Brief Bank # B-583
NOTE: The text of the footnotes appears at the end of the document.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
THE PEOPLE, D000000
(Superior Ct. No. CR000000)
Plaintiff and Respondent,
Defendant and Appellant.
Appeal From the Superior Court of San Diego County
Honorable Laura Palmer Hammes, Judge
APPELLANT’S OPENING BRIEF
STATEMENT OF APPEALABILITY
This appeal is from a final judgment following a jury trial and is therefore authorized by Penal Code section 1237.
THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF APPELLANT’S ALLEGED DIABLOS GANG AFFILIATION.
A. Procedural Introduction.
Appellant filed a motion in limine to preclude evidence of appellant’s gang affiliation. (1 C.T. at pp. 56-57.) The trial court held the in limine motion hearing Thursday, July 16, 1992. (5 A.R.T. at p. 106 et seq.) Appellant sought to exclude evidence that appellant was an alleged member of the Diablos group. (5 A.R.T. at pp. 107-114.) The trial court allowed the admission of evidence relating to appellant’s alleged Diablos affiliation. (Ibid.)
Appellant argued that evidence of appellant’s Diablos affiliation was irrelevant, its probative value was outweighed by substantial prejudice, and the evidence was cumulative. (Ibid.) The trial court ultimately admitted the evidences. [Footnote 8] The court considered the evidence to be highly probative and necessary to the people’s case. (Ibid.) However, the trial court failed to assess the prejudicial impact of appellant’s alleged gang membership as required by Evidence Code section 352. (Ibid.)
B. Factual Introduction.
Throughout the trial, the prosecution elicited Diablos affiliation evidence from the witnesses. (1 R.T. at pp. 31, 74-75, 115-116, 123, 124; 2 R.T. at pp. 160-166, 167, 173.) The witnesses explained the ideas of “mad-dogging,” “throwing gang sips,” and “retaliation.”
“Mad-dogging” is essentially a challenge to fight issued by one person “staring at another.’ (1 R.T. at pp. 115-116.) “Throwing gang signs” is the use of a distinctive hand gesture by group members to identify themselves as belonging to the Diablos group. (1 R.T. at pp. 88-89.) Diablos members identified themselves by connecting “the forefinger to the thumb” and letting the other three fingers hang down. (Ibid.) This hand gesture denotes the letter “D” for Diablos. (Ibid.)
Finally, a witness testified that Diablos members fight among themselves but remain good friends afterwards. (2 R.T. at pp. 159-160.) Although Diablos members get into fights while they are drinking or over young women, “paybacks” and retaliation for “disrespect” to a member of one’s family is not usual. (2 R.T. at pp. 161-163.)
The prosecution called police detective Martin Silva of the Escondido Police Department. (2 R.T. at p. 182.) Defense counsel agreed that Detective Silva was a qualified expert on gangs. (2 R.T. at p. 185.)
Detective Silva defined a gang as a “criminal street gang, and when we talk about gangs, that’s basically what we’re talking about is a criminal street gang. And it’s basically two or more individuals that have a name, claim a location, claim a neighborhood, that get involved in criminal activity.” (2 R.T. at p. 191, emphasis added.)
Detective Silva also described a field interview card filled out by him purportedly documenting appellant’s alleged gang membership:
And as long as the information on that field interview card as it regards to documenting him as a gang member, the guidelines of the Department of Justice are followed and that’s how he’s documented; on an actual card that says he’s a documented gang member.
(Id. at p. 197.)
Detective Silva also identified appellant in an undated photograph. (3 R.T. at p. 233.) [Footnote 9].
Appellant Doe testified on his own behalf. (3 R.T. at p. 267 et. seq.) Although appellant did not consider himself a “full fledged” Diablos member, he did to “claim it.” [Footnote 10].
Now, you are a member of the Diablo Gang, correct?
Well, I don’t consider myself a member. I just claim it.
You claim it, but you don’t consider yourself a gang member?
Well, you told Officer Silva that you’re a gang member, correct?
I’m a gang member, but I am not a member of the Diablos Gang.
What gang do you belong to?
I don’t belong to no gang.
Remember you told – remember listening to that tape? You told Officer Silva that you were with the Diablos Gang and had not been in the gang for about a year or two?
Do you also remember Officer Silva told you that they had documented you and they had a photograph of you and then you changed your mind and told them, “Well, I guess maybe it was about a year ago?”
I said about a year ago they took the picture.
And that’s the picture that’s People’s 15, correct?
And at that time you were throwing gang signs, right?
And the people inside that – on that photograph are gang members, correct?
Yes, most of them.
But yet you don’t consider yourself a gang member?
I don’t consider myself a member of the Diablos Gang.
But you don’t consider yourself a gang member?
You were throwing up a gang sign there, correct?
What gang sign were you throwing?
Diablos Gang sign.
But you’re still telling us that you’re not a gang member?
(3 R.T. at pp. 275-277.)
In closing argument, the prosecutor vigorously argued that decedent’s death was the result of a “well planned gang payback.” (4 R.T. at pp. 429, 432, 435-436.)
Finally, the jury sent the judge a note:
Your Honor please
What was the date of the photograph we were shown where John Doe is showing the Diablos gang sign? Was it an up-to-date photo? That is to say, was the photo taken close to the incident of the stabbing. Close in time of year & month?
(2) Was Robert Roe carrying a pocket knife or a switchblade knife?
(1 C.T. at p. 171.)
C. Evidence Of Apellant’s Gang Affiliation Was Irrelevant.
Evidence of appellant’s alleged gang membership was irrelevant, prejudicial, and cumulative. The trial court abused its discretion by admitting the evidence and appellant’s conviction must be reversed.
Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) “No evidence is admissible except relevant evidence.” (Evid. Code, § 350.) “Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351; see generally People v. Babbitt (1988) 45 Cal.3d 660 [248 Cal.Rptr. 69, 755 P.2d 253].) This court must examine the trial court’s ruling and decide if the trial court abused its discretion by admitting this highly inflammatory and prejudicial evidence. (People v. Cardenas (1982) 31 Cal.3d 897, 904 [184 Cal.Rptr. 165, 647 P.2d 569].)
Appellant’s alleged gang membership was not probative of a motive to kill decedent. Not all gang members are violent nor are all acts committed by gang members the direct result of gang membership. Gang membership is not always relevant when a defendant happens to be a gang member.
Appellant may have had many non-violent reasons for associating with the Diablos. Appellant directs the court’s attention to the Los Angeles District Attorney’s 1992 report on gangs to assist this court in deciding the relevance of appellant’s alleged Diablos affiliation. (Office of the District Attorney, County of Los Angeles, Gangs, Crime and Violence in Los Angeles: Findings and Proposals from the District Attorney’s Office, 1992.) [Footnote 11].
The Los Angeles District Attorney’s Office shows a depth of understanding in their report not often presented by the prosecution to juries during trial. The Los Angeles District Attorney’s review of the sociological literature shows that: (1) there are no standard definitions of what constitutes gangs or gang membership; (2) appellant was improperly classified as a gang member; (3) there are non-violent social, psychological, and cultural reasons for appellant’s alleged gang membership; (4) there are different levels or degrees of gang membership; and (5) participation in crime is rarely an organized gang activity.
Street gangs are not a new phenomenon. (Id. at p. 1.) Although gang problems have been reported in other countries, American street gangs are unique and the gang lifestyle dates back to the early 19th century. (Id. at p. 2.) As cities mature, gang problems subside. (Id. at p. 9.)
Gangs are closely associated with poverty and are primarily a man’s world although there are female gang members. (Id. at pp. 10-11.) Gangs are a phenomenon of late adolescence. (Id. at p. 14.) Few young boys join before the age of 12 or 13 and few remain active into their 30’s. The great majority of gang members are in their late teens and early 20’s. (Ibid.)
The prosecution did not prove that appellant met the standard, accepted definition of a gang member. Defining gangs and gang members has been a difficult and elusive problem. (Id. at p. 93 et. seq.)
Probably the most widely quoted academic definitions of a street gang was put forward by U.S.C. professor Malcolm Klein some 20 years ago: “[A]ny denotable adolescent group of youngsters who (a) are generally perceived as a distinct aggregation by others in the neighborhood, (b) recognize themselves as a denotable group (almost invariably with a group name), and (c) has been involved in a sufficient number of delinquent incidents to call forth a consistent negative response from neighborhood residents and/or law enforcement agencies.’
This kind of definition is primarily to distinguish “street gangs” from other types of youth groupings for purposes of study and analysis.
(Id. at p. 93.)
In truth, law enforcement agencies tend to operate on an know em when I see em basis, but they do have official stripped down working definitions that are both less neutral and more practical than those used by academics.”
For example, L.A.P.D. defines an active gang as: “A group of juveniles and/or adults in a geographic area whose activities include the unlawful use of force, violence or threats of force and violence to further the group’s purposes.”
Defining gang crime: General definitions, though important, are not really used much by law enforcement or anyone else outside a faculty lounge. Another type of definition is used every day, however, and has real consequences. The definition of what constitutes a gang crime determines which crimes are included in statistical measures of the gang problem. In turn, these measures not only help shape public perception, they also play a key role in directing police policy and the allocation of public resources.
(Id. at p. 94.)
Detective Silva stated that appellant was a documented gang member. (2 R.T. at pp. 191, 197.) However, under Detective Silva’s definition, a gang member is a person involved in criminal activity. (Ibid.) The prosecution presented no evidence that appellant was involved in criminal activity prior to the incident in question. Therefore, not only does appellant not meet Detective Silva’s definition of a gang member, but Detective Silva was obviously operating on an “I know em when I see em basis.” Appellant’s alleged Diablos affiliation demonstrates no propensity for violence and was therefore not probative of motive.
Appellant’s alleged membership demonstrates nothing more than an adolescent need to socialize and be accepted by his peers. Youngsters join gangs for a variety of reasons:
On one level – the level of pragmatic calculation – a young man living in a gang dominated neighborhood can find many reasons for joining a gang: for protection; for adventure; for parties; to learn a trade (crime); to make money (through drug dealing); to meet girls because it is an old tradition in the community; because your friends or people you admire belong; because you love your neighborhood and feel a sense of quasi-patriotism for it; the list is long and seductive.
One fourteen-year-old Latino summed up his own very practical reasons: “It was either get your ass kicked every day or join a gang and get your ass kicked occasionally by rival gangs. Besides, it was fun.” A young black man serving time in state prison put it this way: “It’s like a family to me, they like brothers. The attention, the name, the glory. To escape reality from my family … to seek adventure … to find something different in life.”
(Id. at p. 21.)
Gangs meet the deep psychological needs of outcast adolescent males.
Even the rough, sometimes brutal, physical initiations [jumping in] that are typical of gang life can meet important emotional needs. Like harsh coming-of-age rituals in many cultures, they may help boys raised in female-dominated households to resolve questions of gender identification. They constitute an irreversible passage from mother and childhood into the adult, virtually all male world of the streets.
(Id. at p. 22.)
Many young boys join gangs as a way of winning acceptance:
[Why do people join gangs?] Just to be in, you know what I’m saying just to be part of something.
(Id. at p. 22.)
Most gangs probably engage in some form of active recruitment But many, especially in areas where the tradition is well established, simply do not need to do much. In such neighborhoods ” . . . falling in with a gang [comes in] as naturally to [them] as hanging out in malls comes to suburban kids. Individual aspirations and peer pressure take care of most of the recruiting. As with any successful courtship, the interest is truly mutual.
In many areas, gang membership is simply a function of prolonged hanging around with the neighborhood’s other boys of similar age. Over time, through a gradual testing of limits, and through contact with older role models, parental and social restraints are dissolved. At the end of the process, many boys find themselves actively involved in the neighborhood gang — regardless of their intentions or desires when they first began hangin’ with the ‘homies.
(Id. at pp. 24-25, emphasis added.)
Many people who have been members of gangs have left the gang and gone on to live exemplary lives. (Id. at p. 25.) Assuming arguendo that appellant was a gang member at the time of the incident, there are many non-violent, social reasons for joining a gang and such alleged gang membership was not probative of appellant’s motive in this case.
Not all gang members are the same. There are different levels of participation in gangs. The first category is the “at-risk” category. (Ibid.) This category is composed of young adolescent boys. (Ibid.) The next level is the “wannabe” level. (Ibid.) This group is composed of aspiring or potential group members commonly called recruits. (Ibid.)
The next level is the “associate level.” (Ibid.) This is the lowest level of actual gang membership. Regular gang members do not always consider associates regular or hardcore members. They have a strong identification with a gang, but participate less frequently in gang activities because of their interest in other areas. (Ibid.)
There are subcategories of associates who are less regular in their participation: ‘Temporary members, who typically join the gang later and remain a part of it for a shorter time; and ‘situational’ members who join activities but avoid the more violent activities when possible.”
(Id. at pp. 41-42, emphasis added.)
Finally, there are the “hardcore members.” They tend to be older and their experience is based as much on time served as on mere age. (Ibid.) Hardcore gang members are the most dangerous gang members. (Ibid.) No real studies have been done to find out what proportion of gang members fall into the hardcore category. (Ibid.) However, academics and community gang workers and law enforcement all estimate that hardcore members comprise ten to fifteen percent of the entire gang population. (Ibid.)
The only evidence presented at trial indicates that appellant had a social relationship with the Diablos. Without evidence of prior involvement in group gang violence, appellant’s affiliation proves nothing more than appellant socialized with the Diablos when he was in Escondido. Evidence of appellant’s socializing was not probative of an intent to kill decedent.
Finally, although gang members commit crimes, the Los Angeles District Attorney readily admitted in their findings and proposals that crimes committed by gang members are rarely organized gang activities.
It is important to emphasize that the fundamental choice of how to earn money — legally or otherwise — is not dictated by membership in the gang. Though gangs are supportive of crime, they do not demand it. ‘[P]articipation in such criminal activities as burglary and robbery by gang members . . . is rarely a gang activity as such, but the gang norms of bravery and disdain for external authorities tend to condone or even encourage some members to pursue such crimes.
(Id. at p. 58, emphasis added.)
These excerpts support appellant’s claim that evidence of his gang membership was irrelevant. The gang culture described by the Los Angeles District Attorney’s Office is quite different from the picture portrayed for the average citizen, juror, or lawyer in the press. Gang members do not necessarily join gangs to participate in violent activities. Instead, gang members may join gangs to fulfill a strong psychological desire to belong, party and socialize. The level of gang participation among members varies and purposes for joining a gang are diverse. Appellant’s alleged Diablos affiliation had no tendency in reason to prove or disprove any material fact of consequence in deciding the outcome of this case. The prosecution argued that appellant was a Diablos member. He was at a party where Diablos members were present. Es cousins were also allegedly Diablos members.
Appellant was depicted in an undated photograph throwing gang signs. However, appellant claimed he was no longer a member of the Diablos group at the time the photograph was taken. Appellant testified that other Diablos members were not aware of his discontinued membership.
The prosecution presented no evidence, apart from decedent’s actions, showing Diablos members engaging in violent criminal behavior. Placed in its proper cultural, social, and psychological context, appellant’s association with the Diablos group members proves nothing beyond the fact that he associated with Diablos group members. Therefore, the prosecution led the jury to the incorrect and unsubstantiated conclusion that because appellant was an alleged Diablos member, his actions were motivated by a desire to participate in a “gang payback.”
Evidence of appellant’s alleged Diablos affiliation had no tendency to prove or disprove any disputed fact of consequence to the determination of the action. Traditionally:
Gang violence, like other violence, is admissible if it is (1) material to the fact sought to be proved or disproved; (2) relevant, in the sense that it has any tendency in reason to prove a disputed fact; and (3) is not inadmissible because of some other rule or policy. Evidence offered simply to show that the defendant is bad (and therefore committed the crime) is inadmissible.
(Burrell at p. 23.)
Although numerous cases have discussed the admissibility of evidence of gang affiliation in general terms, no California court has articulated a test for determining the relevance of evidence of gang affiliation. (William v. Superior Court (1984) 36 Cal.3d 441, 450, fn. 8 (204 Cal.Rptr. 700, 683 P.2d 699].) Even so, a survey of the pertinent cases reveals a distinct pattern regarding the factual cirmmtances where evidence of gang membership is relevant. Appellant proposes both a test to assist in determining the relevance of evidence of gang affiliation and the underlying rationale supporting its adoption by this court.
Several factors are critical in determining whether gang membership is relevant. First, evidence of appellant’s gang membership is relevant in cases where an alleged incident is the result of group action rather than individual action. (See generally People v. Sceto (1981) 29 Cal3d 20 [171 Cal.Rptr. 652, 623 P.2d 213]; People v. Luparello (1986) 187 Cal.App.3d 410 (231 Cal.Rptr. 832]; People v. Sawyer (1967) 256 Cal.App.2d 66 [63 Cal.Rptr. 749]; In re Darrell T. (1979) 90 Cal.App.3d 325 [153 Cal.Rptr. 261]; People v. Dominguez (1981) 121 Cal.App.3d 481 [175 Cal.Rptr. 445]; People v. Plasencia (1985) 168 Cal.App.3d 546 [214 Cal.Rptr. 316]; People v. Contreras (1983) 144 Cal.App.3d 749 [192 Cal.Rptr. 810]; People v. Harris (1985) 175 Cal.App.3d 944 [221 Cal.Rptr. 321].)
The court in People v. Contreras, supra, 144 Cal.App.3d at p. 756, specifically distinguished People v. Perez and People v. Cardenas because “neither case involved a group action by gang members.” (Compare, People v. Perez (1981) 114 Cal.App.3d 470 [170 Cal.Rptr. 619]; People v. Cardenas (1982) 31 Cal.3d 897.) Citing both Cardenas and Perez, the California Supreme Court held that evidence of gang membership is irrelevant and prejudicial absent a showing of gang involvement in the commission of the offense. (People v. Malone (1988) 47 Cal.3d 1 [252 Cal.Rptr. 525, 762 P.2d 1249].)
Second, evidence of gang membership may be relevant when the prosecution charges defendant with conspiracy. (See generally People v. Sawyer, supra, 256 CalApp.2d 66; In re Darrell T, supra, 90 CalApp.3d 325; People v. Dominguez, supra, 121 Cal.App.3d 481; People v. Frausto (1982) 135 CalApp.3d 129 [185 Cal.Rptr. 314]; People v. Yu (1983) 143 Cal.App.3d 358 [191 Cal.Rptr. 859].)
Finally, evidence of gang membership may be relevant when defendant asserts an alibi or mistaken identity defense. (People v. Perez, supra, 114 Cal.App.3d at p. 470; People v. Cardenas, supra, 31 Cal.3d 897; People v. Sawyer, supra, 256 Cal.App.2d 66; In re Darrell T, supra, 90 Cal.App.3d 325; People v. Dominguez, supra, 121 Cal.App.3d 481; People v. Frausto, supra, 135 Cal.App.3d 129; People v. Yu, supra, 143 Cal.App.3d 358.)
Appellant proposes the following test for deciding which evidence of gang membership may be relevant. First, gang membership is not relevant unless the incident is the result of group action by group members. Second, gang membership is not relevant unless a defendant is charged under a conspiracy theory. Finally, group membership is not relevant unless defendant claims either an alibi or mistaken identity defense.
Appellant proposes the following rationale supporting the adoption of this test: When a defendant is claiming either an identity or alibi defense and the incident involves a group attack or alleged conspiracy, evidence of group membership may tend to prove the disputed fact of defendant’s participation in the group action or conspiracy.
The prosecution cannot use group behavior to explain individual behavior.
“Membership in an organization does not lead reasonably to any inference as to the conduct of a member on a given occasion. Hence, the evidence was not relevant. It allowed, on the contrary, unreasonable inferences to be made by the trier of fact that the defendant was guilty of the offense charged on the theory of ‘guilt by association.”
(People v. Perez supra, 114 CalApp3d at p. 477.)
Under this test and rationale, appellant’s alleged Diablos affiliation was not relevant. First, there were no prior discussions of retaliation between appellant and any other alleged Diablos members. Second, there was no charge of conspiracy.
Third, decedent’s death was not the result of group action. Appellant acted alone and in response to decedent’s challenge. The prosecution charged no other defendants in this case. Finally, appellant did not dispute that he was present at the incident. He did not present an alibi or identify defense. Appellant only asserted the defense of self-defense.
In summary, the Los Angeles District Attorney findings show that gangs and gang membership do not always correspond with the highly prejudicial stereotypes portrayed in the mass media. Nor did Detective Silva’s testimony at trial portray an accurate picture of gang culture for the jury. This court should consider the sociological and cultural aspects of gang membership in deciding the relevance of appellant’s alleged Diablos affiliation. Further, appellant urges this court to adopt the above-stated test and rationale for deciding the relevance of gang membership. For the reasons above, this court should hold that the trial court’s admission of appellant’s alleged gang membership constituted an abuse of discretion.
D. Evidence Of Appellant’s Alleged Diablos Affiliation Was Prejudicial And Outweighed
Any Probative Value,
Appellant was convicted of being a gang member – not a murderer. The words “gang member” strikes terror in the hearts of Californians.
Admission of gang membership evidence creates a substantial danger of undue prejudice because there is a “real danger that the jury would improperly infer that appellant had a criminal disposition be cause (1) the [gang] was a youth gang; (2) such gangs commit criminal acts; (3) appellant was a member of the [gang].” (People v. Cardenas, supra, 31 Cal.3d at p. 905, reaffirmed in People v. Cox (1991) 53 Cal.3d 618 [280 Cal.Rptr. 692, 809 P.2d 351].)
Penal Code section 1044 reads in pertinent part:
It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.
Furthermore, Evidence Code section 352 reads in pertinent part:
The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
It has been held that trial courts must weigh the admission of such evidence carefully in terms of whether the probative value of the evidence is greater than the potentially prejudicial effect its admission would have on the defense. [Citations omitted.]
(People v. Perez, supra, 114 Cal.App.3d at p. 478.)
The trial court failed to weigh the probative value of the evidence of appellant’s gang affiliation against its substantially prejudicial effect. The trial court only noted that the evidence was highly probative, and completely failed to discuss its prejudicial impact. (4 A.R.T. at p. 108; compare 4 A.R.T. at pp. 107-114.) Therefore, the trial court abused its discretion by failing to weigh the prejudicial impact of gang membership evidence. (People v. Perez, supra, 114 Cal.App.3d at p. 479.) [Footnote 12].
“It is settled law that the chief elements of probative value are relevance, materiality, and necessity. (People v. Schader (1969) 71 Cal.2d 761 [80 Cal.Rptr. 1, 457 P.2d 841].)” (People v. Beyea (1974) 38 Cal.App.3d 176, 194 [113 Cal.Rptr. 254].) Appellant’s alleged gang membership at trial was admitted to prove appellant’s intent to kill at the time of the incident. The substantial prejudice resulting from the admission of this evidence far outweighed its slight probative value. Although the trial court failed to recognize the prejudicial effect of gang membership evidence, the California Supreme Court and this court have recognized the prejudice inherent in evidence of gang membership. (People v. Pinholster (1992) 1 Cal.4th 865, 945 [4 Cal.Rptr.2d 765; 824 P.2d 571]; People v. Holt (1984) 37 Cal.3d 436 [208 Cal.Rptr. 547, 690 P.2d 1207]; Williams v. Superior Couit (1984) 36 Cal.3d at p. 450; People v. Cardenas, supra, 31 Cal.3d 904.) The admission of evidence of gang membership leads to the unreasonable inference that a defendant is guilty of the offense charged on the theory of “guilt by association.” (People v.Perez, supra, 114 Cal.App.3d at p. 477.)
Evidence of gang membership is prejudicial because it “suggest[s] that a defendant is the type of person predisposed to commit violent acts of the type engaged in by the gang to which he belongs.” (People v. Luparello, supra, 187 Cal.App.3d at p. 4226.) Evidence of gang membership is prejudicial because it infers defendant has a criminal disposition. (People v. Pinholster, supra, 1 Cal.4th at p. 945.)
Most importantly, “‘the prosecution has no right to present cumulative evidence which creates a substantial danger of undue prejudice to a defendant.'” (People v. Cardenas, supra, 31 Cal.3d at p. 905, emphasis added; reaffirmed and followed by this court in People v. Munoz (1984) 157 Cal.App.3d 999, 1012 [204 Cal.Rptr. 271].) Contrary to the trial court’s assertion, evidence of appellant’s gang membership was not the only way in which appellant’s actions made sense. The prosecution’s only theory was that appellant’s was motivated by a desire to retaliate for the fight between appellant’s cousin, Bob Boe, and decedent. There was some testimony, although contradicted, both during the preliminary examination and at trial suggesting appellant was retaliating for the fight between decedent and Boe. (P.E. at p. 14; 1 R.T. at pp. 33, 80.) Although the existing evidence was not the type or strength desired by the prosecution or the trial court, the trial court cannot admit irrelevant, cumulative, and highly prejudicial evidence to supplement weak or unbelievable prosecution evidence.
This only issue here was appellant’s state of mind at the fatal moment during the affray. Therefore, the admission of this irrelevant, highly inflammatory and cumulative gang membership evidence outweighed its nonexistent probative value.
The admission of this evidence constitutes an abuse of discretion under both Perez and Cardenas.
E. Regardless Of Which of Prejudice Is Applied, The Erroneous Admission Of Evidence Of
Appellant’s Alleged Diablos Affiliation Mandates Reversal Of Appellant’s Conviction
1. The Error In Admitting Evidence Of Appellant’s Gang Affiliation Should Be
Evaluated Under The Standard Of Chapman v. California
The admission of irrelevant and prejudicial evidence gives rise to the claim that appellant’s federal Fourteenth Amendment right of due process has been violated. (McKinney v. Rees (9th Cir. 1993) 93 D.A.R. 5330.) The trial court violated appellant’s federal Fourteenth Amendment right of due process by admitting evidence of appellant’s alleged gang membership. (Ibid.) This error is evaluated under Chapman. (Id. at p. 5333.)
Under Chapman v. California (1967) 386 U.S. 18, 23 [87 S.Ct. 824, 17 LEd 2d 705, 24 A.LR. 3d 1065], constitutional errors are prejudicial and require reversal of the conviction unless the state can prove beyond a reasonable doubt that the errors were of no consequence. Furthermore:
To decide whether an error is harmless under Chapman, we must decide whether there is a reasonable possibility the error might have contributed to the conviction.
(People v. Godinez (1992) 2 Cal.App.4th 492, 503 [3 Cal.Rptr.2d 325].)
In People v. Lewis (1986) 42 Cal.3d 969, 993 [232 Cal.Rptr. 110, 728 P.2d 180] the California Supreme Court held that when an error violates both the defendant’s federal and state constitutional rights, the court must apply the reversible error test set out in California v. Chapman. (See also People v. Powell (1967) 67 Cal.2d 32 [59 Cal.Rptr. 817, 409 P.2d 137].)
Where a fundamental constitutional right is at issue, erroneous evidentiary rulings are seldom harmless under the standard…. Further, we must weigh the impact of the error not only on the decision of the jury, but also on the course of the trial.
In McKinney, the Ninth Circuit upheld the granting of a conditional writ of habeas corpus. (McKinney v. Rees, supra, 93 D.A.R. at p. 5333.) In McKhney, the Ninth Circuit looked at whether or not the admission of evidence that defendant owned a “knife collection’ was relevant to any fact of consequence where defendant’s mother’s fatal injury could have been inflicted by any kind of knife. The court concluded that much of the evidence was only probative of character and thus irrelevant.
The McKinney court further held that no permissible inference could be drawn from the evidence and the defendant’s due process rights were violated. Ukewise, in this case, evidence of appellant’s gang affiliation was not probative of any fact in issue. Its admission violated appellant’s right of due process and like McKinney, this court cannot conclude its admission was harmless beyond a reasonable doubt.
“It is part of our community’s sense of fair play that people are convicted because of what they have done, not who they are.” (Id. at p. 5333.)
2. It Is Reasonably Probable That A Result More Favorable To Appellant Would
Have Occurred In The Absence Of Error.
Assuming arguendo that this court evaluates the error under People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243], this error is still prejudicial requiring reversal of appellant’s conviction. In People v. Cardenas, supra, 31 Cal.3d 897, the California Supreme Court held the admission of evidence of gang member was an abuse of the trial court’s discretion under Evidence Code section 352. This error mandated reversal of appellant Cardenas’ conviction.
In allowing the prosecutor to introduce evidence portraying appellant as a Chicano gang member predisposed to commit violent crimes and as a heroin addict desperate to obtain money to support his habit, the trial court ensured that the jury would reach a verdict based on improper evidence, As a direct result, the judgment of conviction must be and hereby is reversed.
(Id. at p. 914, emphasis added.)
In reaching its conclusion, the Cardenas court failed to state whether it was applying the People v. Watson or California v. Chapman standard of prejudice.
In People v. Perez, appellant Perez’s conviction was reversed because testimony should have been excluded under Evidence Code section 352. (People v. Perez, supra, 114 Cal.App.3d at p. 479.) “The error was prejudicial. The defendant did not receive a fair trial. (People v. Watson (1956) 46 Cal.2d 818, 835 [299 P.2d 243].” (Ibid)
In determining whether the error was prejudicial, the court will look to the length of the jury deliberations and the closeness of the decision. In this case the jury deliberated for approximately nine hours. (See 2 C.T. at pp. 315-317.)
The jury also sent a note to the judge asking when the photograph of appellant throwing gang signs was taken and ‘was the photo taken close to the incident of the stabbing. Close in time of year and month.’ (1 C.T. at p. 171.) Therefore, the length of the jury deliberations and the juror note shows that appellant’s alleged Diablos affiliation was a crucial factor in the jury’s mind. Furthermore, although the prosecution charged appellant with first degree murder, the jury returned a verdict of second degree murder. Therefore, it is reasonably probable that appellant would have been acquitted or convicted of a lesser offense had evidence of his alleged Diablos affiliation not been admitted.
Normally, motions to exclude evidence must be renewed when the evidence is introduced at trial to preserve the issue for appeal. However, when the motion is advanced on a specific legal theory and directed to a particular, identifiable body of evidence and the motion is made at a time when the judge can determine the evidentiary question in its appropriate context, the issue is not waived for purposes of appeal. (People v. Stansbury (1993) 4 Cal.4th 1017 [Cal.Rptr. ; 846 P.2d 756]. Thus, trial counsel’s failure to renew his objection at trial does not waive this issue. (Ibid.)
Defense counsel objected to the admission of this photograph. The picture does not indicate the date upon which it was taken and appellant disputes the admission of this photograph in relationship to appellant’s claim that although he was a group member at one time, he was no longer a member of the Diablos group at the time of the incident. (See discussion, Appellant’s Opening Brief, part two, section III.)
Apparently, “full fledged gang membership” is predicated upon being “jumped in” through a formal beating. (Office of the District Attorney, County of Los Angeles, Gangs Crime and Violence in Los Angeles: Findings and Proposals from the District Attorney’s Office 1992, p. 23.) One who “claims” a gang may associate with gang members but may not be a member of the gang. (Id. at pp. 36-42.)
Although this report was written with a view toward Los Angeles gangs, it is based on a broad survey of relevant academic and sociological literature and is equally applicable to San Diego County. (See also Burrell, Gang Evidence: Issues for Criminal Defense (1990) 30 Santa Clara L.Rev. 739, 771-772.)
On May 21, 1992, the California Supreme Court granted review of People v. Canady (1992) 10 CalApp.4th 308, opn. ordered pub. to permit tracking pending disposition on review by the Supreme Court, 15 CalApp.4th 1387. In Canady, the Fourth Appellate District, Division Two, reiterated the importance of allowing prejudicial gang evidence only after carefully balancing the probative value against the possible prejudice as required by Evidence Code section 352.