Filed 7/6/15 P. v. Mendez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JESUS MENDEZ,

Defendant and Appellant.

 B254376

 (Los Angeles County

 Super. Ct. No. BA399348)

APPEAL from a judgment of the Superior Court of Los Angeles County.

Ronald H. Rose, Judge. Affirmed.

Kim Malcheski, 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, Assistant Attorney General, Margaret E. Maxwell and 

Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________________________
2

A jury found defendant Jesus Mendez guilty of first degree murder (Pen. Code, 

§ 187, subd. (a))1(count 1) and second degree robbery (§ 211) (count 2). In both counts,

the jury found defendant personally and intentionally used and discharged a firearm 

causing death within the meaning of section 12022.53, subdivisions (b), (c), and (d). The 

jury found defendant committed the murder while engaged in the commission of the 

robbery within the meaning of section 190.2, subdivision (a)(17). 

The trial court imposed a sentence of life without the possibility of parole for the 

murder with the special allegation. The court sentenced defendant to the upper term of 

five years for the robbery and stayed the sentence under section 654. The court imposed 

a consecutive sentence of 25 years to life for the firearm enhancement in both counts 

under section 12022.53, subdivision (d) and stayed the enhancement in count 2. The 

court stayed the remaining firearm enhancements. 

Defendant appeals on the grounds that: (1) The trial court committed reversible 

federal constitutional error under the Fifth and Fourteenth Amendments by permitting the 

prosecutor to elicit highly prejudicial testimony about his alleged gang membership and 

tattoos; and (2) Defense counsel was ineffective under the Sixth and Fourteenth 

Amendments for failing to object to the highly prejudicial testimony regarding gangs. 

FACTS

Prosecution Evidence

On the morning of April 19, 2012, police officers responding to a call found the 

body of Jamie Abuawad outside his SUV parked on West 81st Street in Los Angeles. 

Abuawad died of multiple gunshot wounds. Abuawad was in the business of buying 

gold. He employed two women to pass out his business cards on the street and house to

house in various Los Angeles neighborhoods. Abuawad would respond to telephone 

calls from potential sellers of gold by immediately driving to meet them. He would pay 

cash for the gold he bought. 

 

1 All further references to statutes are to the Penal Code unless stated otherwise. 
3

A resident of West 81st Street testified at trial that he noticed a young man sitting 

on a wall outside his residence at approximately 11:00 a.m. on the day of the shooting. 

The resident removed his trash cans from the street and went back inside his home. 

Later, he looked outside and saw the young man talking on the phone. The resident went 

back inside and shortly thereafter heard two or three gunshots in rapid succession. He 

went outside and saw Abuawad lying on the ground. The resident described the young 

man he had seen on the wall as being dark-skinned, slender, and having a tattoo on his 

right cheek. He identified defendant as this man in a photographic lineup and at trial.

One of Abuawad’s employees testified that she and her coworker often distributed 

cards in the neighborhood of West 81st Street where Abuawad was shot. Detectives 

showed her a photographic lineup, and she selected defendant’s picture as someone she 

recognized. She remembered seeing defendant on West 82nd Street, almost in the 

location where the shooting occurred. She saw her coworker give him a business card 

and speak with him. 

Investigating detectives arrived at the shooting scene to find the SUV’s motor 

running. The driver’s side and passenger side doors were open. Officers had found two 

cell phones nearby in an alley. One was the victim’s and the other was found to belong 

to an individual who had lost his cell phone some days before. The individual was 

handicapped and had mental challenges. His phone had been used to call Abuawad four 

times. Police looked at the other numbers called on the cell phone and traced some calls 

to a young girl who was the sister of defendant’s girlfriend. She showed police some 

pictures on another phone in her possession. One of the photographs was of defendant. 

She identified defendant, who lived on West 80th Street, to police. 

Defendant was brought to the police station for an interview. Detectives spoke to 

defendant and then left him alone for a time. Defendant subsequently asked to speak to 

the detectives. This interview was recorded and played at trial. Defendant told the

detectives, “I did it.” He said it was a robbery gone bad. He had telephoned Abuawad 

and “set him up.” Defendant had been laid off and wanted the money. He robbed 

Abuawad at gunpoint, and Abuawad tried to grab the gun, so defendant started shooting. 
4

He shot three times and made off with $300 and the victim’s phone. Defendant said he 

sold the gun. He told the detectives, “I knew you guys had me,” and it was “just a matter

of time.” He said, “It just don’t feel good inside afterwards since he had a family. It’s 

not the same.”

Detective John Ferreria testified that he and his partner, Detective Myra Kellum, 

had previously presented defendant with the theme or scenario about a robbery gone bad 

and defendant’s need for money. They had decided beforehand to say this as an 

interview strategy. Detective Ferreria had defendant turn over his shoes at the interview 

to compare them to a shoeprint found on the discarded cell phone in the alley. The 

pattern was a match according to Detective Ferreria’s lay opinion.

Afterwards, Detective Ferreria placed defendant in a cell with an informant in 

order to make sure that defendant’s statements were truthful. Their conversation was 

recorded and played for the jury. The informant, called Mr. Johnson, asked defendant 

where he was from. Defendant’s reply was inaudible, but Johnson replied, “F13’s?” 

Defendant then asked Johnson where he was from, and Johnson replied, “Six Deuce 

Brims.” When asked what he had done, defendant said “basically, I pled guilty for this 

shit.” When asked if he was by himself, defendant said he was. He said he used a .380-

caliber gun. He told Johnson the detectives brought his “baby mama” in, and she was 

crying. She said, “They told me they were going to take the kids away.” When asked if 

the police had him for robbery-murder or just murder, defendant said he did not know. 

Defendant said he hoped to get a deal. He was “just doing that shit to feed [his] 

children.” He hoped to get out when he was “like 45.” When asked how he felt about 

what happened, he replied that he “just didn’t think about it.”

Detective Ferreria testified that he never told defendant or anyone in his family 

that he was going to take defendant’s children. Also, defendant never told the detectives 

he was concerned they would take his kids. The detective, in response to the prosecutor’s 

questions, explained terminology from the recorded conversation in the cell as well as 

certain aspects of gang culture. 
5

Defense Evidence

Defendant offered no evidence in his behalf. 

DISCUSSION

I. Admission of Testimony Regarding Gangs

A. Defendant’s Argument

Defendant contends the trial court abused its discretion and committed reversible 

federal constitutional error under the Fourteenth Amendment by admitting highly 

prejudicial testimony about the Florencia gang and defendant’s “Crip Killer” tattoo. Both 

were irrelevant to the charges against him. 

B. Relevant Authority

Relevant evidence is evidence “including evidence relevant to the credibility of a 

witness or hearsay declarant, having any tendency in reason to prove or disprove any 

disputed fact that is of consequence to the determination of the action.” (Evid. Code, 

§ 210.) The trial court has wide discretion in determining the relevancy of evidence. 

(People v. Garceau (1993) 6 Cal.4th 140, 177.)

Evidence pertaining to gangs and gang membership may be relevant to a number 

of issues in a criminal trial (People v. Harris (1985) 175 Cal.App.3d 944, 957), as well as 

to credibility (People v. Ayala (2000) 23 Cal.4th 225, 276-277). When such evidence 

meets the test of relevancy, it is admissible unless the probative value of the evidence 

clearly is outweighed by its prejudicial effect. (Evid. Code, § 352; People v. Williams 

(1997) 16 Cal.4th 153, 193; People v. Cardenas (1982) 31 Cal.3d 897, 904-905 

(Cardenas).) Evidence of a defendant’s gang membership generally creates a risk that 

the jury will improperly infer that the defendant has criminal propensities, acted in 

accordance with such propensities, and is therefore guilty of the charged offense. 

(Williams, at p. 193.) The admission of gang evidence over an Evidence Code section 

352 objection will not be disturbed on appeal unless the trial court’s decision exceeds the 

bounds of reason. (People v. Williams (2008) 43 Cal.4th 584, 634-635; People v. Funes

(1994) 23 Cal.App.4th 1506, 1519.) Appellate courts rarely find an abuse of discretion 
6

under Evidence Code section 352. (People v. Ramos (1982) 30 Cal.3d 553, 598, fn. 22, 

reversed on other grounds in California v. Ramos (1983) 463 U.S. 992, 997.)

Evidence Code section 1101, subdivision (a) may prohibit the admission of gang 

evidence if it includes specific instances of a person’s conduct ‘“to prove his or her 

conduct on a specified occasion.”’ (People v. Lindberg (2008) 45 Cal.4th 1, 22.) 

Evidence Code section 1101, subdivision (c), however, provides that “[n]othing in this 

section affects the admissibility of evidence offered to support or attack the credibility of 

a witness.” To be admissible, the evidence ‘““must not contravene other policies limiting 

admission, such as those contained in Evidence Code section 352.””’ (People v. 

Harrison (2005) 35 Cal.4th 208, 229.) 

C. Proceedings Below

Prior to the conclusion of Detective Ferreria’s testimony and the playing of the 

recording of defendant’s conversation with the jailhouse informant, an Evidence Code 

section 402 hearing was held. The trial court told defense counsel he could object if the 

prosecutor failed to lay a foundation for the recording. Defense counsel also objected on 

confrontation clause grounds. The trial court found the audio-visual recording 

admissible, since the circumstances of its recording were no different than having the 

detective inside the cell when it occurred. The defense could fully cross-examine the 

detective. 

Upon retaking the stand, Detective Ferreria explained that the detectives placed 

defendant in the cell “[t]o gather more information and to test his statements to us during 

our interview.” Detective Ferreria wished to verify if anyone else was involved in the 

robbery and murder and, if so, his or her identity. He then explained that the recording 

was done as he watched and listened. Defense counsel had no objections to the transcript 

that was distributed to the jury, and the recording was played in its entirety. 

After the viewing of the DVD, the prosecutor asked Detective Ferreria if he 

recalled Johnson asking defendant, “you fittin’ to throw down with me?,” and the 

defendant asking what was wrong with the building. The prosecutor elicited that Johnson 

was a “male Black,” and suspects of African-American descent and Hispanics are not 
7

generally housed together. Defendant was expressing his concern about being in a cell 

with Johnson. The prosecutor then noted a remark Johnson made about “F13” and asked 

whether the detective had heard of that and how. Detective Ferreria responded that he 

had previously “worked gangs,” and F13 meant Florencia 13, a Hispanic gang. Defense 

counsel objected, and the trial court sustained the objection but called for a sidebar 

conference. Defense counsel told the court that, in addition to the fact that Detective 

Ferreria was not a gang expert, he was discussing gangs, which was completely and 

grossly prejudicial to defendant. 

When asked to state the relevance of the testimony, the prosecutor replied that she 

wanted to reveal defendant’s lack of remorse in the conversation with Johnson. She 

anticipated the defense would try to claim defendant showed remorse when he spoke with 

the two detectives. The court stated it was inclined to allow the testimony only to show 

defendant’s state of mind at the time he was speaking. Defense counsel asserted that the 

jury should be informed that was the sole purpose of the testimony. 

Before further testimony, the court told the jury, “Any testimony in regards to any 

gang activity is admitted to show only the defendant’s state of mind at the time that he is 

making this statement in the jail. It is not to be considered for any other purpose.” The 

court overruled the prior objection. 

The prosecutor then elicited that Detective Ferreria had previously testified as a 

gang expert. He explained that the Florencia 13 gang is a predominantly Hispanic gang, 

and the 6 Deuce Brims gang, claimed by Johnson in the recording, is a predominantly 

Black gang. The two gangs were “neither friend nor foe.” The Florencia 13 gang’s rival 

is the East Coast Crips. The prosecutor elicited the detective’s opinion that the “CK” 

tattoo on defendant’s face stands for “Crip Killer.” The trial court overruled defense 

counsel’s relevance objection, stating, “It is limited to that same purpose, only to show 

the defendant’s state of mind at the time of the making of any statements.” 

After several questions unrelated to gangs, the prosecutor asked Detective Ferreria 

if he knew what a burner was. He said it was a gun, and he had heard the term when 

talking with gang members. After several more questions, the prosecutor asked the 
8

detective if he had an opinion as to what the “18’s” were, which were referred to by 

Johnson as being in the cells that day. The detective stated it meant the 18th Street gang 

or a member of that gang. The prosecutor asked if Florencia 13 and the 18’s were 

friendly or not, and the court overruled the defense relevance objection. The court denied 

the defense request to approach. Detective Ferreria said the two gangs were currently 

enemies and were enemies in June 2012, when defendant was arrested. Defense counsel 

chose not to cross-examine Detective Ferreria, and the People rested.

Upon reading the jury instructions, the trial court gave the following instruction: 

“During the trial, certain evidence was admitted for a limited purpose. You may consider 

that evidence only for that purpose and for no other.” The court also told the jury, “You 

may consider evidence of gang activity only for the limited purpose of deciding if [sic] 

the defendant’s state of mind at the time he made those statements in the jail. You may 

not consider this evidence for any other purpose. You may not conclude from this 

evidence that the defendant is a person of bad character or that he has a disposition to 

commit a crime.”

During closing argument, the prosecutor stated, “[W]e also learn through the 

detective that there are politics that go on when it comes to being in custody . . . . And 

when this defendant is placed in the cell with the informant, immediately he’s on 

edge. . . . This defendant, as you know, is a gang member and he’s in a cell with another 

gang member of African-American gang. All right. That is an issue. Now, you heard 

about this defendant’s gang affiliation. You don’t convict him because he’s a gang 

member. You obviously convict him because of the evidence in this case and the crimes 

he committed, but you learn about what’s happening because it puts what this defendant 

told the detectives in context and in tone. . . . [Y]ou start to see his true personality. 

There’s none of that, oh, remorsefulness, oh, this just happened, woe is me, you know, 

this is this robbery gone bad. That’s not what you hear. You hear what this defendant 

tells this informant, which is, in no uncertain terms, I’m fucked . . . . And he goes on to 

further say, well, yeah, . . . fuck it, though. It is what it is.”
9

D. No Prejudicial Error

Defendant does not argue against admission of the recording of his conversation 

with Johnson in the jail cell, but only Detective Ferreria’s testimony elicited by the 

prosecutor after the recording was played for the jury. Defendant specifically objects to 

the detective’s statements that he had investigated homicides involving the Florencia 13 

gang and the meaning of the CK tattoo on defendant’s cheek. Defendant maintains that 

the gang-related testimony was not relevant, it created a substantial danger of undue 

prejudice and misleading of the jury, and it was inadmissible bad-character evidence and 

other-crimes evidence under Evidence Code section 1101, subdivisions (a) and (b). 

Furthermore, the testimony constituted a violation of his right to a fair trial under the 

Fourteenth Amendment. The court’s limiting instruction was flawed and did not cure the 

prejudice.

The only issue in this case was whether defendant was guilty of first or second 

degree murder. The prosecutor argued defendant intended to shoot Abuawad so as not to 

leave any witnesses. The defense argued there was no evidence he planned to kill the 

victim, and it was a robbery gone wrong, just as defendant said. There were essentially 

two ways the defense could obtain the desired second degree murder verdict: by proving 

that defendant did not premeditate and deliberate the murder, or by an exercise of 

leniency on the part of the jury. (See People v. Lewis (2001) 25 Cal.4th 610, 656 

[verdicts reached on basis of lenity, compromise, or mistake are not invalid].) In addition 

to arguing that there was no evidence that defendant planned to kill the victim, counsel 

argued that defendant was remorseful and quoted Detective Kellum’s words praising 

defendant for having a conscience and feeling bad about the crime. He began argument 

by noting that defendant had lost his job, had small children whom he could not feed, and 

was in the country illegally and unable to obtain social services. As a result, he “made 

the worst mistake of his life.” Counsel asked the jurors not to be passionate and angry 

and to find it was a case of second degree murder.

The prosecutor clearly anticipated this strategy and, for this reason, was relying on 

defendant’s conversation with Johnson to reveal a lack of remorse on defendant’s part. 
10

Remorse is not a defense, as defendant points out, but it can send a message to the jury 

that elicits sympathy on the part of some of them. In this case, defendant’s attitude 

toward his crimes is ultimately a credibility issue—an issue to which gang evidence is 

recognized as relevant. (People v. Ayala, supra, 23 Cal.4th at p. 277.) We note that 

defendant insists that the trial court erred in finding the evidence relevant based on 

defendant’s state of mind during the conversation, arguing that the only state of mind that 

was relevant was the state of mind defendant had when committing the crimes. Clearly,

the trial court was not referring to the mens rea element of the crimes defendant 

committed but rather his “state of mind” in the ordinary sense of the words, i.e., what he 

really thought about the crimes he committed and his confession, as revealed by his 

conversation with Johnson. 

Furthermore, the prosecutor did not seek to elicit the detective’s statement about 

having investigated F13 murder cases—this fact was blurted out as part of the detective’s 

recitations of his qualifications to testify about gangs. Defense counsel had objected not 

only about the mention of gangs but also about the fact that the detective “is not a gang 

expert to start with.” When permitted to continue with her direct examination of 

Detective Ferreria, the prosecutor asked the detective the basis of his knowledge, and he 

replied it was from “[h]aving worked gangs in ’99 to 2003 dealing with Hispanic gangs 

and then when I was assigned to criminal gang homicide division, I’ve had homicides 

dealing with Florencia 13. And I’ve worked at criminal gang homicide division from

2008 again until my retirement in 2013.” The remark about murders was thus buried in 

the detective’s recitations of his qualifications to testify as an expert. He did not “go out 

of his way to mention several homicides” involving Florencia 13, as defendant asserts. 

Moreover, we do not believe the detective’s remarks constituted a violation of 

Evidence Code section 1101, subdivision (a), as defendant claims. The remark about 

having investigated murders involving F13 was made in the context of the detective’s 

experience, and no specific crimes were mentioned. The explanation of the letters “CK” 

tattooed on defendant’s face was by way of explanation of Johnson’s attempts to calm 

defendant down so that defendant would talk to him. Johnson repeatedly says defendant 
11

should not “be tripping” because Johnson was not “tripping” on defendant. Johnson 

explained he was more concerned about his problems as a three-striker and said, “I see 

the CK and all that shit. I ain’t with all that shit, man. I’m a Brim. I’m a Blood. A bang 

Blood. Ain’t got nothing to do with whatever. I understand what goes on with us and 

you-all. But up in here, we men. You know what I mean?” Johnson’s remarks were 

meaningless without an explanation that “CK” meant Crip Killer, and that Johnson was 

not affected by that tattoo, since he was a Blood, and hence not defendant’s enemy. The 

detective’s explanation of the meaning of “CK” did not constitute other-crimes evidence 

or bad-character evidence in violation of Evidence Code section 1101, subdivision (a). 

Detective Ferreria had nothing more to say about defendant’s tattoo after stating what, in 

his opinion, it meant. He at no time insinuated that defendant’s tattoo implied he had a 

disposition to commit the instant crime, and the prosecutor’s questioning moved away 

from gang relationships at that point. 

With respect to the prosecutor’s argument, she never suggested the robbery was a 

gang operation. Her only mention of defendant’s gang affiliation during closing 

argument was to reiterate the circumstance that Johnson was not the type of person one 

would expect to be defendant’s confidante. The prosecutor specifically stated to the jury, 

“You don’t convict him because he’s a gang member. You obviously convict him 

because of the evidence in this case and the crimes he committed.” The prosecutor 

added, “[y]ou learn about what’s happening because it puts what this defendant told the 

detectives in context and in tone. . . . [Y]ou start to see his true personality.” Unlike 

defendant, we do not believe that by the words “true personality” the prosecutor meant 

defendant’s disposition for committing the instant crimes, but rather his apparent 

callousness and self-absorption. Contrary to what he told the officers, defendant was 

more concerned about getting a deal by confessing up front than about his victim’s 

family. Furthermore, the trial court twice instructed the jury that the sole purpose for the 

gang evidence was to evaluate defendant’s state of mind. 

In any event, we conclude defendant was not unduly prejudiced by the testimony 

to which he objects. “Evidence is not ‘unduly prejudicial’ under the Evidence Code 
12

merely because it strongly implicates a defendant and casts him or her in a bad light . . . . 

Instead, undue prejudice is that which ‘uniquely tends to evoke an emotional bias against 

a party as an individual, while having only slight probative value with regard to the 

issues.’ [Citations.]” (People v. Robinson (2005) 37 Cal.4th 592, 632, fn. omitted.) 

Defendant did not dispute that he shot Abuawad. He admitted his crimes in two 

recordings played for the jury. Defendant’s planning of the robbery, his taking of a 

loaded gun to confront Abuawad, and his leaving him for dead while taking with him 

incriminating evidence sufficiently revealed defendant’s willingness to commit violent 

acts. The two points defendant most disputes were tangential to the bulk of the 

detective’s testimony and to the recording of his interaction with Johnson. (See People v. 

Luparello (1986) 187 Cal.App.3d 410, 426-427 (Luparello) [finding a lack of prejudice 

despite prosecutor’s misconduct in a nongang case by eliciting testimony about the 

violent activities of the appellant’s gang].) As in Luparello, considering the 

circumstances of defendant’s crimes, “evidence connecting [defendant] to a violent street 

gang— although hardly desirable from [defendant’s] point of view— did not have the 

impact it might otherwise have had.” (Ibid.)

The cases defendant relies upon are distinguishable. In Cardenas, supra, 31 

Cal.3d 897, the issue was whether the appellant committed the crime, and the testimony 

was “sharply conflicting.” (Id. at p. 901.) The identification testimony contained many 

discrepancies, and the appellant had an alibi. (Id. at pp. 902–903.) The prosecutor 

attacked the credibility of defense witnesses by eliciting testimony that the appellant and 

they were all members of the El Monte Flores gang. (Id. at p. 903.) The Cardenas court 

held that the trial court abused its discretion by allowing the introduction of the 

appellant’s gang affiliation. (Id. at p. 904.) The court found that the evidence was 

cumulative and of minimal probative value in that it was offered only to establish the 

witnesses’ bias, when other evidence already showed the witnesses were the appellant’s 

friends and fellow boys club members. (Ibid.) On the other hand, there was a substantial 

danger of undue prejudice in the form of the jury inferring the appellant had a criminal 

disposition because the gang committed crimes and he was a member. (Id. at p. 905.) 
13

In the instant case, unlike in Cardenas, the evidence of which defendant complains 

was not cumulative to any other evidence. Furthermore, defendant admitted to his 

crimes, and the only issue was whether the murder was of the first or second degree. As 

we have stated, there was no substantial danger of undue prejudice from Detective 

Ferreria’s brief remarks. One was a passing reference to having investigated homicides 

that involved F13 by way of establishing his credentials as a gang expert. The reference 

to the meaning of the CK tattoo was not prejudicial, since it was established that 

defendant had used violence to achieve an end. The testimony did not insinuate the 

robbery and murder were a gang operation. 

People v. Maestas (1993) 20 Cal.App.4th 1482, relied upon by defendant, could 

not be more distinguishable from defendant’s case. In that case, the court found the 

erroneous admission of gang evidence was prejudicial because the evidence of guilt was 

weak and the “gang-violence-fear-retribution testimony and argument was pervasive.” 

(Id. at p. 1498.) The case was a “‘whodunit’” and only the victim’s extremely flawed 

identifications pointed to the defendants. (Id. at pp. 1498, 1499.) The alibi defense was 

“strong and unrebutted,” and the prosecutor “had no coherent theory of guilt.” (Id. at p. 

1499.) There was gang-expert testimony comprising 47 pages of the reporter’s transcript. 

(Id. at p. 1500.) Maestas does not aid defendant’s case. 

In Luparello, the court stated that the prosecutor in that case used a witness’s 

innocuous description of headgear worn by one of the perpetrators (who said it was ‘“like 

the F-Troopers . . . wear”’) in order to pose a barrage of leading questions to a police 

officer regarding the officer’s experience with the F-Troop gang. (Luparello, supra, 187 

Cal.App.3d at pp. 423–426.) According to the Luparello court, the prosecutor “attempted 

to inform the jury by innuendo not only that F-Troop was a street gang whose members 

were suspected of committing homicides and other violent attacks on persons, but also 

that the gang was likely connected to the case in such a way that its members had 

threatened a material witness.” (Id. at p. 426.) 

The evidence provided in the instant case bears no comparison to the evidence 

embedded in the prosecutor’s leading questions in Luparello, to which the officer merely 
14

replied, “Yes, sir.” Here, Detective Ferreria’s brief mention of having investigated 

murders committed by the F13’s among other crimes and his opinion on the meaning of 

defendant’s tattoo did not seek to inform the jury by innuendo that the gang was 

connected to Abuawad’s murder or that defendant’s membership in a violent gang 

indicated he was disposed to violence. As noted previously, the Luparello court held that 

the prosecutor’s apparent misconduct was nonprejudicial because the evidence of the 

preparation for the crimes showed the appellant’s willingness to use weapons and commit 

acts of violence. (Luparello, supra, 187 Cal.App.3d at p. 426.) The Luparello court also 

cited the trial court’s cautionary instruction, which, although different from the limiting 

instruction in the instant case, was one of the circumstances showing that it was not 

reasonably probable the jury would have reached a more favorable verdict in the absence 

of the misconduct. (Id. at p. 427.)

Having found defendant did not suffer undue prejudice from Detective Ferreria’s 

brief testimony about defendant’s tattoo and his experience with the F13 gang, we 

necessarily conclude defendant suffered no violation of his right to due process and a fair 

trial under the Fourteenth Amendment. Due process is violated only if there are no 

permissible inferences the jury may draw from the evidence. (People v. Albarran (2007) 

149 Cal.App.4th 214, 229.) Here, the admission of gang evidence was relevant to the 

principal issue in this case and was not unduly prejudicial. We also conclude defendant’s 

trial counsel was not ineffective for failing to object on every possible legal ground 

defendant raises on appeal. (See Strickland v. Washington (1984) 466 U.S. 668, 697 [A 

reviewing court “need not determine whether counsel’s performance was deficient before 

examining the prejudice suffered by the defendant as a result of the alleged 

deficiencies.”].)
15

DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

ASHMANN-GERST, J.

HOFFSTADT, J.