People v. Hicks CA1/2 ( 2021 )

Filed 8/31/21 P. v. Hicks CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A159863
v.
TIQUON RAMON HICKS, JR., (Solano County
Super. Ct. No. VCR233254)
Defendant and Appellant.
Defendant Tiquon Hicks, Jr. was convicted of committing second-
degree murder in connection with a criminal street gang, for an unprovoked
shooting death that occurred in December 2017 on the streets of East Vallejo,
California in broad daylight. On appeal, he challenges his conviction solely
on the basis of evidentiary error. He contends the trial court abused its
discretion by admitting various items of highly inflammatory and prejudicial
evidence of his gang affiliation and contends the court erred by admitting
improper expert opinion about some of the ballistics evidence. He also raises
two issues affecting his sentencing.
We reject his contentions and affirm the judgment.
BACKGROUND
In November 2018, the Solano County District Attorney filed an
indictment charging Hicks with three counts regarding the
September 21, 2017 death of Demorio Williams. Count one alleged that
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Hicks, along with co-defendants Nickolas Howland and Steven Sanderson,
murdered Demorio Williams. (Pen. Code, § 187, subd. (a).1) Attached to the
murder count were several gang-related firearm use allegations (§§ 12022.53,
subds. (b), (c), (d) & (e)(1), 186.22, subd. (b)(1)). Count two charged all three
men with engaging in street terrorism on the day of the alleged murder
(§ 186.22, subd. (a)), and count three charged Hicks with possession of a
firearm by a felon on that day (§29800, subd. (a)(1)). In a fourth count, Hicks
was also charged with possession of a firearm by a felon four months later, on
January 14, 2018, the date he was arrested.
Howland and Sanderson, Hicks’s alleged co-participants in the
Williams murder, also were charged with the January 13, 2018 gang-related
murder of another victim (Coy Lacy, Jr.), which they allegedly committed
together with a fourth defendant, Desean Johnson, another alleged gang
member. A fifth co-defendant, Damaria Haskins, was charged with the
December 23, 2017 gang-related murder and attempted murder of two other
victims (Erik Green and Eian Green), and assault with a semiautomatic
firearm.
The charges against Hicks were severed, and he was tried separately
before a jury in January and February 2019. The prosecution contended
Hicks, Howland and Sanderson were members of the 200 Westwood criminal
street gang in East Vallejo and, acting together, murdered Demorio Williams.
The prosecution presented evidence the murder took place about a month
after Howland, in Hicks’s presence, had accused the victim of stealing a gun
from him, a theft that, according to the People’s gang expert, would have
been regarded as disrespectful toward the gang. The prosecution contended
1All further statutory references are to the Penal Code unless
otherwise indicated.
2
that about a month after that incident, at around 1 p.m., in an area of East
Vallejo that was part of their gang territory, the three gang members
emerged from an alleyway onto the street (the 100 block of Westwood Street)
and then two, or possibly all three, began shooting into the passenger side of
a car that was stopped in the street. The assailants then fled on foot through
an alleyway and out of sight. The car’s driver sped off to a nearby medical
center, where efforts to revive the passenger-side occupant failed, and the
victim, later determined to be Williams, was pronounced dead.
Several months later, on January 14, 2018, Hicks was arrested after
Vallejo police conducted a legal search of him while he was a passenger in a
car stopped at a gas station. They found him in possession of a Glock .9-
millimeter semiautomatic pistol loaded with a high-capacity magazine
containing 27 rounds of ammunition (located under his seat) and a second
cartridge of .9-millimeter ammunition located inside a backpack on the floor
in front of him. Subsequently, on the second day of trial, he pled no contest
to the charge of illegal possession of a firearm by a convicted felon on that
date.
At trial, the principal contested issue was whether Hicks, a 21-year-old,
relatively short (5 feet 4 inches or 5 feet 5 inches ), dark-skinned African-
American man weighing about 130 pounds, was one of the homicide
assailants.
1. Eyewitnesses
Four eyewitnesses testified. Two of them, a passerby in a vehicle and a
neighborhood resident at home, witnessed the shooting itself. The other two,
who were co-workers at a nearby market, overheard the shooting and
witnessed its immediate aftermath.2
2 We omit their names for confidentiality.
3
The Passerby in a Truck: The passerby testified that on the day of
the homicide, she left home in her truck around 1:00 p.m. and turned onto
Westwood Street, where she encountered a car stopped in the middle of the
street, blocking her way. When she was about 20 feet away, she saw two men
emerge from an alleyway between some apartment buildings, walking
quickly and “with purpose,” and begin shooting at the person sitting in the
passenger seat. They were holding black, semiautomatic handguns. She
testified that it seemed “like they completely unloaded their magazines” into
the car, aiming for the passenger. It took about 10 seconds. Then, she saw
the shooters run back down the same alleyway, and the car sped away. The
entire encounter lasted about 15 to 20 seconds, including the 10 seconds it
took the two shooters to discharge their guns. At first she tried to follow the
fleeing car but quickly lost sight of it, then called 911 and returned to the
scene to talk to police.
The passerby didn’t recognize the shooters, and described them as
dressed all in black, and wearing their black hoods pinched up to obscure
their identities. She could see only their noses and their hands, and both
shooters appeared to be light-skinned. She thought they were either White
or Hispanic, although one shooter was possibly a very light-skinned Black
person. Both were lighter-skinned than Hicks. One was about 5 feet 6 inches
to 5 feet 9 inches tall; the other was a few inches shorter and a little chubby.
The Neighbor: The neighbor lived in a nearby one-story duplex, with
his kitchen window overlooking Westwood Street about 55 feet from where
the shooting took place. At around 1:00 o’clock in the afternoon, he looked
through the open slats of the blinds on his kitchen window and saw three
people standing by a car on the street, surrounding it from about 10 feet
away. One person was standing at the front of the car, one in the middle and
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one at the rear. All three pulled out guns and began shooting at the front of
the car for about 10 to 12 seconds, and then they ran away down the “[s]ame
alleyway that they’re always by.” The car sped off. From his vantage point it
was hard to tell if they were aiming at the driver or the passenger side. On
direct examination he estimated he heard about 30 shots, “it was a lot of
shots.” On cross-examination, he admitted he didn’t really know how many
shots were fired and that it could have been either 15 or 30. He didn’t see
anyone else when the shooting happened, and he didn’t notice any truck.
The handguns they used all looked the same and were black.
The neighbor was “one hundred percent” certain there were three
shooters and that Hicks was one of them.
The neighbor recognized all three people as soon as he saw them,
because he had often seen them together in the neighborhood, in the general
vicinity of his apartment building and nearby alleyways. The neighbor in
fact told police he “hated” Hicks, because Hicks and his friends would often
pull up in cars and block the neighbor’s driveway or his neighbors’ driveways
or stand in their driveways.
The neighbor described one of the other shooters as “mixed race,” with
a hood pulled tight around his head, and at trial identified a photograph of
Steven Sanderson as the second shooter with “absolute[] certain[ty].” The
third shooter was a lighter-skinned Hispanic male whom he’d seen much less
often than the other two shooters and was also wearing a hood, but the
neighbor could see his face. At trial, the neighbor identified a photograph of
Nickolas Howland as the third shooter.
When police talked to the neighbor on the day of the shooting, he lied
and did not tell police what he saw because he feared the assailants might
return to shoot him. After that, the neighbor spoke with the lead detective in
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the homicide investigation, Detective Terry Schillinger, several more times,
and each time he lied and said he hadn’t seen anything because he didn’t
want to get involved and feared for his safety and that of his live-in
girlfriend.3 Finally, about a month or two after the shooting, the police
reached out to him again and he was unwilling to tell them what he saw
unless he received assurances for his safety. He testified he asked police to
assist him in exchange for his talking to them, the police told him they might
be able to help him move away from the area, and then he told police what he
saw.4 Detective Schillinger also told him the police would reach out to a
realtor on his behalf.
The neighbor then identified Hicks, Sanderson and Howland from two
six-person photographic lineups. Before trial, he also twice testified under
oath that they were the three shooters he saw.
At the time the neighbor began cooperating with police, he was in a
dispute with his landlord over some repairs, was not paying his rent and was
in the midst of eviction proceedings. He also told police he hated commuting
to his job in Berkeley because of the traffic and bridge tolls. The district
attorney’s office eventually paid him $3,350 through a state-funded witness
relocation program, and he moved to “a nice apartment” elsewhere.
At trial, the neighbor denied that the relocation assistance was the
reason he decided to cooperate with police, and testified he changed his mind
about getting involved because it was “the right thing to do.” The neighbor
admitted on cross-examination he told Detective Schillinger he wanted to
3 Neither the neighbor nor Detective Schillinger could recall the
precise number and timing of their conversations.
4The neighbor testified on cross-examination that he disclosed what
he knew before police said anything about possibly helping him relocate.
6
move because he hated the neighborhood, and possibly mentioned the fact
that his rent had gone up and “it wasn’t worth living there for that price.”
The neighbor also admitted that, about three to five years earlier, he
had fabricated a detailed lie to police about being kidnapped and robbed by a
24- or 25-year-old light-skinned Hispanic man and a similarly aged Black
man while meeting some men to buy a car, when in fact two people had
robbed him of about $4,000 in cash and then pistol-whipped him when he met
up with them in a hotel room to buy drugs.
Detective Schillinger testified that no promises were made in exchange
for the neighbor’s cooperation. Prior to trial, Detective Schillinger had not
known about the neighbor’s earlier false police report. Detective Schillinger
also acknowledged that the locations of bullet holes in the victim’s car were
inconsistent with the neighbor’s account of the shooting, because they
indicated all shots were fired from behind the car, not from in front of the car
or from its side.
Store employee A: Store employee A was working on the day of the
shooting at the Island Pacific Market, a nearby store with a rear door
opening on to an alleyway near Westwood Street. He was near the back door
with a co-worker when he heard around three gunshots. They peered out the
back door to see what was going on, and store employee A saw three men
running from the alley in their direction, toward the market. One person was
holding a gun and then passed it to one of the other two. When store
employee A and his co-worker saw the gun, they shut the door. Store
employee A had seen all three people before.
When he talked to police a few days after the shooting, store
employee A told police one of the men was a dark-skinned African-American
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man, about 20 years old, about 130 to 140 pounds and about 5 feet 4 inches
tall or 5 feet 5 inches.
He was shown photographs of approximately eight people who were
“known” in the neighborhood that police had obtained from the security
guard at Island Pacific Market. He picked out the photographs of Hicks and
Sanderson as two of the people he’d seen. He also picked out two other
people: Howland’s brother, Jake Howland, who had been at work at the time
of the shooting, and a White person named Matthew Hise who police didn’t
bother interviewing because, according to Detective Schillinger, store
employee A said he might have misidentified Hise just because he’d seen
Hise in the area and also because Detective Schillinger felt that store
employee A had “identified Mr. Jake Howland more than Mr. Hise [and] I
believe he got mistaken because he’s seen both of those people in the same
area before.”5
At trial, store employee A identified a photograph of Sanderson as the
person who had been holding the gun, and testified he’d seen that person
many times before, most often in the nearby alley. He described the person
to whom Sanderson had passed the gun as a Hispanic person he’d seen three
or five times before, hanging out with Sanderson behind the Island Pacific
Market, and, at trial, again initially misidentified a photograph of Jake
Howland (whom police had eliminated as a suspect) as the second person
before identifying a photograph of Nickolas Howland (Jake’s brother) as the
5 Unlike the neighbor, store employee A was not shown a six-pack
photo lineup. Rather, store employee A picked Hicks’s photograph out of a
group of three photographs of Black males shown to him by police
simultaneously.
8
Hispanic man he’d seen (“I think [so] . . . but I’m not sure”). Store employee
A testified neither man was wearing a hood or anything on his face.
Store employee A recalled seeing the third person maybe once or twice
before (he told police he’d seen the third person five times) and testified he
could no longer recall that person very well. He described the third person as
a Black person who, unlike the other two, was wearing a hood and so store
employee A couldn’t see his face. He did not recognize Hicks in court, could
not recall whether he’d ever seen Hicks together with the other two people,
could not recall identifying Hicks to police, and had not been able to identify
Hicks as one of the three people when he testified under oath twice before. In
fact, at one of the two prior hearings, store employee A testified Hicks was
not the third person. Store employee A acknowledged his memory was fresh
when he spoke to police and better than it was at trial, that what he told
police had been true and that he was concerned for his safety as a witness.
Store employee B: Store employee A’s co-worker was called as a
witness for the defense. Store employee B testified that after he heard three
or four gunshots, he saw two people walking down the alley as though
nothing had happened and then he immediately went back inside the store.
Store employee B didn’t see anyone running in the alley. One person was an
adult about 17 or 18 years old with a mustache, and one was about eight or
nine years old; both were light-skinned or White. One might have been
Filipino. Neither were wearing hoods. The older person was holding a black
gun and then gave it to the smaller person.
When store employee B was interviewed by police, he was shown no
photographs. He told police he was willing to try but that he didn’t think he
could identify the people. He testified he wouldn’t be able to recognize the
suspects in photos because he didn’t know them very well. Detective
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Schillinger testified that after store employee B gave police a description of
what he saw, Detective Schillinger opted not to show store employee B any
photos because of a language barrier.
2. Ballistics evidence
The day after the murder, police searched the home of Hicks’s
girlfriend and found a .40-caliber bullet as well as evidence that Hicks had
been there (i.e., a medicine bottle and a probation hearing notice, both
bearing his name).
Ten spent cartridge casings were found at the crime scene. Bullets
were also recovered: one at the crime scene, an unspecified number from the
victim’s car along with some bullet fragments, and two from the victim’s
body.
The People’s ballistics expert, Eugene Banga-An, testified that all six
bullets he examined were .40-caliber, fired from two different guns (three
bullets from each). Banga-An also examined two bullet cores that were
recovered but was unable to determine their caliber because they were
deformed. We discuss that aspect of his testimony further below.
All 10 cartridge casings were .40-caliber and were fired from the same
gun. However, he testified it is not possible to compare spent cartridge
casings with fired bullets to determine whether the casings and bullets were
fired from the same gun. He also testified that since all the shell casings
were from one gun, yet bullets from two guns were identified, some shell
casings were missing.
On cross-examination, Banga-An expressed the opinion that there
could have been two or three guns involved. The reason was because he
identified two groups of bullets fired from two different guns and one group of
spent cartridge casings fired from one gun, and since there was no way to
10
ascertain whether the casings were associated with the bullets, the casings
might have been from a different gun.
During the defense case, Banga-An acknowledged he made no mention
of a third gun in his report and testified previously that two guns were used.
The defense also introduced evidence of DNA testing. A DNA sample
could be obtained from only one of the 10 shell casings, and it did not match
Hicks’s DNA, or Howland’s or Sanderson’s. The defense expert acknowledged
that if the casing fell to the ground it could pick up trace amounts of DNA
from other things on the ground, or the DNA could have been left by someone
who touched the unfired bullet months earlier.
3. Jail Calls
The prosecution introduced evidence of several video calls that Hicks
had while in jail awaiting trial.
In one, Hicks appears to be discussing contact by his friends with one of
the eyewitnesses from the Island Pacific Market (instructing his callers at the
beginning, “don’t say no names”). There is no mention of threats, violence or
coercion but there is a reference to someone having spoken with “that boy,”
and to someone having “posted him.” One of the callers also asked, “’Cause of
that he’s in there—‘cause of him, am I right?,” to which Hicks responded with
profanity (“what the fuck?”). Detective Schillinger testified that, based on the
content of this call, he believed someone associated with Hicks had contacted
store employee A.
Several other video calls were relied on by the People’s gang expert,
whose testimony we next briefly discuss.
4. The People’s Gang Expert
Detective Jason Thompson, a police officer with the City of Vallejo
assigned to the Solano County/FBI Violent Crime and Gang Task Force, was
11
qualified as an expert in the area of criminal street gangs and testified for
nearly three days. He testified about the background and origins of the
200 Westwood street gang, which began to surface after two murders in East
Vallejo (the 2015 murder of Kenneth Max Rusk, known to his friends as
“Bread,” and the 2016 murder of Eric Reyes), when police began noticing
increasing amounts of graffiti in the alleyways behind the Island Pacific
Market and an uptick in crime in the area. He also testified about his
investigation into the gang’s existence, beginning in January 2018 (primarily
through social media); the gang’s symbol; and the gang’s various names.
Ultimately, he opined that Hicks, Nickolas Howland, Steven Sanderson and
two others (Desean Johnson and Damaria Haskins) are all active members of
the 200 Westwood gang, that the gang’s primary activities are illegal
weapons possession and assault, and, based on a case-specific hypothetical,
that the murder of Demorio Williams was committed for the gang’s benefit.
Detective Thompson based his opinions on multiple sources. These
included about 15 photographs retrieved from cell phones belonging to
Nickolas Howland, Desean Johnson and Steven Sanderson; photographs of
Howland’s gang tattoos taken by Detective Thompson; a YouTube music
video that Detective Schillinger located online that was shot in one of the
breezeways on Westwood Street, which we discuss further below;
photographs of gang graffiti in the neighborhood; photographs of gang graffiti
and various items paying homage to murder victims Kenneth Max Russ and
Eric Reyes, taken during a search of Nickolas Howland’s bedroom; and
criminal histories of some of the gang’s alleged members, including Hicks.
He also based his opinion on screenshots and footage from video calls
that Hicks made while in jail awaiting trial (referred to at trial as “iWeb
videos”). In one jail video call, a young woman showed Hicks a picture on her
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phone of him and three others (Desean Johnson, Damaria Calvin and
Nickolas Howland), taken in a breezeway off Westwood Street, all displaying
gang signs and in which Hicks was pointing a gun at the camera. In another
jail video call, Hicks was displaying the gang’s hand sign and said, “Gang
shit, gang shit.” And in another, according to Detective Thompson’s
interpretation of the slang Hicks uttered, Hicks mentioned shooting a gun
when he gets out of jail.6
5. The Jury’s Verdict
After a day-and-a-half of deliberations, the jury found Hicks guilty of
second degree murder (§ 187, subd. (a)) and found true the enhancement
allegation that the murder was gang-related (§ 186.22, subd. (b)(1)). The jury
found not true the enhancement allegation that he personally used or
discharged a firearm in connection with the murder (§§ 667.5, subd. (c)(8),
12022.53, subd. (c), 12022.53, subds. (d), (e)(1)). It also found him not guilty
6 In that call, Hicks told the young woman with whom he was speaking
to post him on Instagram and social media. Toward the end of their
conversation, he appears to be dictating a message to her, and she appears to
be typing into her phone as he speaks. Hicks dictated what sounds like the
following words: “Free young pooty, n---a, aka, tq n---a, I’ll be back, n---a,
firing a hot one, n---a, lettin n---as know, n---a, straight up, n---a, and while
we, n---a, n---a, free the real one, n---a, straight up, n---a, hah.”
“Pooty” is Hicks’s nickname. Detective Thompson testified that “firing
a hot one” refers to firing a gun.
Asked on cross-examination whether Hicks said “fighting” a hot one
rather than “firing” a hot one, in the sense of contesting criminal charges,
Detective Thompson testified “no.” He explained, “I’m pretty clear on what
[Hicks] said, and he said firing.” He also testified that, in context, it wouldn’t
make sense to say “fighting” a hot one because Hicks also said, “I’ll be back,”
and “in the full context of that statement, that would mean him being back
on the streets.”
13
of possession of a firearm by a convicted felon on the date of the murder. It
found him guilty of street terrorism (§186.22, subd. (a)).
Hicks was sentenced to state prison, and this timely appeal followed.
DISCUSSION
I.
Evidence of Hicks’s Possession of a .9-Millimeter Gun
Hicks’s first claim of error is the trial court abused its discretion by
admitting the evidence of his possession of a .9-millimeter weapon and a
loaded ammunition cartridge on the day of his arrest. Because the gun was
“not identified as the same caliber as the murder weapons,” he argues, the
evidence was irrelevant and highly prejudicial.7 It amounted to inadmissible
character evidence, he contends, barred by Evidence Code section 1101. The
People argue this evidence was properly admitted, because the .9-millimeter
gun might have been used during the commission of the crime, which is the
basis upon which the trial court deemed it relevant and admissible.
We review the court’s evidentiary rulings for abuse of discretion.
(People v. Cox (2003) 30 Cal.4th 916, 955 (Cox).)
The applicable legal standard was articulated by the California
Supreme Court in People v. Riser (1956) 47 Cal.2d 566 (Riser).8 “When the
specific type of weapon used to commit a homicide is not known, it may be
permissible to admit into evidence weapons found in the defendant’s
possession some time after the crime that could have been the weapons
employed. There need be no conclusive demonstration that the weapon in
defendant’s possession was the murder weapon. [Citations.] When the
7 This issue was preserved, both prior to trial and at trial in the
defense’s motion for a mistrial.
8 Overruled on another ground, People v. Morse (1964) 6 Cal.2d 631.
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prosecution relies, however, on a specific type of weapon, it is error to admit
evidence that other weapons were found in his possession, for such evidence
tends to show, not that he committed the crime, but only that he is the sort of
person who carries deadly weapons.” (Id. at p. 577.)
So, for example, applying this principle in a murder prosecution where
the victims’ causes of death could not be determined, the Supreme Court in
People v. Cox upheld the admission of evidence of three guns found in a
search of defendant’s car around the time of the discoveries of the victims’
bodies.9 (See Cox, supra, 30 Cal.4th at pp. 927, 955.) Despite the fact there
was no evidence the guns had been used in the killings, the Supreme Court
held that the guns were relevant (among other reasons) as possible murder
weapons, because it was not known how the three victims were killed. (Id. at
pp. 956-957.) The Supreme Court noted the prosecutor argued the evidence
suggested the victims had been stabbed, but “such argument did not preclude
the reasonable possibility that one or all three of the victims had been shot,”
which was one basis upon which the prosecutor had sought to admit the
evidence. (See id. at p. 956.) Accordingly, there was no error.
As the Supreme Court more recently encapsulated this rule, “[I]t is
generally error to admit evidence that the defendant possessed a weapon that
could not have been the one used in the charged crime.” (People v. Sanchez
(2019) 7 Cal.5th 14, 55, 56, italics added [upholding admission of evidence
that shortly before murders defendant possessed a firearm that “could have
9 The three victims all disappeared and their bodies were then
discovered within about a four-and-a-half-month period. The guns were
found in defendant’s possession several months after the disappearance of
two victims, and within days of the third victim’s disappearance but several
months before her body was found. (See Cox, supra, 30 Cal.4th at pp. 927,
955.)
15
been the murder weapon”]; see also, e.g., People v. Homick (2012) 55 Cal.4th
816, 876-877 [no error to admit evidence defendant habitually carried a
revolver based on offer of proof that it “may have been” same type of weapon
used in the shooting]; People v. Carpenter (1999) 21 Cal.4th 1016, 1052 [no
error to admit evidence defendant kept a gun of unspecified type in his van;
although evidence “did not establish the gun necessarily was the murder
weapon, it might have been . . . The evidence was thus relevant and
admissible as circumstantial evidence that he committed the charged
offenses”].)
One of the principal authorities Hicks relies on, McKinney v. Rees (9th
Cir. 1993) 993 F.2d 1378, illustrates the same point. In that case, the Ninth
Circuit upheld the admission of evidence the defendant possessed a weapon
that could have been used in the crime. In McKinney, a murder prosecution
involving a knife stabbing, the weapon was never identified and could have
been almost any kind of knife. (Id. at p. 1381.) The Ninth Circuit held the
district court erred in admitting evidence the defendant at one point owned a
particular knife (a “Gerber” knife) that could not possibly have been the
murder weapon, because it indisputably was not in his possession on the day
of the murder (previously it had been confiscated by police). (See id. at
p. 1382.) But the Ninth Circuit held the lower court had properly admitted
evidence the defendant possessed another knife (a “Tekna” knife) several
months before the murder. (Id. at pp. 1383-1384.) There was conflicting
evidence of the dates he possessed the latter knife. (Id. at p. 1383.) The
prosecution argued that if the jury believed he had that knife seven weeks
before the murder, the jury also could infer he had the knife in his possession
on the day of the murder, used it to commit the crime and then hid it. (Id. at
pp. 1383-1384.) Noting in dicta that “this evidence may have been more
16
prejudicial than probative and, thus, inadmissible under California evidence
law,” the Ninth Circuit held that the evidence was relevant and not
inadmissible propensity evidence barred by federal law. (Id. at p. 1384.) It
explained, “[b]ecause the evidence that [defendant] had a Tekna-like knife in
his possession soon after Thanksgiving makes a fact of consequence, his
identity as the murderer, more probable, its admission was not in violation of
the historically grounded rule against the use of “other acts” evidence to
prove character.” (Id. at p. 1384.) The Ninth Circuit observed, “It is not
evidence of another act, but of a simple fact: whether [defendant] was the
owner of a knife on the date of the murder.” (Id. at p. 1383.)
By contrast, in the cases Hicks cites that held it was error to admit
evidence of a weapon found in the defendant’s possession, the evidence
(and/or theory of the prosecution) conclusively foreclosed the possibility that
the challenged weapon was used in the commission of the offense. (See Riser,
supra, 47 Cal.2d at pp. 576-577 [where evidence established that bullets
found at scene had been fired from a Smith and Wesson-brand .38 revolver, it
was error to allow evidence of defendant’s possession of loaded Colt-brand .38
revolver, holsters and .22-caliber shells when he was arrested]; People v.
Prince (2007) 40 Cal.4th 1179, 1248 [Riser held it was error to admit evidence
defendant possessed a gun that “could not have been the murder weapon”];
People v. Barnwell (2007) 41 Cal.4th 1038, 1043-1044, 1056 [error to admit
evidence that one year before murders defendant possessed a gun similar to
the murder weapon but a different color, because the prosecution did not
claim it was the murder weapon]; People v. Henderson (1976) 58 Cal.App.3d
349, 359-360 [error to admit evidence defendant possessed a loaded gun when
“[t]here is no contention that the loaded Derringer was used by the defendant
in connection with the charged offense”].)
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Here, there was no error. Unlike in the cases Hicks cites, the evidence
in this case did not conclusively establish the specific types and calibers of all
the weapons used. The ballistics evidence established that two different .40-
millimeter guns were used and that some of the ballistics evidence was too
deformed to be identified (specifically, two bullet cores). Furthermore, one
eyewitness (the neighbor) testified he saw three people firing weapons,
including Hicks. The third gun, if the jury believed there was one, thus could
have been of any caliber. Moreover, the neighbor testified all three guns he
saw were black, just like the gun recovered from Hicks when he was arrested.
The neighbor’s eyewitness identification, to be sure, was weak, and he had
significant credibility issues. But “[r]elevance is a low threshold.” (People v.
Battle (2021) 11 Cal.5th 749 [2021 WL 2698228, at p. *28].) And “ ‘[t]he trial
court has broad latitude in determining the relevance of evidence.’ ” (People
v. Nguyen (2015) 61 Cal.4th 1015, 1073.) In these circumstances, the trial
court did not abuse its discretion in concluding Hicks’s possession of a gun
months later was probative of his commission of the crime. Since the use of
the .9-millimeter gun could not be ruled out as a murder weapon, its
admission was proper.
Hicks argues Cox (and other like authorities) are distinguishable,
because in those cases “the proximity of the firearms in both time and
distance from the crimes supported their relevance,” whereas here Hicks
“possessed a weapon four months after the shooting, at a different location
that was never linked with the murder weapon.” But Hicks has not
demonstrated such distinctions establish an abuse of discretion. At most, the
lapse of time and the location where he was arrested in possession of a gun
affected the weight of that evidence not its relevance and were merely factors
18
for the jury to consider.10 (See, e.g., People v. Nakis (1920) 184 Cal. 105, 113-
114 [upholding admission of evidence of pistol found in defendant’s
possession when arrested; “[t]he fact that a period of three weeks had elapsed
between the date of the murder and the time of the arrest might affect the
weight of this particular evidence, but would not render it incompetent”].)
Even if there had been an abuse of discretion, moreover, it would be
harmless, whether reviewed for federal constitutional error (see Chapman v.
California (1967) 386 U.S. 18) or ordinary state law error (see People v.
Watson (1956) 46 Cal.2d 818, 836). The jury found Hicks did not possess or
discharge a weapon on the day of the murder, and so the jury clearly rejected
the prosecution’s theory that the .9-millimeter gun found in his possession
was used during the commission of the murder. And we also are convinced
beyond a reasonable doubt this evidence did not affect Hicks’s conviction on
the People’s alternative theory for aiding and abetting the murder because
there was extensive other, admissible evidence of Hicks’s possession (and
indeed, glorification) of firearms and regular association with others who also
possess firearms.11
To start with, there is no argument that any error affected the jury’s
findings that Hicks was a member of the 200 Westwood gang or that the
murder was committed for the gang’s benefit. And it was undisputed that
one of the 200 Westwood gang’s signature offenses is illegal gun possession.
Therefore, even without proof that Hicks possessed a firearm on the day he
10 Hicks was apprehended with the gun at a Chevron gas station
located at 400 Lincoln Road East in Vallejo, in a car with two other people.
The record does not reflect the gas station’s proximity to the crime scene.
11 The parties agree the jury convicted Hicks on the People’s
alternative theory that he aided and abetted the murder.
19
was arrested, the jury likely would infer that Hicks possessed weapons or at
a minimum that he condoned and associated with those who did.
In addition to the fact of his gang membership, there was extensive,
undisputed evidence that the other gang members carried weapons. The jury
saw three photographs of fellow gang members with guns (Nickolas Howland,
Damaria Calvin and Steven Sanderson), including one that includes Hicks
who is flashing a gang sign. In addition, two fellow gang members had prior
weapons offenses: Nickolas Howland, who had two convictions for carrying a
loaded firearm in public, and Damaria Haskins, who was convicted of
carrying a loaded concealed weapon in a vehicle. And one witness (Anthony
Smith) put Hicks at the scene of the confrontation between Sanderson and
the murder victim concerning the subject of a gun, which Sanderson accused
the victim of stealing.
There also was circumstantial evidence Hicks himself possessed a gun
and was prone to using it. Ammunition was found in a search of his
girlfriend’s home, where police also found traces of Hicks’s personal
belongings. And in a jail video call—which the jury asked to re-watch during
deliberations—he made statements the jury could construe as a promise to
shoot a gun when he returned to the streets.
Thus, quite apart from the challenged evidence that Hicks possessed a
semiautomatic weapon on the day he was arrested, there was extensive
admissible evidence from which the jury could infer both that he possessed a
weapon himself and that he regularly associated with others who did so. The
admission of the gun possession evidence thus “added little to the jury’s
knowledge gained from evidence correctly admitted.” (Riser, supra, 47 Cal.2d
at p. 577 [error in admitting evidence of defendant’s possession of weapon
that could not have been murder weapon held harmless, where jury would
20
have concluded from other properly admitted evidence that defendant
possessed firearms]; see also, e.g., People v. Cole (2004) 33 Cal.4th 1158, 1195
[any error under Evidence Code section 1101, subdivision (a) in admitting
evidence defendant abused his girlfriend on two prior occasions in
prosecution for murder held harmless under both Watson and Chapman,
where there was “abundant” other evidence that defendant and victim had an
acrimonious relationship]; People v. Leon (2008) 161 Cal.App.4th 149, 170
(Leon) [error in admitting evidence of uncharged offense held harmless in
light of “strong evidence” defendant committed offenses in association with
criminal street gang and with intent to promote, further, or assist gang
members’ criminal conduct].)
Hicks stresses that the challenged evidence improperly “bolstere[d] an
extremely weak eyewitness identification case,” but that contention is beside
the point (and unnecessary to address) because, to put it plainly, the
challenged evidence was clearly cumulative of abundant other, properly
admitted evidence of Hicks’s affinity for guns.
For these reasons, we conclude beyond a reasonable doubt that the
admission of this evidence—i.e., that Hicks possessed a firearm that the jury
ultimately concluded he had not used in the murder—did not persuade the
jury he aided and abetted the murder committed by those who did fire the
deadly shots.
II.
Hicks’s Prior Criminal Conduct
Next, Hicks argues the trial court abused its discretion by admitting
evidence of his prior conviction for assault. This evidence came in through
the testimony of Detective Thompson, the People’s gang expert, who
authenticated a certified court record of Hicks’s conviction which was
21
admitted into evidence, and testified it reflected that, on April 18, 2017,
Hicks was convicted of committing “assault leading to or potentially leading
to grave bodily injury or harm” in violation of section 245, subdivision (a)(4),
a felony, for an offense committed on December 2, 2015.12 Detective
Thompson’s testimony on the subject was extremely brief, and no details of
the offense were introduced.
Hicks contends this evidence should have been excluded under
Evidence Code section 352 because it was cumulative of other gang evidence
and unduly prejudicial. Relying principally on Leon, supra, 161 Cal.App.4th
149, which held a trial court had abused its discretion in admitting evidence
of a prior predicate offense committed by the defendant, he asserts: “there
was voluminous independent evidence that 200 Westwood was a criminal
street gang; that appellant was a gang member; and that the gang engaged in
a pattern of gang activity. The prosecution had certified records of other
predicate acts committed by other Westwood gang members to meet the
requirement of proving ‘two or more’ predicate acts. Appellant’s prior assault
conviction was by far the most prejudicial of all the predicate acts because it
involved appellant’s prior act of violence. [¶] . . . . [and] was thus cumulative
to other less inflammatory evidence of facts that were not reasonably in
dispute.” 13
12 The certified record (People’s Exhibit 29) consisted of the
information, which charged Hicks with committing second degree robbery
(§ 211) on December 2, 2015, and the minute order of the sentencing hearing,
which placed him on three years of probation for violating section 245,
subdivision (a)(4).
13 We are troubled by the lack of any citations to the record for these
assertions. We could deem the point forfeited on that ground, but we have
elected ourselves to review the record.
22
This issue has been forfeited. To his appellate counsel’s credit, Hicks
acknowledges he did not object in the trial court to this evidence under
Evidence Code section 352. He asks us to exercise our discretion to consider
the issue anyway, contending the objections he did raise were sufficient to
preserve the issue because they required the trial court to engage in the same
analysis as that required by Evidence Code section 352 (see, e.g., People v.
Cole, supra, 33 Cal.4th at p. 1195, fn. 6 [considering claim raised for first
time on appeal that admission of prior acts evidence deprived defendant of a
fair trial and thus violated federal constitution, where defendant objected to
its admission under Evidence Code section 352].)
We do not agree. When the trial court overrules an objection, “the
objecting party may argue on appeal that the evidence should have been
excluded for the reason asserted at trial, but it may not argue on appeal that
the court should have excluded the evidence for a reason different from the
one stated at trial. A party cannot argue the court erred in failing to conduct
an analysis it was not asked to conduct.” (People v. Partida (2005) 37 Cal.4th
428, 438, fn. 5.) Put another way, a party may assert for the first time on
appeal only that an asserted error in overruling his stated objection had an
additional legal consequence; i.e., that an alternative legal principle not
mentioned below supported the specific reason he gave as to why the
evidence should be excluded. He may not argue that a newly raised point of
law required exclusion of the evidence for reasons other than those
articulated in his trial objection. (See id. at p. 435.) Here, Hicks did not
argue that evidence of his prior conviction was cumulative nor did he ask the
trial court to weigh the potential prejudicial impact of this evidence against
its probative value; he asserted only that his prior conviction was
inadmissible as a matter of law because it pre-dated the gang’s formation
23
and, later, that the certified record of his conviction did not include the date
of his offense and thus was irrelevant. Neither objection touched on the
concerns now raised on appeal; namely, that the evidence of his prior
conviction was cumulative and unduly prejudicial. The People had no
opportunity to respond to such a theory. And the trial court did not consider
such factors when it considered and ruled on defendant’s objections. Simply
put, Hicks’s appellate argument does not “merely restate[], under alternative
legal principles, a claim otherwise identical” to the one he made below.
(People v. Yeoman (2003) 31 Cal.4th 93, 117.)
Even had the issue not been forfeited, moreover, we would conclude
there was no error. As Hicks acknowledges, this issue is governed by our
Supreme Court’s decision in People v. Tran (2011) 51 Cal.4th 1040 (Tran),
which held that in a prosecution for participation in a criminal street gang, a
predicate offense may be proved by evidence of the defendant’s criminal
conduct on another occasion, and that such evidence, although it is
“inherently prejudicial,” is subject to exclusion under Evidence Code section
352 only if its probative value is substantially outweighed by its prejudicial
effect. (Tran, at pp. 1046-1047.) In addressing how Evidence Code section
352 affects the admissibility of such evidence, the Supreme Court held the
prosecution is not required to “sanitize” its case by limiting its evidence to
predicate offenses committed by other gang members, and that when such
evidence is argued to be cumulative, the trial court must perform its
traditional function of weighing the evidence’s probative value against its
prejudicial impact. (See Tran, at pp. 1048-1049.) The Court also offered
guidance for conducting such an inquiry. It observed that “although the court
need not limit the prosecution’s evidence to one or two separate offenses lest
the jury find a failure of proof as to at least one of them, the probative value
24
of the evidence inevitably decreases with each additional offense, while its
prejudicial effect increases, tilting the balance towards exclusion. And the
trial court of course retains discretion to exclude details of offenses or related
conduct that might tend to inflame without furthering the purpose for
admitting the evidence.” (Id. at p. 1049.)
In Tran, the Supreme Court upheld the admission of evidence of the
defendant’s prior criminal conduct as a predicate offense as a proper exercise
of discretion under Evidence Code section 352. (Tran, supra, 51 Cal.4th at
p. 1050.) In that case, a prosecution for a gang-related murder and
attempted murder, the prosecutor presented evidence of five other predicate
offenses in addition to the defendant’s past criminal conduct: the charged
murder of one victim, the charged attempted murder of a second victim, and
evidence that a fellow gang member was convicted of offenses arising from
the shooting of three other people. (Id. at pp. 1045-1046, 1050.) The
Supreme Court upheld the trial court’s exercise of discretion also to admit,
over defendant’s objection, evidence of past extortion activities defendant had
engaged in with other gang members, including situations in which shots had
been fired into some businesses and other businesses had been threatened,
and for which the defendant had suffered a felony extortion conviction (see
ibid.). The Supreme Court reasoned that the challenged evidence was
“highly probative” on a number of issues including as a predicate offense, and
that because it predated the charged crime by several years its probative
value was “enhanced because the evidence emanated from independent
sources that could not have been influenced by knowledge of the charged
offenses.” (Id. at p. 1050.) In addition, the challenged evidence “was not
particularly cumulative and certainly not so cumulative as to lack probative
value.” (Ibid., italics added.) By contrast, it was not unduly prejudicial,
25
because the defendant had suffered a conviction and so “there was little
danger of confusing the issues by requiring the jury to determine if defendant
was guilty of both the charged offenses and the [prior offense,] and no risk
the jury might convict defendant to prevent him from escaping punishment
for the [prior offense].” (Ibid.) The evidence also was less inflammatory than
the testimony about the charged murder and attempted murder. (Ibid.)
Despite testimony that shots were fired during the past extortions, “there
was no evidence anyone was killed or injured or that defendant personally
shot at or threatened anyone.” (Ibid.) The trial court also gave a limiting
instruction. (Ibid.) In these circumstances, the Supreme Court concluded
that the probative value of the evidence “far” outweighed its prejudicial effect
and thus the trial court did not err by admitting it. (Ibid.)
Judged by the principles discussed in Tran, there was no abuse of
discretion here. As in Tran, evidence of Hicks’s assault conviction was not
unduly cumulative “and certainly not so cumulative as to lack probative
value.” (Tran, supra, 51 Cal.4th at p. 1050.) Here, besides Hicks’s past
conviction and the Williams murder itself, there was evidence of three other
predicate offenses: evidence Nickolas Howland was convicted of carrying a
loaded firearm in public on two prior occasions (on October 28, 2015, and
June 22, 2016) and evidence Damaria Haskins was convicted of carrying a
loaded concealed weapon in a vehicle (on December 21, 2016). This is
comparable to the number of predicate offenses involved in Tran. (See ibid.
[defendant’s prior offense admitted despite evidence of two charged offenses
and three other predicate offenses]; see also People v. Rivas (2013)
214 Cal.App.4th 1410, 1435-1436 [no abuse of discretion in admitting
evidence of six prior predicate offenses]; People v. Hill (2011) 191 Cal.App.4th
1104, 1138-1139 [no abuse of discretion in admitting evidence of eight prior
26
predicate offenses]; cf. Leon, supra, 161 Cal.App.4th at pp. 166, 169 [pre-Tran
decision characterizing evidence of defendant’s prior offense as cumulative,
where the People did not argue that evidence of three other predicate offenses
“were in any way insufficient to establish the necessary predicate offenses”].)
Nor was the evidence of Hicks’s assault conviction unduly prejudicial.
As in Tran, because Hicks was convicted of the prior offense, there was no
risk the jury might convict him of the Williams murder to ensure he did not
escape punishment and there was little danger of confusing the issues. (See
Tran, supra, 51 Cal.4th at p. 1050.) And, as in that case, the evidence of his
prior assault conviction was considerably less inflammatory than the
evidence of the Williams murder. (See ibid.) Despite the fact Hicks was
convicted of assaulting someone, “there was no evidence anyone was killed or
injured.” (Ibid.) Indeed, unlike in Tran, the jury did not hear any details of
Hicks’s prior crime; all it received was evidence of the bare fact of his
conviction. By contrast, in Leon, relied on by Hicks, where the appellate
court said the challenged evidence of defendant’s past criminal conduct
carried a “high” likelihood of prejudice (see Leon, supra, 161 Cal.App.4th at
p. 169), the challenged evidence (a prior robbery) was not less inflammatory
than the charged offense (for burglary and related offenses stemming from a
car break-in) and, moreover, was quite similar to the charged offense.
Evidence of the defendant’s prior crime thus posed a high degree of risk the
jury would consider it as evidence of his propensity to commit the very same
type of crime of which he stood accused. Here, apart from the fact that both
were crimes of violence, there was no similarity between the rather sterile
and quite limited evidence of Hick’s prior assault and the present murder
charge.
27
The probative value thus outweighed its prejudicial effect, and the trial
court would not have abused its discretion in admitting this evidence had
defense counsel asked the court to exclude it under Evidence Code
section 352.
III.
The YouTube Video
Next, Hicks challenges the admission of the YouTube rap video that
Detective Schillinger located online, which was filmed in a breezeway off
Westwood Street. Citing cases from California and other jurisdictions in
which rap videos or lyrics were held to be improperly admitted as unduly
prejudicial (People v. Coneal (2019) 41 Cal.App.5th 951 (Coneal); United
States v. Gamory (11th Cir. 2011) 635 F.3d 480 (Gamory); State v. Skinner
(2014) 218 N.J. 496 (Skinner)), he again argues it was cumulative of other
gang evidence and unduly prejudicial, and thus should have been excluded
under Evidence Code section 352.
A. Background
The YouTube video, which is nearly two minutes long and was played
without sound, consists mostly of lengthy close-up images of Nickolas
Howland singing alone, interspersed with quick, crowded group shots of
Howland singing in an alleyway while accompanied by other people around
him. It concludes with an image of Howland wearing a t-shirt that says “Max
World,” followed by footage of a flower-covered gravesite. In many of the
shots, including some of the group shots, Howland is holding what appears to
be a gun while he sings, sometimes pointing it at the camera or touching it to
his face. In a few of the images, Desean Johnson, who is wearing a grey
hoodie sweatshirt, is holding what appears to be a gun. Based on our
independent review of the video, Hicks appears briefly in some of the crowd
28
shots in the alleyway, fewer than 10 times and overall for less than
15 seconds. In about three of the quick glimpses of Hicks, somebody else can
be seen holding what appears to be a gun. Hicks himself does not appear in
the video holding any weapon (nor does he contend otherwise). At times,
some of the people in the video are holding cash or other objects; some can
briefly be seen smoking what could be marijuana.14
The prosecution offered the video both to prove the existence of the
gang and its membership, and to corroborate eyewitness testimony that
Hicks, Sanderson and Howland frequented the alleyways of Westwood Street
adjacent to the scene of the murder. As the prosecutor explained the latter
point, a material issue in the case was the “it wasn’t me defense; . . . that this
eyewitness completely fabricated, I guess, what he saw. So anything I can
show, not just, oh, I saw him out there; but actual visual representations for
the jurors to see these three individuals, in particular, in that Westwood
breezeway is relevant. And it’s really relevant in this case because it’s not
even a case where they’re saying mistaken identity. They’re saying . . . it’s
not my guy.”
The video was admitted over Hicks’s objection under Evidence Code
section 352. The court ruled it was relevant as to “the fact that these are
people who are depicted in the video know each other, that they are in the
alley that is the alleged gang turf of 200 Westwood, that they are present,
14 Outside of the jury’s presence, the trial court observed, “there were
people holding money, and it was hard to tell if people were smoking things
that could have been marijuana. I don’t know. There were people holding
bags or a box, perhaps it was marijuana inside that. I’m not certain.” From
our independent review of the video, it does appear that some people are
smoking what could be marijuana. However, there is no basis for a lay juror
to conclude that the container-like items several people can briefly be seen
holding, whose contents are obscured, contained drugs.
29
give the 200 Westwood sign, and they have participated in the video that
purports to be a tribute to fallen members of their criminal street gang,” and
concluded that its probative value outweighed its prejudicial impact. Prior to
its admission, the trial court offered the defense an opportunity to play any
portion of the sound it wished, and defense counsel declined. Over the
defense’s objection, the court declined to play the beginning portion of the
video which included a written disclaimer on the screen stating that the guns
in the videos were props, on the ground that the disclaimer is inadmissible
hearsay. The court ruled it would allow the defense to ask the People’s gang
expert if the guns appeared to be real, but the defense declined to do so.
Detective Schillinger testified he located the video online, and it was
played for the jury. Detective Schillinger identified Nickolas Howland, Hicks,
Sanderson and Desean Johnson in the video, testified the video was taken in
one of the breezeways on Westwood Street that “we have been talking about,”
and pointed out that one person was wearing a shirt that said “Max World”
and another part of the video said, “Rest in peace, Max. R-I-P.” Detective
Schillinger did not testify about the guns depicted in the video.
The video was played again during the direct examination of the
People’s gang expert, Detective Thompson, who testified very briefly about it.
Detective Thompson opined it was relevant to his determination of the gang’s
existence, because it appeared to be a memorial to Kenneth Max Rusk, he
observed the 200 Westwood gang sign being flashed, the video depicted
Hicks, Howland, Johnson and Sanderson, and most of its scenes were filmed
in the breezeways near the 100 block of Westwood Street. The prosecutor did
not elicit any testimony from Detective Thompson about the guns. Only
defense counsel did so, during cross-examination when he elicited testimony
that Desean Johnson is pictured in the video holding a gun. Detective
30
Thompson also acknowledged on cross-examination that Nickolas Howland is
an aspiring YouTube rap musician who puts out music videos under the
nickname “4nic.”
B. Analysis
Even when evidence of gang membership is relevant to an issue in
dispute, trial courts must “ ‘carefully scrutinize’ ” such evidence before
admitting it, because it may have a highly inflammatory effect on the jury.
(People v. McKinnon (2011) 52 Cal.4th 610, 655.) “ ‘[T]he prosecution has no
right to present cumulative evidence [of gang affiliation] which creates a
substantial danger of undue prejudice to the defendant.’ ” (People v.
Cardenas (1982) 31 Cal.3d 897, 905.) “The risk of injecting undue prejudice
is particularly high in cases where the prosecution has not charged a gang
enhancement and the probative value of the gang evidence is minimal.”
(People v. Flores (2020) 9 Cal.5th 371, 402, italics added, citing People v.
Hernandez (2004) 33 Cal.4th 1040, 1049.) “On appeal, we review for abuse of
discretion a trial court’s ruling on whether [such] evidence is relevant, not
unduly prejudicial, and thus admissible.” (McKinnon, at p. 655.) “ ‘ “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. Chhoun (2021) 11 Cal.5th 1, 33.)
Hicks does not contend that the YouTube video was irrelevant but that
it was cumulative of other gang evidence and should have been excluded as
unduly prejudicial. Citing several cases in which rap videos or lyrics were
held to be improperly admitted as unduly prejudicial, one from California and
two from other jurisdictions (Coneal, supra, 41 Cal.App.5th 951; Gamory,
supra, 635 F.3d 480; Skinner, supra, 218 N.J. 496), he argues that “the visual
portion of the video, showing gang members in the breezeway with firearms
31
cash and marijuana, ‘could reasonably be understood as promoting a violent
and unlawful lifestyle,’ ” whereas other independent evidence of the gang’s
formation and Hicks’s membership in it was far less prejudicial.
The trial court did not abuse its discretion in allowing the silent
YouTube video to be played. Hicks does not explain in what manner the
evidence was cumulative to other gang evidence but merely asserts that it
was. “Absent an analysis of specific evidence, reference to volume alone is
meaningless.” (Coneal, supra, 41 Cal.App.5th at p. 963.) Furthermore,
although the video might have been cumulative as to the gang’s existence and
its membership (the People do not respond to Hicks’s conclusory argument on
that point), it was probative and thus directly relevant for another reason as
well: to corroborate as photographic proof that Hicks and his fellow alleged
gang members hung out in the Westwood alleyways, and thus, as the
prosecutor argued below in his offer of proof, corroborated eyewitness
testimony. In particular, it corroborated the testimony of the neighbor,
whose credibility was thoroughly attacked at trial, that he’d seen the
perpetrators in the neighborhood many times before, including in the
alleyway near his apartment. And it corroborated store employee A’s
credibility, who testified he’d seen two of the perpetrators several times
before, including one of them “many” times. And, indeed, the trial court
alluded to that theory of admissibility in its ruling, observing that the video
was relevant in part because it showed that the gang members “are in the
alley that is the alleged gang turf of 200 Westwood, that they are present
[there.]” Hicks has not addressed that theory of admissibility urged by the
prosecutor and adopted by the trial court. Thus, the video was probative of
several issues: the existence of the gang, its members, and the credibility of
prosecution witnesses.
32
The YouTube video also was not unduly prejudicial. The jury saw
several other photographs of Hicks with fellow gang members who were
holding guns, which diminished the possibility this video alone would inflame
the jury’s emotions against him. (See People v. Nguyen, supra, 61 Cal.4th at
p. 1073 [evidence of four guns admitted over defendant’s objection not unduly
prejudicial, because “[t]here was a significant amount of other evidence
linking defendant to firearms”].)
Moreover, the content of the YouTube video itself was not highly
inflammatory. While some images in it (particularly of Howland) do tend to
glorify the possession of guns, the content of the video is not nearly as
disturbing as the evidence involved in the cases Hicks cites. (See Coneal,
supra, 41 Cal.App.5th at pp. 965-972 [abuse of discretion to admit five rap
videos with minimal probative value, because lyrics “describe graphic,
widespread violence” and are misogynistic]; Gamory, supra, 635 F.3d at
pp. 488, 493 [error to admit rap video with “explicit lyrics dealing with drugs,
sex, profanity, degradation of women, firearms, and threats of violence
against the police and public” in prosecution for illegal drug dealing; video
had minimal probative value and lyrics were “heavily prejudicial” because
they “could reasonably be understood as promoting a violent and unlawful
lifestyle”]; Skinner, supra, 218 N.J. at pp. 500, 521 [in attempted murder
prosecution, error to admit “violent, profane, and disturbing rap lyrics”
written by defendant that were “graphically violent” and
“glorifi[ed] . . . violence and death, and defendant’s apparent disregard for
human suffering”].) Unlike in those cases, the YouTube video was played
without sound and so the jury heard no violent lyrics. The video was clearly
identified at trial as a music video, it does not depict any acts of violence, and
33
its overall thrust, at least visually, is as a tribute to a fellow gang member,
not a graphic description of violence or lawlessness or a call to violence.
In addition, the brief segments of the YouTube video in which Hicks
himself appears—15 seconds of silent video footage in all, and mostly not
with anyone who appears to be holding a weapon—are fleeting. The video
did not create an undue risk the jury would perceive Hicks as a young man
prone to criminality or violence. At most, he appears in the video as literally
a silent chorus member in segments that are for the most part free of any
indication of weapons or criminality, and the overall tenor of the silent video
itself—particularly because it was played without sound—is clearly intended
as artistic expression. The relatively nonviolent character of its visual
imagery distinguishes it from the evidence addressed in cases upon which
Hicks relies, all of which turned on the content of disturbingly violent rap
lyrics.
Rap music and other forms of artistic expression that refer to guns or
violence, although they undoubtedly carry the risk of prejudice, are not
always unduly prejudicial. For example, this case is more akin to United
States v. Recio (4th Cir. 2018) 884 F.3d 230, 236, which upheld the admission
of a Facebook post by the defendant quoting a violent rap lyric referring to
the possession of a gun, in a prosecution for illegal weapons possession.
Distinguishing Gamory and other cases involving rap lyrics that described “a
panoply of violent, criminal, or distasteful conduct” and “primarily served to
paint the defendant in an unflattering light,” the court reasoned that no
similar content was involved. (Recio, at p. 236.) Rather, it explained, “[t]he
Government introduced a rap lyric consisting of a single sentence that
described only the type of conduct of which [defendant] is accused—carrying
a gun—and a reason for doing so—self-protection. Unlike Gamory[, supra,
34
635 F.3d 480], the lyric referred to no other, irrelevant behavior, like
threatening the police or degrading women, that would have unfairly caused
the jury to see [defendant] as a culpable person.” (Ibid.) Thus, it concluded,
the risk of unfair prejudice from the Facebook post did not substantially
outweigh its probative value. (Ibid.)
For these reasons, we conclude that in light of the YouTube video’s
probative value to corroborate eyewitness testimony, its relatively non-
inflammatory content that was presented to the jury in a manner (i.e.,
silently) that tended to convey its purpose as artistic expression rather than
as a literal endorsement of a violent lifestyle, and the fact that there was
other evidence of Hicks associating with people who carry guns, Hicks has
not demonstrated the court abused its discretion in concluding its potential
for prejudice substantially outweighed its probative value. (See Evid. Code,
§ 352).
He also has not shown it was error to exclude as inadmissible hearsay
the disclaimer at the beginning of the video indicating that the guns were
props.
Hicks does not assert that the disclaimer is not hearsay, and it clearly
is. The disclaimer was an out-of-court declaration offered to prove the truth
of what it asserted: that the guns were not real. That is hearsay (see People
v. Valencia (2021) 11 Cal.5th 818, 831; Evid. Code, § 1200, subd. (b)) and
Hicks does not argue, and cites no authority, to the contrary.
Rather, his only argument on this point is that the disclaimer is not
case-specific hearsay barred by People v. Sanchez (2016) 63 Cal.4th 665(Sanchez). Sanchez has no bearing, however. Sanchez does not announce a
rule requiring the introduction of hearsay. It addresses the kind of
information about which an expert witness may testify as the basis for an
35
expert opinion, distinguishing between general knowledge in the expert’s
field of expertise (which is permissible under state law, even though based on
hearsay information) and case-specific facts about which the expert has no
independent knowledge (which is not, unless such facts are proved by
independent competent evidence such as a witnesses with personal
knowledge of them), and also addressing when such testimony implicates the
federal confrontation clause. (See Sanchez, at pp. 676-678, 685-686.) Here,
Detective Thompson did not base any of his opinions on the disclaimer that
the guns depicted in the video are props (nor even on the images of the guns
themselves). He did not testify about the disclaimer, and the jury did not
learn of it. Sanchez is inapposite.
Finally, any error in admitting the video was harmless beyond a
reasonable doubt for the same reasons as was any error in admitting
evidence of Hicks’s possession of the semiautomatic weapon found in his
possession at the time of his arrest. (See Coneal, supra, 41 Cal.App.5th at
pp. 972-973 [reviewing erroneous admission of rap videos for state law
harmlessness under Watson].) To briefly summarize, there was abundant
admissible evidence, which we have already discussed, that Hicks associated
with people who carried weapons and, insofar as he is a validated member of
the Westwood gang, condoned their conduct; he was depicted in a photograph
flashing a gang sign with Nickolas Howland who was holding a gun; and,
indeed, there was evidence that in a call from jail Hicks boasted that he
would fire a gun when he gets out of custody. In addition, the jury did not
ask to re-watch the YouTube video (focusing instead on the jail calls), and the
prosecutor barely mentioned it in closing argument. Beyond a reasonable
doubt, admission of the video did not contribute to the jury’s verdict of guilt.
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IV.
The Gun Photograph
Finally, Hicks challenges the admission of a photograph from
Instagram in which he is pointing a gun at the camera, again as “another
example of the use of cumulative gang evidence as impermissible character
evidence creating the image of appellant as a violent gangster.” The
photograph, Exhibit 117, was introduced through the People’s gang expert,
Detective Thompson, who testified that it was the same photograph as the
one somebody displayed to Hicks on her phone during his video call from jail
with her. He testified it was taken in one of the alleyways on the 100 block of
Westwood Street, and depicts Hicks together with Desean Johnson, Damaria
Calvin and Nickolas Howland, who are displaying 200 Westwood gang signs.
Out of the jury’s presence, Hicks had previously objected to the
photograph’s admission under Evidence Code section 352 for an unspecified
reason (stating only that his section 352 objection was based on “relevance
and a prejudicial value, plus a probative value”). He did not specifically
object the photograph was cumulative of other evidence nor object to it
because it depicted a firearm. The trial court overruled the objection, on the
ground the prosecutor “is trying to prove-up a gang case, and this photo
shows four alleged gang members in obvious gang activities with gang sign in
obvious gang territory.”
The trial court did not abuse its discretion in later admitting the
photograph into evidence. The photo’s probative value was arguably
minimal, given other evidence of Hicks’s gang affiliation. But its relevance
was not outweighed substantially by the potential for prejudice, for reasons
similar to those in People v. Merriman (2014) 60 Cal.4th 1 (Merriman).
37
In Merriman, another murder prosecution, the Supreme Court held the
trial court did not abuse its discretion under Evidence Code section 352 by
admitting into evidence several photographs of the defendant holding knives,
including one in which he was pointing a knife into the camera. (Merriman,
supra, 60 Cal.4th at pp. 81-82.) The Supreme Court acknowledged the
probative value of the photographs “was arguably limited.” (Id. at p. 82.)
But it held the photographs were “neither unduly inflammatory nor likely to
engender an emotional response by the jury,” because neither one showed
defendant threatening anyone with a knife, and there also was other
evidence “that defendant and his fellow gang members routinely wielded
knives and other weapons.” (Ibid.) Thus, the trial court “reasonably could
determine that, on balance, the probative value of the photograph evidence
was not substantially outweighed by its potential prejudicial effect.” (Ibid.)
The same is true here. To be sure, in Merriman unlike here, some of
the extensive additional evidence of weapons possession was graphic.
(Merriman, supra, 60 Cal.4th at p. 82.) But in this case, in addition to the
evidence we have already discussed on the subject of weapons possession—
including Hicks’s own boasting about guns while in custody—the potentially
prejudicial impact of the photograph of him holding a gun was considerably
diminished, because the jury saw the very same photograph displayed to
Hicks during one of Hicks’s video calls from jail, and saw Hicks peering at it.
That video clip was played for the jury without objection, and its admission is
not challenged on appeal.
Accordingly, there was no error in the admission of Exhibit 117, and
none of the authorities Hicks cites are to the contrary.
For the reasons already discussed, any error in its admission also was
harmless under either Watson or Chapman.
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V.
The Ballistics Expert’s Opinion
The final evidence challenged by Hicks is certain opinion testimony by
the People’s ballistics expert, Eugene Banga-An, who, as noted, testified
about his forensic examination of the bullets, casings and bullet fragments
recovered by police. Hicks asserts the trial court erred prejudicially by
permitting Banga-An to testify that one of the recovered bullets could
possibly have been from a .9-millimeter firearm, i.e., the type recovered from
Hicks in January 2018 when he was arrested.
A. Background
During direct examination, the prosecutor asked Banga-An about a
bullet core he examined that had been retrieved from the victim’s body:
“Q. Now, that bullet core, what caliber was that bullet core?
“A. I couldn’t tell the exact caliber. It’s because it’s missing some
information that allows me to make my determination.
“Q. Could that have been a 9mm?
“A. Possible.
“Q. Could it have been a .45?
“A. Possible.
“Q. Could it have been a .40?
“A. Yes.
“Q. And looking at—you tried to examine it; is that true?
“A. Yes.
“Q. And based on your examination, you were not able to tell us,
based on your professional experience, what caliber that lead bullet core was;
correct?
“A. Yes. It’s because it’s too deformed and it’s missing some parts.”
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The prosecutor then asked Banga-An about a second bullet core he
examined, which elicited an objection by the defense:
“Q. That lead bullet core, that is a separate lead bullet core than the
other lead bullet core that you just talked about, right?
“A. Yes.
“Q. Totally different, true?
“A. Totally different.
“Q. Did you examine that?
“A. Yes. Based on my examination, I wasn’t able to determine the
caliber of the core—
“Q. Could it have been—
“A. —due to damage.
“Q. —could it have been a 9mm?
“[DEFENSE COUNSEL]: I’m going to object as to the form of
speculation, if he doesn’t know.
“THE COURT: Overruled. [¶] You can re-ask your question.
“Q. . . . Did you hear the question?
“A. Yes. It could be 9. It could be .40. It could be .45.”
On cross-examination, Banga-An acknowledged that he wasn’t able to
determine that any of the bullets were anything other than .40-millimeters,
the only evidence was that the shots were fired from a .40-millimeter gun,
and there was no evidence that a .9-millimeter gun fired any of the bullets he
examined. He also acknowledged that it would be speculation to determine
the type of gun from which one of the deformed bullet cores came. He also
was cross-examined about his opinion that three guns might have been used,
making clear that his opinion rested not on the fact that some of the ballistics
evidence was too deformed to be identified but, rather, on the impossibility of
40
matching up the ten .40-millimeter caliber shell casings from one gun to any
particular bullet or bullets, including the two groups of .40-millimeter caliber
bullets that he determined were from two different guns. He explained, “I
cannot make the comparison between the casing to the bullet, so since I
cannot do that, these casings may have been related to this bullet, or not at
all.”
B. Analysis
Hicks argues that Banga-An’s testimony that one of the unidentifiable
bullets could possibly have been .9-millimeter caliber was irrelevant and
inadmissible, because it was “sheer speculation” and thus improper expert
opinion. Alternatively, he contends that even if relevant, Banga-An’s opinion
should have been excluded under Evidence Code section 352 as more
prejudicial than probative, an objection he did not assert below.
Assuming without deciding the latter objection was preserved, it is
unnecessary to address whether any error occurred because, under any
standard of prejudice, the claimed error in allowing this testimony was
harmless, including beyond a reasonable doubt. The jury indisputably
rejected Banga-An’s theorizing that a .9-millimeter gun might have been
involved, because it concluded that Hicks did not possess or fire a gun during
the commission of the offense. We agree with the People that, in these
circumstances, Hicks “cannot possibly show he was prejudiced by the
ballistics expert’s testimony.” Hicks contends the inadmissible opinion was
prejudicial, because it “improperly corroborated an otherwise extremely weak
eyewitness identification case.” But testimony that a .9-millimeter gun might
have been involved, even if erroneously admitted, in no way affected the
jury’s conclusion that Hicks participated as an aider and abettor to the
shooting and that there was in fact no third gun involved in addition to the
41
two .40-millimeter weapons the ballistics evidence conclusively established.
Hicks does not address that problem. Indeed, he appears to concede that any
error in allowing Banga-An’s opinion was not prejudicial, as his reply brief is
silent about this claim of error.
VI.
Cumulative Error
Hicks argues the combined effect of two evidentiary errors,
cumulatively, were prejudicial and require reversal: the erroneous admission
of evidence concerning his unlawful possession of a .9-millimeter gun, and the
erroneous admission of Banga-An’s opinion that a .9-millimeter gun could
have been used in the shooting. Although, as just discussed, we have
assumed error for purposes of the latter claim, we have concluded the court
did not err in allowing evidence of Hicks’s gun possession. There is thus
“nothing to cumulate” with regard to any error in the admission of Banga-
An’s opinion and which, as explained, was utterly harmless. (People v. Duff
(2014) 58 Cal.4th 527, 562; see also People v. Butler (2009) 46 Cal.4th 847,
885 [rejecting cumulative error claim where there was “no substantial error
in any respect”].)
VII.
Sentencing Issues
Finally, Hicks raises two claims pertaining to his sentencing.
A. Ineffective Assistance of Counsel Regarding Youth
Offender Parole Eligibility
Hicks was 21 years old when he committed his offenses and received an
indeterminate sentence of 15 years to life for the murder count plus a
consecutive term of 10 years for the criminal street gang enhancement.
Thus, he will be eligible for a youth offender parole hearing no later than his
25th year of incarceration. (See § 3051, subd. (b).) “A youth offender parole
42
hearing is a hearing by the Board of Parole Hearings for the purpose of
reviewing the parole suitability of any prisoner who was 25 years of age or
younger . . . at the time of [his or her] controlling offense.” (§ 3051,
subd. (a)(1).) At the hearing, the parole board “shall give great weight to the
diminished culpability of youth as compared to adults, the hallmark features
of youth, and any subsequent growth and increased maturity of the prisoner
in accordance with relevant case law.” (§ 4801, subd. (c).)
In People v. Franklin (2016) 63 Cal.4th 261 (Franklin), a juvenile tried
as an adult and sentenced to 50 years to life in prison for first degree murder,
challenged his sentence under Eighth Amendment jurisprudence prohibiting
the imposition of sentences on juvenile offenders that are the functional
equivalent of life without parole. (Franklin, at p. 268.) The Supreme Court
held the Legislature’s enactment of the youth offender parole eligibility
scheme after the defendant had been sentenced rendered his constitutional
challenge moot, because the new statutory scheme provided him with parole
eligibility after 25 years. (Id. at pp. 272, 279-280.) However, because it was
not clear from the record if the defendant “had sufficient opportunity to put
on the record the kinds of information that sections 3051 and 4801 deem
relevant at a youth offender parole hearing,” the Supreme Court issued a
limited remand with directions for the trial court to “determine[e] whether
[defendant] was afforded an adequate opportunity to make [such] a record.”
(Id. at pp. 284, 286-287.) The Court specified that if the trial court
determined that the defendant did not have a sufficient opportunity, then
both he and the prosecution would be allowed to place on the record any
information they deemed pertinent to the youth-related factors, in order “to
make an accurate record of the juvenile offender’s characteristics and
circumstances at the time of the offense” so that the parole board would have
43
that information available at the defendant’s eventual parole hearing. (Id. at
p. 284.)
Here, Hicks contends his counsel was ineffective by failing to make an
adequate record at sentencing of information relevant to his eventual
youthful offender parole hearing, including evidence of severe cognitive
damage as a juvenile that would have been relevant. He contends, therefore,
that his case should be remanded pursuant to Franklin to enable him to
present evidence of youthful mitigating factors.
To establish a claim of ineffective assistance of counsel, a defendant
must show that his counsel’s performance was deficient in that it fell below
an objective standard of reasonableness under prevailing professional norms,
considering all the circumstances, and that the deficient performance
prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668,
687-688.)
It is unnecessary to address whether this record is adequate on direct
appeal to assess defense counsel’s performance as deficient, because there
was no prejudice. As Hicks acknowledges, a defendant whose conviction is
final is entitled to file a post-judgment motion to preserve evidence of youth-
related mitigating evidence pursuant to Franklin. (In re Cook (2019)
7 Cal.5th 439, 446-447, 451, 458-459; § 1203.01.) And the People concede
that Hicks is not foreclosed from utilizing that mechanism to obtain a
Franklin hearing after his conviction and sentence are final. Thus, Hicks has
not and cannot demonstrate that counsel’s performance at sentencing in any
way impaired his rights with respect to his eventual parole eligibility.
Moreover, because he may file such a post-judgment motion the moment this
appeal concludes, ordering a remand with directions to conduct a Franklin
hearing for deficient performance of counsel would be pointless. (Cf. Cook, at
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p. 447 [availability of post-judgment relief to make a record under Franklin
precludes habeas relief in the first instance]; People v. Medrano (2019)
40 Cal.App.5th 961, 968 [declining to order remand pursuant to Franklin on
direct appeal in light of availability of post-judgment relief pursuant to Cook;
“given the availability of the motion hearing described in Cook, we see no
basis to order the same relief that was granted in Franklin. Instead, we
affirm without prejudice to [appellant’s] filing a motion ‘for a Franklin
proceeding under the authority of section 1203.01’ and Cook”].)
B. Unconstitutional Fines and Fees
Finally, the trial court ordered Hicks to pay a $10,000 restitution fine
(§ 1202.4, subd. (b)) and a $10,000 parole revocation fine (§ 1202.45). Citing
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), Hicks challenges the
imposition of these fines as unconstitutional because the prosecution
presented no evidence he had the ability to pay them. In addition to
addressing the merits of this issue, the People argue it has been forfeited.
Hicks acknowledges he did not raise this issue below. But he asks us to
exercise our discretion to consider it, principally because his sentencing
occurred prior to Dueñas and thus, he argues, an objection at trial would
have been futile.15
We agree with the People this issue has been forfeited. The trial court
imposed the restitution fine at sentencing on March 5, 2020, more than a
year after Dueñas was decided. (See Dueñas, supra, 30 Cal.App.5th 1157.)
15 He also implies that the court’s alleged error resulted in an
unauthorized sentence, which presents a pure question of law that is
reviewable for the first time on appeal. It did not. (See People v. Avila (2009)
46 Cal.4th 680, 729 [imposition of restitution fine in amount above statutory
minimum not an unauthorized sentence, and claim of inability to pay it held
forfeited for lack of an objection].)
45
Therefore, Hicks was on clear notice of the constitutional dimensions of this
issue and it would not have been futile to raise his constitutional objection
below.
Moreover, Dueñas aside, because the trial court imposed the restitution
fine in an amount above the statutory maximum, Hicks had a statutory right,
and indeed incentive, to assert an objection in the trial court that he is
unable to pay it. “Section 1202.4, subdivision (c), specifies a defendant's
inability to pay is not a compelling and extraordinary reason to refuse to
impose the fine, but inability to pay ‘may be considered only in increasing the
amount of the restitution fine in excess of the minimum fine [of $300].’ . . .
Given that the defendant is in the best position to know whether he has the
ability to pay, it is incumbent on him to object to the fine and demonstrate
why it should not be imposed.” (People v. Frandsen (2019) 33 Cal.App.5th
1126, 1154.) A defendant’s failure to do so forfeits any “inability to pay”
appellate claim, which rule has even been applied to fines beyond the
statutory minimum that were imposed by trial courts before Dueñas was
decided. (See Frandsen, at pp. 1153-1155; People v. Gutierrez (2019)
35 Cal.App.5th 1027, 1033; People v. Lapenias (2021) 67 Cal.App.5th 162,
182; People v. Montelongo (2020) 55 Cal.App.5th 1016, 1034 [by failing to
object and argue he was unable to pay restitution fine that was far beyond
the statutory minimum, defendant forfeited argument that court’s failure to
consider ability to pay violated his constitutional rights and left no doubt he
would not have challenged lower court funding assessments even if he had
known of right later established in Dueñas]; People v. Smith (2020)
46 Cal.App.5th 375, 395 [defendant forfeited challenge to assessments and
fines because he failed to object in the trial court on the ground that he was
unable to pay, even though trial court imposed a $10,000 statutory maximum
46
restitution fine]; People v. Taylor (2019) 43 Cal.App.5th 390, 400-401
[defendant forfeited Dueñas challenge to imposition of the maximum $10,000
restitution fine].)
“In setting the amount of the [restitution] fine pursuant to
[section 1202.4,] subdivision (b) in excess of the minimum fine pursuant to
paragraph (1) of subdivision (b), the court shall consider any relevant factors,
including, but not limited to, the defendant’s inability to pay, the seriousness
and gravity of the offense and the circumstances of its commission, any
economic gain derived by the defendant as a result of the crime, the extent to
which any other person suffered losses as a result of the crime, and the
number of victims involved in the crime.” (§ 1202.4, subd. (d).) The parole
revocation fine must be set in the same amount as the restitution fine.
(§ 1202.45, subd. (a).)
Under section 1202.45, subdivision (b), if Hicks had argued in the trial
court that the restitution and parole revocation fines should be reduced
because he was unable to pay the $10,000 restitution fine, the court could
have considered whether to reduce the amount, which would in turn have
reduced the matching parole revocation fine. He did not assert he was
unable to pay, resulting in his forfeiture of his claims about these fines.
In short, we conclude that Hicks forfeited his Dueñas challenges to the
assessments and the fines by failing to raise them in the trial court. We
therefore do not address the merits of those claims.
DISPOSITION
The judgment is affirmed, without prejudice to defendant’s filing a
motion in the trial court for a Franklin proceeding pursuant to
section 1203.01 and In re Cook (2019) 7 Cal.5th 439.
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STEWART, J.
We concur.
KLINE, P.J.
MILLER, J.
People v. Hicks (A159863)
48