P. v. Cooley

Filed 4/10/07 P. v. Cooley CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed as modified. Motion to strike and request for judicial notice granted.

Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted defendant Jerimichael Cooley of murder as charged in count one. It found to be true enhancements under Penal Code sections 12022, subdivision (b) and 186.22, subdivision (b)(1). (Unless otherwise indicated, all statutory references are to the Penal Code.) The trial court struck the gang enhancement under section 186.22, subdivision (b)(1) for purposes of sentencing and sentenced defendant to 30 years to life in prison plus one year for the enhancement under section 12022, subdivision (b) and six years for his prior convictions for a total of 37 years in state prison.

We conclude the true finding on the gang enhancement under section 186.22, subdivision (b)(1) should be ordered stricken from the record, for all purposes, because it was not charged in the information. We also hold the trial court did not abuse its discretion or vindictively punish defendant and deny him rights of due process for successfully appealing his prior conviction when it denied defendants motion to bifurcate. Nor did the trial court abuse its discretion when it permitted expert gang testimony. We affirm as modified.

I

FACTS

Eye witnesses

Stephanie Walton knew victim Brett Engemann for about two years before he was killed. She would usually see Engemann at the home of the Robinsons. One day the two of them decided to get high and went for a walk by a liquor store. Tyson Brosz pulled up and they got in Broszs vehicle. Two other males were in the vehicle already. They drove up toward a house where Walton knew she could get some methamphetamine. Walton got out of the vehicle at a 7-Eleven. She was around the corner when Engemann ran up behind her and said he just took $20 from the men in the vehicle. Walton went her own way and Engemann went back to the Robinsons house.

After Engemann took the $20, a group of six men came to the Robinson house looking for Engemann. Rebecca Robinson said: I guess he took some money of theirs because, you know, he was supposed to buy them drugs or something like that. Robinson did not let Engemann go outside. Robinson offered to pay back the $20 Engemann took, but Brosz refused, saying it was the principle of the matter. Engemann came outside and the men were posturing and gathered in a U-shape around Engemann. Robinsons son came outside and said the group disrespected his mother when they did not leave after she asked them to leave. Then Engemann and Robinsons son went back inside. Robinson testified: Then, just so fast, I cant even comprehend how he did it. I heard a crackling sound around the side of the house. And my son was lying over the fence, cocking a shotgun. At that point, the guys started running up the driveway and Robinson grabbed on to the end of the gun because she did not want her son to shoot anyone. The group of men left.

On May 9, 1998, the day of the homicide, Sara Barnard lived on Rye Street in La Habra. Engemann came to visit her at her house at about 3:00 p.m. Defendant and several other persons, including Joseph Richard Duran and Brosz, arrived at the house in a Suburban. Barnard said she became familiar with a group known as La Mirada Punks because her sister had dated Duran.

Barnard told Brosz she did not want any problems, and Brosz responded: You better go ask him for my twenty dollars before I do. Barnard asked the victim if he had Broszs money. He said he did not.

Barnard also told Duran she didnt want any problems. Duran told Barnard, Well, theres going to be problems. Bernard saw defendant hit the victim, and, they ended up on my grass. Defendant, Duran and Brosz were fighting with the victim. Barnard said her dad and her brother tried to break up the fight. As the three men hit him, Engemann was rolled in a ball. Barnard said, My dads girlfriend turned the water on and squirted everybody to break up the fight. The fight broke up and the victim went out Barnards front gate and towards his car. Barnard then saw defendant and Duran running toward Walnut Street.

Dwight Barnard is Sara Barnards father. On May 9, 1998, he was sitting in the front room of his home on Rye in La Habra when he realized there was a fight going on outside on his lawn. He said he did not know the last names of the fighters, but their first names were Joe, Jerry and Tyson. They were fighting with Brett. Dwight Barnard pulled Tyson away, and then realized his girlfriend was soaking the fighters with a hose.

Dwight Barnard said that after the fight was broken up, the guy that was stabbed was walking to his car at that point. Engemann looked over his shoulder and then began to run. He ran around the corner, from Rye onto Walnut. Duran ran after Engemann, and also ran around the corner. Dwight Barnard said defendant then ran around the corner, too.

Around 5:30 p.m. on May 9, 1998, Jose Cardenas, who lived on Walnut Street, drove home with his wife and daughter. As he helped his wife and baby out of the car, he turned around and saw some guys fighting. He said he saw two guys pretty much hitting, punching another guy that was walking backwards trying to block the punches. The three were on the sidewalk on the other side of the street. Cardenas turned to go into his house when he heard his father-in-law say, knife. He saw the man who was being hit stumble. He also saw a knife being pulled back from the chest portion. Cardenas testified: The person with the knife pulled back the knife, and he started folding it. As he folded the knife, he was saying to the guy that kept punching and kicking, Thats it. Thats it. Lets go. You know, Thats it. Cardenas explained:

At this time, the person that got stabbed, he was kind of holding he wasnt blocking anything any more. He was just getting punched. He was just getting punched. At that time, his knees, he started falling to the ground. The person who did not have the knife kicked the victim in the head.

Victoria Elmquist was driving south on Walnut Street with her niece at the time of the incident. She saw two guys chasing down another guy. She saw the person being chased trip on the sidewalk. She added: Once I had driven past them, and I looked in my rear view mirror, and I saw that they had caught up with the person they were chasing and they were beating him up in the middle of the street. She said the victim was being kicked and punched by both men. Elmquist turned her vehicle around. As she got closer to the scene, she observed the victim was still being beaten, And then the next thing I see is a knife. She said: Its two against one. Hes being hit and kicked numerous times, you know, in various places on the body and the head. And I just see someone trying to defend himself. She saw a thrusting motion and then I see the victim clutch for his chest and basically go down, almost like Indian style. During the incident, she never saw the victim do anything in an aggressive manner.

The two assailants ran past Elmquists vehicle and she yelled a profanity at them. She got out of her vehicle and went to the victim. She asked the victim if he was okay, and he responded: No, Ive just been stabbed. He continued to clutch his chest and rock[ed] back and forth. And then his eyes rolled back in his head, and he fell back and hit the cement I mean, the street. She and a man on the other side of the street put the victim in the back of her pick-up, and Elmquist drove him to the hospital where he died.

At trial, Elmquist identified defendant and a codefendant, Duran as the two assailants. She said defendant was the one who made the thrusting motion.

Arrest

Daniel Barnes is a police officer with the La Habra Police Department. In 1998, he was a detective assigned to the gang unit. He was the person assigned to investigate the Engemanns death. Barnes said a warrant was issued for defendant arrest on May 13, 1998. Later he received notification that a vehicle in which defendant was traveling was stopped at the border of Nogales, Arizona, by customs agents. He and another officer flew to Arizona and picked up defendant on May 27.

Forensic testimony

David Masamichi Katsuyama is a doctor of medicine and a forensic pathologist who performs autopsies for the Orange County Sheriffs coroner. He said: The stab wound had penetrated into his chest, and penetrated into his heart, leaving a large opening on the front surface of the heart, leaving another opening in the mid portion of the heart, that opened into the left side of the heart, the major portion of the heart that pumps blood through the large portions of the body. Katsuyama said he attributed the cause of death as a result of a exsanguination, or bleeding to death, as a result of laceration of the heart, cutting into the heart, as a result of a stab wound into his chest.

Gang testimony

Scott Matthews has been with the Los Angeles County Sheriffs Department for 15 years. In 1998, he worked in the gang and narcotics suppression units in La Mirada. During his four and one-half years on the gang unit, he contacted several men and boys who claimed to be part of the La Mirada Punks. He became familiar with Brosz after detaining him several times for traffic stops, pedestrian stops and calls for service. Brosz drove a black Suburban.

In May 1998, Matthews also had a couple of contacts with defendant whose moniker was Scary Jerry. Defendant had an LMP tattoo, a symbol of the La Mirada Punks. In January 2000, Matthews and his partner stopped Broszs Suburban for a traffic stop. Defendant was in the vehicle. He had one other contact with defendant, but he did not remember the particulars.

Alex Canchola is also employed by the Los Angeles Sheriffs Department. He worked in La Mirada for seven years. At the time of the incident, Canchola and another deputy were assigned to gangs, juvenile crimes and narcotics. He pretty much handled the majority of all gang-related La Mirada cases and was familiar with the La Mirada Punks.

Canchola said the La Mirada Punks was a transient gang: However, if I did have to go and look, it would have been the area of the norththe northern border of the City of La Mirada and the southern to central areas of the unincorporated Whittier in L.A. County. The gang was a spin-off from a smaller neighborhood gang called the Belcher Street Punks. Canchola identified the letters BSP on Durans finger in a photograph as standing for Belcher Street Punks.

Canchola estimated the La Mirada Punks had between 30 and 50 members in 1998. It is a predominately white gang, but does include other races. He was asked about the primary activities of the La Mirada Punks as of around May 1998. He responded: The activities that I was aware of, either directly by investigations or assisting in investigations, and/or have been provided information from shifts of other deputies that I encountered, was primarily acts of violence, assaults, drug use, drug possession, drug sales, graffiti, things such as that, with thefts. He explained that acts of violence meant simple to more aggressive assaults, from a fist fight to maybe a fight that was a little bit more involved with, you know, feet, fists, other objects. He was asked if the assaults were Penal Code section 245, assault with force likely or assault with a deadly weapon and he answered, Yes. Canchola said he was familiar with a January 1998 incident in Buena Park for which another active member of the La Mirada Punks was convicted of violating section 245, subdivision (c).

Clay Epperson has been a police sergeant for the Costa Mesa Police Department for 25 years. In 1990, he was trained to work on cases involving criminal street gangs. Around 1996, his city was faced with serious problems involving white street gangs. He expanded his explanation: we had traditional Hispanic gangs. But the white gangs were a new phenomenon we had to deal with. And there was a very low level of understanding about the gangs. [] So, I made it a point to develop my knowledge base about white gangs. I helped found an ad hoc working group on white gangs, and pulled together state, federal, local law enforcement to work on white gangs . . . . In 1998, he became supervisor of the gang detail and received more gang training with some portion specifically devoted to white street gangs. He teaches throughout the nation on the impact of white gangs. He explained: Well, probably the most important factor about the white gangs that separates them from the other gangs is their lack of turf, the turf orientation. They dont protect turf the same way that, say traditional Hispanic gang does. [] They have different motives. They quite frequently will have somea couple things. And this has evolved over time. Initially, they tended to be almost exclusively etiologically motivated. Now, they tend to be almost entirely mercenary. [] The white gangs in Southern Californiaand this is kind of unique from the rest of the county white gangs in Southern California are heavily involved in drug trafficking, the drug trade, personal use. An extremely high percentage, bordering on a hundred percent of them, have been drug addicts or addicted to drugs or heavily used drugs when they are out of custody, and continue to use drugs when they are in custody.

Epperson said he is familiar with the La Mirada Punks: During the course of criminal investigations in my city, with local white gang members, we had LMP gang members also present and participating with them. He said the La Mirada Punks are somewhat different from the typical white gang because of where they come from, and theythey are not strictly white. But the whites within that gang actthey conform to the white gang model once they mature with the gang. According to Epperson, the La Mirada Punks would primarily engage in narcotics trafficking, sales, use, property crimes, and acts of violence in support of those crimes.

Epperson looked at some photographs of defendant and said the LMP tattoo on his back as well as down his left leg are associated with the La Mirada Punks. He said a character in one photograph looks distinctly like a character from The Clockwork Orange, which is a movie that is kind of pivotal and fundamental to white gangs, the development of white gangs. [] And a lot of white gang culture we have in the United States came from the U.K., white gangs that started in U.K. And that was the origin or part of the origin of the white gangs, in the U.K.

He said violence plays a role within white gangs, explaining: Because of the nature of white gangs, there is an imperative to engage in violence that, among these white gangsters, they have to continually find venues to showcase their willingness to engage in violence. [] In other words, if you could go out and commit all your crimes successful[ly], without engaging in violence, it would not work for the white gangsters. Because they want to demonstrate to people that they are willing to use violence. And they are looking for opportunities. [] And you will see, quite commonly, extremely high levels of violence used against people for very low level issues that come up, slight offenses that will get this overwhelming response. Epperson also explained the purpose of violence in white gangs: Violence is extremely important for a lot of reasons. Internally, the gangsters have to know that each of them is willing to use violence for the benefit of the gang, to back up each other, and to intimidate other people. [] In other words, part of the stock in trade of a gang is their ability to intimidate regular citizens, who are not gang members, and even in some cases other gang members. [] And so, their use of egregious violence at very, very low thresholds is extremely intimidating to normal citizens. And they count on that fear factor to make them effective as a gang and in their mercenary enterprises.

The term back up has particular meaning within gang cultures, according to Epperson: Within the gangsthis applies to gangs in general is, if some gang member is making a play, whether he is under attack, or if he is attacking somebody, or if he has been offended, and he is now taking revenge, its incumbent upon all the gang members to back up that gang member. [] In other words, if somebody stood by while another gang member got beat up or didnt win decisively in a fight, they would be chastised, sanctioned, thrown out of the gang. Its imperative that they back each other up.

Epperson said he reviewed police reports and talked to some witnesses and law enforcement involved in the case. He also reviewed letters written to and by codefendant Duran. Based on his review, Epperson said Duran was absolutely involved in La Mirada Punks, was an active gang member in La Mirada Punks in 1998, and defendant was also absolutely an active participant in La Mirada Punks at the time [1998]. Epperson identified Brosz and Duran in another photograph which had a vulgarity and LMP and down for life written on it. He said down for life means an eternal commitment to the gang, that they are committed to that gang for their life, that to give their life, if necessary.

When he was asked if the incident was done for the benefit of the La Mirada Punks, Epperson responded that it was and explained: Number one, for the at the very base level, with the debt, collecting the debt. For somebody running a criminal enterprise, particularly if it involves narcotics, if you dont collect on your debts, people are going to walk, and nobody will pay. [] And so, from an enterprise perspective, its incumbent that somebody collect their debts. [] On another level, there is a loss a public humiliation if somebody takes advantage of you and gets a leg over on you, in terms of getting away with taking your money or not paying the debt. And that would be humiliating for a gang member, and may tempt other people to get a leg over on you.

[] And you would have to do something about it. It would be mandatory that you would regain your loss of honor in this respect. [] Also and this is what is fairly common in white gangs is, they look for opportunities to showcase their violence. And thats why you see very high levels of violence involving incidents that have a very kind of minimal level of instigation, or the threshold for initiating is very low.

II

DISCUSSION

Enhancement under section 186.22(b)(1)

The jury found it to be true defendant committed murder for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct, within the meaning of section 186.22, subdivision (b)(1). Section 186.22, subdivision (b)(1) states: [A]ny person who is convicted of a felony 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, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows . . . .

Both the original information, filed on October 25, 1999, and the amended information, filed on June 15, 2000, contained an enhancement against defendant under section 186.22, subdivision (b)(1).^[1] But on June 29, 2000, the prosecution dismissed that enhancement allegation. The defense attorney for the codefendant stated the agreement of the parties on the court reporters record during the first trial: it is my understanding that the prosecution has agreed, they have a concern that, if they dismiss the enhancements and count 2 and if there is a reversal, that that would be a dismissal for the purpose of refiling. [] We have agreed that we would waive any deeming that this be a dismissal for the purposes of refiling either the enhancement or in regard to my clients count 2. So that, if there is a reversal of conviction, the district attorney would be able to refile both the enhancement and the count 2 as to my client. Defendants trial attorney added: And I would agree with that with regard to the enhancement thats as to Mr. Cooley. The prosecutor stated: I believe that accurately states the agreement. The court granted the motion to dismiss the enhancement and count two.

We find nothing in the record before us to indicate the information was amended after the gang enhancement and count two were dismissed during the first trial. Nor has either side argued there was a further amendment.

Defendants retrial after reversal commenced on January 24, 2005. Prior to his retrial, defendant brought a motion to bifurcate the gang enhancement (PC 186.22(b) from the underlying charges in this case on the grounds that the gang allegations are overly prejudicial and would prevent him from receiving a fair trial. In his moving papers for the motion to bifurcate, defendant stated: After the [previous] verdicts, the prosecution agreed to dismiss the gang enhancement without prejudice so long as if the case were reversed on appeal they would retain the right to refile. The case was reversed on appeal based on Juror misconduct.

The trial court denied the motion to bifurcate the gang allegation in count 2.^[2] Even though count two was never alleged against defendant, based upon the courts denial of his motion to bifurcate the gang allegation in count two, defendant successfully moved to continue the trial date. From the record before us, it appears that none of the attorneys, not the prosecutor or either of the defense attorneys, was aware of the state of the pleadings.^[3]

When the court sentenced defendant, it stated: The court, in relation to the finding of the jury under 186.22(b)(1) of the Penal Code, the court, pursuant to 186.22(g), is going to strike that allegation for the purpose of sentencing. The abstract of judgment does not reflect an enhancement under section 186.22, subdivision (b)(1).

We encapsulate the complications here. Defendant made a motion to bifurcate an uncharged enhancement. In the motion, itself, defendant told the court the very enhancement he was asking to be bifurcated had been previously dismissed without prejudice. When the motion was denied, the court stated the motion was denied as to count two, which was never alleged against defendant. When the court read the information to the jury at the beginning of trial, it included the previously dismissed gang enhancement against defendant. Even though defendant was not charged with a gang enhancement, the jury was presented with a finding regarding a gang enhancement on count one and returned a true finding against defendant. When the court sentenced defendant, it struck the gang enhancement for purposes of sentencing only.

Abuse of discretion because ruling allegedly based on wrong information

Defendant now contends the trial judge misapprehended the state of the pleadings when it permitted the prosecution to introduce gang evidence. But he has not cited us to any part of the record which shows he ever raised the issue of the judges awareness of the true state of the pleadings at the trial level. It appears this assertion is first raised on appeal. He now contends the courts ruling on the admissibility of gang evidence was necessarily an abuse of discretion because it was based upon incorrect information. His argument continues that [w]hen a trial court fails to properly understand the scope of the discretion to be exercised, it cannot be said that discretion was exercised at all. Under such circumstances, there has been no lawful order made.

[T]he failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal. (In re Seaton (2004) 34 Cal.4th 193, 198.) The reasons for the rule are these: In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights of calling the judges attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of appeal. [Citations.] (Ibid.)

Defendant never brought his claim to the attention of the trial court. Accordingly, we decline to review the contention the trial court failed to understand the scope of its discretion.

Abuse of discretion vis--vis Evidence Code section 352

In his brief, defendant says that [a]ssuming respondent will argue the trial court had discretion to admit the gang evidence under Evidence Code section 352 even absent the gang offense and enhancement, based upon some type of minimal probative value from the evidence, error is still present in this case because the trial court did not follow the proper balancing procedure for admitting potentially prejudicial evidence under the statute.

In fact, it is not necessary that the record reflect the courts weighing procedure: when ruling on a section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state that it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under . . . section 352. [Citations.] (People v. Jennings(2000) 81 Cal.App.4th 1301, 1315.)

All relevant evidence is admissible. (Evid. Code 350, 351.) Defendant has not cited us to an objection to the gang evidence under Evidence Code section 352, so we presume the trial court was never asked to weigh its probative value against any prejudicial effect. Nonetheless, the court did go through a weighing process: Well, this court has had an opportunity to review extensive documentation by way of the motion that was initially brought before this court. [] I listened to all the testimony. [] I mean, this is all since the courts ruling. I listened to all the testimony in the trial, including the testimony of Mr. Cooley at the last trial. [] And Im considering the probative aspect of gang evidence and how it would play in relation to the variety of issues that are before this jury in terms of the motivations, the relationships of the parties. [] And Ive also considered what the California Supreme Court has said in this recent case of People v. Hernandez. [] And Im going to deny the motion to bifurcate the gang allegation in count 2.

But defendants argument here is pointless because the enhancement had not been charged and should not have been given to the jury to consider. The real question is whether or not defendant was prejudiced by the erroneous course of events concerning the uncharged gang enhancement.

For purposes of analysis, prejudicial is not synonymous with damaging, but refers instead to evidence that uniquely tends to evoke an emotional bias against defendant without regard to its relevance on material issues. [Citations.] (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) The court instructed the jury that gang evidence was relevant for a limited purpose: It may be considered by you only for the limited purpose of determining if it tends to show that the crime or crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members.

Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the courts instructions. [Citation.] (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Accordingly we presume the jury followed the courts instructions and considered the gang evidence only for the purpose of deciding whether or not the gang enhancement was true.

Furthermore, even when admission of evidence was erroneous, we evaluate evidentiary rulings under the Watson standard of harmless error, and we will not reverse unless it is reasonably probable the result in this case would have been different if the evidence had not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.) Here, Dwight Bernard observed the victim running away from defendant and toward Walnut Street. He then saw defendant and Duran chase after the victim. On Walnut, Cardenas saw the victim being hit and punched by defendant and Duran. Cardenas said the victim had stopped trying to block the punches at the time he was stabbed. Elmquist also observed defendant and Duran kicking and beating the victim. She saw defendant make a thrusting motion and the victim grab at his chest. Under this set of circumstances, we conclude it is not reasonably probable the result would have been different had gang evidence not been admitted. Accordingly, we find the admission of gang evidence in this case to be harmless error.

Motion to strike true finding

There remains the problem of a true finding on an enhancement which was not charged against defendant. All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact. ( 1170.1, subd. (e).) Accordingly, defendants motion to strike the jurys true finding from the record must be granted.

Due process

Defendant next contends he was denied due process of law: Appellant submits that based upon the fact appellant was twice previously successful with his motion [to bifurcate], and based upon the fact that the courts about face on this issue followed on the heels of appellants successful appeal which directed reversal of the judges decision refusing to overturn appellants conviction for second degree murder (based upon juror misconduct), the trial courts ruling constituted presumptive implied vindictiveness and thereby a violation of appellants right to due process. ^[4]

To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort. (United States v. Goodwin (1982) 457 U.S. 368, 372.) The presence of a punitive motivation, therefore, does not provide an adequate basis for distinguishing governmental action that is fully justified as a legitimate response to perceived criminal conduct from governmental action that is an impermissible response to noncriminal, protected activity. Motives are complex and difficult to prove. As a result, in certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, the Court has found it necessary to presume an improper vindictive motive. Given the severity of such a presumption, howeverwhich may operate in the absence of any proof of an improper

motive and thus may block a legitimate response to criminal conductthe Court has done so only in cases in which a reasonable likelihood of vindictiveness exists.

(Id. at pp. 372-373.)

Both sides inform us that motions to bifurcate were granted twice before, once by the present trial judge and once by another judge. But much had changed by the time of defendants retrial. Most importantly, the California Supreme Court spoke on the issue.

Although no statute specifically requires bifurcation when the defendant does not admit the conviction, section 1025 shows the Legislature is concerned with the problem of prejudice when a jury learns of a prior conviction. But the Legislature has given no indication of a similar concern regarding enhancements related to the charged offense, such as a street gang enhancement. Nothing in section 186.22 suggests the street gang enhancement should receive special treatment of the kind given prior convictions. [Citations.] (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) In cases not involving the gang enhancement, we have held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.] But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendants gang affiliationincluding evidence of the gangs territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the likecan help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.] (Id. at pp. 1049-1050.)

Under ordinary circumstances, judges make rulings on motions for bifurcation with limited information. They evaluate it as best they can, without really knowing all the circumstances. But when the court denied defendants motion this time, it noted it had the benefit of all of the testimony during the first trial of the action. In fact, while making his ruling on the motion, the judge remarked: I listened to all the testimony in the trial, including the testimony of Mr. Cooley at the last trial. Thus, the court was able to make its retrial decision with much more information than it had the first time around.

Additionally, the court limited the extent of gang evidence it would permit: So, the courts rulings on bifurcation and admission of gang evidence is not a license to have an expose on gangs or what has occurred since 1998.

We find there is no reasonable likelihood of vindictiveness and decline to draw a presumption that there was. We find absolutely nothing in the record to give even a hint the trial judge was being vindictive in making any of its rulings. On the contrary, the court permitted lengthy arguments, actively engaged counsel in dialogue, considered recent authorities and actually did limit some gang testimony. For these reasons, defendants due process argument fails.

Alleged abuse of discretion under Hernandez

Defendant argues again regarding the courts admission of gang evidence: Virtually none of this evidence would have been admissible at appellants trial absent the gang enhancement allegation; a fact the trial court was obligated to consider and one that militated in favor of bifurcation. He reiterates former arguments by stating that the gang testimony served no purpose but to allow the admission of otherwise inadmissible evidence.

He adds to his argument by quoting from People v. Hernandez, supra, 33 Cal.4th 1040: The predicate offenses offered to establish a pattern of criminal gang activity ( 186.22, subd. (e)) need not be related to the crime, or even the defendant, and evidence of such offense may be unduly prejudicial, thus warranting bifurcation. Moreover, some of the other gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendants actual guilt. (Id. at p. 1049.)

With regard to the Supreme Courts language in Hernandez which is quoted here, defendant states: In the present case the gang evidence was uniquely unrelated to any aspect of the offense, and the trial court abused its discretion in refusing to bifurcate the gang evidence.

As discussed above, the admission of gang evidence was limited to the jurys finding on the uncharged enhancement. We have ordered the jurys true finding to be stricken from the record. Accordingly, defendants argument is moot.

Expert testimony

Defendants last contention is that the trial court improperly permitted expert gang testimony because it invaded the province of the jury. He points to three places in the record where his objections to such evidence were overruled. We shall consider each.

The first citation takes us to the middle of a seven-page argument by Durans attorney. It does not contain an objection. But the topic of the argument made does concern whether or not a gang expert may be permitted to do more than give guidance to a jury for matters a jury might not understand.

The second citation contains no objection either. Rather, this one appears in the midst of a five-page argument by the same attorney. But this time, defendants attorney states: So we are clear, as indicated earlier, that I join in Mr. Earleys objections and remarks. Accordingly, we will assume all the cited remarks were also made by defendant. The remarks appearing in the second cited section also concern expert testimony by gangs. Each paragraph begins with such statements as: The other issues are . . . .; I believe that . . . .; So, I believe that . . . .; I think if . . . . But no objection was made.

The third citation is part of a four-page hearing after the jury was excused for lunch. The court began the hearing by referring to a previous side-bar conference where two issues were discussed. One issue concerned Eppersons interview of a lay witness. The other issue was about a conversation regarding the direction counsel wanted to take in terms of that questioning, focusing on the specifics of that interview. But once again, vague arguments are made amidst comments about different areas of the trial. The closest remark to an objection was again made by codefendants counsel and joined by defendants counsel: I believe that any question thats a hypothetical question would be an improper question, asking the officer for his opinion. [] I believe his testimony, if the court allows it, should be limited to things that the jury does not understand about gangs, rather than asking for his opinion as to whether this is for the benefit of the gang. [] And then I would ask the court to I know that just to renew the 352 objection and reiterate again the federal objections that I made originally, before the trial started. [] And I believe we had an agreement that I wouldnt we wouldnt object, question by question, in front of the jury. [] But those go to all those areas. But I thought I should renew that again before the officer testifies, in that the court has heard no testimony now. On the next page, not a page cited by defendant, the court stated: All right. I dont rule its cumulative. The court has considered its probative value and considered its prejudicial impact, and believes the probative value would outweigh any prejudicial exact [sic].

In none of the three cited portions of the record is there any clear objection to any specific evidence. As a general rule, failure to preserve an issue in the trial court will preclude a party from raising that issue on appeal. [Citations.] (People v. Dossman (1991) 235 Cal.App.3d. 1433, 1436.) Granted, some of codefendants counsels remarks suggested issues he now raises on appeal, but the record does not show defendant adequately raised the arguments he now makes. We conclude defendants present arguments are not properly before us. (Evid. Code, 353.)

Nonetheless, we note that, even were we to find defendant preserved the issue for appeal, we would conclude his argument to be meritless. The gang experts testimony now challenged did not direct jurors to find defendant guilty and did not encompass an opinion on any particular individuals state of mind. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77; People v. Gonzalez (2006) 38 Cal.4th 932, 946-947.) The trial record shows the expert appropriately responded to hypothetical questions which asked him to assume facts. The trial court did not abuse its discretion in admitting this evidence.

Further, as twice stated above, we presume the jury followed the courts instructions and considered the gang evidence only as it related to the uncharged enhancement. We have ordered the gang enhancement stricken from the record. Defendants last argument is also moot.

III

DISPOSITION

The judgment is affirmed. The superior court is directed to strike the jurys finding on the enhancement under section 186.22, subdivision (b)(1) for all purposes, not just for purposes of sentencing only as the record now reflects.

MOORE, J.

WE CONCUR:

OLEARY, ACTING P. J.

FYBEL, J.

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^[1] Defendants request for judicial notice of his prior record on appeal (People v. Duran and Cooley (Apr. 2, 2003, G028610) [nonpub. opn.]) was previously granted. Respondents request for judicial notice of certain pages of the clerks and reporters transcripts in People v. Duran (Nov. 28, 2006, G035323) [nonpub. opn.]) is granted.

^[2] Count two alleged violation of section 186.22, subdivision (a) against Duran and Brosz, but not against defendant.

^[3] Unawareness of the state of the pleadings appears to have continued throughout the trial. When the court indicated it intended to strike the section 186.22, subdivision (b)(1) enhancement for the purpose of sentencing, the prosecutor presented a lengthy argument why the court should impose it. Even were defendants counsel keeping mum about the true state of the pleadings during trial for some reason, one might expect that at the time of sentencing a request to strike the enhancement for all purposes would be made. But there was no such request.

^[4] Keeping in mind the motion had no basis in the pleadings, was denied for a reason that has nothing to do with a charge against defendant, and in any event, could never have been legitimately granted, we decide the issue as defendant requests we do.