People v. Mendez CA2/2

Filed 7/6/15 P. v. Mendez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B254376
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA399348)
v.
JESUS MENDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Ronald H. Rose, Judge. Affirmed.
Kim Malcheski, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and
Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
A jury found defendant Jesus Mendez guilty of first degree murder (Pen. Code,
§ 187, subd. (a))1 (count 1) and second degree robbery (§ 211) (count 2). In both counts,
the jury found defendant personally and intentionally used and discharged a firearm
causing death within the meaning of section 12022.53, subdivisions (b), (c), and (d). The
jury found defendant committed the murder while engaged in the commission of the
robbery within the meaning of section 190.2, subdivision (a)(17).
The trial court imposed a sentence of life without the possibility of parole for the
murder with the special allegation. The court sentenced defendant to the upper term of
five years for the robbery and stayed the sentence under section 654. The court imposed
a consecutive sentence of 25 years to life for the firearm enhancement in both counts
under section 12022.53, subdivision (d) and stayed the enhancement in count 2. The
court stayed the remaining firearm enhancements.
Defendant appeals on the grounds that: (1) The trial court committed reversible
federal constitutional error under the Fifth and Fourteenth Amendments by permitting the
prosecutor to elicit highly prejudicial testimony about his alleged gang membership and
tattoos; and (2) Defense counsel was ineffective under the Sixth and Fourteenth
Amendments for failing to object to the highly prejudicial testimony regarding gangs.
FACTS
Prosecution Evidence
On the morning of April 19, 2012, police officers responding to a call found the
body of Jamie Abuawad outside his SUV parked on West 81st Street in Los Angeles.
Abuawad died of multiple gunshot wounds. Abuawad was in the business of buying
gold. He employed two women to pass out his business cards on the street and house to
house in various Los Angeles neighborhoods. Abuawad would respond to telephone
calls from potential sellers of gold by immediately driving to meet them. He would pay
cash for the gold he bought.
1 All further references to statutes are to the Penal Code unless stated otherwise.
2
A resident of West 81st Street testified at trial that he noticed a young man sitting
on a wall outside his residence at approximately 11:00 a.m. on the day of the shooting.
The resident removed his trash cans from the street and went back inside his home.
Later, he looked outside and saw the young man talking on the phone. The resident went
back inside and shortly thereafter heard two or three gunshots in rapid succession. He
went outside and saw Abuawad lying on the ground. The resident described the young
man he had seen on the wall as being dark-skinned, slender, and having a tattoo on his
right cheek. He identified defendant as this man in a photographic lineup and at trial.
One of Abuawad’s employees testified that she and her coworker often distributed
cards in the neighborhood of West 81st Street where Abuawad was shot. Detectives
showed her a photographic lineup, and she selected defendant’s picture as someone she
recognized. She remembered seeing defendant on West 82nd Street, almost in the
location where the shooting occurred. She saw her coworker give him a business card
and speak with him.
Investigating detectives arrived at the shooting scene to find the SUV’s motor
running. The driver’s side and passenger side doors were open. Officers had found two
cell phones nearby in an alley. One was the victim’s and the other was found to belong
to an individual who had lost his cell phone some days before. The individual was
handicapped and had mental challenges. His phone had been used to call Abuawad four
times. Police looked at the other numbers called on the cell phone and traced some calls
to a young girl who was the sister of defendant’s girlfriend. She showed police some
pictures on another phone in her possession. One of the photographs was of defendant.
She identified defendant, who lived on West 80th Street, to police.
Defendant was brought to the police station for an interview. Detectives spoke to
defendant and then left him alone for a time. Defendant subsequently asked to speak to
the detectives. This interview was recorded and played at trial. Defendant told the
detectives, “I did it.” He said it was a robbery gone bad. He had telephoned Abuawad
and “set him up.” Defendant had been laid off and wanted the money. He robbed
Abuawad at gunpoint, and Abuawad tried to grab the gun, so defendant started shooting.
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He shot three times and made off with $300 and the victim’s phone. Defendant said he
sold the gun. He told the detectives, “I knew you guys had me,” and it was “just a matter
of time.” He said, “It just don’t feel good inside afterwards since he had a family. It’s
not the same.”
Detective John Ferreria testified that he and his partner, Detective Myra Kellum,
had previously presented defendant with the theme or scenario about a robbery gone bad
and defendant’s need for money. They had decided beforehand to say this as an
interview strategy. Detective Ferreria had defendant turn over his shoes at the interview
to compare them to a shoeprint found on the discarded cell phone in the alley. The
pattern was a match according to Detective Ferreria’s lay opinion.
Afterwards, Detective Ferreria placed defendant in a cell with an informant in
order to make sure that defendant’s statements were truthful. Their conversation was
recorded and played for the jury. The informant, called Mr. Johnson, asked defendant
where he was from. Defendant’s reply was inaudible, but Johnson replied, “F13’s?”
Defendant then asked Johnson where he was from, and Johnson replied, “Six Deuce
Brims.” When asked what he had done, defendant said “basically, I pled guilty for this
shit.” When asked if he was by himself, defendant said he was. He said he used a .380-
caliber gun. He told Johnson the detectives brought his “baby mama” in, and she was
crying. She said, “They told me they were going to take the kids away.” When asked if
the police had him for robbery-murder or just murder, defendant said he did not know.
Defendant said he hoped to get a deal. He was “just doing that shit to feed [his]
children.” He hoped to get out when he was “like 45.” When asked how he felt about
what happened, he replied that he “just didn’t think about it.”
Detective Ferreria testified that he never told defendant or anyone in his family
that he was going to take defendant’s children. Also, defendant never told the detectives
he was concerned they would take his kids. The detective, in response to the prosecutor’s
questions, explained terminology from the recorded conversation in the cell as well as
certain aspects of gang culture.
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Defense Evidence
Defendant offered no evidence in his behalf.
DISCUSSION
I. Admission of Testimony Regarding Gangs
A. Defendant’s Argument
Defendant contends the trial court abused its discretion and committed reversible
federal constitutional error under the Fourteenth Amendment by admitting highly
prejudicial testimony about the Florencia gang and defendant’s “Crip Killer” tattoo. Both
were irrelevant to the charges against him.
B. Relevant Authority
Relevant evidence is evidence “including evidence relevant to the credibility of a
witness or hearsay declarant, 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.) The trial court has wide discretion in determining the relevancy of evidence.
(People v. Garceau (1993) 6 Cal.4th 140, 177.)
Evidence pertaining to gangs and gang membership may be relevant to a number
of issues in a criminal trial (People v. Harris (1985) 175 Cal.App.3d 944, 957), as well as
to credibility (People v. Ayala (2000) 23 Cal.4th 225, 276-277). When such evidence
meets the test of relevancy, it is admissible unless the probative value of the evidence
clearly is outweighed by its prejudicial effect. (Evid. Code, § 352; People v. Williams
(1997) 16 Cal.4th 153, 193; People v. Cardenas (1982) 31 Cal.3d 897, 904-905
(Cardenas).) Evidence of a defendant’s gang membership generally creates a risk that
the jury will improperly infer that the defendant has criminal propensities, acted in
accordance with such propensities, and is therefore guilty of the charged offense.
(Williams, at p. 193.) The admission of gang evidence over an Evidence Code section
352 objection will not be disturbed on appeal unless the trial court’s decision exceeds the
bounds of reason. (People v. Williams (2008) 43 Cal.4th 584, 634-635; People v. Funes
(1994) 23 Cal.App.4th 1506, 1519.) Appellate courts rarely find an abuse of discretion
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under Evidence Code section 352. (People v. Ramos (1982) 30 Cal.3d 553, 598, fn. 22,
reversed on other grounds in California v. Ramos (1983) 463 U.S. 992, 997.)
Evidence Code section 1101, subdivision (a) may prohibit the admission of gang
evidence if it includes specific instances of a person’s conduct ‘“to prove his or her
conduct on a specified occasion.”’ (People v. Lindberg (2008) 45 Cal.4th 1, 22.)
Evidence Code section 1101, subdivision (c), however, provides that “[n]othing in this
section affects the admissibility of evidence offered to support or attack the credibility of
a witness.” To be admissible, the evidence ‘““must not contravene other policies limiting
admission, such as those contained in Evidence Code section 352.””’ (People v.
Harrison (2005) 35 Cal.4th 208, 229.)
C. Proceedings Below
Prior to the conclusion of Detective Ferreria’s testimony and the playing of the
recording of defendant’s conversation with the jailhouse informant, an Evidence Code
section 402 hearing was held. The trial court told defense counsel he could object if the
prosecutor failed to lay a foundation for the recording. Defense counsel also objected on
confrontation clause grounds. The trial court found the audio-visual recording
admissible, since the circumstances of its recording were no different than having the
detective inside the cell when it occurred. The defense could fully cross-examine the
detective.
Upon retaking the stand, Detective Ferreria explained that the detectives placed
defendant in the cell “[t]o gather more information and to test his statements to us during
our interview.” Detective Ferreria wished to verify if anyone else was involved in the
robbery and murder and, if so, his or her identity. He then explained that the recording
was done as he watched and listened. Defense counsel had no objections to the transcript
that was distributed to the jury, and the recording was played in its entirety.
After the viewing of the DVD, the prosecutor asked Detective Ferreria if he
recalled Johnson asking defendant, “you fittin’ to throw down with me?,” and the
defendant asking what was wrong with the building. The prosecutor elicited that Johnson
was a “male Black,” and suspects of African-American descent and Hispanics are not
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generally housed together. Defendant was expressing his concern about being in a cell
with Johnson. The prosecutor then noted a remark Johnson made about “F13” and asked
whether the detective had heard of that and how. Detective Ferreria responded that he
had previously “worked gangs,” and F13 meant Florencia 13, a Hispanic gang. Defense
counsel objected, and the trial court sustained the objection but called for a sidebar
conference. Defense counsel told the court that, in addition to the fact that Detective
Ferreria was not a gang expert, he was discussing gangs, which was completely and
grossly prejudicial to defendant.
When asked to state the relevance of the testimony, the prosecutor replied that she
wanted to reveal defendant’s lack of remorse in the conversation with Johnson. She
anticipated the defense would try to claim defendant showed remorse when he spoke with
the two detectives. The court stated it was inclined to allow the testimony only to show
defendant’s state of mind at the time he was speaking. Defense counsel asserted that the
jury should be informed that was the sole purpose of the testimony.
Before further testimony, the court told the jury, “Any testimony in regards to any
gang activity is admitted to show only the defendant’s state of mind at the time that he is
making this statement in the jail. It is not to be considered for any other purpose.” The
court overruled the prior objection.
The prosecutor then elicited that Detective Ferreria had previously testified as a
gang expert. He explained that the Florencia 13 gang is a predominantly Hispanic gang,
and the 6 Deuce Brims gang, claimed by Johnson in the recording, is a predominantly
Black gang. The two gangs were “neither friend nor foe.” The Florencia 13 gang’s rival
is the East Coast Crips. The prosecutor elicited the detective’s opinion that the “CK”
tattoo on defendant’s face stands for “Crip Killer.” The trial court overruled defense
counsel’s relevance objection, stating, “It is limited to that same purpose, only to show
the defendant’s state of mind at the time of the making of any statements.”
After several questions unrelated to gangs, the prosecutor asked Detective Ferreria
if he knew what a burner was. He said it was a gun, and he had heard the term when
talking with gang members. After several more questions, the prosecutor asked the
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detective if he had an opinion as to what the “18’s” were, which were referred to by
Johnson as being in the cells that day. The detective stated it meant the 18th Street gang
or a member of that gang. The prosecutor asked if Florencia 13 and the 18’s were
friendly or not, and the court overruled the defense relevance objection. The court denied
the defense request to approach. Detective Ferreria said the two gangs were currently
enemies and were enemies in June 2012, when defendant was arrested. Defense counsel
chose not to cross-examine Detective Ferreria, and the People rested.
Upon reading the jury instructions, the trial court gave the following instruction:
“During the trial, certain evidence was admitted for a limited purpose. You may consider
that evidence only for that purpose and for no other.” The court also told the jury, “You
may consider evidence of gang activity only for the limited purpose of deciding if [sic]
the defendant’s state of mind at the time he made those statements in the jail. You may
not consider this evidence for any other purpose. You may not conclude from this
evidence that the defendant is a person of bad character or that he has a disposition to
commit a crime.”
During closing argument, the prosecutor stated, “[W]e also learn through the
detective that there are politics that go on when it comes to being in custody . . . . And
when this defendant is placed in the cell with the informant, immediately he’s on
edge. . . . This defendant, as you know, is a gang member and he’s in a cell with another
gang member of African-American gang. All right. That is an issue. Now, you heard
about this defendant’s gang affiliation. You don’t convict him because he’s a gang
member. You obviously convict him because of the evidence in this case and the crimes
he committed, but you learn about what’s happening because it puts what this defendant
told the detectives in context and in tone. . . . [Y]ou start to see his true personality.
There’s none of that, oh, remorsefulness, oh, this just happened, woe is me, you know,
this is this robbery gone bad. That’s not what you hear. You hear what this defendant
tells this informant, which is, in no uncertain terms, I’m fucked . . . . And he goes on to
further say, well, yeah, . . . fuck it, though. It is what it is.”
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D. No Prejudicial Error
Defendant does not argue against admission of the recording of his conversation
with Johnson in the jail cell, but only Detective Ferreria’s testimony elicited by the
prosecutor after the recording was played for the jury. Defendant specifically objects to
the detective’s statements that he had investigated homicides involving the Florencia 13
gang and the meaning of the CK tattoo on defendant’s cheek. Defendant maintains that
the gang-related testimony was not relevant, it created a substantial danger of undue
prejudice and misleading of the jury, and it was inadmissible bad-character evidence and
other-crimes evidence under Evidence Code section 1101, subdivisions (a) and (b).
Furthermore, the testimony constituted a violation of his right to a fair trial under the
Fourteenth Amendment. The court’s limiting instruction was flawed and did not cure the
prejudice.
The only issue in this case was whether defendant was guilty of first or second
degree murder. The prosecutor argued defendant intended to shoot Abuawad so as not to
leave any witnesses. The defense argued there was no evidence he planned to kill the
victim, and it was a robbery gone wrong, just as defendant said. There were essentially
two ways the defense could obtain the desired second degree murder verdict: by proving
that defendant did not premeditate and deliberate the murder, or by an exercise of
leniency on the part of the jury. (See People v. Lewis (2001) 25 Cal.4th 610, 656
[verdicts reached on basis of lenity, compromise, or mistake are not invalid].) In addition
to arguing that there was no evidence that defendant planned to kill the victim, counsel
argued that defendant was remorseful and quoted Detective Kellum’s words praising
defendant for having a conscience and feeling bad about the crime. He began argument
by noting that defendant had lost his job, had small children whom he could not feed, and
was in the country illegally and unable to obtain social services. As a result, he “made
the worst mistake of his life.” Counsel asked the jurors not to be passionate and angry
and to find it was a case of second degree murder.
The prosecutor clearly anticipated this strategy and, for this reason, was relying on
defendant’s conversation with Johnson to reveal a lack of remorse on defendant’s part.
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Remorse is not a defense, as defendant points out, but it can send a message to the jury
that elicits sympathy on the part of some of them. In this case, defendant’s attitude
toward his crimes is ultimately a credibility issue—an issue to which gang evidence is
recognized as relevant. (People v. Ayala, supra, 23 Cal.4th at p. 277.) We note that
defendant insists that the trial court erred in finding the evidence relevant based on
defendant’s state of mind during the conversation, arguing that the only state of mind that
was relevant was the state of mind defendant had when committing the crimes. Clearly,
the trial court was not referring to the mens rea element of the crimes defendant
committed but rather his “state of mind” in the ordinary sense of the words, i.e., what he
really thought about the crimes he committed and his confession, as revealed by his
conversation with Johnson.
Furthermore, the prosecutor did not seek to elicit the detective’s statement about
having investigated F13 murder cases—this fact was blurted out as part of the detective’s
recitations of his qualifications to testify about gangs. Defense counsel had objected not
only about the mention of gangs but also about the fact that the detective “is not a gang
expert to start with.” When permitted to continue with her direct examination of
Detective Ferreria, the prosecutor asked the detective the basis of his knowledge, and he
replied it was from “[h]aving worked gangs in ’99 to 2003 dealing with Hispanic gangs
and then when I was assigned to criminal gang homicide division, I’ve had homicides
dealing with Florencia 13. And I’ve worked at criminal gang homicide division from
2008 again until my retirement in 2013.” The remark about murders was thus buried in
the detective’s recitations of his qualifications to testify as an expert. He did not “go out
of his way to mention several homicides” involving Florencia 13, as defendant asserts.
Moreover, we do not believe the detective’s remarks constituted a violation of
Evidence Code section 1101, subdivision (a), as defendant claims. The remark about
having investigated murders involving F13 was made in the context of the detective’s
experience, and no specific crimes were mentioned. The explanation of the letters “CK”
tattooed on defendant’s face was by way of explanation of Johnson’s attempts to calm
defendant down so that defendant would talk to him. Johnson repeatedly says defendant
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should not “be tripping” because Johnson was not “tripping” on defendant. Johnson
explained he was more concerned about his problems as a three-striker and said, “I see
the CK and all that shit. I ain’t with all that shit, man. I’m a Brim. I’m a Blood. A bang
Blood. Ain’t got nothing to do with whatever. I understand what goes on with us and
you-all. But up in here, we men. You know what I mean?” Johnson’s remarks were
meaningless without an explanation that “CK” meant Crip Killer, and that Johnson was
not affected by that tattoo, since he was a Blood, and hence not defendant’s enemy. The
detective’s explanation of the meaning of “CK” did not constitute other-crimes evidence
or bad-character evidence in violation of Evidence Code section 1101, subdivision (a).
Detective Ferreria had nothing more to say about defendant’s tattoo after stating what, in
his opinion, it meant. He at no time insinuated that defendant’s tattoo implied he had a
disposition to commit the instant crime, and the prosecutor’s questioning moved away
from gang relationships at that point.
With respect to the prosecutor’s argument, she never suggested the robbery was a
gang operation. Her only mention of defendant’s gang affiliation during closing
argument was to reiterate the circumstance that Johnson was not the type of person one
would expect to be defendant’s confidante. The prosecutor specifically stated to the jury,
“You don’t convict him because he’s a gang member. You obviously convict him
because of the evidence in this case and the crimes he committed.” The prosecutor
added, “[y]ou learn about what’s happening because it puts what this defendant told the
detectives in context and in tone. . . . [Y]ou start to see his true personality.” Unlike
defendant, we do not believe that by the words “true personality” the prosecutor meant
defendant’s disposition for committing the instant crimes, but rather his apparent
callousness and self-absorption. Contrary to what he told the officers, defendant was
more concerned about getting a deal by confessing up front than about his victim’s
family. Furthermore, the trial court twice instructed the jury that the sole purpose for the
gang evidence was to evaluate defendant’s state of mind.
In any event, we conclude defendant was not unduly prejudiced by the testimony
to which he objects. “Evidence is not ‘unduly prejudicial’ under the Evidence Code
11
merely because it strongly implicates a defendant and casts him or her in a bad light . . . .
Instead, undue prejudice is that which ‘uniquely tends to evoke an emotional bias against
a party as an individual, while having only slight probative value with regard to the
issues.’ [Citations.]” (People v. Robinson (2005) 37 Cal.4th 592, 632, fn. omitted.)
Defendant did not dispute that he shot Abuawad. He admitted his crimes in two
recordings played for the jury. Defendant’s planning of the robbery, his taking of a
loaded gun to confront Abuawad, and his leaving him for dead while taking with him
incriminating evidence sufficiently revealed defendant’s willingness to commit violent
acts. The two points defendant most disputes were tangential to the bulk of the
detective’s testimony and to the recording of his interaction with Johnson. (See People v.
Luparello (1986) 187 Cal.App.3d 410, 426-427 (Luparello) [finding a lack of prejudice
despite prosecutor’s misconduct in a nongang case by eliciting testimony about the
violent activities of the appellant’s gang].) As in Luparello, considering the
circumstances of defendant’s crimes, “evidence connecting [defendant] to a violent street
gang— although hardly desirable from [defendant’s] point of view— did not have the
impact it might otherwise have had.” (Ibid.)
The cases defendant relies upon are distinguishable. In Cardenas, supra, 31
Cal.3d 897, the issue was whether the appellant committed the crime, and the testimony
was “sharply conflicting.” (Id. at p. 901.) The identification testimony contained many
discrepancies, and the appellant had an alibi. (Id. at pp. 902–903.) The prosecutor
attacked the credibility of defense witnesses by eliciting testimony that the appellant and
they were all members of the El Monte Flores gang. (Id. at p. 903.) The Cardenas court
held that the trial court abused its discretion by allowing the introduction of the
appellant’s gang affiliation. (Id. at p. 904.) The court found that the evidence was
cumulative and of minimal probative value in that it was offered only to establish the
witnesses’ bias, when other evidence already showed the witnesses were the appellant’s
friends and fellow boys club members. (Ibid.) On the other hand, there was a substantial
danger of undue prejudice in the form of the jury inferring the appellant had a criminal
disposition because the gang committed crimes and he was a member. (Id. at p. 905.)
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In the instant case, unlike in Cardenas, the evidence of which defendant complains
was not cumulative to any other evidence. Furthermore, defendant admitted to his
crimes, and the only issue was whether the murder was of the first or second degree. As
we have stated, there was no substantial danger of undue prejudice from Detective
Ferreria’s brief remarks. One was a passing reference to having investigated homicides
that involved F13 by way of establishing his credentials as a gang expert. The reference
to the meaning of the CK tattoo was not prejudicial, since it was established that
defendant had used violence to achieve an end. The testimony did not insinuate the
robbery and murder were a gang operation.
People v. Maestas (1993) 20 Cal.App.4th 1482, relied upon by defendant, could
not be more distinguishable from defendant’s case. In that case, the court found the
erroneous admission of gang evidence was prejudicial because the evidence of guilt was
weak and the “gang-violence-fear-retribution testimony and argument was pervasive.”
(Id. at p. 1498.) The case was a “‘whodunit’” and only the victim’s extremely flawed
identifications pointed to the defendants. (Id. at pp. 1498, 1499.) The alibi defense was
“strong and unrebutted,” and the prosecutor “had no coherent theory of guilt.” (Id. at p.
1499.) There was gang-expert testimony comprising 47 pages of the reporter’s transcript.
(Id. at p. 1500.) Maestas does not aid defendant’s case.
In Luparello, the court stated that the prosecutor in that case used a witness’s
innocuous description of headgear worn by one of the perpetrators (who said it was ‘“like
the F-Troopers . . . wear”’) in order to pose a barrage of leading questions to a police
officer regarding the officer’s experience with the F-Troop gang. (Luparello, supra, 187
Cal.App.3d at pp. 423–426.) According to the Luparello court, the prosecutor “attempted
to inform the jury by innuendo not only that F-Troop was a street gang whose members
were suspected of committing homicides and other violent attacks on persons, but also
that the gang was likely connected to the case in such a way that its members had
threatened a material witness.” (Id. at p. 426.)
The evidence provided in the instant case bears no comparison to the evidence
embedded in the prosecutor’s leading questions in Luparello, to which the officer merely
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replied, “Yes, sir.” Here, Detective Ferreria’s brief mention of having investigated
murders committed by the F13’s among other crimes and his opinion on the meaning of
defendant’s tattoo did not seek to inform the jury by innuendo that the gang was
connected to Abuawad’s murder or that defendant’s membership in a violent gang
indicated he was disposed to violence. As noted previously, the Luparello court held that
the prosecutor’s apparent misconduct was nonprejudicial because the evidence of the
preparation for the crimes showed the appellant’s willingness to use weapons and commit
acts of violence. (Luparello, supra, 187 Cal.App.3d at p. 426.) The Luparello court also
cited the trial court’s cautionary instruction, which, although different from the limiting
instruction in the instant case, was one of the circumstances showing that it was not
reasonably probable the jury would have reached a more favorable verdict in the absence
of the misconduct. (Id. at p. 427.)
Having found defendant did not suffer undue prejudice from Detective Ferreria’s
brief testimony about defendant’s tattoo and his experience with the F13 gang, we
necessarily conclude defendant suffered no violation of his right to due process and a fair
trial under the Fourteenth Amendment. Due process is violated only if there are no
permissible inferences the jury may draw from the evidence. (People v. Albarran (2007)
149 Cal.App.4th 214, 229.) Here, the admission of gang evidence was relevant to the
principal issue in this case and was not unduly prejudicial. We also conclude defendant’s
trial counsel was not ineffective for failing to object on every possible legal ground
defendant raises on appeal. (See Strickland v. Washington (1984) 466 U.S. 668, 697 [A
reviewing court “need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.”].)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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