*1 July 21870. Nо. 1982.] [Crim. PEOPLE, and Respondent, Plaintiff
THE CARDENAS, Appellant. Defendant and BENJAMIN JAMIE *4 Counsel Gerstein,
Robert S. Court, under appointment by Supreme for De- fendant and Appellant. Philibosian, General, Chief Robert H.
George Deukmejian, Attorney General, Moore, Clark Assistant Gener- Attorney Assistant S. Attorney al, Hahn, R. Norman H. Sokolow and William V. Ballough, Gary General, for Plaintiff and Respondent. Deputy Attorneys Opinion the admissibil- concerning raises two
BIRD, questions C. J. This case the trial court have trial. Should criminal appellant’s of evidence ity membership the common concerning excluded testimony addition, In was evidence witnesses in a youth gang? defense his in an attempt prove narcotics admissible addiction to appellant’s offenses? guilt charged
I. Appellant Cardenas was convicted of murder in Benjamin attempted (Pen. Code, 187);1 the first attempted (§§ degree robbery §§ 211); and assault with force to produce deadly weapon likely (a)). The trial court sentenced great bodily (§ appel subd. injury lant for the term for murder and a prison upper attempted *5 consecutive term for Each sentence was enhanced attempted robbery. 12022.5), aby (§ attempted of firearm use and the finding robbery term was enhanced a finding great infliction bodily injury 12022.7). (§ To avoid the of section multiple punishment proscriptions 654, the court no term for assault with a imposed deadly weapon. Ap total 13 2 pellant’s prison sentence amounted to months. years, The issue at trial was whether was appellant’s appellant perpetra- tor of the was sharply conflicting. crimes. The testimony Blacksmith, (Steve)
Leo and Van Mierlo were Morgan, Steve Larry in a 7-Eleven store at 6 one when a man with a working p.m. evening entered and all three men lie face-down on the gun ordered floor. (the and saw the man five Morgan store Blacksmith for manager) ten at seconds before with his order. Steve “took complying glance” the man for one The man commanded Steve to the store open second. safe, However, back, was shot in the and a complied. Steve Morgan intruder, ensued between Blacksmith and the who struggle eventually indicated, statutory further references are to the Penal Code. 1Jnless otherwise all Paul to be happened riding his and fled. Steve’s brother dropped gun the store as these events were He saw past occurring. bicycle man, the back of the who into a car and drove jumped away. the robber as 5'7" tall and Morgan weighing described pounds. Steve stated tall and the robber was 5'9" Blacksmith also pounds. estimated the man’s or 5'9" and set the 5'8" at 170 to height weight and Blаcksmith said the intruder was pounds. Morgan clean shaven. testified he had Steve a moustache and beard.
Appellant was arrested for the five after its robbery attempt days commission. When he was booked into listed his jail, police height as 5'2" and his weight pounds. drime,
During week the three store following employees Paul were shown bicyclist photographic lineups consisting mug Blacksmith, Steve, shots. and Paul out pointed appellant’s photograph but indicated were it they depicted uncertain robber.2 saw Morgan two but made no identification the first time. In photographic lineups, stead, he indicated that a shot of someone other mug than appellant had characteristics similar to those of his assailant. later re Morgan viewed another and selected photographic lineup appellant’s photograph on this occasion. crime, Steve, Blacksmith,
Twelve after the days and Paul attended a Blacksmith lineup. selected but was uncertain he as- sailant. The other two were Steve based his positive. identification on between hair and moustache similarity appellant’s and the hair and moustache of the assailant. Paul could not he had initially explain why Later, selected appellant. he testified that he picked appellant out by *6 his back when viewing appellant turned around Mor- during lineup. was shown a gan subsequently videotape but was unable lineup, to make identification. He indicated that in the any someone lineup other than resembled appellant his assailant. All four witnesses identi- fied at the trial. appellant
Appellant to establish that he was sought perpetrator not Reeves, Three witnesses —Robert and robbery attempt. Elizabeth 2Paul testified before he any and his brother Steve viewed photographs, the lat- replied know, ter had asked him what the intruder looked like. Paul he had that he did not responded seen the man’s back. Steve that the robber was “kind of’ heavy, had black hair and wore a beard. Steve Valenzuela —testified that appellant the Reeves’ visiting home at the time of the commission crime. Other witnesses Ozaeta and —Tony sister-in-law) Cardenas Virginia (appellant’s —tes- tified to appellant’s whereabouts earlier that day.
The prosecutor was permitted to attack the of the defense credibility witnesses by eliciting from them that testimony appellant were they members of a youth gang known as El Monte “group” Flores. Two of the male witnesses were asked to exhibit to the their tattoos on their forearms and hands. The prosecution also to sought introduce evidence that there were other in the town of El “groups” Monte and that the members of those were not “groups” welcome to the El “join” Monte Flores gang.
The prosecutor was permitted also the trial court to elicit testimo- ny concerning appellant’s narcotics habit to establish that had tried to rob the store to obtain money that habit. Mark support How- ard, a police officer with the El Force, Narcotics Task testified Monte that at arrest, the time of his pupils were dilated and his elbows showed recent puncture wounds and scar tissue related to heroin use. The old tissue, scar said, Howard showed that appellant had been addicted to heroin over a long period time. Howard had had ten to con- twenty tacts with appellant over the previous five to six On at years. least one occasions, of those appellant had been arrested for under the in- being fluence of a controlled substance. Howard also testified that puncture wounds indicated that appellant had been recently “strung out,” that it “looked like it was recent that he very [appellant] began use a lot Howard frequently.” estimated the cost of habit appellant’s $25 “minimum of $75 and maybe up to per day.”
The prosecutor questioned Robert Reeves and Gus Collinsworth (ap- pellant’s parole officer) about appellant’s narcotics use. Reeves said that appellant had been in previously a “detox” program. Collinsworth stat- ed that he knew about appellant’s drug problems because appellant had asked for assistance in obtaining trеatment.
II. Appellant contests the admission at his trial of the con- testimony *7 cerning gang membership use. He drug claims that the trial court should have excluded the evidence of common in the El membership Monte Flores on the gang basis of Evidence Code section 352. raised, “must the trial court is a section 352 objection
When in of terms carefully evidence challenged] the admission weigh [the than the poten the evidence is greater value of whether the probative the defense.” would have on effect its admission tially prejudicial 619].) 114 Perez v. (People value, the trial court the probative effect outweighs If the prejudicial that relevant rule fundamental should exclude the evidence. [is] “[T]he its effect prejudicial is outweighed by probative evidence whose v^lue Cal.2d Haston (People should not be admitted.” 419, 444 91].) P.2d its discretion case, by allowing trial court abused In this witnesses were and his appellant evidence that to introduce prosecution gang. with the El Monté Flores youth affiliated minimal at evidence was membership The value of the probative gang of the defense to establish bias possible best. The evidence was offered that the prove prosecution sought witnesses in favor of appellant. same and “had neighborhood” witnesses and appellant “livefd] However, facts had been am already friends.” these the same circle of his prosecutor began established other before ply testimony wit affiliations. All of the defense into the witnesses’ inquiries gang lived in same friends of appellant nesses testified that were they the male witnesses and also be appellant as he.3 Each of neighborhood Club where Boys they plаyed to the San Gabriel longed Valley basketball. evidence, have been no doubt in the
On the basis of this there could were and his male witnesses appellant neighborhood minds that jurors’ were also members of fact that and the witnesses appellant friends. The little to further the prosecu- the Flores was cumulative and added gang witnesses were biased because of tion’s objective showing (See Jefferson, Cal. Evidence their close association with appellant. (2d 1982) 22.1, 589.) Benchbook ed. § have limited evidence membership
Not did the common undue value, created a substantial danger but its admission probative with was also witnesses were in close association 3The fact that the defense example, the wit- aspects personal his life. For familiarity with evident from their just for the jail prior to his arrest appellant hаd been released from nesses knew that head, that his nick- frequently wore a blue beanie on attempted robbery, that he was Alfredo. “Shorty,” and that his brother’s name name was *8 was a prejudice. There real that the would infer danger improperly that (1) a criminal appellant had because the El Monte Flo- disposition (2) acts; res was a such commit and youth gang; criminal gangs appellant was a member of the gang. Flores California,
In Southern Chicano have received wide- gangs youth media spread for their criminal In this publicity purported activities. case, the did prosecutor not refer to the El specifically Monte Flores as However, a youth gang. jury undoubtedly identified group such, either from their personal or from their knowledge in-court obser- vations of the witnesses’ age, ethnicity, tattoos. prosecution has nо right present cumulative evi
“[T]he dence which creates a danger substantial of undue to the prejudice defendant.” De La Plane (People Yet, Cal.Rptr. 843].) this is what precisely occurred during appel
lant’s trial. Admission of the evidence of common gang membership constituted an abuse the trial court’s discretion under Evidence Code section 352.
In discretion, addition to this abuse of error also occurred when the prosecutor’s El inquiries the Monte Flores concerning went be- gang yond merely ascertaining whether witnesses were members particular occasions, On at least gang. two the prosecutor posed questions which exceeded the asserted for which he had purpose admission sought of the gang membership evidence.
Over defense objection, the prosecution to elicit from defense sought witness Tony Ozaeta members another El Monte “group,” Hicks, were not welcome to join the Flores This line of gang. question- had ing no relevance to the witnesses establishing Moreover, were close it to the hostilities suggested associates. jury that existed between the two Given the youth gangs. widespread publicity violence between rival concerning well have youth gangs, jury may assumed that members of the Flores were accustomed to using violence to further their interests.
Even more serious was the line of which left prosecutor’s questioning impression that attempted robbery 7-Eleven store was a gang operation. One prosecution witness testified that he thought assailant had been driven from the scene in a attempted robbery light blue Volkswagen. asked one prosecutor defense witness
906 witness, When the who Volkswagen. of his friends owned a any
whether member, responded affirmatively, admitted he was a Flores gang had these were members of whether of friends prosecutor queried any the court sustained defense counsel’s ultimately the Flores The trial gang. However, the the question. and witness did not answer the objection, was robbery prosecutor attempted advanced suggestion with a remained operation jury. gang
Thus, in of the trial court’s error evidence common admitting in membership gang compounded by prosecutor’s the Flores was that the was involved in criminal activi- inquiries broad suggesting it a jury ties. These made near viewed questions certainty as more to have committed violent offenses likely charged in the him because of his Flores against membership gang. concerning also of evidence Appellant admissibility contests here is that evidencе applicable use addiction. rule drug it “tends of an accused’s narcotics addiction is inadmissible where a fact in the prove or an material remotely insignificant degree (See 156, (1965) 233 161 case . . . v. Davis People Cal.App.2d [43 357].) Cal.Rptr. an accused’s
Prior cases the admission of evidence of upheld have was with a violation of charged narcotics addiction where accused was the direct obtaining the Health Code or where narcotics Safety (1979) Cal.App. of the v. Morales 88 crime object (People committed. 259, of v. Cal.Rptr. heroin]; People Cope 3d 264 [possession [151 610] (1959) 713, of 169 P.2d Cal.App.2d [forgery drug land 715 [338 1] (1949) 754 v. 92 Cal.App.2d O’Brand prescription]; People [207 However, narcotics].) P.2d of to steal drugstore [burglary 1083] money where the offense to obtain charged cases object use narcotics, narсotics has an item other than evidence of the accused’s (1967) 256 v. Cal. been inadmissible. Bartlett uniformly (People found of from ser plugs App.2d spark 793-794 503] [theft [64 Davis, 233 161-162 Cal.App.2d pp. v. station]; vice supra, v. liquor store]; People Enriquez of from [robbery money of [attempted robbery money Cal.App.2d 889] Cal.App.2d v. Guiterrez store]; People from grocery store].) [áttempted burglary clothing 122-123 P.2d 291] found, value to “probative court the evidence’s show As Bartlett its to incite to resolve the far outweighed by tendency motive [is] issue or innocence on guilt character rather than on [an accused’s] Bartlett, the crime.” (People proof the essential elements supra, 794.) at *10 The impact of narcotics “upon addiction evidence a jury laymen of catastrophic.... It cannot be doubted that the is public generally [is] influenced with the of seriousness the narcotics problem ... has been to loathe have taught those who to do with anything illegal narcot- Davis, ics in any form v. any extent.” (People supra, 233 161.) at case, In this prosecution to introduce permitted evidence of appellant’s narcotics addiction to establish financial motive the at- for tempted of the 7-Eleven robbery store. witnesses testified at great length about arrest, appellant’s physical condition the time of his length of narcotics, time had appellant been and the using alleged size and value of heroin appellant’s habit.
This tended testimony “only remotely” prove that appellant had committed the attempted robbery money from the 7-Eleven addition, store. In the probative value of the evidence was substantially outweighed by effect of inflammatory оn the testimony jury. Hence, admission of the testimony concerning appellant’s use of narcot ics was improper.
III. Appellant next contends that the cumulative prejudice from resulting the trial court’s erroneous evidentiary requires rulings reversal conviction. The record of the trial this supports contention. Absent the errors, several it is evidentiary reasonably probable that the would jury not have convicted of the (People v. Watson offenses. charged (1956) 818, 46 Cal.2d 836 P.2d 243].) [299
The prosecution’s case against appellant was not overwhelming. The jury deliberated for 12 hours before its returning guilty verdicts. This court has held that jury deliberations of almost six hours are an indica- tion that the issue of is guilt “open not and shut” and strongly suggest in errors (See admission of evidence are prejudicial. People v. Woodard (1979) 329, 23 Cal.3d 536, 590 P.2d [152 Here, 391].) the jury deliberatеd twice Woodard, as the in long a graphic demonstration of the closeness of this case. introduced prosecution evidence incriminating
The testimony eyewitnesses.4 was the identification against appellant recognized Court have Supreme States this court and the United Both (United States are often unreliable. identifications eyewitness 1158, 87 S.Ct. L.Ed.2d 388 U.S. Wade 30 Cal.3d 1926]; v. Bustamante 927].) P.2d Wade, eyewitness vagaries noted Supreme As the Court “[t]he rife with well-known; of criminal law are the annals identification are Mr. Justice Frank- identification. instances of mistaken omitted.] [Fn. testimony even ‘What is the worth of identification furter once said: un- proverbially is strangers when uncontradicted? The identification *11 Wade, (United U.S. supra, States trustworthy. .. .’ [Citation.]” espe- identifications are p. 1158].) at L.Ed.2d at Eyewitness a a race or where the witnesses member of cially idеntify unreliable Note, (See, Eyes their Did Your De- e.g., ethnic other than own. group on the Testimony Unreliability ceive You? Psychological Expert 982; Sobel, (1977) 29 Eye- Stan.L.Rev. Eyewitness Identification (2d 1981) ed. witness and Practical Problems Legal Identification: 9.7(b).) § this
In addition the nature of the identifications in to cross-cultural case, raise doubts about the ac other considerations further compelling First, the witnesses’ estimates of testimony. of the identification curacy 5'9") (5'7" did approximate to not the height closely the assailant’s (5'2"). in Each witness testi booking listed for the file height appellant as the fied that the assailant least as tall witness himself.5 was Indeed, was Blacksmith to the that he unable to re explained police shooting strain the their after the because the suspect during struggle The foot be discrepancy he. about one-half suspect larger than gun that would-be robber had sought appellant to the the prosecution 4The to link gun by Rodriguez Hernandez and The was owned a Jose 7-Eleven store. dropped at the August approximately in five months him son Joe from had been taken later, gun disappeared Joe’s home. the from robbery. Two weeks attempted prior the giving appellant but investigator appellant he denied a that knew police admitted to Joe appellant as of the 20 to 25 friends and associates identify one weapon. He did not in weapon his home. presence knew of the who yet suspect a appellant was not in sought that prosecution also establish when, commission, parole he told his officer that days its attempted robbery two after However, explained a that on linking defense witness him to crime. police were crime, whether police stopped officer him asked following an El Monte day robbery. day, the same the witness attempted Later involved in the appellant had been suspicions to appellant. reported the officer’s tall, 5'8". Morgan are 5'7" Steve Van Mierlo 5Both and Blacksmith tween the witnesses’ estimates and appellant’s size strongly suggests the witnesses’ that in-court identifications least, were mistaken.6 At the there was close question a and difficult for the this appellate —not court —to resolve. in-court identifications were unre-
Another factor suggesting Two is the as to whether the assailant had facial hair. liable conflict shaven, a third indicated that the assailant was clean eyewitnesses that he wore a moustache and beard.
Further, few in the observed the robber for a sec- witnesses store Paul, the passing bicyclist, onds under stressful conditions. extremely store at Added to saw the robber’s back he fled from the dusk. this is the fact the witnesses had difficulty positively identifying from and a to the trial. Not appellant lineup prior shot folders mug witness identified with single certainty. consistently Thus, the record reveals that the identification testimony upon which the prosecution based its case was inconsistent. The case was close. The prosecutor recognized this fact when he stressed in continually his clos- *12 ing argument that appellant was a narcotics addict and was affiliated with the El Monte Flores On gang. occasions, several the prosecutor re- minded the jury that appellant and his witnesses were members of the Flores and insinuated that the Flores organization was not simply an in- nocent group of youths in living the samé neighborhood.
The prosecutor also discussed appellant’s heroin eight addiction sepa- times, rate that arguing in appellant’s motive attempting robbery was to obtain money support habit. of the Typical tone con- tent of the argument is the following excerpt: is a appellant] “[The user that needed He money. couldn’t it from the get govern- [heroin] ment, he had to it get somewhere.” Davis, supra, Cal.App.2d 156 is closely on point. In
both case, Davis the present the prosecution relied almost entirely on identification and testimony defense asserted an alibi. The only error committed during the Davis trial was the prosecutor’s introduc- discrepancy 6This great in size seems too explained by to be possibility that the shoes, would-be robber could wearing high-heeled have been suggested by pros- event, any ecutor below. In none the prosecution witnesses observed size heels on the assailant’s shoes. tian of evidence that the accused was under the influence of narcotics Nevertheless, when arrested several after the days robbery. Davis court found and reversed the since the readily prejudice judgment jury have might inferred from the evidence that Davis was an her habitual (Id., 160-161.) oin user. at pp.
Here, trial, several errors occurred appellant’s and each one of during these was more than the error found in prejudicial single Davis. Not did only Officer Howard describe to the jury condi- appellant’s physical arrested, tion when but the officer testified specifically appellant was an habitual who had increased his narcotic. user heroin intake around the time of the attempted This with robbery. testimony, coupled officer’s parоle statement had asked appellant for two money after the days made it even more robbery attempt, likely jury based its guilty verdicts on the admitted evidence. improperly Davis,
Unlike the did not appellant’s jury have to draw any inferences to reach the conclusion that was an appellant addict. Howard’s marked as an addict and testimony explicitly appellant member, two facts gang supported prosecution’s which sole explana- tion as to to rob a 7-Eleven why attempt store. would
Had the pertaining appellant’s evidence narcotics addiction admitted, and affiliation with the Flores not been it is reasonably probable that a result more favorable to appellant would have been reached should not have been jury. Appellant convicted of at tempted robbery because he a heroin addict a member of a and/or Chicano He should have been convicted if sufficient evi gang. *13 dence was presented to that he committed the crimes. Since it is prove that reasonably probable the made its determination of based guilt on status as a heroin addict and a Chicano member appellant’s crimes, than on evidence him rather to the the connecting judgment conviction must be reversed.
IV. Appellant raises three claims additional of error. the con- Although viction must be reversed on the basis of the errors discussed evidentiary above, these issues are addressed for the of the trial guidance court on retrial. contends the court in that ar-
Appellant finding that trial erred the officers had to he resting probable cause arrest him. Accordingly, claims the identifiсations which were the fruits of his photographic should arrest be suppressed. cause,
In a to determine the existence of the proceeding probable trial is court vested with “the to wit power credibility the judge nesses, resolve in any conflicts the evidence and testimony, weigh draw factual inferences .... On all favor the appeal presumptions exer matters, cise of that power, and trial court’s on such findings whether or express must implied, upheld be if are they supported by substantial evidence.” v. Lawler 9 Cal.3d (People 621]; 507 P.2d see Leyba also 29 Cal.3d 596-598 961].) 629 P.2d
Here, the police a received tentative identification of appellant as robber the 7-Eleven store. Subsequently, detective investigating came upon in hallway Appellant courthouse. attending preliminary in hearing an unrelated case. to Aсcording detective’s testimony, appellant’s his eyelids appeared “droopy” and movements “lethargic.” The detective suspected un- appellant was der the influence of drugs alcohol. Not wanting interrupt preliminary hearing to investigate condition, appellant’s the detective arranged have two officers wait police for appellant outside the courthouse.
After the hearing, appellant left the and car courthouse entered his on the second level of adjacent parking area. officers testified that appellant proceeded to drive down exit towards ramp their po- lice cruiser. Suddenly, appellant came to a his stop reversed direction. The officers followed their They cruiser. observed appellant accelerate up the rapidly ramp drive around the recklessly parking area. Appellant his finally left car and approached the police officers. arms, He appeared “angry,” waved and complained loudly about po- lice “harassment.”
When appellant down, calmed the officers noticed that appellant’s *14 pupils were dilated and not did react to light. also They observed recent puncture wounds on appellant’s arms. On the basis of these observa- tions, appellant’s area, conduct in the parking and his reported condition in courthouse, the officers arrested appellant for and using (Health & Saf. substance. controlled of a the influence under
being 11550.) Code, § hearing disputed preliminary during counsel and his
Appellant of drugs under influence of being appearance had appellant that recklessly his car driving denied also Apрellant at the courthouse. him approached the officers testimony, his According area. parking officers police complaining car. After soon as he entered arms, he on his wounds puncture them the showing “harassment” and was arrested. testimony in the witnesses’ the conflicts court resolved
The trial the sub supported by result is this officers. Since of the police in favor above, be upheld. (People it must detailed use drug evidence of stantial 160.) independently not Lawler, may This court p. 3d at 9 Cal. supra, (See, v. North e.g., People the witnesses. credibility reweigh 511, 19].) P.2d 509, (1981) 29 Cal.3d 514 [174 a reasonable to raise facts sufficient articulated officers police controlled influence of a under the using was suspicion 11550.) Code, physical symp- (Health Appellant’s & Saf. substance. § area justified parking in the courthouse behavior tоms and unusual ap- court’s denial of the trial Accordingly, suspicions. officers’ arresting proper. was identifications the photographic to suppress motion pellant’s him erred in sentencing that the court next contends Appellant 664, 187), because (§§ degree in the first murder attempted for with in term for assault statutorily prescribed exceeded punishment these offenses (former 217). Asserting murder tent to commit § trial court should conduct, that the appellant argues identical proscribe of former penalty provisions with the him in accordance have sentenced 664). (§ statute attempt the general than section 2177 rather under this court in rejected by considered recently This contention was 458, 634 P.2d 30 Cal.3d v. Collie the first de- murder in attempted convicted of “[Appellant] 534]. These prerequisites. deliberation are which premeditation for gree, with intent to commit an assault to establish unnecessary elements are serious nature of Hencp [appellant’s] the more murder. [Citation.] years. for of two to four The section provided 7Former section 217 sentences was re- 628.) (Stats. pealed January effective 1981. ch. §
913 (Id., crime of the more severe justifies imposition penalty. [Citation.]” 63.) at p.
Appellant’s final contention is that the trial court erred in
using
(§ 12022.5)
act of firearm use
single
to enhance his sentences for both
He relies on In re
attempted murder and attempted
Culbreth
robbery.
(1976)
719,
The proseсution does not contest that the offenses for which appel lant was convicted constituted an Rather, “indivisible transaction.” it maintains that amendments to the Penal statutory Code have impliedly abolished the Culbreth rule. Their is that theory the deterrent purpose 12022.5, section which formed the basis for the Culbreth rule, is no Culbreth, (See In re longer applicable. 333.) 17 Cal.3d at supra, p. Under the present law, determinate sentencing “the purpose imprisonment for 1170, crime is punishment.” (§ (a)(1).) subd. It is as serted that consistent with this objective, the Legislature amended section 12022.5 to an require across-the-board uniform enhancement of two years for all (Stats. 1976, felonies involving 1139, firearm use. ch. 305, Thus, 5162.)8 p. the prosecution maintains that a § enhance single ment for firearm use in this case “does not reflect accurately proportionate of the оffenses and gravity ... does not serve the policy underlying determinate sentencing.” v. Edwards analysis is on directly point. As explained the Court of Ap 652]
peal, when the last Legislature amended sections 1170.1 12022.5, it did not (Id., the Culbreth issue. address specifically 447.) “Hence, p. none of the DSL, statutory changes to the pertaining with the of one possibility exception, mentioned intent any to abolish (Ibid.)9 the single-occasion rule ... The well-settled rule of 8The provided escalating former law penalties for successive involving convictions firearm use. possible 9The exception (h) one is subdivision of section 1170.1 which was added in (Stats. 3259.) 1979. ch. This section states that an unlimited § num- ber of may imposed enhancements be on an accused sentenced committing for certain (i.e., molestation, sexual rape, offenses forcible sodomy, child copulation). or oral *16 914 is that enactments should not be con
statutory construction legislative law strued “‘to overthrow unless such long-established principles [an] appear express intention is made to either declaration or clearly by by (Id., 447-448, pp. at from necessary implication.’” quoting County of Los v. Frisbie 19 Cal.2d P.2d Angeles 526].) Thus, rule remained valid found that Culbreth the Edwards court from enactment of the determi despite statutory changes resulting Culbreth is no valid would longer nate law. sentencing say “[T]o Likewise, to say be to too on the silence of heavily Legislature. rely because of its exclusion under applies apparent that Culbreth no longer 1170.1, (h), the maxim of ignore Penal Code section subdivision would that when a statute certain expresses exceptions construction statutory rule, to a other are excluded.” general exceptions necessarily (People Edwards, Therefore, 448.) Cul Cal.App.3d p. supra, from a firearm use enhancement adding breth trial court prohibits to both sentences on imposed appellant.
V. case, In this committed serious errors. The evidentiary trial court with close as to whether question ap- was confronted an jury extremely the man for the crimes The evidence pellant responsible charged. raised doubts as to the identifica- strong reliability eyewitness tions. .In to introduce evidence allowing prosecutor portraying member to commit violent predisposed as a Chicano gang desperate crimes and as a heroin addict to obtain money support habit, the trial court ensured that the would reach a verdict based result, direct of conviction on evidence. As a improper judgment must be and is reversed. hereby
Broussard, J., Pacht, J.,* concurred. NEWMAN, I thе conviction I reversing J. concur because believe that admission of the heroin addiction evidence was prejudicial error. That evidence tainted the evaluation not of the witnesses’ jury’s motive, but of defendant’s him as a habitual credibility “brand[ing] lawbreaker, loathsome, person, predisposed to rob or steal unworthy his habit. is entitled to have the evi support conflicting [Defendant] that kind of v. Davis handicap.” dence without reweighed (People 357].)_ * Council. Assigned by Chairperson of the Judicial reverses The majority dissent. RICHARDSON, I respectfully J . “concern testimony admission improper on ground judgment (Ante, 903.) In my defendant. use” drug membership ing *17 circum under the harmless entirely were view, “errors” the asserted this case. stances in Membership Common-group Admissibility
1. Ozaeta, Reeves, Val- witnesses an alibi. Defense asserted Defendant during elsewhere himself, he was enzuela, testified that defendant the cross-examination, objections, defendant’s and over the offense. On and his witnesses defendant establish that was permitted prosecution Flores. The ma- the El Monte known as to a youth group each belonged a as the prosecutor “portray[ed] accusation jority’s {ante, crimes” to commit violent predisposed Chicano member no references made the record. The 914) prosecutor misstates seriously crimes,” he offered no “Chícanos,” or “violent whatever to “gangs,” shows, the prosecutor As the record evidence on these subjects. were his alibi witnesses that defendant and to show permitted merely witness de- Defendant’s own youth group. each members of same in our neighborhood.” friends that are scribed the as group “just good characteriza- benign tо refute that The offered no evidence prosecutor information that counsel elicited the further Subsequently, tion. defense the police was believed by 250-300 members and consisted of group to be a “gang.” in per its discretion trial court abused holds that majority to the group evidence pertaining to introduce prosecution
mitting view, In witnesses. my and defense shared defendant membership by 69, 79 In re Y.Wing (1977) Cal.App.3d 67 issue is controlled by [136 conveniently ignores. which the 390], majority a case Y., prosecu wardship proceeding, the course of a In Wing during with membership their witnesses regarding defense tor cross-examined the present Unlike Chinatown gang. in the Wah a Ching, defendant criminal past case, gang’s introduced regarding evidence was also ful proposition, Y.Wing acknowledged general court activities. The cross-examination, be askеd here, on that “a witness may, ly applicable action, on party he shares with a about group membership impeach that tends to is a factor membership such common theory Thus, the prosecution bias.... establishing a witness’ testimony by re- witnesses ... inquire case could properly the instant [defense] 916
garding their with friendship Wing, including their common group witnesses, as a means attacking their membership, credibility (67 76-77, bias in favor the minor.” establishing Cal.App.3d at pp. added; (1981) italics see also People Dominguez 121 Cal.App.3d (1981) 499 Cal.Rptr. 445]; v. Perez People Cal.App.3d [175 470, 477 membership admissible if [gang relevant]; [170 619] (1976) v. James People Cal.App.3d Cal.Rptr. 733]; v. Avila P.2d 200]; Evid. Code, (f).) subd. § Concluded, however,
The court in Y. that it was Wing to in improper *18 troduce evidence of both defendant Wing’s based gang membership, upon and reputation evidence rather hearsay upon than the personal officer; knowledgе of the testifying gang’s crimi supposed (67 nal 77-79.) activities. Cal.App.3d, that, The court pp. stressed apart from its use for impeachment purposes, evidence of gang mem bership no in ordinarily has “‘tendency fact, reason’ to a prove disputed i.e., the identity of the who person committed the offense. charged in Membership an organization does not lead reasonably any infer as ence to the conduct a on of member a given Hence, occasion. allowed, evidence was not It on relevant! the contrary, unreasonable in ferences to be made the trier by of fact that the. minor was Wing guilty of the offense charged (P. on the of theory ‘guilt by association.’” in italics original.) Here,
The case is distinguishable before us from readily Y Wing questions pointed to of the subject group membership shared de by witnesses, and his prosecution fendant relied on neither nor hearsay evidence, but direct reputation of upon knowledge the witnesses. Moreover, of review the record discloses that no my testimony was elic ited, advanced, nor prosecutorial suggestions regarding any criminal Thus, activities group’s members. assertion majority’s that the jury “undoubtedly (ante, identified” the as a group criminal gang 905) is totally speculative unfounded. event,
In any had defendant believed that the jury might infer some improper gang Flores, activities El by Monte he could readily have sought appropriate limiting instructions or an admonition which would have confined the jury’s consideration such evidence to impeachment purposes. failed Having such request instruction, an admonition or defendant cannot evidence, now complain that properly admissible for discredit his guilt inadmissible to prove was purposes, impeachment Evi of section 355 implication is the clear character. This 43, 63-64 (1981) 30 Cal.3d (See Collie v. Code. dence Wil disapproving People and fn. 634 P.2d 534] 292].) 976-978 liams Addiction Use and Drug Admissibility 2. Defendant’s testified, defendant’s objection, over officers arresting One the influence of to be under appeared when he was arrested defendant marks re- indicating bore puncture that his arm PCP (phencyclidine), a defendant was opinion in the officer’s and that injections, cent heroin $75 $25 and daily. habit between costing addict with a daily heroin purpose establishing possi- for the sole evidence was adduced Such which defendant with attempted robbery financial motive for the ble of his use and drug evidence charged. any Defendant contends was when overly prejudicial was being narcotic addiсtion inadmissible Code, (Evid. in this case. value slight probative its weighed against However, I 352.) I would that the evidence inadmissible. agree § in this case. harmless under circumstances find error *19 defendant’s evidence of the Prior cases the admission of upheld have is of defen probative where such evidence addiction or use of narcotics v. crime. drug-related (People a committing dant’s motive for 713, of (1959) 715 P.2d Cal.App.2d [forgery 169 Copeland 1] [338 752, (1949) 92 754 Cal.App.2d v. O’Brand drug prescriptions]; People v. People see Morales narcotics]; P.2d to steal [burglary [207 1083] or sale (1979) 259, [possession 88 264 Cal.Rptr. Cal.App.3d [151 610] and, inflammatory is in light Such evidence narcotics].) potentially such evi from disclosure of to defendant possible prejudice fact, admission for purposes its preclude to the trier of the cases dence those offenses which are unrelated to commit establishing motive 787, (1967) 256 793-794 Cal.App.2d v. Bartlett narcotics. (People [64 156, (1965) 233 Cal.App.2d v. Davis Cal.Rptr. [burglary]; People 503] (1961) v. 190 Enriquez [robbery]; People Cal.Rptr. 161-162 357] [43 v. 481, Cal.Rptr. People Cal.App.2d [robbery/murder]; 889] [11 115, P.2d 122-123 (1957) Guiterrez [312 291] [at court, “The law entitled the Davis As expressed by tempted burglary].) and of innocent good the jury presumptively to stand before user, ... the prosecu him a narcotics characterizing character. In loathsome, lawbreaker, a unworthy a habitual tion branded him as (P. 162.) his habit.” or steal to support to rob person, predisposed hand, On I error, alone, the other say cannot that the standing had such a as to grave impact reversal require judgment. Three de- fense witnesses corroborated defendant’s alibi if testimony. Even evidence of defendant’s habit led drug may have de- jury doubt events, fendant’s own version of no reason is why suggested evidence would have cast doubts on the veracity of defendant’s wit- nesses, were Moreover, who not tainted. similarly trial defendant was positively identified as gunman four by eyewitnesses, their although pretrial identifications were somewhat clouded. The was thus con- fronted with a duel between three alibi witnesses and four credibility eyewitnesses. record, examined the entire I Having do not believe it is reasonably probable that a result more favorable to defendant would have been reached if the use addiction drug evidence had not been admitted. There thus occurred no miscarriage under justice article VI, 13, (See section of the California Constitution. People v. Watson (1956) 46 Cal.2d P.2d 243].)
I would affirm the
for
judgment and remand
In
under
re
resentencing
Culbreth
17 Cal.3d
On July dissenting opinion Justice Richardson was modified to read as printed above.