People v. Franklin

         APPEAL from a judgment of the Superior Court of Los Angeles County No. VA132725 Patrick T. Meyers, Judge.

          Julie Schumer, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

          LUI, J.

         Robert Franklin appeals from the judgment entered following a jury trial in which he was convicted of one count of first degree residential burglary in violation of Penal Code section 459^[1] (count 5), one count of making criminal threats (§ 422, subd. (a)), one count of false imprisonment (§ 236; count 3) as the lesser included offense of kidnapping (§ 207, subd. (a)), and one count of attempted extortion.^[2] (§§ 664/520; count 4.) All of the charged offenses were alleged to be gang-related within the meaning of section 186.22, but the jury found the gang allegations true only as to the criminal threats and false imprisonment charges, and rejected the gang allegations as to the burglary and attempted extortion charges. (§ 186.22, subd. (b)(1).) Following a bench trial, the trial court found true the prior strike conviction allegation and sentenced appellant to state prison for 18 years 4 months.^[3]

         Appellant contends: (1) The true findings on the gang enhancement allegations must be reversed for insufficient evidence because they were based on the gang expert's improper and unsubstantiated opinion, and there was no evidence the offenses were gang-related; (2) The trial court abused its discretion in refusing to bifurcate the trial on the gang allegations; (3) Revelations about appellant's criminal background resulted in incurable prejudice denying appellant a fair trial, and defense counsel's inaction in the wake of the inadmissible testimony concerning appellant's prior criminal record constituted ineffective assistance of counsel; (4) The trial court erred in admitting the prosecution gang expert's highly inflammatory testimony about the Mexican Mafia, and defense counsel was ineffective for failing to object. We reverse the gang enhancement findings for insufficient evidence and remand the matter for resentencing, but otherwise affirm.

         FACTUAL BACKGROUND

         The underlying criminal offenses

         Crystal Delgado^[4] dated appellant on and off over a nine-month period from February to November 2013. They fought frequently, often sending each other vicious text messages, and appellant once pulled Delgado's hair. On October 24, 2013, appellant sent Delgado a text message in which he said she would live to regret "fuckin' with a real gangster." A few days later, Delgado received another text message from appellant in which he threatened to stomp on her face, break her nose, and crack her teeth.

         In early November 2013 Delgado planned a trip to San Diego with friends to serve drinks at a bachelor party. Appellant did not want her to go, and left a message on Delgado's voice mail threatening that if she "went to San Diego, he was going to kill [her]." Sometime before attending the party, Delgado posted on social media that she was single, which she later told police appellant had taken personally as indicating disrespect toward him.

         The day Delgado returned home from the party she found her room ransacked and empty of all of her belongings-only the furniture remained. The television had been pulled from the wall mount, and her laptop, her bedsheets, most of her clothing, and other personal items had all been removed. There were no signs of a break-in. Delgado suspected appellant had burglarized her room with help from her cousin Lexi, who lived in the house with Delgado and Delgado's mother.

         Delgado played several voice mail messages she had received from appellant for the police.^[5] In one message, appellant said he was coming right over and threatened to kill Delgado if she didn't pick up the phone. In another voice message, appellant told Delgado he was going to hide out until he caught her, and declared, "No one's ever gonna want to fucking see your face, eh. I'm gonna fuck it up, eh. I'm gonna fuck you up, you fucking piece of shit." Appellant also threatened Delgado's mother: "You fucking gonna go to a fucking bachelor party, fucker? Fucking piece of shit. Just watch what we do to your mom when she comes home from work." Finally, appellant threatened to "seriously hurt" Delgado. Delgado told the police she was afraid of appellant because he was an active Jim Town gang member and she believed he would kill her.

         Later that day, appellant called Delgado and admitted he had taken her property. He promised to return her property if she would agree to meet with him. They met at Guirado Park and appellant got into the front passenger seat of Delgado's car. Producing a foot-long metal pipe from his jacket, appellant struck Delgado on the head and arms. Appellant switched seats with Delgado and drove around for several hours before taking Delgado to his house where he lived with his mother and sister.

         They went to a Knights Inn in Pico Rivera, a Pico Viejo gang hangout well outside of Jim Town gang territory to spend the night.^[6] Appellant offered to return Delgado's property to her for $500. The next morning, Andrea Sandoval, whom Delgado identified as a member of the White Fence gang known as "Stalker, " arrived at the motel. The three of them left the Knights Inn and went to a park where they left Delgado's car. Driving appellant's car, they went to the Lancer's Motel in an area of Pico Rivera claimed by the Pico Viejo gang where Sandoval was staying. There they met another White Fence gang member, a woman Delgado knew only as "Traviesa."

         Appellant left Delgado at the motel with Sandoval and Traviesa with instructions to watch her and not to let her leave. Appellant returned sometime later with his 13-year-old daughter, Luckie, and took Delgado and Luckie to a grocery store.^[7] At the store, Delgado went to the restroom and texted her mother. She told her mother she was with appellant and she was hurt. She instructed her mother to agree to pay appellant $500 for the return of her property when appellant called.

         Appellant dropped Luckie off and took Delgado to the home of Janae Vasquez, a member of the Pico Viejo gang known as "Hazel." Before leaving in Vasquez's burgundy Nissan Altima, appellant warned Vasquez not to let Delgado go. Delgado fell asleep, and was awakened by a notification on her phone. When she looked at the phone, she saw a picture of her stolen property in the back seat of a burgundy car.

         Appellant and Delgado left Vasquez's home and drove back to appellant's house where they spent the night. There, appellant made a video recording on his cell phone of Delgado in which he told her to say appellant had not taken her clothes and she was not being held against her will. The next morning they picked up Sandoval at the Lancer's Motel and went to the park where they had left Delgado's car. Appellant replaced the battery in Delgado's car, and they returned to the Lancer's Motel. After convincing appellant to allow her leave to get the money to pay him for her property, Delgado drove directly to a police station and reported the entire incident.

         A few days later, Delgado called 911 to report that appellant was following her in a burgundy Altima. Police located the Altima parked in front of Vasquez's residence. Sandoval was sitting in the driver's seat and appellant was detained when he emerged from the house. On a bed inside the house, police found appellant's phone containing the video of Delgado and photographs of Delgado's property. Delgado never recovered any of her stolen property, nor did she or her mother ever give appellant any money for its return.

         The gang evidence

         While they were dating, appellant told Delgado he was a member of the Jim Town gang known as "Spooky, " and he would sometimes brag to Delgado about his status in the gang hierarchy, telling her that "his homeboys were all scared of him." Delgado testified at the preliminary hearing in this case that "[o]f course" she was afraid of appellant because "I know what he's capable of. I know that he doesn't care, and he would do anything in his power to hurt me." Delgado also acknowledged that some of appellant's friends were in gangs other than Jim Town.

         Detective Lopez, a deputy sheriff and gang investigator with the Safe Streets Bureau, testified as a gang expert. He is familiar with the Jim Town gang and described its borders and hangouts. Detective Lopez identified Guirado Park as one such hangout in Jim Town gang territory, which is known as a stronghold for the gang where gang members often congregate. The gang has approximately 85 to 90 members, of whom 20 to 25 actively participate in gang crimes, including murder, assaults with deadly weapons, robbery, kidnapping, extortion, and felony vandalism.^[8]

         Detective Lopez explained that gang members put in work for the gang by committing crimes in order to gain respect for the gang and create fear and intimidation within the community or rival gangs. According to Detective Lopez, fear and intimidation reduce the likelihood that crimes will be reported, and people are "less likely to testify in court against gang members for fear of retaliation by the gang or gang member." Gang members can lose respect within the gang if they stop putting in work or if they allow themselves to be publicly disrespected.

         Appellant lived in the garage of his mother's house, which was in Jim Town territory. During a probation/consensual search of the garage, police found various writings and items which Detective Lopez identified as gang-related. Specifically, police found references to appellant's gang moniker, "Spooks, " along with the words, "Jim Town" and "Lomas, " in what Detective Lopez described as "Old English writing."^[9] Detective Lopez speculated that other marks in appellant's living quarters appeared to represent a gang "point system."

         Detective Lopez explained that while it is "not common" for members of one gang to associate with members of another gang or spend the night in rival gang territory, Hispanic gang members tend to set their gang rivalries aside when they go to prison and come under the auspices of the Mexican Mafia. According to the detective, appellant's ability to associate with members of rival gangs stemmed from the fact that "when these gang members from different gangs get out of jail or prison, they still keep those allegiances."

         In Detective Lopez's opinion, appellant is a senior high ranking member of the Jim Town gang who commands the respect of other gangs, and is possibly a valued member of the Mexican Mafia. He based his opinion on 25 reports identifying appellant as a member of the gang, numerous references to the Jim Town gang in appellant's living quarters, and appellant's ability to associate with members of other gangs and spend the night in rival gang territory. Detective Lopez also cited appellant's numerous gang tattoos, including a "Jim Town" tattoo across the front of his neck, and "Jim Town" across his stomach as evidence of his active gang membership.

         Drawing on his training and experience and the facts of a hypothetical related to this case, Detective Lopez opined that appellant committed the crimes herein for the benefit of and in association with a criminal street gang. While he conceded that sometimes a gang member may commit a crime for his own benefit and not for the benefit of his gang, Detective Lopez stated that "most crimes" committed by a gang member are committed for the benefit of the gang. Detective Lopez cited as support for his opinion the fact that "the crime was committed in the gang's stronghold." He explained that gang members commonly commit crimes in their own territory because they have the backing of the gang and they can easily hide from law ...