Does the use of evidence of criminal street gang activity by a defendant to establish a predicate offence in a prosecution for active participation in a criminal gang constitute prejudicial or prejudicial evidence?

California, United States of America


The following excerpt is from People v. Elizalde, A132071 (Cal. App. 2013):

only is such evidence highly probative, but its prejudicial effect is comparatively weaker: "[T]he inherent prejudice from a defendant's separate gang-related offense typically will be less when the evidence is admitted to establish a predicate offense in a prosecution for active participation in a criminal street gang, than when it is admitted to establish an intermediary fact from which guilt may be inferred. 'Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant's guilt.' [Citations.] As we explained in People v. Doolin (2009) 45 Cal.4th 390: ' "The prejudice that section 352 ' "is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.] "Rather, the statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors." ' " ' (Id. at p. 439.) That the evidence provided direct evidence of some of the elements of the prosecution's case thus does not weigh against its admission. In addition, because the prosecution is required to establish the defendant was an active participant in a criminal street gang and had knowledge of the gang's criminal activities, the jury inevitably and necessarily will in any event receive evidence tending to show the defendant actively supported the street gang's criminal activities. That the defendant was personally involved in some of those activities typically will not so increase the prejudicial nature of the evidence as to unfairly bias the jury against the defendant. In short, the use of evidence of a defendant's separate offense to prove a predicate offense should not generally create 'an intolerable "risk to the fairness of the proceedings or the reliability of the outcome." ' [Citation.]" (People v. Tran, supra, 51 Cal.4th at p. 1048.)

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