Filed 11/26/14 P. v. Eldridge CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. SONNY VERDUGO ELDRIDGE, Defendant and Appellant. G050273 (Supe r. Ct. No. FMB1200441)

O P I N I O N

Appeal from a judgment of the Superior Court of San Bernardino County, Michael M. Dest. (Retired judge of the Sa n Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Alan S. Yockelson, under appoin tment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assist ant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.2 A jury found Sonny Verd ugo Eldridge guilty of second degree robbery (count 1), second degree commercial burglary (count 2), false imprisonment by violence, (count 3), and street terrorism (count 4). The jury also found true the gang enhancements as to counts 1, 2, and 3, and the firearm use allegation as to count 3. The court sentenced Eldridge to serve a total of 16 years and eigh t months in prison. On appeal, Eldridge contends the evidence of his pr ior arrest for the sale of ma rijuana and his conviction for the lesser offense of possessing marijuana was e rror and should have been excluded. We agree but find the error not prejudicial, a nd therefore, we affirm the judgment.
I On September 21, 2012, James Hayes was washing windows at Check Into Cash in Yucca Valley when he spotted two me n wearing ski masks walking towards him. Hayes could see through the eye holes of the ski mask that one of the men was white and the other Hispanic. The Hispanic male, la ter identified as Dann y Castro, was on the
shorter side and wore a hooded sweatshirt and shorts. The white male, later identified as James Schutte, was tall and wore a hooded swea tshirt with jeans. Schutte had a gun and told Hayes to get inside th e Check Into Cash store. Once inside, Schutte ordered everyone onto the floor. Schu tte and Castro took $1,276 fro m the cash register and then
fled. Deputy Erik Smoot resp onded to the scene of th e robbery, and observed two Hispanic males—later identified as El dridge and Juan Servin—walking quickly along the shoulder of the ro ad near Check Into Cash. Smoot made contact with the
startled men and asked for identification. Smoot noted Eldridge was shaking and his voice was trembling as he handed over his iden tification. Eldridge and Servin sat on the curb and explained to the police officer they were walking to the community center.
Smoot decided to handcuff Eldrid ge and Servin based on the fact Eldridge was shaking, they were walking hastily away from the scene of the robbery , and they were walking in the same direct path Schutte and Castro had taken to flee. One of the bystanders of the3 robbery was asked to identify Eldridge or Servin as susp ects, but she was unable to identify them. The two men were released. Meanwhile, Schutte and Castro fled on foot but were eventu ally found. No fingerprints were recovered at the store, indi cating the perpetrators were wearing gloves. During a search of the surround ing area, the police found a pair of new black gloves balled up near the escape path us ed by one of the robbers.
Smoot later interviewed Castro. Ca stro had several tattoos including an arrowhead tattoo on the right side of his neck with the letters “SB” for San Bernardino,
an “S” on the back of his left arm, and an “IE” for Inland Empire on his left hand. Castro’s Facebook page also showed a pict ure of himself with Servin holding up the letter “F” with his right hand for Flats—a short hand symbol for South Side Verdugo Flats—a San Bernardino gang. After seeing th is photo, Smoot rea lized it may not have
been a coincidence that Servin and Eldrid ge were approximately 100 feet away from Check Into Cash ju st 11 minutes after the robbery.
Smoot talked further with Castro ab out the planning of the robbery, and Castro directed him to a 99 Cent Only Store and Wal-Mart. Smoot reviewed the surveillance video from the stores, and saw Castro, Schutte, Servin, and Eldridge enter the 99 Cent Only Store the day before the r obbery. Eldridge purchased two pairs of gloves, two beanies, and two hockey masks. The new pair of black gloves found by the police following the robbery had the same serial number as the gloves Eldridge bought at the 99 Cent Only Store. Th e surveillance footage from Wal- Mart showed the four men arriving in Eldridge’s car before entering the store where Servin bought two-way radios.
Smoot was also able to find surveilla nce footage taken near the community center where Eldridge and Servin were first spotted after th e robbery. While reviewing the video recording taken prior to the burgla ry, Smoot spotted Eldridge walking with a
red T-shirt underneath a black T-shirt. However, when Smoot stopped Eldridge4 following the burglary, Eldridge was not weari ng a red t-shirt. When the police observed Schutte in surveillance footag e after the robbery, he was wearing a red T-shirt. Eldridge, Servin, Schutte, and Castro were all arrested. Eldridge was charged with second degree robb ery (Pen. Code, §211; count 1), 1 second degree burglary (§ 459; count 2), false imprisonment by violen ce (§ 236; count 3), and street terrorism (§ 186.22, subd. (a); count 4 ). The information included a firearm use allegation as to count 3 (§ 12022.53, subd. (b)), and gang enhancements as to counts 1, 2, and 3 (§ 186.22, subd. (b)(l)). During the trial, San Bernardino Poli ce Officer Raymond Bonshire testified as a gang expert, specifically about the Hispan ic gang South Side Verdugo Flats (SSVF). He said the members of the gang refer to themselves as The Flats or SSVF, and their territory covers the southwest portion of San Bernardino. SS VF’s gang sign is to make the letter “F” with their fingers. Bonshire estimated there were over 100 documented members and the gang’s crimes included robb eries, shootings, murders, vehicle thefts, firearm possession, and narcotic sales.
Bonshire testified he was familiar w ith Eldridge from personal contacts and investigations. He knew Eldrid ge’s moniker was “Slick.” Based on his review of arrest reports, Bonshire stated Eldridge was a rrested in 2011 for possession and sale of concentrated cannabis. Bonshire represen ted he had the “backg round, training and experience [to] recognize[e] possession for sale [.]” He opined there was information in the 2011 arrest report indicating Eldridge pos sessed the marijuana fo r sale (even though he was not convicted of that offense). Bonshire explained individuals se lling marijuana often have money in small denominations “that indicate[] street le vel,” and cell phones to send text messages.

1 All further statutory references are to the Penal Code, unless otherwise indicated.5 He also testified drug dealers typically will be found in areas where narcotics are being sold. Bonshire said many of these elements were present in Eldridge’s 2011 case. He stated Eldridge “was in possession of the ma rijuana, the currency[,] and a cell phone with text messages that showed messages for sale.” He added that Eldridge was selling the marijuana inside SSVF’s territory and ther e would be serious re percussions if a nonSSVF was selling within the territory. Bonshi re explained, “Typically with gangs, their turf area, they control that ar ea. They know wh o’s supposed to be selling narcotics and who’s not.” After looking at the police arre st report to refresh his memory, Bonshire stated Eldridge had cash in small denomina tions (ones, fives, and tens), which was consistent with someone who was selling drug s. In addition, Eldridge was carrying a usable amount of marijuana. Bonshire found it significant that Eldridge denied being an SSVF member to the arresting officer, sta ting it was common behavior for gang members to deny membership. Bonshire stated it wa s his opinion the 2011 charge for possessing marijuana for sale was “v alid” and SSVF was a criminal street gang. In addition to Eldridge’s prior conv iction, Bonshire testified about three additional predicate crimes involving the following SSVF gang members: (1) Juan Blanco was arrested and convicted for posse ssing a firearm; (2) Dominic Rodriguez was
arrested and convicted for home invasion r obbery; and (3) David Montoya was arrested and convicted for possessing a firearm as a felon. The San Bernardino Police Department had 18 gang cards on Eldridge, and on nine of those cards, Eldridge self-admitted he was a me mber of SSVF. In addition to the gang cards, Bonshire testified Eldridge’s tattoos were consistent with membership in SSVF. He had a marijuana leaf on his ches t (stemming from the origin of the gang and the original name “Marijuanos”) and two dollar sign symbols, often meaning “South Side.” Bonshire said Eldridge had also been contacted with other documented SSVF members numerous times. Bonshire opined El dridge was an active member in the SSVF criminal street gang.6 Bonshire stated he was also familiar with Castro (having the moniker “June Bug”), Schutte (“JD”) and Servin (“Little Clowny”). The police department had gang cards on all of them, Castro and Servin ha d self-admitted to gang membership. In addition, Castro had tattoos consistent w ith being a SSFV memb er. Schutte had not previously admitted being a SS FV member, and Bonshire opine d he should be classified as an associate of the gang. Bonshire testified he helped execute a search warrant at Eldridge’s home in 2008. During the investigation, police fo und two notebooks havi ng Eldridge’s gang moniker as well as clothing indicative of SSVF membership. Bonshire also discussed an investigation in 2012 during wh ich an officer reported he as ked Eldridge what gang he was from, and Eldridge res ponded “Verdugo Flats.” Based on a hypothetical matching the facts of the case, Bonshire opined the
crimes in the case were committed to benefit SSVF. He stated, “It benefits [the gang] because it shows it’s an ongoing criminal orga nization. Its members are willing to go
outside the turf to commit crimes . It shows that . . . multip le members will work together to fill out their mission, and that through that they will gain th e respect and that it broadens their gang’s turf, their crime turf.” He a dded using a firearm in the crime also enhances one’s status in the gang. Defense Case Eldridge testified his group of fri ends joked about robbing the checkcashing store, but he did not realize Castro and Schutte were se rious about committing
the crime. He did not know the robbery had taken place until he saw Schutte surrounded by police. He denied being involved in the robbery and de nied being a gang member. Eldridge admitted he associated with ga ng members because he grew up in SSVF territory and his father is a gang member. Eldr idge’s sister testified he often talked about not wanting to be involved in the gang like their father. She was aware of the marijuana possession conviction, but she believed it was a misunderstanding. She stated Eldridge7 had suffered from headaches since he shot hims elf in the face when he was 17 years old and he carried a medical marijuana card. She testified that the day Eldridge was arrested he was carrying cash to purchase a money orde r and he kept the medical marijuana in a separate container in his pocket.
II The sole issue raised on appeal is whether the trial court abused its
discretion under Evidence Code section 352 in admitting ev idence of Eldridge’s 2011
arrest for one crime and conviction of a lesser offense to prove the substantive gang count (count 4) and the gang enhancements. Over Eldridge’s objection, the court granted the prosecutor’s motion in limine to admit Eldridge’s prior arrest and conviction. At trial, over Eldridge’s objection, Bonshire was permitted to testif y about why the prior arrest for possession for sale was valid and attributab le to gang membersh ip, even though the ultimate conviction was for simple possessi on without any gang enhancements. We conclude admission was erroneous, however, due to the lack of prejudice we affirm the
conviction.
The California Street Terrorism En forcement and Prevention Act (the STEP Act; § 186.20 et seq.) criminalizes active participation in a criminal street gang and
the commission of other crimes for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subds. (a) & (b).) 2 “A criminal street gang is any ongoing association that has as one of its primary activities the commission of certain

2 Section 186.22, subdivision (a), provides: “Any person who actively participates in any criminal street gang with knowledge th at its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.” Section 186.22, subdivision (b), provides a sentence enhancemen t for “any person who is conv icted of a felony committed for the benefit of, at the direction of, or in a ssociation with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.”8 criminal offenses and engages through its members in a ‘pattern of criminal gang activity.’ [Citations.] A pattern of crim inal gang activity is ‘the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more’ sp ecified criminal offenses within a certain time frame, ‘on separate occasions, or by two or more persons’ (the ‘predicate offenses’). [Citations.]” ( People v. Tran (2011) 51 Cal.4th 1040, 1044 ( Tran ).) Section 186.22, subdivision (e), lists 33 specific offenses which qualify as predicate offenses. Eldridge was charged with one count of participation in a criminal street gang under section 186.22, subdivision (a) (c ount 4-street terrorism), and it was alleged the other three crimes charge d benefitted a criminal street gang under section 186.22, subdivision (b) [street gang enhancement]. Therefore, ev idence of Eldridge’s gang affiliation and activity was directly rele vant to the gang-related charges and enhancements. ( People v. Williams (1997) 16 Cal.4th 153, 193 ( Williams ).) The prosecutor was required to establish that (1 ) one of the gang’s primary activities was
commission of one or more of the 33 crimes listed in section 186.22, subdivision (e) (often referred to as predicate offenses), a nd (2) there was the requisite “pattern” of criminal conduct because two or more predic ate offenses were committed on separate occasions by two or more persons. Th ese requirements are often satisfied by the testimony of a police gang expert who can express an opinion on the primary activities of the gang in question. ( People v. Sengpadychith (2001) 26 Cal.4th 316, 322.)
In Tran , the Supreme Court ruled that evid ence of a defendant’s own prior criminal conduct may be admitted to pr ove a predicate offense under the gang enhancement statutes (§ 186.20 et seq.), s ubject to an appropriate balancing of the probative value of the eviden ce versus its prejudicial effect under Evidence Code section 352. ( Tran, supra , 51 Cal.4th at pp. 1046-10 50.) The Court rejected the argument that use of a defendant’s prior offens e to show a predicate offense is necessarily prohibited in all cases by Evid ence Code section 352. ( Tran, supra, 51 Cal.4th at p.9 1046.) The Supreme Court reasoned, “That ev idence of a defendant’s separate offense may be admissible to prove a predicate offe nse does not mean trial courts must in all cases admit such evidence when offered by the pr osecution. Considerations such as those
described in People v. Ewoldt [(1994)] 7 Cal.4th [380,] 404-405 [( Ewoldt )], will still
inform the trial court’s discretion and in an individual case may requi re exclusion of the evidence.” ( Tran, supra, 51 Cal.4th at p. 1049.) The Attorney General argues, “[El dridge’s] possession of marijuana for sale was an enumerated felony (§ 186.22, subd. (e)(4)), and it was gang related. [Citing Bonshire’s opinion testimony.] Thus, the evidence of [Eldridge’s] prior offense was highly probative of his knowledg e of [SSVF’s] pattern of criminal behavior, as well as his active participation in the gang, and th e trial court properly admitted it for that purpose.” The Attorney Ge neral explains, “evidence of a defendant’s gang-related separate offense ‘provides direct evidence of a pr edicate offense’ . . . . For that reason, its probative value is generally greater in prosec utions for active participation in a criminal street gang. [ Tran, supra, 51 Cal.4th at p. 1048].” We would agree with the Attorney Ge neral if Eldridge had been convicted of possessing marijuana for sale. He was no t. His conviction was for simply possessing marijuana. (Health & Saf. Code, § 11357, su bd. (a).) Simple drug possession is not now, nor has it ever been a qualifying predicate o ffense for purpose of proving a substantive offense of active gang participation (§ 186. 22, subd. (a)), or the enhancement allegation of committing another offense for the benefit of, at the directi on of, or in association with a criminal street gang (§ 186 .22, subds. (b) & (e)). In Tran, supra , 51 Cal.4th at page 1044, the court held that evid ence of defendant’s prior conv iction of a predicate offense is admissible even if the People could de velop evidence of the requisite number of predicate offenses through the presentati on of other gang members’ convictions. Tran in no way stands for the proposition that a prio r non-qualifying conviction may be admitted10 to prove the predicate offenses prong. We conclude it was error to admit evidence of Eldridge’s prior non-predicate conviction for drug possession. Turning to the admissib ility of Eldridge’s arrest , the Attorney General argues these facts were not cumulative or undul y prejudicial. The Attorney General fails to cite any case authority, and we found none, holding an arrest for a predicate offense is
admissible even if defendant was not convic ted of it. “Genera lly, evidence of mere
arrests that do not result in co nvictions is inadmissible beca use such evidence invariably suggests the defendant has a bad character. ( People v. Duran [(2002)] 97 Cal.App.4th [1448,] 1458-1459; see also People v. Anderson (1978) 20 Cal.3d 647, 650 [holding that evidence of prior arrests was inadmissible because it suggest ed the defendant had a bad character] . . . .].) A key consideration for tr ial courts in evaluating the prejudicial nature of the uncharged acts is whether the prior bad acts resulted in criminal convictions; prior
convictions minimize the risk the jury would be tempted to punish the defendant for the uncharged acts. ([ Ewoldt, supra, ] 7 Cal.4th [at p.] 405, supersed ed by statute as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.)” ( People v. Williams (2009) 170 Cal.App.4th 587, 609-61 0, fn. omitted.) In this case, the prejudicial nature of Eldridge’s prior arrest for selling drugs was heightened by the gang expert’s opinion the underlying facts of the crime
indicated it was committed for the benefit of El dridge’s gang. Our record does not show Eldridge’s arrest in 2011 resu lted in any gang-related charge s. And the 2011 conviction for drug possession carried no gang enhancemen ts. Thus, the purported gang nature of the prior offense was an uncharged act proven by expert testimony. It is generally understood that a jury informed that a defendant has committed a past crime for which he was not pu nished, may be more inclined to convict on the current charge in part to punish him for his prior misconduct. ( Ewoldt, supra , 7 Cal.4th at p. 405; Williams, supra , 170 Cal.App.4th at pp. 609-610.) The Attorney General argues there was no danger of th is because “as with the defendant in Tran,11 [Eldridge’s] jury hear d that he was convicted—albeit for the lesser offense of simple possession—in connection with his prior offe nse.” This argument is unconvincing. Eldridge’s circumstances are nothing like the defendant in Tran.
In the Tran case, a police officer testified, ove r defendant’s objection, about
a series of extortions defendant and several other gang members had made three to four years before the current offense. ( Tran, supra , 51 Cal.4th at p. 1045.) The officer described some of the facts underlying the crime, including evidence the gang members
fired shots into some businesses and made threats against others. The prosecution provided the jury with certified copies of the court re cord establishing defendant was convicted, on a plea of guilty, for extortion. The court de termined evidence of the conviction, and some of the underlying facts, was a proper exercise of the trial court’s
discretion under Evidence Code section 352. ( Tran, supra, 51 Cal.4th at p. 1050.) There was no danger of jury confus ion because defendant was convicted of the same predicate crime he was arrested for. And it was undisp uted extortion was one of the enumerated predicate offenses in section 186.22, subd ivision (e)(19). We recognize the Court
determined the details of the crime were also admissible in that case, but it also cautioned
the same is not true in all cas es: “[T]he trial court of cour se retains discretion to exclude
details of offenses or related conduct that might tend to inflame without furthering the purpose for admitting the evidence.” ( Tran, supra, 51 Cal.4th at p. 1050

. ) The Tran Court did not suggest a prosecuto r should be permitt ed to use the details from an arrest report to suggest a defendant sh ould have been, but was not, convicted of a more serious
crime. In the case before us, Eldridge was not convicted of the predicate crime he
was arrested for. He was convicted of a non-predicate crime. To make the prior conviction more probative in this case, the prosecutor was allowed to use expert testimony to prove the prior should have been a gang-related predicate conviction. Bonshire, using facts from an arrest report, opined Eldridge was gu ilty of dealing drugs12 for SSVF in 2011. In essence, the expert re tried Eldridge for prior conduct Eldridge had already pled guilty to. We conclude the pros ecutor should not have been permitted to argue Eldridge’s simple possession convictio n should be treated as a conviction for something far worse than it was.
In the Tran case, the Court reasoned, “[B]eca use defendant stood convicted of the extortion, there was little danger of co nfusing the issues by re quiring the jury to determine if defendant was guilty of both the charged offenses and the extortion, and no risk the jury might convict defendant to prevent him from escaping punishment for the extortion.” ( Tran, supra , 51 Cal.4th at p. 1050.) In our case, the jury was asked to determine if Eldridge was guilty of the char ged offense for which he was not punished. Thus, evidence of the prior arre st was highly prejudicial beca use of propensity inferences that may be drawn from it. ( People v. Medina (1995) 11 Cal.4th 694, 769; People v.
Anderson (1978) 20 Cal.3d 647, 650-651.) Thus, to briefly summarize, we conclude evidence of a non-predicate prior
conviction would not be admissibl e to prove the gang charges in this case. Evidence of a

mere arrest for a predicate offense, but for which there was no conviction, would also be inadmissible. And certainly evidence of the details underlying the prior arrest to prove
the conviction should be treated as a gang-related predicate offense was more prejudicial than probative under Evidence Code section 352. Admission of the prior arrest, the underlying facts, and the conviction for a non-predicate offense was error. It is unclear why the prosecutor went to such great lengths to fit a square peg in a round hole. We conclude the record contains ample and strong evidence of guilt. And for this reason, we deem the error re garding admission of the prior arrest and
conviction harmless. It is not reasonably probable Eldridge would have obtained a more
favorable result had the court excluded the evid ence of his prior arrest and conviction. ( People v. Watson (1956) 46 Cal.2d 818, 836.)13 For example, the prosecutor only needed to provide evidence of two predicate offenses, and she presented evidence of four (including th e underlying offense). ( People v. Galvan (1998) 68 Cal.App.4th 1135, 1140 [“[E]ither prior conduct or acts
committed at the time of the ch arged offenses can be used to establish the ‘primary activities’ element of the ga ng enhancement offense”].) Th e probative value adding one more (Eldridge’s prior conv iction/arrest) was low. ( Tran, supra , 51 Cal.4th at p. 1049 [“the probative value of the ev idence inevitably decreases w ith each additional offense, while its prejudicial effect increases, til ting the balance towards exclusion”].) Moreover, there was abundant evidence Eldridge was an active member of the SSVF. The officer explai ned there was the following evid ence: (1) 18 gang cards (9 of which show Eldridge self-admits he is a SSVF gang member); (2) Eldridge had tattoos consistent with SSVF gang membersh ip; (3) he had a gang moniker and it was written in a notebook found at his home; (4) he wore clothing in dicative of SSVF gang membership; and (5) in a previous investig ation he told a police officer he was from “Verdugo Flats” when asked hi s gang affiliation. These fact s are sufficient to establish the gang allegations. (See People v. Mendez (2010) 188 Cal.App.4th 47, 56 [similar facts]; People v. Martinez (2008) 158 Cal.App.4th 1324, 1331 [using moniker, tattoos,
and verbal admittance to bein g in gang as evidence to find defendant was actively participating in gang].) In addition, the re cord shows there was st rong evidence Eldridge was involved in the robbery. Videotapes showed he and th ree others associated with SSVF purchased items commonly used by arme d robbers, i.e., mask s, beanies, gloves, and walkie-talkies. One pair of the gloves was used during the robbery. And Eldridge was captured near the store s oon after it was robbed and he was headed in the same direction as his fleeing comrades. Accordingl y, we conclude Eldri dge was not prejudiced by the erroneous admission of the prior arrest and conviction.14 III The judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

ARONSON, J.