California Court of Appeals, Second District, First Division
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
...