People v. Quang Minh Tran

Other evidence also linked defendant to the attacks on Vuong and Bui. Hanh Dam, a V member, testified that a few days after Bui’s murder, defendant warned him to be careful if he saw any OPB members, telling Dam about the incident at the gas station, explaining that defendant had learned where Vuong lived, and telling Dam “they” had shot at Vuong and killed Vuong’s friend. The bullet that killed Bui was consistent with a bullet fired from a TEC-9, and was of the same make as several live rounds recovered from the apartment complex that could have been ejected from a TEC-9 if the weapon had jammed or misfired. A witness who heard shooting saw several men run out of the complex and jump into cars. One of the cars, a burgundy four-door Acura with tinted windows and shiny chrome wheels, met the description of the car defendant drove at that time.

Officer Ronnie Echevarria, a police expert on criminal street gangs, was familiar with VFL, V and OPB, and with the members of each gang. Echevarria testified he knew defendant and knew that on May 6, 1997, defendant was an active participant in VFL, a gang that engaged in extortion, prostitution, robberies, and burglaries as its primary activities. Echevarria was also familiar with gang culture. He stated that respect is of paramount importance to gangs, and that gang members will shoot members of a rival gang to enhance the reputation of their own gang, to benefit their gang’s recruitment processes, and to send the message that gang members will react violently to acts of disrespect committed against the gang.

To establish the predicate offenses required to show a pattern of criminal gang activity, Echevarria testified about Noel Jesse Mata, a VFL member who in 1996 shot three men he believed to be members of OPB to retaliate for the 1992 death of another VFL member. Over defendant’s objection, Echevarria also testified about a series of extortions defendant and several other VFL members had undertaken in 1993 and 1994 against Vietnamese businesses. Echevarria stated that VFL members had fired shots into some businesses and had made threats against others. Defendant, defendant’s brother, and another VFL member had been arrested and prosecuted as the result of a “sting” in

In Ewoldt, for example, a prosecution for lewd acts committed against a child under the age of 14 years, we concluded that the trial court had not abused its discretion by admitting evidence the defendant had committed other, uncharged lewd acts against the victim and her sister. Although the evidence was prejudicial to the defendant, it was also probative, strongly suggesting a common design or plan. (Evid. Code, § 1101, subd. (b); People v. Ewoldt, supra, 7 Cal.4th at p. 404.) We identified several factors that might serve to increase or decrease the probative value or the prejudicial effect of evidence of uncharged misconduct and thus are relevant to the weighing process required by Evidence Code section 352.

The probative value of the evidence is enhanced if it emanates from a source independent of evidence of the charged offense because the risk that the witness’s account was influenced by knowledge of the charged offense is thereby eliminated. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) On the other hand, the prejudicial effect of the evidence is increased if the uncharged acts did not result in a criminal conviction. This is because the jury might be inclined to punish the defendant for the uncharged acts regardless of whether it considers the defendant guilty of the charged offense and because the absence of a conviction increases the likelihood of confusing the issues, in that the jury will have to determine whether the uncharged acts occurred. {Id. at p. 405.) The potential for prejudice is decreased, however, when testimony describing the defendant’s uncharged acts is no stronger or more inflammatory than the testimony concerning the charged offense. (Ibid.)

In Ewoldt, we concluded that the totality of the circumstances supported the trial court’s decision to admit the evidence of the defendant’s uncharged criminal acts. And we so concluded even though not all of the listed factors weighed in favor of admitting the evidence. Thus, we found the evidence admissible although the source of the testimony relevant to the uncharged acts was not wholly independent of the evidence of the charged offense, and the uncharged acts had not resulted in a criminal conviction. (People v. Ewoldt, supra, 7 Cal.4th at p. 405.)

At the same time, the inherent prejudice from a defendant’s separate gang-related offense typically will be less when the evidence is admitted to establish a predicate offense in a prosecution for active participation in a criminal street gang, than when it is admitted to establish an intermediary fact from which guilt may be inferred. “Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant’s guilt.” (People v. Crew (2003) 31 Cal.4th 822 , 842 [ 3 Cal.Rptr.3d 733 , 74 P.3d 820 ].) As we explained in People v. Doolin (2009) 45 Cal.4th 390 [ 87 Cal.Rptr.3d 209 , 198 P.3d 11 ]: “ ‘The prejudice that section 352 “ ‘is designed to avoid is not th.e prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’ [Citations.] ‘Rather, the statute uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors.’ ” ’ ” (Id. at p. 439.) That the evidence provided direct evidence of some of the elements of the prosecution’s case thus does not weigh against its admission. In addition, because the prosecution is required to establish the defendant was an active participant in a criminal street gang and had knowledge of the gang’s criminal activities, the jury inevitably and necessarily will in any event receive evidence tending to show the defendant actively supported the street gang’s criminal activities. That the defendant was personally involved in some of those activities typically will not so increase the prejudicial nature of the evidence as to unfairly bias the jury against the defendant. In short, the use of evidence of a defendant’s separate offense to prove a predicate offense should not generally create “an intolerable ‘risk to the fairness of the proceedings or the reliability of the outcome.’ ” {People v. Waidla, supra, 22 Cal.4th at p. 724.)

Defendant argues that evidence of a defendant’s separate offense on another occasion should not be admitted when it is “cumulative.” By this he seems to mean that the evidence should not be admitted when the prosecution has the ability to develop evidence of offenses committed on separate occasions by other gang members. But defendant cites no authority for the

Nor was the evidence unduly prejudicial. As we have explained, that the evidence tended to establish elements of the prosecution’s case did not render it prejudicial for purposes of Evidence Code section 352. (People v. Doolin, supra, 45 Cal.4th at p. 439; People v. Crew, supra, 31 Cal.4th at p. 842; People v. Karis (1988) 46 Cal.3d 612 , 638 [ 250 Cal.Rptr. 659 , 758 P.2d 1189 ].) Looking again to the factors identified in Ewoldt, because defendant stood convicted of the extortion, there was little danger of confusing the issues by requiring the jury to determine if defendant was guilty of both the charged offenses and the extortion, and no risk the jury might convict defendant to prevent him from escaping punishment for the extortion. The evidence of defendant’s extortion activities was less inflammatory than the testimony about the charged offenses (see People v. Ewoldt, supra, 7 Cal.4th at p. 405): although Officer Echevarria stated that shots were fired during the 1993 to 1994 extortions, there was no evidence anyone was killed or injured or that defendant personally shot at or threatened anyone. And finally, the court gave a limiting instruction, telling the jury evidence of separate criminal acts by gang members could not be considered to prove defendant was a person of bad character or had a disposition to commit crimes.

The probative value of the evidence thus far outweighed its prejudicial ' effect, justifying the trial court’s decision to admit it.