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People v. Williams

January 23, 2009


APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. Affirmed as modified. (Super. Ct. No. INF053581).

The opinion of the court was delivered by: Hollenhorst J.




Defendant Kenneth Demario Williams appeals from his conviction of: Possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)-count 1); possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)-a lesser offense in count 2); possession of a controlled substance while armed (Health & Saf. Code, § 11370.1-count 3); possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1)-count 4); and participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)-count 5), along with the true findings on allegations as to counts 2 through 4 that defendant committed the crimes for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)).*fn1

Although framed under a variety of headings-trial court abuse of discretion, trial court misconduct, and prosecutorial misconduct-defendant's principal argument is that it was error to admit evidence about dozens of contacts defendant and fellow gang members had with law enforcement, regardless of whether those contacts had led to convictions or even to arrests, and regardless of whether the evidence had any reliable basis. Although we find plain error in the admission of such unnecessary quantities of evidence, which turned the trial of this routine drug and weapons possession case into a weeks-long marathon, we nonetheless find the error harmless because the case against defendant was overwhelming.

Defendant also contends: (1) the trial court erred by permitting expert witnesses to give opinions on the ultimate issues; (2) the trial court committed other misconduct; (3) the evidence was insufficient to support defendant's conviction because a police officer testified that any one of the seven persons present in the house where the contraband was found could have possessed the guns and drugs; (4) misdemeanor assault was erroneously identified to the jury as a predicate offense to support the gang charge and enhancement allegations; (5) the trial court erred in instructing the jury that the specific intent for the gang enhancement was to promote any criminal conduct; (6) the trial court erred in failing to instruct the jury sua sponte on the definition of the term "principal"; (7) the prosecutor committed misconduct; (8) the upper term for the gang enhancement allegation in count 3 violated defendant's Sixth Amendment right to a jury trial; (9) other sentencing errors occurred; and (10) cumulative errors resulted in a fundamentally unfair trial.

The People concede a sentencing error must be corrected, and we conclude additional sentencing errors must likewise be corrected. We find that any other errors that occurred, whether considered individually or cumulatively, were not prejudicial, and we affirm.


A. Evidence Relating to Current Charges

On February 16, 2006, Palm Springs Police Department officers went to 364 Avenida Cerca to arrest Dimitri Allen on an outstanding warrant. Allen, who had been standing on the front porch of the house when the officers arrived, went inside and closed the door after the officers identified themselves and ordered him to the ground. The officers called for backup and set up a perimeter.

Sergeant Bryan Anderson knocked on the door. Defendant eventually opened the interior door but left the security screen locked. The officers told defendant they were there to serve the arrest warrant on Allen, but defendant refused to let the police enter. In a two- to three-minute conversation, defendant told the officers several times that they had no right to enter his house and that he had been working on the computer in his bedroom. Defendant was visible to the police the entire time, and the officers could hear other persons moving around inside the house. Eventually, defendant allowed the officers to enter the house.

Defendant and six other men-Allen, Tracy Session,*fn2 Christopher Manning, Bobby Shaw, Trevon Smith, and Damion Lee*fn3 -exited the house. All the men except Shaw were members of the Gateway Posse Crips (GPC) gang, and Shaw was an associate of that gang. A woman, Michelle Booty, was outside the house beside a car.

The officers searched the house. In the northeast bedroom, they found a laptop computer and two cell phones on a bed. A loaded nine-millimeter handgun was under a pillow on the bed. In that bedroom, the officers also found a drug pipe, two digital scales, and mail addressed to defendant at 364 Avenida Cerca and other addresses. The officers also found defendant's driver's license and California identification card in the bedroom; both pieces of identification had the 364 Avenida Cerca address on them. A box of .44 magnum ammunition and a box of nine-millimeter ammunition were found on the dresser and a box of .44 Winchester ammunition was found in a Louis Vuitton bag in the bedroom closet. The closet contained men's clothing consistent with defendant's size. A ball cap found in the bedroom bore defendant's moniker, "Swif."*fn4

In the garage, approximately 11 to 15 feet from the bedroom, the officers found a duffel bag that contained 11 baggies of methamphetamine and a revolver with the word "Crip" etched on it. It was stipulated that one baggie contained 3.3 grams of methamphetamine, and each of 10 smaller baggies contained .5 grams of methamphetamine.

The officers arrested all seven men who had been in the house for possession of guns and methamphetamine. Defendant, who was unemployed, had $776.98 in his possession. Manning had $0.35 on him; Shaw had $73.01; Smith had $72.40, and Session had $17.76.

Sergeant Matthew Beard testified at trial that the guns, ammunition, and drugs belonged to defendant. At the preliminary hearing, Sergeant Beard had testified that all those in the house had access to the drugs and firearms.

Sergeant Anderson testified as an expert on methamphetamine and drug sales. He testified that .5 grams of methamphetamine were a usable quantity worth $25 to $40, and 3.3 grams of methamphetamine were worth $120 to $180. In his opinion, the methamphetamine was possessed for sale. That opinion was based in part on the amount of methamphetamine and the manner in which it was packaged, as well as the presence of the scales and cell phones. That opinion was also based on evidence of other crimes admitted under Evidence Code section 1101, subdivision (b), further discussed below, and on a search conducted at defendant's home in December 1989. At the time of the 1989 search, defendant had been living with a relative, Kenneth Crawford, who was a member of a predecessor gang to the GPC. During that search, the officers had found one or two sawed-off shotguns, a handgun, and drug paraphernalia. Another person in the house had drugs on his person. Defendant was arrested in that incident for maintaining a drug house, and he received diversion. Sergeant Anderson also testified he would have formed the opinion that the methamphetamine was possessed for sale even without considering defendant's prior conduct.

Sergeant Anderson further stated his opinion that defendant had worked his way up from being a street-level drug seller or runner to his present position in which others sold drugs for him. The basis for that opinion included a police report stating that in February 1988, an officer had seen defendant on a street corner tossing a rock of cocaine. A fight had ensued when the officer had tried to arrest defendant, and defendant had escaped but had later turned himself in.

B. Evidence of Defendant's Other Crimes and Arrests

Before trial, the trial court ruled the prosecutor could introduce evidence under Evidence Code section 1101, subdivision (b), of three prior crimes involving defendant. At trial, the prosecutor produced evidence of those crimes, as follows:

(1) In December 1991, officers searched defendant's home and found two handguns, a rifle, a submachine gun, a shotgun with a pistol stock, a high-powered rifle, ammunition, $1,277 in cash, baggies, pay/owe sheets, and four pieces of rock cocaine. Defendant had another $360 on his person. Defendant was convicted in 1993 for possessing a controlled substance. (Health & Saf. Code, § 11351.5) At the time of his arrest, he said he supported himself and his girlfriend and children by selling rock cocaine, and the money found was from such sales. He told the officers he was a member of the GPC, he had several drug runners working for him, and he needed the guns because he was a gang member selling rock cocaine.

(2) In January 1992, a police officer saw defendant and two GPC members standing near a parked car. When the officer approached, defendant twice reached into his waistband and each time placed an object into the trunk of the parked car. The officers conducted a consensual search of the car and found two pagers and a loaded pistol. Defendant admitted ownership of the pagers and the pistol. The officers arrested defendant for having a concealed firearm and found $1,428 in cash in his pocket. Sergeant Anderson testified that at the time, drug dealers and buyers communicated with pagers.

(3) In April 2003, pursuant to a search warrant, police officers searched Session's house, where defendant was then living. Defendant, Session, and another GPC member were present during the search. The officers found a modified shotgun in defendant's bedroom, and he was carrying $2,874 in his pocket. The officers found a revolver and marijuana in Session's room, and a scale, a revolver, marijuana, and $1,000 in counterfeit money in the garage.

The prosecutor also introduced evidence of the following crimes and contacts with law enforcement:*fn5

(1) In 1988, unspecified members of the GPC were arrested for robberies of students at the high school defendant attended.

(2) In February 1988, defendant, who was then a juvenile, allegedly discarded cocaine and fought with officers on a street corner.

(3) In June 1988, defendant purportedly threatened to kill a teacher at his high school.

(4) While in high school, defendant purportedly shoplifted clothing.

(5) In July 1990, defendant was arrested for a home invasion robbery at the home of Norman Gant. Defendant was accused of possessing a firearm and purportedly told the police he was selling drugs. The records of the case were destroyed.

(6) In September 1991, defendant was arrested for assaulting Tyler Hamm with a deadly weapon. Defendant was not convicted.

(7) In March 1992, defendant was arrested for an unspecified offense with another GPC member.

(8) In July 1999, defendant was involved in a traffic collision.

(9) Defendant coached his son's football team, purportedly in violation of his probation.

(10) In November 2000, defendant broke up a riot at Session's house. Defendant was not arrested or convicted.

(11) In October 2002, defendant received a traffic ticket. (12) In January 2003, defendant drove around the neighborhood stopping his car to talk to drug runners.

(13) In June 2001, defendant was arrested for and later convicted of misdemeanor battery on an umpire.

(14) In April 2004, a police report stated defendant had been in the presence of other gang members at a nightclub. Defendant was not arrested or convicted.

(15) In April 2004, defendant broke up a fight at a Denny's restaurant. The police claimed defendant possessed stolen property. Defendant was not arrested or convicted.

C. Gang Evidence

Palm Springs Police Detective William Judd testified as a gang expert. He testified that the GPC originated in 1988, and defendant, whose moniker is "Big Swif," was one of the founding members. The GPC operates in the northern part of Palm Springs and Desert Hot Springs and has more than 100 members who use common signs and symbols. Detective Judd testified the GPC's primary activities are drug sales, prostitution, and strong-arm robberies, and its members have also committed murder, kidnapping, grand theft auto, robbery, arson, and extortion.

Detective Judd had first met defendant during the 1986-1987 school year when the detective had been a campus police officer at defendant's high school. The next year, Detective Judd became aware of defendant's membership in the GPC when defendant and other students began bragging about it. Defendant distributed blue flannel shirts (blue was the GPC color) to fellow gang members at a football game and referred to the Crips in June 1988, when he threatened to shoot a teacher.

Detective Judd testified that defendant had GPC-related tattoos on his stomach and forearms, including a "RIP Tiny Crazo" tattoo on one forearm. GPC member Tiny Crazo died in early 2003.

Detective Judd identified defendant in GPC-related photographs from the early 1990's. The detective testified that defendant's name at the top of a gang roster indicated defendant's leadership position. Defendant had admitted gang membership when he was arrested in the late 1980's and again in the late 1990's. Defendant also had admitted his gang membership during a traffic stop in January 2006 and when he was being booked in the present case.

Two letters found during the search of the Avenida Cerca house were addressed to defendant as "Big Swif" and were from GPC member James Murrell, also known as "Little Swif." The letters were dated in August and September 2005. Murrell was in prison, and in the letters he asked what was happening in the gang's turf and asked about another GPC member. Detective Judd testified that he believed the language used in one letter indicated defendant was still an active participant in the gang.

Detective Judd further testified that defendant had frequently been seen in the company of other GPC members. In July 1990, defendant had been arrested for a robbery with two GPC members. In January 2003, Detective Judd had seen defendant stop at different street corners and talk to people whom Detective Judd believed were defendant's drug runners. Also in 2003, defendant had paid the towing bill for a GPC associate whom Detective Judd believed was defendant's drug business employee. Defendant had been with another GPC member when he had paid that bill.

Detective Judd stated his opinion, based on defendant's police contacts, criminal activity, and admissions, that defendant was an active participant in the GPC from 1988 through 1999. In Detective Judd's opinion, based on observations of defendant with other GPC members, the leadership position defendant took in calming people during the 2000 arrest of another GPC member, defendant's "RIP Tiny Crazo" tattoo, and his 2003 arrest with other GPC members, defendant's active participation in the GPC continued from 2000 through 2006. Detective Judd believed defendant was a leader in the gang and also ran the gang's drug trade.

Detective Judd testified that on the day of the search of the Avenida Cerca house, defendant had tried to harbor Allen when the police arrived. Detective Judd believed the gang had been meeting about the recent gang-related murder of a GPC member. Detective Judd testified the GPC had been known to retaliate for violence against its members, and it was "quite possible . . . they were preparing for some sort of retaliation." Detective Judd believed defendant had acted on behalf of the GPC by providing a place for the meeting, by having weapons available to protect the drugs and the gang's territory, and by trying to intimidate or delay the officers at the front door of the house.

Detective Judd stated his opinion that the methamphetamine found in the garage was possessed for the benefit of the gang and was possessed for sale. He opined that the firearms and ammunition were possessed for the benefit of the gang to protect the gang's turf and members. Detective Judd testified that in his opinion, it was possible the methamphetamine belonged to defendant alone, because defendant was running the drug trade for the GPC. Detective Judd did not believe the other GPC members would have been able to sell the methamphetamine from the house without defendant's knowledge or permission.

The prosecutor introduced evidence of the following predicate crimes to establish the gang allegations and substantive gang offense:

(1) On August 10, 2001, four GPC members committed a robbery during which one GPC member fatally shot a drug buyer. Detective Judd believed the crime was gang related because all four participants were GPC members, and the shooter had fired when one of the gang's leaders had directed him to do so.

(2) On December 2, 2002, GPC members beat a man and smashed his face with a boulder. Defendant was not involved. Detective Judd believed the crime was gang related because three GPC members participated together and because the victim had confronted them on their turf.

(3) In 2003, a GPC member was convicted of robbery based on an incident in which he had stuck a lit cigarette in the crotch of and took money from an undercover officer who had argued with the member over the quality of drugs the member was selling in an undercover buy program.

(4) In 2003, during the same undercover buy program, three other GPC members and a GPC associate sold cocaine to undercover operatives.

(5) On April 11, 2004, ten to 15 GPC members were involved in a fight at a Denny's restaurant in an area the gang claimed as its turf. A nongang member was beaten almost to death, and GPC members stole his wallet and cell phone. Defendant was present but not involved in the fight. Detective Judd believed the incident was gang related because GPC members were making a statement about their turf.

(6) After the fight at Denny's, officers called the cell phone of the victim, and the person who answered the phone agreed to return the phone and the victim's wallet for a reward. Officers stopped defendant and GPC member Manning in a car en route to collect the reward. Defendant gave the wallet and phone to the police. Manning was convicted of receiving stolen property; defendant was not charged. An officer had seen defendant at a nightclub earlier that evening with two GPC members, one of whom was later convicted of assault based on the beating at Denny's.

(7) On July 7, 2005, a GPC member offered a $20 reward to the first junior member of the gang who could knock a 13-year-old boy unconscious. Detective Judd believed the crime was gang related because the victim had earlier been involved in a physical altercation with a GPC member. Certified court documents in San Bernardino County Superior Court case No. INF051266 showed that one GPC member had been convicted of aggravated assault.

(8) In addition, defendant's 1993 conviction of possession for sale of a controlled substance (Health & Saf. Code, § 11351.5) was designated a predicate offense.

D. Defense Evidence

Defendant testified in his own behalf. He testified that on February 16, 2006, he had been living with his girlfriend, Latasha Strange, and their children at 3601 North Sunrise. He was visiting his aunt's house at 364 Avenida Cerca that day, preparing to leave for a friend's funeral in Texas. Allen, Session, Shaw, Lee, Manning, defendant's brother Brandon Williams, and Michelle Booty were also at the aunt's house. Booty and Session were defendant's cousins; Allen, Shaw, and Lee were defendant's childhood friends.

Defendant admitted he had been one of the original members of the GPC, having joined in 1988 when he was 18. He had been a well-respected member and a "shot caller." He also admitted he had sold drugs from 1988 through 1993. He had used the profits from selling drugs to support his family, and he did not share the profits with the gang. He denied he had ever used runners to sell drugs.

Defendant testified he quit the gang in 1994 and had stopped selling drugs after 1997. He was not currently an active member of the gang. He testified that he had the gang tattoo put on his stomach in 1992 and had gang tattoos put on his arm in 1988 and 1990. He admitted a prior felony conviction for possession of cocaine for sale, a prior felony conviction for possession of a firearm by a felon, and a misdemeanor conviction for battery.

Defendant denied ownership of the guns, drugs, ammunition, and drug pipe found at the Avenida Cerca house. Defendant admitted he had possessed drugs when the police stopped him at a street corner in February 1988, but denied he had been selling drugs. He denied that he had maintained a drug house in 1989, and he testified that those charges had been dropped. He similarly denied involvement in other crimes. He explained that he had obtained the cash he was carrying on February 16 from Strange, a tax return, his aunts, and another person. The money was to pay for his car registration and his trip to the funeral in Texas.

Defendant's aunt, Gwen Crawford, testified she had lived at the Avenida Cerca house for 18 years, and defendant had stayed there "quite a bit." Defendant kept clothes and received mail there. He used the bedroom where the computer had been found. Others also had stayed at that house and had used that room. Two people had been living in her garage for the past couple of years. Crawford did not allow drugs or firearms in her house. On the afternoon of February 16, 2006, a friend had picked up Crawford at the Avenida Cerca house. When she left, defendant, Smith, and Booty were at the house, but Crawford did not remember any of the other men being there. Defendant had been preparing to go to his best friend's funeral in Texas. Crawford testified that she and her friend had given defendant money that day for his trip. She testified the Louis Vuitton bag containing ammunition that the officers had found in the bedroom closet resembled a bag that defendant owned.

E. Rebuttal Evidence

The manager of Strange's apartment complex testified she had occasionally seen defendant there in 2002 and had last seen him there in 2003. The manager testified she would have known if defendant had been living with Strange in February 2006, and he had not been living there.

A deputy who completed classification forms for defendant at jail in February 2006 testified that defendant had told the deputy defendant was affiliated with the GPC, his moniker was "Big Swif," and he had a tattoo saying "Gateway Posse" on his right arm and another tattoo saying "GWPC" on his stomach. Defendant certified with his signature that those statements were true. The purpose of asking inmates about their gang affiliation was to protect the inmates by ensuring they were not housed with members of rival gangs.

Another deputy testified that defendant had made similar statements in June 2006 concerning his gang affiliation, moniker, and tattoos. Defendant told that deputy his rival gangs were Tre 9 and Bloods. Defendant had again signed a form certifying the statements were true.

An investigator with the district attorney's office testified he knew defendant and had reviewed the jail classification notes. In the investigator's opinion, defendant was a current member of the GPC. That opinion was based on the fact that other GPC members had asked to be transferred to defendant's tank after his arrest-defendant was a founder and leader of the GPC, and other incarcerated members would want to be in his tank for mutual protection and to discuss and continue gang activity. In addition, defendant had been identified as a GPC member on a field identification card completed in January 2006 when defendant was stopped for a traffic violation, and the address listed for defendant on the card was 364 Avenida Cerca. Defendant had approached the investigator about becoming an informant after defendant was arrested in this case. The investigator's opinion was also based on defendant's reputation throughout the Coachella Valley and the fact that defendant had identified himself as being affiliated with GPC.

Sergeant Donald Fallon testified that in July 1990, in investigating the home invasion robbery of Norman Gant, he had contacted possible suspects, including defendant. Defendant had admitted going to the victim's house armed with a firearm in the company of two other GPC members. Defendant had armed himself in advance because he anticipated a possible shootout. Defendant had intended to tell the victim to stop selling drugs because the victim "was cutting into their business." Defendant had denied taking any money during the robbery. Sergeant Fallon did not know if defendant was convicted in the case. Defendant's aunt, Gwen Crawford, had been arrested for harboring a fugitive, but she was not convicted.

F. Jury Verdicts and Sentence

The jury found defendant guilty of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)-count 1); possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)-a lesser offense in count 2); possession of a controlled substance while armed (Health & Saf. Code, § 11370.1-count 3); possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1)-count 4); and participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)-count 5). The jury found true the allegations as to counts 2 through 4 that defendant committed the crimes for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)), but found the same allegation not true as to count 1. In bifurcated proceedings, defendant stipulated that he had suffered a conviction in 1993 for a violation of Health and Safety Code section 11351.5.

The trial court sentenced defendant to 10 years in prison, consisting of the upper term of four years for count 3, a consecutive upper term of four years for the gang allegation as to that count, a consecutive term of eight months for count 4, and a consecutive term of one year four months for the gang allegation as to that count. The trial court imposed concurrent terms for counts 1 and 5 and stayed the sentence for count 2 under section 654.


A. Admission of Gang Evidence and Evidence of Prior Arrests

Defendant contends the trial court erred in admitting inflammatory, speculative, and cumulative evidence of numerous uncharged crimes, as well as arrests of defendant and other alleged gang members that did not result in convictions, and in permitting witnesses to testify as gang experts without a proper foundation.*fn6 In overlapping arguments, he contends the trial court erred in admitting prejudicial evidence of numerous uncharged crimes, and he contends the prosecutor committed misconduct by introducing the same evidence.

1. Additional Background

Before trial, the prosecutor, Deputy District Attorney Rosalind Miller, moved to admit evidence of uncharged offenses under Evidence Code section 1101, subdivision (b). The trial court conducted a hearing under Evidence Code section 402, at which defendant stipulated to the admission of an April 2003 incident during which the police searched a house where defendant and two other gang members were present, and where the police found guns, marijuana, and a scale, and defendant had $2,874 in cash in his pocket. Over the objection of defense counsel, Deputy Public Defender Brenda Miller, the trial court ruled two other incidents were admissible: A January 1992 incident in which the police found guns and pagers in the trunk of a car and a December 1991 home search in which the police found rock cocaine, pay/owe sheets, guns, and a large amount of cash. The trial court ruled the other offenses were inadmissible under Evidence Code section 1101, subdivision (b). However, the trial court repeatedly stated that such offenses might come in anyway as predicate crimes. At trial, the prosecutor introduced evidence of numerous prior uncharged offenses as set forth above in the statement of facts.

2. Standard of Review

The trial court has great discretion in determining the admissibility of evidence, and on appeal, we find reversible error if the trial court's exercise of its discretion was arbitrary, capricious, or patently absurd resulting in a manifest miscarriage of justice. (People v. Ochoa (2001) 26 Cal.4th 398, 437-438, abrogated on another point as stated in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.)

3. Forfeiture

The People argue that defendant failed to timely object in the trial court to some of the evidence about which he now complains and has therefore forfeited his objections.

Defendant did raise numerous appropriate and timely objections in the trial court. Because of the sheer volume of prior crimes evidence admitted, our analysis of the issue would not change even if we presumed forfeiture as to some subset of that evidence. We will therefore exercise our discretion to address the issues on the merits. (See People v. Bradford (2007) 154 Cal.App.4th 1390, 1411.)

4. Analysis

a. Evidence Admitted under Evidence Code Section 1101, Subdivision (b)

As a general rule, evidence the defendant has committed crimes other than those for which he is on trial is inadmissible to prove bad character, predisposition to criminality, or the defendant's conduct on a specific occasion. (People v. Avila (2006) 38 Cal.4th 491, 586.) However, Evidence Code section 1101, subdivision (b), permits evidence of a defendant's past criminal acts when relevant to prove a material fact at issue, such as identity, motive, or knowledge. (People v. Roldan (2005) 35 Cal.4th 646, 705, overruled on other grounds as stated in People v. Doolin (Jan. 5, 2009, S05449) __ Cal. __ [2009 Cal. Lexis 2, *49 and fn. 22].) In prosecutions for drug offenses, evidence of prior drug use and prior drug convictions is generally admissible under Evidence Code section 1101, subdivision (b), to establish that the drugs were possessed for sale rather than for personal use and to prove knowledge of the narcotic nature of the drugs. (People v. Pijal (1973) 33 Cal.App.3d 682, 691.)

Here, the trial court allowed the prosecutor to introduce evidence of three prior incidents under Evidence Code section 1101, subdivision (b). Those three incidents, as detailed in the statement of facts, were relevant to establishing defendant's knowledge, among other things. (People v. Roldan, supra, 35 Cal.4th at p. 705.) We conclude there was no abuse of discretion in the admission of the three incidents under Evidence Code section 1101, subdivision (b).

Moreover, the trial court instructed the jury on the limited purposes for which the evidence of the December 1991, January 1992, and April 2003 offenses introduced under Evidence Code section 1101, subdivision (b) could be used. We presume the jury understood and followed those instructions. (See People v. Danielson (1992) 3 Cal.4th 691, 722, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

b. Evidence Admitted for Impeachment

Other evidence defendant challenges was properly admitted for impeachment. First, evidence of defendant's two prior felony convictions was properly admissible for that purpose. In People v. Wheeler (1992) 4 Cal.4th 284, superseded by statute on other grounds as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1459, the court held that under article I, section 28, subdivision (d) of the California Constitution, any felony and any misdemeanor involving moral turpitude could be used for impeachment, subject to the trial court's discretion. (People v. Wheeler, supra, at p. 296.) Defendant's convictions for possession of cocaine for sale and possession a firearm by a felon both involved moral turpitude. (See People v. Harris (2005) 37 Cal.4th 310, 337; People v. Littrel (1986) 185 Cal.App.3d 699, 703.)

Next, the People contend that the trial court properly permitted the prosecutor to question defendant on cross-examination about whether defendant had given police the Avenida Cerca address in July 1999, July 2002, October 2002, and April 2004, in making a traffic collision report and in signing traffic citations, because that evidence tended to impeach defendant's testimony. Defendant testified that on February 16, 2006, he had been living with Strange, and he had lived with Strange "off and on for 17 years." He testified he had been living with Strange in 2002 and 2003, but not in 2004. Evidence that defendant had given the Avenida Cerca address in 2002 was inconsistent with his testimony that he had been living with Strange in 2002 and was therefore relevant and admissible for purposes of impeachment. However, evidence that defendant had given the Avenida Cerca address in 1999 and 2004 was not inconsistent with defendant's testimony and was therefore irrelevant and inadmissible for purposes of impeachment. Nor did such evidence tend to show that defendant was living at the Avenida Cerca house in 2006. We therefore conclude it was an abuse of discretion to admit evidence of the 1999 and 2004 incidents.

The People further contend that the police observations of defendant's prior drug-related activities and testimony concerning defendant's statement to the police that he had armed himself and had gone to Gant's house to tell Gant to stop selling drugs because Gant was cutting into the gang's drug business were also admissible for impeachment.

We agree that evidence of the statements defendant had made to Gant was relevant and admissible to impeach defendant's testimony that he had sold drugs to support his family and did not share the profits with the gang.

c. Evidence of Predicate Crimes

We next examine the evidence that was admitted to establish the predicate crimes for the gang charge and gang enhancement allegations. To prove the allegations under section 186.22, subdivisions (a) and (b), the prosecutor was required to establish that one of the gang's primary activities was the commission of one or more of the crimes listed in section 186.22, subdivision (e), and that the gang's members engaged in a pattern of criminal activity. (People v. Sengpadychith (2001) 26 Cal.4th 316, 322 (Sengpadychith).) In that case, the court observed that "[s]ufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute." (Id. at ...

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