was based on the sheer volume of narcotics, the packaging, the scale, the amount of money in small denominations, and the lack of narcotics paraphernalia. From his experience working in the area, Officer Jenkins knew that the intersection of the traffic stop was within the boundaries of the Gear Gang. Thomasina Brown (Brown) testified at appellants trial that she sold appellant the Caprice in January 2005. She noticed that the air bag light was on the entire time she owned the car, and she never used the emergency brake. She also noticed that the air bag compartment was not very "neat" because something did not fit properly. When Brown sold the car it had no gun or drugs in it. She used the glove compartment but never saw a motor inside. The transmission on the car was not functioning properly and she told appellant about that when he bought the car.
When the car was impounded after appellants arrest, the impound yard sent the fee statements to Brown. She paid the money, picked up the car, and offered to give the car back to appellant if he refunded her the impound fees. Appellant told her he `"caught a case in this car" regarding dope and a gun, and he did not want the car back. He wanted only his things from the car. Brown acknowledged having been convicted for possession of a controlled substance in 1993.
Officer David Dilkes of the Los Angeles Police Department testified as a gang expert. He specialized in monitoring the Gear Gang Crips and the West Boulevard Crips. Most of his contacts with gang members were in a noncustodial setting, and he often spoke with them about criminal gang activity and their lifestyle. Officer Dilkes described the use of field interview cards, or F.I. cards.
Officer Dilkes stated that the Gear Gang philosophy is "all about making money." Gang members build their status within the gang by "putting in work." He explained the two main hand signs used by the Gear Gang and their typical graffiti. He explained Gear Gang rivalries and alliances. He stated that possession of a weapon is important in a gang to enable criminal activity and provide protection.
Officer Dilkes testified that there are criteria for classifying crimes as gang-related crimes. The classification was not done at the gang-officer level but rather at the level of the gang detectives, who work closely with gang officers. Officer Dilkes had had more than one conversation with a gang detective regarding what is classified as a gang-related crime. The first criterion was the specific type of crime.
Officer Dilkes stated that, historically, the primary activity of the Gear Gang was the street sale of crack cocaine. The purpose of selling drugs was to make money to buy more drugs, weapons, and personal items to enhance ones status. Since December of 2004, however, the gang had moved on to homicides, drive-by shootings, and assaults with deadly weapons. Officer Dilkes said that the Gear Gangs crimes also included robberies, burglaries, commercial burglaries, kidnappings, and criminal threats. Officer Dilkes was certain appellant was a member of the Gear Gang based on personal contacts with appellant as well as appellants tattoos, associates, and the types of crimes for which he had been arrested. The jury saw photographs of appellants tattoos and photographs of him with other Gear Gang members. The jury saw an F.I. card that Officer Dilkes had filled out on appellant on April 15, 2005. Appellant was driving the blue Caprice on that date. Appellant told Officer Dilkes he was no longer a member of the Gear Gang. On August 4, 2005, appellant told Officer Dilkes he was not a gang member but used to run with the gang "back in the day." Officer Dilkes, however, classified appellant as an active member because of the number of gang tattoos appellant still had, some of the charges appellant had sustained, the people he has been arrested with, and the areas in which he has been arrested or in which he has "hung out" since Officer Dilkes has been in the gang unit. The area in which appellant was arrested in the instant case was not a historical Gear Gang area but was soon to be reclassified as such. Appellant was arrested in a friendly neighborhood in which he could operate without drawing attention.
Officer Dilkes explained how important acquiring respect was to a gang member. He stated that the large amount of narcotics in this case would bring a gang member respect because the narcotics would make money and allow the gang member to buy more narcotics and weapons to enhance the members status in the neighborhood. This would also intimidate the people in the neighborhood. When asked by the prosecutor if appellants actions in this case constituted a benefit to the Gear Gang, Officer Dilkes replied that it did. He said, "[T]he large amount of narcotics in both the base form and the powder form. The way in which he was transporting it. The way it was secreted within the vehicle. The other gentleman that was with him the night he was arrested. The area that he was stopped in. It absolutely benefits the gang."
Officer Dilkes told the jury he had searched the Caprice in the past when it was parked in front of appellants girlfriends residence. He saw no irregularities in the glove compartment or the passenger side air bag, and he saw no wires under the parking brake pedal.
Officer Dilkes testified about predicate crimes committed by Gear Gang members. Two Gear Gang members were convicted of possession for sale of cocaine base and transportation of a controlled substance. Officer Dilkes said that this type of crime was "their main source of activity. Its how they make all their money."
Officer Dilkes said it was very difficult to get out of a gang and being beaten up was not enough. It was possible one would be killed. In his opinion the only way to leave a gang is to get out of the neighborhood and perhaps move to another state. If one has tattoos one needs to remove them, and one cannot associate with the same people. Otherwise, refusing to participate in gang activities would be disrespectful. Officer Dilkes knew Davis, the man with appellant on the night of the arrest. Davis told Officer Dilkes after the arrest that his gang affiliation was lifelong, and he would remain a gang member in jail and after jail. Someone who was not a member of a gang would not hang around with an older gangster like Davis, since he draws a lot of attention. Just being with Davis gave appellant a lot of status because Davis is feared.
The substances found by police in the instant case were analyzed by a criminalist with the Los Angeles Police Department. The tests revealed that item No. 1 had a weight of 2.46 net grams of marijuana. Item No. 2, the marijuana cigarettes, weighed 0.80 net grams. Item No. 3 consisted of 50.92 net grams of cocaine base. Item No. 4 consisted of 17.13 net grams of cocaine.
II. Defense Evidence
Shanika Cohill (Cohill), appellants wife, testified that in July 2005 appellant was working daily from approximately 2:00 a.m. to noon. He also helped at his grandmothers sober living home and bought used cars to refurbish and resell. The photographs of appellant shown by the prosecutor were old, and appellant acquired most of his tattoos when he was a juvenile. Cohill bought appellant one of the cell phones found in his possession because he did not get good reception with his other telephone. She wanted to be able to talk to appellant by means of the walkie-talkie feature on the phone she bought.
Cohill was present when appellant bought the Caprice. The air bag light was on, and it looked like the taxicab intercom system that had formerly been in the car had been pulled out. After a month the car broke down and stayed in her mothers driveway until she asked appellant to move it to the street. While he was doing that, Officer Dilkes came by and searched the car and left. Subsequently, Officer Dilkes would come by her mothers house and harass her and appellant. He would search the cars and leave. He once blocked the driveway for her mother and her. Cohill stated that the Caprice was also in the repair shop for about two months. Cohill did not know there was a secret compartment in the vehicle, and none of her family members who drove the car noticed it.
Cohill stated that appellant is not an active gang member, and he was trying to get money to remove his tattoos. Davis was an old friend of appellants. Appellant was involved in a gang intervention program to stop gang violence. On the day of his arrest, appellant sold a car for $1,500.
Cedric Hurd (Hurd) testified that he is an automobile service technician. He replaced the Caprices transmission and serviced the car. He noticed that the air bag light kept coming on. He was not aware of the contraption in the vehicle. Hurd acknowledged that he did not touch the brakes or look into the glove compartment. He had the car until late June 2005.
Terra Thomas (Thomas) put Brown in contact with appellant and his wife regarding the sale of the Caprice. Thomas knew that Brown was selling drugs at the time the Caprice was being sold.
Leandre Brown (Leandre) is a certified gang intervention specialist. He helps find jobs for gang members who are ready for a positive change. He was a founder of the Gear Gang and had been in prison. When appellant got out of jail he contacted Leandre for a job. Leandre takes appellant with him sometimes to tell others how he changed his life. Leandre said that he himself did not have to leave the state in order to cease being a gang member, and he works in the same area in which he used to "gang bang." One can leave a gang by just being "done with it." He was of the opinion that appellant was no longer an active gang member and was a family man. Davis was also a family man who just stayed home.
DISCUSSION
I. Sufficiency of Evidence of Gang Allegation
A. Argument
Appellant contends there was insufficient evidence to sustain a true finding on the special gang allegation because the prosecution presented nothing more than a couple of conclusory opinion statements by Officer Dilkes that appellant was acting for the gang. In addition, there was absolutely no evidence that appellant committed the charged crimes with the specific intent to promote, further, or assist in any criminal conduct by gang members.
Appellant quotes the following statement as the only relevant one made by Dilkes: "As stated earlier, they — the large amount of narcotics in both the base form and the powder form. The way in which he was transporting it. The way it was secreted within the vehicle. The other gentleman that was with him the night he was arrested. The area that he was stopped in. It absolutely benefits the gang." According to appellant, nothing that preceded Officer Dilkess final, conclusory sentence in the above-quoted remarks led to the conclusion he stated. As a whole, appellant claims, Officer Dilkess testimony consisted of no more than generalities and loose suppositions of what a gang member might typically do merely because he is a gang member. Worse still, argues appellant, there was no evidence appellant possessed the required specific intent to assist in criminal conduct by gang members as required by the statute.
B. Relevant Authority
In reviewing the sufficiency of the evidence, the question on appeal is whether there is substantial evidence from which a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (People v. Rayford (1994) 9 Cal.4th 1, 23.) Substantial evidence is that which is reasonable, credible and of solid value. (People v. Cuevas (1995) 12 Cal.4th 252, 260.) The standard of review is the same when the People rely principally on circumstantial evidence. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) The substantial evidence standard of review also applies to section 186.22 gang enhancements. (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)
"In making this determination, we `"must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citation.]" (People v. Rayford, supra, 9 Cal.4th at p. 23; accord, People v. Cuevas, supra 12 Cal.4th at pp. 260-261.) "[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Although all reasonable inferences must be drawn in support of the judgment, the court "may not `go beyond inference and into the realm of speculation in order to find support for a judgment. A finding . . . which is merely the product of conjecture and surmise may not be affirmed." (People v. Memro (1985) 38 Cal.3d 658, 695; accord, People v. Waidla (2000) 22 Cal.4th 690, 735.)
C. Evidence Sufficient
We disagree with appellants claim. Generally speaking, where a gang enhancement is alleged, expert testimony concerning the culture, habits, and psychology of gangs — including the motivation for an individual members actions — is permissible, and a jury may rely on such testimony to render a finding on the allegation. (People v. Ward (2005) 36 Cal.4th 186, 210; People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048; People v. Gardeley (1996) 14 Cal.4th 605, 617.) Officer Dilkess evidence provided substantial evidence that appellants crimes were committed in association with a criminal street gang with the required specific intent to assist that gang. From his testimony, the jury could reasonably infer that appellant possessed the gun and the narcotics for a specific reason, i.e., to commit crimes for the gang and to enhance respect for himself and for his gang.
The jurors reasonably could have determined that appellant sought to enhance the financial position and the reputation of the gang by the sale of narcotics. He was in a territory adjacent to that of his gang — an area that was friendly to his gang. The area was soon to be reclassified as Gear Gang territory. Selling drugs on his own account in the territory claimed by his own gang or another gang would be disrespectful. He was with a hard-core, senior gang member, and he himself was a long-time gang member. Officer Dilkes testified that the actions of only one gang member who sells narcotics can help the entire gang by increasing the amount of respect the gang receives from those who buy the narcotics as well as the rest of the population. Although there was no evidence that appellant made any reference to his gang when arrested, such as flashing gang signs, this type of behavior was not to be expected since he was pulled over only for a traffic stop. This is especially true when someone wishes to avoid a thorough search of the vehicle or to disclaim knowledge of contraband in the car.
The prosecutor specifically inquired whether appellants actions in this case constituted a benefit to the Gear Gang and Officer Dilkes answered, "Yes." Officer Dilkes prefaced his opinion with the words, "As stated earlier, . . ." thereby referencing his immediately preceding testimony regarding the accrual of respect by a gang when a gang member sells narcotics as well as the resulting acquisition of more income that allows the gang to buy more narcotics and weapons, which in turn increase the gangs status even more. In this way, Officer Dilkes linked what he had said about the Gear Gang in general to the specific crimes appellant was committing on the night in question. Accordingly, considering the expert testimony in conjunction with the remaining evidence, the jurors reasonably could have concluded both that appellant committed the crimes for the benefit of a criminal street gang rather than for personal gain and that appellant had the required specific intent. (§ 186.22, subd. (b); see People v. Morales (2003) 112 Cal.App.4th 1176, 1197-1198 [experts testimony that any crime like defendants would satisfy element of gang allegation is nevertheless relevant to the defendants particular crime].) Furthermore, subdivision (b) of section 186.22 does not require a showing of current, active gang membership. (In re Ramon T. (1997) 57 Cal.App.4th 201, 206-207.) Therefore, the evidence presented by the defense witnesses alleging that appellants gang membership was a thing of the past and indicating that leaving a gang was not difficult had little countervailing effect on the prosecution evidence.
Appellants case is unlike the recent case of In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.). In that case, the appellate court reversed the juvenile courts true finding on the allegation that the minor had carried a concealed dirk or dagger for the benefit of a criminal street gang. (Id. at pp. 1194-1195; see § 186.22, subd. (b).) On appeal, the minor argued there was insufficient evidence he possessed the dirk or dagger for the benefit of the gang with "the specific intent to promote, further, or assist criminal gang behavior." (Frank S.,supra, at pp. 1194-1195.) The appellate court agreed, stating, "We publish this case to emphasize that crimes may not be found to be gang-related based solely upon a perpetrators criminal history and gang affiliations." (Id. at p. 1195.) The court explained that the prosecution presented only the gang experts opinion concerning gangs in general and her improper opinion on the ultimate issue of the minors intent. (Id. at pp. 1195, 1199.) The court stated the prosecution presented no evidence the minor was in gang territory, was with gang members, or that he expected to use the knife in a gang-related offense. (Ibid.) The Frank S. court stated that "`[t]he crime itself must have some connection with the activities of a gang, which we conclude means a "criminal street gang" . . . . [Citation.] Based on section 186.22, a crime fails to be `gang related unless appellant committed it `"`for the benefit of, at the direction of, or in association with a street gang." [Citation.] While evidence established . . . minor has an affiliation with the [criminal street gang], membership alone does not prove a specific intent to use the knife to promote, further, or assist in criminal conduct by gang members. [Citation.]" (Frank S., supra, at p. 1199, quoting People v. Martinez (2004) 116 Cal.App.4th 753.)
In this case, appellant was in friendly territory, adjacent to that of his gang, was with a senior member of his gang, and was engaged in his gangs primary activity. Officer Dilkess testimony, combined with the other evidence presented and inferences that reasonably can be drawn therefrom, distinguish this case from that of Frank S. It was for the jury to assess the weight of Officer Dilkess testimony in the first instance, and if we believe that any rational juror could have been convinced by it, "we cannot deem it insufficient. [Citation.]" (People v. Olguin (1994) 31 Cal.App.4th 1355, 1384.) Viewed in the light most favorable to the prosecution, there was credible and solid evidence supporting the reasonable inference that defendant committed the instant offenses in association with, or for the benefit of, the Gear Gang, and that he intended to further the gangs criminal conduct by so doing. Appellants argument is without merit.
II. Evidence of Uncharged Bad Acts
A. Argument
Appellant complains that the prosecution, during its case-in-chief, was permitted to inform the jury of numerous facts that painted appellant as a person of bad character and with criminal propensities in violation of section 1101, subdivision (a). Appellant claims that such testimony was irrelevant to any material issue in the case. Moreover, admission of the evidence violated Evidence Code section 352 and appellants right to a fair trial as guaranteed by the due process clause of the Fourteenth Amendment of the United States Constitution. He claims that the error in allowing admission of this evidence was prejudicial under any standard. (Chapman v. California (1967) 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818, 836.) Appellant adds that, in the event this issue is deemed waived, trial counsel was necessarily ineffective.
B. Proceedings Below
The specific items of evidence of which appellant complains were contained in Officer Dilkess testimony, which asserted, inter alia, that:
The complaints listed in this opinion encompass the gist of all of appellants complaints, although appellants list is longer.
(1) Appellants gang commits homicides, drive-by shootings, assaults with a deadly weapon, robberies, and burglaries.
(2) Appellants gang historically sold crack cocaine as its primary activity but the gang had begun to commit the more serious crimes mentioned above.
(3) Appellant must be a gang member because of the types of crimes appellant had been arrested for since Officer Dilkes began having contact with him and because of the areas in which appellant had been arrested.
(4) Officer Dilkes had had previous contacts with appellant, including those of April 15, July 14, and August 4, 2005.
(5) Officer Dilkes knew that appellant was on probation and subject to a search condition, and he conducted a probation search of appellant and his vehicle in April 2005, as well as searches of his girlfriends house and his grandmothers house. The search of the grandmothers house, appellants home of record with the probation department, revealed that appellant had none of his belongings in the house.
(6) Police served a warrant at the home of appellant and his wife in July 2005 while appellant was present.
(7) Appellant did not remain in Gear Gang territory because he was aware that Officer Dilkes and his partner knew appellant was on formal probation and subject to a search condition, which meant appellant could be stopped at any time for a search of his person, his car, and his house.
(8) The instant case charged appellant with possession of a handgun that had been used in other shootings.
Defense counsel moved for a mistrial when Officer Dilkes mentioned in response to a question that the gun appellant possessed had been used in other shootings, but counsel did not object to the other items of evidence. The trial court struck Officer Dilkess response and admonished the jury to disregard it, but the trial court denied the mistrial motion.
C. Relevant Authority
Only relevant evidence is admissible. (Evid. Code, § 350.) Under Evidence Code section 210, relevant evidence is that which has `"any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (People v. Carter (2005) 36 Cal.4th 1114, 1166.) All relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Ibid.) The test of relevance is whether the evidence tends "`"logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]" (Ibid.) The trial court has broad discretion in determining the relevance of evidence. (Ibid.)
Under Evidence Code section 1101, subdivision (b), the admissibility of prior act evidence "`depends upon three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence." (People v. Robbins (1988) 45 Cal.3d 867, 879, quoting People v. Thompson (1980) 27 Cal.3d 303, 315.) One such policy limiting the admission of evidence otherwise admissible under Evidence Code section 1101 is Evidence Code section 352. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.)
Evidence Code section 352 provides that "[t]he 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." Whether a trial court has erred in admitting evidence under Evidence Code sections 352 and 1101 is reviewed for an abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369.) A trial court abuses its discretion when it rules in an arbitrary, capricious, or patently absurd manner that results in a miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
D. Evidence Properly Admitted; Harmless Error
As appellant acknowledges, defense counsel below did not object to any of the complained-of testimony by Officer Dilkes except for the remark about the gun being used in other shootings. Evidence Code section 353 precludes a reversal of a conviction based upon a claim of erroneous admission of evidence unless a specific and timely objection was interposed by the complaining party, and the error complained of resulted in a miscarriage of justice. (People v. Coleman (1988) 46 Cal.3d 749, 777.) Therefore, appellants argument is not cognizable on appeal. (Evid. Code, § 353; People v. Partida (2005) 37 Cal.4th 428, 434-435; People v. Pinholster (1992) 1 Cal.4th 865, 935.)
In any event, we conclude that the evidence appellant classifies as uncharged misconduct was either offered by the prosecution to prove the truth of the gang enhancement and was relevant on this issue, was stricken, or was not unduly prejudicial.
We first observe that the trial court demonstrated that it had the relevancy and potential prejudice of Officer Dilkess testimony in mind throughout the officers time on the stand. The court sustained several defense objections to the prosecutors questions and proposed exhibits based on relevancy and Evidence Code section 352. The trial court continually reminded the prosecutor and the jury that testimony elicited from Officer Dilkes must not wander away from strict relevance to the section 186.22 allegation. The trial court struck Officer Dilkess testimony stating that appellant would not drive around known Gear Gang territory because Officer Dilkes and his partner had prior knowledge of appellants formal probation and searches of his residence could result from an encounter. The trial court also struck Officer Dilkess remark that appellant had a gun in the car that had been used in other shootings.
Although defense counsel did not object to the comment about probation searches, the trial court included it in the testimony it struck along with the remark about the guns history.
The description of the Gear Gangs criminal activities and the fact that the gang had begun to commit more serious crimes was relevant to prove that the gang was actually a criminal street gang as defined by the statute and to show that its primary activities were those defined in the statute. It also showed a pattern of criminal activity. (§ 186.22, subds. (a), (e), (f).) Officer Dilkess testimony as to the reasons for his belief that appellant was a gang member and about his previous contacts with appellant were relevant to the issue of appellants current gang membership and were relevant in the face of substantial attacks by the defense on this issue. A trial court should not exclude highly probative evidence unless the undue prejudice is unusually great. (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) The "undue prejudice" of Evidence Code section 352 refers not to evidence that proves guilt, but to evidence that prompts an emotional bias against the defendant and tends to cause the trier of fact to decide the case on an improper basis. (People v. Karis (1988) 46 Cal.3d 612, 638.) "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. `[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is "prejudicial." (People v. Karis, supra, 46 Cal.3d at p. 638.) Here, the evidence of appellants interactions with Officer Dilkes was relevant and probative and not unduly prejudicial. The officers prior interactions with appellant and his mention of appellants probation status and arrests were not more inflammatory than the current charges. Appellants witness, Leandre, mentioned that appellant had been in jail. Moreover, the trial courts continual admonitions ensured that the jury was neither confused about the issue to be decided nor misled.
In light of this conclusion, we therefore determine that defense counsel was not ineffective. In order to sustain on appeal a claim of ineffective assistance of counsel, a defendant must show counsels performance was deficient and it is reasonably probable defendant would have achieved a more favorable result in the absence of the asserted error. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) Counsel was not obliged to make futile objections to this properly admitted testimony. (See, e.g., People v. Frye (1998) 18 Cal.4th 894, 985; People v. Cudjo (1993) 6 Cal.4th 585, 616.) Our determination that counsel was not ineffective can also be based on the fact that appellant suffered no undue prejudice from the admission of the evidence.
Even if we believed the trial court abused its discretion in admitting the evidence, its introduction was harmless under any standard. (Chapman v. California, supra 386 U.S. 18; People v. Watson, supra, 46 Cal.2d at p. 836.) There was overwhelming evidence that appellant was guilty of the charged crimes. Appellant was the owner and driver of a car with a secret compartment containing narcotics and a gun. A jacket in the trunk contained the same ammunition used in the hidden gun. The testimony offered by the defense did nothing to dispel the reasonable inference that appellant knew of the compartment and of its contents. The cars previous owner, Brown, had no knowledge of the motor contained in the glove box, which she had used. The fact that the narcotics were packaged for sale and the lack of drug paraphernalia supported a reasonable inference that the narcotics were possessed and transported for sale, as was stated at trial by Officer Jenkins. The gun was hidden in the same compartment as the narcotics. As stated in the previous section, there was also substantial evidence that appellants crimes were committed for the benefit of the gang.
Appellants arguments are without merit, and we conclude there was no abuse of discretion and no due process violation.
DISPOSITION
The judgment is affirmed.
We Concur:
DOI TODD, J.
ASHMANN-GERST, J.