Opinion
G051802
02-28-2017
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN MOHANEA KUAHUIA, Defendant and Appellant.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13WF0042) OPINION Appeal from a judgment of the Superior Court of Orange County, Thomas James Borris, Lance Jensen, and Daniel Barrett McNerney, Judges. Affirmed. Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Benjamin Mohanea Kuahuia of commercial robbery (Pen. Code, §§ 211 & 212.5, subd. (c), count 1; all further undesignated statutory references are to this code), criminal threats (§ 422, subd. (a), count 2), false imprisonment by violence (§§ 236 & 237, subd. (a), count 3), and possession of a firearm by a felon (§ 29800, subd. (a)(1), count 4). The jury found enhancement allegations true on the first three counts that defendant personally used a firearm (§ 12022.53, subd. (b)) and personally inflicted great bodily injury (GBI; § 12022.7, subd. (a)) on the jewelry shop owner, Susan W., in committing those offenses. After the jury could not reach a verdict on whether defendant committed those counts for the benefit of a criminal street gang (§ 186.22, subd. (b)), the prosecutor dismissed the gang allegation. The trial court found defendant suffered two prior convictions resulting in prison terms (§ 667.5, subd. (b)) and sentenced defendant to a 20-year prison term, consisting of consecutive terms of 5 years on count 1, 10 and three years respectively for the gun use and GBI enhancements, and two years for the prison priors. The court entered concurrent sentences on counts 2 through 4, and stayed the applicable firearm and GBI enhancements on those counts.
For purposes of protective nondisclosure of the identity of crime victims (Cal. Rules of Court, rule 8.90), we refer to Susan W. by her first name throughout the remainder of the opinion and intend no disrespect in doing so. --------
Defendant contends the trial court erred in denying his pretrial motion to dismiss the gang enhancement allegation for lack of evidence (§ 995), and also erred in declining to bifurcate the gang allegation for a separate trial. As we explain, given the low threshold of evidence necessary to withstand a pretrial dismissal motion, the court did not err in denying the 995 motion and, in any event, the evidence of defendant's DNA at the scene of the crime and on the victim's clothing rendered any possible error harmless. Because the evidence concerning the substantive offenses and the gang allegation was cross-admissible, the trial court acted within its discretion to deny the bifurcation motion. We therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Around 3:00 p.m. on a late September afternoon in 2012, a nicely dressed man entered the antique store owned by Susan and her husband in downtown Huntington Beach. At the man's request, Susan showed him a turquoise necklace "for his aunt" in one display case, then another necklace from a different display, and then he directed her back to the first case because he wanted the first necklace. As Susan opened the display, the man pointed a gun at her, stating "I'll take it," and when Susan stepped back with her hands up, he punched her in the forehead with his fist, calling her "Bitch." Susan put her hands up again, telling him to take what he wanted, including money, but he struck her again, first in the jaw and then several more times, repeatedly threatening to shoot her. He slammed the gun into her temple and she fell to the floor unconscious.
When she came to, she found herself on her back with the man sitting on her. He spoke to an accomplice, ordering him to "help me tie her hands and feet." Susan saw a piece of duct tape wrapped around her wrist and decided to fight. She struggled to get out from underneath him, but he struck her twice in the face, commanded her not to look at him, and placed a jacket over her head. When he shifted off her slightly, she was able to reach up and grab his groin, causing him to drop the gun on the floor. She grabbed it, but he overpowered her, seized it, and moved to the end of the counter. In the melee, she tried to spray him with wasp repellant, but the spray can did not work. As he stood next to a display case with his partner holding an empty pillow case, Susan stood up, pointed at both men, and declared, "In the name of Jesus Christ what you guys are doing is wrong, and in the name of Jesus Christ stop this." She told them "Jose" would be arriving any minute, screamed Jose's name twice, and then passed out.
Jose, the maintenance person for the building, heard her call and found her "all beaten up." He helped her outside to sit down, where he tried to staunch the wound on her head, and then she was transported to a hospital where she remained for three days. The duct tape and a glove recovered in the store did not belong to Jose or to Susan or her husband. The robbers had "cleared out" approximately 100 jewelry pieces from the display case, each ranging from $8 to $175 in value.
Huntington Beach Police Detective Michael Szypeski showed Susan a six-pack of photographs in October 2012, including defendant's photograph. Susan did not identify her attacker in the photographs Szypeski showed her, but she noted defendant had a nose similar to the robber's, and that another man in the six-pack had similar skin. Susan believed the photographs were identical to those she had viewed earlier in working with a police sketch artist, but Szypeski denied the artist or Susan had any input in putting the six-pack together. Szypeski obtained a DNA sample from defendant, and another officer obtained a sample from Susan during her hospital stay.
Susan identified defendant at trial as her attacker, but noted he did not have facial hair at the time of the robbery as he did in court. Among other features, she described the perpetrator's accomplice as "short," about her height (5 feet 4 inches) or shorter. In a 911 call played for the jury, Susan said two people robbed her, a tall one and a short one. At trial, she estimated her attacker was about six feet tall and weighed 175 to 200 pounds. A detective who interviewed defendant several months after the attack put his height at 6 feet 4 inches and weight at 230 pounds; defendant had a mustache and a little hair on his chin at the time. In other interviews before trial, Susan had described her attacker's height as being between 5 feet 10 inches and 6 feet 1 inch.
A forensic expert testified DNA in biological material recovered from the front and back of Susan's pants, the back of her shirt, and from the duct tape and cuff of the glove recovered at the crime scene all matched defendant's DNA sample. The expert explained the odds of such a match were more than one in a trillion.
The prosecution presented evidence of defendant's gang affiliation at trial, including two officers who testified defendant admitted he was a member of the Playa Larga criminal street gang in Long Beach, and one of the officers testified he retrieved a firearm from defendant in a 2011 contact, which defendant explained he obtained from another gang member for $200. Long Beach Police Officer Ryan Christopher had testified as a gang expert at the preliminary hearing, as we discuss in more detail below, and his testimony at trial was substantially similar, including that Playa Larga gang members often commit robberies in more lucrative areas outside the territory the gang claims, and that members are expected to share the proceeds of their crimes with the gang.
Defendant did not testify; instead, defense counsel pointed to various alleged discrepancies in Susan's description of the robbers, including that Susan described her attacker as a Hispanic male about 25 years old with no noticeable accent, while defendant had a Hawaiian accent.
II
DISCUSSION
A. Section 995 Motion
Defendant contends the trial court erred by denying his pretrial motion under section 995 to dismiss the gang enhancement allegation (§ 186.22, subd. (b)) on counts 1 through 3 for lack of evidence. As a preliminary matter, the Attorney General argues that because defendant did not seek pretrial writ review (§ 999a) of the trial court's denial of his motion, he has forfeited his appellate challenge. But the early review afforded under section 999a is not available when the defendant files a section 995 motion more than 60 days following his or her arraignment. (§ 1510; People v. Crittenden (1994) 9 Cal.4th 83, 136, fn. 12 (Crittenden).) Here, 74 days passed.
As Crittenden illustrates, however, exceeding the 60-day period does not preclude a defendant from seeking dismissal under section 995, provided the motion is filed "prior to trial" (§ 997; see Fleming v. Superior Court (2010) 191 Cal.App.4th 73, 103), nor does it preclude later appellate review. (Crittenden, supra, 9 Cal.4th at pp. 136-137 [reaching appellant's claim of error in denial of section 995 motion].) But delay beyond 60 days comes at a price: the defendant must establish on appeal not only that the court erred in denying the section 995 motion, but also must show "prejudice at trial flowing from the purportedly inadequate evidentiary showing at the preliminary hearing." (Crittenden, at pp. 136-137; see also People v. Mena (2012) 54 Cal.4th 146, 156 ["Even if a writ is not sought, a defendant may still seek review on appeal following the judgment, although the defendant must establish the error was prejudicial"].)
Here, defendant demonstrates neither error, nor prejudice. The threshold to demonstrate error, let alone prejudice, is daunting. Under section 995, an information may be set aside if the defendant has been held to answer "without reasonable or probable cause." (§ 995, subd. (a)(2)(B).) But the evidentiary "'showing required at a preliminary hearing is exceedingly low.' [Citation.] An information should be set aside 'only when there is a total absence of evidence to support a necessary element of the offense charged.' (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226 [(Jurado)].) The requisite showing may be established by circumstantial evidence. [Citation]." (People v. Chapple (2006) 138 Cal.App.4th 540, 545-546 (Chapple).) These standards similarly apply to enhancement allegations. (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 842, 846; see Hale v. Superior Court (2014) 225 Cal.App.4th 268, 271 ["defendant may utilize section 995 to strike invalid enhancement allegations"].)
Put another way: "Evidence that will justify a prosecution need not be sufficient to support a conviction. [Citations.] '"Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused."' [Citations.]" (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474 (Rideout).) In reviewing a section 995 motion, we "'"disregard[] the ruling of the superior court and directly review[] the determination of the magistrate." [Citations.] We conduct an independent review of the evidence, but will not substitute our judgment for that of the magistrate as to the credibility or weight of the evidence. [Citations.]' [Citation.] '[I]f there is some evidence to support the information, the court will not inquire into its sufficiency. [Citations.] Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information. [Citations.]' [Citation.]" (Chapple, supra, 138 Cal.App.4th at p. 546.)
The prosecutor at the preliminary hearing presented Officer Christopher's testimony as a gang expert to support the gang enhancement allegations. Christopher explained that defendant's gang, Playa Larga, originated in the 1980's in southwestern Long Beach. He testified its members commit a wide array of crimes, including assault with a deadly weapon and residential and commercial burglaries, and the gang's primary activities include robbery, burglary, and possessing firearms to commit those crimes and to defend five or six square blocks they claim as their "turf" bordering the Pacific Coast Highway.
But Christopher explained it is "common" for Playa Larga members to venture outside Long Beach to commit crimes, both to avoid detection because their members are well known in their own neighborhoods and because it is more lucrative to commit robberies in the wealthier surrounding communities. Christopher also explained that Playa Larga's 50 members are generally actively involved in the gang, are expected to "bring something to the table" for the gang, including financial support, and gang members raise money for Playa Larga by committing armed robberies, burglaries, and narcotics sales. If a member commits a crime, he is "called upon to share those proceeds with the gang," and that financial support is particularly crucial to purchase firearms for the gang to protect their turf and further their criminal activities.
Christopher noted several recent incidents in which the police observed or found evidence of defendant possessing firearms: he disposed of a gun in a trash can on a train platform when he saw officers approaching; a search of his bedroom on another occasion revealed a nine-millimeter automatic pistol; and a photograph on his cousin's cell phone showed him and his brothers, who were also Playa Larga members, holding guns and flashing their gang's hand signs. Christopher explained that Playa Larga members gain access to firearms as they advance from mere associates of the gang to full-fledged members.
In response to a hypothetical mirroring the facts of the case, Christopher opined that a Playa Larga member who engaged in one of the gang's primary activities, armed robbery with a firearm to obtain jewelry or other items easily sold for "money right away," typically would do so in part to benefit the gang through a portion of the proceeds, even when committing the offense outside the gang's turf. Christopher acknowledged he had no specific information that proceeds from the Huntington Beach robbery were used to buy guns or otherwise actually benefitted the Playa Larga gang financially. He knew Playa Larga gang members bragged to each other about robberies they committed and sometimes posted photographs on social media of themselves with robbery proceeds, including watches, jewelry, and large sums of money, but he was unaware whether that occurred in this instance.
Defendant observes that unlike in People v. Albillar (2010) 51 Cal.4th 47 (Albillar) and similar cases, no evidence suggested the two men who robbed Susan were both gang members. He does not challenge the sufficiency of the evidence to support the conclusion he was an active Playa Larga gang member, based on police contacts, photographs, tattoos under his clothing, and other evidence. But it appears the accomplice was not apprehended and neither he nor the perpetrator wore obvious gang-related clothing, displayed gang tattoos or handsigns, nor issued gang threats. It is true that committing an offense "in association with" fellow gang members supports a true finding on the gang enhancement. (Albillar, supra, at pp. 61-62 ["their common gang membership ensured that they could rely on each other's cooperation" in committing offense and hiding their involvement]; see also People v. Ochoa (2009) 179 Cal.App.4th 650, 661, fn. 7 (Ochoa) [evidence sufficient for gang enhancement when the defendant commits offense with a fellow gang member].)
But committing a crime with other gang members is not a necessary element of the enhancement. To the contrary, the statute's disjunctive terms specify that the enhancement applies to felonies "committed for the benefit of, at the direction of, or in association with any criminal street gang . . . ." (§ 186.22, subd. (b); italics added.) Consequently, the prosecution need not establish all three factors (benefit, direction, association); to the contrary, one is sufficient. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1332; see People v. Loeun (1997) 17 Cal.4th 1, 9 [use of disjunctive "or" indicates legislative intent to designate alternative ways to satisfy statutory requirements].)
Defendant asserts no evidence supports the inference the perpetrator here committed the crime to benefit a gang. He relies on In re Frank S. (2006) 141 Cal.4th 1192, where the reviewing court found the evidence insufficient to support the gang enhancement where a minor illegally possessed a concealed dirk or dagger. An officer discovered the knife after stopping the minor for running a red light on his bicycle, but there was no evidence the minor was in gang territory, traveled with or expected to meet gang members, or that he would use the knife in a gang-related offense. The gang expert in Frank S. failed to identify any evidence connecting the minor's possession of the knife to criminal conduct by members of his gang, such as evidence the minor's gang used knives to commit crimes. (See People v. Ramon (2009) 175 Cal.App.4th 843, 853 (Ramon) [noting potential basis for enhancement where defendant's offense is among gang's primary activities].)
In Ramon, on which defendant also relies, the court held the defendant's gang ties and mere presence driving a stolen vehicle in the gang's territory did not support a gang enhancement on convictions for receiving stolen property or firearm possession, neither of which were among his gang's primary activities. (Ramon, supra, 175 Cal.App.4th at p. 851.) Defendant seems to suggest there is less evidence here than in Ramon because the robbery took place outside Playa Larga's territory. Similarly, he cites a case in which the enhancement was reversed where the underlying carjacking was outside the territory claimed by the defendant's gang or any of its rivals, and no other evidence supported the enhancement. (Ochoa, supra, 179 Cal.App.4th at p. 663.)
But these cases are distinguishable based on Christopher's expert testimony. Expert opinion "can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal street gang' within the meaning of section 186.22(b)(1)." (Albillar, supra, 51 Cal.4th at p. 63.) This is particularly true here in light of the low evidentiary threshold at a preliminary hearing under section 995. (Jurado, supra, 4 Cal.App.4th at p. 1226.)
Specifically, Christopher explained that armed robbery with a firearm is one of Playa Larga's primary activities, including commercial robbery, and that Playa Larga members are expected to share at least a portion of their robbery proceeds with the gang. This evidence distinguishes Frank S., Ramon, and Ochoa by supporting an inference that defendant's criminal conduct was connected to his gang. The evidence showed defendant was an active Playa Larga member with access to firearms and, as Christopher noted, Playa Larga members typically gain access to guns only as they advance in the gang. A reasonable fact finder therefore could infer he knew of the obligation to share proceeds with his gang, and no distinction was made for robberies outside territory Playa Larga claimed. Indeed, Playa Larga members often committed robberies in surrounding communities because they yielded greater proceeds, and defendant's choice of a commercial target in Huntington Beach south of Playa Larga's Long Beach turf fit that profile.
In light of the foregoing, the preliminary hearing here was not characterized by the "total absence of evidence" necessary for dismissal under section 995. (Jurado, supra, 4 Cal.App.4th at p. 1226.) Notably, defendant does not suggest he renewed his motion for dismissal at trial for lack of evidence (§ 1118.1). While the jurors could not agree beyond a reasonable doubt whether defendant committed the offenses for his gang's benefit, that is not the applicable standard. Instead, based on the evidence presented at the preliminary hearing, including Christopher's expert testimony, a reasonable person could entertain a strong suspicion of defendant's guilt on the gang enhancement. That is all that was required (Rideout, supra, 67 Cal.2d at p. 474), and consequently the trial court did not err in denying defendant's dismissal motion.
While we find no error in the trial court's ruling, the DNA evidence renders any conceivable error in denying defendant's pretrial motion harmless. Even assuming error for the sake of argument, reversal would be required only if it is reasonably probable defendant would have gained a more favorable result at trial absent the gang evidence. (People v. Ramirez (2016) 244 Cal.App.4th 800, 820.) Defendant suggests the stigma of gang evidence may have tipped the balance for the jury to conclude he was Susan's assailant because although she identified him as the perpetrator at trial, she failed to do so in a pretrial photographic lineup, instead observing merely that his nose in his photograph resembled her attacker's. Defendant also notes Susan's description of the robbers varied somewhat in different statements she made to the police, and he argues the photographic lineup Susan viewed may have been suggestive because the sketch artist allegedly earlier showed Susan the same photographs.
The DNA evidence, however, eliminates any possible prejudice from admission of the gang evidence. Forensic examiners found defendant's DNA matched the DNA found in three places on the front and back of Susan's clothing, on the duct tape used to bind her, and on the cuff of a glove left at the scene. The DNA expert explained at trial that the odds of such a match were "rarer than 1 in 1 trillion unrelated individuals."
Defendant observes that Susan testified her attacker was not wearing gloves, but that in no way suggests he was not at the scene, only that he or his accomplice may have dropped the glove after he touched it. Defendant raises the possibility of cross-contamination of evidence, but that does not explain the presence of his DNA at the scene. The presence of defendant's DNA on several different items retrieved from different places at the scene suggests the possibility of contamination was only speculative. Moreover, the expert testified that she controlled for cross-contamination, including by testing the samples for traces of the analyst's DNA and finding none. Defendant suggests his brother, who was also a Playa Larga gang member, may have had a similar DNA profile, but this tack is also speculative because the evidence showed a match with defendant's DNA profile and the expert explained DNA is "different from person to person," except for identical twins. There was no evidence defendant was a twin. In sum, in light of the overwhelming DNA evidence, there was no reasonable probability of a different result based on misidentification if the gang evidence had not been admitted. Defendant's challenge to the denial of his section 995 motion therefore fails. B. Bifurcation and Section 352 Motions
Defendant contends the trial court erred in denying his pretrial motion to bifurcate the gang enhancement allegation (§ 186.22, subd. (b)) from the underlying counts to which it attached. In a bifurcated trial, the enhanced punishment allegation is tried only if the jury first determines the defendant is guilty of an underlying offense. (People v. Burnell (2005) 132 Cal.App.4th 938, 946, fn. 5.) We review a trial court's ruling on a bifurcation motion for abuse of discretion (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez)), based on the record at the time of the motion. (People v. Calderon (1994) 9 Cal.4th 69, 81, fn. 6.)
Defendant sought at the same time he made his bifurcation motion to exclude any gang evidence at trial under Evidence Code section 352, which the trial court denied. We similarly review defendant's challenge to this ruling under the deferential abuse of discretion standard. (People v. Jablonski (2006) 37 Cal.4th 774, 821, 824.) An objection under section 352 preserves a narrow due process claim that the admitted evidence rendered the trial fundamentally unfair, which defendant asserts here. (People v. Partida (2005) 37 Cal.4th 428, 433-435.)
In moving for bifurcation or exclusion of the gang evidence, defendant made only a minimal showing, stating simply as the basis for both motions, "I just make the [section] 352 normal argument, it is prejudicial for the jury to hear about all this gang information when we have a robbery I.D. case." The trial court observed, "I agree it is prejudicial when you hear the "G" word [for Gang or Gangs]. I think your argument would be stronger if the crimes involved in this case were not crimes that are predicate crimes . . . the particular gang[ is] alleged to be involved in. But in light of the fact that, according to the People, this gang, among their primary activities are two of the crimes that are charged in this case seems to me [that the] gang evidence and the evidence of this particular case, even though it is an ID case, are inextricably intertwined."
The trial court did not err in declining to bifurcate the gang allegation or to exclude gang evidence from the pending trial. As our Supreme Court observed in Hernandez, because a "criminal street gang enhancement is attached to the charged offense," it "is, by definition, inextricably intertwined with that offense." (Hernandez, supra, 33 Cal.4th at p. 1048.) Accordingly, there is generally scant basis for bifurcation. (Ibid.)
Hernandez recognized the possibility that "gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt." (Hernandez, supra, 33 Cal.4th at p. 1049.) This is not such a case. Cases posing the risk of undue prejudice rarely arise because, based on the public policy favoring unitary, efficient trials, a court may still deny bifurcation even when "some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself." (Id. at p. 1050.) Accordingly, a defendant bears the burden of demonstrating the necessity of bifurcation. (Ibid.)
Defendant did not meet that burden here. Defendant sought bifurcation or wholesale exclusion of gang evidence based solely on his claim it did not relate to identifying the robbery perpetrators. But identity is not the sole purpose of gang evidence. As Hernandez explained: "[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation — including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like — can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]" (Id. at pp. 1049-1050, italics added.)
In particular, evidence of defendant's active Playa Larga gang membership and the fact the gang's primary criminal enterprises included commercial robbery and gun offenses as charged against defendant supported the trial court's ruling, by pointing to a gang motive for his actions. "Gang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related." (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167-1168.) A plausible motive added weight to Susan's identification. The trial court therefore did not abuse its discretion in declining to exclude gang evidence.
The gang expert's testimony at the preliminary hearing lends support to the trial court's ruling because, as discussed, Christopher explained Playa Larga's common practices and expectations of its members included committing armed robberies outside its territory and sharing proceeds of such offenses with the gang. (See People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550 ["'[b]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence'"]; accord, People v. Martin (1994) 23 Cal.App.4th 76, 81-82 [gang activity or membership admissible as to motive, though damaging to defense].) Consequently, because "the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary." (Hernandez, supra, 33 Cal.4th at pp. 1049-1050; cf. People v. Marshall (1997) 15 Cal.4th 1, 28 [cross-admissibility of evidence "ordinarily dispels any inference of prejudice" from joinder of charges].)
Defendant did not renew his bifurcation or exclusion motions at trial. (See, e.g., People v. Mendoza (2000) 24 Cal.4th 130, 162 [joinder ruling proper at the time may require reversal if defendant demonstrates it "'actually resulted in 'gross unfairness' amounting to a denial of due process'"].) In any event, defendant points to nothing about the admitted gang evidence that was "unusually likely to inflame" a jury. (Cf. Verzi v. Superior Court (1986) 183 Cal.App.3d 382, 386, 388 [upholding denial of severance of charges where neither the charged rape or burglary were "'"particularly brutal, repulsive or sensational"'"].) Instead, Christopher's testimony at trial again described defendant's active gang involvement and Playa Larga's gang culture, which was plainly admissible. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512 [culture, habits, and psychology of gangs "'"sufficiently beyond common experience"'" of jurors to warrant expert testimony].)
Defendant complains the evidence unfairly "painted [him] as [a] member of a violent criminal street gang that mandated its members to commit armed robberies as an occupational activity, or risk great bodily injury or death at the hands of fellow gang members." But because the evidence was relevant to motive, there was no unfairness in admitting relevant evidence. (People v. Karis (1988) 46 Cal.3d 612, 638 [there is no undue "prejudice" in relevant "damaging" evidence].) The trial court did not violate due process or abuse its discretion in denying defendant's bifurcation and section 352 motions.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.