People v. Steele CA2/4 ( 2023 )

Filed 12/4/23 P. v. Steele CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B314112
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA450440)
v.
ORDER MODIFYING
CLEO STEELE, OPINION AND DENYING
PETITION FOR
REHEARING
Defendant and
Appellant. NO CHANGE IN
JUDGMENT
THE COURT*:
The opinion filed November 9, 2023, in the above-entitled matter is
ordered MODIFIED as follows:
1. On page 16, in the third full paragraph, after the fourth sentence
ending with the word “anything,” add the following: “There was a juror
wearing what appellant believed was a Sheriff’s shirt, and appellant asserted
this meant the juror would favor law enforcement.”
2. On page 18, to the fourth full paragraph, after the second
sentence, add the following: “The court asked the juror if he could be fair
because of his occupation, and the juror responded ‘I don’t know.’ When asked
if he could be fair and impartial, the juror stated, ‘Not really, it’s really hard
with a mask.’”
3. On page 18, in the fourth full paragraph, add to the sentence
reading “The court advised the parties that it intended to remove Juror No. 7
from the jury” the following clause at the end of the sentence: “telling defense
counsel that “[t]his person has a bias. . . . in favor of police officers.”
These modifications do not change the judgment.
The petition for rehearing is DENIED.
________________________________________________________________________
*CURREY, P.J. COLLINS, J. MORI, J.
2
Filed 11/9/23 P. v. Steele CA2/4 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B314112
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA450440)
v.
CLEO STEELE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed in part and
reversed and remanded in part.
Kelly C. Martin, 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, Senior
Assistant Attorney General, Noah P. Hill and Eric J. Kohm,
Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Cleo Steele, a member of the Underground Crips
gang, appeals his June 2021 convictions for two counts of murder
(Pen. Code, § 187, subd. (a)),1 four counts of attempted murder
(§§ 664, 187, subd. (a)), related weapons charges (felon in
possession of a handgun, § 29800, subd. (a)(1)), gang
enhancements (§ 186.22, subd. (b)), weapons enhancements
(§ 12022.53, subd. (e)(1)), and special circumstance allegations
(§ 190.2), all stemming from two separate gang-related shooting
incidents in March and June 2015. On appeal, he principally
challenges the admission of evidence and makes numerous claims
of ineffective assistance of counsel. We reverse and remand for a
retrial of the gang enhancements and gang special circumstance
allegations in light of Assembly Bill No. 333 (Assem. Bill
No. 333), effective January 1, 2022. In all other respects the
judgment is affirmed.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY2
A. Rivalry Between Crips and Hoovers.
Appellant and the victims were members of two rival
gangs. Appellant belonged to the Rollin 100s Underground Crips.
The victims belonged to a gang known as Hoovers, who were the
Underground Crips’ “worst enemy.” Underground Crips were
expected to fight Hoover members on sight, including by using a
weapon.
1 All statutory references are to the Penal Code unless
otherwise noted. Unless otherwise noted, the factual summary is
derived from trial testimony.
2 This action resulted from the consolidation of two related
actions, Case Nos. BA450440 and BA450470.
2
B. March 12, 2015 Shooting of Cleveland Ross, Jr.
(Ross, Jr.).
One of the murders for which appellant was convicted was
the March 12, 2015 shooting of Cleveland Ross, Jr.
1. Prosecution Case.
On the day of the shooting, Quincy Jefferson, a member of
the Underground Crips, was at his girlfriend’s house near 105th
Street and Normandie Avenue in Los Angeles. While there,
Jefferson encountered appellant and other Underground Crips:
Bill Shepard, Johnnie Johnson, and another person known as
Demetrius. A car arrived with additional Underground Crips
members whose gang monikers are “Infant Toon” and “Baby
Hound.” They told the group that they had just seen Ross, Jr. at a
nearby AutoZone store. Ross, Jr. was well known in the
neighborhood.
The AutoZone store was approximately 5 to 10 minutes
away near the intersection of Century Boulevard and Hoover
Street, and was in Hoover territory, Appellant asked the group
what they wanted to do, and they responded, “‘let’s go over
there.’”
The group got into three cars to go the AutoZone. They
used the “car method,” a gang technique whereby the front and
rear cars protected the middle car, which contained the gunman.
The method ensured the safety of the gunman and facilitated
escape from law enforcement. Infant Toon went with Jefferson in
the lead car, which was Jefferson’s silver Chrysler 300. Johnson
got into his BMW, and Demitrius followed in another gang
member’s borrowed burgundy Buick. Appellant was in the Buick.
3
Ross, Jr. had gone to the AutoZone with his father,
Cleveland Ross, Sr. (Ross, Sr.). They needed to fix the battery on
Ross, Jr.’s car and were parked near the front door.
After arriving at the AutoZone, Jefferson circled the
parking lot a couple of times. He saw Johnson’s BMW and the
Buick arrive. The three cars parked in the AutoZone lot.
Jefferson saw Ross, Jr. in the parking lot attempting to start his
car. Jefferson got out of his car and walked towards Johnson’s
BMW.
Jefferson saw appellant reach over the Buick and shoot
Ross, Jr. with a .357 revolver. Jefferson ran back to his car and
followed the Buick out of the lot.3
Ross, Jr. was shot outside the AutoZone. Ross, Sr., who was
still in the store when shots rang out, found Ross, Jr. on the
ground next to his BMW.
Derrick Jones, who was in line in the AutoZone, heard
about seven shots and looked up and saw the shooter. Jones
described the shooter as a bald, “brown-skinned” African
American. Jones recognized appellant in court as the shooter,
although he had previously been unable to identify appellant
from a police photo array containing appellant’s picture.
Bystanders Michael Marlete and his wife Daniella Rangel
described hearing multiple gunshots. One witness observed the
shooter had a “Clint Eastwood” style gun, and that the shooter
3 Jefferson was initially charged with murder and conspiracy
to commit murder for the offenses committed on March 12, 2015,
in Case No. BA450470. At first, he denied his involvement to
police. Jefferson later pleaded no contest to voluntary
manslaughter and received an 11-year sentence. At the time of
trial, Jefferson was no longer a member of the Rollin 100s
Underground Crips and testified against appellant.
4
was aiming at Ross, Jr.’s car. The shooter was described as dark
(black or Mexican), about 40 years old, bald, with round glasses.
However, neither Marlete nor Rangel could identify appellant
from a six-pack photo array, and Rangel claimed she did not see
the shooter.
After the shooting, the three cars returned to the home of
Jefferson’s girlfriend.
Police obtained surveillance videos from nearby businesses.
A car wash video showed the three cars entering the AutoZone
parking lot. Cell phone data established appellant was in the
area of the house where the Underground Crips gathered before
and after the shooting. Data from the day of the shooting showed
appellant’s phone in the general area of 105th and Normandie at
about 4:20 p.m.; near the crime scene at 4:40 p.m.; and near
105th and Normandie at 5:15 p.m.
C. The June 10, 2015 Shooting of Mykiel
Washington, Michael Baptist, Larail Williams, Kevin Carr,
and Lisa Jack at the Monarch Liquor Store.
On June 10, 2015, a shooting occurred at the Monarch
Liquor Store in the area of 88th Street and Vermont Avenue in
Los Angeles.
1. Victim and Eyewitness Testimony.
Michael Baptist was in his Dodge Dart at a liquor store
with his friends Mykel Washington, Larail Williams, and Kevin
Carr. While Baptist went into the liquor store to get some
cigarettes, Washington got out of the car and went across the
street to speak with someone.
Baptist got back into his car and saw a car drive by with
three men who were not from the area. He told Washington they
5
needed to leave and heard shots. Baptist put his car in reverse,
but a white Chevy Malibu and another car sandwiched him in.
Baptist heard more shots. A bullet went through the door of his
car, hit his leg, and struck the gear shift. Baptist could not move
his car because the gear shift had shattered. The Chevy Malibu
drove away. Carr got out of the car and ran.
Baptist ducked for cover and was shot twice more in the leg
and twice in the back. He heard someone say, “you next,” before
he was shot in the cheek. Baptist did not see who shot him.
Baptist saw Washington across the street, staggering.
Washington died from multiple gunshot wounds.
Lisa Jack was sitting nearby, reading a book, when she
heard gunshots. She got on the ground, saw blood on her hand,
and realized she had been shot in the hip. Jack did not see the
shooter.
Kevin Carr, a Hoover, was shot in the leg. He went to the
hospital and had surgery. Later, he stated he did not remember
the shooting. Carr also stated he did not remember meeting with
Detective Hecht or identifying anyone from a photographic array.
Carr said he did not know appellant.4 However, Detective Hecht
testified at trial that he met with Carr at the hospital, and Carr
told him that he was sitting in the car at the Monarch Liquor
Store when he saw someone wearing gold rimmed glasses and
dressed in a hoodie running toward him. Several months later,
Carr identified appellant as the shooter from a photographic
array.
A bus driver was driving the Vermont line on the day of the
shooting. He stopped at the red light at 88th and Vermont near
4 Carr was unavailable at trial, and his preliminary hearing
testimony was read to the jury.
6
the Monarch Liquor Store. He heard gunfire and saw a male with
gold-framed glasses jump into the front passenger seat of a brown
car. As the car drove past the bus, he saw appellant. The bus
driver identified appellant as the shooter from a photographic
array and at trial. However, he conceded on cross-examination he
had not identified appellant at the preliminary hearing, instead
identifying a co-defendant.
2. Patrick Bell’s Testimony.5
Patrick Bell drove the White Malibu that sandwiched in
Baptist’s car at the Monarch Liquor Store the day of the shooting.
Bell had been a member of the Rollin 100s Underground Crips.
Bell knew appellant because they were cousins by marriage and
had gone to school together. Although members of the same gang,
they did not hang out. The area of the shooting was in Hoover
and Eight Trey Gangster territory. Both gangs were enemies of
the Underground Crips.
The afternoon of the shooting, Bell was in the area to visit
his grandmother. He saw two cars he recognized—a brown car
belonging to Edward Furdge (a Saturn), an Underground Crip,
and a Chevrolet Monte Carlo belonging to Wychane Randle.6 Bell,
who was traveling in the opposite direction, saw someone in one
of the cars wave to him to come over. Bell did a U-turn and got
5 Bell was initially charged with murder but obtained a plea
bargain in exchange for his testimony against appellant.
6 In case No. BA450550, appellant, along with co-defendants
Wychane Randle, Marcus Broadnax, and Edward Furdge, was
charged with murder, conspiracy to commit murder, and four
counts of attempted murder. These co-defendants either reached
dispositions of their cases, or the proceedings were severed.
7
behind the two cars and started to follow them. The cars moved
into Hoover territory.
Bell followed the cars to see what they were doing, not
necessarily to lend assistance in the rival gang territory. They
stopped at a light as they traveled on 88th Street. Bell saw
appellant, wearing a hoodie, get out of one of the cars, and start
shooting at people with a “20-shot clip” handgun. Bell backed up
and got out of the way. Although he admitted he pulled up next
to a Dodge Dart, Bell denied sandwiching in any of the cars.
Bell went back to the “hood.” Detectives questioned Bell
about the shooting and told him they had video of his license
plate. Bell, who had 10 brothers, claimed multiple people drove
his car. Bell did not want to be a “snitch.”
After Bell realized other people were talking to police and
had told police Bell was present at the shooting, he realized he
could not lie anymore. He said police had raided his house and
told him the Department of Children and Family Services would
take his children.
Ultimately, Bell was charged as an accessory and decided
to talk to police. He told them he was at the shooting and knew
the shooter. Police circulated a sketch with appellant’s likeness
and Bell recognized appellant as the shooter. Bell told police that
Furdge was driving and Marcus Broadnax was in the back seat.
At trial, Bell asserted he identified appellant to get out of
custody. He said police offered him money and release from
custody after he identified appellant. Further, after Bell
identified appellant at the preliminary hearing, he received
relocation assistance and financial support of approximately
$17,000.
8
3. Police Investigation.
Sheriff’s deputies recovered nine-millimeter shell casings
and several bullet fragments in the street near the scene of the
Monarch Liquor Store shooting. A Dodge Dart parked on 88th
Street had eight bullet impacts to its exterior and interior. After
impounding the car, police examined the car and found two bullet
holes on the driver’s door, blood on the driver’s side door, and
three bullet fragments inside the car. A brown car, a Saturn, was
examined, and DNA found on an interior door handle matched
Broadnax. A water bottle from the center console contained
Furdge’s DNA, and DNA on an orange soda bottle in the trunk
matched Randle.
Over 20 spent 9-millimeter casings, all fired from the same
gun, were recovered from the crime scene and the Dart. Bullets
recovered from Washington’s body and Carr were fired from the
same weapon.
Cell phone records showed that just before 1:00 p.m. on
June 10, 2015, appellant’s cell phone was near the same house as
it had been before and after Ross, Jr.’s murder. Between 12:00
p.m. and 12:39 p.m., Broadnax’s phone was at the same location.
Randle’s phone was also located near the house and at the
Monarch Liquor Store.
D. Gang Testimony.
Deputy Sheriff Ernie Castaneda, a gang expert, testified
that gangs value loyalty; “loyalty is everything.” Further,
“snitching” would result in “violent repercussions.” The
Underground Crips and Hoovers were “bitter rivals.”
Gangs require members to “put in work,” such as bringing
in money and committing violent crimes against rival gang
9
members. Further, gang members must put in work to help
create a violent reputation for their gang to garner “respect.”
Gang territory is the area the gang claims for itself. To
protect its territory, a gang will use graffiti and carry firearms.
Often, a gang member will “go on a mission,” meaning the gang
member will enter rival territory to commit a crime against a
rival gang member.
Ross, Jr. was well known by his fellow gang members and
rivals. The Hoovers controlled the area where Ross, Jr. was shot,
while the Hoovers and an ally, the 8-Trey Gangster Crips,
controlled the area where Washington was shot. Ross, Jr. was a
Hoover and Washington was a member of the 8-Trey Gangsters.
The area of 105th Street and Normandie was claimed by the
Underground Crips, while the area to the east was claimed by the
Hoovers.
Deputy Castaneda knew Johnson, Broadnax, Furdge,
Randle, and appellant were all Underground Crips.
As discussed more thoroughly post, Castaneda reviewed
appellant’s Facebook posts and analyzed the meaning of the
slang used in them. According to Castaneda, appellant’s tattoos
indicated he was an Underground Crip, and his tattoos and the
nature of his Facebook posts indicated he was actively involved
with his gang.
In a hypothetical based on the facts of the shootings in this
case, Castaneda opined 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, or assist
gang members in criminal conduct. Castaneda believed the
shootings benefited the gang because their commission in rival
territory in broad daylight created a violent reputation for the
10
gang among members of rival gangs and the general community,
allowing the gang to get away with future crimes by intimidating
the community. People aware of the crimes are afraid to report
them because they remember the murders the gang committed.
A gang that commits a crime might expand its territory,
resulting in more income, respect, and the boosting of the gang’s
reputation. Rival gang members will know that if they do
anything to the gang, something “really bad” will happen to
them. The shootings also increased the shooter’s stature in the
gang, which leads to becoming a shot caller who receives proceeds
from the gang’s crimes.
Further, in Castaneda’s opinion, the crimes in this case
were committed in association with a gang because three vehicles
were involved and each vehicle had a separate role; gang
members commit crimes with other people they trust because
this helps them evade law enforcement, and they want other
members to witness the crime so they can increase their respect
within the gang.
Appellant’s counsel stipulated that the Underground Crips
were a criminal street gang as defined in sections 186.22 and
190.2, subdivision (a)(22).
E. Defense Case.
Johnnie Johnson testified he had known appellant a long
time. On March 12, 2015, Johnson drove into the AutoZone,
following Jefferson’s Chrysler. Johnson parked next to the wall
and remained in his car. Johnson heard shots and saw the
shooter. He did not recognize him, and he testified it was not
appellant. During a police interview, Johnson claimed he did not
know appellant. Johnson later admitted knowing appellant.
11
Johnson told police the cars involved in the shooting were a red
Buick, silver Chrysler, and his car.
Johnson admitted he lied to police when he told them he
did not know appellant. Johnson would not “snitch” on appellant.
He denied going to the AutoZone to kill Ross, Jr. Instead, he had
seen Jefferson’s car, so he followed it to the AutoZone.
Johnson and appellant appear in photographs on Johnson’s
Facebook page. An Instagram post that included both Johnson
and appellant included gang code meaning “Hoover Killer.” In
September 2015, Johnson and appellant were convicted of
committing a home invasion robbery. Johnson stated he believed
appellant was innocent of the charges.
F. Information, Verdict and Sentencing.
The amended Information filed June 10, 2015 in
consolidated case Nos. BA450440 and BA450470, alleged as
follows:
Count Section Gang Offense Date Victim
Enhancement
1 187 190.2, subd. Murder 6/10/15 Mykiel
(a)(22) Washington
186.22, subd.
(b)(1)(C)
12022.53, subds.
(d) & (e)(1)
2 182/187 186.22, subd. Conspiracy 6/10/15 Mykiel
(b)(1)(C) to Commit Washington
12022.53, subds. Murder
(d) & (e)(1)
12
Count Section Gang Offense Date Victim
Enhancement
3 29800, 186.22, subd. Felon in 6/10/15
subd. (b)(1)(A) possession
(a)(1) of a
firearm
4 664/187 186.22, subd. Attempted 6/10/15 Michael
(b)(1)(C) Murder Baptist
12022.53, subds.
(d) &(e)(1)
5 664/187 186.22, subd. Attempted 6/10/15 Lisa Jack
(b)(1)(C) Murder
12022.53, subds.
(d) & (e)(1)
6 246 186.22, subd. Shooting 6/10/15
(b)(1)(C) at an
12022.53, subds. Occupied
(d) & (e)(1) Vehicle
7 664/187 186.22, subd. Attempted 6/10/15 Kevin Carr
(b)(1)(C) Murder
12022.53, subds.
(d) & (e)(1)
8 664/187 186.22, subd. Attempted 6/10/15 Larail
(b)(1)(C) Murder Williams
12022.53, subds.
(d) & (e)(1)
9 187 190.2, subd. Murder 3/12/15 Cleveland
(a)(22) Ross, Jr.
186.22, subd.
(b)(1)(C)
13
Count Section Gang Offense Date Victim
Enhancement
12022.53, subds.
(d) & (e)(1)
10 182/187 186.22, subd. Conspiracy 3/12/15 Cleveland
(b)(1)(C) to Commit Ross, Jr.
12022.53, subds. Murder
(d) & (e)(1)
11 29800, 186.22, subd. Felon in 3/12/15
subd. (b)(1)(A) Possession
(a)(1) of Firearm
In addition to the multiple murder, gang special
circumstance, and gang allegations, a prior serious felony
conviction was also alleged. (§ 1170.12, subd. (b).)
A jury found appellant not guilty of the conspiracy
allegations (Counts 2 and 10). The jury found appellant guilty of
all other charges, and found the attempted murders of Baptist,
Carr, and Williams were willful and premeditated. All gun
enhancements and special circumstances were found true. The
trial court found the prior conviction allegation true.
The trial court selected Count 5 (attempted murder of Jack)
as the base count and imposed the midterm of 7 years, doubled to
14 years based on the prior strike, plus 25 years to life for the
gun enhancement and 10 years for the gang enhancement.
The court imposed sentences of life without parole on
Counts 1 and 9, plus an additional 30 years for the enhancements
on those counts. On Counts 3 and 11, the court sentenced
appellant to 28 months on each count, consisting of the midterm,
doubled, plus a 1-year gang enhancement. On Counts 4, 7, and 8,
the court sentenced appellant to 3 terms of life imprisonment
14
with a minimum parole eligibility term of 15 years, doubled to 30
years, plus an additional 30 years for the enhancements on each
count. The court imposed and stayed sentence on Count 6, and
ordered all sentences, other than on Counts 5 and 6, to run
consecutively.
DISCUSSION
I. MARSDEN MOTIONS
Appellant contends the trial court failed to sufficiently
inquire into his conflicts with his appointed counsel and his
complaints about counsel’s performance. He also asserts this
error was prejudicial because counsel ultimately rendered
ineffective assistance.
A. Factual Background.
At trial, appellant made two Marsden7 motions. The trial
court denied both motions.
1. First Marsden Motion.
At the first Marsden motion, appellant complained he was
uncomfortable with his appointed counsel and did not get along
with them. During jury selection, appellant expressed concern
about continuances given the age of his counsel (over 75 years
old). The court responded it had known the lawyers for decades
and they were “really very good” attorneys. The court informed
appellant that issues with whether he could continue to be
charged with the death penalty and COVID-19’s effect on jury
selection were going to cause unavoidable delays in starting trial.
The court explained that even if it appointed a younger attorney
7 People v. Marsden (1970) 2 Cal.3d 118.
15
to represent appellant, a new lawyer would ask for and receive a
couple of years to prepare for trial.
Subsequently, the court granted a continuance in light of
the severity of COVID-19, the number of positive cases, and its
concern for all parties. A jury pool would not be available under
the circumstances. Appellant objected to the continuance because
he still had concerns about the age of his counsel. The court
advised appellant that no trials were being held. The trial court
reiterated that “you’ve got the best. Right now, you have the best
lawyers because of the nature of this case. You have the best
lawyers that the state can give you.”
The court told appellant that a continuance would be
advantageous to him considering the likelihood that the
prosecutor would forego the possibility of the death penalty.
Appellant then consented to the continuance, and the prosecutor
eventually stated that she would no longer be seeking the death
penalty.
As jury selection proceeded, appellant made another
Marsden motion. The court asked appellant if he wanted a
different attorney, and appellant confirmed he did. When the
court asked for his reasons, he responded he was uncomfortable,
and he did not get along with his attorney. When the court asked
appellant to explain, he answered there were “plenty of things
[he had] seen in this case” and claimed his attorney had “no
witnesses for [him] or anything.” Further, appellant did not like
counsel’s questions during voir dire. The court inquired what
appellant thought should be asked, to which appellant answered,
“A lot of things.” When the court gave him the opportunity to
provide specifics, appellant replied that counsel should be asking
more than just “because [appellant] is a gang member, can you
16
say ‘not guilty?’ It’s far more things besides me being a gang
member.” Appellant further complained that counsel asked the
same questions of all the jurors.
The court asked appellant which witnesses he would like
his counsel to call, and appellant stated he wanted experts.
“There’s going to be witnesses here that say I did the crime.
There’s witness experts that would help him . . . . They’re going to
have experts, I guarantee. I don’t have no one there to help me
with this, man. I don’t feel he’s good enough at all. I am going up
there with nothing. I could represent myself and not throw my
life away.”
The court denied appellant’s Marsden motion, finding
“[t]here is no constitutional right to a meaningful relationship
between the defendant and his counsel. . . . . The fact that you
don’t trust your attorney and you don’t get along with him is not
sufficient to substitute an attorney. You don’t have to get along
with the lawyer. . . . [T]he fact that you disagree with the
attorney regarding the trial tactics does not compel a change of
attorneys. It’s the attorney [who is] in charge.” The court added,
“I’ve known your lawyer for a long time . . . He knows what he’s
doing.”
2. Second Marsden Motion.
Later during jury selection, appellant made another
Marsden motion. Defense counsel told the court that appellant
“just did say he doesn’t like all the jurors.” When the court asked
about the problem, appellant stated his attorney was
“uncoordinated when it comes to the jury things.” Counsel could
not keep track of juror numbers, and there were jurors appellant
did not want on the jury.
17
During voir dire, several jurors revealed they had ties to
law enforcement, were the victims of crimes, or had close
relatives who were the victims of crimes.
On appeal, appellant complains about the following jurors:
(1) Juror No. 7 (Badge No. 9432). Juror No. 7 was a
volunteer military police officer for the “State Guard.” The juror
stated he could be fair and impartial, lived in Los Angeles, was
employed as an intermediate clerk for the Los Angeles County
Public Health Department, was unmarried, and had never served
as a juror.
Juror No. 7 confirmed that if he was not convinced beyond
a reasonable doubt that appellant was guilty, he would acquit. He
further confirmed he would not convict appellant based on
appellant’s being a gang member. However, after hearing the
witnesses on the first day, Juror No. 7 had made up his mind.
The court advised the parties that it intended to remove Juror
No. 7 from the jury, and defense counsel stated, “I am not
objecting if his mind is made up that [appellant] is guilty. If his
mind is made up that [appellant] is not guilty . . . I am objecting
and submitting.” The court explained that discharge from a jury
was appropriate where a juror prejudges a case without hearing
all of the evidence. Juror No. 7 was excused.
(2) Juror No. 12 (Badge No. 3088). Juror No. 12’s best
friend’s father had recently retired from the Los Angeles Police
Department. The prospective juror did not believe that
relationship would cause her to be unfair. The juror confirmed
she would not convict based on the facts that appellant was
charged with two murders and was a gang member.
(3) Juror No. 1 (Badge No. 2447). Juror No. 1’s brother
was a sergeant for the Long Beach Police Department, but he did
18
not think anything about his brother’s occupation would cause
him to be unfair as a juror. He confirmed that he would not
convict based on the facts that appellant was charged with two
murders and was a gang member. The juror agreed that it was
not part of his job to consider the consequences of finding
someone guilty.
(4) Juror No. 3 (Badge No. 2922). Juror No. 3 had a
murdered relative. She did not think that the murder would
cause her to be unfair. In addition, the juror explained that she
was employed as a dental assistant, had never served on a jury,
was married to a truck driver, and had two children. Juror No. 3
understood that being charged with a crime did not equate to
guilt. She further understood she could only convict if she was
convinced someone was guilty beyond a reasonable doubt. Juror
No. 3 stated that appellant’s gang status would not cause her to
find him guilty if the evidence did not satisfy the beyond a
reasonable doubt standard.
(5) Juror No. 4 (Badge No. 1815). Juror No. 4’s uncle was a
police officer in Korea, but nothing about his uncle’s occupation
would cause him to be unfair. In addition, he explained that he
lived in Burbank, worked as a medical assistant, was unmarried,
had no children, and had never served on a jury. In response to a
question from the prosecutor, Juror No. 4 stated that he would be
able to reach a verdict with the other jurors based only on the
evidence heard in court.
3. Trial Court Ruling.
The court denied the Marsden motion, explaining that
defense counsel “chooses the jury.” With respect to counsel’s
keeping track of juror numbers, the court explained, “because of
COVID. . . . [W]e had brought in jurors in the morning and the
19
night and in the afternoon for voir dire for over a week. That’s
called the Batch System. And I wouldn’t—it’s not like the old
days, where you had everybody in the box and all the jurors are
present. Because of that, it’s hard to keep track of all the jurors.
You can see even the People, the DA, had to ask which day the
juror was here.”
The court continued, “When you say he is uncoordinated, I
don’t know what that means. He has jurors separated by days,
and A.M. and P.M., and it’s hard because not all jurors showed
up at one time. It was unknown which jurors were from which
group.” Defense counsel added, “this is the best defense jury I
have seen in years. I try one murder case after another, and this
is one of the best.”
B. Discussion.
Under People v. Marsden, supra, 2 Cal.3d 118, a defendant
may request that the trial court replace appointed counsel upon a
showing that the defendant has been denied effective
representation of counsel. (Id. at pp. 123–124.) The rules
governing Marsden motions are well established. When a
defendant seeks substitution of appointed counsel pursuant to
Marsden, “‘the trial court must permit the defendant to explain
the basis of his contention and to relate specific instances of
inadequate performance. A defendant is entitled to relief if the
record clearly shows that the appointed counsel is not providing
adequate representation or that defendant and counsel have
become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result.’” (People v. Taylor
(2010) 48 Cal.4th 574, 599.) We review the denial of a Marsden
motion for abuse of discretion. Denial is not an abuse of
discretion unless the defendant has shown that a failure to
20
replace counsel would substantially impair the defendant’s right
to assistance of counsel. (Ibid.; People v. Streeter (2012) 54
Cal.4th 205, 230.)
During a Marsden hearing, the court ascertains the nature
of defendant’s allegations regarding counsel’s performance, and
determines whether the allegations have sufficient substance to
warrant replacement of counsel. (People v. Gutierrez (2009) 45
Cal.4th 789, 803.) There is no absolute right to substitute
counsel. A trial court is required to substitute counsel in a
situation where the record clearly shows that the first appointed
counsel is not adequately representing the accused. (Ibid.) The
trial court must also substitute counsel where it is demonstrated
that counsel and defendant are embroiled in an irreconcilable
conflict. (People v. Abilez (2007) 41 Cal.4th 472, 488.) We evaluate
whether the error prejudiced defendant under the Chapman
standard, and consider whether any error was harmless beyond a
reasonable doubt. (People v. Loya (2016) 1 Cal.App.5th 932, 945;
Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17
L.Ed.2d 705].)
Here, the record does not reflect that counsel was
inadequately representing appellant. Nor does it demonstrate
counsel and defendant were embroiled in an irreconcilable
conflict. Further, the record does not show that failure to replace
counsel would impair appellant’s right to assistance of counsel.
After defendant’s first request, the trial court made a
detailed inquiry into appellant’s reasons. Appellant complained
counsel was not going to call witnesses, and counsel was not
asking the “right” questions during voir dire. The court inquired
of the questions appellant wanted counsel to ask. Appellant
stated “a lot of things,” but when pressed for more specifics, he
21
had none. Given appellant’s stated reasons for discharging his
counsel, the court was within its discretion to deny the motion.
Regarding appellant’s second motion, the record
demonstrates defense counsel was not deficient in his handling of
voir dire. Defense counsel stated it was one of the best juries he
had obtained. Second, there is nothing in the voir dire transcript
to indicate any of the remaining jurors should have been
challenged for cause. Juror No. 7 was removed after indicating he
would prejudge the case. The remaining jurors all indicated that
despite their ties to law enforcement, they would not prejudge the
case or convict appellant solely because he was a gang member.
The questioning and discussion were sufficient to expose
potential bias.
As discussed at length post, we have concluded appellant
did not receive ineffective assistance of counsel.
II. SUFFICIENCY OF EVIDENCE ON COUNT 5,
ATTEMPTED MURDER OF LISA JACK.
Appellant contends the evidence did not establish he
specifically intended to kill Jack because she was a bystander,
not appellant’s intended target. We disagree.
“To prove the crime of attempted murder, the prosecution
must establish ‘the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended
killing.’” (People v. Canizales (2019) 7 Cal.5th 591, 602.) The
mental state required for attempted murder differs from that
required for murder. Attempted murder requires a showing of
express malice. Murder does not require intent to kill as implied
malice—a conscious disregard for life—is sufficient. However,
attempted murder requires the specific intent to kill. (People v.
Smith (2005) 37 Cal.4th 733, 739.)
22
We review the whole record in the light most favorable to
the judgment to determine whether any reasonable trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
We presume the existence of every fact the jury could reasonably
have deduced from the evidence in support of the judgment and
“‘accept logical inferences that the jury might have drawn from
the circumstantial evidence.’” (Id. at p. 357.) We reverse for
insufficient evidence only where “‘“upon no hypothesis whatever
is there sufficient substantial evidence to support”’ the jury’s
verdict.” (Ibid.)
Here, appellant argues, Jack testified she was looking at
her book when she was suddenly hit by a bullet; yet there was no
evidence she belonged to a gang, looked like she was a member of
a gang, or was the target of the shooting. Rather, the shooter shot
at Washington as he moved towards the Dart, and fired at
Washington’s companions, all gang members. This evidence, he
contends, establishes Jack was nothing more than a bystander
and he never harbored any express malice towards her.
We agree with respondent that there is sufficient evidence
in the surveillance video to support an inference that appellant
acted with specific intent to kill. The video shows appellant raise
his gun, aim at Jack, and shoot the gun. Additionally, the
evidence established appellant had entered rival gang territory
with intent to shoot rival gang members; as a result, the jury
could have concluded that Jack, given her physical proximity to
such gang members, was also appellant’s intended target.
III. CROSS-EXAMINATION OF PATRICK BELL.
Appellant contends Patrick Bell had a history of lying, yet
the trial court improperly restricted appellant’s cross-
23
examination of Bell, and the error was prejudicial because Bell
was the “most damaging” witness on Count 1. He further argues
the omission of the evidence violated his Sixth Amendment right
to confront witnesses, such federal constitutional issues were
preserved, and if not, counsel was ineffective for failing to
adequately preserve them.
A. Factual Background.
At the outset of trial, appellant told the court he wanted to
impeach Bell with evidence of Bell’s conviction in 2000 for felony
possession of marijuana, a 2005 conviction for felony second-
degree burglary, and a 2001 conviction for receiving stolen
property. Additionally, appellant wanted to introduce evidence
that Bell lied to police on two separate occasions about the date of
his birth. The first took place in February 2009 during a traffic
stop on a misdemeanor warrant (driving with a suspended
license) and the second took place in June 2009 during a traffic
stop (driving without a license).
The prosecution objected that the evidence would be
confusing and thus more prejudicial than probative. The court
admitted the three (2000, 2001, and 2005) convictions, but
excluded the two incidents of Bell’s falsehoods about his age.
During opening statement, defense counsel observed that
Bell was a liar and failed to identify appellant as the shooter
until the police caught him lying. During trial, Bell admitted to
lying for an entire year until the police caught him in his lies. He
did not tell the truth until arrested as an accessory, and only
after he feared his children would be taken away. Bell admitted
the truth when confronted with a recorded telephone
conversation where he made inculpatory statements.
24
B. Discussion.
1. Exclusion Under Evidence Code Section 352.
Evidence Code section 352 gives the trial court discretion to
exclude evidence “it deems irrelevant, cumulative, or unduly
prejudicial or time-consuming.” (People v. Pride (1992) 3 Cal.4th
195, 235.) To establish an abuse of discretion, a defendant must
demonstrate that the trial court’s decision was so erroneous that
it falls outside the bounds of reason. A merely debatable ruling
cannot be deemed an abuse of discretion; rather, an abuse of
discretion will be established by a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice.
(People v. Johnson (2022) 12 Cal.5th 544, 605–606.)
People v. Sapp (2003) 31 Cal.4th 240 (Sapp), is instructive
on the issue of impeachment evidence other than felony
convictions. In Sapp, the prosecution called an expert in the
penalty phase to rebut defense evidence that the defendant
suffered from brain abnormalities and organic dysfunction at the
time of the offenses. (Id. at pp. 287–289.) The defendant sought to
impeach the expert’s credibility by cross-examining him
regarding charges of Medi-Cal fraud brought against him four
years earlier and subsequently dismissed. (Id. at p. 289.) The
trial court disallowed the cross-examination under Evidence Code
section 352, concluding it involved a collateral matter that was
more prejudicial than probative and would consume too much
time and divert the jury from its primary purpose of deciding the
appropriate penalty. (Id. at p. 289.)
In rejecting the defendant’s claim that the court erred by
disallowing the proposed cross-examination, Sapp explained that
trial courts have broad discretion “‘to prevent criminal trials from
25
degenerating into nitpicking wars of attrition over collateral
credibility issues . . . .[¶] . . .[I]mpeachment evidence other than
felony convictions entails problems of proof, unfair surprise, and
moral turpitude evaluation which felony convictions do not
present. Hence, courts may and should consider with particular
care whether the admission of such evidence might involve undue
time, confusion, or prejudice which outweighs its probative
value.’” (Sapp, supra, 31 Cal.4th at p. 289.)
Here, the trial court was within its discretion when it
concluded additional evidence of Bell’s falsehoods to police was of
limited additional relevance and could confuse the jury. In any
event, appellant cannot show prejudice where, as here, there was
repeated testimony about Bell’s predilection for prevarication.
Bell admitted to his own untruthfulness concerning his
knowledge of the shooting. Thus, it is not reasonably likely that
had the additional evidence been admitted, appellant would have
obtained a more favorable result at trial. (People v. Watson (1956)
46 Cal.2d 818, 836.)
2. Federal Constitutional Issues.
“‘The federal Constitution’s confrontation right is not
absolute; it leaves room for trial courts to impose reasonable
limits on a defense counsel’s cross-examination of a witness.’”
(Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [106 S.Ct.
1431, 89 L.Ed.2d 674]; People v. Pearson (2013) 56 Cal.4th 393,
454.) Here, the trial court’s reasonable application of the rules of
evidence to exclude evidence inadmissible under Evidence Code
section 352 did not deprive appellant of his constitutional rights.
(People v. Turner (2020) 10 Cal.5th 786, 818.) Where counsel’s
performance was not deficient, there can be no ineffective
26
assistance claim. (Strickland v. Washington (1984) 466 U.S. 668,
694 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
IV. ADMISSION OF FACEBOOK POSTS.
Appellant made numerous Facebook posts with the
username “Tiny Ug Fly.” The posts referenced the shootings by
using slang expressions employing rhythm, meter, and figurative
speech. Appellant contends these posts were erroneously
admitted at trial.
A. Retroactivity of Evidence Code Section 352.2
Appellant contends his convictions must be reversed and
the matter remanded for a new trial so the trial court can apply
newly enacted Evidence Code section 352.2 (Section 352.2),
effective January 1, 2023, to determine whether to admit the
Facebook posts. Although there is a split of authority on whether
Section 352.2 is retroactive, we need not decide the issue because
appellant suffered no prejudice from the absence of its
application.
1. Evidence Code Section 352.2
Last year, Assembly Bill No. 2799 (Stats. 2022, ch. 973, § 2)
added section 352.2 to the Evidence Code. Section 352.2 is
designed to address problems with racial bias and stereotypes
through the admission of rap videos. The Legislature found
“[e]xisting precedent allows artists’ creative expression to be
admitted as evidence in criminal proceedings without a
sufficiently robust inquiry into whether such evidence introduces
bias or prejudice into the proceedings.” (Stats. 2022, ch. 973, § 1,
subd. (a).) Section 352.2 “provide[s] a framework by which courts
can ensure that the use of an accused person’s creative
27
expression will not be used to introduce stereotypes or activate
bias.” (Id. at § 1, subd. (b).)
Section 352.2, subdivision (a) provides, “In any criminal
proceeding where a party seeks to admit as evidence a form of
creative expression, the court, while balancing the probative
value of that evidence against the substantial danger of undue
prejudice under Section 352, shall consider, in addition to the
factors listed in Section 352, that: (1) the probative value of such
expression for its literal truth or as a truthful narrative is
minimal unless that expression is created near in time to the
charged crime or crimes, bears a sufficient level of similarity to
the charged crime or crimes, or includes factual detail not
otherwise publicly available; and (2) undue prejudice includes,
but is not limited to, the possibility that the trier of fact will, in
violation of [Evidence Code] Section 1101, treat the expression as
evidence of the defendant's propensity for violence or general
criminal disposition as well as the possibility that the evidence
will explicitly or implicitly inject racial bias into the proceedings.”
2. Split of Authority on Retroactive Application.
“[W]hen there is nothing to indicate a contrary intent in a
statute it will be presumed that the Legislature intended the
statute to operate prospectively and not retroactively.” (In re
Estrada (1965) 63 Cal.2d 740, 746 (Estrada).) In evaluating
retroactive application, “[c]ourts look to the Legislature’s intent
in order to determine if a law is meant to apply retroactively.”
(People v. Frahs (2020) 9 Cal.5th 618, 627 (Frahs).) When
Estrada’s retroactivity principle is applicable, it covers “all cases
that are not yet final as of the legislation’s effective date.” (People
v. Esquivel (2021) 11 Cal.5th 671, 675.)
28
Here, neither the text of Section 352.2 itself, nor the
Legislature’s findings and declarations, give any express
indication that the Legislature intended Section 352.2 to apply
retroactively to nonfinal cases. However, the general rule that
new statutes operate prospectively will not apply where a
criminal statute provides an ameliorative effect. In People v.
Venable (2023) 88 Cal.App.5th 445 (Venable), the court held
Section 352.2 applied retroactively. There, the defendant was
driving a vehicle from which the passenger shot a rival gang
member. (Id. at p. 452.) During trial, the prosecution introduced
evidence of a “rap video” on YouTube that featured the defendant
flashing gang signs while displaying guns, drugs, and money. The
rap lyrics referred to the shooting and contained racial slurs. (Id.
at pp. 452–453.)
Venable found admission of the rap video without
consideration of Section 352.2’s safeguards was prejudicial and
reversed for a new trial. (Venable, supra, 88 Cal.App.5th at
p. 458.) Venable principally relied on two cases: (1) Frahs, supra,
9 Cal.App.5th at pp. 627–628, in which a new provision granting
diversion for mental health disorder was deemed ameliorative
and thus retroactive because it carried the potential for a
reduction in punishment (Id. at p. 631), and (2) People v. Superior
Court (Lara) (2018) 4 Cal.5th 299 (Lara), in which the court
considered the retroactivity of Proposition 57, which prohibited
prosecutors from directly charging minors as adults and gave
discretion to the juvenile court to determine the issue. (Id. at p.
308.) Lara, like Frahs, found the new provisions ameliorative
because the new provisions could possibly reduce punishment, as
the defendant would be treated like a juvenile and receive
different and more lenient treatment. (Id. at p. 303.)
29
Finding the possibility of reduced punishment sufficient for
retroactive application, Venable held Section 352.2 retroactive.
However, taking a different view is People v. Ramos (2023) 90
Cal.App.5th 578. There, the court emphasized that retroactivity
under the Estrada rule applied where newly enacted legislation
lessened punishment or reduced criminal liability. (Id. at p. 594.)
Finding that Section 352.2—while it may be beneficial to a
criminal defendant—did not reduce punishment or criminal
liability, Ramos distinguished Frahs and Lara on the basis those
cases examined statutory enactments resulting in potentially
more lenient punishments, “which is not the effect of Evidence
Code section 352.2.” (Id. at pp. 595–596.) Ramos concluded
“[c]urrent precedent from our Supreme Court does not support an
extension of the Estrada rule to a statutory change that may
possibly benefit a criminal defendant but that does not redefine
the conduct subject to criminal sanctions or, at least potentially,
reduce or eliminate the applicable punishment.” (Id. at p. 596.)
3. We Need Not Decide if Section 352.2 Applies
Retroactively Because it is Not Reasonably Probable the Result
Would Have Been Different.
Here, we need not decide whether Section 352.2 is
retroactive because any error in the admission of appellant’s
Facebook evidence was harmless. (People v. Watson (1956) 46
Cal.2d 818, 836.) Where, as here, the evidence of guilt on the
relevant charges is “overwhelming,” it is unlikely appellant was
harmed by the format of the trial. (See People v. Pinholster (1992)
1 Cal.4th 865, 931 [concluding the failure to bifurcate was
harmless under the Watson standard because “[t]here was
overwhelming evidence of defendant’s guilt”].) As discussed
above, there was abundant evidence of guilt based on substantial
30
eyewitness evidence and surveillance evidence linking appellant
to both shootings. Thus, even if consideration of the factors in
Section 352.2 led to the exclusion of appellant’s Facebook posts, it
is not reasonably likely the jury would have reached a different
verdict.
B. Warrant for Appellant’s Facebook Records
Appellant contends the trial erred in failing to quash the
warrant for his Facebook records on the basis it lacked probable
cause. Specifically, he asserts the warrant relied on untested
information from informants lacking sufficient corroboration, and
that the good faith exception did not apply. We disagree.
1. Factual Background.
In August 2015, the Sheriff’s Department sought a warrant
for appellant’s Facebook posts. The warrant’s statement of
probable cause recited that Deputy Peter Tovar, the deputy
seeking the warrant, was aware of a recent increase in gang
violence in the “Vermont Corridor,” an area of Los Angeles
bordered by Van Ness Avenue on the west, Vermont Avenue on
the east, El Segundo Boulevard on the south, and Manchester
Avenue on the north. Investigators had confirmed the acts of
violence in and around the Vermont Corridor were the result of
an ongoing gang war between members of the Hoovers, Eight
Trey Gangster Crips, and the Rolling 100s.
The warrant’s affidavit detailed a surveillance video of the
Monarch Liquor Store at the time of the shooting. In the video, a
2013 Dodge Dart is parked adjacent to the Monarch Liquor Store
on 88th Street. The victim (Washington) got out of the Dart and
walked across the street. Two vehicles, a Saturn belonging to
Furdge and a Monte Carlo belonging to Randle, approached
31
Vermont Avenue going eastbound on 88th Street and appear to
stop at a traffic light. Washington crossed the street towards the
two vehicles when a passenger from the Saturn got out of the car
holding a black and silver automatic handgun. The passenger ran
towards Washington, fired multiple rounds at him, and fired at
the occupants in the Dodge Dart. The passenger got back into the
Saturn and drove off. The shooter was wearing wire framed
glasses.
The warrant also detailed statements by victim Carr, who
stated the shooter wore oval silver-framed glass, and the
Vermont Line bus driver, who stated the shooter’s glasses were
gold-framed. The bus driver described the shooter as 17-25 years
old, about 5 foot 6 to 5 foot 7.
Investigators spoke to informants who told them they had
heard the shooter was an individual in the Underground Crips
known as “Tiny Fly” or “Fly.” Investigators knew appellant as
“Tiny Fly,” and appellant resembled the shooter in the
surveillance video, having the same body type, shape of face, skin
tone, and type of glasses. Appellant’s Facebook username
contained “Ug,” which meant “Underground Crips.” Deputy Tovar
believed the Facebook pages would provide evidence of
appellant’s involvement in Washington’s murder.
Appellant made an oral motion to quash the warrant,
asserting it relied on anonymous sources. The trial court denied
the motion, finding, “there is more to this affidavit than just a
person giving anonymous information. There is a video which
shows a person resembling the defendant wearing gold rimmed
glasses. That, together with the information received[,] is
sufficient for the search warrant. . . . I [also] would find there is a
good faith exception to the search warrant rule.”
32
2. Discussion.
(a) Probable Cause Supported the
Affidavit.
Evidence obtained in violation of the Fourth Amendment is
inadmissible. (Mapp v. Ohio (1961) 367 U.S. 643, 650 [81 S.Ct.
1684, 6 L.Ed.2d 1081].) A defendant may move to suppress
evidence on the ground that a search or seizure with a warrant
was unreasonable. (§ 1538.5, subd. (a)(1)(B)(i)–(v).) “‘In
California, issues relating to the suppression of evidence derived
from governmental searches and seizures are reviewed under
federal constitutional standards.’” (People v. Macabeo (2016)
1 Cal.5th 1206, 1212.)
The question facing a reviewing court asked to determine
whether probable cause supported the issuance of the warrant is
whether the magistrate had a substantial basis for concluding a
fair probability existed that a search would uncover wrongdoing.
“‘The test for probable cause is not reducible to “precise definition
or quantification.”’ [Citation.] But . . . it is ‘less than a
preponderance of the evidence or even a prima facie case.’”
(People v. Westerfield (2019) 6 Cal.5th 632, 659–660.) The issuing
magistrate must make a practical, commonsense decision
whether, given all the circumstances set forth in the affidavit
before the court, there is a fair probability that contraband or
evidence of a crime will be found in a particular place. The
magistrate’s determination of probable cause is entitled to
deferential review, and the warrant will be overturned only if the
affidavit fails as a matter of law to set forth sufficient competent
evidence supporting the finding of probable cause. (Ibid.)
“‘Although in a particular case it may not be easy to determine
when an affidavit demonstrates the existence of probable cause,
33
the resolution of doubtful or marginal cases in this area should be
largely determined by the preference to be accorded to warrants.’”
(People v. Weiss (1999) 20 Cal.4th 1073, 1082–1083.)
The California Supreme Court “‘ha[s] distinguished
between those informants who “are often criminally disposed or
implicated, and supply their ‘tips’ . . . in secret, and for pecuniary
or other personal gain” and victims or chance witnesses of crime
who “volunteer their information fortuitously, openly, and
through motives of good citizenship.”’” (People v. Scott (2011) 52
Cal.4th 452, 475, quoting People v. Ramey (1976) 16 Cal.3d 263,
268–269 (Ramey).) There is no requirement that information
provided by a citizen informant be corroborated for it to
constitute probable cause supporting the issuance of a warrant.
(People v. Smith (1976) 17 Cal.3d 845, 852 [“an untested citizen-
informant who has personally observed the commission of a crime
is presumptively reliable”].)
Corroboration includes any facts, sources, and
circumstances which reasonably tend to provide independent
support for an informant. (People v. Gotfried (2003) 107
Cal.App.4th 254, 263–264.) In a police investigation the
information given by informants, even where the informant’s
reliability is not complete, can nevertheless be sufficient to
establish the requisite probable cause if it is corroborated in
essential respects by other facts, sources, or circumstances.
(People v. Fein (1971) 4 Cal.3d 747, 753.) The purpose served by
corroboration in this situation is “to establish that the
information provided by the informant did not constitute a made-
up story, one fabricated out of whole cloth. Corroboration of part
of the information provided by the informant [gives] credibility to
the remainder of the information.” (People v. Medina (1985) 165
34
Cal.App.3d 11, 20.) It is sufficient if an informant’s statements
are corroborated in a number of key respects, and a piecemeal
approach is not required. (Ibid.)
For corroboration to be adequate, it must pertain to the
alleged criminal activity, and it is sufficient if police investigation
has uncovered probative indications of criminal activity along the
lines suggested by the informant. (People v. Gotfried, supra, 107
Cal.App.4th at pp. 263–264; People v. Kershaw (1983) 147
Cal.App.3d 750, 758–759.) “It is only where . . . neither the
veracity nor basis of knowledge of the informant is directly
established, or the information is not so detailed as to be self-
verifying, or there is no logistical or other reason verification
from other sources cannot be achieved, that the failure to
corroborate may be indicative that it was objectively
unreasonable for the officer to believe in the existence of probable
cause.” (People v. Maestas (1988) 204 Cal.App.3d 1208, 1220–
1221, fn. omitted.) Ultimately, the information in a search
warrant affidavit which has been supplied by an informant and
corroborated by investigation conducted by law enforcement need
only give the officers reasonable grounds to believe that the
informant is truthful. (People v. Lara (1967) 67 Cal.2d 365, 374–
375.)
Here, appellant asserts the affidavit stated informants had
heard Tiny Fly was the shooter. He complains these tipsters had
no personal knowledge of the shooting, and the identity of these
informants was unknown; thus, this information was insufficient
to support a probable cause finding. Further, the description of
appellant (light skinned black male about 17-25 years of age and
wearing wire framed glasses) was far too general to provide
probable cause; Carr’s description differed from the Vermont line
35
bus driver’s description (silver versus gold-framed glasses); and
similarity in body type and skin color was too vague to constitute
probable cause.
We disagree. Here, there was a network of facts tying
appellant to the offenses. The surveillance video’s images of
appellant, coupled with the detailed eyewitness descriptions of
Carr and the bus driver that tracked the video, placed him at the
Monarch Liquor Store scene. This information, combined with the
information that appellant went by “Tiny Fly,” and was an
Underground Crip, provided a sufficient basis for a warrant
seeking appellant’s Facebook posts.
(b) The Good Faith Exception Applied.
“[W]hen . . . the police do obtain a warrant, that warrant is
presumed valid.” (People v. Amador (2000) 24 Cal.4th 387, 393.)
“Because a search conducted pursuant to a search warrant is
presumed lawful, the burden of establishing the invalidity of the
search warrant rests upon the defendant.” (People v. Lazalde
(2004) 120 Cal.App.4th 858, 865.)
Under the good faith exception to the exclusionary rule,
“[e]vidence obtained by police officers acting in reasonable
reliance on a search warrant issued by a detached and neutral
magistrate is ordinarily not excluded under the Fourth
Amendment, even if a reviewing court ultimately determines the
warrant is not supported by probable cause.” (People v. French
(2011) 201 Cal.App.4th 1307, 1323.) However, the good faith
exception will not apply if the affidavit is so lacking in indicia of
probable cause that the officer’s reliance on the warrant is
objectively unreasonable. (Ibid.)
Indeed, “[i]n the ordinary case, an officer cannot be
expected to question the magistrate’s probable-cause
36
determination or his [or her] judgment that the form of the
warrant is technically sufficient.” (United States v. Leon (1984)
468 U.S. 897, 921 [104 S.Ct. 3405, 82 L.Ed.2d 677] (Leon).) Leon
observed that marginal or nonexistent benefits produced by
suppressing the evidence obtained did not justify the substantial
costs of exclusion because the exclusionary rule is designed to
deter police misconduct rather than to punish the errors of judges
and magistrates. (Ibid.) In considering the issue, we apply the
objective test of “‘“whether a reasonably well-trained officer
would have known that the search was illegal despite the
magistrate’s authorization.”’ (Leon, supra, 468 U.S. at p. 922, fn.
23.) We review the trial court’s application of the good faith
exception de novo.” (People v. Lazarus (2015) 238 Cal.App.4th
734, 766–767.)
Here, even assuming that the warrant was not supported
by probable cause, appellant has not shown that a “reasonably
well-trained officer would have concluded the information in the
affidavits was fatally unreliable as being so lacking in indicia of
reliability, or that the magistrate issuing the warrant was misled
by any information.” (Leon, supra, 468 U.S. at p. 922, fn. 23.) On
the contrary, the information in the affidavit was logically
connected, with each fact confirming the others. The statements
from Carr and the bus driver matched appellant’s description,
and the surveillance video depicted the shooting in detail.
C. Admission of Appellant’s Facebook Posts Under
the Business Records Exception to the Hearsay Rule.
Appellant contends the trial court erroneously admitted his
Facebook photographs and posts based upon stipulated testimony
that was insufficient to establish the business records exception
to the hearsay rule applied. He contends the error deprived him
37
of due process, the error was prejudicial, and if any federal error
was forfeited, counsel was ineffective. Respondent counters that
appellant forfeited the issue by failing to adequately object in the
trial court and invited error by entering into the stipulation
concerning the records.
1. Procedural Background.
During pretrial proceedings, the prosecution moved to
introduce the Facebook records obtained pursuant to the warrant
under the business records exception to the hearsay rule.8 The
records included photographs of appellant in gold-rimmed
glasses, posting of gang photographs, posts in which appellant
pledged his loyalty to the Underground Crips, posts alluding to
revenge, and posts referring to the Hoovers by derogatory names.
The prosecution asserted the evidence was probative on the
issues of identity, motive, and intent.
At trial, the prosecution wanted to call Detective
Timmerman to lay a foundation for the Facebook records unless
the parties were able to reach a stipulation concerning their
admission. Accordingly, the court asked appellant’s counsel if he
would stipulate that “Detective Thorston Timmerman received
8 Evidence Code section 1271 provides, “Evidence of a
writing made as a record of an act, condition, or event is not
made inadmissible by the hearsay rule when offered to prove the
act, condition, or event if: [¶] (a) The writing was made in the
regular course of a business; [¶] (b) The writing was made at or
near the time of the act, condition, or event; [¶] (c) The custodian
or other qualified witness testifies to its identity and the mode of
its preparation; and [¶] (d) The sources of information and
method and time of preparation were such as to indicate its
trustworthiness.”
38
appellant’s Facebook records, and that Detective Timmerman
would have testified, if duly sworn, that these records were
produced in the regular course of business; that these records
were generated at or near the time of the events; and that he is
familiar with the process by which Facebook maintained and
generates and produces these Facebook records?” Counsel
responded, “Yes, I stipulate that would have been his testimony.”
Counsel did not object to the admission of the Facebook posts on
hearsay grounds.
2. Discussion.
Appellant argues the stipulated testimony was insufficient
to establish the business records exception applied because
Detective Timmerman did not testify about the mode of
preparation. Specifically, appellant contends that although
Detective Timmerman was familiar with how such records were
maintained, generated, and produced, he did not testify that the
records conformed to those procedures and there was no
information that he had personal knowledge of any of these facts.
Further, there was no affidavit accompanying the return on the
search warrant pursuant to Evidence Code section 1561.
We need not decide the issue, because even if it were error
to admit the evidence, appellant invited such error. (People v.
Harrison (2005) 35 Cal.4th 208, 237.) “‘The doctrine of invited
error is designed to prevent an accused from gaining a reversal
on appeal because of an error made by the trial court at his
behest. If defense counsel intentionally caused the trial court to
err, the appellant cannot be heard to complain on appeal.’”
(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
Any objection to the admission of evidence must be
particularly stated. (Evid. Code, § 353; Kiler v. Kimbal (1858) 10
39
Cal. 267, 267.) “A verdict or finding shall not be set aside, nor
shall the judgment or decision based thereon be reversed, by
reason of the erroneous admission of evidence unless: [¶]
(a) There appears of record an objection to or a motion to exclude
or to strike the evidence that was timely made and so stated as to
make clear the specific ground of the objection or motion.” (Evid.
Code, § 353.) “In accordance with this statute, we have
consistently held that the ‘defendant’s failure to make a timely
and specific objection’ on the ground asserted on appeal makes
that ground not cognizable.” (People v. Seijas (2005) 36 Cal.4th
291, 302.)
This objection requirement is necessary in criminal cases
because a “contrary rule would deprive the People of the
opportunity to cure the defect at trial and would ‘permit the
defendant to gamble on an acquittal at his trial secure in the
knowledge that a conviction would be reversed on appeal.’”
(People v. Rogers (1978) 21 Cal.3d 542, 548.) “[The rule] allows
the trial judge to consider excluding the evidence or limiting its
admission to avoid possible prejudice. It also allows the
proponent of the evidence to lay additional foundation, modify the
offer of proof, or take other steps designed to minimize the
prospect of reversal.” (People v. Morris (1991) 53 Cal.3d 152, 187–
188.)
Here, appellant invited any error and the issue is not
cognizable on appeal due to appellant’s failure to object to the
evidence. Appellant was aware the prosecution, absent a
stipulation from the defense, needed to call a witness to lay a
foundation for the Facebook records. After entering into the
stipulation, appellant did not object to the records. This lack of
objection deprived the prosecution of an opportunity to cure any
40
defect in meeting the requirements of the business records
exception to the hearsay rule, or in laying an appropriate
foundation.
Finally, we reject appellant’s contention that his counsel
rendered ineffective assistance due to counsel’s failure to object
on federal constitutional grounds and argue that admission of the
Facebook posts would violate his due process rights and render
the trial unfair.
The right to effective assistance of counsel derives from the
Sixth Amendment right to assistance of counsel. (Strickland v.
Washington, supra, 466 U.S. at pp. 686–694; see also Cal. Const.,
art. I, § 15.) To demonstrate ineffective assistance, appellant
must show (1) “counsel’s [conduct] was deficient when measured
against the standard of a reasonably competent attorney,” and
(2) prejudice resulting from counsel’s performance “‘so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result.’” (People v. Mayfield (1997) 14 Cal.4th 668, 784.) “If it is
easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice . . . that course should be followed.”
(Strickland v. Washington, supra, at p. 697.)
“‘[T]he relevant inquiry under Strickland is not what
defense counsel could have pursued, but rather whether the
choices made by defense counsel were reasonable.’” (Babbitt v.
Calderon (9th Cir. 1998) 151 F.3d 1170, 1173.) Prejudice is shown
where there is a reasonable probability, but for counsel’s errors,
that the result of the proceeding would have been different. (In re
Harris (1993) 5 Cal.4th 813, 833.) Further, prejudice must be
established as “‘“a demonstrable reality,” not simply speculation
as to the effect of the errors or omissions of counsel.’” (In re Clark
41
(1993) 5 Cal.4th 750, 766.) Our review of counsel’s performance is
deferential, and strategic choices made after a thorough
investigation of the law and facts are “virtually unchallengeable.”
(In re Cudjo (1999) 20 Cal.4th 673, 692.)
Here, appellant cannot show that such an objection would
have been sustained, given the stipulation he previously entered
regarding admission of the Facebook posts. Thus, where, as here,
counsel’s trial tactics or strategic reasons for challenged decisions
do not appear on the record, we will not find ineffective
assistance of counsel on appeal unless there could be no
conceivable reason for counsel’s acts or omissions. (People v.
Weaver (2001) 26 Cal.4th 876, 926.)
D. Admission of Prison Photographs
Appellant contends the trial court abused its discretion in
admitting Facebook photographs that depict him in prison;
further, counsel was ineffective for failing to object on
appropriate grounds and the error deprived him of due process.
1. Factual Background.
Appellant objected on Evidence Code section 352 grounds to
the Facebook records showing him in a prison cell. The photos
(Facebook pages 324, 388, and 472) at issue depict appellant in
various poses, displaying his tattoos and wearing his glasses. The
court admitted the photographs, finding them relevant to
showing appellant with gang tattoos and wearing his glasses.
2. Discussion.
We review the trial court’s decision to admit the
photographs for abuse of discretion. (People v. Scully (2021) 11
Cal.5th 542, 590.) “‘To determine whether there was an abuse of
42
discretion, we address two factors: (1) whether the photographs
were relevant, and (2) whether the trial court abused its
discretion in finding that the probative value of each photograph
outweighed its prejudicial effect.’” (People v. Lewis (2009) 46
Cal.4th 1255, 1282.)
Under Evidence Code section 352, the evidence was highly
probative to establish appellant was the shooter the witnesses
had described, as well as establish his motivation as a gang
member to commit violent acts for the Underground Crips. He is
wearing glasses, displaying his gang tattoos, or holding up what
appears to be a shirt with the letter “U.”
Moreover, the photographs were not unduly prejudicial
such that exclusion was required under Evidence Code section
352. There was no danger of confusing the issues, or of
misleading the jury. (See People v Chhoun (2021) 11 Cal.5th 1,
26.) The prejudice that Evidence Code section 352 is designed to
avoid “‘is not the prejudice or damage to a defense that naturally
flows from relevant, highly probative evidence.’” (People v. Baker
(2021) 10 Cal.5th 1044, 1089.) Rather, it generally refers to
evidence “that prompts an emotional reaction against the
defendant and tends to cause the trier of fact to decide the case
on an improper basis.” (People v. Walker (2006) 139 Cal.App.4th
782, 806.)
Here, the photographs would not invoke undue prejudice.
Appellant appears in several poses facing the camera and in one
picture displays his gang tattoos. It is not necessarily apparent
that he is in prison; he is not displaying weapons or throwing
gang signs. Thus, there is nothing about these photographs that
would prompt an emotional reaction or cause the jury to decide
the case on an improper basis, namely, to convict defendant
43
simply because he was gang member. Because there is no
statutory error, appellant’s constitutional claim fails. (People v.
Fuiava (2012) 53 Cal.4th 622, 670.)
For these reasons, as appellant cannot demonstrate
improper admission of the photographs, his ineffective assistance
claims fail.
E. Ineffective Assistance of Counsel: Admission of
Facebook Pages.
Appellant contends counsel was ineffective for failing to
object, until the gang expert had testified at length, to the
Facebook records on foundational and hearsay grounds.
1. Factual Background.
Deputy Castaneda testified at trial that he reviewed
portions of appellant’s Facebook postings. He opined that “HK”
referred to “Hoover Killer.” Also, he continued, if a post said
“strapped,” that meant carrying a weapon, and “CC” meant
Crips, because “CK” meant “Crip Killer.” He further explained
that Crips, including Underground Crips, would not put a “K”
after a “C” because they would not want to refer to themselves as
a “Crip Killer.” Therefore, they replace a “K” with a “C.” Where
appellant posted “Snoova Remover,” appellant claimed he was
someone who got rid of Hoovers.
One post stated, “[T]he countdown has officially begun. The
lift off is coming soon. Real soon.” The word “the” had a “K” after
the “H.” Underground Crips often refer to themselves as “Hoover
killers,” so after every “H” there was a “K,” which meant “Hoover
Killer.” Another post said, “the time has come for the
underground king to reclaim my spot. Heard it’s a few of my own
that feel otherwise, so I say to you . . . ‘let’s play ball, because it
44
will be you.’ I’m coming at first forever grounded darula, [sic]
Tiny Fly.” Another post stated, “I’m strapped up . . . fucc a gun
law . . . . See me walking with a limp. That’s my gun walk.”
Deputy Castaneda explained, as noted above, that “strapped”
meant carrying a firearm. The spelling of the expletive as “fucc”
was because Underground Crips never put a “K” after a “C”
because that meant “Crip Killers.”
Further posts said, “I was a regular with DA burner on my
hip in case a Snoova felt lucky. But I forgot they were scared to
hit Normandie back then. Now they regulars. LOL.” A “burner” is
a street term for a firearm. Another post also stated, “Bitch, stop
playing U. It like U-G’s U, (snoova, tramp, and slobs).” Castaneda
interpreted this as a threat toward rivals, because “tramp” is
derogatory toward Eight Trey Gangsta Crips and “slobs” is
derogatory toward Bloods.
2. Discussion.
Appellant contends trial counsel did not object to this gang
testimony on hearsay or foundational grounds, thereby depriving
him of effective assistance of counsel. He points out that gang
experts are not allowed to relate case-specific hearsay to the jury.
(See, e.g., People v. Sanchez (2016) 63 Cal.4th 665, 676–679
(Sanchez).) Furthermore, he contends that although a party’s
admissions are generally admissible under Evidence Code section
1220, the statements here did not qualify as appellant’s
admissions because the Facebook posts in which they were
contained did not meet the foundational requirements of the
business records exception. Finally, he asserts counsel had no
tactical reason for failing to object because counsel had previously
objected to the evidence.
45
Although appellant is correct there is a foundational
requirement for the Facebook admissions to show it was
appellant who made the statements, appellant invited any error
by failing to object to the application of the business records
exception before the gang expert began his testimony. As a result,
counsel cannot be deemed ineffective for failing to raise the
argument again, as any objection would have been pointless.
Defense counsel cannot be considered ineffective for failing to
make futile objections. (People v. Boyette (2002) 29 Cal.4th 381,
437.)
The Facebook statements are admissible as party
admissions regardless of whether the statements qualified as
business records. Under Evidence Code section 1220, “[e]vidence
of a statement is not made inadmissible by the hearsay rule when
offered against the declarant in an action to which he is a
party. . . .” (People v. Rodriguez (2014) 58 Cal.4th 587, 637.)
Finally, appellant’s objection under Sanchez, supra, 63 Cal.4th
665, is thus not well taken. Sanchez observed that while an
expert cannot relate as true case-specific facts asserted in
hearsay statements, such statements can be independently
admissible if proven by competent evidence or covered by a
hearsay exception. (Id. at p. 687.) The Facebook posts here
qualified as party admissions.
Finally, because the Facebook posts properly came in under
several exceptions to the hearsay rule, any further objection to
their contents would have been futile. Thus, counsel’s
performance was not deficient, and there can be no ineffective
assistance claim. (Strickland v. Washington, supra, 466 U.S. at
p. 694.)
46
V. IN-COURT IDENTIFICATION OF APPELLANT.
Appellant contends defense counsel improperly elicited in
court from witness Derrick Jones testimony that he recognized
appellant as Ross, Jr.’s shooter, and that this error deprived him
of effective assistance of counsel.
A. Factual Background.
Jones, who witnessed the shooting at the AutoZone store,
testified on direct examination for the prosecution that he was
inside the store and saw Ross, Jr. in line. After Ross, Jr. left the
store, Jones heard shots fired. Jones looked out the window, and
saw a person with a handgun. The man was bald, wore glasses,
looked to be about 41 or 42 years old, and was African American.
Later, police showed Jones a photo array, but Jones was not able
to identify appellant.
On cross-examination, Jones reiterated that he did not
recognize appellant when shown a photo array. Defense counsel
asked, “You don’t recognize [appellant] as the shooter, correct?”
Jones responded, “I do recognize him as the shooter at the time of
the incident when it occurred.” Counsel asked, “You recognize
him now?” Jones responded, “Yes I do.” Jones testified that he did
not know appellant and had never seen him before. However,
Jones got a good look at the shooter the day of the incident.
Although Jones had not seen appellant since the day of the
shooting, he recognized him in court. Jones did not recognize
appellant in the photo array because appellant’s picture was not
in the array. Counsel inquired, “you do agree that your memory
seven months after the [shooting] was better . . . than it is now
five years later?” Jones responded, “No, I say he’s still the same.”
47
On redirect, Jones reiterated that he got a 30-second look
at the shooter. Jones realized appellant was the shooter when he
stepped on the stand to testify.
B. Discussion.
In evaluating a claim of ineffective assistance, we indulge a
presumption that counsel’s performance fell within the wide
range of professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial strategy.
(People v. Gamache (2010) 48 Cal.4th 347, 391.)
Where, as here, counsel inadvertently elicits damaging
testimony, “[i]t is all too tempting for a defendant to second-guess
counsel’s assistance after conviction or adverse sentence, and it is
all too easy for a court, examining counsel’s defense after it has
proved unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable. [Citation.] A fair assessment of
attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the time.” (Strickland v.
Washington, supra, 466 U.S. at p. 689.)
Thus, even where defense counsel has elicited damaging
testimony, we will not second guess counsel’s tactical choice of
questions that led to such testimony. (People v. Williams (1997)
16 Cal.4th 153, 217.) Here, counsel made a plausible tactical
decision to attempt to establish that Jones could not identify
appellant. Jones had testified on direct that he did not and could
not identify appellant, and defense counsel sought to underscore
that testimony. There was no reason for defense counsel to expect
this testimony to suddenly change. (Cf. In re Jones (1996) 13
Cal.4th 552, 570–571 (Jones).) In Jones, defense counsel elicited
48
damaging testimony on cross-examination that the defendant
was the killer. However, unlike here, in Jones, defense counsel
had no reason to believe this testimony was not forthcoming.
(Ibid.)
VI. ADMISSION OF EVIDENCE APPELLANT
COMMITTED A HOME INVASION ROBBERY.
Appellant contends the trial court erroneously admitted
evidence he committed a home invasion robbery with witness
Johnson shortly after the Ross, Jr. shooting. Appellant asserts
this evidence was inadmissible under Evidence Code section 786
as an improper attack on a witness’s credibility, improper
character evidence under Evidence Code section 1101, and his
counsel was ineffective for failing to object on all appropriate
grounds. Respondent asserts appellant forfeited the claim and
has failed to show that counsel did not have a reasonable tactical
basis for objecting on this ground after the trial court had already
overruled an objection under Evidence Code section 352.
A. Factual Background.
Before Johnson, a defense witness who would testify
appellant was not the shooter, testified, the prosecution sought to
admit evidence that after participating in the AutoZone shooting,
Johnson and appellant committed a home invasion robbery for
which they were both convicted. Defense counsel objected that
this evidence was inadmissible because it had no bearing on the
charges in this case and would be more prejudicial than probative
under Evidence Code section 352.
The trial court admitted the evidence, finding the evidence
probative of Johnson’s bias and credibility because appellant and
49
Johnson were connected by both their joint gang membership and
the commission of a crime together.
On direct examination as a defense witness, Johnson
testified that appellant was not the man he saw getting into the
Buick after the shooting at the AutoZone. On cross-examination,
the prosecution asked if Johnson had committed another crime
with appellant in September 2015. Johnson admitted he had
participated in a home invasion robbery with appellant, and had
been convicted of the offense. Johnson claimed, however, that
appellant was innocent in that case, and Johnson denied being in
the vehicle on the way to the robbery.
B. Discussion.
Here, the evidence was relevant to prove Johnson’s
allegiance to appellant as a fellow gang member and partner in
crime, and thus damage Johnson’s credibility. As such, the
testimony was highly probative. Further, it was not unduly
prejudicial. The “prejudice” referred to in Evidence Code section
352 applies to evidence which uniquely tends to evoke an
emotional bias against the defendant as an individual and which
has very little effect on the issues. (People v. Bryant, Smith &
Wheeler (2014) 60 Cal.4th 335, 408.) Johnson’s prior act evidence
was directed at his credibility and did not involve weapons, gang
activity, a shooting, or anything else likely to invoke undue
prejudice.
Although appellant did not raise objections under Evidence
Code sections 786 and 1101 at trial, thereby forfeiting those
objections under Evidence Code section 353, subdivision (a), we
address them nonetheless to dispose of his ineffective assistance
claims.
50
First, sections 786 through 790 govern the admissibility of
character trait evidence to attack or support the credibility of a
witness. (People v. Thompson (1979) 98 Cal.App.3d 467, 475.) In
general, a party may cross-examine a witness about the witness’s
motive and bias. (Evid. Code, § 780, subd. (f).) “Cross-
examination is the principal means by which the believability of a
witness and the truth of his testimony are tested. Subject always
to the broad discretion of a trial judge to preclude repetitive and
unduly harassing interrogation, the cross-examiner is not only
permitted to delve into the witness[’s] story to test the witness[’s]
perceptions and memory, but the cross-examiner has
traditionally been allowed to impeach, i.e., discredit, the witness,”
including by “cross-examination directed toward revealing
possible biases, prejudices, or ulterior motives of the witness.”
(Davis v. Alaska (1974) 415 U.S. 308, 316 [94 S.Ct. 1105, 39
L.Ed.2d 347].) “The partiality of a witness is subject to
exploration at trial, and is ‘always relevant as discrediting the
witness and affecting the weight of his testimony.’” (Ibid.)
Evidence Code section 789, which appellant cites on appeal,
generally limits witness character-credibility evidence to honesty
and veracity and their opposites because those are the only four
traits relevant to that issue. (People v. Knox (1979) 95 Cal.App.3d
420, 434.) Where, however, a specific instance of conduct is
relevant to prove a witness’s bias or improper motive, apart from
any relevancy it has to prove a character trait, it is admissible.
“[E]vidence contradicting the testimony of a witness, even if it
consists of proof of other wrongful acts, is proper if it is relevant
to an issue in the case.” (Id. at p. 434.) Here, Johnson’s prior act
in assisting appellant in committing a crime was relevant to his
51
bias on the stand and motive to defend appellant by repudiating
his earlier identification of appellant as the shooter.
Evidence Code section 1101, subdivision (a), which
prohibits character evidence in general, permits such evidence
where relevant to establish “motive, opportunity, intent,
preparation, [or] plan.” (Evid. Code, § 1101, subd. (b).)
For these reasons, we conclude that admission of the
evidence did not unduly prejudice appellant. As a result, no
ineffective assistance of counsel claim lies. (Strickland v.
Washington, supra, 466 U.S. at p. 697.) Further, counsel may
have had a tactical basis for declining to make further objections,
given that the trial court admitted the evidence under Evidence
Code section 352. (See People v. Gamache, supra, 48 Cal.4th at
p. 391.)
VII. PROSECUTORIAL MISCONDUCT.
Appellant contends the prosecution argued facts not in
evidence when it improperly vouched for the key witness Bell,
and such misconduct was prejudicial because Bell’s testimony
was essential to appellant’s identification as the shooter at the
Monarch Liquor Store. Appellant further contends counsel was
ineffective for failing to object to this evidence. Respondent
counters that this claim was forfeited due to defense counsel’s
failure to object, but even assuming the comments were
improper, they were not prejudicial.
A. Factual Background.
During closing argument, the prosecution told the jury “[i]t
was decided that there was not enough evidence to convict
Patrick Bell.” The trial court instructed the jury that it was not to
speculate why Bell was not being prosecuted or whether he would
52
be prosecuted in the future, and admonished the jury that it must
determine whether Bell was an accomplice. The court also
instructed the jury that arguments of counsel were not evidence.
B. Discussion.
A prosecutor commits misconduct when his or her conduct
either infects the trial with such unfairness as to render the
subsequent conviction a denial of due process or involves
deceptive or reprehensible methods employed to persuade the
trier of fact. (People v. Silveria & Travis (2020) 10 Cal.5th 195,
306.) When attacking the prosecution’s remarks to the jury, the
defendant must show that in the context of the whole argument
and the instructions there was a reasonable likelihood the jury
understood or applied the complained-of comments in an
improper or erroneous manner. (Ibid.) “‘As a general rule a
defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same
ground—the defendant made an assignment of misconduct and
requested that the jury be admonished to disregard the
impropriety.’” (Ibid; People v. Powell (2018) 6 Cal.5th 136, 171.)
Although appellant forfeited his argument by failing to
object to the prosecutor’s statements, we find no prejudice from
the prosecution’s isolated comment. The comment itself was brief;
although Bell was a primary witness to the shootings, there was
also extensive other evidence of appellant’s involvement in the
Monarch Liquor Store shooting (eyewitness testimony, including
Carr and the bus driver) as well as Bell’s tendency to lie. Further,
the trial court specifically admonished the jury regarding this
comment and that arguments of counsel were not evidence. Thus,
it is not reasonably probable that absent the prosecutor’s
comments, the result at trial would have been different.
53
For these reasons, we find no ineffective assistance claim.
We need not determine whether counsel was deficient for failing
to object, because without any prejudice from counsel’s failure,
there can be no ineffective assistance. (Strickland v. Washington,
supra, 466 U.S. at p. 697; see also In re Crew (2011) 52 Cal.4th
126, 150 [“If a claim of ineffective assistance of counsel can be
determined on the ground of lack of prejudice, a court need not
decide whether counsel’s performance was deficient”].)
VIII. CUMULATIVE ERROR.
Appellant argues the combined errors deprived him of a
fair trial. He asserts the jury heard several inadmissible and
inflammatory messages from his Facebook page and he was
unable to fully confront Bell, a key prosecution witness; his
Marsden motion was denied even though his counsel left at least
one biased juror on the case; his counsel failed to object to
prosecutorial vouching; and his counsel failed to properly argue
evidentiary rulings. Appellant’s argument lacks merit because we
have rejected each of appellant’s individual claims. Thus, they
“cannot logically be used to support a cumulative error claim
[where] we have already found there was no error to cumulate.”
(In re Reno (2012) 55 Cal.4th 428, 483.)
IX. GANG ENHANCEMENTS, ASSEM. BILL NO. 333.
Appellant argues the gang enhancements and gang special
circumstances must be reversed because the jury was not
instructed with the new requirements of section 186.22, as
amended effective January 1, 2022. While conceding that Assem.
Bill No. 333 applies retroactively to the gang enhancements,
respondent asserts that those amendments do not apply to the
54
gang-murder special circumstance findings (§ 190.2, subd.
(a)(22)). We disagree.
A. Factual Background.
During trial, counsel stipulated that the Underground
Crips was a criminal street gang as defined in sections 186.22
and 190.2, subdivision (a)(22). The parties also stipulated to
predicate acts. However, because trial predated the effective date
of Assem. Bill No. 333, the jury was not instructed with the
changes in the law applicable to the gang enhancements or the
special circumstance allegation.
The jury found true the section 12022.53, subdivision (b)-
(e)(1) enhancements, which require a true finding on the
underlying gang enhancement. Finally, the jury found true the
gang special circumstance alleged regarding each murder.
B. Analysis.
1. Assem. Bill No. 333 Modified Section 186.22 to
Require Additional Proof, Requiring Remand.
In 2021, the Legislature enacted Assem. Bill No. 333, which
amended section 186.22 to impose new substantive and
procedural requirements for gang allegations. (Assem. Bill No.
333 (Reg. Sess.) § 3.) Assem. Bill No. 333 found “[g]ang
enhancement evidence can be unreliable and prejudicial to a
jury” because such evidence “is lumped into evidence of the
underlying charges[,] further perpetuat[ing] . . . convictions of
innocent people.” (Stats. 2921, ch. 699, § 2(d)(6)); see People v.
Ramos (2022) 77 Cal.App.5th 1116, 1129.) Therefore, Assem. Bill
No. 333 modified the evidentiary standard for admission of gang
evidence and provided for bifurcation of trials to separate the
55
gang evidence from the underlying charges. The statute is silent
about retroactivity. (People v. Rodriguez (2022) 75 Cal.App.5th
816, 822.)
The amendments to section 186.22 “require proof of
additional elements to establish a gang enhancement.” (People v.
Lopez (2021) 73 Cal.App.5th 327, 343.) Among other things,
Assem. Bill No. 333 amended the definitions of “criminal street
gang” (§ 186.22, subd. (f)) and “pattern of criminal gang activity”
(§ 186.22, subd. (e)(1)), and clarified the evidence needed to
establish that an offense benefits, promotes, furthers, or assists a
criminal street gang. (See People v. E.H. (2022) 75 Cal.App.5th
467, 477–478.)
Most notably, the new law defines “to benefit, promote,
further, or assist” as “to provide a common benefit to members of
a gang where the common benefit is more than reputational.
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).) In addition, the new
law imposes a stricter requirement for proof of a predicate
offense, namely “a pattern of criminal gang activity,” which is
necessary to prove that the group with which the defendant is
associated is indeed a criminal street gang. (See § 186.22, subd.
(f).) The current offense cannot be used as one of the two
predicate offenses. (§ 186.22, subd. (e)(2).) Finally, both predicate
offenses must have been committed “within three years of the
date the current offense is alleged to have been committed,” by
gang “members,” and must have been for the “common[ ]
benefit[ ] [of] a criminal street gang.” (§ 186.22, subd. (e)(1).)
56
Thus, in summary, pursuant to the new legislation,
imposition of a gang enhancement requires proof of the following
additional requirements with respect to predicate offenses: (1) the
offenses must have “commonly benefited a criminal street gang”
where the “common benefit[ ] . . . is more than reputational”;
(2) the last predicate offense must have occurred within three
years of the date of the currently charged offense; (3) the
predicate offenses must be committed on separate occasions or by
two or more gang members; and (4) the charged offense cannot be
used as a predicate offense. (Assem. Bill No. 333 (Reg. Sess.) § 3,
§ 186.22, subd. (e)(1)–(2).)9
Respondent concedes and the parties do not dispute the
new section 186.22 applies retroactively to cases not yet final on
appeal. (People v. Lopez, supra, 73 Cal.App.5th at p. 344.) The
same standards apply to challenges to the evidence underlying a
true finding on a special circumstance as to any other evidence.
(People v. Edwards (2013) 57 Cal.4th 658, 715.)
Here, we find the true findings on the gang enhancements
and gang-related gun enhancements must be reversed and
remanded for retrial because the jury was not instructed in
accordance with the additional proof requirements of Assem. Bill
No. 333, namely, that the benefit to the gang is more than
9 Assem. Bill No. 333 also added section 1109, which
provides that, upon the defendant’s request, the trial court must
bifurcate an enhancement charged under section 186.22,
subdivision (b), from the underlying charges. (§ 1109, subd. (a).)
In addition, such separate proceedings must be held after the
determination of the defendant’s guilt in the underlying offenses.
(§ 1109, subd. (a).) Appellant does not argue that this provision is
retroactive or that it should apply to his case.
57
reputational, the last predicate offense occurred within three
years of the date of the currently charged offense, and the
predicate offenses must be committed on separate occasions or by
two or more gang members. Respondent concedes this point.
2. Assem. Bill No. 333 Did Not Unconstitutionally
Amend Proposition 21.
Appellant contends the jury’s true finding regarding the
gang-murder special circumstance allegations (§ 190.2, subd.
(a)(22)) must also be vacated under the law as amended by
Assem. Bill No. 333. Respondent argues Assem. Bill No. 333’s
amendment of the gang-murder special circumstance is
unconstitutional.
Section 190.2 sets forth a list of special circumstances in
which the punishment for first degree murder is death or life
without the possibility of parole. (§ 190.2, subd. (a).) Section
190.2, subdivision (a)(22), provides for a special circumstance
where the “defendant intentionally killed the victim while the
defendant was an active participant in a criminal street gang, as
defined in subdivision (f) of Section 186.22, and the murder was
carried out to further the activities of the criminal street gang.”
Proposition 21, enacted by California voters in 2000, added
this special gang circumstance to this list. (Voter Information
Guide, Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 11, pp.
121-122.) However, Assem. Bill No. 333 amended the definition of
a “criminal street gang” in section 186.22, subdivision (f), by
narrowing that definition. Authority is split on whether Assem.
Bill No. 333 unconstitutionally amended section 190.2,
subdivision (a)(22). We recently held in People v. Lee (2022) 81
Cal.App.5th 232 (Lee), review granted Oct. 19, 2022, S275449,
that Assem. Bill No. 333’s amendments are constitutional.
58
However, People v. Rojas (2022) 80 Cal.App.5th 542 (Rojas),
review granted Oct. 19, 2022, S275835, reached the opposite
result.
In Rojas, a divided panel in the Fifth Appellate District
held that Assem. Bill No. 333 is unconstitutional to the extent it
narrowed the scope of conduct made punishable under section
190.2, subdivision (a)(22). (Rojas, supra, 80 Cal.App.5th at p.
555.) The Rojas majority concluded that the legislative
amendment was unconstitutional as applied because California
voters had restricted the Legislature’s ability to amend the
provisions of Proposition 21 by stating it could only do so with a
two-thirds vote in each house or by a statute that becomes
effective only when approved by the voters. (Id. at p. 553; Voter
Information Guide, Primary Elec., supra, text of Prop. 21, § 39, p.
131.) Because Assem, Bill No. 333 did not comply with that
requirement, and effectively narrowed the scope of section 190.2,
subdivision (a)(22), the Rojas majority held the amendment
unconstitutional as applied. (Rojas, supra, at pp. 557–558.)
In Lee, we reached the opposite result and rejected the
argument that Assem. Bill No. 333 impermissibly narrowed the
scope of section 190.2, subdivision (a)(22), by amending the
definition of a “criminal street gang” in section 186.22. (Lee,
supra, 81 Cal.App.5th at p. 241.) Focusing on the voter’s intent as
expressed in the language of Proposition 21, we found no
indication that voters intended to prohibit any future amendment
of section 186.22, subdivision (f), from being incorporated into the
gang-murder special circumstance. (Lee, supra, at pp. 241–242.)
We noted in Lee that in enacting Proposition 21, voters “clearly
knew how to express the intent to freeze a statutory definition”
by changing the ““‘lock-in’”” date for determining the existence of
59
qualifying offenses under the “Three Strikes” law. (Lee, supra, at
p. 243.) “Proposition 21 provided that ‘for all offenses committed
on or after the effective date of this act, all references to existing
statutes in [sections 667, subdivisions (c)-(g), and 1170.125] are to
those statutes as they existed on the effective date of this act,
including amendments made to those statutes by this act.’” (Ibid.)
Given these express time-specific references, we concluded that
“had the voters also intended section 11 of Proposition 21 to make
a time-specific incorporation of section 186.22, subdivision (f),
they would ‘have said so in readily understood terms.’” (Ibid.)
We find our reasoning in Lee to be persuasive and apply it
here. Assem. Bill No. 333 is not unconstitutional as applied to the
gang-murder special circumstance. The jury’s true finding
regarding the gang-murder special circumstance allegations
under section 190.2, subdivision (a)(22) must be reversed and
remanded.
X. RESTITUTION AWARD.
Appellant contends the record does not support the
restitution award, and the trial court failed to make a clear
statement of the calculation method used. Further, he argues, the
documents on which the trial court relied do not support the
order, and counsel was ineffective for failing to object to those
documents. Respondent asserts appellant forfeited this challenge,
and in any event, there was no error in calculating restitution.
A. Factual Background.
At the sentencing hearing, the prosecution introduced
standard restitution form documents seeking a restitution award
of $11,098.14 ($5,000, the “upper limit” for funeral expenses, for
60
Washington’s funeral expenses and $6,098.14 for Baptist’s lost
income).
At the July 15, 2021 restitution hearing, the prosecution
stated it was seeking direct restitution to the victim. Appellant’s
counsel stated, “we’re not contesting what is in their request.”
However, appellant stated he did not agree to the amount of
restitution. In response, the court stated, “the [P]eople may prove
it up at this time.” The prosecution submitted two documents,
both of which were entered as exhibits. One indicated $5,000 for
funeral and burial expenses for victim Mykiel Washington, and
the other document indicated income loss in the amount of
$6,098.14. The court stated, “I have considered it and I do find
that the amount will be justified, and that will be ordered.”
B. Discussion.
Section 1202.4, subdivision (f)(3)(H), provides “the
restitution order shall be prepared by the sentencing court, shall
identify each victim and each loss to which it pertains, and shall
be of a dollar amount that is sufficient to fully reimburse the
victim or victims for every determined economic loss incurred as
the result of the defendant’s criminal conduct . . . .” A trial court
may compensate a victim for any economic loss which is proved to
be the direct result of the defendant’s criminal behavior. (People
v. Henderson (2018) 20 Cal.App.5th 467, 472–473.) “Restitution
may be imposed in such cases only to the extent the defendant’s
criminal conduct played a ‘substantial factor’ in causing the
victim’s economic loss. [Citation.] To be a substantial factor, the
defendant’s criminal conduct must be more than a ‘trivial or
remote’ factor contributing to the victim's loss, but it need not be
the ‘sole’ cause of the loss.” (In re S.O. (2018) 24 Cal.App.5th
1094, 1101.)
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“At a victim restitution hearing, a prima facie case for
restitution is made by the People based in part on a victim’s
testimony on, or other claim or statement of, the amount of his or
her economic loss. [Citations.] ‘Once the victim has [i.e., the
People have] made a prima facie showing of his or her loss, the
burden shifts to the defendant to demonstrate that the amount of
the loss is other than that claimed by the victim.” (People v.
Millard (2009) 175 Cal.App.4th 7, 26.) No abuse of discretion will
be found where there is a rational and factual basis for the
amount of restitution ordered, and the standard of proof at a
restitution hearing is by a preponderance of the evidence, not
proof beyond a reasonable doubt. Section 1202.4 does not, by its
terms, require any particular kind of proof. (People v. Gemelli
(2008) 161 Cal.App.4th 1539, 1542–1543.) We review a
restitution order for abuse of discretion. (People v. Millard,
supra, 175 Cal.App.4th at p. 26.)
Here, the victims submitted restitution requests on
standard forms specifying an upper and lower limit for such
requests. Neither of these amounts is outside the specified limits,
supporting a rational basis for the awards. Further, the amounts
were not challenged by appellant on any basis other than that he
disagreed. On this record, we find no abuse of discretion.
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DISPOSITION
The gang enhancements, gang-related gun enhancements,
and special circumstance findings are reversed. In all other
respects, the judgment is affirmed. On remand, the prosecution
shall have the option to retry the appellant on these allegations,
and the trial court shall resentence appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, P. J.
We concur:
COLLINS, J.
MORI, J.
63