Brief Bank # B-975 (Re: F 2.80 n6/F 6.50 n3/F 6.50 n5/F 6.50 n31 /F 6.50 n32/F 6.50 n33 [Limitations On Expert Testimony Regarding Gangs: Admissibility Of Gang Expert Evidence/Gangs: Admissibility Of Gang Profile Evidence/Gang Evidence: Limiting Instruction/Admissibility Of Alleged Tattoo Which Predates Gang Affiliation].)
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Date of Brief: June 2004
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs.
JOHN DOE,
Defendant and Appellant.
_____________________________________
APPELLANT’S OPENING BRIEF
ON APPEAL FROM THE JUDGMENT OF THE
SUPERIOR COURT, COUNTY OF SANTA CLARA,
THE HONORABLE JOYCE ALLEGRO, JUDGE PRESIDING
SIXTH DISTRICT APPELLATE PROGRAM
DALLAS SACHER
Assistant Director
State Bar #100175
100 N. Winchester Blvd., Suite 310
Santa Clara, CA 95050
(408) 241 -6171
Attorneys for Appellant,
JOHN DOE
III.
APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER THE SIXTH AMENDMENT TO THE FEDERAL CONSTITUTION WHEN HIS ATTORNEY FIRST PRESENTED GANG EVIDENCE AND THEN FAILED TO RENDER SPECIFIC OBJECTIONS TO ADMISSION OF PARTICULAR ASPECTS OF THE GANG EVIDENCE PRESENTED BY THE PROSECUTION.
Prior to trial, defense counsel filed an extremely short motion in limine which requested the “total exclusion” of any gang evidence. (CT 392.) During a pretrial hearing on the motion, defense counsel once again called upon the court “to exclude all references to street gangs.” (RT 633.) Counsel cited the “extreme prejudice” flowing from such evidence and noted that gang evidence is inadmissible “unless it is relevant to something . . . .” (RT 633.) Counsel summed up his position by stating “this is in the nature of a 352 motion, and I don’t see how the street gang material would be relevant in this case.” (RT 633.)
In response, the prosecutor claimed that appellant was either a member or an associate of the Mountain View Surenos at the time of the shooting. (RT 634-635.) The prosecutor also noted that some amount of gang evidence was necessary so that the jury would understand the significance of the various “what’s up” hand gestures made by the participants. (RT 635-636.) Given the fact that appellant had previously fought the C’s in front of his home which was an “ultimate act of disrespect,” the prosecutor asserted that gang evidence was admissible to show appellant’s “motivations” on the day of the shooting. (RT 636-638.)
In response, defense counsel indicated that there was no evidence of “any recent gang activity” on appellant’s part. (RT 639.) Similarly, counsel denied that appellant was “currently a member of or is engaged in any activity with any street gang.” (RT 639.) Given this reality, counsel concluded that the use of gang evidence would inject “a whole lot of prejudice into this case which is just not relevant to the issues.” (RT 640.)
The trial court made a partial ruling on the defense objection. The court held that the prosecutor would be allowed to introduce evidence of “gang connections and/or interpretation” insofar as the evidence related to the meaning of the “what’s up” hand gestures. (RT 643.) However, the court took under submission the issue of whether the prosecutor would be allowed to call his gang expert, Lieutenant Ahearn. (RT 643.)
During his case-in-chief, the prosecutor did not present any gang evidence. With regard to the meaning of the “what’s up” hand gestures, the prosecutor simply adduced Mr. R’s and Mr. C’s explanations that the gestures constituted an invitation to fight. (RT 783-784, 841-843.)
Appellant was called as the first defense witness. Defense counsel adduced appellant’s admission that he had associated with the Mountain View Surenos (MVS) when he was living in Mountain View. (RT 1141-1143.) However, appellant had ceased his activities with the gang when he met Ms. S in 1994. (RT 1141.)
On cross-examination, the prosecutor broached the topic of appellant’s affiliation with MVS. (RT 1218.) When the prosecutor inquired as to “the number that Mountain View Suranos [sic] identify themselves to,” defense counsel made a relevancy objection which was overruled when the prosecutor noted that the defense had opened the door to the topic. (RT 1219.)
Appellant admitted that he had been affiliated with MVS. (RT 1220.) During this time, appellant was aware that MVS members had committed crimes. (RT 1222.) Appellant conceded that he had the word “Listo” (meaning ready) tattooed on his neck at one time. (RT 1224-1225.) The tattoo was removed in 1997 or 1998. (RT 1225.)
Appellant acknowledged that he was in a car with MVS members in 1994 when a shotgun was fired out of the car towards people standing in a parking lot. ( RT 1223.) However, appellant indicated that he was asleep at the time of the shooting. (RT 1363-1364.)
Following the close of the defense case, the prosecutor called Officer Peter Delaossa who investigated the 1994 incident. Officer Delaossa categorized the event as a “drive-by shooting” that occurred outside a “liquor store/7-Eleven.” (RT 1439.) In his 1994 interview, appellant said that he was seated in the right front passenger seat and was intoxicated and tired at the time of the shooting. (RT 1442.) Although he indicated that he would never “snitch” on his home boys,” appellant named Mr. A and Mr. T as the possible shooters. (RT 1443.) Appellant was not charged as a result of the incident. (RT 1445.)
After Officer Delaossa testified, defense counsel memorialized his preceding Evidence Code section 352 objection which had been made on the grounds that the testimony had constituted “impeachment on a collateral issue and [was] unduly time consuming.” (RT 1469.) The objection was overruled since the testimony had taken only ten minutes and “directly related to the defendant’s credibility.” (RT 1470.)
The prosecutor also called Lieutenant Ahearn as a rebuttal witness. Lieutenant Ahearn was qualified as a gang expert. (RT 1447-1449.) Lieutenant Ahearn indicated that MVS has 75 members who have committed crimes “ranging from 245, attempted murders, assaults and deadly robberies.” (RT 1451.)
Lieutenant Ahearn testified about the subject of “respect” in gang culture. He opined that a gang member would lose a great deal of respect if he lost a fight in front of his house. (RT 1455.) Moreover, losing a fight in front of one’s children would be “the highest form of disrespect to that person. (RT 1457.) After suffering such a defeat, a gang member would commit a “serious attack” in revenge. (RT 1458.) “A weapon would be introduced” in the revenge attack. (RT 1458.) It would be “advantageous” to use “a 9 mm handgun.” (RT 1466.)
As the foregoing resume of the record establishes, defense counsel horribly mishandled the highly damaging gang evidence in this case. Although he made a proper motion in limine to seek exclusion of the evidence, counsel later dropped the ball by first introducing gang evidence and by subsequently failing to object to the most prejudicial aspects of the evidence. As will now be demonstrated, counsel’s erroneous handling of the issue requires reversal. (See People v. Navarette (2003) 30 Cal.4th 458, 491 [motion in limine does not preserve an issue for appeal when the pretrial ruling is not definitive].)
A. Defense Counsel Erred by Introducing Appellant’s Testimony That He Had Associated With MVS.
Prior to trial, the court ruled that the prosecutor could adduce gang evidence for the limited purpose of explaining the meaning of the “what’s up” gestures made by Mr. C and appellant. (RT 643.) The court also indicated that it would rule at a later time regarding the prosecutor’s request to call his gang expert, Lieutenant Ahearn. (RT 643.)
In presenting his case-in-chief, the prosecutor elected not to adduce any gang evidence. However, the court had not made a ruling regarding the admissibility of Lieutenant Ahearn’s testimony.
Appellant was called as the first defense witness. Defense counsel adduced appellant’s admission that he had associated with MVS prior to meeting Ms. S in 1994. (RT 1141-1143.)
Without question, counsel made a fundamental error in adducing this testimony. As the Supreme Court has noted, evidence of gang membership is highly prejudicial and should be excluded absent a showing of relevancy to the issues before the jury. (People v. Cox (1991) 53 Cal.3d 618, 660.) Here, the prosecutor made no attempt to introduce appellant’s gang association in his case-in-chief.. Thus, it was a suicidal act for defense counsel to do so during appellant’s testimony.
It is a settled principle that one “of the principal tasks of a defense attorney is to attempt to protect his or her client from the admission of evidence that is more prejudicial than probative, . . . .” (In re Jones (1996) 13 Cal.4th 552, 581.) Given this rule, counsel performs in a patently ineffective manner when he affirmatively acts to introduce prejudicial evidence. (Jones, supra, 13 Cal.4th at pp. 568-571 [ineffective assistance found where counsel adduced a hearsay statement that defendant had killed the victim]; People v. Perez (1978) 83 Cal.App.3d 718, 732-735 [counsel erred by introducing evidence that the defendant had a prior conviction for possession of heroin].)
Here, defense counsel knew that the evidence of appellant’s prior gang association was highly prejudicial. He also knew that the prosecutor had refrained from broaching the topic during his case-in-chef. Counsel clearly performed in an ineffective manner when he caused appellant to testify about his prior gang association. (In re Jones, supra, 13 Cal.4th 552, 568-571; People v. Perez, supra, 83 Cal.App.3d 718, 732-735.)
B. Defense Counsel Performed Ineffectively When He Failed to Object to the Inadmissible and Highly Prejudicial Gang Evidence Presented by the People.
At the outset, it must be noted that the People were not entitled to introduce gang evidence on the theory that the defense had “opened the door” by first broaching the subject. As the Supreme Court has recently indicated, a party may not “take advantage of an obvious mistake [by the opposing party] to introduce prejudicial evidence.” (People v. Steele (2002) 27 Cal.4th 1230, 1248; see also People v. Luparello (1986) 187 Cal.App.3d 410, 426.) Thus, even though he erred by adducing evidence that appellant had associated with MVS prior to 1995, it was incumbent upon defense counsel to preclude the prosecutor from introducing any additional gang evidence. As will now be demonstrated, counsel abdicated his responsibility by failing to seek exclusion of highly prejudicial gang evidence.
In material part, the prosecutor adduced five pieces of gang evidence: (1) MVS has 75 members who have committed attempted murders, assaults, and deadly robberies; (2) appellant was aware of the criminal acts committed by MVS; (3) appellant was in a car when an MVS member committed a drive-by shooting; (4) appellant’s conduct in this case matched the profile of a gang member’s response to an attack committed in front of his home and children; and (5) appellant wore a tattoo that said “Listo.” Each of these pieces of evidence will be separately discussed below.
1. The People Should Not Have Been Allowed to Present Any Gang Evidence.
Prior to trial, the prosecutor advanced two theories of admissibility for gang evidence: (1) the evidence was necessary to provide meaning to the “what’s up” gestures exhibited by Mr. C and appellant; and (2) the evidence was probative of appellant’s “motivations” in shooting at Mr. C. (RT 635-638.) As is readily apparent, the prosecutor himself disproved the first theory since he adduced testimony which explained the meaning of the gestures without reference to gang behavior. (RT 783-784, 841-843.) Thus, the question remains as to whether the second theory had any validity.
As a starting principle, it must be conceded that “gang evidence is admissible if relevant to motive . . . so long as its probative value is not outweighed by its prejudicial effect. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 193.) However, given the “highly inflammatory impact” of gang evidence, trial courts must “carefully scrutinize such evidence before admitting it. [Citation.]” (Ibid.)
In the case at bar, it was presumably the People’s theory that appellant’s prior association with MVS was relevant to show that he intended to kill Mr. C for the purpose of revenge and not as an act of self defense. While this theory might be plausible in another case, it is not in the case at bar. This is so for two reasons.
First, in order to be admissible, gang evidence must be relevant. (Evidence Code section 210.) Since relevancy is a preliminary fact, it was the People’s burden to lay a foundation for the admission of gang evidence. (Evidence Code section 403, subd. (a)(1).) Here, there is no foundation.
In order for appellant to have the motive ascribed to him by the prosecutor, the necessary foundation is that he was, at the time of the incident, a person who had a gang mentality. There is quite simply no evidence to support this conclusion.
Insofar as the record shows, appellant associated with MVS members while living in Mountain View prior to 1995. (RT 1140-1143.) There is no evidence that appellant continued his association with MVS in the years between 1995 and the date of the incident in October 2000. On this record, the People simply had no foundation to claim that appellant had a motive consistent with gang ideology.
Although it is a somewhat different case, People v. Louie (1984) 158 Cal.App.3d Supp. 28 establishes this conclusion. There, the defendant was a physician who was charged with preparing a phony disability claim for a patient. In support of this charge, the People presented evidence concerning a statistical comparison of diagnoses contained on 196 disability claims certified by the defendant as compared to the same number of diagnoses certified by other doctors. In holding that the evidence was submitted without a proper foundation, the court reasoned:
“As the proponent of the evidence the prosecution had the burden of establishing preliminarily that appellant fraudulently diagnosed his other patients for whom disability claims were submitted. [Citation.] The prosecution made no such showing and therefore the evidence that appellant’s diagnosis in the present case was fraudulent was not capable of proof by the means which the prosecution employed.” (Louis, supra, 158 Cal.App.3d Supp. 28, 46-47.)
The same analysis is applicable here. The prosecution simply did not lay a foundation that appellant maintained a gang mentality in October 2000. The only evidence in the record is that appellant abandoned his association with MVS prior to 1995. Thus, gang evidence was flatly inadmissible in this case.
As a final point, it must be emphasized that evidence does not become admissible merely because a juror might be able to draw speculative inferences from an historical fact. (People v. Parrison (1982) 137 Cal.App.3d 529, 539; 1 Jefferson, California Evidence Benchbook (3rd ed. 2004) section 21.17 pp. 306-307.) If an inference is speculative at best, a sufficient showing of relevance has not been made. (Ibid.)
In this case, one might certainly speculate that appellant maintained the same mindset in 2000 that he had in 1994. However, since there was no factual basis to show that appellant was associated with a gang in the years preceding the shooting, there was simply an insufficient foundation for the admission of gang evidence.
Aside from the lack of foundation for admission of gang evidence, the evidence was inadmissible for a second reason. Given the significant prejudice which flows from the admission of gang evidence, it is inadmissible when it is cumulative to other properly admitted evidence. (People v. Cardenas (1982) 31Cal.3d 897, 904; People v. Ruiz (1998) 62 Cal.App.4th 234, 240.) Here, the gang evidence was entirely cumulative.
The People’s theory of the case was that appellant attempted to murder Mr. C in order to revenge the prior assault which had been committed against appellant and his brother. Given the readily understandable nature of this purported motive, the evidence of appellant’s long ago gang association was entirely cumulative to the fresh evidence concerning the July 2000 attack by the C brothers.
A comparison of this case with People v. Williams, supra, 16 Cal.4th 153 establishes the merit of appellant’s position. In Williams, a gang member who belonged to the Bloods was on trial for murder. The decedent was a man who had been wearing Crips colors at the time of his demise. Since there was no other discernible motive for the killing, the prosecutor was allowed to introduce gang evidence in order to demonstrate the enmity which existed between the Bloods and the Crips. In the words of the Supreme Court, gang evidence was properly admitted to establish “that the victim appeared to be a member of a gang which was a deadly rival of defendant’s gang. [Citation.]” (Williams, supra, 16 Cal.4th at p. 194.)
Obviously, the instant case is entirely different. The controversy between Mr. C and appellant was based on personal differences arising from prior fights. Unlike Williams, the jury in this case would have readily understood appellant’s purported motive to kill Mr. C without the necessity of hearing about their gang affiliations. Given this reality, evidence of appellant’s prior gang association was entirely cumulative and would have been excluded had defense counsel made a timely objection. (People v. Cardenas, supra, 31 Cal.3d 897, 905; accord, People v. Maestas (1993) 20 Cal.App.4th 1482, 1495.)
2. Assuming Arguendo That Evidence of Appellant’s Association with MVS Was Admissible, Defense Counsel Nonetheless Erred by Failing to Seek Exclusion of the Criminal Activities Committed by MVS Including the 1994 Drive-by Shooting.
The People presented three highly prejudicial pieces of evidence: (1) MVS has 75 members who have committed “attempted murders, assaults, and deadly robberies” (RT 1451); (2) appellant was aware that MVS members committed crimes (RT 1222); and (3) appellant was in a car with MVS members when a drive-by shooting was committed (RT 1223, 1442-1443). Without doubt, this evidence would have been excluded had defense counsel made a proper objection.
As is readily apparent, the criminal activities of MVS had nothing to do with appellant. As Officer Delaossa admitted, appellant was not charged as a result of the 1994 drive-by shooting. (RT 1445.) Indeed, appellant cooperated with the police by identifying the possible shooters. (RT 1443.) Similarly, in asserting that MVS members had committed attempted murders, assaults and deadly robberies, Lieutenant Ahearn made no claim that appellant had ever participated in these activities. Given appellant’s lack of culpability with respect to these crimes, the conclusion is inescapable that they would have been excluded upon defense objection.
As is well settled, other crimes evidence is strictly inadmissible unless it can be shown that it proves a fact at issue in the present case. (People v. Kipp (1998) 18 Cal.4th 349, 369.) Here, appellant played no part in the crimes committed by MVS. Thus, it necessarily follows that evidence of those crimes should have been excluded.
Assuming arguendo that the other crimes evidence was somehow admissible as some type of background fact regarding MVS, the fact remains that the evidence would still have been excluded upon proper motion under Evidence Code section 352. Even when other crimes evidence is relevant, the probative value of the evidence must be “substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, . . . .” (Kipp, supra, 18 Cal.4th 349, 371.) Little need be said on this point.
The People presented absolutely no evidence that appellant had previously committed a criminal act. However, by using a gang evidence theory, the People were able to sow the innuendo that appellant must be a bad person since he associated with gang members who routinely committed serious violent acts of a criminal nature. Obviously, the prejudice of the other crimes evidence strongly outweighed its probative value. (Kipp, supra, 18 Cal.4th 349, 371.)
In short, defense counsel dropped the ball when he allowed the jury to learn that appellant had previously associated with violent criminals. Had counsel acted effectively, the evidence concerning MVS’ members criminal behavior would have been excluded.
3. Defense Counsel Erred by Failing to Seek Exclusion of the Profile Evidence Which Matched Appellant’s Conduct.
Under the guise of offering expert testimony about gangs, Lieutenant Ahearn provided a “profile” of gang behavior which exactly matched the facts of the case. Lieutenant Ahearn testified that a gang member loses a great deal of respect when he loses a fight in front of his home and children. (RT 1455, 1457.) Indeed, losing a fight in front of one’s children is “the highest form of disrespect” to a gang member. (RT 1457.) After suffering such a defeat, a gang member would commit a “serious attack” in revenge. (RT 1458.) “A weapon would be introduced” in the revenge attack. (RT 1458.) It would be “advantageous” to use “a 9 mm handgun.” (RT 1466.)
As is readily apparent, Lieutenant Ahearn’s testimony neatly matched the facts of the case. By his own admission, appellant and his brother lost the fight in front of his home and children. Afterwards, appellant armed himself with a 9 millimeter gun. While appellant denied that he acted out of revenge or out of gang motives, Lieutenant Ahearn’s testimony effectively destroyed appellant’s credibility and allowed the jury to convict him because he acted like a typical gang member. Without doubt, defense counsel should have acted to exclude Lieutenant Ahearn’s profile testimony.
“A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime.” (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) Profile evidence is inadmissible to prove guilt. (Ibid.)
“[P]rofile evidence is inherently prejudicial because it requires the jury to accept an erroneous starting point in its consideration of the evidence. We illustrate the problem by examining the syllogism underlying profile evidence: criminals act in a certain way; the defendant acted that way; therefore, the defendant is a criminal. Guilt flows ineluctably from the major premise through the minor one to the conclusion. The problem is the major premise is faulty. It implies that criminals, and only criminals, act in a given way. In fact, certain behavior may be consistent with both innocent and illegal behavior, as the People’s expert conceded here.” (Robbie, supra, 92 Cal.App.4th at p. 1085.)
Lieutenant Ahearn’s opinion testimony constituted improper profile evidence. As Robbie indicates, a person might act either lawfully or unlawfully under a set of circumstances. However, one is not necessarily a criminal merely because he has the same trait as a criminal.
In this case, appellant’s behavior was subject to two competing and equally reasonable inferences. On the one hand, a disinterested observer might conclude that appellant armed himself with a “9 millimeter handgun” in order to exact revenge. On the other hand, another unbiased analyst might believe that appellant acted rationally by planning to protect himself against a threatened assault. Obviously, the use of Lieutenant Ahearn’s testimony completely tilted the jury’s view of the case by providing the “expert” view that appellant’s behavior fit the “profile” of an antisocial gang member.
The People are not entitled to try a defendant on the theory that his profile matches that of some other person. (Robbie, supra, 92 Cal.App.4th at p. 1085.) Here, the prosecutor sought to convict appellant on the proscribed theory that he acted as a typical gang member would under the same circumstances. Defense counsel erred by failing to have Lieutenant Ahearn’s testimony excluded.
4. Defense Counsel Erred by Failing to Seek Exclusion of the Evidence That Appellant Wore a Tattoo Prior to 1998.
During his cross-examination of appellant, the prosecutor adduced the fact that he had “Listo” (meaning ready) tattooed on his neck at one time. (RT 1224.) Appellant removed the tattoo in 1997. (RT 1225.) Although appellant indicated that the tattoo signified his desire to have a good time, the prosecutor asserted that the tattoo meant that appellant was “ready for action, ready to fight, . . . . (RT 1225.)
Evidence concerning the tattoo was inadmissible for the simple reason that it was entirely irrelevant. Although the prosecutor insinuated that the word “Listo” had a gang connotation, no such evidence was introduced. Thus, defense counsel erred by failing to make a relevancy objection. (People v. Luker (1965) 63 Cal.2d 464, 476-477 [evidence of spoon and hypodermic needle tattoo on defendant’s arm was irrelevant]; Ohio v. Huff (2001) 145 Ohio App. 3d 555 [763 N.E.2d 695, 703]; [evidence of tattoos of martini glass and crown on defendant’s body was irrelevant and prejudicial insofar as the prosecutor implied that the tattoos were proof of gang affiliation].)
Moreover, assuming arguendo that appellant’s tattoo was admissible evidence, it should nonetheless have been excluded since it had been removed over two years before the incident at issue. As appellant has discussed above (pp. 43-47, supra), any evidence of his gang association was too old to be deemed relevant. Since appellant’s tattoo had been removed well before the shooting, the conclusion is inescapable that it had no bearing on appellant’s mental state as it existed in October 2000.
The prosecutor introduced evidence of the tattoo for the sole purpose of prejudicing appellant’s cause. Defense counsel committed a significant error by failing to seek exclusion of the evidence.
5. Defense Counsel Erred by Failing to Obtain a Limiting Instruction Regarding the Purposes for Which the Jury Could Consider the Gang Evidence.
Upon request, defense counsel could have obtained a limiting instruction which would have advised the jury that it was not to consider the gang evidence for any purpose other than establishing appellant’s motive to kill Mr. C. (See People v. Bojorquez (2002) 104 Cal.App.4th 335, 341-342.) However, counsel failed to request such an instruction. Given the highly prejudicial nature of the gang evidence, the omission to request a limiting instruction was inexcusable. (United States v. Myers (7th Cir. 1990) 892 F.2d 642, 648-649 [failure to request a limiting instruction constituted the ineffective assistance of counsel].)
C. The Various Pieces of Gang Evidence Were Individually and Cumulatively Prejudicial.
Errors made by defense counsel are deemed to be prejudicial when there is “a significant but something-less-than 50 percent likelihood of a more favorable” result absent counsel’s inadequate performance. (People v. Howard, supra, 190 Cal.App.3d 41, 48.) In this case, an overwhelming showing of prejudice exists.
As several cases hold, gang evidence is deemed to be so “inflammatory” in nature that its erroneous admission must be deemed prejudicial. (People v. Bojorquez, supra, 104 Cal.App.4th 335, 345 and cases cited therein.) Thus, the mere fact that appellant was associated with a gang must be viewed as reversible error. Moreover, this conclusion becomes inescapable once the details of the gang evidence are closely examined.
The jury learned that MVS members had committed numerous violent felonies including a drive-by shooting. The prejudicial impact of this type of evidence needs no elaboration. (Bojorquez, supra, 104 Cal.App.4th at pp. 343-345 [reversal ordered where
the jury improperly learned that defendant belonged to a gang which committed crimes].)
If this was not enough, the jury also heard that appellant’s behavior matched the “profile” of a gang member who was bent on committing murder in order to exact revenge. Once again, this type of evidence bears enormous prejudicial impact. (People v. Robbie, supra, 92 Cal.App.4th 1075, 1088 [improper admission of profile evidence is “highly prejudicial.”].)
Finally, the absence of a limiting instruction could only have served to exacerbate the prejudice of the gang evidence. For all the record shows, the jury convicted appellant because they saw him as a dangerous gangbanger. Such a result cannot be tolerated. (Bojorquez, supra, 104 Cal.App.4th at p. 345 [judgment reversed since the court’s instructions did not address “the profuse” gang evidence in the case].)
Appellant presented the substantial defense that he used his gun in self defense since he was fearful that Mr. C was going to kill him. Unfortunately, the jury was distracted from its consideration of appellant’s defense by the highly prejudicial and irrelevant gang evidence produced by the prosecutor. On this record, the judgment must be reversed.
