People v. Cardenas

• Citation: 31 Cal.3d 897,184 Cal.Rptr. 165,647 P.2d 569
• Decision Date: 08 July 1982
• Docket Number: Cr. 21870
• Court: United States State Supreme Court (California)
• Parties: , 647 P.2d 569 The PEOPLE, Plaintiff and Respondent, v. Benjamin Jamie CARDENAS, Defendant and Appellant.

Page 165

184 Cal.Rptr. 165

31 Cal.3d 897, 647 P.2d 569

The PEOPLE, Plaintiff and Respondent, v. Benjamin Jamie CARDENAS, Defendant and Appellant.

Cr. 21870.

Supreme Court of California.

July 8, 1982.

As Modified July 22, 1982.

Robert S. Gerstein, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Gary R. Hahn, Norman H. Sokolow and William V. Ballough, Deputy Attys. Gen., for plaintiff and respondent.

BIRD, Chief Justice.

This case raises two questions concerning the admissibility of evidence in appellant's criminal trial. Should the trial court have excluded testimony concerning the common membership of appellant and his defense witnesses in a youth gang? In addition, was evidence of appellant's addiction to narcotics admissible in an attempt to prove his guilt of the charged offenses?

I.

Appellant Benjamin Cardenas was convicted of attempted murder in the first degree (Pen.Code, §§ 664, 187); ¹ attempted robbery (§§ 664, 211); and assault with a deadly weapon or by force likely to produce great bodily injury (§ 245, subd. (a)). The trial court sentenced appellant to prison for the upper term for attempted murder and a consecutive term for attempted robbery. Each sentence was enhanced by a finding of firearm use (§ 12022.5), and the attempted robbery term was enhanced by a finding of infliction of great bodily injury (§ 12022.7). To avoid the multiple punishment proscriptions of section 654, the court imposed no term for assault with a deadly weapon. Appellant's total prison sentence amounted to 13 years, 2 months.

The issue at appellant's trial was whether appellant was the perpetrator of the crimes. The testimony was sharply conflicting.

Leo Morgan, Larry Blacksmith, and Steve Van Mierlo (Steve) were working in a 7-Eleven Store at 6 p. m. one evening when a man with a gun entered and ordered all three men to lie face-down on the floor. Morgan (the store manager) and Blacksmith saw the man for five to ten seconds before complying with his order. Steve "took a glance" at the man for one second. The man commanded Steve to open the store safe, and Steve complied. However, Morgan was shot in the back, and a struggle ensued between Blacksmith and the intruder, who eventually dropped his gun and fled. Steve's brother Paul happened to be riding his bicycle past the store as these events were occurring. He saw only the back of the man, who jumped into a car and drove away.

Morgan described the robber as 5' 7"'' tall and weighing 150 pounds. Steve stated the robber was 5' 9"" tall and 160 pounds. Blacksmith also estimated the man's height at 5' 8"" or 5' 9"" and set the weight at 170 to 180 pounds. Morgan and Blacksmith said the intruder was clean shaven. Steve testified he had a moustache and beard.

Appellant was arrested for the robbery attempt five days after its commission. When he was booked into jail, the police listed his height as 5' 2"'' and his weight as 140 pounds.

During the week following the crime, the three store employees and the bicyclist Paul were shown photographic lineups consisting of mug shots. Blacksmith, Steve, and Paul pointed out appellant's photograph but indicated they were uncertain it depicted the robber. ² Morgan saw two photographic lineups, but made no identification the first time. Instead, he indicated that a mug shot of someone other than appellant had characteristics similar to those of his assailant. Morgan later reviewed another photographic lineup and selected appellant's photograph on this occasion.

Twelve days after the crime, Steve, Blacksmith, and Paul attended a lineup. Blacksmith selected appellant but was uncertain he was the assailant. The other two were positive. Steve based his identification on the similarity between appellant's hair and moustache and the hair and moustache of the assailant. Paul initially could not explain why he had selected appellant. Later, he testified that he picked appellant out by viewing his back when appellant turned around during the lineup. Morgan subsequently was shown a videotape of the lineup, but was unable to make any identification. He indicated that someone in the lineup other than appellant resembled his assailant. All four witnesses identified appellant at the trial.

Appellant sought to establish that he was not the perpetrator of the robbery attempt. Three witnesses--Robert and Elizabeth Reeves, and Steve Valenzuela--testified that appellant was visiting the Reeves' home at the time of the commission of the crime. Other witnesses--Tony Ozaeta and Virginia Cardenas (appellant's sister-in-law)--testified to appellant's whereabouts earlier that day.

The prosecutor was permitted to attack the credibility of the defense witnesses by eliciting testimony from them that they and appellant were members of a youth gang or "group" known as El Monte Flores. Two of the male witnesses were asked to exhibit to the jury their gang tattoos on their forearms and hands. The prosecution also sought to introduce evidence that there were other "groups" in the town of El Monte and that the members of those "groups" were not welcome to "join" the El Monte Flores gang.

The prosecutor was also permitted by the trial court to elicit testimony concerning appellant's narcotics habit to establish that appellant had tried to rob the store to obtain money to support that habit. Mark Howard, a police officer with the El Monte Narcotics Task Force, testified that at the time of arrest, his pupils were dilated and his elbows showed recent puncture wounds and scar tissue related to heroin use. The old scar tissue, Howard said, showed that appellant had been addicted to heroin over a long period of time. Howard had had ten to twenty contacts with appellant over the previous five to six years. On at least one of those occasions, appellant had been arrested for being under the influence of a controlled substance. Howard also testified that the puncture wounds indicated that appellant had recently been "strung out," that it "looked like it was very recent that he [appellant] began to use a lot frequently." Howard estimated the cost of appellant's habit at a "minimum of $25 and maybe up to $75 per day."

The prosecutor questioned Robert Reeves and Gus Collinsworth (appellant's parole officer) about appellant's narcotics use. Reeves said that appellant had previously been in a "detox" program. Collinsworth stated that he knew about appellant's drug problems because appellant had asked for assistance in obtaining treatment.

II.

Appellant contests the admission at his trial of the testimony concerning gang membership and drug use. He claims that the trial court should have excluded the evidence of common membership in the El Monte Flores gang on the basis of Evidence Code section 352.

When a section 352 objection is raised, the trial court "must weigh the admission of [the challenged] evidence carefully in terms of whether the probative value of the evidence is greater than the potentially prejudicial effect its admission would have on the defense." (People v. Perez (1981) 114 Cal.App.3d 470, 478, 170 Cal.Rptr. 619.) If the prejudicial effect outweighs the probative value, the trial court should exclude the evidence. "[T]he fundamental rule [is] that relevant evidence whose probative value is outweighed by its prejudicial effect should not be admitted." (People v. Haston (1968) 69 Cal.2d 233, 246, 70 Cal.Rptr. 419, 444 P.2d 91.)

In this case, the trial court abused its discretion by allowing the prosecution to introduce evidence that appellant and his witnesses were affiliated with the El Monte Flores youth gang.

The probative value of the gang membership evidence was minimal at best. The evidence was offered to establish possible bias of the defense witnesses in favor of appellant. The prosecution sought to prove that the witnesses and appellant "live[d] in the same neighborhood" and "had the same circle of friends." However, these facts had already been amply established by other testimony before the prosecutor began his inquiries into the witnesses' gang affiliations. All of the defense witnesses testified that they were friends of appellant and lived in the same neighborhood as he. ³ Each of the male witnesses and appellant also belonged to the San Gabriel Valley Boys Club where they played basketball.

On the basis of this evidence, there could have been no doubt in the jurors' minds that appellant and his male witnesses were neighborhood friends. The fact that appellant and the witnesses were also members of the Flores gang was cumulative and added little to further the prosecution's objective of showing that the witnesses were biased because of their close association with appellant. (See 1 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 22.1, p. 589.)

Not only did the common gang membership evidence have limited probative value, but its admission created a substantial danger of undue prejudice. There was a real danger that the jury would improperly infer that appellant had a criminal disposition because (1) the El Monte Flores was a youth gang; (2) such gangs commit criminal acts; and (3) appellant was a member of the Flores gang.

In Southern California, Chicano youth gangs have received widespread media publicity for their purported criminal activities. In this case, the prosecutor did not specifically refer to the El Monte Flores as a youth gang. However, the jury undoubtedly identified the group as such, either from their personal knowledge or from their in-court observations of the witnesses' age, ethnicity, and tattoos.

"[T]he prosecution has no right to present cumulative evidence which creates a substantial danger of undue prejudice to the defendant." (People v. De La Plane (1979) 88 Cal.App.3d 223, 242, 151 Cal.Rptr. 843.) Yet, this is precisely what occurred during appella...