PEOPLE v. CANADY

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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert CANADY, Defendant and Appellant.

No. E007822.

Decided: February 28, 1992

Rebecca Donaldson, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Janelle B. Davis, Supervising Deputy Atty. Gen., and John T. Swan, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

Defendant was convicted of transportation of a controlled substance in violation of Health and Safety Code section 11352 and possession of cocaine base for sale in violation of Health and Safety Code section 11351.5.   An enhancement as to both counts alleged under Penal Code section 186.22, subdivision (b)(2) was also found true.   On appeal he contends there was insufficient evidence to support his convictions for transporting and possessing cocaine.   He also contends that (1) the court erred in denying his motion to bifurcate the trial of the main offenses from the trial on the enhancement;  (2) Penal Code section 186.22, subdivision (b) is unconstitutional on its face and as applied because of vagueness and overbreadth;  (3) the court erred in admitting improper expert opinion evidence;  and (4) the court erred in refusing to give a requested defense instruction.

I

FACTS

On October 31, 1988, Riverside police officers Hurt and Beckman noticed a black Nissan two-door automobile stopped on Anderson Street.   The motor was running and the car was stopped approximately five to six feet from the curb.   Because the car appeared to be illegally parked, the officers stopped behind it and approached the car with Beckman going to the driver's side and Hurt to the passenger's side.   A young female was driving the car, a male was seated in the front passenger seat and defendant was sitting in the back near the center along with an 18–month–old baby.

As Hurt was standing near the passenger side, he noticed a napkin between the front passenger seat and the car door.   It appeared the napkin contained rock cocaine.   The occupants were ordered out of the car and when the passenger door was opened, the napkin fell to the ground.   Later tests indicated there were 9.33 grams of cocaine base.

At the time of the arrest, defendant identified himself as Bobby Jenkins, a name he had consistently given to the police on prior occasions unrelated to criminal activity.   Defendant had $510 in his pants pocket and the male in the front seat had approximately $554 in one of his socks.

II

THE TRIAL COURT FAILED TO EXERCISE ITS DISCRETION IN RULING ON DEFENDANT'S MOTION TO BIFURCATE AND THEREAFTER IN INSTRUCTING THE JURY TO DISREGARD ALL EVIDENCE OF DEFENDANT'S GANG AFFILIATION

Based on the foregoing evidence, defendant was convicted of both transportation and possession of cocaine for sale.   Defendant contends the evidence was insufficient to establish his guilt as to either crime.   As we explain, because of certain trial court errors, the evidence the jury was instructed it could consider on the underlying offenses was insufficient.   Accordingly, we reverse.

Prior to trial, defendant moved to bifurcate the trial on the Penal Code section 186.22, subdivision (b)(1) 1 enhancement from the underlying offenses, relying on Evidence Code section 352.   While some of the discussion of this motion apparently occurred off the record, it does appear that the court refused to bifurcate indicating that the “special allegation is much the same as the use allegation or G.P.I. [sic] allegation or any other special allegation.”   The court went on to state “And I will also point out, and Mr. West also raised, there may be some cross-admissibility of evidence here, I don't know.”   Defense counsel indicated that his understanding based on the in-chambers discussion was that the court believed the evidence of defendant's gang affiliation might be admissible not only to prove the special allegation but also the elements of the offenses.   The court agreed with defense counsel's understanding stating, “That's correct.   I did say that.   Again, I don't know how the evidence is going to unravel, but that may be a possibility.   I don't know.”

Having denied defendant's motion to bifurcate the enhancement from the underlying offenses, the court allowed the prosecution to present a substantial amount of evidence regarding the “For Tray Crips,” including evidence that both defendant and the male passenger in the front seat were members of this gang, evidence that in transporting cocaine the Crips usually travel in groups of two or more, evidence of other crimes committed by gang members, police officers' opinions that one of the primary activities of this gang was the distribution and sale of rock cocaine, evidence of rival gang killings, and evidence of the “higher powered weapons the gangs are carrying.”   Additionally one officer testified that the car was stopped on a street outside an apartment building in which another member of the gang lived.   In the officer's opinion the cocaine was in the process of being brought to that apartment to be cut up for further distribution.

At the conclusion of the trial, the court determined that none of the gang evidence could be considered in determining defendant's guilt or innocence on the transportation and possession charges.   On its own the court prepared a special instruction advising the jury that such evidence could only be used to determine if the gang enhancement was true and could not be considered on the transportation and possession charges or to prove that defendant was a bad person or that he is disposed to commit crimes.   The prosecution objected to the instruction, arguing that some of the gang evidence was highly probative with respect to the underlying offenses and could be used to explain what defendant was doing there in the car.   In overruling the objection the court stated, “I'm aware of the cases which have allowed in gang affiliation to establish identity of a perpetrator as well as oftentimes motive.   However, I'm also mindful of 352 of the Evidence Code, and if this were being tried in a vacuum, I doubt very seriously if I would have allowed gang evidence in this case․”

Thus after allowing the jury to hear a considerable amount of gang evidence, the court asked the jury to perform what can only be described as an impossible task of ignoring all of the gang evidence in deciding whether defendant was guilty of transportation or possession for sale.   While ordinarily we would presume the jury followed the court's instruction and ignored the evidence, here we cannot do so.

 Evidence of gang affiliation has been allowed in some cases when it is relevant to a disputed issue.  (See, e.g., People v. Burns (1987) 196 Cal.App.3d 1440, 242 Cal.Rptr. 573:  relevant to defendant's consciousness of guilt, motive and intent;  People v. Sawyer (1967) 256 Cal.App.2d 66, 63 Cal.Rptr. 749:  relevant to show motive.)   However, because of its possible prejudicial effect, the courts should exercise caution in allowing such evidence and should do so only after carefully balancing the probative value against the possible prejudice as required under Evidence Code section 352.  (People v. Cardenas (1982) 31 Cal.3d 897, 904–905, 184 Cal.Rptr. 165, 647 P.2d 569.)

 While no court as yet has held that a gang enhancement is analogous to a prior felony conviction and therefore must be bifurcated from the trial of the main offense under People v. Bracamonte (1981) 119 Cal.App.3d 644, 174 Cal.Rptr. 191, we believe at the very least the court should consider bifurcation upon request of the defendant and should be guided by the same principles employed under Evidence Code section 352.   Further guidance regarding factors to be considered can be found in Williams v. Superior Court (1984) 36 Cal.3d 441, 204 Cal.Rptr. 700, 683 P.2d 699 and People v. Balderas (1985) 41 Cal.3d 144, 222 Cal.Rptr. 184, 711 P.2d 480 regarding motions to sever.   By focusing on such factors as whether any of the gang evidence would be cross-admissible, what evidence is only relevant to the gang enhancement but if admitted in a trial on the main offenses might be unduly prejudicial, the trial court might well find that trying the gang enhancement after trial and conviction of the main offenses provides the best procedure for ensuring the defendant a fair trial.   By trying the underlying offenses first in a bifurcated proceeding, the court would also be better able to focus only on the elements of the offenses in ruling on objections to gang evidence.

 Here the trial court failed to exercise its discretion not only when defendant moved to bifurcate trial of the enhancement from the trial on the underlying offenses but also when it thereafter instructed the jury to not consider any of the gang evidence in determining defendant's guilt or innocence on the underlying offenses.   At neither time did the court even attempt to determine what evidence was relevant only on the enhancement issue and what evidence was relevant and admissible on the underlying charges.   Even if we assume that jurors might have been able to keep such evidence segregated in their minds had they been so advised from the beginning of the trial and as the evidence was received, this was not done.2  Waiting until the conclusion of the trial to advise the jury not to consider the evidence was too late.

III–IV **

V

DISPOSITION

The judgment is reversed.

FOOTNOTES

1.   This section authorizes the court to impose an enhancement of one, two or three years upon conviction of a felony if it is also established that the felony 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 gang members․”  A criminal street gang is defined as “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 [certain specified criminal acts] 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.”   (Pen.Code, § 186.22, subd. (f).)  To prove a “pattern of criminal gang activity,” the prosecution is required to present evidence that at least two of the specified crimes were committed.  (Pen.Code, § 186.22, subd. (e).)

2.   Although we do not decide whether any of the gang evidence was relevant to the underlying offenses as argued by the prosecutor, there was some merit to his contention.   Just as the court failed to consider the underlying offenses and the gang enhancement and the evidence relevant to each separately in ruling on the motion to bifurcate, the court failed to separate the evidence when it proposed its limiting instruction at the end of the trial.   If the trial court did not make the fine distinctions required, we cannot assume the jury limited its consideration of the gang evidence to the enhancement.

FOOTNOTE.   See footnote *, ante.

HOLLENHORST, Acting Presiding Justice.

TIMLIN and McDANIEL ***, JJ., concur.