People v. Zavala CA3

DISCUSSION

I. Uncharged Misconduct & Ineffective Assistance of Counsel

Defendant queries, “Why would the gang investigator need to bring up prior robbery charges/ass[a]ults and police contacts that had nothing to do w[ith] gangs and just influenced my jury to have doubts of innocence and having a negative impression of my history.” Defendant complains that defense counsel had advised that defendant’s priors were inadmissible “under any circumstances.” Defendant also complains that defense counsel’s performance was deficient in not ensuring that the gang expert was properly instructed not to discuss defendant’s priors. Citing Evidence Code sections 1101, subdivision (a), and 352, defendant moved in limine to exclude defendant’s prior bad acts/convictions, specifically, defendant’s prior juvenile adjudications for violating Penal Code sections 459, 211, and 245; defendant’s misdemeanor convictions for violating Penal Code sections 242, 487, and 273.6; and defendant’s prior felony conviction for violating Penal Code section 245. At the motion hearing, the prosecutor represented that he did not intend to present such evidence provided defendant did not testify. The court ruled that…