People v. Collins CA2/3 ( 2024 )

Filed 5/21/24 P. v. Collins CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B324125
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA395459)
v.
ARTERO COLLINS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Affirmed.
Adrian K. Panton, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
In 2013, a jury convicted Artero Collins of first degree
murder and premeditated attempted murder with true findings
on gun and gang allegations. Years later, the trial court held a
resentencing hearing to consider the impact on Collins’s
judgment of new laws, including Assembly Bill No. 333, which
changed the law on gang enhancements. Collins was at the
resentencing hearing, and the trial court dismissed the gun and
gang enhancements but declined to grant Collins a new trial on
the substantive offenses. The trial court also declined to strike
five-year priors. The trial court then held a second resentencing
hearing at which Collins was not present. At that second
resentencing hearing, the trial court reconsidered its position
regarding the five-year priors and struck them. Collins appeals,
contending that reversal is required because he was not at the
second resentencing hearing and because admitting gang
evidence prejudiced him on the substantive offenses. We
disagree that prejudicial error occurred and affirm the judgment.
BACKGROUND
I. The evidence at Collins’s trial for murder
The factual background is from the Court of Appeal opinion
affirming the judgment of conviction against Collins on direct
appeal, People v. Collins (Aug. 24, 2017, B262755) [nonpub. opn.].
“A. Gas Station Shootings
“On July 5, 2010, at about 3:30 a.m., Keith Campbell pulled
his BMW into a gas station at the intersection of Western and
Vernon Avenues. Campbell’s cousin Chad Andrew was riding in
the front passenger seat. Campbell got out of the car and walked
to the station’s cashier window, while Andrew remained seated in
the BMW.
2
“As Campbell walked to the cashier window, he noticed two
men approaching him; they were wearing red and had what
Campbell called a ‘vicious attitude.’ The men asked Campbell,
‘Where you from?’ and he did not respond. Instead, Campbell
turned around and ran back to his car, yelling for Andrew to get
out of the car and run away.
“Campbell entered the back seat of the BMW as Andrew
tried to leave the car. As this occurred, the two men in red began
shooting. Campbell was shot twice, once in the chest and once in
the shoulder. Andrew, who had managed to exit the car, was
shot several times and killed. After the shots were fired, the
shooters ran from the gas station. Campbell called 911 on his cell
phone, and the recording of his call was played at trial.
“Police officers promptly responded to the shooting scene.
They found Campbell’s BMW at a gas pump, with a broken
window. They also found a man on the ground who was
unconscious and not breathing (Andrew), and another man with
several gunshot wounds who was pacing nearby (Campbell).
Campbell testified he did not get a good look at the shooters and
could not identify them, but he did give a description of the
shooters to police.
“Detectives arrived at the scene and collected evidence.
They found 22 expended nine-millimeter casings, two bullet
fragments, and two fired bullets in the area outside the BMW;
they also found several live rounds, two expended casings, and a
bullet fragment inside the BMW. The gas station’s surveillance
video was recovered, and it displayed portions of the shooting
sequence. The video was introduced into evidence and was
played for the jury several times during the course of the trial.
3
“A police criminalist reviewed all the firearms evidence and
concluded that at least three firearms were used. A police
firearms expert examined the bullet strike marks on the BMW,
the location of expended casings, and the gas station surveillance
video. He concluded that multiple shots were fired into the
BMW, and shots were also fired from inside the car. Campbell,
however, testified that he did not have a gun and did not shoot
back at the men who fired at Andrew and him.
“A custodian of records for Metro PCS testified about
cellular telephone calls at the gas station where the shootings
occurred. He authenticated records for a prepaid cell phone
registered in the name of ‘Cirturo Collins.’ On July 5, 2010 at
3:38 a.m., that phone received an incoming call from the number
323-338-9360. The call was transmitted through a cellular tower
that was located about 120 feet from the gas station. At 3:50 a.m.
that morning, the same cellular tower transmitted an outgoing
emergency call to 911 from a different phone.
“B. Detentions and Arrests
“On July 5, 2010, at about 4:10 a.m., Sheriff’s Department
dispatcher Joshua Gomez was working at Harbor UCLA Hospital
and watching a security monitor. He noticed three men entering
the emergency room with appellant, who appeared to be
wounded. All of the men were wearing red and looked scared.
The three men left appellant and ran away to a grey four-door
Chevy Malibu. Gomez saw the Malibu’s license number and
radioed a description of the men and their car.
“Deputy Sheriff Daniel Perez stopped the Malibu on
hospital grounds. He saw three men in the car, and noticed the
front passenger placing something into the center console area;
Perez later searched the car and found a revolver in the console
4
area. The men in the Malibu identified themselves as Dontrell
Williams, Irving Holloway, and Mylik Birdsong. Williams told
deputies he was a Black P-Stone gang member, and deputies
later determined that Williams also went by the name Isiah
Wheeler.
“Appellant received treatment at the Harbor UCLA
Hospital on the morning of July 5, 2010, shortly after he was
dropped off by the others. The treating physician testified that
appellant had a through-and-through gunshot wound to his left
thigh.1 When the physician asked him about the wound,
appellant said he had been shot in the left thigh 30 minutes
before he came to the hospital, and he had filed a report with the
police at a ‘gas station.’ Appellant was treated for the wound and
released from the hospital the same morning.
“Mylik Birdsong was arrested in relation to the Campbell
and Andrew shootings in March 2012. At the time of his arrest,
detectives monitored a telephone call that he made from county
jail. Based on statements made during the call, appellant’s jail
cell was searched and three cell phones were found. A detective
examined the cell phones and found photographs of appellant and
others, which were shown to the jury and considered by the
prosecution’s gang expert during his testimony.
“C. Gang Evidence
“Officer Phil Rodriguez testified for the prosecution as an
expert concerning the Black P-Stone gang. At the time of trial,
Rodriguez had been a police officer for nine years and had gang
1
“In the gas station surveillance video, one of the shooters
appears to have been struck by a bullet in the left thigh.”
5
experience throughout his career. For seven years he served in
the Southwest Division gang detail and had continuous
experience with all gangs in the area, including the Black P-
Stones. Rodriguez was a senior officer in the gang detail.
“Rodriguez had extensive experience with the Black P-
Stones. He had testified in more than 80 Black P-Stone gang
cases, and he had ‘over a couple thousand’ contacts with Black P-
Stone members. As a senior gang officer, Rodriguez provided
training on the Black P-Stone gang to federal and local law
enforcement agencies.
“Rodriguez testified the Black P-Stone gang is a clique of
the larger Blood gang, and it has adopted red as its primary color.
At the time of trial there were over 1,000 Black P-Stone gang
members in Los Angeles County, and the gang claimed territory
in two areas of lower Baldwin Hills. Rivals of the Black P-Stones
included the Rollin’ 40’s gang, which claimed territory that
included the gas station where Campbell and Andrew were shot.
“Rodriguez testified the primary activities of the Black P-
Stone gang included robberies, assault with deadly weapons,
murders, attempted murders, extortion, rape, carjacking, and
narcotic sales. During his testimony, he explained the benefits to
the gang from violent crimes committed by its members
(instilling fear in the community and deterring reports to law
enforcement and testimony in court), and he described the
hierarchy for committing gang crimes (older ‘generals’ directing
younger ‘soldiers’ to put in work that benefits the gang).
Rodriguez explained that murder and other violent crimes
against rivals can benefit the gang by showing others that the
gang is violent and by enhancing the reputation of the ‘soldiers’
who commit the crimes.
6
“Rodriguez stated his opinion that appellant was
‘absolutely’ a member of the Black P-Stones gang. Rodriguez said
he was personally familiar with appellant, who used the moniker
‘Papi.’ Rodriguez had at least two personal contacts with
appellant; he was present when appellant was served with a gang
injunction, and when appellant was in court on another occasion.2
Rodriguez reviewed photographs of appellant’s tattoos, which had
references to the Black P-Stones and disrespectful references to
the Crips. Rodriguez also reviewed photos of appellant, which
showed him posing and flashing gang signs with individuals that
Rodriguez knew as Black P-Stone members. Rodriguez based his
opinion of appellant’s gang membership on his personal
interactions with appellant, as well as appellant’s admission of
Black P-Stone membership, Black P-Stone tattoos, arrests with
Black P-Stone members, presence at Black P-Stone locations, and
photos with other members of the gang.
“Rodriguez testified that the three men who brought
appellant to the hospital on the night of the shootings were also
active members of the Black P-Stone gang: Birdsong, whose
moniker was ‘Little Papi’; Williams, whose moniker was ‘Nook’;
and Holloway, whose moniker was ‘T-Roll.’ Rodriguez said he
was familiar with all three men through prior contacts and
arrests, and he knew that all three were self-admitted and
2
“The transcript is somewhat confusing, as it suggests that
Rodriguez had more than two personal interactions with
appellant. It quotes Rodriguez as stating: ‘I believe I have had
contact with defendant Collins on two occasions. Two in the
lower Baldwin Village on a traffic stop; one where he was–I was
present where he was served a gang injunction. And the other
was a court hearing at Torrance court.’ ”
7
documented members of the gang. Rodriguez explained that
Birdsong’s moniker ‘Little Papi’ and appellant’s moniker ‘Papi’
reflected a younger gang member who looked up to an older gang
member and took a modified moniker to demonstrate his respect.
“Rodriguez was given a hypothetical question that mirrored
the prosecution’s evidence. In response, Rodriguez stated his
opinion that the shootings were committed for the benefit of, at
the direction of, or in association with a criminal street gang,
with the specific intent to promote, further and assist in criminal
conduct by gang members. Rodriguez explained that such a
crime would serve the goals of reducing the number of rival gang
members, instilling fear and intimidation in the community,
elevating the status of the gang, and helping with recruitment of
new gang members.
“D. Defense Evidence
“Diona Floyd was the sole witness called by the defense.
Floyd testified that she and appellant attended a party on July 4,
2010, at Jim Gilliam Park in the lower Baldwin Hills area. There
were approximately 30 to 50 people at the gathering, drinking
and watching fireworks. Around 1:00 a.m. or 2:00 a.m., gunshots
were fired from a passing car; everybody ran and Floyd noticed
that appellant had been shot in the leg. Shortly after the
shooting, appellant got into a car with other men and they drove
away.
“Floyd admitted that she loved appellant and had written
him a love letter while he was in custody. She said the 323-338-
9360 telephone number which called the cell phone registered to
‘Cirturo Collins’ on July 5, 2010 sounded familiar to the number
she used at that time. Floyd admitted she had a felony record
8
and was then in custody for a probation violation.” (People v.
Collins, supra, B262755.)
II. Jury’s verdict and sentence
A jury convicted Collins of first degree murder (Pen. Code,3
§ 187, subd. (a)), and attempted premeditated murder (§§ 664,
187, subd. (a)). The jury found true principal gun use
(§ 12022.53, subds. (b), (c), (d) & (e)(1)) and gang (§ 186.22, subd.
(b)(1)(C)) allegations. The trial court found that Collins had two
prior convictions within the meaning of the Three Strikes Law
(§§ 667, subds. (b)–(i) & 1170.12, subds. (a)–(d)) and that Collins
had two prior convictions under section 667, subdivision (a). In
2015, the trial court sentenced Collins to an indeterminate term
of 150 years to life plus two 5-year terms under section 667,
subdivision (a).
This Division affirmed the judgment of conviction in People
v. Collins, supra, B262755.
III. Collins’s petition for writ of habeas corpus and
resentencing hearings
In November 2019, Collins petitioned for a writ of habeas
corpus in the California Supreme Court, arguing, among other
things, that his counsel had provided ineffective assistance by
failing to raise on direct appeal Senate Bill No. 620, which gave
trial courts discretion to strike firearm enhancements. The
California Supreme Court issued an order to show cause
returnable in the trial court. In the trial court, the parties agreed
that Collins was entitled to a sentencing hearing so that the trial
3
All further undesignated statutory references are to the
Penal Code.
9
court could consider whether to strike the firearm enhancements.
Meanwhile, our Legislature had passed Assembly Bill No. 333,
which amended the gang enhancement statute, section 186.22.
Collins’s counsel therefore filed a motion for a new trial, arguing
that Collins was entitled to relief under that new law.
A. The first resentencing hearing
On August 31, 2022, the trial court held an evidentiary and
resentencing hearing at which Collins was present.4 The trial
court considered three issues: (1) whether it should grant relief
under Assembly Bill No. 333, (2) whether it should strike a prior
strike conviction under Romero5; and (3) whether it should
dismiss the section 667, subdivision (a), enhancements.
First, the trial court granted the motion for new trial as to
the gang and gun enhancements but denied it insofar as it sought
retrial of the substantive offenses, finding that gang evidence
would have been admitted at trial to establish motive and
identity, and the gang evidence was not unduly prejudicial.
When the People could not proceed on the gang and gun
enhancements, the trial court granted the People’s motion to
dismiss them.
Second, the trial court considered the Romero motion.
According to the prosecutor, one of Collins’s strikes arose out of
his shooting a neighbor after an argument, and the second strike
arose out of Collins shooting a security guard. Defense counsel
asked the trial court to consider Collins’s mental health issues
4
The hearing had been continued from an earlier date
because Collins wanted to be present.
5
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
10
under section 1385, noting that counsel had filed sealed records
concerning those issues. Defense counsel argued that at least one
prior strike should be stricken because Collins was a youthful
offender (he was 18 years old when he committed the crimes)
and, further, that Collins’s mental health had to be considered.
Collins’s mother then testified that Collins’s father was not
present during his childhood, and she was busy working. Bigger
kids “jumped” Collins, took his belongings, and “put a knife to
him.” Collins also saw his mother’s boyfriend beat her, and
Collins once discovered a dead body. When Collins was in the
fifth or sixth grade, his mother noticed that he became angry and
fearful.
The trial court noted that Collins committed his first strike
(attempted murder) when he was 18 years old, but had been in
and out of the criminal system since he was about 12 years old.
Although Collins spent time in custody for the attempted murder,
he “didn’t learn his lesson,” because shortly after being released,
he committed an assault with a firearm in 2010. Just a couple of
months later, Collins committed the current crimes. The trial
court found that Collins, now 26 years old, was the same person
he was at 18, and it denied the Romero motion.
Finally, the trial court also declined to strike the two
section 667, subdivision (a), enhancements. Although the trial
court acknowledged Collins’s mental health issues,6 it found that
striking the enhancements would endanger the public and that
defendant was “almost like a poster child of why these are in
place with regard to the most dangerous of the dangerous.” The
6
The trial court said it would not explain Collins’s mental
health issues in open court out of respect for him, but it had
considered them.
11
trial court further noted that while Collins got his GED in 2017,
completed a nine-day computer literacy course, had sporadically
attended a college class, and had submitted three “Milestone
Completion” documents and a positive “Work Supervisor’s
Report,” he needed to do more. The trial court therefore
resentenced Collins to an indeterminate term of 100 years to life
plus a determinate term of 10 years for the two section 667,
subdivision (a), priors.
B. The second resentencing hearing
On September 20, 2022, the trial court held a second
resentencing hearing. Defense counsel stated that Collins “has
waived his presence.” The trial court acknowledged it had
previously declined to strike the two section 667, subdivision (a),
enhancements. But “upon further reflection,” the trial court
thought that striking them served the interest of justice based on
Collins’s age and that the crimes were used to impose a Three
Strikes sentence. In response, the prosecutor objected but
otherwise submitted. Defense counsel declined to be heard. The
trial court therefore sentenced Collins to 100 years to life.
DISCUSSION
I. The resentencing hearing
Collins contends that he did not waive his presence at the
September 2022 resentencing hearing at which the trial court
struck the five year priors, and therefore reversal is required. As
we now explain, we do not agree that any error prejudiced
Collins.
A criminal defendant has a constitutional and statutory
right to be personally present at various proceedings, including
imposition of sentence, sentence modification, and resentencing.
12
(See generally §§ 977, 1043; People v. Sandoval (2015) 62 Cal.4th
394, 431; People v. Basler (2022) 80 Cal.App.5th 46, 57.) As
particularly relevant here, section 977, subdivision (b)(1),
provides that in all felony cases, the accused shall be personally
present at proceedings, including at the “imposition of sentence.”
Under that section, defendants may waive their right to be
physically present, and the waiver must be voluntary, knowing,
intelligent, and “in writing and filed with the court or, with the
court’s consent, . . . entered personally by the defendant or by the
defendant’s counsel.” (§ 977, subd. (b)(2); Basler, at pp. 57–58.)
“A defendant’s personal waiver of the right to be physically or
remotely present shall be on the record and state that the
defendant has been advised of the right to be physically or
remotely present for the hearing at issue and agrees that notice
to the attorney that the defendant’s physical or remote presence
in court at a future date and time is required is notice to the
defendant of that requirement.” (§ 977, subd. (b)(2)(A).)
Or, counsel may enter a waiver of the client’s physical
presence, “after counsel has stated on the record that the
defendant has been advised of the right to be physically or
remotely present for the hearing at issue, has waived that right,
and agrees that notice to the attorney that the defendant’s
physical or remote presence in court at a future date and time is
required is notice to the defendant of that requirement.” (§ 977,
subd. (b)(2)(B), italics added; see, e.g., People v. Quan (2023) 96
Cal.App.5th 524, 534–535 [counsel’s representation he had
authority to appear on defendant’s behalf under § 977, subd. (b),
insufficient to waive defendant’s presence].)
Here, Collins’s counsel stated at the September 2022
resentencing hearing that Collins “had waived his presence.”
13
Counsel did not, however, state that she had advised Collins of
his right to be present. Collins accordingly now argues that the
waiver was inadequate, so resentencing him in his absence
violated his constitutional and statutory right to be present at
sentencing.
We will assume, without deciding, that an error occurred.
Nonetheless, any error was harmless, whether evaluated under
the harmless beyond a reasonable doubt standard in Chapman v.
California (1967) 386 U.S. 18, 24, applicable to federal
constitutional error, or under the reasonable probability standard
in People v. Watson (1956) 46 Cal.2d 818, 836, applicable to state
law statutory error. (See generally People v. Davis (2005)
36 Cal.4th 510, 532, [under federal Constitution, error pertaining
to defendant’s presence is evaluated under Chapman’s harmless-
beyond-a-reasonable-doubt standard]; People v. Weaver (2001) 26
Cal.4th 876, 968 [statutory error under § 977 is reversible only if
it is reasonably probable a more favorable result would have been
reached in error’s absence].)
It is unclear what more favorable result Collins could have
obtained had he been at the September 2022 resentencing
hearing. At the August 2022 resentencing hearing, the trial
court struck all firearm enhancements, thereby reducing his
indeterminate term by 50 years to life. Then, at the September
2022 resentencing hearing, the trial court struck the section 667,
subdivision (a), five-year priors, eliminating the 10-year
determinate term. It is therefore unclear how else the trial court
could have favorably modified Collins’s sentence, other than to
reconsider its denial of the Romero motion. But, as to that, the
trial court had previously explained why it would not strike the
prior strikes, and, at the September 2022 hearing, reiterated that
14
it was striking the five year priors because it had used them to
impose the Three Strikes sentence. By this, the trial court
reaffirmed its intent to impose a Three Strikes sentence on the
substantive offenses.
Collins asserts, however, that had he been at the
September 2022 resentencing hearing, he could have elaborated
on his educational deficiencies that the trial court had discussed
at the August 2022 hearing, when it initially refused to strike the
enhancements. That is, at the August 2022 hearing, the trial
court cited Collins’s sparse academic accomplishments in prison,
and said he needed to do more. Collins was at the August 2022
hearing, but neither he nor his counsel responded to the trial
court’s observation. (See, e.g., People v. Robertson (1989) 48
Cal.3d 18, 62 [defendant’s absence without proper waiver from
sentencing hearing harmless where he’d previously addressed
court about his crimes].) Collins does not suggest how he could
have elaborated on this issue at the subsequent September 2022
hearing, and his counsel, when asked if she had anything to add
at that hearing, said she did not. (Compare People v. Quan,
supra, 96 Cal.App.5th at pp. 534–537 [defendant’s absence from
§ 1172.6 evidentiary hearing not harmless because he could have
offered testimony or evidence], with People v. Nieves (2021)
11 Cal.5th 404, 509 [defendant’s absence from restitution hearing
harmless beyond a reasonable doubt where nothing in record
indicated she would have added information about her ability to
pay beyond that presented by defense counsel].)
We therefore conclude that any error in obtaining a proper
waiver of Collins’s presence at the September 2022 resentencing
hearing was harmless.
15
II. The gang enhancement
Collins contends that the trial court’s refusal to grant a
retrial on the substantive offenses violated his due process right
to a fundamentally fair trial under recently enacted section 1109,
which applied retroactively to him. After discussing Assembly
Bill No. 333, which added section 1109, we reject this contention,
finding any error in admitting gang evidence harmless.
A. Assembly Bill No. 333
Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly
Bill 333) became effective on January 1, 2022. It changed the law
on gang enhancements and enacted section 1109 to require
bifurcation at trial of gang enhancements. First, Assembly Bill
333, “narrowed the definition of a ‘criminal street gang’ to require
that any gang be an ‘ongoing, organized association or group of
three or more persons.’ (§ 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 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
16
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).) [¶] Finally, Assembly Bill 333 added section 1109,
which requires, if requested by the defendant, a gang
enhancement charge to be tried separately from all other counts
that do not otherwise require gang evidence as an element of the
crime. If the proceedings are bifurcated, the truth of the gang
enhancement may be determined only after a trier of fact finds
the defendant guilty of the underlying offense.” (People v. Tran
(2022) 13 Cal.5th 1169, 1206 (Tran).)
Courts of Appeal are divided on whether section 1109
applies retroactively, and the issue is pending review in the
California Supreme Court. (See e.g., People v. Burgos (2022)
77 Cal.App.5th 550, 566–567, rev. granted July 13, 2022,
S274743 [§ 1109 applies retroactively]; People v. Ramos (2022)
77 Cal.App.5th 1116, 1131 [same]; contra, People v. Ramirez
(2022) 79 Cal.App.5th 48, 65, rev. granted Aug. 17, 2022,
S275341 [§ 1109 does not apply retroactively]; People v. Perez
(2022) 78 Cal.App.5th 192, 207, rev. granted Aug. 17, 2022,
S275090 [same]; People v. Boukes (2022) 83 Cal.App.5th 937,
rev. granted Dec. 14, 2022, S277103 [same].) The California
Supreme Court declined to decide the retroactivity issue in Tran,
supra, 13 Cal.5th at page 1208. Instead, the court found that any
error in not bifurcating a gang allegation under section 1109 is
subject to harmless error analysis under People v. Watson, supra,
46 Cal.2d 818. (Tran, at p. 1209.) The court also recognized that
evidentiary errors result in a due process violation only where
they render trial fundamentally unfair. (Ibid.)
17
As did the court in Tran, we decline to address in this case
whether section 1109 is retroactive. Instead, we find that any
error in not bifurcating the gang enhancement for trial was
harmless and did not render Collins’s trial fundamentally unfair.
B. Any error in admitting gang evidence was harmless
Assembly Bill 333 does not limit admission of gang
evidence where it is relevant to the underlying charges. (People
v. Ramos, supra, 77 Cal.App.5th at p. 1132; see People v.
Hernandez (2004) 33 Cal.4th 1040, 1049.) Thus, “[e]vidence of
the defendant’s gang affiliation—including evidence of the gang’s
territory, membership, signs, symbols, beliefs and practices,
criminal enterprises, rivalries, and the like—can help prove
identity, motive, modus operandi, specific intent, means of
applying force or fear, or other issues pertinent to the guilt of the
charged crime.” (Hernandez, at p. 1049.)
Here, gang evidence was relevant to explain practices
employed during the events, motive, and intent. As to practices,
gang evidence gave context to the encounter between Campbell
and the shooters. (See, e.g., People v. Duong (2020) 10 Cal.5th 36,
64 [gang affiliation evidence gave context to shooting].) Campbell
said two men in red approached him at the gas station with a
“vicious attitude” and asked, “Where are you from?” Gang
evidence explained what that odd question might mean. The
gang expert explained that the question “is another form of
banging,” showing that the two men were seeking rival gang
members who were “slipping.”7 Stated otherwise, the question
provides the opportunity to “fade,” meaning to initiate a violent
confrontation.
7
The expert did not define “slipping.”
18
Gang evidence was also relevant to prove the shooters’
identities; that is, that they were likely members of the Black P-
Stones. The crimes occurred in territory claimed by the Black P-
Stones’s rival, the Rollin’ 40’s. As the gang expert explained,
gangs go into a rival’s territory to commit crimes. The shooters
wore red, a color associated with the Black P-Stones, and wearing
that color in a rival’s territory signals your gang affiliation.
Collins was a self-admitted Black P-Stone. The three men who
took Collins to the hospital after the shooting were fellow Black
P-Stone gang members. Indeed, one, Birdsong, had a moniker of
Little Papi, a modified version of Collins’s moniker, Papi,
showing that they had a close relationship. Thus, evidence that
the shooting occurred in rival gang territory, that the shooters
wore red, and that the men who took Collins to the hospital were
all Black P-Stone gang members tended to identify the shooters
as Black P-Stone gang members. (See, e.g., People v. Ramirez
(2022) 13 Cal.5th 997, 1095–1096 [proof that defendant and
another suspect belonged to same gang formed significant
evidentiary link in chain of proof tying them to crimes].)
Finally, gang evidence was relevant to establish motive.
(See generally People v. Chhoun (2021) 11 Cal.5th 1, 32 [“motive
can illuminate intent”].) The gang expert testified that the Black
P-Stone and Rollin’ 40’s gangs are rivals and that gangs instill
fear in community members to make them less likely to report
crimes. This testimony helped explain why the shooting
occurred. The shooting occurred in Rollin’ 40’s territory. A gang
challenge—“Where are you from?”—preceded the shooting. This
question, asked by men in red with vicious attitudes, was enough
to prompt Campbell to run away and to yell to Andrew to get out
of the car. The gang evidence therefore explained why two
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strangers would approach Campbell angrily and ask where he
was from: they were initiating a gang confrontation. (See, e.g.,
People v. Duong, supra, 10 Cal.5th at p. 65 [gang evidence
explained defendant’s willingness to shoot complete stranger
after verbal spat].)
And even if some gang evidence—for example, the
predicate crimes and evidence of the pattern of crimes—should
not have been admitted at the guilt phase of Collins’s trial, the
nongang evidence of his guilt was overwhelming and compelling.
(See, e.g., People v. Session (2023) 93 Cal.App.5th 723, 735 [no
reasonable probability that any reasonable jury would have
reached different result had gang evidence been excluded, where
evidence of guilt was overwhelming]; People v. E.H. (2022) 75
Cal.App.5th 467, 480 [where evidence of guilt on underlying
charge is overwhelming, unlikely that trial format harmed
defendant].)
First, the shooting occurred at about 3:50 a.m., and
surveillance video from the gas station appears to show a bullet
striking one shooter in the left thigh. About 30 minutes later,
three men dropped Collins off at UCLA Harbor Hospital, where
Collins was treated for a gunshot wound to his left thigh.
Further, the men who dropped Collins off at the hospital did not
stay with him, suggesting that they did not want to be identified
or seen with Collins.
Second, Collins admitted to a doctor that he had been shot
30 minutes earlier and had filed a report with police at a gas
station. This could be viewed as an admission he was shot at a
gas station.
Third, a cell phone registered to Cirturo Collins was in the
vicinity of the shooting when it occurred. Collins’s girlfriend
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admitted that a cell phone number belonging to her called
Cirturo Collins’s cell phone at 3:38 a.m., when Cirturo Collins’s
cell phone was in the vicinity of the shooting. (See, e.g., People v.
Session, supra, 93 Cal.App.5th at p. 735 [that defendant’s cell
phone was at locations of burglaries was a factor in evaluating
harmless error].)
In sum, cell phone evidence placed Collins at or near the
crime scene when Campbell and Andrew were shot, Collins’s
injury matched what happened to a shooter per the video
surveillance, the timing of Collins’s injury and arrival at the
hospital coincided with the timing of the shooting, and Collins’s
own statements placed him at the shooting. We therefore
conclude that it is not reasonably probable Collins would have
obtained a more favorable result in the absence of any gang
evidence.8 (See generally Tran, supra, 13 Cal.5th at pp. 1209–
1210.)
For similar reasons, admitting gang evidence did not
render Collins’s trial fundamentally unfair. As we have said, the
prosecution relied on evidence other than gang evidence to
establish Collins’s guilt on the underlying charges of murder and
attempted murder. That evidence was compelling, especially
8
In addition, the trial court instructed the jury with
CALCRIM No. 1403, that gang evidence was admitted for the
limited purpose of whether Collins acted with the intent,
purpose, and knowledge required to prove the gang allegation
and whether he had motive to commit the crimes charged. The
jury was also permitted to consider gang evidence to evaluate a
witness’s credibility and the facts and information the expert
witness relied on in reaching his opinion. We presume that the
jury followed that instruction. (People v. Chhoun, supra, 11
Cal.5th at p. 30.)
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Collins’s statements to the doctor essentially admitting he had
just been shot at a gas station. In contrast, gang evidence was
used to establish motive for the crimes and the participants’
identity. Because gang evidence was relevant to the underlying
charges but was not the primary evidence of guilt, its admission
did not render Collins’s trial fundamentally unfair. (See, e.g.,
Tran, supra, 13 Cal.5th at pp. 1208–1209; see generally People v.
Partida (2005) 37 Cal.4th 428, 439.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
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