People v. Lewis CA2/5 ( 2022 )

Filed 6/21/22 P. v. Lewis CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B306777 c/w B310252
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA146087)
v.
ARTHUR LEE LEWIS et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Sean D. Coen, Judge. Affirmed.
Kieran D. Manjarrez, under appointment by the Court of
Appeal, for Defendant and Appellant Arthur Lee Lewis.
Sylvia W. Beckham, under appointment by the Court of
Appeal, for Defendant and Appellant Daniel Dequan Gordon.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and David A.
Wildman, Deputy Attorneys General, for Plaintiff and
Respondent.
___________________________
Defendants and appellants Arthur Lee Lewis and Daniel
Dequan Gordon were both convicted of robbery and conspiracy to
commit a second robbery. Lewis was also convicted of conspiracy
to commit murder. They appeal their convictions, raising
multiple contentions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Although the jury found charged gang enhancements not
true, in order to accurately describe the trial, we have included in
our factual recitation evidence of defendants’ gang connections.
1. Grape Street Crips and YNM
Both defendants are members of the Grape Street Crips
gang. The gang specifically claims as its territory the Jordan
Downs housing projects; there are some 200 members who live in
and around Jordan Downs. Grape Street is an enemy of a
number of gangs.
Defendants also are both members of a small set within
Grape Street, called YNM. YNM has around 20 members,
including defendant Lewis, defendant Gordon, their friends
Arkeefe Sherrills and Daijah Ellsworth, and their former friend,
Deanthony Bradford. Sherrills, Ellsworth and Bradford were
initially charged with defendants. While the record is unclear on
what happened to the charges against Sherrills and Ellsworth,
Bradford ultimately entered a guilty plea and testified against
defendants.
2. The Crimes
We begin with some history of what led up to defendants’
crimes. This case has its genesis in a fight between defendant
Lewis and Timothy Orange, also a member of Grape Street, but a
former member of the rival East Coast Crips. Orange got the
better of Lewis, until Lewis’s friend Sherrills intervened. Later
2
that night, Lewis’s friends helped Lewis obtain a gun and
together they planned to shoot Orange. Their machinations were
traced in real time by police, who were listening to cell phone
conversations among Lewis and others.1 Police intervened and
prevented the shooting. For some time afterwards, Orange
continued to bad-mouth Lewis and his friends on social media.
Unable to effect revenge directly on Orange, Lewis and his
friends, including defendant Gordon, robbed Orange’s cousin,
Damon Bowden.
Lewis was convicted of conspiracy to murder Orange.
Lewis and Gordon were convicted of robbing Bowden. Lewis and
Gordon were also convicted of conspiring to rob another man,
Robert Arreola. Their plan to rob Arreola was discussed in
wiretapped phone calls, but they were unable to actually commit
the robbery because other friends beat them to the punch.
The details of our summary follow.
A. The Initial Fight Between Defendant Lewis and
Orange
On the evening of September 14, 2017, defendant Lewis
fought Orange over some marijuana. Lewis’s arm was injured in
the fight. As Lewis later explained in a wiretapped phone call,
Orange tried to get at a gun, but Sherrills intervened and turned
the tide in Lewis’s favor.2 Sherrills rendered Orange
“unconscious, stumbling.” After the fight, Orange remained in
1 Defendants do not challenge the lawfulness of the wiretaps.
2 In a phone call the following day, Lewis spoke with an
unidentified female and told her that he was in a fight with
Orange, whom he called by his gang moniker.
3
Jordan Downs for an unknown period. No charges were brought
against defendants for this fight.
B. The Conspiracy to Commit Murder -- Getting a Gun
and Going After Orange
Later that night (September 14, 2017), defendant Lewis
had a number of phone calls with fellow YNM members, in which
he tried to acquire a gun. Once he had a firearm, he tried to
learn Orange’s location. The phone calls took place while Lewis
was in a car driven by Sherrills. At one point, Lewis gave
Sherrills directions. At 7:17 p.m., Lewis called another man.
Before that man picked up, Lewis complained aloud, apparently
to Sherrills, about his injured arm. He then swore an oath, on
the memory of a deceased gang member, “Man, it’s over for him.
It’s over homie.”3
At 7:18 p.m., Lewis spoke to Ellsworth, a female YNM
member. Lewis told Ellsworth that he was with Sherrills and
was trying to get a gun; she said she had a 9 millimeter handgun,
and suggested that she could send Lewis to someone who could
give him another firearm.
At 7:21 p.m., Ellsworth called Lewis back. When he said he
had not yet obtained a gun, she agreed to accompany Lewis and
Sherrills, saying, “y’all gonna have to pick it up and I’ma ride
behind y’all.” They met up, in separate vehicles. Lewis and
Ellsworth continued to coordinate their locations by cell phone,
driving six or seven miles from Jordan Downs to obtain the gun.
At one point, Ellsworth called Lewis, and told him to direct
Sherrills to take a back street “cus the Sherriff’s hot.”
3 The police wiretaps sometimes picked up conversation on
the initiating end of the call before the recipient picked up.
4
By 7:47 p.m., Lewis had obtained a gun. Then, Lewis,
Sherrills and Ellsworth headed back toward Jordan Downs.
The police officers who were monitoring the phone calls had
become concerned. LAPD Sergeant Jason Cook checked with
other LAPD officers and learned that a large group was forming.
He requested additional uniformed officers to go to Jordan
Downs. He also requested plainclothes officers to look for a
vehicle that was associated with defendant Lewis. (At this point,
the police had not identified Sherrills or Ellsworth as the other
voices on the phone calls.)
Sergeant Cook believed the individuals on the calls had
been trying to get a gun to kill someone.4 He requested a
4 An objection that this was speculative was overruled.
Shortly thereafter, Sergeant Cook testified, “I believed that Mr.
Lewis and whoever he was with was going to shoot and kill
somebody.” Lewis’s counsel’s objection was again overruled, but
the court offered a limiting instruction, stating, “This is not going
to the ultimate opinion, but this is relevant to show what the
officer was doing or why the officer was doing what he was.”
The topic arose later during Lewis’s counsel’s cross-
examination. Sergeant Cook stated, “You know, I mean, I really
believed on this day that Mr. Lewis and Mr. Sherrills were going
to shoot and kill Mr. Orange.” Counsel stated, “We know that.
We know you believed that.” Counsel added, “And I objected
when you had that opinion before. That’s in your gut as a police
officer, but the jury is going to make that decision based on the
transcripts and what is actually said. [¶] Is it fair – do you think
other people may have a different feeling based on these
conversations?” A relevance objection to the last question was
sustained.
Counsel continued to pursue the line of questioning, asking
if Sergeant Cook was taking “the most conservative view” of the
conversations he overheard. Sergeant Cook explained, that,
5
helicopter fly over Jordan Downs and the use of a spotlight to try
to locate various individuals. He also asked for support from the
Sheriff’s Department, as Jordan Downs was near the Sheriff’s
jurisdiction.
At 7:52 p.m., one of defendant Lewis’s friends called him,
and told him the police were in the vicinity. A minute later,
Lewis called Ellsworth and asked if she was armed. When she
said she was not, Lewis replied that people are saying the police
are out.
There were no significant phone calls for nearly 40
minutes. In the interim, the police made their move.
At 8:21 p.m., Detective Carlos Carrillo spotted defendant
Lewis standing near a parking lot in Jordan Downs where Grape
Street members were known to congregate. Lewis was with a
group of five other men near the entrance to the parking lot.
When Detective Carrillo and his partner got out of their marked
police car and approached the men, the group dispersed without
incident.
The following day, in another recorded phone call, Lewis
recounted the initial fight with Orange. He added, “On Young, so
now I’m just going to make sure my gun on me.”5
based on the totality of the calls, the fact that Lewis sought out a
gun and returned to Jordan Downs (rather than going safely
home) made Sergeant Cook believe he was going there “to hurt
somebody.” On appeal, neither defendant asserts error based on
the admission of this testimony.
5 “On Young” is an oath used by YNM members to swear on
their set. Similarly, Grape Street members use “On Grape” to
swear upon the gang, and “On Geo” or “On Beezy” to swear on the
memory of deceased gang members.
6
Seven weeks later – on November 9, 2017 – defendant
Lewis again called Ellsworth, asking if she had a home address
for Orange. When asked why, he explained that Orange kept
popping up, telling people to stay away from defendants and
Sherrills, and claiming that he (Orange) was going to “air shit
out.” Ellsworth said she could try to get Orange’s address, but
Lewis could not disclose his source.
A minute later, Lewis and Sherrills spoke by phone. Lewis
asked if Sherrills still had Uber, as Lewis needed to get “to the
hood.” Lewis said, “I’m about to do it!” He added, “On Young, he
right there. On Geo, I just got to call in. A nigga is about to do
it.”
A few hours later, Ellsworth called defendant Lewis. She
told him, “It’s Central and 50th.” Orange could, in fact, be found
a short walk from 50th and Central. The record does not indicate
what Lewis did with this information. Chronologically, this was
the last act of the conspiracy according to the prosecution’s theory
of the case. The conspiracy did not come to fruition. Lewis was
not immediately arrested.
C. Robbery of Orange’s Cousin, Bowden
Bowden is Orange’s cousin. Orange’s moniker (Little Heav)
was a “Little” version of Bowden’s moniker (Heavy or HD). When
a gang member takes a “Little” version of an existing gang
member’s name, it is out of respect for their “big homie,” and
demonstrates a connection between the “little homie” and “big
homie.”
Bowden frequently hangs out at a house on Lou Dillion
Ave., near Jordan Downs. He sold marijuana. On October 16,
2017 – three weeks before the last of the wiretapped phone calls
we have described –YNM members defendant Lewis, defendant
7
Gordon, Sherrills, Oneisha Jacobs (Gordon’s girlfriend) and
Bradford together robbed Bowden at the Lou Dillon house.
Bowden, who very much did not want to testify, denied
being robbed. However, he had previously told a detective about
the robbery. Bradford, who had pleaded guilty, testified to the
robbery. Other wiretapped phone calls confirmed that it had
taken place.
According to Bradford, the group robbed Bowden because
Orange had posted something on social media that was insulting
to the group. Orange did not live in Jordan Downs, where the
situation could have been addressed directly, so the group took it
out on his cousin, instead. The robbery was planned the same
day it happened.
The robbers drove over in two cars. Bradford drove
Sherrills and defendant Lewis; defendant Gordon rode in his
girlfriend’s car. Once they arrived, Gordon’s girlfriend checked to
make sure Bowden was alone. Upon confirmation, the men
knocked on the door and went inside while she stayed outside.6
Bowden let them in; the men pretended they were there to get
some marijuana, like usual, but “then flipped the script on him.”
Bowden had previously sold marijuana to all of them except for
Gordon, who did not smoke.
Once the men were sitting down, Sherrills pulled a gun on
Bowden and they started the robbery. Defendant Gordon took
jewelry; defendant Lewis took cash from Bowden’s pockets; the
men also took some marijuana from the table. Sherrills then
6 Gordon was, at the time, wearing an ankle monitor. The
tracking showed him at or near the Lou Dillon house at the time
of the robbery, although the accuracy of the tracking can be off by
as much as 60-70 feet when indoors.
8
handed the gun to Bradford while Sherrills and the two
defendants searched the house. When Bowden asked what was
happening, the robbers told him “ask your little homie,” referring
to Orange. After the men finished searching the house, they left.
The robbers split the marijuana and the money, and the next day
pawned Bowden’s jewelry.
Vernon Williams is an older member of Grape Street and is
“up in rank.” The police were also tapping Williams’s phone.
Bowden is his cousin. At 9:51 that night, Bowden called Williams
and reported the robbery, identifying Bradford, Sherrills, and
defendant Lewis as among the robbers. He did not mention
defendant Gordon.
Williams was livid. He called Bradford and ordered him,
Sherrills and Lewis to bring back everything they had taken from
Bowden. Williams added that Bowden had nothing to do with
Orange. He said that if they wanted to do something to Orange,
they should go ahead and shoot him, but they shouldn’t take it
out on Bowden.7
Because Bowden had not identified defendant Gordon as
one of the robbers, Williams did not know that Gordon was there.
Later, Gordon spoke with Bradford, and said “[Bowden] must not
have said my name or something.” He repeated, “I didn’t think
[Bowden] must’ve said – or he don’t know my name.” In a
recorded phone call on the day after the robbery, defendant
Gordon admitted his participation in the crime, stating, “we just
booked [Bowden].” “Book” is slang for robbing.
7 Williams specifically complained that the men had robbed
Bowden rather than putting in “work” for the gang by, for
example, robbing an enemy gang.
9
D. Conspiracy to Rob Arreola
Robert Arreola is a member of Grape Street, but not YNM.
Defendants were convicted of conspiracy to rob Arreola. As none
of the contentions they raise on appeal relate directly to this
charge, we limit our discussion of the facts.
In a number of phone calls, defendant Lewis and defendant
Gordon discussed with each other and/or other YNM members
that Arreola had an expensive watch they wanted to take from
him.
On the evening of November 6, 2017 – three days before the
last act that comprised the conspiracy to murder Orange –
Sherrills put Arreola in a chokehold and robbed him of his
jewelry. Seizing the opportunity, Bradford joined in, taking
money out of Arreola’s pockets. Others, but not defendants (who
were not present), participated as well. Later, when, the robbers
told defendant Lewis what they had done, Lewis said he did not
like that they “got my move” as he had been trying to rob Arreola
personally.
3. The Charges
Defendants were charged by amended information with the
following crimes: Lewis was charged with conspiracy to murder
Orange (Pen. Code, § 182, subd. (a)(1))8 and attempted murder of
Orange (§§ 664/187); Lewis and Gordon were both charged with
robbing Bowden (§ 211); and Lewis and Gordon were charged
with conspiring to rob Arreola (§ 182, subd. (a)(1)).9 A number of
8 All further statutory references are to the Penal Code
unless otherwise indicated.
9 Defendants were also charged with the robbery of another
individual, Burnell Lewis. Prior to submitting the case to the
10
sentence enhancements were alleged. Specifically, a gang
enhancement was alleged with respect to each count (§ 186.22).10
As to the Bowden robbery, it was alleged that the defendants
acted voluntarily in concert and entered a structure, within the
meaning of section 213, subdivision (a)(1)(A). Finally, the
information alleged that Gordon had suffered a prior serious
felony conviction within the meaning of section 667, subdivision
(a)(1) and the Three Strikes law (§ 1170.12).
4. Pretrial Motions
Prior to trial, defendant Gordon moved to bifurcate the
gang allegations from the trial of the crimes. The trial court
denied the motion, but bifurcated trial on the prior conviction
allegations against Gordon.
During jury selection, Gordon’s counsel twice made
Batson/Wheeler motions directed to the prosecution’s exercise of
peremptory challenges against African-American female jurors.11
Each time, the trial court found no prima facie case had been
made, but permitted the prosecutor to state his reasons for the
jury, this count was dismissed on the joint motion of the
prosecution and defense. As noted, the felony complaint was
originally filed against several other individuals, but the trial
proceeded only against defendants Lewis and Gordon.
10 It was also alleged, in connection with the Bowden robbery
and the conspiracy and attempt to murder Orange, that a
principal personally used a firearm within the meaning of
sections 12022.53, subdivisions (b) and (e)(1). That is, by statute,
the only firearm enhancements alleged depended on the gang
enhancement being found true.
11 Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler
(1978) 22 Cal.3d 258.
11
record. The court then confirmed its rulings denying the motions,
noting that the prosecutor had offered non-discriminatory
reasons for excusing the prospective jurors.
5. Bradford’s Testimony at Trial
At trial, the prosecution relied heavily on wiretapped phone
calls to support its case. It also offered the testimony of gang
member Bradford, who had participated in the Bowden and
Arreola robberies, but had now turned against the gang.
Bradford testified that his deal with the district attorney
involved his promise to plead guilty to the charges in this and
another case, and his promise to testify truthfully. According to
Bradford, if he breaches the agreement, he will be sentenced to
the full term in both cases – and he was facing life without parole
in the other matter. If he keeps his agreement and testifies
truthfully, he will receive a sentence of nine years.
On direct examination, Bradford explained that he
committed several crimes in 2016. He told the police some (but
nowhere near all) of what he had done, and he was not
immediately charged. Thereafter, he participated in the Bowden
and Arreola robberies. He was not charged until 2018, for the
crimes in this and another case. In May 2019, he gave a “proffer
statement” in which he was queried about a number of crimes,
and told police what he knew. In August 2019, he signed a
leniency agreement in which he agreed to testify truthfully.
On cross-examination by defendant Gordon’s counsel,
Bradford explained that, on August 31, 2016, he was first
interviewed by Detective Pearce of the LAPD, then by Detective
Blagg of the Sheriff’s Department. Counsel, who had been
provided a transcript of the interview by the sheriff’s detective,
but not the earlier interview by the police detective, cross-
12
examined Bradford on lies he told during the sheriff’s interview.
Bradford admitted that he “was lying” during that interview. He
explained, “I was trying to, like, get released right there and it
didn’t happen. It didn’t work.” He was also cross-examined on
misstatements he made in later interviews.
6. The Verdicts
While deliberating, the jury submitted a question asking,
“Does the gang enhancement on any of the charges have to be
agreed upon? If we are at a standstill 10 to 2?” In response to
this question, the court asked if there were partial verdicts, and,
after the jury responded affirmatively, chose to take the partial
verdicts while the jury continued to work. Although the parties
had thought the jury’s question indicated the jury was struggling
with the gang enhancement, the jury had, in fact, not yet reached
a verdict on Gordon’s guilt of the Bowden robbery. The following
day, the jury reached a verdict on that count.
Defendant Lewis was found guilty of conspiracy to commit
murder (Orange), robbery with the “in concert” finding (Bowden),
and conspiracy to commit robbery (Arreola). He was found not
guilty of attempted murder (Orange). The gang enhancement
was found not true.12 Defendant Gordon was found guilty of
robbery with the “in concert” finding (Bowden), and conspiracy to
commit robbery (Arreola). The gang enhancement was found not
true.
12 The jury found that a principal was armed, but since by
statute the firearm enhancement depended on the gang
enhancement being true, the finding is not relevant, and the
court did not impose a firearm enhancement.
13
Sentencing was continued several times over six months,
largely because of COVID-19 delays.
7. Lewis’s Sentence
On July 22, 2020, defendant Lewis was sentenced to an
indeterminate term of 25 years to life for conspiracy to commit
murder. As to his determinate term, defendant Lewis had
recently been sentenced to a determinate term of 21 years in
another case (TA144866, “manslaughter case”). That sentence
was reimposed. Lewis was also sentenced to consecutive terms
(1/3 the middle term) of two years for the Bowden robbery, and
one year for the conspiracy to rob Arreola. He filed a timely
notice of appeal.
Although he was not sentenced at this hearing, Gordon
admitted his prior serious felony conviction.
8. Gordon’s New Trial Motion
After trial, the district attorney discovered the existence of
a recording of Bradford’s initial August 31, 2016 interview with
police Detective Pearce. This interview was conducted prior to
Bradford’s interview with Sheriff’s Detective Blagg, which had
already been disclosed. Upon discovery, the prosecutor
immediately turned over the recording to Gordon’s counsel.
On October 9, 2020, defendant Gordon moved for a new
trial on multiple grounds, including that the failure to turn over
Bradford’s initial police interview constituted a violation of Brady
v. Maryland (1963) 373 U.S. 83 (Brady).13 Gordon argued that
the initial interview, in which Bradford told police numerous lies,
was impeachment material and that the failure to disclose was
13 Defendant Gordon conceded that the prosecutor had acted
in good faith, and that the failure to disclose was simply a
mistake.
14
prejudicial: If the interview had been disclosed there was a
reasonable probability that the jury’s verdict would have been
different. Bradford was the prosecution’s “star witness” who lied
to police for two hours in this interview, and the jury had initially
hung on Gordon’s guilt of the Bowden robbery.14
The prosecution argued that the late-disclosed recording
was cumulative to materials that had previously been disclosed,
and would not have caused a different result. The prosecution
attached as evidence a CD which contained all of the
impeachment evidence of Bradford it had disclosed to the defense
– from both the pretrial disclosures and the late-disclosed initial
interview with Detective Pearce.15 The trial court reviewed the
materials and denied the new trial motion, concluding there was
no reasonable probability the jury would have reached a different
result.
9. Gordon’s Sentence
Defendant Gordon was sentenced to a total of 25 years in
prison, calculated as the high term of 9 years for the Bowden
robbery, doubled for the strike; with a consecutive 2 years (1/3
the middle term doubled) for the Arreola robbery conspiracy; plus
14 Defendant Gordon also noted that the police’s questioning
at the first interview implied Bradford might have been involved
in another shooting, and he could have cross-examined Bradford
on this as well, further damaging his credibility.
15 The clerk’s transcript on appeal included a photocopy of the
CD, not the contents of the disk. We have obtained the contents
of the CD from the superior court, in order to properly address
defendant Gordon’s appellate arguments.
15
5 years for Gordon’s prior serious felony conviction. He filed a
timely notice of appeal.
We consolidated the two appeals.
DISCUSSION
On appeal, Defendant Gordon initially argued: (1) the trial
court erred in denying his Batson/Wheeler motions; (2) the trial
court prejudicially erred in denying his motion to bifurcate the
gang enhancement allegations; and (3) the trial court should
have granted his new trial motion for Brady error.
Defendant Lewis initially argued: (4) there is insufficient
evidence that he conspired to commit murder, rather than any
lesser offense; (5) the trial court should have sua sponte
instructed on the lesser included offense of conspiracy to commit
assault with a firearm; and (6) the trial court should have sua
sponte instructed on unanimity with respect to whether the
conspiracy to murder was in September 2017 or November 2017.
Because the determinate sentence in this case reimposed the
determinate sentence in his unrelated manslaughter case, which
was then on appeal, defendant Lewis (7) reasserted the
arguments against his sentence he had raised in that appeal. By
means of supplemental briefing, both defendants argue (8) their
sentences should be remanded in light of recently enacted Senate
Bill No. 567 (2021-2022 Reg.Sess.) (SB 567).16
16 SB 567 amended section 1170 dealing with, among other
things, the calculation of determinate sentences. Defendants also
submitted letter briefs on new statutory enactments which, they
contend, fortify their argument on the gang enhancement
bifurcation issue.
16
We discuss the issues in the order they arose during the
proceedings – pretrial motions, trial issues, posttrial motion for
new trial, sentencing. Thus, our discussion is organized as
follows: first, defendant Gordon’s challenges to the rulings on his
pretrial motions; second, defendant Lewis’s arguments regarding
his conspiracy conviction; third, defendant Gordon’s new trial
motion; and fourth, both defendants’ sentencing issues.
1. Gordon’s Contentions Relating to Pretrial Motions
A. The Batson/Wheeler Motions Were Properly Denied17
Defendant Gordon contends the trial court erred in denying
his two Batson/Wheeler motions.18 Because of the limited nature
of Gordon’s argument, it is helpful to address first the applicable
legal principles before turning to the voir dire of the challenged
prospective jurors.
“The law is clear and firmly established. ‘ “Both the federal
and state Constitutions prohibit any advocate’s use of peremptory
challenges to exclude prospective jurors based on race.” ’
[Citation.] ‘ “Doing so violates both the equal protection clause of
the United States Constitution and the right to trial by a jury
drawn from a representative cross-section of the community
17 In his reply brief on appeal, defendant Lewis joins this
argument. As we conclude the argument has no merit, the
joinder is inconsequential.
18 Jury selection in this case occurred before the effective date
of Code of Civil Procedure section 231.7, which enacted a number
of changes to the evaluation of Batson/Wheeler motions. Neither
party suggests that this section has any application to this
appeal. (See Code of Civ. Proc., § 237.1, subd. (i) [“This section
applies in all jury trials in which jury selection begins on or after
January 1, 2022.”].)
17
under article I, section 16 of the California Constitution.” ’
[Citation.] The law also recognizes ‘ “a rebuttable presumption
that a peremptory challenge is being exercised properly, and the
burden is on the opposing party to demonstrate impermissible
discrimination.” [Citation.] “A three-step procedure applies at
trial when a defendant alleges discriminatory use of peremptory
challenges. First, the defendant must make a prima facie
showing that the prosecution exercised a challenge based on
impermissible criteria. Second, if the trial court finds a prima
facie case, then the prosecution must offer nondiscriminatory
reasons for the challenge. Third, the trial court must determine
whether the prosecution’s offered justification is credible and
whether, in light of all relevant circumstances, the defendant has
shown purposeful race discrimination. [Citation.] ‘The ultimate
burden of persuasion regarding [discriminatory] motivation rests
with, and never shifts from, the [defendant].’ ” ’ [Citation.]”
(People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719,
759-760 (Holmes).)
As to each Batson/Wheeler motion in this case, the trial
court found no prima facie case – its ruling was therefore limited
to the first prong – the court then permitted the prosecutor to
state on the record his reasons for striking the jurors. After the
prosecutor’s statement of reasons the court briefly indicated the
Batson/Wheeler motion remained denied. The record is not
entirely clear as to whether the statement purported to
incorporate a ruling on the validity of the prosecutor’s reasons.19
19 After the first Batson/Wheeler motion, defendant Gordon’s
counsel disagreed with the prosecutor’s characterization of one of
the prospective jurors. The court stated, “Okay. Well, again, as
long as there is another reason not based upon her race or
18
But what is clear is that the court never found a prima facie case.
Under these circumstances, regardless of whether the court ruled
on the validity of the prosecutor’s reasons, our task is to review
the court’s initial finding that there was no prima facie case.
(People v. Scott (2015) 61 Cal.4th 363, 386, 391 (Scott).)
Defendant Gordon argues that the court erred in failing to
find prima facie discrimination.20 A prima facie case is
ethnicity and that’s what he described, so --.” Similarly, after the
prosecutor was permitted to state his reasons on the record in
connection with the second Batson/Wheeler motion, Gordon’s
counsel interjected that the juror had said she could set aside all
of her negative experiences with law enforcement, and the trial
court stated, “That’s not relevant, because, again, what’s being
stated is this non-race based/gender based for the reason of
excusing of a juror. You can have your opinion, but, you know,
that’s where the record stands.”
When a trial court actually undertakes a third stage
inquiry, which this trial court did not, it must “make a reasoned
effort . . . to evaluate the nondiscriminatory justification the
prosecutor offered” for striking the juror. (People v. Salinas
(2022) 77 Cal.App.5th 20, 33.) The ultimate question is not
whether the prosecutor offered a non-discriminatory reason, but
whether that reason was genuine. (Id. at p. 36) We view the
trial court’s statements after the prosecutor’s response as
reiterating its earlier ruling, not engaging in third prong
analysis.
20 Defendant does not, however, agree that, if we find a prima
facie case was established, we can then proceed to the third stage
inquiry. Instead, he argues that the trial court wrongfully
injected itself into the proceedings as an advocate for the
prosecution, and “conceived” of reasons that supported the
prosecution, “without even articulating those reasons for the
record.” As such, he argues that reversal of the judgment is
19
established if the objector “produces sufficient evidence to
support an inference that discrimination occurred.” (Holmes,
supra, 12 Cal.5th at p. 760.) There are a number of factors a
court is to consider in determining whether a prima facie case
has been established. Relevant for our purposes is that a court
may consider nondiscriminatory reasons for a peremptory
challenge that are apparent from and clearly established in the
record and that necessarily dispel any inference of bias. (Ibid.)
This is different from relying on the reasons a prosecutor gives to
preserve the record even after the trial court finds no prima facie
case. “[A] reviewing court may not rely on a prosecutor’s
statement of reasons to support a trial court’s finding that the
defendant failed to make out a prima facie case of discrimination.
Although a court reviewing a first-stage ruling that no inference
of discrimination exists ‘may consider apparent reasons for the
challenges discernible on the record’ as part of its ‘consideration
of “all relevant circumstances” ’ [citation], the fact that the
prosecutor volunteered one or more nondiscriminatory reasons
for excusing the juror is of no relevance at the first stage.” (Scott,
supra, 61 Cal.4th at p. 390.)21
necessary. As we shall discuss, we disagree with this
characterization of the record.
21 Gordon argues at length that California Supreme Court
authority is out of step with U.S. Supreme Court precedent, in
that California improperly permits reliance on a prosecutor’s
stated reasons in reviewing a finding that no prima face case was
established. The argument fails to take notice of the Scott
opinion we cite in the text.
20
Other evidence relevant to the issue of establishment of a
prima facie case includes “whether a party has struck most or all
of the members of the identified group from the venire; has used
a disproportionate number of strikes against the group; or has
only engaged the panelists in desultory voir dire.”22 (Holmes,
supra, 12 Cal.5th at pp. 760-761.)
We review for substantial evidence the trial court’s finding
that a party has not established a prima facie case. (People v.
Bonilla (2007) 41 Cal.4th 313, 341.)
We turn to a discussion of the jury voir dire and defendant
Gordon’s motions, and whether defendant established a prima
facie case. We pay particular attention to whether
nondiscriminatory reasons for the prosecution’s peremptory
challenges are apparent from and clearly established in the
record. (Holmes, supra, 12 Cal.5th at p. 760.)
(1) First Batson/Wheeler Motion
Defendant Gordon first made a Batson/Wheeler motion
after the prosecution had exercised its fifth peremptory challenge
in a row against an African-American woman. Gordon’s counsel
later stated that, while the prosecutor had dismissed five African-
American women, his “issue” was with the third juror. (Juror No.
22 Also relevant is whether the defendant is a member of the
identified group and whether the victim is a member of the group
to which a majority of the jurors belong. (Holmes, supra,
12 Cal.5th at p. 761, fn. 17.) Here, defendants are African-
American, but to the extent Gordon’s Batson/Wheeler motion
focused on the prosecution’s exercise of challenges against
African-American women in particular, defendants are not
members of that group. The race of the victims was not
specifically identified in this case, but defendants do not suggest
there were cross-racial issues implicated.
21
14.) Our review of the record suggests that this was likely
because there were obvious nondiscriminatory reasons for the
prosecutor’s exercise of the other four challenges.
The prosecutor’s first five challenges were to Juror No. 8,
Juror No. 16; Juror No. 14, Juror No. 6, and, finally, Juror No. 1.
As to the four jurors other than Juror No. 14, the trial court
reasonably could have found that, from the record, there were
nondiscriminatory reasons to exclude each of those jurors, thus
dispelling any inference of bias, and defeating a prima facie case.
Those jurors either volunteered negative experiences with law
enforcement; had murdered or incarcerated relatives who had
been members of Grape Street; and/or had previously served on a
jury which hung. It is apparent that nondiscriminatory reasons
existed for the prosecution’s challenge of these four jurors. (See,
e.g., People v. Reed (2018) 4 Cal.5th 989, 1001 [negative
experience with law enforcement is a valid nondiscriminatory
reason; previous service on a hung jury is a valid reason]; People
v. Lenix (2008) 44 Cal.4th 602, 620 [gang affiliation of murdered
relative is a valid reason].)
The focal point of defendant Gordon’s initial
Batson/Wheeler motion was Juror No. 14. She expressed
hesitation about being a juror because she was bothered by
“judging the character of my fellow man.” When the prosecutor
asked Juror No. 14 if she would be comfortable voting “guilty” if
he proved his case beyond a reasonable doubt, she answered, “I
feel okay.”
After the prosecution excused five African-American
women, defendant Gordon made his Batson/Wheeler motion. The
basis offered for the motion was that all of the prosecutor’s
peremptory challenges had been to African-American women.
22
The court denied the motion, finding that, “based upon the
answers that the five individuals that were dismissed gave,” a
prima facie case had not been established. The court permitted
the prosecutor to put his reasons on the record.23 Thereafter, the
court noted that there were four African-American jurors seated
in the jury box at the time and four other African-American
jurors in the audience. Defense counsel argued against the
prosecutor’s stated reasons for dismissing Juror No. 14. He made
no further argument in favor of a prima facie case beyond noting
that the prosecution had challenged five African-American
women and the defendants are both Black.
Juror No. 14 expressed reluctance to serve as a juror
because she was uncomfortable judging her fellow man. This is a
non-discriminatory basis, unrelated to race or gender, which
constitutes a nondiscriminatory reason to excuse the juror. In
addition, we recognize the cursory nature of Gordon’s showing as
moving party. He relied only on the fact that the prosecution’s
first five challenges were against African-American women, even
though four of those challenges were beyond dispute. He
provided no evidence of the number of African-American women
in the venire.24 It cannot be determined whether the prosecutor’s
use of peremptory challenges was disproportionate to their
23 As we are concerned with the court’s ruling on the prima
facie case, we do not discuss the prosecutor’s stated reasons.
24 The trial court volunteered the number of African-
American prospective jurors in the jury box and in the audience
at the time of the motion, but there is nothing in the record as to
the race of the prospective jurors dismissed by the defendants or
the total breakdown of the venire by race and gender.
23
representation in the group without knowing their representation
in the group. “In establishing a prima facie showing, a defendant
has the burden of demonstrating that the facts and
circumstances of the case raise an inference that the prosecutor
excluded prospective jurors based on race. [Citation.] In making
such a showing, a defendant should make as complete a record of
the circumstances as is feasible. [Citation.]” (People v. Hawthone
(2009) 46 Cal.4th 67, 79.) A superficial showing, based only on
the percentage of the prosecutor’s challenges directed to African-
American prospective jurors, with no mention of the number of
group members in the entire venire or in the jury panel at the
time the motion was made, is insufficient.25 (Id. at pp. 79-80.)
Considering the totality of the circumstances, we conclude
substantial evidence supported the trial court’s finding that the
defense failed to make a prima facie case there were
nondiscriminatory reasons “apparent from and clearly
established in the record and that necessarily dispel any
inference of bias.” (Holmes, supra, 12 Cal.5th at p. 760.)
Gordon makes the separate argument on appeal that the
trial court’s finding must be reversed because the court
erroneously injected its own opinions into the case. Specifically,
defendant Gordon takes issue with the trial court’s statement
that “based upon the answers that the five individuals that were
dismissed gave,” there was no prima face case established.
25 In his reply brief on appeal, Gordon states that “the record
does not demonstrate any prospective jurors who were both black
and female remained in the jury box or in the gallery, nor that
any black female individuals were seated on the jury.” As Gordon
is the appellant, this absence of information in the record does
not establish a prima facie case; it confirms that defendant
Gordon failed to meet his burden to establish one.
24
Gordon argues that, by this statement, the court “supplied
acceptable reasons for the prosecution to dismiss” the prospective
jurors, “but did not even disclose what all those reasons were.”
On this basis, he argues that we cannot apply the substantial
evidence test, “because the judge crossed the line to become an
advocate for the prosecutor.” We disagree. The trial court
properly applied the law, concluding, based on facts apparent in
the record, that non-discriminatory reasons appeared for the
dismissal of the prospective jurors. What happened here is
dissimilar to the ruling in People v. Tapia (1994) 25 Cal.App.4th
984, 1007, 1014-1015, in which the trial court improperly relied
on a reason outside the record (a letter a prospective juror gave
the trial court which had not yet been disclosed to counsel).
Instead, as it was obligated to do, the trial court here considered
nondiscriminatory reasons that were apparent in the answers
given by the prospective jurors. Substantial evidence supported
the ruling that the defense had not made out a prima facie case.
(Holmes, supra, 12 Cal.5th at p. 760.)
(2) Second Batson/Wheeler Motion
Following the denial of Gordon’s first motion, additional
prospective jurors were added to the jury box, including new
prospective Juror No. 1, who would later be the subject of the
second Batson/Wheeler motion.
Juror No. 1’s voir dire indicated that she had several law
enforcement officers in her family – a fact which is often
presumed to make a prospective juror favorable to the
prosecution. However, when she was asked if she had a
particularly positive or negative experience with law
enforcement, she offered a negative one. When she was a postal
worker, working the swing shift, she “often got pulled over at
25
least once a week for no reason at all.” The officers pulling her
over would let her go once they realized she had relatives in the
department. She would ask why they stopped her and, “[t]hey
would never give me an answer.” She even asked one of the
officers for his badge number. “He really didn’t want to give it to
me . . .” and he “was quite nasty.” She definitely believed she was
being profiled. She had also previously been on a hung jury.
Initially, the prosecutor accepted the panel with Juror
No. 1 on it. After the defense challenged additional jurors, the
prosecutor accepted a panel including Juror No. 1 two further
times. Following another defense challenge, the prosecutor
excused Juror No. 1, and Gordon made his second
Batson/Wheeler motion.
Gordon argued that this motion was inclusive of the last,
and suggested there was no good faith reason for the prosecutor
to dismiss Juror No. 1, as she had family in law enforcement.
The trial court stated, “I will, again, based upon her answers,
specifically the police contact with this juror, I do not find a
prima faci[e] showing has been made of this individual.” The
court again allowed the prosecutor to put his reasons on the
record. After he did so, the court indicated that the prosecutor
had stated a “non-race based/gender based” reason for dismissing
the juror.
As with the first Batson/Wheeler motion, there is
substantial evidence, based on the totality of the circumstances,
that Gordon had not established a prima facie case of
discrimination. Juror No. 1 had volunteered a previous negative
experience with law enforcement, and previous service on a hung
jury, both of which are valid non-discriminatory reasons
recognized in caselaw. It is also noteworthy that, prior to
26
striking the juror, the prosecution had thrice accepted the panel
with Juror No. 1. (See People v. Lenix, supra, 44 Cal.4th at p. 629
[the prosecution’s acceptance of the panel containing a Black
juror strongly suggests that race was not a motivating factor in
challenges].)
B. There Was No Prejudicial Error in Denying
Bifurcation of the Gang Enhancement Allegation
(1) Proceedings in the Trial Court
Prior to trial, defendant Gordon alone moved to bifurcate
trial on the gang enhancement.26 The trial court denied the
motion, saying, “I think it would be overly confusing to the jury if
the allegation were bifurcated. That’s because it’s so intertwined
with the facts that we have here based upon what I’ve heard so
far from all you as well as reading the opposition by the People
and deciphering the language, the certain motives that are
present. It would – I’m not sure how we would even put the case
on by bifurcating the gang allegation. So that motion – or the
request is denied.”
On appeal, defendant Gordon argues that the court
prejudicially erred in denying bifurcation. While recognizing that
the jury found the gang enhancement allegation untrue, he
argues that no reasonable jury would have been able to separate
out the prejudicial gang evidence when considering the
substantive offenses. In particular, Gordon argues that the gang
evidence prejudicially impacted the jury’s verdict on the “in
concert” allegation on the Bowden robbery count. “Although the
gang evidence was prejudicial as to both [robbery] counts, the
gang evidence explains why the jury found Gordon guilty of
home-invasion robbery in concert, despite justification for finding
26 Defendant Lewis now joins in the argument on appeal.
27
reasonable doubt on that element.” “As to Gordon, joinder of the
criminal street gang enhancements had the effect of joining a
‘weak’ case on the issue of acting in concert inside the residence
with a strong case of gang membership.” As we understand it,
defendant Gordon has narrowed his argument to prejudice only
as it affected the “in concert” finding because there was a dispute
in the evidence as to whether he had actually entered the
residence where Bowden was robbed. He does not appear to
argue that the prejudice affected the jury’s guilty verdict on the
robbery itself.27
(2) Analysis
In October 2021, the Legislature passed Assembly Bill
No. 333, which amended the language of the gang enhancement
statute and, in addition, added a new law, section 1109, which
provides for bifurcation of gang enhancements “[i]f requested by
the defense.” (§ 1109, subd. (a).) We sought additional briefing
on the effect, if any, of this statute. Both defendants filed letter
briefs arguing that section 1109 was retroactive to cases pending
on appeal. The Attorney General argued that section 1109 is not
retroactive, but that even if it is, the failure to bifurcate in this
case is harmless.
We agree with the second part of the Attorney General’s
argument – any error was harmless. “Even if section 1109
applied retroactively to [the defendant’s] case—an issue we need
not and do not decide here—[the defendant] cannot show it is
‘reasonably probable’ he would have obtained a more favorable
result if his trial had been bifurcated. [Citation.]” (People v. E.H.
(2022) 75 Cal.App.5th 467, 480.) This is so because, as the trial
27 Gordon also does not argue that the prejudice impacted his
conviction of conspiring to rob Arreola.
28
court recognized, the vast bulk of the gang evidence would have
been admissible in the trial of the charged offenses even in the
absence of the gang enhancement allegation. The crimes were
proven, in large part, through recordings of the wiretapped phone
calls of defendants and their fellow gang members. In those calls,
the participants spoke in gang vernacular, frequently sprinkling
their conversation with “On Grape,” “On Young,” “On Beezy,” “On
Geo” and similar oaths, which could not be understood in the
absence of evidence of gang membership. Evidence of gang
rivalries was also interwoven with evidence of the substantive
offenses. Defendant Lewis identified Orange by his prior
affiliation with “Toast,” a derisive name for East Coast Crips.
Proof of the Bowden robbery was based on statements by Grape
Street higher-up Williams. Williams yelled at Bradford for
robbing Bowden and complained that they were going after one of
their own, rather than “putting [in] work.” He specifically
complained that they robbed Bowden rather than Bounty
Hunters, a statement that could only be understood in the
context of existing gang rivalries.28 The context for Bowden’s
reluctance to testify was the gang prohibition on snitching.
Bradford also explained that, by testifying against the gang, he
risked any number of bad things, including death.
To be sure, some testimony of the prosecution’s gang expert
– particularly as to predicate offenses – would not have been
admitted at a trial on the substantive offenses if the gang
enhancements had been bifurcated. But this testimony was a
small part of the prosecutions’ case in a trial which was
28 “[Y]ou guys ain’t putting no work in at all, on Geo. . . . Ya’ll
ain’t gonna rob no Bounty Hunter nigga spot, ya’ll ain’t doing
nothing. Ya’ll rob poor HD [Bowden], come on my nigga, on Geo.”
29
necessarily steeped in gang evidence. That the admission of this
additional evidence was not prejudicial to defendants is
demonstrated by the fact that the jury found the gang
enhancements untrue – the jury evinced no bias against
defendants because they were gang members.
We reject Gordon’s specific argument that the gang
evidence was prejudicial on the issue of whether he went inside
the house at the Bowden robbery. Not only did Bradford testify
that Gordon went into the house, Gordon himself impliedly
confirmed it. When Bradford and Gordon discussed Williams’s
call – and Bowden’s specific failure to identify Gordon as a
participant in the robbery – Gordon did not say that he was lucky
he remained outside; he instead said, “I didn’t think [Bowden]
must’ve said – or he don’t know my name,” implying that Bowden
saw him during the robbery, but could not identify him by name.
Defendant Lewis, by supplemental letter brief, argues that
he was prejudiced by the failure to bifurcate in connection with
his conviction of conspiracy to commit murder – because the
prosecution relied on gang expert testimony to explain the
meaning of the gang language used in the wiretapped phone calls
and relied on gang members’ joint association in the gang as
evidence in support of the conspiracy. But none of the gang
evidence he identifies as problematic is evidence that would have
been excluded had the gang enhancement been bifurcated. The
evidence of the conspiracy did involve gang language and gang
members plotting revenge. This evidence consisted of admissions
of a party opponent. (Evid. Code, § 1220.) Expert testimony was
admissible to explain gang speak in words the jurors were likely
to understand. (People v. Champion (1995) 9 Cal.4th 879, 924-
925 & fn. 14, overruled on other grounds in People v. Combs
30
(2004) 34 Cal.4th 821, 860.) At bottom, defendant Lewis’s
argument is simply an offshoot of his argument that there is
insufficient evidence of a conspiracy to commit murder, to which
we next turn.
2. Lewis’s Contentions Related to His Conviction for
Conspiring to Murder Orange
Defendant Lewis raises three contentions related to his
conviction for conspiring to murder Orange. First, he argues the
evidence is insufficient to establish a conspiracy to commit
murder, as opposed to a conspiracy to commit a lesser offense.
Second, he argues the court should have instructed the jury on
the lesser included offense of conspiracy to commit assault with a
firearm. Third, he argues the court should have given a
unanimity instruction with respect to the charge. We reject each
contention.
A. The Evidence Was Sufficient as to Conspiracy to
Commit Murder
When considering a challenge to the sufficiency of the
evidence, “ ‘ “we review the entire record in the light most
favorable to the judgment to determine whether it contains
substantial evidence — that is, evidence that is reasonable,
credible, and of solid value — from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.” ’
[Citations.] We consider ‘ “whether . . . any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” ’ [Citation.] ‘[A] reviewing court “presumes in
support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.” ’ [Citation.]” (Holmes,
supra, 12 Cal.5th at p. 780.)
31
“A conspiracy is an agreement by two or more persons to
commit any crime. [Citations.] A conviction for conspiracy
requires proof of four elements: (1) an agreement between two or
more people, (2) who have the specific intent to agree or conspire
to commit an offense, (3) the specific intent to commit that
offense, and (4) an overt act committed by one or more of the
parties to the agreement for the purpose of carrying out the object
of the conspiracy. [Citations.] [¶] The elements of conspiracy
may be proven with circumstantial evidence, ‘particularly when
those circumstances are the defendant’s carrying out the agreed-
upon crime.’ [Citations.] To prove an agreement, it is not
necessary to establish the parties met and expressly agreed;
rather, ‘a criminal conspiracy may be shown by direct or
circumstantial evidence that the parties positively or tacitly came
to a mutual understanding to accomplish the act and unlawful
design.’ [Citation.]” (People v. Vu (2006) 143 Cal.App.4th 1009,
1024-1025.)
The dispute over the object of the conspiracy here relates to
the intent elements. Lewis concedes that the evidence shows
that, following his fight with Orange, he obtained a gun and
headed back to Jordan Downs. He argues that there is
insufficient evidence, however, that he had formed a plan with at
least one other person to murder Orange, or that any of his
purported co-conspirators shared murderous intent.
Lewis understates the evidence. He represents the
evidence shows that once he obtained a gun, he drove back to
Jordan Downs by himself. But there is evidence that he was in a
car with Sherrills, and that Sherrills was driving. The evidence
shows that, in between calls in which defendant Lewis attempted
to obtain a gun, he said to Sherrills, “Man, it’s over for him. It’s
32
over homie. That’s on BL.”29 This is sufficient to establish Lewis
intended to kill Orange, and he expressed this intent aloud to
Sherrills. Thereafter, Sherrills continued to drive Lewis,
following directions that Lewis relayed from Ellsworth.
Lewis argues that his shared gang affiliation with Sherrills
and Ellsworth is an insufficient basis from which to infer a
shared intent to kill. We agree. “Standing alone, a gang’s
general agreement to fight rivals may not suffice to support a
particular conspiracy charge [citation.]” (Holmes, supra,
12 Cal.5th at p. 781.) But here there was additional evidence far
beyond shared gang membership: Lewis swore to Sherrills that it
was over for Orange; in Sherrills’s presence, he asked multiple
people to help him obtain a gun; early on in the conspiracy,
Ellsworth said that she could help him get one; Ellsworth offered
to “ride behind” Lewis and Sherrills; together, a gun was
obtained; and Ellsworth continued to give Lewis and Sherrills
directions on where to drive to avoid police. Given Lewis’s sworn
oath that it was over for Orange, this is sufficient evidence of a
conspiracy to murder him.
This conclusion is further supported by the events two
months later, in November 2017. Defendant Lewis obtained
Orange’s location from Ellsworth, and – after Ellsworth said she
could get it – excitedly told Sherrills “I’m about to do it!” It is
significant that Lewis did not feel the need to tell Sherrills what
he was “about to do,” which suggested it was well known between
the two that Lewis intended to kill Orange.
29 BL is a reference to “Beezy lot,” a parking lot nicknamed
after deceased gang member Beezy. Among Grape Street
members, “on BL” is a similar oath to “on Beezy.”
33
Substantial evidence supported the jury’s finding that
Lewis conspired to commit murder.
B. The Court Was Not Required to Instruct on
Conspiracy to Commit Assault with a Firearm
Defendant Lewis next contends the court erred in failing to
instruct the jury sua sponte on the lesser included offense of
conspiracy to commit assault with a firearm.30
A trial court has a duty to instruct sua sponte on lesser
included offenses when there is substantial evidence the
defendant is guilty of only the lesser offense. (People v. Cook
(2001) 91 Cal.App.4th 910, 917 (Cook).) “To determine whether a
lesser offense is necessarily included in a greater charged offense,
one of two tests must be met. [Citation.] The ‘elements’ test is
satisfied if the statutory elements of the greater offense include
all the elements of the lesser offense so that the greater offense
cannot be committed without committing the lesser offense.
[Citation.] The ‘accusatory pleading’ test is satisfied if ‘the facts
actually alleged in the accusatory pleading, include all the
elements of the lesser offense, such that the greater [offense]
cannot be committed without also committing the lesser
[offense].’ [Citation.]” (Id. at p. 918.)
Assault with a firearm is not a lesser included offense to
murder under the elements test; it is possible to commit murder
without committing assault with a firearm. (Cook, supra,
91 Cal.App.4th at pp. 918-919.) For that reason, conspiracy to
commit assault with a firearm is not a lesser included offense of
conspiracy to commit murder under the elements test.
30 Defendant Lewis’s brief also refers to the supposed lesser
included offense of “reckless arson.” This appears to be
inadvertent; there was no fire in this case.
34
The question becomes whether conspiracy to commit
assault with a firearm is a lesser included offense of conspiracy to
commit murder under the accusatory pleading test. Specifically,
when the overt acts alleged include an assault with a firearm, is a
conspiracy to commit assault with a firearm a lesser included
offense to conspiracy to commit murder?31
Case authority is split on this question. In Cook, supra,
91 Cal.App.4th 910, the Third Appellate District concluded that
“the trial court may look to the overt acts pleaded in a charge of
conspiracy to determine whether the charged offense includes the
lesser included offense.” (Id. at p. 914.) There, it was the
defendant who claimed error in the trial court’s instruction on the
lesser included offense. The defendants had been charged with
conspiracy to commit murder. The overt acts alleged included
that the conspirators acquired a firearm and that, in pursuit of
the conspiracy, they shot and killed one victim and shot and
wounded another. (Id. at p. 919 & fn. 22.) When murder is
alleged to have been committed by means of a firearm, “it cannot
be so committed without also committing an assault with a
31 Here, the overt acts alleged do not include an assault with
a firearm, but are not necessarily inconsistent with acts
preparatory to an assault with a firearm. There were seven overt
acts alleged in this case: “1. Co-conspirator(s) located a firearm.
[¶] 2. Co-conspirator(s) drove to the location of the firearm. [¶]
3. Co-conspirator(s) obtained the firearm. [¶] 4. Co-
conspirator(s) drove to the location where they believed the
victim was located. [¶] 5. Co-conspirator(s) discussed obtaining
the location of the intended victim a second time. [¶] 6. Co-
conspirator(s) solicited transportation to the victim’s location. [¶]
7. A co-conspirator relayed the victim’s location to another co-
conspirator.”
35
firearm.” (Id. at p. 920.) The appellate court concluded that “the
jury must determine which felony the defendants conspired to
commit, and it cannot make that determination unless it is
instructed on the elements of the target offense charged as well
as the elements of any lesser included target offense which the
jury could reasonably find to be the object of the conspiracy.
[Citations.] Thus, the trial court has a sua sponte duty to
instruct the jury on a lesser included target offense if there is
substantial evidence from which the jury could find a conspiracy
to commit the offense.” (Id. at p. 918.) Because the overt acts
alleged “necessarily include and gave notice of, the elements of
assault with a firearm,” the Court of Appeal held the trial court
properly instructed the jury on the lesser target offense. (Id. at
p. 920.)
On the other side of the appellate conflict is People v.
Fenenbock (1996) 46 Cal.App.4th 1688, in which Division One of
the First Appellate District held “in the context of deciding
whether the trial court was obligated to instruct sua sponte on
lesser included offenses, we conclude that allegations of overt acts
committed in furtherance of the alleged conspiracy do not provide
notice of lesser included target offenses.” (Id. at p. 1708.) The
reason for this is that, when the charged offense is conspiracy,
“[i]t is the agreement, not the overt act in furtherance of the
agreement, which constitutes the offense.” (Id. at p. 1709.) “In
our view, it is the description of the agreement within the
accusatory pleading, not the description of the overt acts, which
must be examined to determine whether a lesser offense was
necessarily the target of the conspiracy. Here, the information
alleged only that defendants conspired to murder [the victim].
There is nothing in this terse description of the agreement to
36
indicate an agreement with a lesser objective. We therefore hold
that the trial court was not required to instruct the jury sua
sponte on conspiracy to commit assault, battery, or mayhem as
lesser offenses included within the charged offense of conspiracy
to commit murder.” (Id. at p. 1709.)
In People v. Cortez (2018) 24 Cal.App.5th 807, Division Two
of the Fourth Appellate District charted a middle course. The
court agreed with Cook to the extent that the alleged overt acts
could be considered in determining whether the accusatory
pleading encompasses an allegedly lesser included offense.
(Cortez, at p. 820.) However, the focus must nonetheless be on
the conspirators’ agreement, not the conspirators’ acts. That is,
the court should consider whether the overt act allegations
“establish[] that the defendant has agreed or conspired to commit
lesser included target offenses.” (Ibid.) There is no duty to
instruct on conspiracy to commit assault with a firearm as lesser
to conspiracy to commit murder when “[t]he description of the
conspiratorial agreement to commit murder cannot be fairly read
to describe or encompass . . . conspiracy to commit assault with a
firearm . . . .” (Id. at p. 821.) The court noted that even if the
defendants actually committed an assault with a firearm, this
does not change the original nature of their conspiracy, which
was to commit murder, and it did not render assault with a
firearm a necessarily included target offense of the conspiracy to
commit murder. (Ibid.)
We agree with Cortez and Fenenbock: the crime of
conspiracy turns on the agreement, not the overt acts. If the
alleged agreement was only to commit murder, it cannot be said
that an agreement to commit assault with a firearm is a lesser
included offense. This is true even when the overt acts may be
37
consistent with a different, unalleged conspiracy. Here, the
information alleged only that defendant Lewis “unlawfully
conspire[d] together and with another person and persons whose
identity is unknown to commit the crime of MURDER.”
Conspiracy to commit assault with a firearm is not necessarily
included within that allegation, and there was no duty to instruct
on it as a lesser included offense.
C. Any Failure to Instruct on Unanimity Was Harmless
Defendant Lewis next points to the time that passed
between the overt acts on September 14 and the subsequent overt
acts on November 9, and argues that these acts at most show two
separate conspiracies to murder Orange. His argument
continues that the jury should have been instructed on the
principle of unanimity.32 Lewis agrees that there need be no
unanimity on individual overt acts, but argues the instruction
was necessary as the jury could conceivably have found two
different agreements.
Apart from whether the trial court erred in failing to
instruct on unanimity, we conclude any error is necessarily
32 CALJIC No. 17.01 provides: “The defendant is accused of
having committed the crime of _____ [in Count __]. The
prosecution has introduced evidence for the purpose of showing
that there is more than one [act] [or] [omission] upon which a
conviction [on Count __] may be based. Defendant may be found
guilty if the proof shows beyond a reasonable doubt that [he]
[she] committed any one or more of the [acts] [or] [omissions].
However, in order to return a verdict of guilty [to Count __], all
jurors must agree that [he] [she] committed the same [act] [or]
[omission] [or] [acts] [or] [omissions]. It is not necessary that the
particular [act] [or] [omission] agreed upon be stated in your
verdict.”
38
harmless. The failure to instruct on unanimity is reviewed for
prejudice under the Chapman standard of harmlessness beyond a
reasonable doubt.33 (People v. Wolfe (2003) 114 Cal.App.4th 177,
180.)
Here, the information alleged a single conspiracy, with
overt acts in both September and November 2017. Under this
view, Lewis and his co-conspirators Sherrills and Ellsworth
initially agree to kill Orange, and later reinvigorated that same
agreement with the same co-conspirators. Lewis argues that a
jury could have reasonably found two agreements, and it is
possible that some jurors found him guilty of a September 14
conspiracy while others found him guilty of a November 9
conspiracy.
The weakness in Lewis’s argument is that, even if he is
correct that the jury could have found two separate conspiracies,
we cannot imagine a scenario that some jurors would have
believed the evidence of only a September 14 conspiracy and
some would have believed the evidence of only a November 9
conspiracy. Both agreements were evidenced almost entirely by
recorded conversations between the conspirators. There is no
suggestion that some wiretapped conversations were more
credible than others; the police used identical processes and
tapped the same phones in both instances. Nor is the evidence
such that one agreement was substantially more persuasive than
other. On September 14, Ellsworth helped defendant Lewis
obtain a gun; on November 6, Ellsworth helped him obtain
Orange’s location. On both dates, defendant expressed to
Sherrills that he intended to kill Orange. Lewis presented no
evidence in defense of the conspiracy itself. He only argued that
33 Chapman v. California (1967) 386 U.S. 18.
39
the evidence did not demonstrate an intent to kill.34 There is no
evidence that Lewis and his conspirators did not really intend to
kill Orange in September, but suddenly developed that intent in
November; conversely, there is no evidence that they intended to
kill Orange in September, but gave up that intent and were
merely posturing in November. Thus, the failure to give a
unanimity instruction was harmless beyond a reasonable doubt.
3. Gordon’s New Trial Motion on Brady Grounds Was
Properly Denied
Defendant Gordon next contends the trial court erroneously
denied his motion for new trial. Gordon had sought a new trial
because of the prosecutor’s inadvertent failure to disclose the
recording of Bradford’s very first interview with police detectives.
Gordon contends the nondisclosure constituted a Brady violation,
because the interview contained additional impeachment
material.
Brady provides that the government violates the Due
Process Clause if it withholds evidence that is favorable to the
defense and material to the defendant’s guilt or punishment.
(Turner v. United States (2017) ___ U.S. ___, ___ [137 S.Ct. 1885,
1888].) “ ‘[E]vidence is “material” within the meaning of Brady
when there is a reasonable probability that, had the evidence
been disclosed, the result of the proceeding would have been
different.’ [Citation.] ‘A “reasonable probability” of a different
result’ is one in which the suppressed evidence ‘ “undermines
confidence in the outcome of the trial.” ’ [Citation.] In other
34 Lewis’s counsel argued to the jury that it could infer
defendant Lewis did not intend to kill Orange because defendant
Lewis committed a crime against Bowden when he could not get
to Orange, and he did not kill Bowden, but only robbed him.
40
words, petitioners here are entitled to a new trial only if they
‘establis[h] the prejudice necessary to satisfy the “materiality”
inquiry.’ [Citation.] [¶] Consequently, the issue before us here is
legally simple but factually complex. We must examine the trial
record, ‘evaluat[e]’ the withheld evidence ‘in the context of the
entire record,’ [citation], and determine in light of that
examination whether ‘there is a reasonable probability that, had
the evidence been disclosed, the result of the proceeding would
have been different.’ [Citation.]” (Id. at p. ___ [137 S.Ct. at
p. 1893].
We apply independent review to “mixed questions of law
and fact, such as the elements of a Brady claim.” (People v.
Stewart (2020) 55 Cal.App.5th 755, 770.)
Here, the parties agree that the prosecution failed to
disclose the recording of Bradford’s first police interview and that
it was favorable to the defense, as it would have impeached
Bradford. The issue is whether it was material. In the context of
the vast quantity of impeachment material disclosed, we conclude
the undisclosed first interview was not material.
A. The Undisclosed Initial LAPD Interview
Bradford was initially arrested on August 31, 2016, and
interviewed by LAPD Detective Pearce and his partner.
Excluding breaks, the interview lasted about two and one-half
hours. Even before Bradford was read his rights, he inquired if
he was going to go to jail that day. Detective Pearce responded,
“We’re gonna find out. Okay, if you lie to us, be dishonest,
definitely.” Bradford did, in fact, repeatedly lie to the detective.
For example, Detective Pearce showed Bradford a video in which
Bradford was shaking hands with someone. When Detective
Pearce asked Bradford with whom he was shaking hands, he said
41
“I don’t know him. I just show respect-. You sure that’s me?” He
then proceeded to repeatedly deny the image of himself on the
video. He was shown another video in which he appeared; he did
not deny that he was in it, but denied knowing anything about
the fight that was documented in the video. The dance
continued, with Bradford repeating that he was telling the truth,
and the detective saying, “I believe 100% you’re lying right now,
100%, 100%.” Bradford eventually swore on his life and on his
deceased mother that he was telling the truth.
From this point onward, Bradford began a three-year
journey from the baseline of lying about his own image on a video
to admitting everything, including that (for another case) he
pointed out a victim for his fellow gang members to shoot.
Partway through the initial interview, Detective Pearce
said, “[W]e’re just trying to get the truth, that’s it man.”
Bradford said, “And I’m, and uh – and it’s coming out slowly but
surely, right?” Detective Pearce said, “Okay. I, I’ll agree with
that.” As the interview progressed, Detective Pearce was
encouraging, at one point stating, “And we believe you’re being
honest. This is good.” Bradford started to admit involvement in
several crimes.
B. The Disclosed Interview with the Sheriff’s Detective
As a result of the initial interview, Detective Pearce
believed Bradford had information about an August 4, 2016
murder investigated by Sheriff’s Detective Blagg. Detective
Blagg was contacted, and he and his partner interviewed
Bradford later that same day. The recording of that interview
was timely disclosed to defense counsel. The August 4, 2016
shooting involved three cars on a mission for Grape Street; video
evidence placed Bradford in one of the cars. Bradford first told
42
the sheriffs a number of lies about where he had been headed and
why he was headed there. But after Detective Blagg told
Bradford what the sheriffs already knew about the shooting,
Bradford identified the gang members in the other cars.
Defendant Lewis was among the individuals he identified.
At some point later, Bradford was released, and he
participated in the Bowden and Arreola robberies.
C. The Disclosed Proffer Interview
On May 28, 2019, Bradford signed a proffer agreement, in
which he promised to “respond truthfully and completely to any
and all questions and inquiries that may be put to him at the
proffer meeting(s).” He gave a proffer interview conducted by the
district attorney and Detective Blagg that same date. The
recording of the interview was timely disclosed to the defense.
The district attorney began the interview by stating, “And the
most important part about today is that you tell us the truth.
And I’ve done these a number of times and I tell people, you
know, when you get interviewed by the police, we sort of expect
that a guy isn’t going to be totally honest at that point.” The
district attorney explained that the proffer was different, and
honesty was critical. Bradford was interviewed about a number
of crimes.
When Detective Blagg questioned Bradford about the
unrelated August 4, 2016, shooting, the detective said, “I know
that what we talked about, you may have held back just a little
bit back then. Now is the time for you to be straight up.”
Bradford then disclosed more information than he had told
Detective Blagg earlier. He admitted he may have participated
in the murder, saying, “See, I can’t even lie. I could’ve been
pointing. I don’t remember.” And, if Bradford had seen a Bounty
43
Hunter, “I would have pointed him out.” The district attorney
responded, “All right. See, that’s the honesty that I was asking
for.”
Bradford also discussed his participation in the Bowden
and Arreola robberies during this proffer interview.
D. The Disclosed Testimony in Another Case
On September 3, 2019, Bradford testified in a
manslaughter case against defendant Lewis (TA144866).35 This
testimony was given prior to the trial in the present case, and
was made available to defense counsel. At that trial, Bradford
admitted he had participated in the shooting by identifying the
victim for the shooter.36 He testified that, when he was first
interviewed by the sheriff’s detective on the subject, he did not
35 Defendant Lewis was charged with murder in that case, for
a shooting that was not the August 4, 2016 shooting. However,
the trial court permitted Bradford to testify as to defendant
Lewis’s involvement in the August 4, 2016 shooting as related to
his state of mind. (People v. Lewis, Apr. 15, 2021, No. B302108
[2021 WL 1423508].)
36 At trial in the current case, counsel for Gordon inquired of
the trial court if he could cross-examine Bradford on his changing
story with respect to this point – specifically, that Bradford first
lied to police, minimizing his role; then, in his proffer, said he
could not remember if he pointed out the victim; and, finally, at
Lewis’s trial in the manslaughter case, admitted that he had
pointed out the victim. The court denied permission, on the basis
of a pretrial ruling which was apparently designed to keep the
facts of the August 4, 2016 murder (in which defendant Lewis
was involved) from the jury. Defendant Gordon does not
challenge this ruling on appeal.
44
tell the detective the whole truth, but only pieces of the truth. He
testified that he told the whole truth at his proffer.
In cross-examination at the manslaughter trial by counsel
for defendant Lewis, Bradford was questioned about his initial
August 31 interview with authorities.37 The following exchange
occurred:
“Q You told a different story than you’re telling now,
which is a lie, correct?
“A Yes.
“Q So you sat in a room with two detectives, you looked
them in the eye –”
“A Yeah.
“Q --and you told them a story?
“A Yes.
“Q And now you come into court now and you look this
jury in the eye, and you expect them to believe you; is that what
you’re hoping for?
“A Everybody lies to the police.”
E. Additional Brady Materials
In addition to these interviews, the prosecution also timely
turned over Bradford’s criminal history and over 400 pages of
police reports relating to the August 4, 2016 shooting.
F. Analysis
At trial in this case, Bradford testified that he was acting
pursuant to his agreement with the prosecution, by which he was
getting a very good deal – 9 years in prison instead of life without
37 When asked by whom he was interviewed, he identified
both LAPD Detective Pearce and Sheriff’s Detective Blagg by
name. His testimony did not clarify that he was interviewed by
the detectives serially that day, not simultaneously.
45
parole. He testified that one of the charges to which he pleaded
guilty was murder. The details of his participation in the
robberies in this case obviously did not reflect favorably on him.
He had no dispute with Bowden, but participated in that robbery,
and even held a gun on the victim. He had no dispute with
Arreola, either; but when he saw Sherrills put Arreola in a
chokehold, rather than assist Arreola, he went into Arreola’s
pocket to steal his cash. In cross-examination, he freely admitted
that he lied when first interviewed by law enforcement on
August 31, 2016. Bradford explained that he was trying to get
released, and it did not work.
Having reviewed the entire history of Bradford’s interviews
with law enforcement, we conclude that under the standard of
review for Brady error, there is no “reasonable probability”
(Turner v. United States, supra, __ U.S. at p. ___ [137 S.Ct. at
p. 1888]) that, if Bradford’s initial interview with Detective
Pearce on August 31, 2016, had been disclosed, the result would
have been different. That Bradford was driven only by self-
interest was apparent. That he had lied to the police when he
thought there might have been something to be gained by lying
was not only something he expressly admitted at trial, but a fact
referred to by the district attorney and Detective Blagg in the
proffer interview, and addressed by Bradford’s testimony in
cross-examination in Lewis’s manslaughter case – all of which
were turned over to the defense. Defendant Gordon argues that
the interview provided critical impeachment testimony, stating,
“Evidence that Bradford lied to the police, profusely and on his
mother’s life, would have severely compromised his credibility,
more so than his participating in these and other violent crimes,
including murder.” We do not believe initially lying to the police,
46
particularly when followed by truthfully admitting participation
in murder, likely compromises a witness’s credibility more than
actually having participated in the murder. In any event, there
was compelling and plentiful evidence, including from Bradford
himself, that Bradford had initially lied to the police, repeatedly
and poorly. The police knew he was lying, caught him in the lies,
and slowly began obtaining the truth. Disclosure of the
additional details of those lies would have made no difference,
particularly as Bradford testified in Lewis’s manslaughter case,
“Everybody lies to the police.”
4. Sentencing Issues
Both defendants argue that SB 567, enacted while this
appeal was pending, requires remand for resentencing. (Stats.
2021, ch. 731, § 1, effective Jan. 1, 2022.) SB 567 amended
determinate sentencing law to provide that, when a defendant is
sentenced under a statute that provides three possible terms, the
court shall presumptively impose the middle term. (§ 1170,
subd. (b)(1).) “The court may impose a sentence exceeding the
middle term only when there are circumstances in aggravation of
the crime that justify the imposition of a term of imprisonment
exceeding the middle term, and the facts underlying those
circumstances have been stipulated to by the defendant, or have
been found true beyond a reasonable doubt at trial by the jury or
by the judge in a court trial.” (§ 1170, subd. (b)(2).) The court
may also consider prior convictions in determining the sentence.
(§ 1170, subd. (b)(3).)
Defendants argue, the Attorney General concedes, and we
agree that SB 567 applies to cases pending on appeal at the time
of its effective date. (People v. Flores (2022) ___ Cal.App.5th ___,
___ [2022 WL 2159020, p. *4].) However, remand for
47
resentencing is unnecessary if we conclude, beyond a reasonable
doubt, that the jury, applying the same reasonable doubt
standard, unquestionably would have found true at least a single
aggravating circumstance had it been submitted to the jury. (Id.
at p. __ [2022 WL 2159020 at p. *5].) This is particularly true
with respect to factors such as unsatisfactory performance on
probation, which can be demonstrated by court records. (Ibid.)
A. SB 567 Does Not Apply Retroactively to Lewis’s
Separate and Now-Final Manslaughter Case
Although SB 567 applies retroactively to this case, as the
defendants’ convictions were not final on the January 1, 2022,
effective date of the law, this is of no assistance to Lewis.
Lewis’s sentence in this case consisted of an indeterminate
term for the conspiracy to commit murder count, and consecutive
(1/3 the middle term) determinate terms on the robbery and
conspiracy to commit robbery. In short, Lewis did not receive a
high determinate term in this case.
Lewis does not really argue otherwise. What he asserts is
that because the trial court re-imposed Lewis’s sentence in the
earlier case as part of the overall sentence in the present case,
that reopened the once-final previous judgment. We disagree.
When a defendant is sentenced to a determinate term
consecutive to a determinate term previously imposed, the court
in the current case must “pronounce a single aggregate term, . . .
stating the result of combining the previous and current
sentences.” (Cal. Rules of Court, rule 4.452(a).) In the course of
doing so, “[t]he court in the current case must make a new
determination of which count, in the combined cases, represents
the principal term.” (Cal. Rules of Court, rule 4.452(a)(2).) When
Lewis was sentenced in the present case, the court did so,
48
reimposing the high term from the manslaughter case as the
principal term, and adding consecutive terms for the Bowden
robbery and Arreola robbery conspiracy in this case. Because the
trial court in this case reimposed the sentence in the
manslaughter case, Lewis argues that he is entitled to the benefit
of SB 567 with respect to that term. Under Lewis’s theory,
remand for sentencing in the current case is required so that the
trial court can take into account SB 567’s impact on the
lawfulness of the upper term imposed in the manslaughter case.
But a restatement of sentence in order to comply with the
aggregate sentencing statute is not a resentencing, and the
conviction in the manslaughter case was final before the effective
date of SB 567.38 (In re Rodriguez (2021) 66 Cal.App.5th 952,
957.) Accordingly, Lewis is not entitled to the benefits of
SB 567.39
B. Gordon is Not Entitled to Remand for Resentencing
Gordon received the high term for his part in the Bowden
robbery. That sentence from the current case is not yet final, and
Gordon is presumptively entitled to the benefits of Senate Bill
38 Our opinion in the manslaughter case was issued April 15,
2021. Lewis ultimately sought review by the U.S. Supreme
Court, and represents that certiorari was denied on December 6,
2021.
39 When defendant Lewis filed his opening brief in this case,
he reasserted other sentencing issues he had argued in the then-
pending appeal in his manslaughter case. He claimed he was
reasserting the arguments simply “not to procedurally forfeit” his
claims. As we have observed in the text, the appeal in his
manslaughter case is final. (People v. Lewis, supra, No. B302108
[2021 WL 1423508].) There is no reason to reconsider our opinion
in that case, and defendant Lewis does not suggest that there is.
49
No. 567. The trial court explained it was imposing the high term,
“not only based upon [Gordon’s] record and severity of the crime
and, again, the fact that the defendant was on parole for four
months when this matter was committed, and just the brazen
acts that were seen.” That a defendant was on parole at the time
of a crime is an aggravating factor identified in the Rules of
Court. (Cal. Rules of Ct., rule 4.421(b)(4).) We conclude, beyond
a reasonable doubt, that this factor would have been found true if
presented to the jury. There is no dispute that Gordon was on
parole at the time; in fact his counsel, out of the presence of the
jury, stated, “I believe that Mr. Gordon was on parole” when
discussing Gordon’s GPS ankle monitor. There is therefore no
need for remand.
Finally, Defendant Gordon also briefly argues for remand
due to an additional change in the determinate sentencing law.
Penal Code section 1170, subdivision (b)(6) provides that “unless
the court finds that the aggravating circumstances outweigh the
mitigating circumstances that imposition of the lower term would
be contrary to the interests of justice,” the court shall impose the
lower term if one of several factors was a contributing factor in
the commission of the offense. One of those factors is that the
defendant was a youth, as defined under section 1016.7,
subdivision (b) at the time of the offense. (§ 1170, subd. (b)(6).)
Section 1016.7, subdivision (b) defines a youth as being under 26
at the time of the offense; Gordon was under that age. Although
Gordon’s sentencing predated this statutory provision, Gordon’s
counsel requested the court “to take into consideration his youth”
in sentencing. The court denied Gordon’s motion to strike his
prior conviction, then rejected his request to not sentence to the
high term. The court relied on Gordon’s criminal record, the
50
severity of the crime, the fact that he was on parole for four
months at the time of the robbery, and the brazenness of the
offense. Although the court was aware of Gordon’s youth, there is
no suggestion that the court believed Gordon’s youth was “a
contributing factor in the commission of the offense.” Even if it
had made such a finding, the record is clear that the court would
have found the aggravating circumstances overwhelmed the
mitigating circumstance of his age.
DISPOSITION
The judgments are affirmed.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.
51