People v. Walker CA2/5 ( 2023 )

Filed 5/5/23 P. v. Walker CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B314597
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA466200)
v.
KEITH ALAN WALKER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Charlaine F. Olmedo, Judge. Affirmed in
part and reversed in part.
Janyce Keiko Imata Blair, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Yun K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
The jury found Keith Alan Walker guilty of two counts of
first degree murder for the killing of Clifford Benton and Warner
Stern (Pen. Code,1 § 187, subd. (a); counts 1 & 2), four counts of
assault with a semiautomatic weapon (§ 245, subd. (b); counts 3–
6), and one count of felon in possession of a firearm (§ 29800,
subd. (a)(1); count 8).2
With respect to counts 1 and 2, the jury found true the
special circumstances that Walker was an active participant in a
criminal street gang when he committed the murders (§ 190.2,
subd. (a)(22)), and the allegations that Walker committed the
murders for the benefit of a criminal street gang (§ 186.22, subd.
(b)(1)(C)). The jury also found true the special circumstance that
Walker committed multiple murders in both counts. (§ 190.2,
subd. (a)(3).) With respect to Benton’s murder (count 1), the jury
found that Walker personally discharged a firearm causing
death. (§ 12022.53, subd. (d).) As to Stern’s murder (count 2),
the jury found that Walker personally and intentionally
discharged a firearm. (§ 12022.53, subd. (c).) With respect to
counts 3 through 6, the jury found true the allegations that
Walker committed the crimes for the benefit of a criminal street
gang (§ 186.22, subd. (b)(1)(B)), and that he personally used a
firearm in the commission of the crimes (§ 12022.5, subd. (a)).
The jury found that the crime in count 8 was committed for the
benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(A).)
1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2 Count7 was alleged only as to codefendant Kejuan Moore,
who was tried separately. Walker was tried with codefendant
Chaz Maxwell. The jury acquitted Maxwell on all counts.
2
Walker admitted that he had suffered a prior serious felony
conviction within the meaning of section 667, subdivision (a), and
the “Three Strikes” law.
In count 1, the court imposed a term of life without the
possibility of parole, with consecutive terms of 25 years to life for
the firearm enhancement and five years for the prior prison term
enhancement, but stayed imposition of the attached gang
enhancement. In count 2, the court imposed a term of life
without the possibility of parole, with consecutive terms of
20 years for the firearm enhancement and five years for the prior
prison term enhancement, and again stayed imposition of the
attached gang enhancement. Walker was sentenced to four
consecutive terms of four years in counts 3 through 6 (one-third
the middle term of six years, doubled pursuant to the Three
Strikes law), but the court stayed all enhancements attached to
those counts. In count 8, the court imposed a concurrent high
term of three years, and stayed imposition of the gang
enhancement.
On appeal, Walker contends: (1) the trial court erred in
ruling that the prosecutor’s peremptory challenges to two
prospective jurors were race-neutral; (2) recently-enacted
Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333)
requires reversal of the gang enhancements (amended § 186.22)
and convictions (new § 1109); (3) the trial court erred by refusing
to instruct on third party culpability; (4) the prosecutor
committed misconduct in closing argument; and (5) the court
made various sentencing errors. The People challenge these
contentions. The People also argue that the abstract of judgment
must be amended to reflect the murder conviction in count 2,
which was omitted in error.
3
We affirm Walker’s convictions. We reverse the true
findings on the gang allegations (§ 186.22, subd. (b); counts 1–6 &
8) and the active participant in a criminal street gang special
circumstance allegations (§ 190.2, subd. (a)(22); counts 1 & 2),
and remand the matter to the trial court to afford the prosecution
an opportunity to retry the gang allegations and gang
participation special circumstance allegations under current law.
If the People do not retry the allegations, the court is instructed
to resentence Walker on the remaining counts and
enhancements. In either case, the trial court shall insure the
abstract of judgment properly reflects that the jury found Walker
guilty of murder in count 2.
FACTS
The Offenses
At approximately 1:50 a.m. on October 15, 2017, Walker
and several other members of the Rollin’ Hundreds Neighborhood
Crips (Rollin’ 100’s) street gang were injured in a shooting
incident that resulted in a car crash.
Sometime after 2:00 a.m., Walker called fellow Rollin’ 100’s
member Raivonn Dampeer and told him Scott Hutchins (aka
Baby Killa) had just been shot. Walker said he was in the car
with Hutchins and other Rollin’ 100’s members when someone
shot at the car. Walker asked Dampeer to meet him at the
hospital.
Dampeer met with Walker and Rollin’ 100’s members
Moore (aka Lil Kill Shot), Christopher Wheeler, Maxwell,
4
Keyvonta Gordon, Jesse Fuller (aka Hank), and “Uzi” in the
hospital parking lot.
Fuller and Gordon “ran the hood.” Fuller told the group
that “just based on Baby Killer had got shot, that we was going to
have to go back to the enemies territory, Eight Treys, and go kill
something.”3 By something, Fuller meant someone. The group
caravanned to “Steve O.’s” house in Rollin’ 100’s territory to
discuss what had happened and what they planned to do.
Fuller told everyone they were going to “slide on [their]
enemies,” which meant they would shoot their enemies. It was
decided that Walker and Moore were going to be the shooters.
Fuller designated Maxwell’s black Audi A7 as the lead car,
followed by Wheeler’s burgundy Nissan Maxima, and Dampeer’s
silver Honda Accord. Walker had a gun with him. Moore
grabbed a “neighborhood gun” that was stashed in the alley.
Fuller said they needed to pick up females, so Dampeer picked up
“Lady Toon” and “Little Lady Blue Flame” and brought them to
Steve O.’s house.
After Dampeer returned, the cars left together, with
Maxwell’s car in the lead, then Wheeler’s car, followed by
Dampeer’s vehicle. “Lady Thump” drove the black Audi, with
Maxwell, Uzi, and Walker as passengers. Walker was in the
back seat. Wheeler, Gordon, and Moore rode together in the red
Nissan, with Wheeler driving and Moore in the back seat.
Dampeer’s silver Accord was a decoy car to distract police if they
were pursued.
3 The Eight Trey Gangster Crips (Eight Trey) are the
Rollin’ 100’s biggest rival. Eight Trey claimed the area where the
Rollin’ 100’s were shot.
5
The group thought the Gardena Payback Crips, who are an
enemy of the Rollin’ 100’s, might have been responsible for the
shooting. They went to Gardena Payback Crips territory first,
but no one was outside, so Maxwell (with Lady Thump driving)
led them into Eight Trey territory.
They drove to 77th and St. Andrews Place, where they saw
three men smoking weed, and then stopped the cars at the
corner. Two of the men were wearing royal blue, which signified
that they were likely gangsters. Dampeer recognized one or two
of the men from an incident that occurred at the county building
on hood day.4
At the corner, Walker got out of the Audi and Moore got out
of the Nissan. They ran back toward the three men that they had
driven past. Walker and Moore were running fast with guns in
their hands. Dampeer lost sight of them, but he heard numerous
gunshots about six seconds later.
Assault victims Brandon Gray, Deric Jackson, and Walter
Brown were walking on St. Andrews Place between 77th Street
and 78th Street in Eight Trey territory about 11:30 a.m. on the
day of the shooting. They were on the sidewalk in front of a
house where three older men, including murder victims Stern
and Benton and assault victim Richard Skaggs, were sitting on
chairs eating barbeque together.
Two or three cars that appeared to be following each other
passed Gray, Jackson, and Brown traveling north. Jackson could
see the outline of three heads in the “middle car,” which was a
grayish color. The people in the middle car had their windows
rolled down and were staring at Jackson and his friends. The
4 The Rollin’ 100’s hood day is October 10th.
6
cars turned east at the corner. Gray and Jackson followed the
cars, but Brown stayed behind on the sidewalk.
As Gray and Jackson approached the corner, two men
began running towards them. Jackson recognized one of the men
as a passenger from the middle vehicle. Jackson “knew what
they was coming for” because he saw one of the men reach into
his waistband for a gun. One or both of the men yelled “Fuck
Tramps!”5 Gray, Jackson, and Brown heard multiple gunshots
and fled. As he was running, Jackson looked back and saw the
man he had seen with the gun stop at the garage where the older
men had been eating barbeque. Jackson then heard
approximately seven gunshots.
Alvenus Neptune, Benton, Stern, Skaggs, and a man called
“Danny Boy,” were barbequing when they heard gunshots. They
ran to try to find places to hide. Neptune saw two men run past,
followed by another two men who were walking and shooting
guns. The taller of the shooters shot at Stern twice. The other
man shot Benton five times. Benton raised his hands and said,
“No man, no man,” before the shooter shot him. Someone shot
Skaggs in the arm. As they walked away, the tall shooter
repeatedly directed expletives at the victims. Neptune believed
the shooting was “a hit” because the shooters walked together,
shot together, and then “walked off like they ain’t done nothing.”
The shooters walked back to the corner and turned right onto
77th Street.
After the gunshots stopped, Dampeer saw Walker and
Moore run back and get into the cars they had been in before.
5
Tramps is a derogatory word for Eight Trey gang
members.
7
The cars left in the same order in which they had arrived, and
went back to Steve O.’s house.
Subsequently, both Benton and Stern were determined to
have died of multiple gunshot wounds.
Additional Evidence
Body Camera Footage
An audio and video recording was obtained from a police
officer’s body camera at the scene of the shooting/car crash on
October 15, 2017 in which Hutchins and other Rollin’ 100’s
members were injured. Walker appears on the recording and can
be heard on a cell phone call telling someone: “Hey, hey, Baby
Killa just got shot, cuz. . . . [¶] Yep, the homies just got
shot. . . . Infant Trigg got shot too. A lot of homies just got
shot . . . . [¶] . . . Homegirl got shot. Yeah. We—we just all in
the car together just now, but then pull up on the side of us.
Yeah. [¶] Yeah. Nine—92. And they shot the homies. But I
don’t really bring it up. You know what I mean? [¶] And just
provide the shit, and we gonna do what we got to do. Just bring
some shit. Trust me. No, I don’t— (End).”
Witnesses
Gray
Los Angeles Police Department Detective John Flores
interviewed Gray at the police station on the day of the shootings.
Gray described the shooter he saw at the corner as “heavy-set.”
8
The heavyset man started shooting at them first. The heavyset
man had been in the front passenger seat of an older gray Honda,
and the other man was in the back seat behind the driver.
The heavyset man was about five feet eight or nine inches
tall and weighed between 240 and 280 pounds. He had “chubby
cheeks,” and his skin tone was lighter than Gray’s. Gray thought
the heavyset man looked like someone he had seen before at the
county building that was located in Rollin’ 100’s territory on hood
day. The man had designs related to the Rollin’ 100’s on his
head. He was with a friend and “being ghetto.”
The second shooter was a little shorter than the heavyset
man. He was also heavy, had a similar skin tone, and his hair
was nappy.
The heavyset man’s gun was black and appeared to be a
Smith and Wesson .45 millimeter. The other man’s gun was a
.9 millimeter. The heavyset man said, “Fuck Tramps.” Gray and
his friends did not “gangbang.”
Detective Flores showed Gray a photographic six-pack
including Dampeer, but Gray did not identify Dampeer as
someone involved in the shooting.
Brown
The detective also interviewed Brown on the day of the
shootings. Brown included a few details that he could not later
recall at trial. He stated that he and his friends were talking to
the older men on St. Andrews Place when he noticed a gray 2000
Honda Accord driving by with three people inside who were
looking at them. Brown commented to his friends, “Y’all see
them looking? Y’all see them? They look kind of suspicious.”
9
Andrew McPherson
On the day of the shooting, McPherson heard six to seven
gunshots coming from the corner of 77th Streat and St. Andrews
Place. McPherson had noticed a red car stopped near 1858 77th
Street about three to five minutes earlier. He went out on his
porch after hearing the shots and saw two young men running.
The men came from St. Andrews Place heading north, turned
east on 77th Street, and got into the red car. One man got into
the front passenger seat, and the other man got into the back.
McPherson did not see the driver.
Dampeer
In December 2020, after Walker, Moore, Wheeler, Maxwell,
and Dampeer were charged in this case, Dampeer entered into a
plea agreement with the prosecution. Dampeer pleaded guilty to
two counts of voluntary manslaughter and was sentenced to
15 years in state prison. He testified for the prosecution in
Walker’s trial.
Dampeer joined the Rollin’ 100’s when he was 18 years old.
Walker and Maxwell were also members of the Rollin’ 100’s.
Dampeer’s gang moniker was T-Loc. He was named “under” Big
T-Loc. Dampeer explained the moniker prefix indicates the
member’s place in the hierarchy: Big, little, baby, tiny, and
infant. In gang culture if your big homie gets shot, you shoot for
him. Walker’s moniker was Infant Killer, under “[a]ll the killers
from big to tiny,” including Baby Killa, which was Hutchins’s
moniker. Moore (aka Little Killshot) was also under Hutchins
whose other moniker was Big Killshot. Maxwell’s moniker was
10
Baby Knuckles or K3. They identified as Block Crip, and Eight
Trey was their enemy.
After the shootings, Dampeer heard Fuller say to Walker,
“Oh, you niggas did some weird shit, y’all killed some old man.”
(9RT 4510)~ Walker replied, “Fuck them niggas, they live in the
Tramps anyway.”
Moore admitted to Dampeer that he shot the old men and
said, “ Cuz on Block Crip we did.” “Whoopty, whoopty, woo,”
which meant “who gives a fuck.” Moore said he saw Walker kill
one of the men and then decided to shoot with him. Moore said,
“Cuz, I did my shit on both of them,” meaning he and Walker
killed the two men.
Maxwell asked Dampeer to drive behind him as a decoy so
Maxwell could dispose of the gun, but Dampeer refused because
he knew it was the murder weapon. Maxwell later told Dampeer
that he got rid of the gun at the Santa Monica Pier.
Sometime before his arrest, Dampeer was in an accident
and totaled his car. Wheeler told Dampeer that he sold his car.
Dampeer was not truthful with the detectives when he was
first arrested, but he spoke with his grandmother on the phone
several times and decided to tell the truth. The detectives told
Dampeer that they could not offer him anything at that time, but
Dampeer decided to be honest.
Dampeer had concerns about testifying because Walker
had asked him not to testify and then threatened him that he
still had “pull on the streets [and] . . . can get whatever done that
[he] need[ed] to get done.”
11
Vehicles Involved in the Shooting
Officers canvassed the area and identified the vehicles
involved in the crimes from several surveillance videos that
showed three cars—a black Audi A7, a red Nissan with a black
bumper, and an older gray Honda Accord—traveling together at a
high rate of speed between 11:15 a.m. and 11:30 a.m. on the day
of the shootings.
Detective Flores conducted a traffic stop of a gray Honda
Accord on September 8, 2017. A photo of the stop showed that
Dampeer was the driver. After Dampeer was arrested, a photo of
the gray Honda Accord was found on his phone.
Los Angeles Police Officer Mark Rakitis conducted a traffic
stop of a red Nissan Altima on October 28, 2017. Wheeler was
the driver, and the car was stopped in Rollin’ 100’s territory.
Surveillance and body camera video of the traffic stop depicted
Fuller exiting the front passenger side door. Basim Freeman and
Leodis Johnson were adjacent to the car. Wheeler and Johnson
had gang-related tattoos.
At trial, the parties stipulated that the black Audi A7
belonged to Maxwell. Surveillance video from a strip mall
depicted Dampeer and Maxwell interacting on October 23, 2017.
They left the mall together in the black Audi.
Jail Calls
On November 1, 2017, Walker, who was detained in
another matter, spoke with Hutchins in a recorded jail call.
Walker told Hutchins, “I made it look good for you.” Hutchins
responded, “You made it look good for yourself, nigga. What the
12
fuck you talking about you made it look good for me? I went to
the hospital.” Walker said, “Me and that nigga [Moore], cuz.
That nigga went up for the—you know?” Hutchins said he knew.
He was interrupted by an automated operator advising him that
the call was being monitored and recorded. Hutchins continued,
“You don’t even need to talk about it over the thing, bro. Later,
Hutchins again warned Walker, “Like—I said, you gotta watch
what you be doing and saying sometimes. Like, your ass is over
there talking in front of the police when the shit happened and
all that.” Walker explained that he was angry at what happened.
Walker told Hutchins that a person called Gedasee told Fuller
that he wasn’t giving him any guns “that night.” Hutchins again
reminded Walker that the call was monitored and recorded.
On February 1, 2018, when Walker was incarcerated in
another matter, detectives questioned him about the shooting of
the Rollin’ 100’s around 1:50 a.m. on October 15, 2017. They
showed him a photo of Moore. In Walker’s next phone call he
asked a person named Kiara to get in touch with “Two Face” and
tell him to “lay low.” Walker said he did not want to say the
person’s name “because they watching me right now, cuz, they
just came and interviewed me and shit.”
In another jail call, Walker gave the person he was
speaking with Moore’s phone number. Investigators traced the
number to an account opened by Moore on October 18, 2017.
Social Media and Cell Phone Evidence
Moore had a conversation with “Princess Trin” (Trin) on his
Facebook account at 3:00 a.m. on October 15, 2017. Trin asked
what was wrong and Moore answered, “Big Ks got hit, cuhk I’m
13
trippin.’ ” They talked about Hutchins being in the hospital.
Moore then said that the “homies” were on their way right now.
Moore wrote, “[P]ray somebody gonna die. I ain’t Killshot #2K for
no reason bcg.”
In a Facebook conversation at 4:24 a.m. on October 15,
2017, Moore wrote, “The homies got shot.” “Cuhk, I’m trippin’ my
bh, the one who name I got, is one of them, Rollin’ Crip.” “Fuck
all at. Somebody gone die bcg.”
Moore and Trin had a conversation on Facebook at 5:25
a.m. on October 15, 2017. Trin asked what Moore was doing that
day and Moore responded, “shoot shit.” Trin responded, “[S]top
tellin’ on yoself,” and Moore answered, “Don’t care.”
Moore’s Facebook and Instagram accounts contained photos
of him with Wheeler, Freeman, and Walker.
Maxwell’s Instagram account included a video of him that
was uploaded on April 23, 2017, rapping in front of a wall with
the graffiti “Welcome to the Hundred’s” written on it. Dampeer
was in the video wearing a gray hoodie, and Walker and a woman
appeared in the video holding guns. A photo of Hutchins was
uploaded on Maxwell’s Instagram account on October 24, 2017.
Walker’s Instagram account included a photo of Walker
and Moore throwing gang signs in which Moore appeared to be
much taller than Walker.
Hutchins’s social media accounts included a post of him in
a hospital bed with a neck injury. There was also a photo of
Hutchins and Walker.
Fuller’s Facebook account listed him under the name Hank
Fuller. There were photos posted of Fuller throwing gang signs
with Wheeler, Maxwell, and Moore. In a Facebook conversation
on October 15, 2017, Fuller wrote “Baby Killer got shot twice in
14
the neck.” Fuller listed “Baby Killa, Lady Blxoctober, Infant
Triggs, and Cragg” as people who were shot.
On October 15, 2017, between 1:53 a.m. and 2:27 a.m.,
Walker’s cell phone communicated with cell sites in the area of
the car crash/shooting incident. Later that day at 11:22 a.m.,
Moore’s cell phone was in the area of the crime scene on 77th
Street. Between 1:00 a.m. and 12:00 p.m, Walker’s cell phone
communicated with Gordon’s cell phone 10 times, with Moore’s
cell phone nine times, with Dampeer’s cell phone seven times,
and with Fuller’s cell phone once. Cell phone records showed
communications between other Rollin’ 100’s members who were
allegedly involved in the offenses during the same time period.
Wheeler’s Statements to an Undercover Agent
On March 8, 2018, Moore, Wheeler, Dampeer, and Maxwell
were arrested. Detective Flores put Wheeler in a cell with an
undercover agent and recorded their conversations.
Detective Flores arranged to have Moore walk by Wheeler’s
holding cell. As he did, Wheeler whispered to the agent, “We
protecting him. We protecting the little cuz. The little one is the
shooter.” “We not the shooter. He is.”
Wheeler was surprised that they were arrested because
they “cleared” the cars and the pistols. The gun belonged to
Wheeler’s “big homie[ ],” who disposed of it afterwards. “Soon as
[Wheeler] got the word,” Wheeler told one of the other drivers,
who totaled his car. Wheeler sold his vehicle. “The other . . . I
don’t know what he did, but he gone, so it cleared us off the map.”
Wheeler thought they had to have been arrested because of their
15
cars, though—he and another “homie” who was arrested were the
only ones who had cars registered in their names.
After the “homie” got shot in the neck, Wheeler “and the big
homie, . . . we double up, triple up cars. And we go take the
young homies and bust on a Tramp nigga in the Tramps.” When
they saw the Tramps, five or six of them passed by.
Detective Flores also had Maxwell walk in front of
Wheeler’s holding cell. Wheeler told the agent that Maxwell was
arrested because he was driving the car in front. Wheeler
indicated that Maxwell was not a shooter. He did not think that
Maxwell would talk to the police because he did not see or do
anything. Wheeler “didn’t even see who laid it out.” He heard
the sound of the shots and “[t]hey come, bro, back to the car.”
Wheeler told the agent that the police had one young man
in custody in connection with another matter. The agent asked if
Wheeler thought the young man snitched. Wheeler responded, “I
think they asked him first, on everything.”
Wheeler told the agent that “it was a pile of us in each car”
and “they not getting everybody.” Wheeler said, “Big homies told
me at first gray. He said gray, burgundy, black, black, gray,
burgundy.” Wheeler said “the little nigga” did not have a car and
hopped in with him.
Wheeler said the only evidence the police had “was a couple
of shells on the ground with a dead man.” There were no
cameras on the corner. When the agent suggested that their
names might have come up on Facebook, Wheeler agreed. He
said, “Oh, only thing y’all probably heard was the Eight Treys
and the 100s is beefin’. Oh, somebody came and smacked us. Oh,
a red or a burgundy or a silver car. Oh. Oh, fool, Blocc got those
16
cars. Oh, them three niggas. Oh, let’s pull them in and see if
they give each other up.”
DISCUSSION
Peremptory Challenges
Walker contends that the trial court erred in ruling that
the prosecutor provided race-neutral reasons for her peremptory
challenges of Prospective Jurors Nos. 17 and 71, who were both
Black females.6 Walker first argues that Assembly Bill No. 3070
(2019–2020 Reg. Sess.) (Assembly Bill 3070), which rendered
presumptively invalid several justifications offered to support
peremptory challenges, applies retrospectively to his case.
Alternatively, Walker argues that we should consider the reasons
that the prosecutor gave in support of her peremptory challenges
under People v. Wheeler (1978) 22 Cal.3d 258 and Batson v.
Kentucky (1986) 476 U.S. 79, which were controlling precedent at
the time of Walker’s trial, in the context of Assembly Bill 3070
and Assembly Bill No. 2542 (2019–2020 Reg. Sess.) (Assembly
Bill 2542), regardless of whether either bill applies in his case.7
Finally, Walker argues that the reasons given were not race-
neutral under a Batson/Wheeler analysis, even if Assembly Bill
3070 is inapplicable. The arguments lack merit.
6 Both Walker and codefendant Maxwell are Black.
7 Walker does not assert that Assembly Bill 2542 is
applicable, only that Batson/Wheeler should be considered in
light of its passage.
17
Assembly Bill 3070 and Code of Civil Procedure
Section 231.7 Do Not Apply to Walker’s Case
Assembly Bill 3070 added section 231.7 to the Code of Civil
Procedure. The statute sets forth a procedure by which a
defendant may object to a prosecutor’s peremptory challenges,
when made on the basis of “race, ethnicity, gender, gender
identity, sexual orientation, national origin, or religious
affiliation, or the perceived membership of the prospective juror
in any of those groups.” (Id., § 231.7, subd. (a).) The legislation
renders presumptively invalid several grounds for peremptory
challenges. (Id., § 231.7, subd. (e).)
Walker contends that Code of Civil Procedure section 231.7
is an ameliorative change in the law that applies to his case
retroactively under In re Estrada (1965) 63 Cal.2d 740. We
conclude that, regardless of whether Assembly Bill 3070 applies
retroactively to cases not yet final on appeal under In re Estrada,
section 231.7 does not apply to Walker’s case. Section 231.7,
which became effective on January 1, 2021, expressly states that
its provisions apply to trials in which jury selection began on or
after January 1, 2022. (Code Civ. Proc., § 231.7, subd. (i).) As
Walker concedes, jury selection in his trial began on June 28,
2021, before section 231.7’s provisions became operative. Thus,
the plain language of Code of Civil Procedure section 231.7
precludes its application here.
18
The Batson/Wheeler Analysis is Unaffected by
Assembly Bill 3070 and Assembly Bill 2542
Walker’s argument that the Batson/Wheeler analysis
should be viewed in the context of Assembly Bill 3070 and
Assembly Bill 2542 regardless of whether either bill directly
applies also fails.
With respect to Assembly Bill 3070, our Supreme Court has
declined to adopt the enactment of Assembly Bill 3070 as a basis
for reconsidering the Batson/Wheeler line of precedent in cases
like Walker’s where Batson and Wheeler were controlling at the
time of the defendant’s trial. (People v. Battle (2021) 11 Cal.5th
749, 776, fn. 9.)
Assembly Bill 2542, known as the California Racial Justice
Act of 2020 (the Racial Justice Act), added section 745 to the
Penal Code, effective January 1, 2021. The statute prohibits the
state from seeking or obtaining a criminal conviction or seeking,
obtaining, or imposing a sentence “on the basis of race, ethnicity,
or national origin.” (§ 745, former subd. (a)) At the time of
Walker’s trial, section 745’s provisions were applicable in cases
where the judgment had not been entered prior to January 1,
2021. (Id., subd. (j).) The judgment was entered in Walker’s case
on September 2, 2021. The statute therefore applied, and
provided Walker an opportunity for relief independent of
Baston/Wheeler. At that time, relief under section 745 could be
sought by motion prior to the entry of judgment or, if judgment
had been entered, by petition for writ of habeas corpus. (§ 745,
subd. (b); § 1473, subd. (f).) Walker forfeited any argument
regarding Assembly Bill 2542 by failing to file a motion with the
trial court pursuant to section 745, subdivision (b).
19
The Trial Court Did Not Err in Finding the
Prosecutor’s Reasons for Peremptory Challenges Race-
Neutral Under Batson/Wheeler
Finally, Walker argues that the prosecutor’s stated reasons
for her peremptory challenges were not race-neutral under
Batson/Wheeler. We reject this argument as well.
In People v. Wheeler, supra, 22 Cal.3d at pages 276 to 277,
the California Supreme Court held that a prosecutor’s use of
peremptory challenges to strike prospective jurors on the basis of
group membership violates a criminal defendant’s right to trial
by a jury drawn from a representative cross-section of the
community under article I, section 16 of the California
Constitution. Batson v. Kentucky, supra, 476 U.S. at page 97
held, among other things, that such a practice violates a
defendant’s right to equal protection of the laws under the
Fourteenth Amendment of the United States Constitution. The
Batson/Wheeler principles apply to peremptory challenges
excusing jurors improperly on the basis of race, gender, or ethnic
grounds. (United States v. Martinez–Salazar (2000) 528 U.S. 304,
315; People v. Willis (2002) 27 Cal.4th 811, 813–814.)
The standard for reviewing a Batson/Wheeler motion is
well established. State and federal constitutional authority
imposes a three-step inquiry: “First, the trial court must
determine whether the defendant has made a prima facie
showing that the prosecutor exercised a peremptory challenge
based on race. Second, if the showing is made, the burden shifts
to the prosecutor to demonstrate that the challenges were
exercised for a race-neutral reason. Third, the court determines
whether the defendant has proven purposeful discrimination.
20
The ultimate burden of persuasion regarding racial motivation
rests with, and never shifts from, the opponent of the strike.”
(People v. Lenix (2008) 44 Cal.4th 602, 612–613.)
Where, as here, “the trial court found a prima facie case of
racial discrimination and the prosecutor stated a reason for the
strikes at issue, the question before us is whether defendant has
shown it ‘ “more likely than not that” ’ at least one of the
‘ “challenge[s] was improperly motivated.” ’ [Citations.] ‘The
existence or nonexistence of purposeful racial discrimination is a
question of fact.’ [Citation.] [¶] The answer to this factual
question will ordinarily depend ‘on the subjective genuineness of
the race-neutral reasons given for the peremptory challenge.’ ”
(People v. Baker (2021) 10 Cal.5th 1044, 1076.) The “force of the
justification is significant only to the extent that it informs
analysis of the ultimate question of discriminatory motivation.”
(Id. at p. 1077.) “Given this framework, a trial court’s ruling on
that ultimate question is ordinarily reviewed with deference.”
(Ibid.) “Thus, ‘[w]hen the trial court makes a sincere and
reasoned effort to evaluate the [proffered] reasons, the reviewing
court defers to its conclusions on appeal, and examines only
whether substantial evidence supports them.’ ” (Ibid.)
Prospective Juror No. 17
Proceedings
On her juror questionnaire, Prospective Juror No. 17 stated
that she was single, unemployed, and studying to become a
veterinarian. She indicated she had either good or bad
experiences with police, but did not state which and did not
21
provide further explanation. She had no friends or family
members who were police. She had a family member or members
who had been arrested, which resulted in “[j]ail time.”
Prospective Juror No. 17 stated that she had “fought [people]
before.” She indicated she could be impartial and fair regarding
gang and firearm evidence presented at trial.
The court questioned Prospective Juror No. 17 regarding
her family members who had been arrested. Prospective Juror
No. 17 stated that her father and some cousins had been
arrested. The court asked whether those experiences would
impact her ability to be fair in this case. Prospective Juror No. 17
responded, “To be honest with you, I’m not sure. I’m not, like—I
don’t really—that’s—honest answer, I don’t really know, yeah.”
Prospective Juror No. 17 stated she could judge a police officer
under the same standard as any other witness. There was a
single incident in which she fought another person, and the police
were called, but no charges were filed. Prospective Juror No. 17
stated that she could be fair to both parties in the case. She
informed the court that she had a scheduled surgery she
“need[ed] to attend” that might conflict with the trial.
Later, the prosecutor addressed the potential jurors, “I
know the judge has said this, but you are not in charge of
punishment. If you were to convict in this case, punishment is
not something you can even consider. You can’t consider
punishment when you’re deciding guilty or not guilty, period. It
cannot enter into the equation.”
The prosecutor then inquired, “Is there anyone here—for
whatever reason, whether it’s because you had a family member
who has been incarcerated or because you have expressed beliefs
that you believe the system is not a good system, is there anyone
22
who believes they cannot set aside that issue of punishment, that
it will be on their mind and no matter what I do, no matter what
evidence I put on, no matter what I prove, you will not be able to
convict because you will be so concerned about that issue of
punishment?”
Several jurors indicated that they could not set aside the
issue of punishment. The prosecutor continued, “I appreciate
your honesty. The judge is going to tell you you can’t consider it,
and you’re saying very clearly I will. [¶] Is that fair to say? [¶]
Let me start with you, Juror No. 17.”8
“Prospective Juror No. 17: I just want to understand. So if
we come back—if I’m on the jury and we come back with a
guilty—they’re guilty, is that what it is? If we come back and say
they’re guilty, they’re guilty.
“[Prosecutor]: If you have heard all the evidence, you’re on
the jury, we’ve given closing arguments and the judge has
instructed you on the law, which you don’t know any of at this
8 Although Walker asserts that Prospective Juror No. 17
was not among the prospective jurors who indicated they would
not be able to convict due to concerns about punishment, we do
not find the record to be so clear. The prosecutor read out the
numbers of several prospective jurors who answered
affirmatively. Although Prospective Juror No. 17 was not in that
list, the prosecutor indicated that she would try to question
people who expressed an inability to separate punishment and
guilt in numerical order. She then said, “Let me start with you,
Juror No. 17.” If Prospective Juror No. 17 had not raised her
hand the prosecutor would have had no reason to address her.
Regardless, in questioning Prospective Juror No. 17 expressed
her concerns about punishment and indicated that she could not
separate punishment from guilt.
23
point, you go into the jury room, you deliberate and you all agree
on a verdict, then that verdict is guilty.
“Prospective Juror No. 17: So then from there, the judge
proceeds with what punishment?
“[Prosecutor]: The judge will decide what punishment.
“Prospective Juror No. 17: So in a way we are responsible
for the punishment they’re getting because we’re giving the guilty
verdict?
“[Prosecutor]: You’re not.”
“[Prosecutor]: It’s not about responsibility. It’s about what
your role is. And I think what you’re telling me, Juror No. 17, is
that you will feel responsible—
“Prospective Juror No. 17: Yes.
“[Prosecutor]: —for what happens after.
“Prospective Juror No. 17: Correct.
“[Prosecutor]: Is that what you’re telling me.
“[Prospective Juror No. 17]: Correct. I feel if I’m making
that decision and that decision is on me to say whether they’re
guilty or not, whether I’m a part of choosing their punishment for
however long they’re supposed to be incarcerated, I’m still
putting them in that place that they are going to be incarcerated
for whatever they’ll get.
“[Prosecutor]: I appreciate that. . . . Do you believe that
your feeling of responsibility in that—
“Prospective Juror No. 17: Uh-huh.
“[Prosecutor]: —will prevent you from giving both sides a
fair trial? And that includes the prosecution.
“Prospective Juror No. 17: I don’t want to say no entirely
because I haven’t heard your side or what happened to the victim
per se, but I can’t sit here and say that entirely yes, that I would
24
be—I mean, I’ll be honest with you. I really don’t know. I’m
siding more so with the defense just being here, just an emotional
standpoint.
“And also being an African-American seeing fellow African-
American people sit there and then knowing what’s going on in
the country, I am more on the defense side. I do want to give
your side a chance to explain what happens and be fair on that
end, but I do have my own thoughts and emotions about that.”
“[Prosecutor]: So it sounds like—it also sounds like—you
raised a couple of issues, obviously the issue of the race of the
defendants.
“Prospective Juror No. 17: Uh-huh.
“[Prosecutor]: The issue of feeling responsible for what
happens next.
“Prospective Juror No. 17: Exactly.
“[Prosecutor]: It seems as if me saying or the court saying
that you can’t consider those things really isn’t going to stop you
from considering those things.
“Prospective Juror No. 17: Yeah. And I mean, because—I
get there is a law, but I also get I have to do what I feel is right
toward my own beliefs and morals, too, despite what the law
might be. Sometimes it’s not always right, and then I also have
to think about, too, they are—like you said, the social issues.
They are African-American men, and I am an African-American
woman.
“Seeing—putting fellow African-American men in the
prison system as the other person—it’s not the best system to be
a part of. So that’s in my mind, too, thinking on that part. Do I
want to be a part of that?”
25
The court then addressed Prospective Juror No. 17, “I
explained jury nullification, which is voting how you feel and
disregarding the law. That’s improper. You can’t do that. It’s
juror misconduct. And then there is following the process and the
law that I do give you and considering your own experiences
within that. [¶] So we need to know which one is what you will
engage in. I’m not here to tell you which you should. But do you
believe, because of the things you mentioned, that you would just
disregard the law that I give you and vote however you felt was
appropriate? Or you would follow the law that I give you but
bring into play your own life experiences?”
“Prospective Juror No. 17: I wouldn’t disregard the law,
but I will say I’m not—I more so would just have to listen. I can’t
sit here and say I’m going to go ahead and say that’s what the
law says, that’s what needs to be done. Like, I said, the law isn’t
always right. It doesn’t always cater to everybody. I honestly
just don’t know.”
The court explained that the jurors could not correct the
law in court, they must correct the law by voting for legislators
who would represent their views. The court reiterated that if
selected as a juror, Prospective Juror No. 17 would be required to
follow the law as instructed. The court stated, “Now, that doesn’t
mean you disregard your own life experiences, but you can’t
disregard the law. Okay?” Prospective Juror No. 17 responded,
“Uh-huh.” The court then asked if any jurors did not understand.
There is no indication in the record that Prospective Juror No. 17
raised her hand.
Later, the prosecutor requested that Prospective Juror No.
17 be removed for cause. The prosecutor stated, “I think she
really wants to try to be fair but that she ultimately described,
26
you know, only being able to follow the law if she agrees with the
law. That’s my biggest concern with Juror No. 17. [¶] She also,
when I followed up a second time with the question about
punishment, was clear that she would not be able to decide the
case without considering punishment. And we talked about both
of those issues at length, and I think ultimately she indicated
that she would not be able to do those things. She also said she
would side with the defense.”
After the court declined to remove Prospective Juror No. 17
for cause, the Prosecutor exercised a peremptory challenge
against the prospective juror. Defense counsel made a
Batson/Wheeler objection.
The prosecutor explained her reasons for the peremptory
challenge, Prospective Juror No. 17 “repeatedly said she could
not be fair. She said she sided with the defense; that she has—
when she was younger, on multiple occasions, fought people; that
she has family who [have] been arrested and in jail; that she
cannot put aside the issue of punishment when determining the
issue of guilt; that she would follow the law if she agrees with it
but she does not believe that the law is always right and,
therefore, she can’t always follow it.”
Defense counsel countered that fighting, or having family
arrested or in jail was not related to a person’s ability to follow
the law. Counsel asserted the prosecutor’s grounds were proxies
for race.
The prosecutor responded, The “reason I mentioned family
members having been in and out of jail is because she said she
would not be able to set aside the issue of punishment when
determining the issue of guilt.” The prosecutor emphasized that
the issue had nothing to do with race.
27
The court accepted the prosecutor’s reasons as race-neutral,
stating, “It is about jury nullification and that did concern the
court as well, not to the extent it rose to [a] challenge [for cause]
but certainly as far as a proper exercise of a peremptory. [¶] She
did indicate that she would feel compelled to vote her conscience
and she wasn’t sure she could follow the law if she felt the law
was an immoral law, to paraphrase—to paraphrase her words.
[¶] On that basis, the court finds it to be a race-neutral exercise
of [a] peremptory” challenge.
Analysis
Substantial evidence supports the trial court’s
determination that the prosecutor’s stated race-neutral reasons
for her peremptory challenge of Prospective Juror No. 17 were
credible and genuine, and that in light of the total circumstances
there was not a showing of purposeful discrimination.
Prospective Juror No. 17 was given multiple opportunities
to clarify both her position on the separation of guilt and
punishment and her position on following the law as given. Each
time, she ultimately reiterated that she was at best uncertain
regarding her ability to separate guilt from punishment and to
follow the law as instructed, despite admonitions from the
prosecutor and the court that jurors were required to determine
guilt separately from punishment and to follow the law
regardless of their personal opinions. Walker places great
emphasis on the fact that when the trial court gave a final
admonition to Prospective Juror No. 17 that jurors must comply
with both requirements if empanelled and asked if she
understood, Prospective Juror No. 17 responded, “Uh-huh.”
28
Walker also emphasizes that Prospective Juror No. 17 did not
raise her hand when the court asked if any jurors did not
understand what the court had said to Prospective Juror No. 17.
We do not take Prospective Juror No. 17’s indication that she
understood what the court had just said to her as agreement that
she would follow the court’s instructions under the circumstances
of this case. If the juror had not made repeated contrary
statements, her acknowledgment that the court expected her to
follow the law and not consider punishment might have been
sufficient to demonstrate that she would do so. Here, however,
Prospective Juror No. 17 had indicated multiple times that she
understood what the law required but could not say for certain
that she would follow the court’s directions or disregard
punishment if seated on the jury. Substantial evidence supports
the conclusion that the prosecutor’s articulated race-neutral
reasons for her peremptory challenge were credible and genuine.
Prospective Juror No. 71
Proceedings
On her juror questionnaire, Prospective Juror No. 71 stated
that she was a psychologist. She had family members in law
enforcement. Neither she, her family members, or close friends
had been arrested. She was a witness to an incident in which a
woman was attacked by a group of people, and she reported the
incident to the police. Prospective Juror No. 71 had one friend
who had been involved in a domestic violence incident, but the
prospective juror was not personally involved in the incident.
Prospective Juror No. 71 indicated she could be impartial and
29
fair regarding gang and firearm evidence presented at trial.
With respect to whether there was anything further that she
would like the court and parties to know that might affect her
ability to be fair and impartial in this case, she said that she has
a lot of research on trauma and violence.
During voir dire, Prospective Juror No. 71 asked for a
sidebar to address issues regarding her questionnaire responses.
She explained, “I wasn’t aware the information on here that was
going to be disseminated. I have personal information on here
that could be easily identifiable as far as where I live, where my
husband works and I just—I wanted to ask a question about that
because I felt like my anonymity could be blown.” Prospective
Juror No. 71 indicated that she was concerned about her personal
information being shown to the defendants due to the nature of
the case. Counsel agreed not to share Prospective Juror No. 71’s
questionnaire with the defendants.
Maxwell’s counsel inquired whether Prospective Juror
No. 71 would have trouble sitting on the jury because she would
be worried about her safety. Prospective Juror No. 71 responded
that she had asked for the sidebar due to her concern. Counsel
then said, “I see your anxiety. I’m just trying to figure out if
telling—if this—what the judge has ordered [(that counsel not
share the prospective juror’s questionnaire responses with
defendants)] is going to allay your concerns or if, no matter what,
you’re still going to feel like this.” Prospective Juror No. 71
responded, “I don’t know. If you asked me right now, I still feel
pretty anxious.”
The prosecutor asked, “Is it fair to say just sitting on a case
like this will cause you anxiety or concern?” Prospective Juror
No. 71 answered, “I’m typically very anxious, so probably.” The
30
prosecutor then asked whether Prospective Juror No. 71’s anxiety
would affect her verdict or if she would fear retaliation.
Prospective Juror No. 71 responded, “I don’t know if I can
actually answer that at this moment just because I’m in a pretty
heightened state. If I was to say—if I had to give an answer now,
yes. But after thinking about it, I could probably change my
mind.” Prospective Juror No. 71 explained that she had not
become anxious about the case when the charges and allegations
were read. It was only when she started to think about the
implications of her personal information being shared that she
became concerned.
Earlier in voir dire, a different prospective juror—
Prospective Juror No. 74—indicated that it would be very
difficult for her to consider the evidence in a manner that was
fair and impartial to both sides due to her concerns regarding
social justice. Her views would not be changed by knowing that
both the defendants and the victims were Black because her
concern regarded “how the system works with people from certain
populations.” She stated that the fact that the jury decided
whether a witness was credible and whether the case had been
proven did not change her perspective. She informed the court
and the parties, “Whatever the evidence is, I’m going to feel
conflicted.”9
The prosecutor asked whether Prospective Juror No. 71
had agreed with statements Prospective Juror No. 74 made about
feeling conflicted and not liking the criminal justice system. In
9 The court later excused Prospective Juror No. 74 for cause
because she indicated that she could not be fair. Prospective
Juror No. 74 was not Black.
31
response to the prosecutor’s query, Prospective Juror No. 71
explained that as a psychologist she could understand
Prospective Juror No. 74’s perspective, but she would not have a
hard time being fair herself.
Prospective Juror No. 71 requested that the court redact
the information regarding her spouse’s occupation. Both sides
stipulated to the redaction. Prospective Juror No. 71 also
informed the court that she had potential scheduling conflicts.
Later in voir dire, the prosecutor asked, “Is there anyone
here—for whatever reason, whether it’s because you had a family
member who has been incarcerated or because you have
expressed beliefs that you believe the system is not a good
system, is there anyone who believes they cannot set aside that
issue of punishment, that it will be on their mind and no matter
what I do, no matter what evidence I put on, no matter what I
prove, you will not be able to convict because you will be so
concerned about that issue of punishment?”
Prospective Juror No. 71 identified herself as someone who
could not put punishment aside when determining guilt.
The prosecutor requested that Prospective Juror No. 71 be
removed for cause, “Number 71, I think she just was very
afraid—not just some of the issues that came up today. For
example, she indicated that she could not—I hate to use the
double negative—not not consider punishment when determining
guilt. She had a lot of fears yesterday about her questionnaire,
concerns that I think could cut both ways in the trial as to both
sides. [¶] I think she wants to be fair, but she was clearly
actually terrified. She talked in her questionnaire . . . about lots
of research on trauma and violence and the effects, and I don’t
32
know whether there is something she’s witnessed that we don’t
know about.”
The prosecutor also expressed concern that Prospective
Juror No. 71 nodded repeatedly and appeared in agreement with
Prospective Juror No. 74 when that juror spoke about “not
believing in the system and in jail and saying that there is
systemic racism so essentially there couldn’t be a fair trial.” The
prosecutor acknowledged that at sidebar Prospective Juror
No. 71 had given a reasonable explanation in that regard, “so I
probably shouldn’t use this as part of cause.” Walker’s counsel
did not express a view regarding the prosecutor’s reasons for
requesting Prospective Juror No. 71’s removal for cause.10 The
court declined to remove Prospective Juror No. 71 for cause.
The prosecutor exercised a peremptory challenge to excuse
Prospective Juror No. 71. Maxwell’s counsel made a
Batson/Wheeler motion “for the reasons asserted previously” in
which Walker’s counsel joined, and a sidebar was held. The
prosecutor explained, “For all the reasons that I indicated
previously when I asked for her to be dismissed for cause, one of
which was that the punishment issue was of huge concern to her.
10 Maxwell’s counsel observed that at the time the parties
moved for excusal of certain jurors for cause there were seven
Black jurors on the panel, and the prosecution had asked that
four of the seven be removed for cause. Counsel argued against
removal of the other three Black prospective jurors but
specifically excepted Prospective Juror No. 71 from the argument
because her circumstances differed from the other three
prospective jurors’ circumstances. After the jurors were sworn,
the court noted for the record that two seated jurors were Black
women and one alternate juror was a Black male.
33
Also, as a psychologist, she indicated that it would be difficult for
her to not think to consider all the various factors outside of just
what she would be hearing in court, psychological reasons and all
of that based on her job and her research on trauma and
community violence. [¶] She was nodding and agreeing with
another juror when they discussed concerns with the racial
aspect of the case. She indicated that she was very afraid but
yesterday she appeared extremely fearful about being involved in
this trial to the point that she asked us to redact out part of her
questionnaire.”
Maxwell’s counsel responded, “She indicated she could not
consider punishment in the issue of determining guilt,” but
counsel offered no support for her belief that this was the case.
The court found the prosecutor’s reasons to be race-neutral, and
excused Prospective Juror No. 71.
Analysis
Substantial evidence supports the trial court’s
determination that the prosecutor’s stated race-neutral reasons
for her peremptory challenge of Prospective Juror No. 71 were
credible and genuine, and that purposeful discrimination was not
shown under all the circumstances.
Prospective Juror No. 71 expressed serious concerns about
the defendants’ ability to identify her, and she remained anxious
about the issue even after counsel agreed not to share her
information with defendants. When the prosecutor asked
whether Prospective Juror No. 71’s anxiety would affect her
verdict or if she would fear retaliation she responded that if she
had to answer at that moment, she would say “yes.” She would
34
try not to let her fear keep her from properly considering the
evidence, but she could not unequivocally say that she could
overcome her fear. She asked the court to redact certain
information on her anonymous questionnaire out of concern that
she could be identified.
Prospective Juror No. 71 also identified herself as someone
who could not set aside punishment when determining guilt,
although jurors were not permitted to consider punishment. She
made no statements to the contrary at any point. She simply
acknowledged the trial court’s statement of the law by not raising
her hand when the court asked if anyone did not understand.
Like Prospective Juror No. 17, she had previously indicated that
she understood what was required of her, but stated she was not
sure she could actually do what was required. Under the
circumstances, we cannot say that her indication that she
understood the court was equivalent to a statement that she
would follow the law. There is substantial evidence in the record
to support the trial court’s determination that the prosecutor’s
articulated race-neutral reasons for exercising a peremptory
challenge against Prospective Juror No. 71 were credible and
genuine.
Assembly Bill 333
In 1988, the Legislature enacted the California Street
Terrorism Enforcement and Prevention Act (STEP Act; § 186.20
et seq.), which, as pertinent here, added section 186.22 to the
Penal Code. (People v. Tran (2022) 13 Cal.5th 1169, 1205–1206
(Tran).) Section 186.22, subdivision (b)(1) increased the
punishment for “a person who is convicted of a felony committed
35
for the benefit of, at the direction of, or in association with a
criminal street gang, with the specific intent to promote, further,
or assist in criminal conduct by gang members” by providing for a
sentencing enhancement “in addition and consecutive to the
punishment prescribed for the felony or attempted felony of
which the person has been convicted.”
In 2021, the Legislature made several substantive changes
to section 186.22 through the passage of Assembly Bill 333.
(Tran, supra, 13 Cal.5th at p. 1206.) The legislation also “added
section 1109, which requires, if requested by the defendant, a
gang enhancement charge to be tried separately from all other
counts that do not otherwise require gang evidence as an element
of the crime. If the proceedings are bifurcated, the truth of the
gang enhancement may be determined only after a trier of fact
finds the defendant guilty of the underlying offense.” (Ibid.)
Assembly Bill 333 became effective on January 1, 2022, after
Walker’s trial. It is uncontested that the jury was not instructed
on the new requirements under Assembly Bill 333.
Walker contends that Assembly Bill 333 ameliorates
punishment and should therefore apply retroactively to his case
under In re Estrada, supra, 63 Cal.2d 740. Walker argues that
Assembly Bill 333’s amendments to section 186.22 require us to
reverse the gang enhancements, as well as the jury’s true finding
on the special allegation that Walker was an active participant in
a criminal street gang when he committed the murders in counts
1 and 2 (§190.2, subd. (a)(22)). Walker also argues that because
the gang allegations were not bifurcated from the charges in his
case, he is entitled to reversal of the jury’s guilty verdicts
pursuant to section 1109. We address his arguments below.
36
We reverse the gang enhancements imposed under section
186.22, subdivision (b) in all counts; we reverse the special
circumstances imposed pursuant to section 190.2, subdivision
(a)(22) in counts 1 and 2; and we remand the matter to the trial
court to give the prosecution the opportunity to elect whether to
seek a retrial of the enhancements and special circumstances.
We decline to address the issue of whether section 1109 is
retroactive, as we hold that any error would have been harmless
under any standard.
Section 186.22
Amendments to Section 186.22, Subdivision (b)
Prior to the passage of Assembly Bill 333, a “ ‘criminal
street gang’ ” was defined as “any ongoing organization,
association, or group of three or more persons, whether formal or
informal, having as one of its primary activities the commission
of one or more of [certain enumerated] criminal acts . . . , having
a common name or common identifying sign or symbol, and
whose members individually or collectively engage in, or have
engaged in, a pattern of criminal gang activity.” (§ 186.22,
former subd. (f).) “Assembly Bill 333 . . . narrowed the definition
of a ‘criminal street gang’ to require that any gang be an ‘ongoing,
organized association or group of three or more persons.’
[Citation.] . . . [W]hereas section 186.22, former subdivision (f)
required only that a gang’s members ‘individually or collectively
engage in’ a pattern of criminal activity in order to constitute a
‘criminal street gang,’ Assembly Bill 333 requires that any such
37
pattern have been ‘collectively engage[d] in’ by members of the
gang.” (Tran, supra, 13 Cal.5th at p. 1206.)
Section 186.22, former subdivision (e)(1) defined a
“ ‘pattern of criminal gang activity’ ” as “the commission of,
attempted commission of, conspiracy to commit, or solicitation of,
sustained juvenile petition for, or conviction of two or more of
[certain enumerated predicate11 ] offenses, provided at least one
of these offenses occurred after the effective date of this chapter
and the last of those offenses occurred within three years after a
prior offense, and the offenses were committed on separate
[occasions], or by two or more persons.” The new amendments
made multiple changes to the requirements to show a pattern of
criminal activity, including that “(1) the last [predicate] offense
used to show a pattern of criminal gang activity occurred within
three years of the date that the currently charged offense is
alleged to have been committed; (2) the [predicate] offenses were
committed by . . . gang ‘members,’ as opposed to just ‘persons’;
(3) the [predicate] offenses commonly benefitted a criminal street
gang; and (4) the [predicate] offenses establishing a pattern of
gang activity must be ones other than the currently charged
offense. (§ 186.22, subd. (e)(1), (2).) . . . Assembly Bill 333
narrowed what it means for an offense to have commonly
benefitted a street gang, requiring that any ‘common benefit’ be
11 “The offenses comprising a pattern of criminal gang
activity are referred to as predicate offenses.” (People v. Valencia
(2021) 11 Cal.5th 818, 829.) The term predicate offense is not
contained in section 186.22, but its meaning and use are well-
established in California precedent.
38
‘more than reputational.’ (§ 186.22, subd. (g).)[12 ]” (Tran, supra,
13 Cal.5th at p. 1205.) “Examples of a common benefit that are
more than reputational may include, but are not limited to,
financial gain or motivation, retaliation, targeting a perceived or
actual gang rival, or intimidation or silencing of a potential
current or previous witness or informant.” (§ 186.22, subd. (g).)
Effect of Amendments on Gang Enhancements13
In his opening brief, Walker argues that the section 186.22,
subdivision (b) enhancements must be reversed because: (1) the
jury was not instructed regarding the elements of the
enhancements as amended by Assembly Bill 333; (2) the
prosecution offered no evidence that the predicate offenses used
to demonstrate a pattern of criminal activity commonly
12 Effective January 1, 2023, section 186.22, subdivision
(b)(3) requires the trial court to impose “the middle term of the
sentence enhancement, unless there are circumstances in
aggravation or mitigation. The court shall state the reasons for
its choice of sentencing enhancements on the record at the time of
the sentencing.” (Stats. 2021, ch. 699, § 4, eff. Jan. 1, 2022,
operative Jan. 1, 2023.)
13 Walker argues, the People concede, and we agree that
the changes to section 186.22 apply retroactively to Walker’s
case, as his case was not yet final on the effective date of
Assembly Bill 333. (See, e.g., Tran, supra, 13 Cal.5th at p. 1206.)
The amendments have the effect of “ ‘increas[ing] the threshold
for conviction of the section 186.22 offense and the imposition of
the enhancement,’ with obvious benefit to defendants.” (Tran,
supra, 13 Cal.5th at p. 1207.)
39
benefitted the Rollin’ 100’s; and (3) the prosecution offered no
evidence that the benefit of the predicate offenses to the gang was
more than reputational. “When a substantive change occurs in
the elements of an offense and the jury is not instructed as to the
proper elements, the omission implicates the defendant’s right to
a jury trial under the Sixth Amendment, and reversal is required
unless ‘it appears beyond a reasonable doubt’ that the jury
verdict would have been the same in the absence of the error.”
(Tran, supra, 13 Cal.5th at p. 1207.) The People argue that
reversal and remand is not required in this case in light of the
overwhelming evidence in the record that the predicate offenses
used to prove a pattern of criminal gang activity still qualify
under the amendments to section 186.22. The People contend
that the jury would still have found the gang enhancements true
beyond a reasonable doubt. We agree with Walker that the
enhancements must be reversed.
At trial, to prove that the Rollin’ 100’s engaged in a pattern
of criminal gang activity, the prosecution offered evidence of
three crimes committed by Rollin’ 100’s members and
enumerated in section 186.22, subdivision (e)(1): (1) on July 10,
2017, Fuller violated section 29800 (felon in possession of a
firearm); (2) on June 22, 2015, Charles Lewis violated section 246
(shooting at an occupied building); and (3) on April 1, 2017,
Hakeem Garbutt violated section 25850, subdivision (a) (carrying
a loaded firearm in public). The predicate offenses were proven
through certified electronic dockets reflecting each conviction and
the testimony of Los Angeles County Sheriff’s Department
Sergeant Marco Magana, who was personally involved in the
arrest and/or investigation of each of the predicate offenders and
knew each offender to be a member of the Rollin’ 100’s.
40
The People argue that the prosecution demonstrated that
the predicate offenses were more than reputational because
Sergeant Magana testified about the importance of retaliation as
a benefit to a gang. The sergeant testified that “[t]ypically, in
gang culture, it’s almost a given that retaliation is a must and
the best retaliation is immediate and worse than the original
offense. If a gang member from a certain gang is assaulted by
being jumped, per se, by rival gang members, that gang member
should—shall—in the gang culture go back, recruit fellow gang
members and go back to that enemy’s territory and up the force
one level by possibly either assaulting them worse with a knife, a
bat, or some type of an object or even shoot. [¶] Then that
retaliation from the other gang, once they’re assaulted, they’re
supposed to retaliate as well. But that point, if the gang that was
initially assaulted is feared and more respected than the gang
member that got shot at, they might stop there because they
don’t want to go into a retaliation back and forth with the gang
that’s more feared or respected or they’re afraid of.” Sergeant
Magana further testified that a gang that fails to retaliate looks
weak. The sergeant listed multiple acts that could constitute
retaliation, including “[a]ssaults, hands and feet; assaults with a
knife; assaults with objects; shootings; murders; vandalism by
crossing them out; banging on them; . . . shooting at their cars;
shooting at known gang members, family members’ houses.”
Committing these crimes benefits the gang by demonstrating
that they are violent and willing to retaliate. This instills fear in
the community and in rival gangs.
In addition to other trial evidence about the charged
offenses, Sergeant Magana’s testimony supports the conclusion
that those charged offenses were committed in retaliation for the
41
shooting of Rollin’ 100’s members earlier that same day; however,
the prosecution presented no evidence that the three predicate
offenses were committed in retaliation or benefitted the Rollin’
100’s in any way. Notably, it is unclear how two of the predicate
offenses—felon in possession of a firearm and carrying a loaded
weapon—could constitute retaliation, particularly where they
were not tied to any prior act by another gang that would call for
retaliation. While shooting at an occupied building could be a
form of retaliation, again there was no evidence of prior incidents
that would have caused the predicate offender to act in
retaliation. Although Sergeant Magana had personal knowledge
of all three predicate offenses, he did not explain the motivation
behind those offenses or the benefit of any of them to the Rollin’
100’s.
Because the jury was not presented with evidence that the
predicate crimes actually benefitted the Rollin’ 100’s or that the
benefit was more than reputational, on this record we cannot say
that the error did not contribute to the jury’s true findings on the
gang enhancements beyond a reasonable doubt. (See Tran,
supra, 13 Cal.5th at p. 1207 [reversing gang enhancements where
jury was not presented with evidence gang members collectively
engaged in pattern of criminal gang activity].)
Effect of Amendments on Active Gang Participant
Special Circumstances
Although Assembly Bill 333 does not directly address gang
participation special circumstance findings imposed under section
190.2, subdivision (a)(22), the special circumstance allegation
incorporates within its elements concepts defined in section
42
186.22. Section 190.2, subdivision (a)(22) requires that the
prosecution prove, beyond a reasonable doubt that the “defendant
intentionally killed the victim while the defendant was an active
participant in a criminal street gang, as defined in subdivision (f)
of Section 186.22, and the murder was carried out to further the
activities of the criminal street gang.” As we have discussed,
“criminal street gang” and “pattern of criminal activity,” which
must be proven to impose a special circumstance allegation under
section 190.2, subdivision (a)(22), have undergone significant
substantive changes following the enactment of Assembly Bill
333. As a consequence, the amendments to section 186.22
necessarily alter the elements of proof for gang participation
special circumstances.14 (People v. Lopez (2021) 73 Cal.App.5th
327, 346–348.)
Remedy
We reverse the true findings on the gang enhancements
(§ 186.22, subd. (b); counts 1–6 & 8) and the active participant in
a criminal street gang special circumstance allegations (§ 190.2,
subd. (a)(22); counts 1 & 2), and remand to the trial court to
afford the prosecution an opportunity to retry the enhancements
and special circumstance allegations under current law. (See
People v. Delgado (2022) 74 Cal.App.5th 1067, 1091 [vacating
gang enhancements in light of Assembly Bill 333 and remanding
for limited retrial]; People v. Lopez, supra, 73 Cal.App.5th at
14 The People did not address the effect of Assembly Bill
333 on the gang participation special circumstances in the
respondent’s brief.
43
p. 346 [same].) In the event that the People do not elect to retry
the enhancements and/or special circumstance allegations, the
court shall resentence Walker. (See Delgado, at p. 1091.)
Section 1109
As relevant here, section 1109 provides:
“(a) If requested by the defense, a case in which a gang
enhancement is charged under subdivision (b) or (d) of Section
186.22 shall be tried in separate phases as follows:
“(1) The question of the defendant’s guilt of the underlying
offense shall be first determined.
“(2) If the defendant is found guilty of the underlying
offense and there is an allegation of an enhancement under
subdivision (b) or (d) of Section 186.22, there shall be further
proceedings to the trier of fact on the question of the truth of the
enhancement. Allegations that the underlying offense was
committed for the benefit of, at the direction of, or in association
with, a criminal street gang and that the underlying offense was
committed with the specific intent to promote, further, or assist
in criminal conduct by gang members shall be proved by direct or
circumstantial evidence.”
Walker relies on People v. Burgos (2022) 77 Cal.App.5th
550, 556 to 568, in which the appellate court held that section
1109 is retroactive under In re Estrada, supra, 63 Cal.2d 740. In
determining whether remand was appropriate, the Burgos court
stated: “The case law does not clearly establish whether or how
harmless error analysis applies in this instance. It is difficult to
determine how the outcome of the trial would have been affected
if it had been bifurcated to try the gang enhancements
44
separately; the nature of the proceeding would have been entirely
different. This circumstance likely constitutes ‘structural error’
because it ‘def[ies] analysis by harmless-error standards.’
[Citation.] . . . [Citation.] . . . [¶] Even if harmless error analysis
is amenable, it is not clear whether we should apply the federal
or state law standard.” (Burgos, at p. 568.) Ultimately, Burgos
held that the error was not harmless in that case because the
evidence of identity was not overwhelming, and there was no
evidence that one of the defendants participated in the robbery
beyond the fact that he was present. (Id. at pp. 568–569.)
In Tran, supra, 13 Cal.5th at page 1208, our Supreme
Court declined to decide whether section 1109 applies
retroactively because it concluded any error was harmless under
any standard.15 Tran rejected the argument that failure to
bifurcate gang enhancements constitutes structural error. (Ibid.)
The court then analyzed the issue for harmlessness under both
the federal standard articulated in Chapman v. California (1967)
386 U.S. 18, and the state standard set forth in People v. Watson
(1956) 46 Cal.2d 818. (Tran, at pp. 1209–1210.) With respect to
Chapman error, Tran concluded that the prosecutor’s use of gang
15 There is a split of authority on whether section 1109 is
retroactive. (Cf. People v. Burgos, supra, 77 Cal.App.5th at pp.
564–568, review granted July 13, 2022, S274743 [retroactive];
id. at pp. 569–575 (dis. opn. of Elia, J.) [not retroactive]; People v.
Ramos (2022) 77 Cal.App.5th 1116, 1128 –1131 [retroactive];
People v. Ramirez (2022) 79 Cal.App.5th 48, 64 –65, review
granted Aug. 17, 2022, S275341 [not retroactive]; id. at pp. 67–70
(conc. opn. of Wilson, J.) [retroactive]; People v. Perez (2022)
78 Cal.App.5th 192, 206–207, review granted Aug. 17, 2022,
S275090 [not retroactive].)
45
evidence did not make the trial fundamentally unfair. (Tran, at
p. 1209.) It was permissible for the trial court to admit gang
evidence to explain that witnesses may have made contradictory
statements due to fear of retaliation and the gang evidence used
to demonstrate that a codefendant would have had reason to aid
and abet the defendant was not relevant to defendant, who was
the perpetrator. (Ibid.) Regarding Watson error, the defendant
in Tran had only argued generally that the trial court could have
exercised its discretion to exclude some of the gang evidence
admitted at trial and did not explain how that evidence would
have affected the jury’s verdicts and findings. (Tran, at
pp. 1209–1210.) In light of the overwhelming evidence of the
defendant’s guilt, Tran concluded that it was not reasonably
likely that exclusion of the gang evidence would have changed
the outcome of trial. (Ibid.)
This case is analogous to Tran. The admission of gang
evidence did not make the trial fundamentally unfair. Although
Walker argues that he did not have the opportunity to request
that the gang enhancements be bifurcated, that statement is
inaccurate. Walker had the opportunity to request bifurcation of
the gang allegations pursuant to section 1044, “ ‘which vests the
trial court with broad discretion to control the conduct of a
criminal trial.’ ” (People v. Montano (2022) 80 Cal.App.5th 82,
109, fn. 10.) He does not assert that he made a request for
bifurcation of the gang allegations, and we have found nothing in
the record to indicate that a request for bifurcation was made.
Walker does not argue that the trial court had an obligation to
order bifurcation sua sponte.
Walker does not explain the basis for his belief that
evidence of his gang affiliation would not have been admissible to
46
prove the charges in his case. Section 1109 does not preclude
introduction of gang evidence in a bifurcated proceeding where
that evidence is relevant to proof of the charged offenses. (People
v. Ramos, supra, 77 Cal.App.5th at p. 1132.) Here, the gang
evidence was directly relevant to the charges against Walker to
establish motive and identity.
The evidence against Walker was overwhelming. Dampeer,
whose narrative of events was supported by ample evidence,
testified that Walker was one of the two gang members chosen to
be shooters, that he ran toward the victims holding a gun, and
that shots could be heard seconds after Walker disappeared from
his view. In addition to Dampeer’s testimony, Walker’s own
statements provided strong evidence of identity and motive.
Footage from an officer’s body camera recorded Walker speaking
with someone on his cell phone right after Hutchins was shot in
which Walker indicated that he intended to avenge the shooting,
“[J]ust provide the shit, and we gonna do what we got to do. Just
bring some shit. Trust me.” In jail calls recorded after the
crimes had been committed, Walker told Hutchins that he and
Moore, who Dampeer identified as the second shooter, made
Hutchins look good. Hutchins disagreed and replied that Walker
made himself look good; Hutchins went to the hospital. This was
consistent with Dampeer’s testimony that Walker’s moniker
Infant Killa indicated that he was under Hutchins and would be
expected to retaliate if Hutchins was shot.
Finally, it does not appear that the jury was biased by the
gang evidence presented in this case. The jury considered the
same gang evidence when determining whether Maxwell was
guilty of the charged crimes and acquitted Maxwell on all counts.
47
Under the circumstances, any error was necessarily harmless
under both Chapman and Watson.
Third Party Culpability Instruction
Walker next contends that the trial court’s refusal to give
his proposed instruction on third party culpability violated his
constitutional due process right to present a defense. We
conclude that, even if the trial court’s refusal to give the
instruction was error (an issue we decline to decide), the error
was harmless under any standard.
Proceedings
At trial, Dampeer testified that he recognized one of the
assault victims from an incident that took place at the county
building on hood day. Dampeer and “two or three other people
from the block” were involved in the altercation with the assault
victim, but neither Maxwell nor Walker was present.
Investigators reviewed video footage taken at the county building
that day, and identified Dampeer with fellow Rollin’ 100’s
member Johnson.
Gray testified that he thought the heavyset man who was
pursuing him looked like someone he had seen before at the
county building on October 10, 2017. October 10th was Rollin’
100’s hood day, and the building was located in their territory.
The man had designs related to the Rollin’ 100’s on his head. He
was with a friend and “being ghetto.”
The jury was shown a video recording of a traffic stop of a
red Nissan on October 28, 2017. Wheeler was the driver, and the
48
car was stopped in Rollin’ 100’s territory. Video footage depicted
Fuller exiting the front passenger side door. Johnson was
adjacent to the car. Wheeler and Johnson had gang-related
tattoos.
At a hearing outside the presence of the jury, defense
counsel argued that Walker should be permitted to argue third
party culpability as a defense to the crimes and that the jury
should be instructed regarding that defense. Counsel asserted
that the evidence showed Johnson had motive and opportunity to
commit the murders. He argued that Johnson was a member of
the Rollin’ 100’s with the moniker Killer Tramp; Johnson was
present at the county building on hood day and fought with
members of Eight Trey who Dampeer recognized as being among
the younger men targeted for murder; Johnson was one of the
people detained at the traffic stop with Wheeler; and Johnson
had a physical build similar to Walker’s. Counsel noted that
Walker was not present at the county building on hood day, and
that McPherson testified inconsistently regarding the number of
people he saw getting into the car and fleeing the murder scene.
McPherson initially stated he saw three people leaving the scene
rather than two.
Based on this evidence, Walker’s counsel proposed the
following instruction regarding third party culpability:
“You have heard evidence from defendant Walker that a
person other than the defendant committed the offense with
which the defendant is charged. Mr. Walker is not required to
prove Leodis Johnson’s guilt. It is the prosecution that has the
burden of proving the defendant guilty beyond a reasonable
doubt. Therefore, the defendant is entitled to an acquittal if you
have a reasonable doubt as to the defendant’s guilt. Evidence
49
that Leodis Johnson committed the charged offense may by itself
leave you with a reasonable doubt as to the defendant’s guilt.
However, its weight and significance, if any, are matters for your
determination. If after considering all of the evidence, including
any evidence that another person committed the offense, you
have a reasonable doubt that the defendant committed the
offense, you must find the defendant not guilty.”
The prosecution argued that evidence of motive and
opportunity were insufficient to raise a reasonable doubt as to
guilt absent an actual link between Johnson and the shootings.
Additionally, Walker made it clear in his jail call to Hutchins
that he and Moore made it look good out there for Hutchins, not
Johnson. The evidence was insufficient to warrant an
instruction.
The trial court ruled that it would permit the defense to
argue the facts in evidence and any inferences that could be made
based on those facts, but refused to instruct the jury on third
party culpability, because the theory was not applicable. The
court explained that evidence of more than motive is required—
there has to be an actual connection to the crime that was not
present in this case.
In closing argument, counsel argued the defense’s theory
that Johnson was the shooter.
Analysis
Walker concedes that the trial court permitted him to
introduce evidence of third party culpability and allowed him to
argue his third party culpability theory based on that evidence
and inferences that flowed from it. He argues that although he
50
was permitted to present and argue the evidence, his statements
“lacked the imprimatur that accompanies instructions to the
jury,” particularly in light of the trial court’s instructions to the
jury under CALCRIM No. 200 that “[y]ou must follow the law as I
explain it to you, even if you disagree with it. If you believe the
attorneys’ comments on the law conflict with my instructions, you
must follow my instructions,” and in light of the court’s earlier
emphasis of that admonition during voir dire.
Walker’s argument suggests that he believes the jury may
have disregarded defense counsel’s arguments because the jurors
would view the arguments as conflicting with the trial court’s
instructions. We are not persuaded. The trial court instructed
the jury on reasonable doubt under CALCRIM No. 220, and
stated, “In deciding whether the People have proved their case
beyond a reasonable doubt, you must impartially compare and
consider all the evidence that was received throughout the entire
trial. Unless the evidence proves the defendants guilty beyond a
reasonable doubt, they are entitled to an acquittal and you must
find them not guilty.” (Italics added.) These instructions did not
conflict with defense counsel’s comments that the jury should
consider the evidence that tended to show, or at least a raise
doubt regarding, whether Johnson was the shooter rather than
Walker.
Under the circumstances, the court’s refusal to give the
third party culpability instruction was harmless under any
standard. Walker’s proposed instruction simply restated the
reasonable doubt standard in connection with the possibility that
another might be the guilty party. The omission of this
instruction, if error, could not have affected the verdict. It is
hardly a difficult concept for the jury to grasp that acquittal is
51
required if there is reasonable doubt as to whether someone else
committed the charged crimes. The closing arguments focused
the jury’s attention on that point.” (People v. Hartsch (2010)
49 Cal.4th 472, 504.) “ ‘[B]ecause the reasonable doubt
instructions [gave Walker] ample opportunity to impress upon
the jury that evidence of another party’s liability must be
considered in weighing whether the prosecution . . . met its
burden of proof,’ the failure to instruct on third party culpability
was not prejudicial.” (People v. Fayed (2020) 9 Cal.5th 147, 178.)
Prosecutorial Misconduct
Walker contends that the prosecutor committed misconduct
by employing “a dehumanizing analogy as a narrative theme for
the events.” (Capitalization omitted.) Specifically, he challenges
the prosecutor’s use in closing argument of the words “predator”
and “prey” to describe gangs. We conclude that Walker failed to
preserve this issue for appeal.
Legal Principles
The “ ‘prosecutor “enjoys wide latitude in commenting on
the evidence, including the reasonable inferences and deductions
that can be drawn therefrom” ’ ” but “may not compare a
defendant to a beast for the purpose of dehumanizing him [or
her] before the jury or in an effort to evoke the jury’s racial
biases.” (People v. Powell (2018) 6 Cal.5th 136, 183.) “ ‘A
prosecutor’s conduct violates the federal Constitution when it
infects the trial with unfairness, and violates state law if it
involves the use of deceptive or reprehensible methods of
52
persuasion. [Citation.] To preserve a misconduct claim for
appellate review, a defendant must make a timely objection and
ask the trial court to admonish the jury to disregard the remark
(or conduct) unless such an admonition would not have cured the
harm. [Citation.] When the claim focuses on the prosecutor’s
comments to the jury, we determine whether there was a
reasonable likelihood that the jury construed or applied any of
the remarks in an objectionable fashion. [Citation.]’ [Citation.]
‘ “In conducting this inquiry, we ‘do not lightly infer’ that the jury
drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.” ’ ” (People v.
Thompson (2022) 83 Cal.App.5th 69, 93–94.)
Proceedings
The prosecutor began her closing remarks to the jury by
stating that “in the gang world, there is predator and there is
prey.”
Walker’s counsel objected on the grounds of improper
argument. Counsel did not request an admonition, an
instruction, or any other action on the part of the trial court. The
trial court overruled the objection but admonished the jury,
“Ladies and gentlemen, this is argument. This is not evidence.”
The prosecutor continued:
“In the gang world, there is predator and there is prey.
When Baby Killa got shot . . . the Rollin’ Hundreds became the
prey. . . . The gang could not let that go not answered. . . .
[W]ithin hours of Baby Killer getting shot, the gang, as a unit, as
a group, reestablished themselves as the predators.
“It wasn’t just one individual. It was together.
53
“Who did we have? We had Keith Walker, Infant Killer, on
the phone as soon as that shooting happened, ‘Baby Killer just
got shot. Baby Killer got shot. Infant Trigg got shot. A lot of
homies got shot. Some homegirls got shot. Just provide the shit.
We gonna do what we gotta do, just bring some shit.’
“But, it wasn’t just Keith Walker who reestablished the
gang, the Rollin’ Hundreds, as a predator. It was everybody
involved in this case and other people who you’ve heard about
who are not sitting here in the courtroom. How did they do that?
“They did this by working together, hunting together,
seeking out victims because of where they live resulting,
ultimately, in the killing and the shooting at of innocent men.”
Walker’s counsel did not make any further objection to the
prosecutor’s comments.
Later in argument the prosecutor stated, “We know that’s
what this whole thing is about. It was for the benefit of because
no shooting of Rollin’ Hundreds, especially an original Crip from
the hood, Baby Killer, can go unchecked. This gang cannot
remain prey. They had to reestablish themselves immediately as
predators. They had to immediately reinstill fear, fear among
their rivals that they will go to war. They will not back down.
They will retaliate.”
Walker’s counsel again did not object. Rather, counsel
addressed the prosecutor’s comments extensively in the defense
closing argument. He began, “The prosecutor, for whom I have a
lot of respect, apologized for words that other people spoke. The
words she didn’t apologize for were her own, and the words that
were spoken have become so normalized in our justice system
that they just gloss over us as though it’s all right. And it’s not
all right because the words that were spoken throughout the
54
People’s argument are words that ‘other-ize’ people, that
dehumanize people. [¶] When you use the word ‘predator,’ they
even animalize people. That is where our justice system has
come off the rails over the last 30 years in Los Angeles in cases
about gangs. That’s where things have become unhinged and it’s
wrong and it has to be . . . stood up against . . . . It has to be
spoken against.”
Defense counsel explained that he did not believe the
dehumanization was intentional, but that it was the result of
normalization. He asserted that it was important for the jury to
step back and recognize that the words predator and prey made
the defendants appear “less than fully human.” It would be
wrong to judge the defendants based on these concepts rather
than relying on the facts and the law. Counsel entreated the
jurors: “So I insist that everybody in this case be treated as a
human being, not as a predator. Not as a label. Not as a gang
member.”
The prosecutor did not resume the line of argument in her
rebuttal.
The next day, after the jury began deliberating, Walker’s
counsel noted his initial objection to the prosecutor’s use of the
words “predator” and “prey” on the basis of improper argument.
Counsel then requested to augment the record with an objection
to the prosecutor’s use of “racially coded language,” arguing that
it amounted to prosecutorial misconduct in violation of the Racial
Justice Act. Counsel stated, “It’s tantamount to an animalization
of the defendants.” Counsel did not ask that the court take any
specific action. He explained, “I just wanted to memorialize those
in the record in the event there is a conviction and appeal.”
55
The prosecutor responded, the “reference to predatory
behavior was a reference to the gang Rollin’ Hundreds engaging
in predatory behavior and preying on innocent victims. It was
not a reference to a particular individual. It was not a
comparison to an animal or to anything of the sort. It was a
comment on the type of behavior that the gang itself was
engaging in . . . . [¶] There was certainly no racial motive, racial
bias on my part, racial implication. That wasn’t intended, and it
definitely wasn’t what I believe was conveyed.”
Walker’s counsel acknowledged that the prosecutor’s
comments were not made in reference to a particular individual.
The trial court stated:
“ . . . I don’t believe that race was necessarily implicated
with regard to the use of those words. I understood them to be
applied in the gang context. And there are certainly Black gangs,
Hispanic gangs and White gangs who engage in violent behavior.
So I don’t think this was necessarily a term characterizing any
specific racial group as opposed to the gang generally.
“As to the relation to the term predator and prey, the
reason I overruled the objection at the time, one, because it was
generic or general and not specific to any of the defendants; but,
two, based on the specific facts of this case, the court found it [an]
applicable analogy in the sense that this was a retaliating—
retaliation shooting where the defendants or the gang is alleged
to have specifically gone into rival gang territory, seeking out
rival gang members in order to shoot in retaliation for the
shooting that had happened upon them just 12 hours earlier.
“So in that context, the court felt it wasn’t meant as a
derogatory term to animalize certainly not the defendants
specifically, but not even gang members generally but was very
56
specific to the facts here of what this particular group is alleged
to have done in the entire context, and that’s why I overruled it.
I wasn’t just looking at the terms [themselves]. I was looking at
the context of the facts in this case.”16
Analysis
We conclude that Walker has forfeited his contention
because he did not make a timely objection.17 “As a general rule,
a specific and timely objection to judicial misconduct is required
to preserve the claim for appellate review.” (People v. Seumanu
(2015) 61 Cal.4th 1293, 1320.) Walker’s counsel only objected to
the prosecutor’s initial statement, and did not object to any of the
prosecutor’s comments on the ground of prosecutorial misconduct
until after the jury had begun deliberating. Moreover, counsel
did not request that the court take any action at any point; he
indicated that he made the belated objection and claim of
misconduct for the purposes of appeal. Counsel’s assertion that
he wanted to preserve the issue for appeal did not render the
16Defense counsel later raised the issue of prosecutorial
misconduct in his motion for new trial. The court denied the
motion for the same reasons.
17 To the extent that Walker frames his prosecutorial
misconduct argument as a violation of the Racial Justice Act, he
has forfeited that challenge as well, both because he did not
timely and specifically object on that basis, and because the
legislation was in effect at the time the prosecutor made her
comments and Walker did not move the trial court for a hearing
under section 745, former subdivision (b) or otherwise request
relief.
57
objection timely or excuse the fact that he did not request that
the court take action. There was ample time to object during
argument, and certainly before the jury began deliberating the
next day. Counsel appears to have made a tactical decision to
address the issue in his own remarks to the jury rather than
giving the court an opportunity to correct the alleged
impropriety.
Sentencing Errors
Walker contends that the trial court committed several
sentencing errors. Because we are reversing the true findings on
the gang enhancements (§ 186.22, subd. (b); counts 1–6 & 8) and
the active participant in a criminal street gang special
circumstance allegations (§ 190.2, subd. (a)(22), counts 1 & 2), we
need not address these arguments. Walker will be resentenced
regardless of whether the People choose to retry the
enhancements and/or allegations. Counsel may raise any
concerns regarding the court’s sentencing decisions at that time.
Finally, in the response, the People contend that although
the jury convicted Walker of murder in count 2, the abstract of
judgment does not reflect the murder conviction. Walker does
not contest this fact in his briefs. We agree with the People and
instruct the trial court to insure that the abstract of judgment
properly reflects that the jury found Walker guilty of murder in
count 2 when the court resentences Walker.18
18 The
abstract of judgment properly reflects the
enhancements in count 2 and the fact that the sentence in count
58
DISPOSITION
We affirm the convictions. We reverse the true findings on
the gang enhancements (Pen. Code, § 186.22, subd. (b); counts 1–
6 & 8) and the active participant in a criminal street gang special
circumstance allegations (§ 190.2, subd. (a)(22); counts 1 & 2),
and remand the matter to the trial court to afford the prosecution
an opportunity to retry the enhancements and special
circumstance allegations under current law. Upon resentencing,
either after a retrial of enhancements and special circumstance
allegations, or after the prosecution elects not to retry any
enhancements or special circumstance allegations, the trial court
shall insure that the abstract of judgment properly reflects that
the jury found Walker guilty of murder in count 2.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.
two currently carries an indeterminate term of life without the
possibility of parole.
59