Filed 5/26/15 P. v. McFadden CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.
EDDIE BRODNEY McFADDEN,
Defendant and Appellant. B255327
(Los Angeles County Super. Ct. No. GA089231)

APPEAL from a judgment of the Su perior Court of Los Angeles County. Stanley Blumenfeld, Jr., Judge. Affirmed.

Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

________________ __________________ _________________2 A jury convicted defendant Eddie McFadd en of home invasion robbery in concert (Pen. Code, §§ 211, 213, subd.(a)(1)(A); 1 counts 1-3), elder abuse (§ 368, subd. (b)(1); count 4), assault with a firearm (§ 245, subd. (a)(2); coun ts 5-7), uttering criminal threats (§ 422, subd. (a); counts 8-9), and unlawfu lly possessing a firearm (§ 29805; count 10). The jury found that defendant personally us ed a firearm as to counts 1 through 3 (§§ 12022.53, subds. (b) & (e)(1)), count 5, a nd counts 7 through 9 (§ 12022.5, subd. (a)). The jury further found that counts 1 through 9 were co mmitted for the benefit of a criminal street gang (§ 186.22, subd. (b)). The trial court sentenced defendant to an aggregate state prison term of 31 years to life. On appeal, defendant contends that the tr ial court prejudicially erred in failing to bifurcate gang enhancement alle gations and by allowing eviden ce that defendant’s father was a gang member. We affirm. FACTS Prosecution On the night of March 12, 2013, 89 -year-old Hazel Walker, her daughter, Ernestine Walker, and her son-in-law, John Za dnick, were at their home in Pasadena. John and Ernestine were watching te levision, while Hazel had gone to bed. 2 Around 11:00, John, who is only partially sighted and relies on corrective glasses, heard a noise in the house and noticed a male intruder. Ernestine sa w the intruder point a handgun at her husband. The intruder then pointed the gun at her and told her not to move. He ordered John to lie face down on th e ground and Ernestine to lie on top of him. The assailant eventually told Ernestine to go to Hazel’s bedroom. In the bedroom, she saw two additional male intruders, holding Hazel at gunpoint. The first assailant wore a hood that kept slipping down, while the other two had masks on their faces.

1 All further statutory references are to the Penal Code unless stated otherwise.

2 To avoid confusion, we refer to Hazel, Ernestine, and John by their first names.3 The man who seemed to be the leader of the group looked to be around six feet one inch tall and had broad shoulders. Er nestine could see his “cold, menacing” eyes through the holes cut into his mask. The man—whom Ernestine later identified as defendant, from photographs, at a hearing in this matter, and at trial—kept saying, “Where’s the cash?” Defendant pointed the gun at Hazel, then Ernestine, and said he had killed 10 people in the past m onth. He held his gun to Er nestine’s head and squeezed her throat with his other hand. Defendant wore black gloves with a strip of white across the top. The intruders ransacked the home looking fo r cash and valuables. Eventually, the assailants found an envelope containing a stac k of $100 bills. They also grabbed a case of jewelry. Ernestine tried to negotiate w ith the intruders to get them to leave the house. She told defendant that she would go the bank in the morning and withdraw $10,000 for him. Defendant demanded her cell phone number and, as she gave it to him, he entered it into a white cell phone. They ag reed to meet the next morning at 11:00 a.m., and the assailants left. Defendant called Ernestine the next mo rning and asked whether she was still intending to withdraw money for him. She replied that she was. Defendant called a second time asking her whether she would ge t the money soon and whether police were involved. She assured him that she had not contacted the police. Ernestine went to her bank and passed a note to teller stating that she was “under duress.” The teller left the counter and Erne stine stood there, waiting. Thirty to forty minutes later, the police arrived. Detective David Duran met with Ernestine. Ernestine subsequently received two phone calls from defendant, which she took on speakerphone, allowing the police to listen to and record the calls. Defenda nt asked her if she had the money and told her where to deliver it. After Ernestine received the calls fr om defendant, the police obtained an emergency search warrant for her phone reco rds and were able to recover the phone number used to place the calls to her. Meanwhile, John discovered that a voicemail4 message was inadvertently left on Ernestine’s cell phone by defendan t while he saved her number to his phone during the robbery. De tective Duran listened to the saved voicemail and noted that the voice sounded like the one he heard on speakerphone. On the night of March 14, 2013, Detectiv e Duran participated in the service of a search warrant at an apartment in Arcadia. Defendant was the onl y person found at the apartment. The police recovere d a white iPhone that was cr acked on both sides. Its phone number matched the number used to make calls to Erne stine. The phone contained a text message that read, “Good morning Ed die Brodney McFadden. I love you daddy and I.” Another message read, “Eddie, be honest.” Jewelry was recovered from the apartm ent, which Hazel later identified as matching hers. The pockets of a pair of swea tpants found near the jewelry contained 21 $100 bills. In addition, the police recovere d black and white baseball gloves, a loaded .357 revolver, and receipts from various nearby retail businesse s showing purchases made on March 13 and 14, 2013. Surveillance video footage from the stores showed defendant making purchases at the times listed on the receipt s, accompanied by Marquise and Michael Garrett. Hazel was shown a photograph of Marq uice Garrett, and said he look ed like the first intruder to enter her home. One store video showed defendant, pulling cash from his pocket, wearing sweatpants similar to the ones found at the apartment. In an interview after his arrest, defendant denied being involved in the robberies or making the purchases reco rded on the video footage. Defe ndant said that he had not left the Arcadia apartment between March 12 and March 14. Detective Duran noted that defendant’s voice sounded similar to the vo ice in the calls made to Ernestine. Detective Duran also interviewed Marqui ce Garrett. The interview was recorded, and John recognized the voice as belonging to one of the partic ipants in the home invasion. Ernestine and Hazel were shown photographs in gro ups of six to eight and admonished that pictures of the suspects may or may not be included. Hazel identified Marquice Garrett as one of the intruders. Ernestine became “visib ly shake[n]” when5 shown a photograph of defendant and identifie d him as being involved in the robbery. She also identified Marquice Garrett. Detective Duran testified as a gang e xpert about the “Pasadena Denver Lanes” Bloods gang, also known as “PDL.” Marq uice Garrett had PDL ga ng tattoos. Defendant had no tattoos, but phot ographs showed him in PDL territory with PDL gang members. In 2012, defendant admitted to a Pasadena police officer th at he was a member of the PDL gang. Pasadena Police Officer Jordan Ling also testified as a gang expert with expertise on the PDL gang. The gang had over 300 me mbers. Its primary activities are murder, attempted murder, assault with a deadly weapon, re sidential burglary, and armed robbery. Members could either be born into the gang based on family connections, “crimed” into the gang by committing a crime fo r the gang, or “jumped” into a gang. In Officer Ling’s opinion, Marquice Garrett was a member of the PDL gang, and Michael Garrett had PDL tattoos. Text messages recovered from defenda nt’s cell phone contained indications of affiliation with the PDL gang. Officer Ling testified that gang member s commit violent crimes to benefit their reputation and the gang’s reputa tion. Gang members often share the proceeds of criminal activity with other members, allowing ga ng members to purchase narcotics, guns, or personal items. Members generally commit crimes in groups of two or more. They rarely bring a nonmember with them to commit a crime. According to Officer Ling, it is common for family members to be part of the same gang. Officer Ling testified he was awar e of four different families in which a male PDL gang member had sons who were also PDL gang members. Office r Ling stated that defendant’s father was the highest-ranked memb er of PDL. However, merely growing up around gang members did not make a person a gang member. Based on defendant’s admission that he was a PDL gang member, his photographs, and his presence in PDL territory with gang member s, Officer Ling opined that defendant was a PDL gang member. Officer Ling was presented with a hypothetical question based on the facts in6 the case, and believed that the crimes were committed to benefit the PDL gang as well as individual members. Defense Defendant did not testif y or present evidence. DISCUSSION I. Denial of bifurcation Prior to trial, the defense filed a motion in limine to bifurcate the gang enhancement allegations, arguing that gang evid ence was irrelevant and prejudicial. The trial court denied the motion, finding that the gang evidence was relevant to the charged offenses and that defendant faile d to show undue prejudice. On appeal, defendant asserts that the tria l court erred by denyin g bifurcation. He contends that the substantive offenses did not involve overt gang activity, and that the introduction of gang evidence inflamed the jury and created a risk that the jury would believe defendant had a criminal dispositi on to commit the charged offenses. We review the trial court’s denial of bifurcation of the gang enhancement allegations for an abuse of discretion. ( People v. Hernandez (2004) 33 Cal.4th 1040, 1048 ( Hernandez ).) We will disturb the trial court’s exercise of discretion only upon “‘a showing that the court exercised its discretio n in an arbitrary, capricious or patently absurd manner that resu lted in a manifest misca rriage of justice.’” ( People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) Defendant bears the burden of establishing an abuse of discretion. ( People v. Albarran (2007) 149 Cal.App.4th 214, 225 ( Albarran ).)
In Hernandez , the Supreme Court considered arguments for and against bifurcation of gang enhancemen t allegations. The court no ted that—unlike with prior conviction allegations, which relate to a de fendant’s status and may have no connection to a charged offense—“the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intert wined with that offens e. So less need for bifurcation generally exists with the gang enhancement th an with a prior conviction allegation.” (33 Cal.4th 1040, 1048.) Certain types of ga ng evidence can be unduly prejudicial, warranting bifu rcation, when they have little relevance to guilt and7 “threaten[] to sway th e jury to convict regardless of the defendant’s actual guilt.” ( Id. at p. 1049.) “But evidence of gang membership is often relevant to, and admissible regarding, the charged offense.” ( Ibid. ) Moreover, in the interests of economy and efficiency, “[e]ven if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive cr ime itself—for example, if some of it might be excluded under Ev idence Code section 352 as unduly prejudicial when no gang enhancement is charged—a court may still deny bifurcation.” ( Id. at p. 1050.) Thus, in seeking bifurcation, a defend ant faces a burden of clearly establishing a “‘substantial danger of prejudice’” requiring that the ga ng allegations be separately heard. ( Id. at p. 1051.) We find that defendant failed to meet this burden. Gang evidence can be relevant at trial of the charged crime wh en it helps to prove identity. ( Hernandez , supra , 33 Cal.4th 1040, 1049.) In argument below, the defense asse rted that the prosecution did not establish that defendant participated in the ch arged offenses. At tr ial, there was evidence presented tying Marquice Garrett to the crimes —Hazel and Ernestine both identified him in photographs, John id entified his voice, and the surve illance footage video showed him with defendant. There wa s also evidence that Marquice Garrett was a PDL gang member, that gang members generally only co mmit crimes with fell ow gang members, and that defendant was a PDL gang member. This evidence was relevant to defendant’s identity as a perpetrator and was admissible with respect to the substantive offenses. Gang evidence can also be relevant as to motive. ( Hernandez , supra , 33 Cal.4th 1040, 1049.) Officer Ling testif ied that residential burglary is a primary activity of PDL, and that gang members often share the proceeds of crimes with other members so that they can purchase personal items. There was ev idence that such acti vity occurred here, which supported the prosecution’s showing th at defendant had a motive to commit the crimes. Defendant argues that this case is similar to Albarran , in which the introduction of irrelevant and “extremely prejudicial” gang evidence warranted a new trial. (149 Cal.App.4th 214, 217.) The defendant in Albarran identified “extreme ly inflammatory”8 evidence—including references to the Mexican Mafia and st atements that gang members threatened to kill police offi cers—that, at most, was only tangentially related to gang allegations and had no bearing on the charged offenses. ( Id. at pp. 227-228.) In contrast, the gang evidence here was relevant to th e underlying offenses as well as the gang
enhancements. 3 Furthermore, as noted by the tria l court in denying defendant’s motion in limine, defendant failed to identify any ev idence that was both irrelevant and overly prejudicial. Thus, defendant did not meet hi s burden of clearly esta blishing a “substantial danger of prejudice” if the gang allegations were not bifurcated. (See Hernandez , supra , 33 Cal.4th 1040, 1051.) Assuming for the sake of argument that the trial court abused its discretion by denying bifurcation, the error was harmless. Under state law, we examine whether it was “reasonably probable” that the result of the tria l would have been the same if the gang enhancement allegations were heard separately. (See People v. Watson (1956) 46 Cal.2d 818, 836; Albarran , supra , 149 Cal.App.4th 214, 229.) As defendant acknowledges in his opening brief, there was a “plethora” of evid ence tying him to the crime. It cannot be said that bifurcation of the gang allegati ons would have had any effect on the jury’s verdict. Defendant argues that we should analyze the purported error under the Chapman v. California (1967) 386 U.S. 18 standard, requiri ng proof beyond a reasonable doubt that the error did not contribute to the verdict. “To prove a deprivation of federal due process rights, [defendant] must satisfy a high constitu tional standard to show that the erroneous admission of evidence resulted in an unfair trial. ‘Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process.’” ( Albarran , supra , 149 Cal.App.4th 214, 229.) As we explained above, there were credible inferences that the jury could draw from the gang evidence. Defendant is unable

3 Defendant does not argue that the gang enhancements should be reversed for insufficient evidence.9 to show that he was deprived of his constituti onal rights or that the denial of bifurcation otherwise warrants reversal. II. Evidence pertaining to defendant’s father Defendant contends that th e trial court erred by allowing evidence that defendant’s father was a member and a leader of PDL. During direct examination of Officer Ling, the prosecutor and defense approached the bench, and the prosecutor informed the court that he intended to ask Officer Ling about defendant’s father’s memb ership in PDL. The prosecu tor argued that the question was appropriate because the defense contested defendant’s status as a gang member. The court asked defendant’s counsel whether de fendant’s gang membership was a “hotly disputed issue,” to which counsel replied, “Oh, absolutely, yes.” When asked by the court whether the evidence would be relevant , defense counsel responded, “It think it may certainly be highly relevant. However, it is—I think it’s more prejudicial than probative on this issue.” Th e court overruled the defense objec tion, stating, “It seems to me this is highly relevant on a hotly disputed matter, and this is not unduly prejudicial. It is prejudicial only in the sense that it is very hi ghly probative. The fact that his father is a high-ranking member within th e PDL, maybe the head of the gang, would allow for a reasonable inference, coupled with other evidence, that in fact [defendant] is a member.” Then, after the prosecutor laid a foundation that PDL included four members who were fathers of sons also in the gang, the pros ecutor was allowed to ask about defendant’s father. Officer Ling replied that defendant’s father was at the “highest rank” in the PDL

gang. Evidence Code section 352 provides that “[t]he court in its discretion may exclude evidence if its probative value is substantia lly outweighed by the probability that its admission will . . . (b) create substantial dang er of undue prejudice, of confusing the issues, or of misleading the jury.” We revi ew the trial court’s d ecision on admissibility of the evidence for an abuse of discretion. ( People v. Waidla (2000) 22 Cal.4th 690, 717.)10 We agree with the trial court that the ev idence that defendant’s father was a PDL gang member was relevant to the question of whether defendant was a gang member. Officer Ling testified that members could be “born” into the gang. Defense counsel himself acknowledged that defendant’s father’s membership was “highly relevant” to the issue of whether defendant himself was a PDL gang member. We further find that the trial court di d not abuse its discretion by admitting the evidence. Eviden ce does not create undue prejudice if it is merely damaging to the defendant. ( People v. Bolin (1998) 18 Cal.4th 297, 320.) Instead, “‘[t]he “prejudice” referred to in Evidence Code section 352 ap plies to evidence wh ich uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues.’” ( Ibid. ) “‘Evidence is substantially mo re prejudicial than probative (see Evid. Code, § 352) if, broa dly stated, it poses an intolera ble “risk to the fairness of the proceedings or the reliability of the out come” [citation].’ [Citation.] ‘The admission of relevant evidence will not offe nd due process unless the eviden ce is so prejudicial as to render the defendant’s trial fundamentally unfair.’” ( People v. Jablonski (2006) 37 Cal.4th 774, 805.) Admission of the evidence that defendant’s father was a PDL member and leader did not render defendant’s trial unfair. It was but one piece of evidence supporting the conclusion that defendant was himself a PD L member. As Officer Ling testified, merely growing up around gang members did not make a person a gang member. Rather, defendant’s membership in PDL could also be determined by defendant’s prior admission that he was a PDL gang member, photogr aphs of defendant with fellow gang members, and his presen ce in PDL territory with gang members. Furthermore, even if introduction of the evidence was overly prejudicial, any error was harmless. There was overwhelming evid ence that defendant committed the charged crimes, and the gang e nhancement allegations were thorough ly established. In addition, both the prosecution and the defense agreed to the trial court’s reading of a jury instruction that stated: “[Y]ou have heard evidence this morning that the defendant’s father is a Pasadena Denver Lane member. That evidence alone is not sufficient to conclude that the defendant is a PDL or Pasadena Denver Lane member. To conclude11 that the defendant is a Pasadena Denver Lane Member there must be other evidence that convinces you that the defendant is a Pasadena Denver Lane member.” The jury was also instructed not to let bias, sy mpathy, prejudice, or public opinion influence its decision, and was read CALCRIM No. 1403—that gang ev idence could only be considered for the limited purpose of intent, purpose, and kn owledge required to prove the gang enhancement, and as it related to motive a nd witness credibility. Considering the overall state of the evidence, in add ition to the jury instructions, the jury’s guilty verdict cannot be attributed to the evidence relating to defendant’s father. DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.
We concur:

CHAVEZ, J.

HOFFSTADT, J.