P. v. Flores

Filed 8/29/06 P. v. Flores CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. David L. Allen, Judge.

Kieran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Armando Flores was convicted of burglary, assault, and dissuading a witness from reporting a crime. On appeal, he contends (1) the trial court erred by admitting evidence of a prior uncharged theft and, alternatively, by failing to sanitize the evidence; (2) the trial court erred by admitting evidence of an alleged gang membership list; (3) admission of the prior theft and the list violated appellant’s due process right to a fair trial; (4) the gang expert’s testimony was based on inadmissible hearsay and went to ultimate issues in the case; (5) the trial court erred by failing to hold a foundational hearing to assess the reliability of the gang expert’s testimony; (6) the evidence was insufficient to support the gang enhancement; (7) the trial court erred by denying appellant’s motion to bifurcate the gang allegation from the underlying offense; (8) defense counsel was ineffective for failing to request limiting instructions, raise evidentiary objections, and object to evidence on due process grounds; and (9) these errors cumulatively violated appellant’s due process rights. We affirm the judgment.

PROCEDURAL SUMMARY

On November 10, 2004, the district attorney charged appellant with first degree burglary (Pen. Code, §§ 459, 460, subd. (a);^[1] count 1), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 2), and dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1); count 3). The information further alleged appellant committed the charged offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In addition, the information alleged appellant committed the burglary when another person, other than an accomplice, was present (§ 667.5, subd. (c)). Finally, the information alleged appellant was 16 years of age or older at the time he committed the crimes (Welf. & Inst. Code, § 707, subd. (b)).

A jury found appellant guilty of all three counts and also found true the special allegations. The trial court sentenced appellant to four years on count 1 plus a consecutive 10-year term for the gang enhancement, for a total of 14 years in state prison. The court imposed and stayed sentence on counts 2 and 3.

FACTS

J. and C. were friends who lived together in Lindsay. J. was 21 years old and had grown up in Lindsay, but C. had only lived there a few months. On August 15, 2004, at about 11:45 p.m., J. and C. walked to the Fastrip Market to buy some beer. C. went inside to buy the beer while J. stayed outside and talked to Sotero Soto and some other people. J. knew Soto and had grown up him. When C. came out with the beer, a man approached her and took the beer from her. Other people, including Soto, were waiting in a green, four-door Toyota Camry. C. told J. to try to make the man give the beer back, but the man jumped in the car and took off.

C. was upset by the theft and wanted to call the police. J. told her, “Let’s just walk home.” He said, “I’m going home.” He did not want to call the police because he thought they did not need to be involved. He told C. she did not know what she was getting into. He was afraid because he knew these people. C. and J. parted and J. went to his parents’ house. C. called the police.

Officer Heinks was dispatched to the Fastrip Market. He spoke to C. for 15 to 20 minutes. The officer was familiar with the green, four-door Toyota Camry she described because he had pulled it over several times and was familiar with its owner. The officer had seen the car, with three or four people inside, one block from the Fastrip Market about 30 to 60 minutes before he received the call about the theft.

After talking to C., the officer went to appellant’s address to look for the Camry. He saw two people standing by the car. The officer made a U-turn and the two people were gone but he saw six people sitting and drinking beer under the carport. The officer required everyone to stand and place their hands on the car. The group included appellant, Soto, Eric Arredondo, James Torres, Hugo Flores and Ramon Martinez. The officer asked if they had been involved in a theft of beer at the Fastrip Market. Appellant said he had not. Each person denied driving the car, although the officer concluded the car had been driven recently because the hood was warm. The officer collected information and left.

J. stayed at his parents’ house for 30 to 60 minutes, then walked to C.’s house to return her pack of cigarettes. After he arrived, his friend, Hector, came over and said that someone had called and asked him who had called the police. The caller told Hector to go check on J. and C. to see if they were okay.

Within 10 to 25 minutes, there was a knock on C.’s door. C. got up to open it, but the door was kicked open by the same man who had stolen C.’s beer. About five men came in and said, “Where’s [J.] at? Who called the police? Where’s [J.] at? Who called the police?” A short, bald man came in and immediately started swinging at J. At least four other men entered, including appellant and Soto. Appellant took out a knife, pushed J. against the wall and cut his chin. Appellant said, “Why did the police officer come to my house?” Appellant then hit and kicked J. on his face and head. J. had known appellant for a month or two but did not really associate with him. Soto and the third man also hit J. They told him they knew where he lived and not to call the police. The other men were in the kitchen with C. and Hector.

Then appellant approached C. He tried to go into her bedroom but she told him, “This is private property. You don’t get in my room. You don’t come in here just like that.” Appellant grabbed a pack of cigarettes from the table and told his cohorts that Hector was okay and should not be harmed.

They all walked out. C. and Hector went outside too. C. was going to call the police again. The person who had taken the beer and kicked open the door told her, “You little bitch, get inside and don’t call the police.” They all told her, “You better don’t call the police. You better don’t call the police or you’re dead meat.” They asked Hector for a ride and he left with them.

J. was dazed and bloody. His chin and head were cut and his face was bruised. Hector came back in about 15 minutes. They all left the house and spent the night elsewhere because they were afraid.

J. went to the emergency room. He received stitches on his chin and head and was checked for a concussion and broken bones. While at the hospital, J. lied to the sheriff and told him he had been mugged in Porterville. J. lied because he was scared and intimidated by the threats.

J. later refused to call the police, but his father insisted. When the police officer arrived, J. seemed nervous and scared. He was not cooperative initially, but he eventually told the police the truth.

The police officer also went to C.’s residence. The officer observed that the door hardware was broken and there was blood on the screen door. The officer also found blood on a towel inside C.’s house. Although C. did not know any of the men who broke into her house, she was able to identify appellant with 100 percent certainty from photographic line-ups. She also identified Arredondo. C. told the officer that all the subjects who broke into her residence were involved in the assault on J.

After J. spoke to the police, he immediately moved to Washington because he was scared and intimidated.

Gang Evidence

Officer Dominguez testified as a gang expert. He explained that “LNS” means Lindsay North Side, a Norteño gang that had existed in Lindsay since about 1985. Members wore red and claimed the number 14 because “N” is the 14th letter in the alphabet. The expert had spoken to approximately 100 LNS gang members and had investigated about 60 LNS gang crimes. He had read reports of other officers and had spoken to officers regarding LNS gang members. The expert estimated there were about 150 LNS gang members. LNS members claimed the entire city of Lindsay as their turf. Their rivals were Sureño gang members, law enforcement officers, and anyone who crossed them. The primary activities of the LNS gang members were drive-by shootings, assaults with deadly weapons, murders, burglaries, petty thefts, and drug crimes.

The expert described as a predicate offense a crime on May 16, 2003, which involved assault with a knife. Julio Carrillo, a “self-admitted” LNS gang member, was convicted of assault with a deadly weapon in that case. His victims were Sureño gang members. In the expert’s opinion, Carrillo committed the crime in furtherance of the LNS gang. The prosecution introduced a certified copy of the conviction record.

The expert described a second predicate offense occurring on November 5, 2002. Francisco Tapia, a self-admitted LNS gang member, was convicted of assault with a deadly weapon. In Tapia’s statement, he said he committed the assault because the victim was a Sureño gang member. In the expert’s opinion, Tapia committed the crime in furtherance of the LNS gang. The prosecution introduced a certified copy of the conviction record.

The expert was familiar with appellant. He had spoken to other officers about him, had read reports about him and had reviewed field identification cards about him. On October 24, 2003, law enforcement responded to the high school because appellant possessed a knife at school. He also possessed a red bandana and two red pens, which Norteño gang members often carried as symbols of their gang membership.

On January 25, 2004, appellant was involved in a traffic stop. He was with Soto, Salvador Segura, Javier Picasso and Ernesto Picasso. Segura was a self-admitted LNS gang member and both Soto and Javier Picasso were also LNS gang members.

On February 9, 2004, law enforcement responded to a possible vandalism. The officer interviewed and released appellant, Soto, and Soto’s brother.

When police contacted appellant regarding the present case on August 15, 2004, he was with Soto, Arredondo, Ramon Martinez, James Torres, Hugo Flores and Victor Flores. They were at the carport of appellant’s residence. The expert testified that Soto, Arredondo, Martinez and Torres were self-admitted LNS members. Hugo and Victor Flores were LNS associates. Appellant’s residence was a gathering place for LNS members. Appellant had two tattoos, one on each shoulder, both of which discreetly incorporated the number “14.” Anyone who wore a tattoo with the number “14” would have to prove their loyalty to the gang or their history of being a Norteño. They would have to show that they were either a gang member or an associate. If they could not do so, “they would be dealt with or the tattoo would be removed.” In the expert’s opinion, appellant was an LNS member because of his contacts, his activities and his tattoos.

The expert testified he had recently received something that further confirmed his belief that appellant was an LNS member. On January 7, 2005, the Farmersville police arrested a parolee who was carrying a list of 14 names, most of whom were LNS members or associates. The list contained appellant’s and Soto’s names. Eleven of the 14 names on the list, including appellant’s and Soto’s, were ranked within the LNS gang.

In the expert’s opinion, Soto was also an LNS member. The expert based his opinion on Soto’s admission, his associations and contacts (which the expert detailed), his clothing and his gang paraphernalia.

The expert explained that commission of an act of retaliation, such as what occurred in this case, would promote a person’s status within the gang because it would show respect and loyalty to the gang. The expert said that intimidation was commonly used by LNS members. They would assault and intimidate anyone who crossed them, “ratted” on them, confronted them or failed to abide by their rules. It would not matter that the person who crossed them was a friend. They committed these intimidation assaults as a group in order to show strength and cause fear in the victims.

Someone who took part in an assault of intimidation would personally benefit because their status within the gang would be elevated or they might become a member of the gang. Sometimes gang associates took part in crimes that were in furtherance of the gang. Doing so could help them become a member or become ranked.

The expert explained that because of gang members’ awareness of the gang enhancement pursuant to section 186.22, gang members were denying their gang membership to the police and hiding their colors, paraphernalia, and tattoos.

On cross-examination, the expert testified that not all crimes committed by gang members were committed in furtherance of gang activity. Moreover, a person’s mere possession of a red handkerchief or a red pen or his wearing of red clothing did not mean he was a gang member or associate. However, these factors could be considered in combination with the person’s activities and associations.

The expert agreed that not all the individuals involved in gang-related situations were gang members. Appellant had never admitted gang membership to the expert, and in fact had adamantly denied it. There were no field identification cards containing appellant’s admission to gang membership. Other than the current offense, appellant had not been contacted in a gang-related setting where a gang-related crime had been committed.

The expert acknowledged that the names Armando and Flores were both common names in Lindsay and therefore the “Armando Flores” on the list might not refer to appellant.

Defense Evidence

Domingo Flores was a criminal investigator for the District Attorney’s Office. He interviewed C. regarding the beer theft and the break-in. She told him a person, who was not appellant, stole the beer from her and also later kicked open her door. Flores never showed C. any photographic line-ups.

Victor Flores, Jr., appellant’s brother, testified that on the night of the incident he came home around 8:00 p.m. Appellant was outside with some friends. Victor saw appellant again around 10:00 or 11:00 p.m. when Victor said goodnight and went into his room. Appellant also went into his room. Victor did not see or hear appellant leave his room. The next time Victor saw appellant was the following day at about 1:30 p.m. Victor did, however, wake up and go outside when the police came that night. The police patted him down and placed him in the back of the police car. Victor denied cursing at the officers or being combative.

Victor Flores, Sr., appellant’s father, testified that appellant was at home during the day, the night and the next morning. Appellant never left during the evening, although appellant’s father went to bed at 10:00 p.m. and woke up at 7:00 a.m.

Amalia Panflona, appellant’s mother, testified that appellant was home that evening and never left the house. As soon as appellant finished dinner, he went to his room to lie down.

DISCUSSION

I. Beer Theft

Appellant contends admission of the beer theft evidence was improper for multiple reasons. He argues the evidence (1) was irrelevant because there was no evidence that he participated in the theft; (2) was not probative of knowledge, intent, scheme or identity because there was no similarity between the crimes and no proof that appellant participated in the theft; (3) was inadmissible to show motive because proof of motive was not necessary and was not probative of any element of the crimes, and even if probative, was outweighed by its inflammatory nature; (4) was inadmissible to prove identity through motive without proof that appellant participated in the theft; (5) was irrelevant to prove gang purpose because there was no inference that the theft was gang related, other than Soto’s involvement, and no proof that appellant participated in the theft; (6) was unduly prejudicial under Evidence Code section 352 because there was no foundation that appellant participated in the theft and because the evidence was confusing due to its multiple purposes; (7) should have been sanitized; and (8) was not harmless because appellant’s participation in the theft, which was prejudicial, was the cornerstone of the prosecution’s case.

Most if not all of appellant’s arguments are premised on his incorrect and persistent characterization of the prosecution’s theory as attempting (but failing) to show that appellant participated in or was present during the beer theft. In fact, early in the case, the prosecution conceded there would be no evidence placing appellant at the theft. Instead the theory was that at least one gang member (Soto) participated in the beer theft and that appellant, who was affiliated with the gang, participated in the retaliatory attack with Soto and other gang members and associates when they learned the victim had reported the theft to the police. Appellant goes to great lengths to argue issues that fail to grasp this theory.^[2]

In general, evidence of a motive to commit a crime is relevant. (People v. Harris (2005) 37 Cal.4th 310, 337 [test of relevance is whether the evidence tends logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive].) “[E]vidence of motive makes the crime understandable and renders the inferences regarding defendant’s intent more reasonable. ‘Motive is not a matter whose existence the People must prove or whose nonexistence the defense must establish. [Citation.] Nonetheless, “[p]roof of the presence of motive is material as evidence tending to refute or support the presumption of innocence.”’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 705.)

Evidence of the beer theft -- and particularly the victim’s reporting of the theft to the police -- was introduced to show that appellant and other gang members and associates had a motive to commit a retaliatory attack against C. and J. The prosecution’s evidence established that someone stole the beer, got in a green Camry with other people including at least one gang member (Soto). Shortly thereafter, while appellant, Soto, Arredondo (a gang member) and other gang members and associates were drinking beer in appellant’s carport, the police arrived and asked about their involvement in the beer theft. A green Camry was nearby. Shortly after the police left, appellant, Soto, Arredondo, the person who stole the beer, and others burst into C. and J.’s residence, demanding to know who had called the police. They assaulted J. and threatened both C. and J., warning them not to call the police again. The expert explained that LNS gang members often use retaliation and intimidation for this purpose.

Appellant’s participation in or presence during the beer theft was not shown and was not required; C.’s reporting of the crime to the police and appellant’s gang-related associations with those involved in the theft provided a motive and an explanation for the retaliation and intimidation. This was not a case, as appellant asserts, of evidence of another crime linked to no one at all (People v. Jackson (1967) 254 Cal.App.2d 655, 658). It was linked to appellant through his gang associations and the events of the day. Evidence of the beer theft was relevant and not unduly prejudicial. The trial court did not abuse its discretion by admitting it. (People v. Guerra (2006) 37 Cal.4th 1067, 1113 [abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence].)^[3]

II. Gang Membership List

Appellant argues the trial court abused its discretion by admitting the list of gang members and associates found on the arrested parolee. Appellant contends evidence of the list (1) was hearsay offered for the truth that appellant was an LNS member; (2) was unreliable and speculative because there was no showing of how the list was prepared or that “Armando Flores” referred to appellant; (3) was improperly redacted because the trial court eliminated reference to exculpatory information; (4) violated appellant’s right to confrontation because he did not have the opportunity to call the parolee; and (5) was prejudicial because there was little other evidence that appellant was a gang member.

Even matter that is ordinarily inadmissible, such as hearsay, can form the basis for a gang expert’s opinion testimony. (People v. Gardeley (1996) 14 Cal.4th 605, 618; see also People v. Montiel (1993) 5 Cal.4th 877, 919.) For example, a gang expert may rely upon conversations with gang members, his or her personal investigations of gang-related crimes, and information obtained from colleagues and other law enforcement agencies. (People v. Gardeley, supra, 14 Cal.4th at p. 620; People v. Duran (2002) 97 Cal.App.4th 1448, 1463-1464.) Here, although the list was hearsay, the trial court could reasonably have found it to be reliable because the expert recognized most of the people on the list as LNS members or associates, including appellant’s associate, Soto. Nevertheless, even if admission of the list was error, it was harmless. There was ample evidence apart from the list from which a jury could conclude appellant was associated with gang members or was a gang member himself. It was not necessary for the prosecution to prove that appellant was a gang member (see In re Ramon T. (1997) 57 Cal.App.4th 201, 206-207 [finding that defendant is a gang member not required for § 186.22, subd. (b) gang enhancement]); appellant’s association with gang members supported the theory that he joined the retaliatory attack for the benefit of the gang. In sum, there was more than sufficient evidence that appellant associated with gang members and the list did no more than corroborate that evidence. It is not reasonably probable appellant would have realized a more favorable result had the evidence not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.)^[4]

III. Gang Expert’s Testimony

Appellant contends admission of the gang expert’s testimony was improper because (1) it relied on the self-admissions of gang members, the list and other improper bases; (2) the expert improperly opined on the self-admissions and on appellant’s association with gang members because these events were commonplace observations within the jury’s understanding; (3) the expert improperly gave an ultimate opinion on the element of subjective intent when he testified that the assault was committed for the benefit of the gang and with the specific intent to promote the gang; and (4) the expert improperly gave an ultimate opinion on the element of subjective intent when he testified that the predicate offenses were committed in furtherance of a gang purpose and motive.

Appellant first contends the expert, in concluding that appellant, Soto and others were gang members, improperly relied upon his review of police records, his personal conversations with gang members and the gang members’ self-admissions. Appellant argues that these matters were incompetent hearsay under People v. Killebrew (2002) 103 Cal.App.4th 644. That case, however, does not stand for the proposition that an expert cannot base an opinion on reliable hearsay and appellant does not explain why he believes this hearsay was unreliable. In our opinion, a person’s admission that he is a gang member is reliable hearsay and is highly probative of whether he is a gang member. In Killebrew, we explained that “[t]he trial court abused its discretion by allowing [the expert] to testify at such great length about material that inflamed the jury’s passions and had little or no probative value.” (Id. at p. 659.) That did not occur here. Furthermore, the expert did not testify to subjective knowledge and intent, which we held to be objectionable in Killebrew.

Appellant maintains that expert testimony was not required to explain to the jury the meaning of gang members’ self-admissions or of appellant’s association with gang members because these matters were not “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact ….” (Evid. Code, § 801, subd. (a).) The expert, however, was simply relying on these events and observations as a basis for his opinions that appellant was a gang member and that the crime was committed for the benefit of the gang. (See People v. Thomas (2005) 130 Cal.App.4th 1202, 1210 and discussion infra.)

Appellant argues the gang expert testified to ultimate issues as to the elements of the gang enhancement and therefore expressed his personal belief as to how the jury should decide the case. Appellant claims the expert gave his opinion regarding appellant’s subjective intent to benefit the gang, but we do not find this in our review of the record. The issue of appellant’s specific intent was left to the jury. A gang expert may testify concerning whether the defendant acted for the benefit of a gang, even though it is an ultimate factual issue for the jury to decide, because these are matters far beyond the common experience of the jury and justified expert testimony. (People v. Valdez (1997) 58 Cal.App.4th 494, 508-510.)

Likewise, the expert did not testify to the subjective intents of the perpetrators of the predicate offenses. He testified that in his opinion the offenses were committed in furtherance of the LNS gang. Again, any reliance the expert placed on the gang members’ self-admissions was not improper. Although it was not necessary for the prosecution to show that the predicate offenses were gang related (People v. Gardeley, supra, 14 Cal.4th at pp. 621-623), appellant presents no authority to support his theory that it was error to do so.

IV. Crawford Error

Citing Crawford v. Washington, supra, 541 U.S. 36, appellant asserts that his right to confrontation was undermined by the expert’s reliance on the gang members’ self-admissions. A nearly identical argument was made and rejected in People v. Thomas, supra, 130 Cal.App.4th 1202. Appellant urges us not to follow Thomas.

The Thomas court reasoned as follows:

“Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion. Crawford itself states that the Confrontation Clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.’ [Citation.]

“Here, the conversations with other gang members were mentioned only as a basis for Kwan’s opinion that defendant was a gang member. There was no Sixth Amendment violation based on Kwan’s reliance on hearsay matters.

“Moreover, although no published California case has yet addressed whether Crawford applies to hearsay statements that are used not as direct evidence against the defendant but merely as the basis for an expert’s opinion, courts in other jurisdictions have held upheld such use. [Citations.]

...

“Thus, because the statements were not offered to establish the truth of the matter asserted, but merely as one of the bases for an expert witness’s opinion, the confrontation clause, as interpreted in Crawford, does not apply. There was no error in the use of the hearsay statements.” (People v. Thomas, supra, 130 Cal.App.4th at p. 1210.)

We agree with the holding of Thomas. In doing so, we reject appellant’s contention that Crawford demands a different result in this case. We further note that the defense was accorded and took advantage of the opportunity to cross-examine the expert concerning the bases of his opinions. Moreover, the expert considered evidence beyond self-admissions, such as activities, associations, clothing and paraphernalia.

V. Foundational Hearing

Appellant claims the trial court should have conducted a foundational hearing to determine whether the expert’s opinions were based on an adequate foundation rather than mere speculation or conjecture.

“In determining the admissibility of evidence, the trial court has broad discretion.... A trial court’s ruling on admissibility implies whatever finding of fact is prerequisite thereto; a separate or formal finding is, with exceptions not applicable here, unnecessary. [Citation.] … On appeal, a trial court’s decision to admit or not admit evidence, whether made in limine or following a hearing pursuant to Evidence Code section 402, is reviewed only for abuse of discretion. [Citations.]” (People v. Williams (1997) 16 Cal.4th 153, 196-197.) In this case, there was adequate foundation for the expert’s opinions, including his experience and training, his discussions with other officers, his review of police reports and field identification cards, his observations and his conversations with gang members. In our opinion, the trial court made an informed ruling on the admissibility of the expert’s testimony and did not abuse its discretion by not conducting a foundational hearing to further assess the reliability of the expert’s testimony.

VI. Sufficiency of Evidence

Appellant asserts that “if the improper hearsay bases of [the expert’s] testimony are redacted from the record, there would clearly be insufficient evidence to support the [gang] enhancement.” He argues that the expert’s opinion that appellant knowingly assisted in a gang assault was based only on “appellant’s associations with supposed gang members.” Again, he points to the self-admissions as inadequate proof of gang membership.

We agree that the gang enhancement does not criminalize mere gang membership or association with gang members. (See People v. Gardeley, supra, 14 Cal.4th at pp. 623-624; see also People v. Loeun (1997) 17 Cal.4th at p. 11; In re Frank S. (2006) __ Cal.App.4th __, __ [2006 WL 2129997].) There must be evidence the charged offense was committed for the benefit of the gang and not for personal reasons. (People v. Gardeley, supra, at p. 622.) Here, as we have explained, the expert properly relied on the self-admissions of gang members. Thus, there was evidence that appellant associated with self-admitted gang members and gang associates. His residence was a gang gathering place. He exhibited gang colors and paraphernalia. He participated in an attack of retaliation and intimidation following a theft involving at least one gang member with whom he associated. From this and the other evidence already discussed, we conclude there was sufficient evidence from which reasonable jurors could infer that the attack against C. and J. was motivated by their reporting of the beer theft to the police, and that appellant and the other gang members and associates who carried out the retaliation were affiliated with the LNS gang and committed the attack to benefit the gang.

VII. Motion to Bifurcate

Appellant contends the trial court should have granted his motion to bifurcate the gang allegation from the underlying offenses to prevent undue prejudice from the inflammatory gang evidence.

In People v. Hernandez (2004) 33 Cal.4th 1040, the court discussed bifurcation of a gang enhancement and noted that, in contrast to an enhancement such as a prior conviction allegation that may have no connection to the underlying charge, a gang allegation is “inextricably intertwined” with the underlying offense. (Id. at pp. 1048-1049.) Although the court concluded denial of bifurcation was not an abuse of discretion in that case, it noted a trial court retained discretion to bifurcate a gang allegation where proof of the predicate crimes was unrelated to the charged offense and unduly prejudicial, or “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 defendant’s actual guilt.” (Id. at p. 1049.) Neither of these situations existed here. Evidence of the predicate crimes was minimal and not unduly prejudicial. The other gang evidence was intertwined with the underlying offense because it was relevant to the issue of motive, and it was not unduly prejudicial. Under these circumstances, the trial court did not abuse its discretion by denying the request to bifurcate.

VIII. Ineffective Assistance of Counsel

Appellant contends defense counsel was ineffective for failing to seek an instruction that would have limited the jury’s consideration of the gang evidence. Appellant argues such an instruction would have warned the jury against “drawing an inference of guilt from propensity” and “limited the probative use of the [gang] evidence to the narrow purpose of showing an intent to promote a gang purpose.” He explains that, “[p]roperly modified, such an instruction would [have] informed the jury that admission of the other act evidence did not imply appellant’s presence at the beer theft and was not admitted for the purpose of proving appellant’s identity as the perpetrator of the charged offenses.” He points out that identity was not in doubt in his case.

To establish ineffective assistance of counsel, appellant must show “‘that counsel’s performance was deficient … [and] that, absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him.’” (People v. Hernandez, supra, 33 Cal.4th at pp. 1052-1053.) If the record does not disclose why counsel failed to act, we must reject the contention unless there could be no satisfactory explanation. (Id. at p. 1053.) Here, it is certainly possible that a reasonable attorney would have concluded there was more to lose from emphasizing the gang evidence in a jury instruction highlighting how such evidence could and could not be used. (See People v. Hernandez, supra, 33 Cal.4th at p. 1053.) Moreover, it is not reasonably probable that a result more favorable to appellant would have resulted had a limiting instruction been given. The prosecutor did not imply or argue that the evidence could be used to establish bad character or criminal propensity. Rather, the purpose of the gang evidence was to prove the gang enhancement and to provide a motive for appellant’s commission of the charged offenses. We conclude that a limiting instruction “would not have significantly aided [appellant] under these facts or weakened the strength of the evidence of guilt the jury properly could have considered.” (Id. at p. 1054.)^[5] Appellant next argues defense counsel was ineffective for failing to raise various evidentiary objections. We have addressed appellant’s evidentiary concerns on the merits and consequently conclude that counsel was not ineffective for failing to raise unmeritorious objections. (People v. McPeters (1992) 2 Cal.4th 1148, 1173.) Similarly, defense counsel’s failure to object to evidence on due process grounds did not harm appellant because there was no due process violation.

IX. Cumulative Due Process Error

Finally, having found no prejudicial error, we find no cumulative due process error.

disposition

The judgment is affirmed.

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Kane, J.

WE CONCUR:

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Levy, Acting P.J.

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Dawson, J.

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Analysis and review provided by San Diego County Property line attorney.

^[1] All statutory references are to the Penal Code unless otherwise noted.

^[2] Appellant’s briefing has made our job particularly laborious and frustrating. Briefing that is verbose and excessively broad is both oppressive and ineffective. Briefs should be concise, direct, and well-focused on justifiable arguments. Furthermore, arguments that call on us to reweigh the evidence are unproductive. Finally, we appreciate more substance and less ornamentation (e.g., “‘[M]otive’ easily becomes the Joker in the evidentiary pack”; “Just about anything dredged up from the muck of human psychology could be alleged as the cause of specified conduct.”; “[T]he way is clear to turn trials into mere smear-fests.”; “[S]uch a conceptual pleonasm simply creates an intent element where none exists”).

^[3] We also reject appellant’s argument that the trial court should have “sanitized” the prior theft to “a general description of the fact that a beer theft had occurred.” The details of the theft were not unduly prejudicial and were relevant to explain the reason for the attack.

^[4] We reject as nonsense appellant’s argument that the redacted notations “Hitman” and “18” would have exculpated appellant because it was so obvious that he was neither a hitman nor 18 years old and therefore “Armando Flores” could not have referred to appellant.

In light of our conclusions regarding evidence of the prior theft and the membership list, we need not address appellant’s contention that admission of this evidence violated his due process rights to a fair trial.

^[5] As we have explained, the prosecution did not use the evidence to show that appellant was present during or participated in the beer theft. Thus an instruction to this effect was not supported by the evidence and defense counsel was not ineffective for failing to request it. (People v. Ochoa (1998) 19 Cal.4th 353, 434.)

We note that appellant also mentions, without the benefit of any argument, that counsel should have prepared a related instruction informing the jurors to first determine guilt on the underlying charges before determining the enhancement issues. This is not an adequate claim of error. A point perfunctorily raised, without analysis and authority, is passed as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11; People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; People v. Bonin (1989) 47 Cal.3d 808, 857, fn. 6)