Brief Bank # B-654 (Re: F 6.50a [Criminal Street Gangs (PC 186.22(a))].)
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THERE WAS INSUBSTANTIAL EVIDENCE TO SUPPORT THE GANG ENHANCEMENT
FINDING PURSUANT TO SECTION 186.22, SUBDIVISION (b)(2)
In reviewing the sufficiency of evidence on appeal, the appellate court must review the record in a light most favorable to the prosecution to determine whether substantial evidence, “reasonable, credible, and of solid value”, exists upon which a trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The same burden of proof applies to enhancements as to principal offenses, including the reasonable doubt standard. (People v. Allen (1985) 165 Cal.3d 616, 626.)
Section 186.22, part of the “California Street Terrorism Enforcement and Prevention Act” [hereinafter “STEP Act”] (sects. 186.20 et seq.), provides for sentence enhancement for individuals “convicted of a felony which is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. . . .” (Sec. 186.22, subd. (b)(1); In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1000.) Appellant was convicted of first degree murder, “a felony punishable by imprisonment in the state prison for life”, and upon the jury’s finding that the sentence enhancement was true, was subject to the provisions of subdivision (b)(2) which provide that appellant “shall not be paroled until a minimum of 15 calendar years have been served.”
There is not substantial evidence to support the gang enhancement finding in that the gang with which appellant was affiliated was not shown to meet the definition of a “criminal street gang” as defined in the “STEP Act.” Specifically, there is no substantial evidence that the U-Boy gang had the requisite structure required of a “criminal street gang” under the “STEP Act,” that one of the U-Boys’ primary activities was the commission of the criminal acts enumerated in the “STEP Act,” and that the members of the gang were engaged in a “pattern of criminal gang activity” as required by the “STEP Act.”
Section 186.22, subdivision (b) requires a finding that the underlying felony must have been “committed for the benefit of, at the direction of, or in association with any criminal street gang, . . .,” [Emphasis added.] (Sec. 186.22, subd. (b)(1).)
The term “criminal street gang” is defined in section 186.22, subdivision (f) as follows:
As used in this chapter, “criminal street gang” means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (8), inclusive, of subdivision (e), which has a common name or common identifying sign or symbol, whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
In the case at hand, the various requirements enumerated in subdivision (f) of 186.22 which define “criminal street gang” have not been met by the requisite burden of proof beyond a reasonable doubt. As stated in In re Nathaniel C., supra:
“(C]riminal street gang” is the linchpin for the act’s provisions. The phrase is defined specifically, and its application requires proof of multiple elements. (228 Cal.App.3d at 1000.)
In regard to the first element of the “criminal street gang” definition, that there be an “ongoing organization, association, or group of three or more persons, whether formal or informal,” evidence is lacking as to the composition and structure of the “U-Boys” gang. officer Dwayne Freeman, the prosecution’s gang expert described the U-Boys as “a group of primarily all young Black males between the ages of probably, I don’t know, 10 to 25 maybe, I don’t even know. The ages are kind of — they vary.- but they’re primarily all Black males and they hang in that area that I just described to you.” (R.T. 86.)
Although Officer Freeman named appellant, Mr. J, and Mr. G as U-Boys (R.T. 90, 92), thus satisfying the numbers requirement for a “criminal street gang,” there was no testimony that the U-Boys was an “ongoing organization, association or group.” (Cf. In re Nathaniel C., supra, where the “Family” had a membership roll written on a wall and there was evidence of concerted actions by the “Family” members, friends, and supporters.)
Absent from this case is any evidence indicating that the U-Boys had any internal structure, that there were leaders of the gang, or that the U-Boys acted in any concerted fashion. Although Officer Freeman testified that U-Boys were involved in criminal activities, no evidence was presented to suggest that these activities were engaged in by U-Boys on behalf of the gang as opposed to by individuals acting on their own behalf who happened to be affiliated with the U-Boy gang.
The second requirement of the “criminal street gang” definition is that the gang have “as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (8), inclusive of subdivision (e). [Footnote 1] [Emphasis added.] (Sec. 186.22, subd. (f).) The focus of the statute is much narrower than that of general criminal conduct, the primary activity of the gang must be one or more of the offenses listed in subdivision (e)(l)-(8). (People v. Gamez (1991) 235 Cal.App.3d 957, 977; In re Nathaniel C., supra, 228 Cal.App.3d at p. 1004.)
Although Officer Freeman testified that the U-Boys were engaged in the “sale of rock cocaine, marijuana, drive-by shootings, homicide, assault, robberies” and that there have been at least two incidents of such activity in the last two years (R.T. 88), this evidence falls short of a conclusion that such activity was a primary activity of the U-Boys. Certainly if there had only been two incidents that occurred in the last two years, it can hardly be maintained that such activity was a primary activity of the gang. The main difficulty with the prosecution’s case is that Officer Freeman’s testimony failed to provide any detailed information about the U-Boys or their activities, making it impossible for the trier of fact to arrive at any conclusions as to the nature of the primary activities of the U-Boys.
The last requirement to be met under the “criminal street gang” definition is that the members of the gang be individually or collectively engaged in a “pattern of criminal gang activity.” (In re Lincoln J. (1990) 223 Cal.App.3d 322, 327.) There must be proof that members of the U-Boys committed one of the offenses listed in section 186.22, subdivision (e) [Footnote 2] since September 23, 1988 (the effective date of the “STEP Act”), and that one of the offense had been committed within three years of the charged offense. (Id. at 328.) The offenses establishing the “pattern of criminal gang activity” cannot be offenses which occurred after October 9, 1993, the date of the instant offense. (People v. Godinez (1993) 17 Cal.App.4th 1363, 1370.)
Although officer Freeman indicated that at least two offenses of the type of offenses were committed by the U-Boys in the last two years, he did not indicate whether these offenses were committed before or after the date of the instant offense. If they were committed after the instant offense, they do not qualify as offenses that can establish the “pattern of criminal gang activity.” (Ibid.)
Moreover, the types of crimes that Officer Freeman testified to were not all offenses listed in section 186.22, subdivision (e). Although sale of rock cocaine, homicide and robbery qualify, sale of marijuana (Health & Saf. Code sect. 11360) does not fall within the parameters of subdivision (e), nor does assault (sect. 240) unless it is an assault with a deadly weapon (sect. 245.) When officer Freeman testified that at least two of the types of offenses he named were committed by the U-Boys in the last two years, he did not specify precisely which offenses were committed, and therefore could have been referring to an instance of sale of marijuana or simple assault which do not come within the purview of the statute.
Moreover, the quality of the evidence presented by the prosecution in an attempt to establish the requisite “pattern of criminal gang activity” is wholly inadequate to uphold the gang enhancement. As stated in In re Jose T. (1991) 230 Cal.App.3d 1455:
In order for a criminal street gang sentence enhancement to be found true, there must be substantial evidence to support a finding of the existence of a “criminal street gang” whose members engage in a “pattern of criminal gang activity.” (Citations omitted.] Conclusional testimony that gang members have previously engaged in the enumerated offenses, based on nonspecific hearsay and arrest information which does not specify exactly who, when, where and under what circumstances gang crimes were committed, does not constitute substantial evidence. (230 Cal.App.3d at 1462.)
The evidence presented in the instant case is more akin to that rejected by the Court of Appeal in Nathaniel C., supra, where a police officer who had no personal knowledge of a suspected shooting repeated information he had received from another police officer. The court held that “vague, secondhand testimony cannot constitute substantial evidence that the required predicate offense by a gang member occurred.” (228 Cal.App.3d at 1003.) In the present case, Officer Freeman does not even recite the basis for his response that certain crimes were committed by the U-Boys. (R.T. 88.) It cannot be assumed that he had personally observed these offenses. If the source of the information was hearsay, the reliability of that hearsay is brought into Question.
In People v. Gamez, supra, the prosecution introduced certified court documents indicating convictions of gang members for various of the enumerated offenses under section 186.22, subdivision (e). In addition, the underlying facts of the offenses were before the court so that the court could properly conclude that the commission of the offenses was gang related. While it is not necessary to establish a conviction of the offenses, the prosecution must prove the offenses beyond a reasonable doubt as with any other element of a crime. (In re Leland D. (1990) 223 Cal.App.3d 251, 258.)
In the present case, no records of conviction of any U-Boy member was introduced. Moreover, Officer Freeman did not present any facts regarding the circumstances of the alleged crimes committed by the U-Boys. His unsupported conclusions that the U-Boys were involved in drug sales, drive-by shootings, homicides, assaults, and robberies cannot constitute the substantial evidence required under the statute. [Footnote 3] (Cf. People v. Bassett (1968) 69 Cal.2d 122, 141.)
“The value of the opinion lies in the reasoning by which he progresses from his material to his conclusion [and] it does not lie in his mere expression of his conclusion.” (Id., quoting from Carter v. United States (D.C. Cir. 1957) 252 F.2d 608, 617.) Opinions based on speculation or incorrect information are not entitled to weight. (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1116.) Trial court determinations resting on such matter must be reversed for insufficient evidence. (Ibid.; In re Hewitson (1983) 142 Cal.App.3d 874, 885-886.)
In summary, there is not sufficient evidence to support the gang enhancement. The testimony regarding the composition and activity of the U-Boys was inadequate to characterize the U-Boys as an “ongoing organization, association, or group of three or more persons, having as one of its primary activities the commission of one or more of the criminal acts enumerated in (section 186.22, subdivision (e)]. . . ” The testimony presented regarding the “pattern of criminal gang activity” was lacking in date and detail so that it could not be determined if the offenses committed were those enumerated in the statute and if those offenses were committed prior to the commission of the homicide alleged in the present case. Moreover, the quality of proof of those offenses was so deficient that it did not rise to the level of substantial evidence. The vague conclusion of Officer Freeman that the U-Boys committed offenses without a reliable basis for such a conclusion is not sufficient proof that the offenses were in fact committed by U-Boys and were gang related. Reversal is therefore required as to the gang enhancement due to the lack of substantial evidence.
THE FAILURE TO INSTRUCT THE JURY REGARDING THE DEFINITIONS
OF THE PREDICATE OFFENSES IN SUBDIVISION (e) OF SECTION 186.22
IS REVERSIBLE ERROR
The jury was given CALJIC instruction 17.24.1 entitled “Miscellaneous Enhancement or Probation Denial Allegations.” The instruction incorporated some of the relevant language of section 186.22, subdivision (b), but not all. [Footnote 4]
The jury was properly instructed that it had to find the underlying offense to have been committed for the benefit of a “criminal street gang.” However, the definition of “criminal street gang” did not comport with the requirements of section 186.22. The second requirement of the “criminal street gang” definition is that the gang have as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (8), inclusive of subdivision (e).” [Footnote 5] (Sect. 186.22, subd. (f).)
Each of the “criminal acts” enumerated in subdivision (e) is a specific offense defined by statute. The jury instruction in the present case omits the reference to the specific Penal Code or Health and Safety Code section defining the offense, and leaves the jury uninformed as to the elements of each individual “criminal act” as defined by its respective statute. Thus, the jury was left to speculate as to the definition of each enumerated “criminal act.
Each of the offenses listed in subdivision (e) has a technical, legal meaning. The trial court had a sua sponte duty to define the meaning of each of the specific offenses since the legal definitions of each offense as defined by their respective statutes are not matters “commonly understood by those familiar with the English language.” (People v. Valenzuela (1985) 175 Cal.App.3d 381, 393; People v. McElheny (1982) 137 Cal.App.3d 396, 403.)
The omission of definitions of the enumerated offenses removed an element of the gang enhancement from the jury’s consideration, resulting in the jury’s failure to make a factual determination as to that particular component of section 186.22, subdivision (b). This error is reversible per se. (People v. Cummings (1993) 4 Cal.4th 1233, 1315-1316; People v. Hernandez (1988) 46 Cal.3d 194, 211.) [Footnote 6]
Moreover, even under a harmless error standard (Chapman v. California (1967) 386 U.S. 18, 24), the instructional error requires reversal. As discussed in Argument I, supra, there was not substantial evidence that one of the primary activities of the U-Boys was the commission of the enumerated offenses in the “STEP Act.” The jury was unable to properly deliberate concerning this issue since it was never correctly informed as to the legal definition of each of the enumerated offenses. Each offense is derived from a particular penal provision wherein the offense is defined. Without the benefit of the definition, the jury was left to speculate as to the requirements of each enumerated offense.
If the jury were properly instructed, it could not have determined based upon the evidence presented, that each element of any of the alleged enumerated offenses had been proven. Although Officer Freeman gave his conclusion that drug sales, drive-by shootings, homicides, assaults, and robberies had occurred, no facts were presented to the jury for the basis of his conclusion.
For example, based upon the Officer’s testimony that homicides had occurred, the jury could not conclude that the homicide was the result of an intentional act, or that it was unlawful. (Sects. 187, 192.) Nor does the Officer’s conclusion allow for a finding of the jury as to any specific intent required under any of the enumerated offenses.
It would have therefore been impossible for the jury to find that any of the enumerated offenses had been committed since it did not have enough evidence upon which to base that decision. Given that the burden of proof was on the prosecution to provide evidence as to each element, the jury would have been left with no choice but to find that the enhancement was not properly proven. The instructional error was therefore not harmless.
THE FAILURE OF THE COURT TO INSTRUCT THE JURY REGARDING THE
NECESSITY OF A FINDING THAT THE GANG HAS A COMMON NAME
OR COMMON IDENTIFYING SIGN OR SYMBOL AND THAT THE GANG
MEMBERS HAVE ENGAGED IN A “PATTERN OF CRIMINAL GANG ACTIVITY”
IS REVERSIBLE ERROR
The instruction given to the jury regarding the gang enhancement omitted additional significant portions of subdivision (f) of section 186.22, which defines “criminal street gang.” [Footnote 7] In addition to the requirement that the “criminal street gang” have as one of its primary activities the commission of the acts described in the instruction, the statute requires that the gang have a common name or common identifying sign or symbol, whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (Sec. 186.22, subd. (f).) This statutory requirement is totally absent from the jury instruction.
“Pattern of criminal gang activity” is defined in subdivision (e) as:
. . . commission, attempted commission, or solicitation of two or more of the following offenses, provided at least one of those offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offense are committed on separate occasions, or by two or more persons: [the enumerated offenses are listed in fn. 12, ante.]
The omission of these essential components of section 186.22 rendered the instruction incomplete and removed elements of the gang enhancement from the jury’s consideration. The jury was thus unaware of the need to consider information relevant to this portion of the enhancement, resulting in the jury’s failure to make a factual determination as those issues. As discussed above in Argument II, supra, this results in error that is reversible per se. (People v. Cummings, supra, 4 Cal.4th at 1315-1316; People v. Hernandez, supra, 46 Cal.3d at 211.)
DEFENSE COUNSEL’S FAILURE TO REQUEST BIFURCATION
OF THE WITH RESPECT TO THE CRIMINAL STREET
GANG ENHANCEMENT ALLEGATION AND FAILURE TO REQUEST
LIMITING INSTRUCTIONS TO THE JURY DENIED APPELLANT
HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
A. Defense Counsel’s Failure to Request Bifurcation of the Criminal Street Gang Enhancement or Limiting Instructions to the Jury.
Significant testimony which was extremely prejudicial to appellant and not directly relevant to the underlying murder charge was provided by Officer Freeman, the prosecution’s gang expert. This evidence was presented in the course of the prosecution’s attempt to satisfy its burden of proving the criminal street gang enhancement pursuant to section 186.22, subdivision (b).
Specifically, Officer Freeman testified that the U-Boys were involved in drug sales, drive-by shootings, homicides, assaults and robberies, intimidation and threats to witnesses. Officer Freeman also described in general the use by street gangs of graffiti, stolen weapons obtained in burglaries, and stolen vehicles. [Footnote 8] (R.T. 84, 88, 93, 108-109.) None of these matters related to the rivalry between the U-Boys and the Strother Street gang and thus had no independent admissibility in terms of establishing motive for the homicide. (People V. Funes (1994) 23 Cal.App.4th 1506.1518.)
Since the decision in People v. Bracamonte (1981) 119 Cal.App.3d 644, it has been standard practice for defendants to request bifurcated trials relating to prior felony conviction enhancements so as to prevent jurors from being exposed to a defendant’s prior criminal record while deliberating as to the guilt of the defendant in the underlying offense. The court in Bracamonte noted that no jury instruction could eliminate the risk of prejudicial effect on the jury after evidence was presented as to prior acts of criminality and therefore a bifurcated trial was required to protect the defendant’s right to a fair trial. (119 Cal.App.3d at 649-651.)
The admission of other crimes evidence in general has a highly inflammatory and prejudicial effect on the trier of fact. (People v. Thompson, supra, 27 Cal. 3d at 314. In regard to gang evidence, even where such evidence is relevant to the underlying offense, it has been held that the trial courts need to carefully weigh the probative value of the testimony against the possible prejudice of the testimony pursuant to Evidence Code section 352. (People v. Cardenas (1982) 31 Cal.3d 897, 904-905.)
The evidence required to substantiate the section 186.22, subdivision (b) enhancement is similar in its pervasive prejudicial effect to that of prior felony convictions in that the evidence refocuses the jury’s attention on facts unrelated to the offense charged. In the case of gang enhancements, the risk is that the jury will concentrate on or be distracted by the highly publicized phenomenon of illegal gang activities, placing the burgeoning gang crisis on trial as much as the defendant. (Williams v. Superior Court (1984) 36 Cal.3d 441, 453.) As in trials where there is a prior felony conviction, the prejudicial effect can only be avoided by bifurcating the trial so that the jury is unaware of the gang evidence which is irrelevant to the underlying offense, until the jury has determined the guilt of the defendant for the underlying offense. [Footnote 9]
Despite the extremely prejudicial nature of the gang expert’s testimony, defense counsel did not seek to bifurcate the trial of the criminal street gang enhancement. At the very least, counsel should have requested limiting instructions to the jury regarding the specific purpose for which the evidence was introduced, and that the jury should not consider the evidence for purposes of determining guilt as to the underlying offense.
B. Defense Counsel’s Failure to Request Bifurcation or Limiting Instructions Denied Appellant Ineffective Assistance of Counsel Requiring Reversal.
The right to competent counsel is grounded in the Sixth Amendment to the United States Constitution and Article 1, section 15 of the California Constitution. (People v. Pope (1979) 23 Cal. 3d 412, 422, 424-425. The issue to be decided is whether appellant “received the kind of legal assistance to be expected of a reasonably competent attorney acting as a conscientious, diligent advocate.” (Id., 23 Cal. 3d at 427.) In order to set forth a cognizable ineffective assistance of counsel claim, appellant must demonstrate that counsels acts or omissions resulted in the withdrawal of a crucial or potentially meritorious defense. (People v. Perry (1979) 100 Cal.App.3d 251, 261.)
Defense counsel has been deemed incompetent where counsel has failed to take any steps necessary to keep critical evidence from the jury where its admissibility is questionable. (People v. Ledesma (1987) 43 Cal.3d 171, 224, 226-227.) As stated in People v. Coffman (1969) 2 Cal.App.3d 681, 691, where defense counsel failed to move to exclude evidence seized in a warrantless search, “Even if admissibility were arguable, his duty was to fight for his client, not to open the gate to an overwhelming flood of dubiously admissible, damning evidence.”
In People v. Zimmerman (1980) 102 Cal.App-3d 647, defense counsel made no objection to the receipt in evidence of the defendant’s record of a prior robbery conviction where there was a legal basis to seek exclusion of the conviction. The court also criticized counsel for not seeking a limiting instruction to prohibit the jury from considering the evidence of the prior convictions as past conduct demonstrating a propensity to commit the charged offense. The court found no tactical basis for counsel’s omission; it appeared clear to the court that counsel was oblivious to the prospect of having the conviction excluded. The court found reversible error in that the defendant’s credibility was crucial to his defense and counsels failure to seek to exclude the robbery conviction undermined defendant’s entire defense. (102 Cal.App.3d at pp. 659-660.)
“The defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is sufficient to undermine confidence in the outcome.” (Strickland v. Washington (1984) 466 U.S. 668, 694.) Strickland requires a significant but something less than 50 percent likelihood of a more favorable verdict, as distinguished from the more likely than not “outcome determinative” test in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Howard (1987) 190 Cal.App.3d 41, 48.)
The present case was a close one. The two eyewitness identifications of appellant were fraught with problems. As discussed in Argument V, infra, Mr. M’s identification of appellant was extremely unreliable, resulting from unduly suggestive questioning by the prosecution. Moreover, Mr. M, after identifying appellant in court, failed to select the photograph of appellant from the photographic lineup, instead identifying Mr. G, whose fingerprints were recovered in the getaway vehicle. Mr. M stated with certainty pointing to Mr. G’ photograph that Mr. G was the man with the gun. (R.T. 282.)
Mr. V’s identification of appellant was also questionable. He failed to identify appellant on two prior occasions even though he knew appellant from grade school. When he finally identified appellant in the second photographic lineup he was shown on the occasion of his third interview with the police, Mr. V told the police that the reason he did not identify appellant was that he did not see a photograph of appellant in the first lineup, when at trial he admitted that the photograph was present, but he was afraid to tell the police that appellant was the gunman. Mr. V gave an unlikely explanation for identifying Mr. J during the second police interview, and not identifying appellant until the third interview, i.e. that he was afraid of retaliation. He gave no reason as to why he was less afraid of retaliation when identifying Mr. J at the second interview, when he was no less fearful of Mr. J than appellant. Lastly, Mr. V had an inherent bias in that he was associated with the U-Boys’ rival, the Strothers Street gang, where it was reported that the two gangs had an intense rivalry involving periodic shootings of one gang by the other.
The entire prosecution case rested on the testimony of these two witnesses, as they were the only ones to link appellant to the shooting. The viability of the other witnesses’ testimony hinged upon the Mr. M’s and Mr. V’s identification of appellant as being the man in the red windbreaker/T-shirt. No independent evidence, such as fingerprint or other crime lab evidence linked appellant to the homicide.
On the other hand, appellant presented three alibi witnesses to corroborate that he was at his brother’s home the day of the homicide. Although appellant’s alibi defense was not free of conflicts, it is clear that each of the witnesses recalled seeing appellant at his brother ‘s apartment throughout the morning and early afternoon on the day of the homicide. The evidence suggested that the homicide occurred around 11:40 a.m. (R.T. 497.)
Appellant’s brother, Mr. B, testified that he, Mr. B, left the apartment at 11:00 a.m. and appellant was asleep in the bedroom when he left. (R.T. 397.) When Mr. B returned around noon, appellant was up and in the front room watching television. (R.T. 398.)
Mr. B’s girlfriend, Ms. P, testified that she and appellant argued around 11:30 a.m. over which television program to watch. She left the apartment for 25 minutes, returned, and saw appellant at the apartment. (R.T. 411, 413-414.)
Mr. R, a friend of Mr. B and Ms. P saw appellant at Mr. B’s apartment at 11:30-11:35 a.m. (R.T. 446.)
The indications of a close case are present. The jury deliberated for almost thirteen hours. (C.T. 96-100.) (See, People v. Cardenas, supra, 31 Cal.3d at 907 [jury deliberations of 12 hours indicate close case]; People v. Bennett (1969) 276 Cal.App.2d 172, 176 [jury deliberations of 10 hours indicate close case].)
In People v. Cardenas, supra, the court stated:
This court has held that jury deliberations of almost six hours are an indication that the issue of guilt is not ‘open and shut’ and strongly suggest that errors in the admission of evidence are prejudicial. (People v. Woodard (1979) 23 Cal.3d 329, 341.) Here the jury deliberated twice as long as the jury in Woodard, a graphic demonstration of the closeness of the case. (31 CA1.3d at 907.)
In addition to the time spent deliberating, the jury was read back the testimony of K.D., S.R., I.C., W.H., and Mr. V. (C.T. 97.) These witnesses all testified regarding their observations of the men involved in the shooting, indicating that the jury had questions regarding the identity of the gunman.
The prejudicial effect of the gang testimony was evident. The prosecution referred to the homicide as a “gangster” activity and to the getaway vehicle as a “gang vehicle.” The prosecution stressed that the ignition of the vehicle was tampered with, that the vehicle was “hot”, and that there was stolen merchandise in the vehicle. (R.T. 503.) Emphasis was placed on the evidence that the U-Boys engaged in drug dealing, drive-bys, murders, and stealing vehicles. (R.T. 504.)
Evidence of other crimes is extremely prejudicial. As in People v. Valentine (1986) 42 Cal.3d 170, 182-183, evidence of past criminal activities created a substantial likelihood that the jury’s verdict was affected where discrepancies existed in eyewitness identifications and a significant alibi defense was presented. Defense counsels failure to request bifurcation of the criminal street gang enhancement allowed the prosecution to present and utilize irrelevant evidence of past criminal activity in order buttress its case against appellant in regard to the underlying homicide. At the very least, defense counsel should have requested limiting instructions regard the use of the evidence.
The offenses listed in section 186.22, subdivision (e) are as follows:
1. Assault with a deadly weapon (section 245);
2. Robbery (section 211);
3. Murder or manslaughter (section 187);
4. Sale, possession for sale, transportation, manufacture, or offer to manufacture controlled substances (Health and Safety Code sections 11054-11058.)
5. Shooting at an inhabited dwelling or occupied motor vehicle (section 246);
6. Arson (section 450);
7. Intimidation of witnesses and victims (section 136.1);
8. Grand theft of any vehicle, trailer, or vessel (section 487h).
The offenses are listed in fn. 12, ante.
Officer Freeman testified that he arrested Mr. G, whom Freeman considered to be a U-Boy member, in 1990 for possession of sale of rock cocaine. (R.T. 92.) However, Freeman did not reveal whether Mr. G was ever convicted of any offense, nor did he state what observations he made which led to the arrest of Mr. G. An arrest itself is insufficient to prove the commission of the offense. (In re Leland D., supra, 223 Cal.App.3d at 258.)
Moreover, Officer Freeman did not tie in Mr. G’ alleged drug sales activity with Gibbs’ participation in the U-Boy gang. Therefore, this offense cannot be considered as a predicate offense to indicate a pattern of criminal gang activity.
The jury instruction was as follows:
“It is further alleged that at the time of the commission of the crime charged in the information, that the crime was committed for the benefit of, at the direction of, or in association with any criminal street gang with the specific intent to promote, further or assist in any criminal conduct by (sic] gang member].
“The term ‘criminal street gang’ means any ongoing organization, association, a group of three or more persons,, whether formal or informal, having as one of its primary activities the commission of one or more of the following criminal acts:
(1) Assault with a deadly weapon or an assault by means of force likely to produce great bodily injury;
(3) Unlawful homicide or manslaughter;
(4) The sale, possession for sale, transportation, manufacture, or offer to manufacture controlled substances;
(5) Shooting at an inhabited dwelling or occupied motor vehicle;
(7) Intimidation of witnesses and victims;
(8) Grand theft of any vehicle, trailer, or vessel.
“If you find defendant guilty of the crime charged in the information, you must determine whether or not the truth of this allegation has been proved.
“The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.
“You will include a special finding on that question, using a form that will be supplied to you.” (C.T. 154-155.)
The offenses are listed in fn. 12, ante.
Review has been granted in two Court of Appeal cases which have held that failure to instruct on an element of an enhancement is reversible per se under the rationale of People v. Cummings, supra. The cases are People v. Wims (1993) 19 Cal.App.4th 1601 (review granted 1/94 (SO36641) and People v. Winslow (1993) 19 Cal.App.4th 1775 (review granted 2/10/94 (SO36861)).
See fn. 16, ante for the text of the instruction.
Reference was also made to clothing with store tags (implying that they were stolen) found in the AMC station wagon as well as the fact that the ignition of the vehicle appeared tampered with (implying that the vehicle was stolen). Defense counsel should have objected to this evidence as well as the other more general gang evidence on the basis of relevance but failed to do so. (See, Evid. Code sect. 350; People v. Thompson (1980) 27 Cal.3d 303, 315-316.) Failure to object to inadmissible evidence constitutes ineffective assistance of counsel. (People v. Williams (1971) 22 Cal.App.3d 34, 50; People v. Moreno (1987) 188 Cal.App.3d 1179, 1191.)
The California Supreme Court has granted review in People v. Canady (1992) 4 Cal.App.4th 1 review granted 5/21/92 (S 026025), where the Court of Appeal held that the trial court should consider bifurcation of section 186.22, subdivision (b) enhancements and should be guided by the same principles employed by Evidence Code section 352.