People v. Young CA1/1 ( 2023 )

Filed 8/17/23 P. v. Young CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A161098
v. (Contra Costa County
GALE JOSEPH YOUNG, Super. Ct. No. 05-192328-3)
Defendant and Appellant.
THE PEOPLE,
Plaintiff and Respondent, A161100
v. (Contra Costa County
TERRANCE WEBB, Super. Ct. No. 05-192328-3)
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on July 25, 2023, be modified
as follows:
1. On page 38, after the first phrase in the first full sentence on the
page, beginning “Notwithstanding that defendants apparently failed to raise
this argument in the trial court,” add as footnote 27, the following footnote,
which will require the renumbering of all subsequent footnotes:
27 In a petition for rehearing, Young’s counsel
asserts this theory was in fact presented to the trial
court. He cites to a motion in limine filed by Webb’s
counsel which advances this theory, but that motion in
limine was not cited in his briefing on appeal. In any
event, our observation that the argument apparently
was not raised in the trial court is of no consequence
because we rejected the theory of admissibility on the
merits.
There is no change in the judgment.
Appellant Gale Joseph Young’s petition for rehearing is denied.
Dated:
____________________________
HUMES, P.J.
2
Filed 7/25/23 P. v. Young CA1/1 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A161098
v. (Contra Costa County
GALE JOSEPH YOUNG, Super. Ct. No. 05-192328-3)
Defendant and Appellant.
THE PEOPLE,
Plaintiff and Respondent, A161100
v. (Contra Costa County
TERRANCE WEBB, Super. Ct. No. 05-192328-3)
Defendant and Appellant.
In a joint trial, a jury convicted defendants Gale Joseph Young and
Terrance Webb of first degree murder, conspiracy to commit murder, and
active participation in a criminal street gang. The jury also made true
findings on firearm and gang enhancements. The trial court sentenced
defendants to life without the possibility of parole.
On appeal, Webb contends the trial court violated his constitutional
rights by seating jurors around the courtroom for social distancing purposes
during the COVID-19 pandemic, and erred in admitting certain case-specific
hearsay evidence through an expert witness in violation of People v. Sanchez
(2016) 63 Cal.4th 665 (Sanchez). Young challenges the prosecution’s use of a
peremptory challenge against an African-American juror and argues the trial
court prejudicially erred in excluding certain third party culpability evidence.
He also contends the judgment must be reversed in its entirety in light of
Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), which
amended Penal Code1 section 186.22 to require proof of additional elements
to establish an active participation offense or a gang-related enhancement.
Young further asserts (1) insufficient evidence supported the lying-in-wait
special circumstance finding, (2) the trial court committed various sentencing
errors, and (3) the cumulative effect of multiple errors during trial requires
reversal. Webb joins in all of Young’s arguments on appeal.2
We agree with both defendants that their convictions for active
participation in a criminal street gang and related enhancements must be
reversed and vacated, and on remand the trial court must reduce their
conspiracy to commit murder sentences to 25 years to life. On remand, the
trial court must also exercise its discretion whether to stay defendants’
sentences on their murder or conspiracy terms pursuant to section 654. The
judgments are otherwise affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts necessary to resolve the issues raised
on appeal. Additional relevant facts are included in the discussion below.
1 All undesignated statutory references are to the Penal Code.
2 Victoria Collins, Webb’s girlfriend, was charged in the same
information and was tried with both defendants. Collins was convicted,
however, only of possession of ammunition and did not appeal.
2
A. Big Block Harbor Road Gang
In 2018, defendants Gale Joseph “Red Bone” Young and Terrance Webb
were members of Big Block Harbor Road (Big Block), a criminal street gang
in San Francisco. Both men had been involved with the gang since they were
young. Some other members of Big Block relevant to this case included
Matthew Higginbotham, his brother, Michael,3 and Charles “Buba/Prezi”
Gardner.
B. Shooting of Matthew Higginbotham
On July 24, 2018, Matthew was shot to death in Big Block territory.
Matthew’s murder was captured on security camera footage. The video
showed two individuals “sort of hanging around” who left and returned in a
car. One of the two got out of the car, and walked up to Matthew, who was
sitting in another car. The individual appeared to reach in and shake
Matthew’s hand, then with the other hand pointed a gun and shot him
multiple times. The other person in the car also fired shots as they drove
away.
Webb and Matthew were close friends. Two days after Matthew’s
murder, Michael and Webb spoke by telephone on a recorded jail call.
Michael told Webb about his anguish over his brother’s death and shared his
suspicion that someone knew something about it in advance. Webb told
Michael that he knew “the actual story” of Matthew’s murder, including who
was responsible, because he had seen it “on camera.” Webb told Michael he
knew who the shooter and driver were.
Beginning the day after Matthew’s murder and over the course of
approximately 10 days, Webb received photographs and videos of Anthony
3 We will refer to the Higginbotham brothers by their first names for
clarity.
3
Singh and Trevon Richardson from Young and others on his cell phone,
accompanied by text message exchanges apparently seeking to confirm their
identities. On August 3, Young sent Webb an image of Singh with the
message, “ ‘This round I am point man.’ ” Webb responded, “ ‘We go try
again?’ ” Police discovered additional text exchanges tracking Singh’s
activities; at trial, a police detective opined that Webb was gathering
intelligence and trying to find Singh and Richardson in an effort to find
Matthew’s killer. Among those messages were numerous texts between
Webb and Lovell Bronson (codefendant Collins’s son) in the days after
Matthew’s murder. In the messages, Bronson sent Webb photos and videos of
Singh and information about his location and whether he was armed.4
C. Shooting of Singh and Richardson
On August 18, 2018, Webb went to Young’s home in Oakland for a few
minutes around 8:50 p.m.5 Then Webb drove to San Francisco, arriving in
Bayview-Hunters Point around 9:25 p.m. Shortly after that, Webb went to
downtown San Francisco where the City Nights nightclub (City Nights) is
located. Webb was at City Nights from approximately 9:45 p.m. to 12:30 a.m.
the next morning. At 10:18 p.m., Young texted Webb asking, “ ‘We on it
tonight, or you acting like a weirdo?’ ” Around 12:30 a.m., Young called Webb
and they spoke by phone for approximately 15 minutes. Webb returned to
Oakland, picked up Young, and drove back to City Nights.
4 It appears Bronson knew Singh—in one text to Webb, he reported a
conversation in which Singh told Bronson about his gun and said he wanted
to “ ‘line some up.’ ”
5 Defendants’ and the victims’ locations at specific points on August 18
and 19, 2018 were determined primarily from cell phone tower data, a
tracking device on Singh’s vehicle, a police license plate reader system, and
video footage from the City Nights nightclub in San Francisco, a Valero gas
station, a tire business, and a Bay Area Rapid Transit (BART) station.
4
Meanwhile, Singh and Richardson left Richardson’s home in Antioch in
Singh’s pink Infiniti SUV just before 10:00 p.m. and drove to San Francisco.6
Around 10:45 p.m., they parked near City Nights, and then entered City
Nights.
Bronson was also at City Nights that night with a friend, Trevon
Dickerson. In a text message, Dickerson told Bronson he had seen someone
on the stairs. Bronson told Dickerson to “ ‘keep an eye on’ ” him.
At approximately 1:20 a.m. (August 19), Webb and Young arrived near
City Nights. Bronson left City Nights at 1:37 a.m. A few minutes later,
Bronson, Webb, and Young all met at the location where Singh’s car was
parked near City Nights.
Shortly after 2:15 a.m., Singh and Richardson left City Nights and
traveled from San Francisco to Antioch. Webb and Young followed Singh’s
car towards Antioch, a few minutes behind. Taken together, the cell phone
data, license plate reader data, and video evidence appear to show Webb and
Young were traveling closely together in separate cars; Webb was driving a
Dodge Charger, while Young was in a Honda.
Just before 3:00 a.m., Singh’s Infiniti stopped at a Chevron gas station
in Pleasant Hill. Young and Webb did not stop at the Chevron station but
continued east to the Mira Vista Hills apartment complex (Mira Vista
apartments), where Richardson lived. Young remained at the apartments,
but Webb drove back in the direction they had come in the Dodge Charger.
The Charger pulled into a Valero gas station at 2101 Somersville Road in
Antioch. Webb put $40 on a gas pump and started pumping gas into his
vehicle.
6 The San Francisco Police Department had placed a GPS tracking
device on Singh’s car.
5
Singh’s car passed by the Valero station headed in the direction of the
Mira Vista apartments. Webb ducked down and returned the nozzle to the
pump, leaving approximately $23 on the pump and not collecting the balance
due on the transaction. He got back into his vehicle, turned his headlights
off, and drove out of the Valero station, following Singh’s car.
Around 3:25 a.m., Singh parked his car in a carport at the Mira Vista
apartments. Before he turned off the engine, he was shot at least four times
in the neck and shoulder. Richardson was shot three times in the legs. A
resident at the apartments heard gunshots, then saw a Dodge Charger
speeding away shortly after the shots were fired. Another resident told police
he also heard gunshots and believed he saw two or three vehicles leave the
scene. Young and Webb drove west on Highway 4, away from the murder
scene.
Richardson called 911. He told the 911 operator that he did not know
or see who shot him.7 When police officers arrived on the scene, they found
Singh dead in the driver’s seat of the Infinity. The car was running and the
headlights were on. Officers followed a trail of blood from the passenger door
of the SUV and found Richardson lying on the ground on the opposite side of
a nearby apartment building. He was on a video phone call when officers
found him.
Around 4:00 a.m., Webb and Young arrived at Young’s home in
Oakland. At 4:07 a.m., Webb and Young talked by phone. At 4:16 a.m.,
Young texted Webb and Gardner, “ ‘Just when you thought you didn’t need
Bone [(Young)].’ ”
7 Richardson did not testify at trial.
6
D. Procedural Background
On May 27, 2020, the Contra Costa County District Attorney filed a
first amended information charging defendants with first degree murder of
Anthony Singh (§ 187, subd. (a); count 1); attempted premeditated murder of
Trevon Richardson (§§ 187, subd. (a), 664; count 2); conspiracy to commit
murder (§ 182, subd. (a)(1); count 3); active participation in a criminal street
gang (§ 186.22, subd. (a); count 4); and criminal street gang conspiracy
(§ 182.5; count 5).8 Special circumstances (lying in wait, gang murder) were
alleged as the first degree murder charge, firearm enhancements were
charged as to counts 1 and 2, and gang enhancements were charged for
counts 1, 2, and 3.
The prosecution presented testimony from gang expert San Francisco
Police Sergeant Daniel Manning in support of its theory that Young and
Webb murdered Singh in retaliation for his killing of Matthew. The
prosecution also presented extensive evidence regarding (1) surveillance
video footage captured from America’s Tire Company in Antioch, the Valero
gas station in Antioch, a BART station in Antioch, and City Nights in San
Francisco; (2) data from a police license plate reader system; (3) an expert on
cellular analysis who testified to the locations of Webb’s, Young’s, and
Bronson’s phones and mapped them to GPS tracking data from Singh’s car;
(4) iCloud account data9 and call detail records; and (5) the contents of
recorded telephone calls from San Francisco County jail.
Neither Webb nor Young testified at trial. The defense presented an
expert in GPS tracking, cell tower antenna function, and cell phone tracking
8 Count 5 was dismissed prior to submission of the case to the jury.
9 iCloud account data can include photos, videos, messaging data,
location data, and e-mails.
7
technologies who opined that Young was not at the Valero gas station and
that if his cellphone was in the vicinity of the Mira Vista apartments, it
would have connected to a different cell tower, suggesting that Young was not
at the scene of the murder.
The jury convicted defendants of first degree murder, conspiracy to
commit murder, and active participation in a criminal street gang (counts 1,
3, and 4), and acquitted them of attempted murder (count 2). As to count 1,
the jury found true the lying-in-wait special circumstance, but not the gang
murder special circumstance. The jury further found true that the murder
and conspiracy were committed for the benefit of a criminal street gang, and
with respect to the murder, that a principal discharged a firearm causing
injury.
On October 1, 2020, Webb and Young were both sentenced to two
consecutive terms of life without the possibility of parole for murder and
conspiracy to commit murder, plus 25 years for the gun use enhancement.
The court imposed an additional concurrent term of two years for active
participation in a criminal street gang. Defendants timely appealed. We
granted a motion to consolidate the appeals.
II. DISCUSSION
A. Seating of Jurors
Webb first contends he was deprived of his constitutional rights to due
process and a fair trial when the trial court seated jurors throughout the
courtroom for social distancing purposes due to the COVID-19 pandemic.10
Webb asserts that because of the seating arrangement, jurors in the gallery
“would have been unable to properly observe” him, and he and his counsel
10 Young did not join this argument, nor Webb’s argument regarding
Sanchez violations discussed below.
8
were not able to observe the jurors seated in the audience, all of which
violated his constitutional rights.
Webb’s trial took place at the beginning of the COVID-19 pandemic,
from February to June 2020. In order to maintain social distancing, the trial
court seated five jurors in the jury box and seated the other seven around the
courtroom in the first few rows of the gallery. The court considered, but
rejected, the possibility of holding the trial in a different courthouse, and
observed that even if it were held in a different location, not all jurors could
be seated in the jury box.
As an initial matter, we reject Webb’s claim because it is unsupported
by the record. Although he contends he was not able to see the jurors and
they were unable to see him, none of his citations to the record support that
assertion.
To the contrary, the record reflects that the trial court made every
effort to ensure the jurors could see defendants and vice versa. The day
before opening statements, the court stated: “And you’ll notice that we’ve
tried to place all of the defendants in the situation so they can see the jury
and the jury can see them.” A little later, the court stated: “I wanted to
make sure that none of the defendants had their backs to the jurors, that
they could be seen. But really also, they want to be able to see the jury. I’m
sure they want to be able to see reactions and other things and then have
discussions with their attorneys about those sorts of things. [¶] So that’s why
the Court made sure to turn folks in such a way that they could get a good
view of everything in the courtroom.”
Immediately after the court made this record, Young’s attorney
objected, stating, “I’ll object to this seating suggestion where jurors are
around the courtroom, some of whom are going to be behind me and oblique
9
to my client.” Webb’s counsel joined the objection, but did not state any
additional facts with respect to his client’s view of the jurors.
The description of “some” jurors being seated behind Young’s counsel
and “oblique” to Young says nothing about the jurors’ relationship to where
Webb and his counsel were seated in the courtroom. There is no basis in the
record to infer Webb was unable to see any juror he wanted to see or that any
jurors could not see him.
Moreover, the record suggests that no matter what configuration the
trial court implemented, some accommodations would be necessary to comply
with social distancing protocols, which at the time required all witnesses,
jurors, parties, attorneys, and attendees to be seated at least six feet apart.
As the trial court explained, even if the trial were held in a different
courtroom, not all jurors could be placed in the jury box and some would need
to be seated in the gallery. The logistics were no doubt further complicated
by the fact that the court had to accommodate three defendants and their
counsel. Webb does not suggest any alternative to the trial court’s
dilemma.11
11 Although Webb’s counsel suggested at oral argument that the trial
court made a hasty decision regarding seating arrangements in the
courtroom and failed to consult with all parties to find the best configuration,
the record reflects the opposite is true. The transcript contains multiple
lengthy discussions of COVID protocols, including discussions about seating
arrangements for jurors, defendants, counsel, experts, and members of the
public. Further, with specific reference to concerns about seating, the court
told counsel: “I’m open to suggestion. As we go, if you come up with ideas,
I’m happy to entertain them.” At another point, the court’s comments on the
record reflect the court listened patiently to concerns from all counsel then
stated, “Okay. I’ll consider all of those requests that I’ve heard here on these
issues. I’m going to think about it a little bit.” Webb’s counsel’s suggestion at
oral argument that the court paid little attention to seating is belied by the
trial court’s careful efforts and thoughtful consideration.
10
In any event, even if the jury was not able to observe Webb the entire
trial and he and his counsel had to turn around to see some jurors, he has not
shown a violation of his constitutional rights. California appellate courts
have repeatedly rejected claims of constitutional violations with regard to
safety precautions taken by trial courts during the COVID-19 pandemic.
(See, e.g., People v. Edwards (2022) 76 Cal.App.5th 523, 525–527 [mask
requirement did not violate confrontation rights]; People v. Lopez (2022)
75 Cal.App.5th 227, 232–236 [same]; People v. Alvarez (2022) 75 Cal.App.5th
28, 34–39 [same].) As those courts (and many others) have recognized,
following public health mandates during the pandemic “served an important
state interest in protecting the public from a contagious, and too often, lethal
disease” (Alvarez, at p. 36), and courts retain “inherent authority . . . to
promulgate procedures best suited for their particular courtrooms as they
confront the challenges presented by the global pandemic” (Lopez, at p. 236).
We find People v. Kocontes (2022) 86 Cal.App.5th 787 particularly apt
here. In Kocontes, the court rejected several arguments that the courtroom
configuration during the defendant’s criminal trial in the early COVID-19
pandemic violated his federal constitutional rights. (Id. at pp. 866–880.) In
that case, jurors were seated in a similar configuration as in this case—four
in the jury box, one in the well, and 11 in the audience throughout the
courtroom, pursuant to social distancing guidelines. (Id. at pp. 868, 880.)
The defendant moved for a mistrial, arguing in part that the social distancing
requirements disadvantaged the defense. (Id. at p. 869.) As the Kocontes
court explained in rejecting the defendant’s claim that the configuration
violated his right to due process and a fair trial: “The unprecedented global
health crisis required the trial court to balance Kocontes’s constitutional
rights, the jurors’ health, and preserving judicial resources. Judicial officers
11
at all levels undergo extensive training beginning shortly after they are
sworn in. But no training prepared this court, and courts across the United
States, with the unique challenges COVID-19 presented. The record reflects
the court remained appropriately focused on these compelling interests.” (Id.
at p. 880.) On review of the record in this case, the trial court here similarly
engaged in extensive efforts to accommodate these rights and interests.12
Webb’s constitutional rights were not violated.
B. Expert Gang Testimony
Webb next contends the trial court erred in admitting improper expert
witness testimony from San Francisco Police Sergeant Daniel Manning that
lacked foundation, relied on hearsay in violation of Sanchez, and purported to
opine on Webb’s state of mind or intent. He also contends the improperly
admitted evidence violated his confrontation rights.
Under Evidence Code section 1200, hearsay evidence—evidence of an
out-of-court statement offered to prove the truth of the matter stated—is
generally inadmissible unless it falls under a hearsay exception. (Sanchez,
supra, 63 Cal.4th at p. 674.) In Sanchez, applying the hearsay rule to expert
12 Webb cites a statement from Justice Kennedy’s concurring opinion in
Riggins v. Nevada (1992) 504 U.S. 127, that “[a]t all stages of the
proceedings, the defendant’s behavior, facial expressions, and emotional
responses combine to make an overall impression on the trier of fact, an
impression that can have a powerful influence on the outcome of trial.” (Id.
at p. 142 (conc. opn. of Kennedy, J.).) Riggins did not consider or decide
whether accommodations to seating arrangements for jurors mandated by
public health guidelines in the middle of a global public health emergency
would impermissibly interfere with a defendant’s constitutional rights. (See
id. at p. 138 (maj. opn. of O’Connor, J.) [trial prejudice may be justified by an
essential state interest].) In any event, the record here reflects that the
defendants’ ability to see the jurors and vice versa were among the key
concerns the trial court sought to accommodate in implementing the
courtroom configuration used at trial.
12
testimony, our Supreme Court explained, “When any expert relates to the
jury case-specific out-of-court statements, and treats the content of those
statements as true and accurate to support the expert’s opinion, the
statements are hearsay.” (Sanchez, at p. 686.) Although “[a]ny expert may
still rely on hearsay in forming an opinion, and may tell the jury in general
terms that he did so[,] . . . [¶] [w]hat an expert cannot do is relate as true
case-specific facts asserted in hearsay statements, unless they are
independently proven by competent evidence or are covered by a hearsay
exception.” (Id. at pp. 685–686.) “Case-specific facts are those relating to the
particular events and participants alleged to have been involved in the case
being tried.” (Id. at p. 676.) Thus, under Sanchez, hearsay statements
containing case-specific facts are admissible only if they fall under a hearsay
exception or are independently proven. (Id. at p. 686.)
Nonetheless, to challenge inadmissible evidence, an objection must be
timely and specific, and the failure to make an appropriate objection forfeits
the right to appellate review unless an objection would have been futile. (See
Evid. Code, § 353, subd. (a); People v. Clark (1992) 3 Cal.4th 41, 125–126.)
“This [rule] applies to claims based on statutory violations, as well as claims
based on violations of fundamental constitutional rights.” (In re Seaton
(2004) 34 Cal.4th 193, 198.) Here, we conclude Webb forfeited his
contentions by failing to object to Manning’s testimony in the trial court.
In a footnote, Webb asserts that “[t]o the extent objections were
articulated by defense counsel” for his codefendants, the trial court assumed
objections were joined by all parties.13 The only record citation he provides
for that assertion, however, refers to a discussion among court and counsel
13 We observe “[f]ootnotes are not the appropriate vehicle for stating
contentions on appeal.” (Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947.)
13
regarding members of the Singh family wearing face masks with his picture
on them. That exchange does not suggest that the trial court assumed all
defendants joined in all evidentiary objections, particularly given that the
parties regularly expressly joined in each other’s arguments and the trial
court often asked whether parties joined in a particular objection. Indeed,
the trial court specifically denied a request by codefendant Collins’s counsel
to “lodge a standing Sanchez objection for the duration of the [gang] expert’s
testimony on these issues,”14 telling her, “You’ll need to make your objections
to the questions as they come. I won’t accept a standing objection.” Webb’s
suggestion that the court understood he was objecting on Sanchez grounds
even when his counsel did not assert such an objection is unpersuasive.
Even if Webb preserved objections to the testimony he challenges on
appeal, however, his claims would lack merit.15
First, Webb argues that Manning impermissibly relayed out-of-court
statements of nontestifying declarants in violation of Sanchez. Webb asserts
that Manning testified “in a number of instances” to opinions that were based
on information from unidentified “informants.” The record citations he
provides for that claim, however, are two instances in which Manning’s
testimony was based in part on information from informants.16 Further,
14 It appears “these issues” referred to Manning’s testimony regarding
specific prior convictions of an alleged gang member (or possibly multiple
gang members).
15 Webb also argues that to the extent his counsel failed to object, he
rendered ineffective assistance. We address his claims on the merits in part
to resolve this alternative claim.
16 Manning based his opinion that one individual was a gang member
on “his criminal history, his tattoos, my observations of him in Big Block
gang territory. Informant information.” As to another individual, Manning
14
Manning testified generally that he relied on information from informants,
not the content of their statements. This is entirely permissible.17 (Sanchez,
supra, 63 Cal.4th at p. 685 [an expert “may still rely on hearsay in forming an
opinion and tell the jury in general terms that he did so”].)
Next, Webb contends that Manning was permitted to testify about his
opinion that Big Block members were embarrassed by Matthew’s killing and
felt they had been tricked because his killer(s) pretended to be associated
with an affiliated gang. When asked how Big Block members would have
reacted to the circumstances of Matthew’s murder, Manning testified: “I was
told they were embarrassed. I was told—obviously, they were very upset.
You can hear it in Michael’s voice in the call. So I know that’s true. [¶] It was
a slap in the face that Matthew was killed right there where he was killed
and how he was killed.” (Italics added.) When the prosecutor asked how
rivals would have reacted to the circumstances of the murder, Manning
testified: “It was embarrassing for Harbor, I was told.” (Italics added.)
Manning also said that he “heard . . . from informants” that Matthew’s killers
“were pretending they were from Kirkwood [(an allied gang)].” (Italics
added.) Webb asserts all of this testimony was inadmissible case-specific
hearsay.
testified he “arrested him after receiving information from an informant in
Marin County.”
17 Webb also asserts broadly that “Manning offered expert testimony
that relied upon, and related to the jury as true, information compiled during
investigation of crimes.” In support of this assertion, he cites to 27 pages of
the reporter’s transcript without identifying or discussing any particular
testimony. Needless to say, we will not wade through the record to make an
argument for him. (See DeNike v. Mathew Enterprise, Inc. (2022)
76 Cal.App.5th 371, 388, fn. 11 [appellate court will not examine undeveloped
claims or make arguments for parties].)
15
We disagree with Webb’s assertion the latter statement violated
Sanchez, because it was independently established by other admissible
evidence introduced at trial. (Sanchez, supra, 63 Cal.4th at p. 686; People v.
Camacho (2022) 14 Cal.5th 77, 129–130.) Manning’s comment that he heard
from informants that Matthew’s killers pretended to be from another gang
was offered as part of a longer response to a question about the meaning of
the recorded jail phone call between Michael and Webb. On cross-
examination, defense counsel asked Manning, specifically with reference to
Webb’s use of the term “movement”18 during that phone call: “Now with
regard to the way in which Mr. Webb uses it, he’s essentially saying that
the—well, based upon what you’ve heard and read and seen in the phone call,
essentially what’s being said is that these two individuals that were
responsible for killing Matthew were pretending like they were down with
the movement; is that correct?” Manning responded: “That’s correct. And I
had heard that from informants, too, that they were pretending they were
from Kirkwood.” (Italics added.) In response to further questions regarding
the contents of the phone call, Manning explained that Webb and Michael
discussed that Singh and Richardson pretended “to know people in
Kirkwood.” Thus, the hearsay from unspecified informants merely reiterated
what Webb and Michael discussed in the recorded jail phone call, the
admissibility of which Webb does not challenge.
Similarly, with respect to the testimony that gang members were
“embarrassed” by the circumstances of Matthew’s murder, it is clear from
Manning’s testimony that he was relying not only on comments he heard
18 Manning testified he had heard about the “movement” since he was
assigned to the gang task force in 2007 or 2008, and it referred to the
“purpose of the gang” or a “type of, you know, calling to be in this gang
activity.”
16
from unidentified informants, but on the contents of the recorded phone call
with Michael and what he knew from his own experience as a member of the
gang unit in interpreting the conversation between Webb and Michael.
Manning testified he could “hear it in Michael’s voice in the call. . . . [¶] It
was a slap in the face that Matthew was killed right there where he was
killed and how he was killed.” Manning also testified without objection that,
“One of their gang members was killed. Obviously, it’s been my experience to
retaliate and to get your pound of flesh from the people who did that.” He
further explained that “there was obviously some confusion within the gang
of what happened and how it was allowed to happen.” In addition, in earlier
testimony about Matthew’s murder, Manning explained that “it was not a
fair way he was murdered. . . . you were ambushed, didn’t get a chance, or
someone set you up to be murdered. It wasn’t like a gang battle and you died
an honorable death.” Because Manning’s opinion regarding the gang’s
reaction to the circumstances of Matthew’s murder was based both on the
content of Michael and Webb’s phone call and Manning’s background
knowledge and experience, there was no Sanchez violation.19
Webb also contends that Manning’s testimony exceeded the proper
scope of expert testimony because he testified to Webb’s subjective mental
state and intent, and thus, invaded the province of the jury by offering an
opinion as to the ultimate question of his guilt. Specifically, Webb points to
Manning’s testimony that (1) Big Block members were embarrassed about
Matthew’s shooting; (2) Webb and others believed Singh and Richardson had
pretended to be from Kirkwood; and (3) a comment on social media stating,
19 Further, as the Attorney General points out, had Webb objected to
Manning’s testimony as hearsay, Manning would have had an opportunity to
give similar testimony without referring to hearsay and elaborate on how his
experience informed his opinion.
17
“ ‘My heart is heavy right now. Rest up, little bro. We got it from here,’ ” was
a statement by Webb intending to reassure Michael that he would avenge
Matthew’s death and demonstrated his “leadership role” in the gang. 20
First, Webb has again forfeited his objections to all of this testimony as
he failed to object on these grounds in the trial court. (Evid. Code, § 353,
subd. (a).) In any event, they lack merit.
In making this argument, Webb relies on People v. Killebrew (2002)
103 Cal.App.4th 644 (Killebrew), in which the appellate court reversed a
conviction for possession of firearms because a gang expert impermissibly
testified as to the defendant’s subjective knowledge and intent to possess a
handgun. While testimony regarding the expectations, culture, and habits of
a gang would have been permissible, the court held the expert could not
testify to the knowledge and intent of an individual defendant because such
issues were reserved to the trier of fact.21 (Killebrew, at pp. 654–658.)
Here, Manning did not offer an opinion about Webb’s knowledge and
intent when he committed the crime against Singh—he testified to the
reaction of the gang in general to the circumstances of Matthew’s murder.
That brief testimony, that Big Block members generally were “embarrassed”
because they had been “snaked” (i.e., tricked) by two individuals pretending
to be with the Kirkwood gang, was about the gang’s culture and expectations,
not an inference Manning had drawn about Webb’s intent or state of mind at
20 As the Attorney General correctly observes, Manning testified his
opinion that Webb held a leadership role in Big Block was based on Webb’s
recorded conversations with Michael, not the comment on social media.
21 Our Supreme Court disapproved of Killebrew to the extent it
concluded an expert could not express an opinion based on hypothetical
questions that tracked the evidence as to whether an assault would have
been committed for a gang purpose. (People v. Vang (2011) 52 Cal.4th 1038,
1048–1049.)
18
the time of the murder. Further, as explained above, Manning’s opinion
about Big Block’s reaction to Matthew’s death was supported by other
evidence, including the contents of Webb and Michael’s phone call, the
admissibility of which Webb does not challenge on appeal.
In any event, even if some of Manning’s testimony was inadmissible,
any error was harmless beyond a reasonable doubt. There was overwhelming
evidence that Webb was a Big Block member who participated in the
conspiracy to kill Singh. Manning had known Webb for many years and
knew he was a Big Block member based on photographs, his posts to social
media, his tattoos, and admissions in a prior federal case. Manning also
provided extensive background on Big Block’s history as a gang and gave his
expert opinion that Young, Michael, and others involved in the conspiracy
were gang members based on his personal knowledge, photographs, videos,
and posts on social media. Further, while the gang evidence tended to
establish a motive for Singh’s murder, that same motive would have been
apparent notwithstanding the hearsay statements based on the contents of
the recorded phone call between Webb and Michael and Manning’s other
testimony about retaliation. In addition, other properly admitted evidence
showed additional motives: that Webb was very close to Matthew and
Michael, and felt an obligation to Michael and his mother to avenge
Matthew’s murder. Thus, Webb had a strong motive regardless of the gang
evidence.
And even without the evidence regarding motive, the murder and
conspiracy to commit murder were proven by the incriminating text
messages, phone calls, GPS tracking data, video footage, and cell tower data
showing defendants followed the victims from San Francisco to Antioch and
were at the murder scene when Singh was killed. Thus, the impact of any
19
improper gang evidence on the murder and conspiracy charges was harmless
beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24
(Chapman).)
C. Batson/Wheeler Error
Both defendants22 contend the trial court erred in failing to find a
prima facie case of racial discrimination based on the prosecutor’s use of a
peremptory challenge to strike an African-American juror in violation of
Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978)
22 Cal.3d 258 (Wheeler).
1. Background Facts
Before voir dire, prospective jurors completed questionnaires, though
none of the questionnaires or responses have been included in the appellate
record.
During voir dire, the trial court questioned Prospective Juror B., who
told the court that he had brothers and a nephew who had been through the
criminal court system in Contra Costa County. Prospective Juror B. did not
recall the specific details of their cases. When the court asked if there was
anything about how they had been treated by law enforcement or the courts
that left Prospective Juror B. feeling like his relatives had been treated
unfairly, he responded, “Not really, I guess.” He also denied feeling like their
lawyers did not do their jobs and said he did not know anything about who
prosecuted the cases.
Prospective Juror B. told the court he had been court-martialed in
1980. When the court asked if there was anything that “lingers with you”
22 This argument and the remaining arguments addressed in this
opinion were briefed on appeal by Young. Webb filed a joinder in all of
Young’s arguments.
20
from that experience that would “creep into this case,” Prospective Juror B.
said simply, “No.” He also confirmed that he was trained in firearms because
of his background in military service and his work in security. When asked
by the court, Prospective Juror B. confirmed that he would be able to follow
the law as it relates to firearms or ammunition, even if he did not agree with
it.
The court next asked Prospective Juror B. about a situation where he
“spent time for a traffic violation and a DUI,” and asked whether he would
characterize that as a negative experience.23 Prospective Juror B. confirmed
he would. The court asked, “Can you tell me about that a little bit?” and he
responded, “Not really.” He told the court those experiences were in the
“90’s, maybe,” and said he thought they were in Alameda County.
Prospective Juror B. denied those experiences would cause him to assess the
testimony of a police officer differently than testimony by others. He
confirmed he could be fair to both sides. The court then asked, “Is there
anything else? I feel like you’re waiting to add something there,” to which he
responded, “No. I don’t want to add nothing.”
Later in voir dire, the prosecutor questioned Prospective Juror B.
Prospective Juror B. told the prosecutor that he had nine brothers, and
confirmed that he communicated with them frequently. When asked if he
had talked with them about their cases, Prospective Juror B. responded,
“Probably have.” The prosecutor asked if he had a sense of what their cases
involved and he said, “It’s a little bit of everything.” Prospective Juror B. said
it had “been . . . . [o]ver a decade” since his brothers’ cases. He confirmed he
had attended court during his brothers’ cases and that they went to trial. He
23 It is unclear from the record whether the traffic violation and DUI
were separate incidents.
21
did not know how many cases went to trial. One of his brothers was tried for
murder and served time. That brother was out of custody and Prospective
Juror B. denied that anything about the trial or conversations with his
brother “stay[ed] with” him. He could not remember details about trials for
any of his other brothers.
Prospective Juror B.’s nephew, who had recently been released, served
time for robbery or burglary. Asked if he had talked with his nephew about
his case, he responded, “Probably have.”
Regarding his court-martial in the early 1980’s, Prospective Juror B.
said, “The whole thing was unfair. I was young. I didn’t have representation,
I guess.” He then added, “But that was decades ago, so I’m over it.” He was
discharged from the army after his court-martial.
Prospective Juror B. told the prosecutor that he believed his DUI was
in the 1990’s and he served 30 days in jail. When the prosecutor asked if he
was satisfied with his legal representation in that case, he responded, “I
guess back then it was either pay or sit,” so he “sat.” Asked if he thought
that was unfair at the time, he said, “No. Yeah. Because it’s the way of
writing tickets out for no reasons. So yeah.” The prosecutor asked if he still
felt strongly about that, but Prospective Juror B. said, “That was back then.
It’s a new time.”
Counsel for Young and Webb asked Prospective Juror B. general
questions about whether he could carry out his duties as a juror and follow
the law. They did not ask about his DUI, court-martial, or relatives in the
criminal justice system.
The prosecutor used her third peremptory strike to remove Prospective
Juror B. from the jury. Codefendant Collins’s counsel brought a
Batson/Wheeler motion, arguing that Prospective Juror B. appeared to be an
22
African-American juror who had not “given any answers to give rise to
excusal.” Young’s counsel joined the objection, stating that “maybe one or
two” other African-American jurors were seated in the venire. Webb’s
counsel also joined in the objection, noting for the record that all of the
defendants are African-American.
The court first stated that Prospective Juror B. was “a member of a
cognizable group as he is African American,” but ruled the defense had not
made a prima facie case showing “just because [he] is in a cognizable group.”
The court stated there were “race neutral reasons why a prosecutor would
excuse” Prospective Juror B., noting he “has many family members who have
been through the court system.” The court further observed that Prospective
Juror B. had been “evasive” in his responses to the prosecutor and the court
on voir dire. The court gave the prosecutor an opportunity to state a response
on the record. The prosecutor agreed there had been an inadequate showing
because he was the “first apparently African American juror who I’ve
exercised a peremptory against,” and asserted there was “no established
pattern of kicking members from that cognizable class.”
2. Analysis
Although a prosecutor may exercise a peremptory challenge to strike a
prospective juror “ ‘for any reason, or no reason at all’ ” (People v. Scott (2015)
61 Cal.4th 363, 387 (Scott)), he or she may not use a peremptory challenge to
“ ‘strike prospective jurors on the basis of group bias—that is, bias against
“members of an identifiable group distinguished on racial, religious, ethnic,
or similar grounds” ’ ” (People v. Bell (2007) 40 Cal.4th 582, 596 (Bell),
disapproved on another ground in Sanchez, supra, 63 Cal.4th at p. 686,
fn. 13). Doing so violates a defendant’s federal right to equal protection set
forth in Batson, supra, 476 U.S. at pages 88 to 89, and his or her state right
23
to a trial by a jury drawn from a representative cross-section of the
community under article I, section 16 of the California Constitution set forth
in Wheeler, supra, 22 Cal.3d at pages 276 to 277. (Accord, People v. Gutierrez
(2017) 2 Cal.5th 1150, 1157.) As our Supreme Court explained in Scott, “The
Batson/Wheeler framework is designed to enforce the constitutional
prohibition on exclusion of persons from jury service on account of their
membership in a cognizable group. It is also designed to otherwise preserve
the historical privilege of peremptory challenges free of judicial control, which
‘traditionally have been viewed as one means of assuring the selection of a
qualified and unbiased jury.’ ” (Scott, at p. 387.)
A defendant bears the ultimate burden of showing a constitutional
violation (People v. Lenix (2008) 44 Cal.4th 602, 612–613 (Lenix)), but courts
employ a three-step, burden-shifting mechanism in assessing whether a
Batson/Wheeler violation has occurred. The defendant must first “make out
a prima facie case by showing that the totality of the relevant facts gives rise
to an inference of discriminatory purpose in the exercise of peremptory
challenges.” (Scott, supra, 61 Cal.4th at p. 383.) If the trial court finds the
defendant has established this prima facie case, the prosecutor must then
“explain adequately the basis for excusing the juror by offering permissible,
nondiscriminatory justifications.” (Ibid.) Lastly, the court must make a
“ ‘sincere and reasoned effort to evaluate the nondiscriminatory
justifications’ ” (People v. Williams (2013) 56 Cal.4th 630, 650) and decide
whether the prosecutor’s proffered reasons are subjectively genuine or
instead a pretext for discrimination (Scott, at p. 383; People v. Duff (2014)
58 Cal.4th 527, 548).
Here, the trial court denied defendants’ Batson/Wheeler motion at the
first step, finding there had not been a prima facie showing of discrimination.
24
We apply the deferential substantial evidence standard of review to the trial
court’s ruling. (People v. Battle (2021) 11 Cal.5th 749, 772 (Battle); People v.
Silas (2021) 68 Cal.App.5th 1057, 1095.) We examine the entire record before
the trial court at the time of the motion to determine whether it supports an
inference of group bias. (Battle, at p. 773.)
While proof of a prima facie case may be established by any information
in the record, our Supreme Court has identified “[c]ertain types of evidence
[that] are especially relevant to this inquiry, including whether the
prosecutor has struck most or all of the members of the venire from an
identified group, whether a party has used a disproportionate number of
strikes against members of that group, whether the party has engaged
prospective jurors of that group in only desultory voir dire, whether the
defendant is a member of that group, and whether the victim is a member of
the group in which the majority of the remaining jurors belong.” (Battle,
supra, 11 Cal.5th at p. 773; Scott, supra, 61 Cal.4th at p. 384.) A court may
also consider nondiscriminatory reasons for a peremptory challenge that are
clearly established in the record and that necessarily dispel any inference of
bias. (Battle, at p. 773; Scott, at p. 384.) However, “a reviewing court may
not rely on a prosecutor’s statement of reasons to support a trial court’s
finding that the defendant failed to make out a prima facie case of
discrimination . . . . [T]he fact that the prosecutor volunteered one or more
nondiscriminatory reasons for excusing the juror is of no relevance at the first
stage.” (Scott, at p. 390.)
First, while no prospective juror may be struck on improper grounds,
our Supreme Court has explained that “ ‘[a]s a practical matter, . . . the
challenge of one or two jurors can rarely suggest a pattern of impermissible
exclusion.’ ” (Bell, supra, 40 Cal.4th at p. 598; accord, People v. Garcia (2011)
25
52 Cal.4th 706, 747; People v. Bonilla (2007) 41 Cal.4th 313, 343 (Bonilla).)
“ ‘Although circumstances may be imagined in which a prima facie case could
be shown on the basis of a single excusal, in the ordinary case . . . to make a
prima facie case after the excusal of only one or two members of a group is
very difficult.’ ” (Battle, supra, 11 Cal.5th at p. 776; see People v. Taylor
(2010) 48 Cal.4th 574, 614 [defense counsel failed to establish prima facie
case based on fact that single excused juror was African-American]; Bonilla,
at p. 343 [“ ‘the small absolute size of this sample makes drawing an
inference of discrimination from this fact alone impossible’ ”].)
Here, there is evidence only that the prosecution used one peremptory
strike against one African-American juror. The weakness of the record in
this regard is compounded because defendants have failed to show how many
of the prospective jurors were African-American or whether any African-
American jurors were impaneled.24 (Cf. Battle, supra, 11 Cal.5th at p. 774
[jury’s composition served as “standalone evidence to inform [the Supreme
Court’s] step-one analysis” and was “particularly germane where the case
was racially charged”]; People v. Hawthorne (2009) 46 Cal.4th 67, 79
[defendant bears burden of demonstrating inference of discrimination and in
making prima facie showing “should make as complete a record of the
circumstances as is feasible”].)
Second, defendants have not shown that the prosecutor’s questioning of
Prospective Juror B. was cursory or materially different from the questioning
of other jurors. (Bonilla, supra, 41 Cal.4th at p. 343.) To the contrary, the
prosecutor thoroughly questioned Prospective Juror B. about his own and his
24 As noted above, when joining in the Batson/Wheeler challenge,
Young’s counsel noted that there may have been one or two other African-
American jurors in the venire.
26
family’s experiences with the criminal justice system and whether those
experiences would affect his deliberations.
Third, while not required at this stage, the record of voir dire reveals
reasons for excusing Prospective Juror B. that were valid, race-neutral
reasons at the time of jury selection, including that he had multiple close
family members (brothers and a nephew) who had been involved in serious
criminal proceedings.25 (See People v. Reed (2018) 4 Cal.5th 989, 1001
[relative’s negative experience with law enforcement is “race-neutral
hypothetical reason for a strike”]; People v. Bryant (2019) 40 Cal.App.5th 525,
537.) Moreover, Prospective Juror B. himself had been court-martialed—a
process he described as “unfair”—and had spent 30 days in jail for a DUI.
When asked if he felt the DUI was fair at the time, he responded, “No. Yeah.
Because it’s the way of writing tickets out for no reasons. So yeah.” (See,
e.g., People v. Hardy (2018) 5 Cal.5th 56, 82 [juror’s belief he had been
treated unfairly during prior arrest was race-neutral reason]; People v.
Winbush (2017) 2 Cal.5th 402, 436 [juror’s prior arrest was race-neutral
reason].) While Prospective Juror B. also stated that he felt he could be fair,
impartial, and apply the law, such responses do not raise any inference of
bias when there are race-neutral reasons for excusing him that are clearly
reflected in the record. (See, e.g., Battle, supra, 11 Cal.5th at p. 778; Scott,
supra, 61 Cal.4th at p. 385.)
25 Although Code of Civil Procedure section 231.7, as recently amended,
provides that a juror’s close relationship with someone who had been arrested
is presumed to be an invalid reason, this statute was not yet in effect at the
time of jury selection in this matter. (See Code Civ. Proc., § 231.7, subd. (i)
[provision applies to “jury trials in which jury selection begins on or after
January 1, 2022”].)
27
Finally, we reject defendants’ arguments on appeal as to why the trial
court erred in finding no prima facie showing at the first stage. Defendants
complain that the trial court committed procedural error by substituting its
own judgment for that of the prosecutor in stating race-neutral reasons on
which a prosecutor could rely and commenting that Prospective Juror B.’s
responses to questions on voir dire were evasive. We disagree. The trial
court described these justifications before inviting the prosecutor to state her
reasons. The court’s comments merely show that the trial court was noting
the existence of race-neutral reasons clearly established in the record. (Scott,
supra, 61 Cal.4th at p. 384.) Further, the trial court’s observation that
Prospective Juror B. gave evasive responses was not a “highly subjective
assessment” as defendants contend, but is reflected in his numerous
equivocal answers to questions asked by both the court and the prosecutor.
Defendants also contend the trial court should have considered the
documented and well-established recent history of racially discriminatory
jury selection practices by the Contra Costa County District Attorney, but
defendants did not raise this issue below and do not point to any evidence in
the record before the trial court on this point. (See Lenix, supra, 44 Cal.4th
at p. 624 [trial court’s decision on Batson/Wheeler motion is reviewed on
record as it stands at time of ruling].) Accordingly, the argument is forfeited.
Defendants also rely on legislative intent reflected in Assembly Bill No. 3070
(Reg. Sess. 2019–2020) to mitigate the effects of bias in jury selection, but
they concede that statute applies only prospectively to jury selection
beginning on or after January 1, 2022. (Code Civ. Proc., § 231.7, subd. (i).)
Their contention that the record in this case would be problematic under the
new legislation is unpersuasive, as it clearly did not apply when the jury in
this matter was selected.
28
In sum, we conclude the trial court correctly determined that
defendants failed to make a prima facie showing of group bias with respect to
Prospective Juror B. The Batson/Wheeler motion was properly denied.
D. Third Party Culpability Evidence
Defendants next argue their judgments must be reversed because the
trial court impermissibly excluded evidence regarding three other identified
individuals who may have shot Singh.
1. Additional Background
Young moved to introduce, and the prosecution moved to exclude,
evidence that (1) Andre Brewer, (2) Trevon Richardson, or (3) Cleashaun Hill
may have shot Singh.
Andre Brewer’s son was allegedly a victim of a robbery committed by
Singh and Richardson a few weeks prior to Singh’s murder. On October 22,
2018, Richardson texted Singh’s father a screenshot of Brewer. The caption
said something to the effect of, “ ‘This is the person who shot me.’ ”
Defendants asserted the text was admissible to prove that Brewer killed
Singh.
Defendants also sought to introduce evidence that Richardson himself
and Cleashaun Hill each had motive and an opportunity to kill Singh, either
to “save face” in Big Block or to avoid an obligation to pay Singh the
remainder of the money he was owed for killing Matthew. D.Y., Singh’s
girlfriend at the time of his murder, told police that Singh told her that Hill
hired him to kill Matthew, and Singh had only been paid part of what was
promised for the job. She also said that Singh sent her a text on his way to
meet with Hill to collect part of his payment stating that if anything
“happen[ed]” to him, Hill did it. Singh’s mother, D.S., corroborated some of
D.Y.’s and Singh’s statements.
29
Defendants also sought to introduce evidence that Singh had a gun at
the time of the murder to prove Singh feared for his safety and to support the
defense theory that “numerous people wanted him dead.”
Before trial, the trial court held a hearing on third party culpability.
Regarding the text message from Richardson to Singh’s father indicating that
Brewer shot Singh, the court questioned the parties about the details of
Singh’s alleged robbery of Brewer’s son, then asked, “[O]ther than this motive
that’s been asserted here, what evidence is there that would link Mr. Brewer
to the night of the shooting?” Young’s counsel argued that because
Richardson was an eyewitness to the shooting, his text to Singh’s father
stating that Brewer was the shooter was inconsistent with his statement to
police on the night of the shooting that he did not know who did it. The court
responded: “If you have an eyewitness who says, I was there, Mr. Brewer did
this. I’m going to allow that person to testify to that. That would be evidence
directly tying someone to this. [¶] But, as I understand the evidence, Mr.
Richardson formed a belief, it was not based on personal observation of
anything, and based on that belief that, ahh, this must be retaliation for the
robbery, it had to be [Brewer], he then sent the picture off, and that’s what
led to the interview of Mr. Brewer.” Young’s counsel then argued that “[y]ou
have to assume . . . that [Richardson] was truthful with the police” when he
told them he did not know who did it, that he did not see the shooter—but
that statement was inconsistent with what he told “everyone else but
police”—that the shooter was Brewer.
The trial court told defense counsel they could bring Richardson in for
an Evidence Code section 402 hearing (section 402 hearing), but barring
testimony from Richardson or other witnesses that laid a foundation for his
knowledge that Brewer was the shooter or otherwise connected Brewer with
30
the shooting, the court would not allow the evidence because it was hearsay,
would confuse the jury, and failed to meet the standard set forth in People v.
Hall (1986) 41 Cal.3d 826 (Hall) and subsequent decisions regarding
admissibility of third party culpability evidence. Otherwise, the court ruled
the robbery of Brewer’s son was “completely irrelevant” and was “more [of] an
effort to paint a picture of [Singh] and [Richardson] so that the jury is
impassioned and inflamed against them.” Thus, according to the court, the
evidence was not only “actually prejudicial,” but “also . . . confusing”; the
court would not “try that robbery within this case,” because there was
insufficient evidence to connect them. The court then told the parties if
something came out in discovery that connected Brewer with the murder,
they could revisit the issue.
When the issue was raised again during trial, the prosecutor argued
Richardson’s statements on the 911 call—that he did not know who the
shooter was and did not see the person—were not inconsistent in any way
with his text to Singh’s father indicating Brewer was the person who shot
him. The trial court agreed and again sustained the prosecution’s objection
to admission of the text from Richardson to Singh’s father.
Regarding the statements by D.Y. and D.S. that Hill hired Singh to kill
Matthew but only paid him part of the amount owed, the court asked the
parties what evidence other than those statements and motive would connect
Hill to Singh’s murder. Young’s counsel responded the only other evidence
was the text from Singh to D.Y. stating, “ ‘If anything happens to me, it’s Hill
and Richardson.’ ”26 As with the Brewer evidence, the court stated it would
26 Later in the hearing, Young’s counsel conceded the statement “ ‘If
anything happens to me, it’s . . . Richardson’ ” was hearsay that would not be
admissible to prove Richardson or Hill committed the murder.
31
allow a section 402 hearing if the parties had “witnesses who have admissible
evidence that connects them to the killing” beyond just motive.
During D.Y.’s testimony at the section 402 hearing, the court again
ruled her statements about what Singh told her were irrelevant and
inadmissible. Defense counsel argued the statements were a declaration
against penal interest when made, admissible under Evidence Code
section 1230. The court observed they would be declarations against interest
as to Singh, but not as to Richardson. The court further questioned the
relevance of Singh’s statements, observing the defendants had already gotten
in, without objection from the prosecution, that Singh anticipated being paid
$12,000 for Matthew’s murder, and ruled there was no relevance to the
amount he was actually paid.
The trial court also excluded any evidence that Singh was armed at the
time of the shooting both because it was irrelevant and its relevance was
substantially outweighed by its prejudicial effect under Evidence Code
section 352.
At a hearing on March 10, 2020, Richardson invoked his Fifth
Amendment right not to testify. The court refused to grant Richardson
immunity in exchange for his testimony.
2. Analysis
Defendants contend the trial court erred in excluding (1) the text from
Richardson to Singh’s father with a photo of Brewer and a caption indicating
Brewer shot Singh; (2) D.Y.’s statements (and D.S.’s corroborating
statements) that Singh told D.Y. (a) Hill paid him to kill Matthew, (b) he had
only been partially paid, and (c) if anything happened to him, Hill was
responsible; and (3) evidence that Singh was armed at the time of the
shooting, which corroborated D.Y’s statements that Singh feared for his
32
safety. Defendants assert that all of the out-of-court statements were
admissible under various hearsay exceptions and that the trial court violated
their constitutional rights to present a defense and to a fair trial by excluding
evidence that these other individuals may have been responsible for the
murder.
We review a trial court’s rulings excluding evidence at trial for abuse of
discretion. (People v. Turner (2020) 10 Cal.5th 786, 817.)
a. Brewer text
As an initial matter, the trial court did not err in excluding
Richardson’s text stating Brewer was the shooter because it was inadmissible
hearsay, i.e., an out-of-court statement offered to prove the truth of the
matter asserted. (Evid. Code, § 1200, subd. (a).) Defendants argue cursorily
that the text was admissible “because it was a prior inconsistent statement
by a hearsay declarant,” citing to Evidence Code section 1202, but they fail to
develop the argument.
In any event, Richardson’s statement in the text message that Brewer
was the shooter was simply not inconsistent with his statements in his 911
call that he did not see who shot him and did not know who the shooter was
at the time of the murder. The text to Singh’s father was sent over two
months after the shooting, and contains no context or explanation for his
assertion Brewer was the shooter. As the trial court so aptly explained in
extensive colloquy with counsel, there is no reason to infer Richardson’s
statement was based on having seen the shooter, as opposed to having
developed such a belief in the months following the shooting. Because
defendants have not shown Richardson made any inconsistent statements,
the text was inadmissible hearsay.
33
Further, as the trial court correctly concluded, without knowing
whether Richardson’s text was based on having actually seen Brewer, and in
the absence of any other direct or circumstantial evidence linking Brewer to
the crime, evidence that Brewer had a motive to kill Singh because Singh had
robbed his son earlier was an insufficient basis for admission of the evidence.
“To be admissible, . . . third-party evidence need not show ‘substantial proof
of a probability’ that the third person committed the act; it need only be
capable of raising a reasonable doubt of defendant’s guilt. At the same time,
we do not require that any evidence, however remote, must be admitted to
show a third party’s possible culpability. . . . [E]vidence of mere motive or
opportunity to commit the crime in another person, without more, will not
suffice to raise a reasonable doubt about a defendant’s guilt: there must be
direct or circumstantial evidence linking the third person to the actual
perpetration of the crime.” (Hall, supra, 41 Cal.3d at p. 833; accord, People v.
Turner, supra, 10 Cal.5th at pp. 816–817.)
As the Hall court explained, “courts should simply treat third-party
culpability evidence like any other evidence: if relevant it is admissible
([Evid. Code,] § 350) unless its probative value is substantially outweighed by
the risk of undue delay, prejudice, or confusion ([id.,] § 352).” (Hall, supra,
41 Cal.3d at p. 834.) Here, the trial court carefully considered the facts of the
case and reasonably concluded that Richardson’s text was irrelevant because
there was no basis to infer he had actually seen Brewer, and Richardson’s
unsubstantiated belief about the identity of the shooter was irrelevant.27
27 We reject defendants’ argument that Hall cannot be reconciled with
article I, section 28, subdivision (f)(2) of the California Constitution or the
accused’s right to present a defense, the presumption of innocence, and the
right to a fair trial. Hall was decided four years after enactment of the
34
(Hall, at p. 834 [admissibility of third party culpability evidence and
balancing under Evid. Code, § 352 will always turn on facts of case].)
In addition to its concerns about relevance, the trial court excluded the
text message because in the absence of testimony from Richardson or some
evidence connecting Brewer to the shooting, his text message would be
“completely confusing to a jury under [an Evidence Code section] 352
analysis.” We agree. Assuming, as defendants argue, that the text were
admissible to impeach Richardson’s credibility, a jury may find it difficult to
parse that purpose from the truth of the matter asserted in the statement.
More significantly, without knowing the basis for Richardson’s purported
knowledge that Brewer was the shooter, its probative value was minimal.
Further, the prosecution made an offer of proof that the police determined
through Google location data that Brewer was at home at the time of the
murder and that Brewer’s hands were too disabled to pull the trigger of a
firearm. Thus, the trial court could reasonably conclude the probative value
of the text message was substantially outweighed by the potential for
prejudice. (Evid. Code, § 352; People v. Verdugo (2010) 50 Cal.4th 263, 290–
291 [trial court did not abuse discretion in excluding evidence that would
require lengthy evidentiary detour into marginally relevant matter that
would serve only to confuse jury].) For the same reasons, admitting the
“Right to Truth-in-Evidence” amendment to our state Constitution, and we
are bound by it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.) In any event, as we discuss further below, our Supreme Court in
Hall instructed that third party culpability evidence is to be treated like any
other evidence—if relevant, it is admissible subject to the court’s discretion
under Evidence Code section 352. (Hall, supra, Cal.3d at p. 834.) That rule
does not run afoul of the right to truth-in-evidence provision, which provides
that except as provided by statute, relevant evidence shall not be excluded in
criminal proceedings. (Cal. Const., art. I, § 28, subd. (f)(2).)
35
Richardson text would result in an undue consumption of time and confusion
of issues because the defense would seek to prove the circumstances of
Brewer’s son’s robbery, while the prosecution would seek to introduce
evidence that Brewer did not and could not have committed the murder.
(Evid. Code, § 352; People v. Rhoades (2019) 8 Cal.5th 393, 417 [trial court
did not abuse its discretion by excluding evidence where the consumption of
time outweighed probative value].)
Nor are we persuaded by defendants’ argument that the trial court’s
ruling gave the prosecution an unfair advantage because the prosecution’s
case relied “largely” on motive. The prosecution’s theory that defendants
murdered Singh in retaliation for Matthew’s murder was supported by ample
circumstantial evidence linking them directly to the murder—including text
messages, video surveillance, and GPS location data. On this record, the trial
court did not abuse its discretion in excluding Richardson’s text messages
regarding Brewer.
b. Singh’s statements to D.Y. and D.S.
Next, defendants contend the trial court erred by excluding evidence of
Singh’s statements, described above, to D.Y. and D.S.
First, D.Y.’s and D.S.’s statements to the police about what Singh told
them are double hearsay. (Evid. Code, §§ 1200, 1201; People v. Anderson
(2018) 5 Cal.5th 372, 403 [double hearsay admissible if there is a justification
for admitting it at each level].) Defendants contend Singh’s statements to
D.Y. that Hill had hired him to kill Matthew and still owed him money were
admissible as statements against penal interest (Evid. Code, § 1230), but
they do not contend Singh’s statement that if anything happened to him Hill
was responsible would qualify for the same hearsay exception.
36
Even assuming all of the out-of-court statements were admissible,
however, the trial court properly excluded them based on their lack of
relevance. As discussed above, “evidence of mere motive or opportunity to
commit the crime in another person, without more, will not suffice to raise a
reasonable doubt about a defendant’s guilt: there must be direct or
circumstantial evidence linking the third person to the actual perpetration of
the crime.” (Hall, supra, 41 Cal.3d at p. 833.) Here, the only evidence
connecting Hill to the murder was motive and opportunity evidence, but that
is not enough to raise a reasonable doubt about defendants’ guilt. Singh’s
statements to D.Y. about Hill owing him money for murdering Matthew were
made immediately after he committed the crime on July 24, 2018. Likewise,
Singh’s text about Hill being responsible if anything happened to him was
sent to D.Y. several days later while he was on his way to meet with Hill and
another individual in a parking lot to collect part of his payment. Singh’s
statement to D.S. merely corroborated D.Y.’s statements that Singh was
afraid of Hill when he went to collect his payment for Matthew’s murder. At
most, these statements taken together provide some tenuous evidence of a
possible motive, but they do not provide any direct or circumstantial
connection to the actual perpetration of Singh’s murder on August 19, 2020.
Any inference that Hill murdered Singh to avoid having to pay him the
balance owed for Matthew’s murder was purely speculative. As the trial
court observed, “I mean, we can go through [Singh’s] life and find out who all
his enemies are, and then go through each one of those. [¶] . . . And pretty
soon we’re not even on the issues that [are] before this jury.”
Defendants also contend in their appellate briefing that the “evidence
that Hill wanted Singh dead also tended to support an inference that
Richardson, undisputedly the last person to see Singh alive, shot Singh to
37
avoid himself being targeted by Hill. . . . In this alternative scenario,
Richardson may have identified Brewer in an effort to deflect suspicion from
him.” Notwithstanding that defendants apparently failed to raise this
argument in the trial court, the convoluted and speculative theory offers
nothing more than an alternative possible motive for the murder.
Accordingly, defendants have not shown the trial court abused its discretion
in excluding Singh’s statements.
In sum, because the evidence regarding Hill’s and Richardson’s
purported motives for killing Singh was not supported by any other direct or
circumstantial evidence connecting them to Singh’s murder, the trial court
did not err in excluding the statements.
c. Singh’s gun
Defendants also contend the trial court erred by excluding evidence
that Singh was armed on the night of his murder because it corroborated
D.Y.’s statements that Singh feared for his safety. But even assuming we can
infer Singh carried a gun because he feared for his safety, defendants fail to
explain how such a generalized fear tends to raise a reasonable doubt as to
defendants’ guilt. As Webb’s counsel argued to the trial court, the fact that
Singh carried a gun might be relevant to a “third-party culpability argument
that numerous people wanted him dead, numerous people had a motive”
(italics added), but without more it does not tend to prove Hill or Richardson
(or any other individual for that matter) shot him. Because defendants have
failed to explain the relevance of the evidence that Singh was armed at the
time of the murder, we conclude the trial court did not abuse its discretion in
excluding the evidence.
d. Federal constitutional error
38
Finally, we reject defendants’ argument that the trial court’s exclusion
of third party culpability evidence violated their federal due process rights
and their rights to present a defense. “[T]he routine application of provisions
of the state Evidence Code law does not implicate a criminal defendant’s
constitutional rights.” (People v. Jones (2013) 57 Cal.4th 899, 957; Hall,
supra, 41 Cal.3d at p. 834.) “[O]nly evidentiary error amounting to a
complete preclusion of a defense violates a defendant’s federal constitutional
right to present a defense.” (People v. Bacon (2010) 50 Cal.4th 1082, 1104,
fn. 4.) There was no violation of defendants’ constitutional rights.
E. Assembly Bill 333
Defendants next argue the judgments must be reversed based on
changes to section 186.22 that redefined the offense of active participation in
a criminal street gang. First, they contend the record lacks substantial
evidence of every element necessary to the prosecution’s gang case under the
amended statute. Alternatively, they argue they are entitled to a new trial
because the trial court’s instructions to the jury omitted crucial elements of
the offense under the new law.
Section 186.22 criminalizes active participation in a “criminal street
gang,” and enhances the punishment for certain crimes committed “for the
benefit of, at the direction of, or in association with any criminal street gang,
with the specific intent to promote, further, or assist in criminal conduct by
gang members.” (§ 186.22, subds. (a), (b)(1); People v. Tran (2022) 13 Cal.5th
1169, 1205–1206 (Tran).) The jury in this case found defendants guilty of
participation in a criminal street gang and found true the gang
enhancements on the murder and conspiracy to commit murder convictions.
Effective January 1, 2022, Assembly Bill 333 changed section 186.22 in
several important respects. (Stats. 2021, ch. 699, § 3.) “First, it narrowed the
39
definition of a ‘criminal street gang’ to require that any gang be an ‘ongoing,
organized association or group of three or more persons.’ (§ 186.22, subd. (f),
italics added.) Second, whereas 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 pattern have been ‘collectively
engage[d] in’ by members of the gang. (§ 186.22, subd. (f), italics added.)
Third, Assembly Bill 333 also narrowed the definition of a ‘pattern of criminal
[gang] activity’ by requiring that (1) the last 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 offenses
were committed by two or more gang ‘members,’ as opposed to just ‘persons’;
(3) the offenses commonly benefitted a criminal street gang; and (4) the
offenses establishing a pattern of gang activity must be ones other than the
currently charged offense. (§ 186.22, subd. (e)(1), (2).) Fourth, Assembly
Bill 333 narrowed what it means for an offense to have commonly benefitted
a street gang, requiring that any ‘common benefit’ be ‘more than
reputational.’ (§ 186.22, subd. (g).)” (Tran, supra, 13 Cal.5th at p. 1206.)
“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).)
Under the principles enunciated in In re Estrada (1965) 63 Cal.2d 740,
Assembly Bill 333’s amendments to section 186.22 apply retroactively to
defendants whose convictions are not yet final. (Tran, supra, 13 Cal.5th at
pp. 1206–1207.) The changes to the definitions of “criminal street gang” and
“a pattern of criminal gang activity” in Assembly Bill 333 effectively added
40
new elements to section 186.22, on which the jury was not instructed,
implicating defendants’ right to a jury trial under the Sixth Amendment.
(Tran, at pp. 1206–1207; People v. E.H. (2022) 75 Cal.App.5th 467, 477, 479.)
Accordingly, we must reverse unless it appears beyond a reasonable doubt
that the error did not contribute to the verdict. (Tran, at p. 1207.)
As an initial matter, we reject defendants’ argument that we must
reverse the judgments due to a lack of substantial evidence under the
elements of the amended statute. Although, for reasons we explain below,
the recent passage of Assembly Bill 333 requires that we reverse the
defendants’ gang-related convictions and vacate the enhancements, any
substantial evidence analysis for purposes of deciding whether double
jeopardy principles preclude a retrial must necessarily be determined under
the law applicable at trial. (See, e.g., People v. Sek (2022) 74 Cal.App.5th
657, 669–670 (Sek) [instructional error omitting elements of gang
enhancements under amended § 186.22 permitted retrial because court did
not reverse based on insufficiency of the evidence required by statute
applicable at time of trial]; People v. Eagle (2016) 246 Cal.App.4th 275, 280
[“When a statutory amendment adds an additional element to an offense, the
prosecution must be afforded the opportunity to establish the additional
element upon remand.”]; People v. Shirley (1982) 31 Cal.3d 18, 71 [double
jeopardy does not bar retrial after reversal premised on error of law].)
Defendants do not contend the evidence was insufficient to meet the elements
of section 186.22 in effect at the time of trial, and thus reversal is not
compelled on that basis.
Defendants next argue they are entitled to a new trial because the trial
court’s instructions to the jury under former versions of CALCRIM Nos. 1400
and 1401 omitted elements necessary to the gang allegations. The Attorney
41
General concedes there were instructional errors and that the jury’s
determination that the predicate offenses benefitted the gang was likely
based, in part, on reputational benefits. Nonetheless, the Attorney General
asserts, there was also substantial evidence in support of every newly
modified element and the evidence in the record was sufficient for this court
to conclude that the instructional errors were harmless beyond a reasonable
doubt. We disagree.
Under section 186.22, as amended, to prove a “ ‘pattern of criminal
gang activity,’ ” the prosecution must prove at least two enumerated
predicate offenses commonly benefitted the gang in a way that is more than
reputational. (§ 186.22, subd. (e)(1).)
Our Supreme Court recently addressed the appropriate test for
harmless error under Chapman when the jury is not instructed as to these
new elements. “When a jury instruction has omitted an element of an
offense, our task ‘is to determine “whether the record contains evidence that
could rationally lead to a contrary finding with respect to the omitted
element.” ’ ” (People v. Cooper (2023) 14 Cal.5th 735, 742–743; Tran, supra,
13 Cal.5th at p. 1207 [“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.”]; People v. Mil (2012) 53 Cal.4th 400, 417.)
In Cooper, the Supreme Court held the failure to instruct the jury that
the predicate offenses must have commonly benefitted the gang in a way that
is more than reputational was not harmless beyond a reasonable doubt where
the record contained no evidence of those elements with respect to the
42
predicate offenses themselves. (Cooper, supra, 14 Cal.5th at pp. 743–744.)
The two predicate offenses used to establish the “ ‘pattern of criminal gang
activity’ ” in Cooper were a robbery and a narcotics sale, each committed by a
different gang member. (Id. at pp. 740–741.) Although a gang expert had
testified that the gang’s primary activities included robbery and the sale of
narcotics, the court drew a distinction between “the question of whether an
offense is one of the gang’s primary activities” and “the question of whether a
particular offense has ‘commonly benefitted a criminal street gang.’ ” (Id. at
p. 743.) “A jury determination regarding the gang’s primary activities merely
constitutes a conclusion about the types of activities in which a gang typically
engages, whereas the question about a common benefit asks about how the
specific predicate offense actually benefitted the gang.” (Ibid.) Because the
totality of the evidence showed only that there was a robbery and a sale of
narcotics by gang members and that those were primary activities of the
gang, the court could not conclude beyond a reasonable doubt that the error
did not contribute to the verdict. (Id. at p. 746.)
At trial in this case, the prosecution offered evidence of five convictions
of Big Block members for felon in possession of a firearm (§ 29800) for
offenses committed on various dates in 2014, 2015, 2016, and 2018, proven
through certified records of conviction and Manning’s testimony. Officers
also testified about two other incidents involving possession of a firearm. In
the first incident on December 24, 2016, Manning and another officer saw
video surveillance footage of Young discarding a gun under a Pepsi machine
after a shooting with a rival gang. Another gang member discarded a second
firearm in the hallway. An officer testified about a second incident that
occurred on January 2, 2018, when he served a narcotics arrest warrant at
Young’s house. Young discarded a firearm at the rear of the house which
43
officers recovered after his arrest. In addition, Manning testified about two
murders by Big Block members: (1) Lee Sullivan was a Big Block member
convicted in 2019 for a murder that occurred in July 2013; and (2) Michael
Higginbotham was a Big Block member who was convicted of shooting and
murdering a Westmob gang member, Germane “Marley” Jackson. Manning
testified Michael was in jail for that murder when Matthew was murdered in
July 2018.
As to the five convictions for possession of a firearm by a felon,
Manning did not offer any testimony at all that the offenses benefitted the
gang. The Attorney General suggests the jury could infer from Manning’s
general testimony that one of Big Block’s primary activities was possession of
“gang guns” that are passed between members and that every instance of
illegal firearm possession was for the benefit of the gang. Manning did not,
however, testify that any of the guns used in the five convictions were “gang
guns” or that any of those instances involved providing a “gang gun” to a
fellow gang member. Nor did he testify to any other common benefit to the
gang from these five offenses.
The limited evidence in the record regarding the murders committed by
Big Block members is also insufficient for us to conclude the jury would have
found a pattern of criminal gang activity beyond a reasonable doubt.
Manning’s testimony regarding Lee Sullivan did not include any testimony
that the murder was committed for the common benefit of the gang or
benefitted the gang in a way that was more than reputational.28 (See Cooper,
supra, 14 Cal.5th at p. 743 [prosecution never introduced any evidence about
28 Manning’s testimony that Lee Sullivan was convicted of murder for
killing a rival gang member was offered in response to a question about
Manning’s testimony as a gang expert in other cases, not as a basis to prove a
pattern of criminal gang activity.
44
how the gang commonly benefitted from predicate crimes].) As to Michael,
the Attorney General asks us to “infer” the crime occurred within three to six
years before Singh’s murder because Michael was in jail for Jackson’s murder
when Matthew was murdered in July 2018. We cannot determine beyond a
reasonable doubt the predicate offense occurred within the statutory
timeframe where the record lacks any information about the date of the
crime. The Attorney General also asserts the jury could infer from the fact
that Michael killed a rival gang member that the crime benefitted Big Block,
citing section 186.22, subdivision (g).29 But Manning did not testify to such
benefit. (See Cooper, at p. 743, fn. 7 [rejecting Attorney General’s argument
that Chapman inquiry concerns question whether the jury could draw a
reasonable inference that the alleged predicate offenses commonly benefitted
the gang].) In addition, the prosecution did not rely on either the Lee
Sullivan or Michael Higginbotham murder convictions in arguing a pattern of
criminal gang activity to the jury.
As to the testimony regarding Young’s conduct as a felon in possession
of firearms on two separate occasions, the question is somewhat closer.
Regarding the December 24, 2016 incident, the prosecutor asked Manning
whether, in his opinion, Young was “furthering gang conduct when he hid
that gun under the machine so him [sic] and his group wouldn’t be found out
by police,” to which Manning replied, “Absolutely.” That testimony appears
to describe a common benefit to the gang that was more than reputational—
i.e., Young was hiding guns to prevent the police from discovering him and
29 Section 186.22, subdivision (g) provides examples of a common
benefit that are more than reputational “may include . . . targeting a
perceived or actual gang rival . . . .” (Italics added.)
45
other gang members in the wake of a rival gang shooting.30 As to the
January 2018 incident, however, the prosecutor asked whether Young was
acting “to further the criminal conduct of a gang member by hiding that gun.”
(Italics added.) Manning responded, “Sure. . . . sounds like from the
testimony he was attempting to hide a gun so that Darius York wouldn’t be
arrested with it.” That testimony is more equivocal as to whether the crime
provided a common benefit to the gang that was more than reputational, or
whether he committed the crime only to help his friend, York, avoid arrest.
Finally, as in Cooper, the jury here was specifically instructed that the
predicate offenses that establish a pattern of criminal gang activity need not
be gang-related, which directly contradicts the new requirement that
predicate offenses commonly benefit the gang and that the common benefit is
more than reputational. (See Cooper, supra, 14 Cal.5th at p. 744.)
On this record, given the absence of evidence of at least two predicate
crimes that commonly benefitted Big Block, or that the common benefit to the
gang from those predicate offenses was more than reputational, we cannot
conclude beyond a reasonable doubt that the instructional error did not
contribute to the jury’s verdicts.31 (See Cooper, supra, 14 Cal.5th at p. 746;
30 The Attorney General contends one of Young’s fellow gang members
discarded a second firearm in the hallway during that incident. There was no
testimony, however, that the unidentified person who discarded the second
firearm was a gang member, a felon, or otherwise prohibited from carrying a
weapon or committed an offense for the common benefit of the gang beyond
reputational benefit.
31 Because we conclude remand is required based on the absence of
evidence in the record that two predicate offenses were committed for the
common benefit of the gang and that the benefit was more than reputational,
we need not consider the parties’ additional arguments regarding the failure
to instruct on the requirement that the gang be “organized” and that the
predicate offenses were committed “collectively.”
46
Tran, supra, 13 Cal.5th at p. 1207 [reversing gang enhancements where jury
was not presented with evidence gang members collectively engage in pattern
of criminal gang activity].)
The changes made by Assembly Bill 333 affect not only the gang offense
and enhancement allegations under section 186.22, but other statutes that
incorporate section 186.22 by reference, including section 12022.53. (Cooper,
supra, 14 Cal.5th at p. 746; People v. Lopez (2021) 73 Cal.App.5th 327, 346–
348.) Because the jury’s true findings on the enhancements under
section 12022.53, subdivision (e) required findings that defendants committed
the murder for the benefit of a criminal street gang, those findings must also
be vacated.
We reject defendants’ arguments, however, that reversal of their
convictions on the gang offenses and true findings on the gang enhancements
also requires us to reverse their murder and conspiracy to commit murder
convictions. Defendants contend the prosecution’s theory of the case was that
intent to kill could be inferred from their gang motivation to retaliate on
behalf of Big Block, and “[d]ue to the centrality of the gang evidence to the
People’s entire case, the failure of the evidence with respect to the
substantive gang offense and the enhancement mandates that the entire
judgment be vacated.” Defendants cite no authority in support of this
argument, and we are not persuaded. The murder and conspiracy to commit
murder offenses did not incorporate section 186.22, nor was meeting the
requirements of that statute necessary for the jury to find beyond a
reasonable doubt that defendants committed those crimes. The evidence
regarding the gang motive for the murder and conspiracy would have been
admissible notwithstanding the section 186.22 charges, and defendants have
not shown any reason the entire judgment should be reversed. (See, e.g.,
47
People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [evidence of gang
membership and activity can help prove identity, motive, specific intent, and
other issues pertinent to guilt]; People v. Ramirez (2022) 13 Cal.5th 997, 1095
[evidence of gang membership is admissible on the charged offense assuming
its probative value outweighs its prejudice].)
Accordingly, we shall reverse defendants’ convictions for active
participation in a criminal street gang (§ 186.22, subd. (a); count 4); vacate
the true findings on the gang-related firearm enhancement (§ 12022.53,
subd. (e); count 1); and vacate the true findings on the gang enhancement
allegations (§ 186.22, subd. (b)(5); counts 1 & 3.) The prosecution will have
the option to retry these counts and enhancements on remand.
F. Lying-in-wait Special Circumstance
Defendants next argue the lying-in-wait special circumstance findings
on their murder convictions must be stricken because the record lacks
substantial evidence of every element necessary for that finding.
“A sufficiency of evidence challenge to a special circumstance finding is
reviewed under the same test applied to a conviction. [Citation.] Reviewed
in the light most favorable to the judgment, the record must contain
reasonable and credible evidence of solid value, ‘such that a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People
v. Stevens (2007) 41 Cal.4th 182, 201.)
“The ‘ “lying-in-wait special circumstance requires ‘ “ ‘an intentional
murder, committed under circumstances which include (1) a concealment of
purpose, (2) a substantial period of watching and waiting for an opportune
time to act, and (3) . . . a surprise attack on an unsuspecting victim from a
position of advantage . . . .’ ” ’ ” ’ ” (People v. Parker (2022) 13 Cal.5th 1, 58.)
48
The record in this case reveals substantial evidence as to each of the required
elements.
Concealment, as required to prove the lying-in-wait special
circumstance, “ ‘is that which puts the defendant in a position of advantage,
from which the factfinder can infer that lying-in-wait was part of the
defendant’s plan to take the victim by surprise. [Citation.] It is sufficient
that a defendant’s true intent and purpose were concealed by his actions or
conduct.’ ” (People v. Morales (1989) 48 Cal.3d 527, 555, overruled on another
ground in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Ceja (1993)
4 Cal.4th 1134, 1140.) Here, there was ample evidence of concealment—both
of defendants’ purpose and physical concealment. Defendants and their
coconspirators located Singh at City Nights and communicated that
information with each other. They kept track of when Singh left City Nights
and followed him back to Antioch. The evidence that defendants remained
several minutes behind Singh’s car supports an inference that they were
concealing both their presence and purpose. When Webb saw Singh drive by
the Valero gas station, he ducked—literally concealing himself behind his
car. Further, when he pulled out of the gas station to follow Singh, he did so
with his headlights turned off, again supporting a reasonable inference he
was both concealing his purpose and preventing Singh and Richardson from
seeing him.32
32 Young contends this case is like People v. Nelson (2016) 1 Cal.5th
513, in which our Supreme Court concluded the evidence was insufficient to
support instructions on lying-in-wait first degree murder and special
circumstance allegations. We disagree. While Young relies on Nelson to
argue insufficient evidence of concealment, the defendant in that case argued
the prosecution failed to prove he had engaged in a substantial period of
watching and waiting for a favorable or opportune time to act. (Id. at
49
Defendants effectively concede that evidence they tracked Singh and
Richardson’s locations to City Nights, then followed them from San Francisco
to the Mira Vista apartments in Antioch would be sufficient evidence to
satisfy the watching and waiting requirement. As our Supreme Court has
explained, “the purpose of the watching and waiting element ‘ “ ‘is to
distinguish those cases in which a defendant acts insidiously from those in
which he acts out of rash impulse. [Citation.] This period need not continue
for any particular length “ ‘of time provided that its duration is such as to
show a state of mind equivalent to premeditation or deliberation.’ ” ’ ” ’ ”
(People v. Flinner (2020) 10 Cal.5th 686, 749.) In addition to the evidence
referenced by defendants, there was evidence that defendants arrived at the
Mira Vista apartments before Singh and Richardson, and that Young waited
there, while Webb left. Webb then went to the Valero gas station and after
Singh and Richardson’s car passed by, he ducked, got into his car, pulled out
pp. 550–551.) In Nelson, the defendant went to where he expected the
victims to be in a Target parking lot, then hid his bicycle, and snuck up
behind them on foot to take them by surprise. (Id. at p. 551.) The court
explained that there was no evidence that the defendant “arrived before the
victims or waited in ambush for their arrival. In the absence of such
evidence, there is no factual basis for an inference that before approaching
the victims, he had concealed his bicycle and waited for a time when they
would be vulnerable to surprise attack. The jury was presented with no
evidence from which it could have chosen, beyond a reasonable doubt, that
scenario over one in which defendant arrived after the victims, dismounted
from his bicycle, and attacked them from behind without any distinct period
of watchful waiting.” (Ibid.) Here, by contrast, there was evidence from
which a jury could draw a reasonable inference that Young and Webb arrived
at the murder scene before the victims, and Young waited there for their
arrival while Webb went to find them. In addition, unlike Nelson, there was
substantial evidence Young and Webb had tracked Singh’s location all
evening and followed him while concealing their purpose, further supporting
a reasonable inference of a substantial period of watching and waiting.
50
of the Valero station, and followed them with his headlights off even though
he had only pumped less than half of the $40 in gas he had prepaid. From
this evidence, the jury could reasonably infer Webb and Young were watching
and waiting for Singh and Richardson to arrive at the Mira Vista apartments
where they could surprise them.
Finally, there was substantial evidence defendants made a surprise
attack from a position of advantage. Singh’s car was discovered by police
with its engine still running and headlights on. The evidence supports a
reasonable inference that after Singh parked his car in the carport, Webb and
Young approached his car quickly and shot him before he had the chance to
turn off the car. Further, the jury could infer both defendants approached
Singh’s car in separate cars because an eyewitness saw three cars leave the
scene. The jury also could reasonably infer the attack was a surprise because
Richardson told the 911 operator that he did not see the shooter, did not
know who shot them, and did not know where the shooting came from.
Moreover, defendants had an advantageous position because Singh was
confined by his car and easily visible through the open driver’s side window.33
Defendants, on the other hand, had free range of movement either on foot or
by car—including two separate vehicles.
33 An officer testified that during his investigation at the murder scene,
he discovered the driver’s side window of Singh’s Infiniti was missing. It
appeared to have been broken recently based on the number and size of glass
fragments remaining in the window frame. He also believed that the window
had been broken at a different location, because there was not a substantial
amount of glass inside or outside the vehicle. Shortly before the murder,
while he was at the Chevron gas station with Singh, Richardson ran several
Internet searches on his phone regarding the cost of replacing a driver’s side
window on an Infiniti FX45.
51
In sum, there was substantial evidence to support the lying-in-wait
special circumstance.
G. Sentencing Issues
Defendants assert two errors at sentencing: first, they contend their
sentences for life without the possibility of parole on their conspiracy
convictions must be stricken as unauthorized because the murder and
conspiracy were part of a continuous course of conduct pursuant to a single
objective; and second, they contend the matter must be remanded for the trial
court to choose whether to stay punishment for the murder or the conspiracy
counts under section 654.34 The Attorney General concedes error and agrees
defendants must be sentenced to 25 years to life on their conspiracy
convictions. The Attorney General also agrees sentences cannot be imposed
on both defendants’ murder and conspiracy convictions under section 654, but
asserts we should direct the trial court to stay the conspiracy sentences.
We agree defendants must be resentenced to terms of 25 years to life on
the conspiracy convictions. The punishment for conspiracy to commit murder
is the same as for first degree murder, but the special circumstances in
section 190.2 do not apply to conspiracy to commit murder. (People v.
Hernandez (2003) 30 Cal.4th 835, 868–870 (Hernandez), overruled in part on
another ground in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32,
disapproved on another ground in People v. Rangel (2016) 62 Cal.4th 1192,
1216; see People v. Lopez (2022) 12 Cal.5th 957, 963–965.) Thus, the trial
34 Defendants also argued that to the extent the active participation
convictions survived their challenge based on the statutory amendments to
section 186.22, they would be entitled to resentencing on those counts under
section 654. We need not address that argument because we have already
determined the active participation convictions must be reversed for reasons
explained above.
52
court should not have imposed the same life without possibility of parole
sentence it imposed for the murder count (based on the § 190.2 lying-in-wait
special circumstance) on the conspiracy count. (See People v. Scott (1994)
9 Cal.4th 331, 354 [sentence is unauthorized when court violates mandatory
provisions governing the length of confinement].)
Moreover, because the murder and conspiracy to commit murder
convictions had the same objective (killing Singh), section 654 precludes
defendants from being punished more than once. (Hernandez, supra,30 Cal.4th at p. 866.) Accordingly, we will remand with directions to the trial
court to sentence defendants to 25 years to life on their conspiracy to commit
murder convictions and exercise its discretion to determine whether to stay
the sentences for murder or the sentences for conspiracy to commit murder.35
H. Cumulative Error
Defendants contend the cumulative effect of the multiple errors at trial
identified above requires reversal of the judgment. Under the cumulative
error doctrine, “a series of trial errors, though independently harmless, may
in some circumstances rise by accretion to the level of reversible and
prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) As we have
discussed in detail above, we have rejected defendants’ individual claims of
error and, accordingly, there is no prejudice to accumulate. Any potential
35 At the time of defendants’ original sentencing, the trial court would
have been required to impose the longest potential term of imprisonment.
(Former § 654, subd. (a).) Effective January 1, 2022, however, Assembly Bill
No. 518 (2021–2022 Reg. Sess.) amended section 654 to provide that when an
act or omission is punishable by different provisions, the defendant “may be
punished under either of such provisions.” (§ 654, subd. (a).) Assembly Bill
No. 518 applies retroactively. (Sek, supra, 74 Cal.App.5th at p. 673.) Thus,
on remand the trial court will have discretion under the new version of
section 654 to sentence defendants under either provision.
53
errors we have considered separately and found to be harmless; we reach the
same conclusion considering them collectively.
III. DISPOSITION
Defendants’ convictions for active participation in a criminal street
gang (§ 186.22, subd. (a); count 4) are reversed. The true findings on the
gang enhancement allegations (§ 186.22, subd. (b)(5); counts 1 & 3) and gang-
related firearm enhancements (§ 12022.53, subd. (e); count 1) are vacated.
The prosecution will have the option to retry these counts and enhancements
on remand. Further, the trial court is directed to resentence defendants to 25
years to life on their conspiracy convictions, and exercise its discretion under
section 654 whether to stay the conspiracy terms or the terms for defendants’
murder convictions. The judgments are otherwise affirmed.
54
MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BOWEN, J.*
A161098
People v. Webb
A161100
People v. Young

Judge of the Contra Costa County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
55