Avitia

Defendant and appellant Gerardo Avitia was convicted by a jury of discharging a firearm in a grossly negligent manner and possession of an assault weapon, and sentenced to two years in prison. Although no Penal Code section 186.22, subdivision (b)(1) gang enhancement was alleged, and although there was no evidence the charged crimes were related to any gang activity, the trial court admitted, over Avitia’s objection, evidence that gang graffiti was found in Avitia’s bedroom. In the published portion of the opinion, we conclude that admission of this evidence, which was unrelated to any issue at trial, requires reversal of Avitia’s conviction for grossly negligent discharge of a firearm. In the unpublished portion of the opinion, we conclude the trial court further erred by allowing Avitia to be impeached with evidence he had failed to abide by the conditions of his probation, and that the evidence was sufficient to support the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. People’s case.

On February 22, 2003, at approximately 3:30 p.m., Angelica Gaeta called 911 reporting that Avitia had fired two shots from a handgun five minutes earlier. As Gaeta spoke…