People v. Martinez CA6 ( 2024 )


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  • Filed 10/25/24 P. v. Martinez CA6
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SIXTH APPELLATE DISTRICT
    THE PEOPLE,                                                         H047687
    (Santa Clara County
    Plaintiff and Respondent,                                 Super. Ct. No. 213441)
    v.
    RUBEN CRUZ, et al.,
    Defendants and Appellants.
    THE PEOPLE,                                                         H047386
    (Santa Clara County
    Plaintiff and Respondent,                                 Super. Ct. No. 213441)
    v.
    ANGEL KIKO MARTINEZ,
    Defendant and Appellant.
    In May 2013, the Santa Clara County grand jury returned a 77-count indictment
    against 48 defendants associated with the Nuestra Familia (NF) organization. Angel
    Kiko Martinez, Josef Ryan Oakes, and Ruben Cruz (defendants) were subsequently
    convicted of murder, participation in a criminal street gang, and other crimes.
    Defendants appeal, asserting an impermissible pretrial identification, uncorroborated
    accomplice testimony, and other trial errors. Defendants contend that their convictions
    for participating in a street gang as well as various gang-related special circumstances
    and enhancements should be vacated in light of recent ameliorative changes in the
    criminal gang statute.
    As explained below, we conclude that there was no error at trial but that
    defendants’ convictions for gang participation, gang-related special circumstances and
    gang-related enhancements should be vacated in light of intervening changes in the
    criminal street gang statute. We therefore reverse the judgments against defendants and
    remand for further proceedings.
    I. BACKGROUND
    The facts recited below are derived from the trial record.
    A. The NF Organization
    According to testimony of a police department expert, the NF organization has its
    origins in California state prisons in the 1950s. Since then, the NF has expanded beyond
    state prisons and now has over 10,000 members in California involved in criminal
    activities, including murder, assault, drug distribution, and kidnapping.
    The NF organization has multiple layers. At the top are NF members, who are
    committed to the organization for life. Below the NF members are Nuestra Raza
    members, who are committed while they are in jail but free to leave once released.
    Below the Nuestra Raza members are Norteño gang members, often called
    “Northerners,” and, finally, associates. Street-level gang members and associates are
    organized into regiments, which are led by a regiment commander who reports to an NF
    member in prison. The NF organization also has a federal side, but the state side is
    supposed to control operations outside the prisons.
    During the events in question in this case, defendant Martinez was a Nuestra Raza
    member. In January 2012, he became second in command of the NF’s Santa Clara
    County regiment, and in July 2012 leader of the regiment. Defendant Oakes was at least
    a Northerner, and defendant Cruz was an NF associate.
    2
    B. The Nightclub Shooting
    On January 11, 2012, Martinez attended a rap concert at a San Jose nightclub with
    his friend J.C. and two gang members: L.B., Martinez’s predecessor as second in
    command of the Santa Clara County regiment, and R.P., an NF associate. A fight
    involving L.B. and R.P. broke out, and, waving a gun, J.C. led Martinez, L.B., and R.P.
    out to the parking lot. In the parking lot, someone charged at them, and J.C. fired his
    gun. When the police arrived, they found an individual who had been shot in his hip.
    C. The Chacon Murder
    On August 13, 2012, Martin Chacon, who was associated with the federal prison
    side of the NF organization, was executed. At approximately 1:30 p.m., Chacon arrived
    in an industrial area of San Jose driving a white Impala. He parked behind a black
    Honda, and the driver of the Honda walked to Chacon’s car and sat in the front passenger
    seat for several minutes before returning to the Honda. Afterwards, another person left
    the Honda, approached the driver’s side of Chacon’s car and shot Chacon twice, once in
    the face and then in the chest area. Next, a third person from the Honda went to
    Chacon’s car and shot Chacon in the back of the neck, killing him.1
    D. The Trial Court Proceedings
    1. The Indictment
    On May 31, 2013, the Santa Clara County grand jury indicted Martinez, Cruz,
    Oakes, and 45 others. Martinez, Cruz, and Oakes were charged with participation in a
    criminal street gang (Pen. Code, § 186.22, subd. (a)); count 1) and with the murder of
    Martin Chacon (Pen. Code, § 187; count 5).2 In connection with the nightclub shooting
    Martinez was charged with two counts of attempted murder (§§ 664, subd. (a), 187;
    counts 6 and 8) and two counts of assault with a firearm (§ 245, subd. (a)(2);
    1
    Although Martinez was convicted of several drug offenses, those offenses are
    not at issue on appeal and are not discussed.
    2
    Subsequent undesignated statutory references are to the Penal Code.
    3
    counts 7 and 9). Finally, the indictment charged Martinez with conspiracy to sell
    methamphetamine (§ 182, subd. (a)(1), Health & Saf. Code, § 11379; count 2);
    conspiracy to sell cocaine (§ 182, subd. (a)(1), Health & Saf. Code § 11352; count 3); and
    two counts of selling methamphetamine (Health & Saf. Code, § 11379, subd. (a);
    counts 46 and 47).
    The indictment also alleged a gang-related special circumstance in connection
    with the Chacon murder, as well as gang enhancements on nine counts (§ 186.22,
    subd. (b)) and gang-related firearm enhancements on two counts (§ 12022.53, subd. (c),
    (d)(1), (e)).
    2. The Motion in Limine
    Before trial, Oakes moved to exclude identification testimony by K.V., a delivery
    man, who was on the scene when Chacon was killed, on the ground that the photo lineup
    was unduly suggestive and tainted any subsequent identification by K.V. The trial court
    denied the motion.
    3. Evidence Concerning the Chacon Murder
    At trial, the prosecution presented evidence that Martin Chacon was murdered on
    August 13, 2012, that he was shot by Oakes and Cruz who had driven down from Red
    Bluff with a federal NF member to commit the murder, and that Martinez participated in
    the crime.
    Police officers testified that around 1:40 p.m. on August 13, 2012 they received a
    report of a shooting on Oakland Road, and upon arrival they found Chacon dead in a
    white Impala. The front driver’s side window of the car was shattered, and Chacon had
    gunshot wounds on his left cheek, the back of his head, and his left rear shoulder. Two 9-
    millimeter Luger shell casings were found outside the vehicle, and a .25 caliber shell
    casing was on the front passenger seat. Based on Chacon’s wounds, a forensic
    pathologist testified that he was shot three times, through the driver’s side window in the
    face and in the chest and directly in the neck. Another expert testified that the blood
    4
    stains in the car were consistent with one person shooting Chacon twice through the
    driver’s side window, and another person shooting him in the neck through the then-
    shattered window.
    Surveillance video from businesses in the area showed a black four-door sedan
    and a 2000s-era Chevrolet extended cab pickup truck turn onto Charles Street near
    Oakland Road around 1:00 p.m. A witness, J.O., saw three men in the Honda. At
    1:24 p.m., a white Impala arrived and parked on Charles Street. At 1:31 p.m. there was a
    flash. After hearing two gunshots, another witness—the delivery man K.V—saw a man
    whom he identified as defendant Oakes, pointing a black semi-automatic weapon at the
    driver’s side window of the Impala. K.V. also saw another, smaller man carrying a
    chrome pistol running towards the Impala. At 1:34 p.m., three minutes after the flash, the
    black sedan left the area.
    Alberto Larez (“Bird”), a federal NF member from Red Bluff, which is in the
    northern part of the state near Chico, owned a black Honda, which police later found near
    Oakes’ apartment with Oakes’ identification inside. In addition, cellphone records
    showed that early in the morning of August 13, 2012 Larez and Oakes drove from Red
    Bluff to San Jose. During the drive, Larez called Chacon five times. At 1:20 p.m., Larez
    again telephoned Chacon, who by that time was near Larez in the area of Oakland Road.
    By 2:07 p.m. the cellphone data showed that Larez and Oakes had left San Jose and were
    in Pleasanton, and from there Larez traveled north through Fairfield and was back in Red
    Bluff by 5:30 p.m.
    Although the prosecution was unable to obtain Cruz’s telephone records, Oakes’
    records showed that he called Cruz several times before 7:00 a.m. on the morning of
    Chacon’s murder and several times after 7:00 p.m. that evening, which is consistent with
    Cruz accompanying Larez and Oakes to San Jose on the day of Chacon’s murder. In
    addition, K.V., who identified Oakes as the man who first shot Chacon, described the
    smaller man with the chrome pistol as Hispanic with a dark complexion, dark hair, and in
    5
    his mid- or late 20s. J.O.—the second witness at the scene—similarly described the man
    in the rear of the black Honda as a younger Hispanic man, around 5 feet 7 inches tall and
    about 140 or 150 pounds. The prosecutor argued that Cruz, who was present at trial, fit
    this description.
    The prosecution also presented evidence that Martinez was involved in Chacon’s
    murder. Larez’s phone records showed that in the period surrounding Chacon’s murder,
    he had 60 calls with Martinez, including one made at 10:41 a.m. the morning of the
    murder while he was driving from Red Bluff to San Jose. In addition, as noted above,
    surveillance video showed a white Chevrolet extended cab pickup truck driving down
    Charles Street shortly before the murder around 1:00 p.m. When police executed a
    search warrant at Martinez’s house, they found his wife driving a gray Chevrolet pickup
    truck.
    The prosecution presented evidence as well that Martinez had a motive for
    murdering Chacon. L.B. testified that Martinez had complained about Chacon collecting
    NF taxes in Santa Clara County. The NF Organization requires 25 percent of the
    proceeds of members’ criminal activities to go to the organization. In addition, each
    Norteño street regiment pays a “hood tax,” which provides funds to incarcerated NF
    members. These taxes are typically collected by state, not federal, members. As a
    consequence, Martinez believed that Chacon, who was associated with the federal side of
    the NF organization, was acting without authority. L.B. agreed and told an associate of
    Chacon that Chacon “might get smacked,” or killed, for doing so. Martinez also believed
    that a woman Chacon had been dating was an informant. According to the prosecution’s
    gang expert, both sleeping with an informant and collecting taxes without authority were
    offenses for which the NF organization would impose severe discipline, including death.
    Finally, the prosecution presented testimony from Martinez’ friend J.C. cementing
    together the other evidence concerning the Chacon murder. J.C. testified that Martinez
    considered himself to be the boss of San Jose and that Martinez was upset because
    6
    Chacon, who was known as “Kung Fu,” was claiming to be the boss and was collecting
    taxes on the south side of the city. Martinez also believed that Chacon was dating a
    federal informant and reported this to Larez.
    J.C. further testified that Martinez participated in Chacon’s murder. On
    August 13, 2012, the day of the murder, Martinez picked up J.C. in his gray truck. With
    his fingers mimicking a gun, Martinez said “Kung Fu,” which J.C. understood to mean
    that Chacon was going to be shot. Martinez drove to a parking lot, where he met with
    Larez, Oakes, and Cruz who were in a black Honda. At the meeting Larez said that “they
    was gonna kill Kung Fu.”
    J.C. continued that, after conferring with Martinez about possible locations and
    giving directions to someone over the phone, Larez told Martinez, “[h]e’s coming over.”
    Larez and Martinez then drove to Oakland Road where Larez told Martinez to be on the
    lookout for an Impala. A white Impala arrived 10 to 15 minutes later and parked behind
    Larez’s Honda. Larez went to the front passenger seat of the Impala for several minutes
    and then walked back to the Honda. After Larez left the Impala, Oakes approached the
    driver’s side window. Martinez said “[i]t’s gonna happen,” and J.C. heard a gunshot.
    When J.C. looked up, he saw Oakes with a black semi-automatic gun, a hole the driver’s
    side window, and Chacon slouched over. As Martinez was driving away, J.C. saw Cruz
    go into the backseat. Afterwards, Martinez told J.C. that what had just happened was a
    “mob hit.”
    4. Evidence Concerning the Nightclub Shooting
    With respect to the nightclub shooting, the prosecution presented a witness, V.S.,
    who testified that during a rap concert at the Creekside Bar and Grill in San Jose on
    January 11, 2012 a fight broke out on the dance floor. A man, later identified as J.C.,
    came into the club waving a gun and told people to “get the fuck back.” V.S. later heard
    gun shots, and police arriving at the scene found an individual who had been shot.
    7
    The prosecution also presented testimony from J.C., L.B., and a Nuestra Raza
    member named A.V. J.C. testified that he and Martinez went to the nightclub on
    January 11, 2012, where L.B. and R.P., another gang member, met them. J.C. brought a
    gun, which Martinez wanted J.C. to carry because J.C. did not have a prison record.
    Inside the club, a fight involving L.B. broke out, and J.C. pulled out his gun. J.C. used
    the gun to wave people out of the way, and J.C., Martinez, L.B., and R.P. went to the
    parking lot. In the parking lot, a man charged at them, and Martinez told J.C., “Shoot
    him. Shoot him.” J.C. again pulled out his gun and shot twice at the person charging at
    them. J.C. testified that after the shooting, he and Martinez drove to A.V.’s house.
    L.B. similarly testified that he went to the nightclub with R.P., where they met
    with Martinez and J.C. When L.B. and R.P. were out on the dance floor, someone hit
    L.B. on the back of the head with a bottle, and L.B. hit the person in front of him, whom
    R.P. also stabbed. L.B. heard Martinez say “get the gun,” and J.C. put himself between
    L.B. and the rest of the crowd, waving a small .22 caliber gun. Outside, L.B. heard
    Martinez say, “Shoot them fools, blood, shoot them fools,” and J.C. fired a shot in the
    direction of a group of men who appeared to be approaching. L.B. then went to A.V.’s
    house where he heard Martinez brag that “we shot them fools.”
    A.V., a Nuestra Raza member who helped the NF organization by supplying guns
    and drugs, testified that at some unspecified time he exchanged a .22 caliber gun, which
    was easy to hide, for a .38 caliber gun that J.C. had been carrying. A.V. also testified that
    early in the morning on the night of January 11, 2012, Martinez, J.C., L.B., and R.P.
    came to his house, hyped up as if they had been in a fight. J.C. told A.V. that he (J.C.)
    had pulled out a gun, which he fired after Martinez said “[s]hoot, shoot.” A.V. testified
    that Martinez agreed with J.C.’s account.
    5. Evidence Concerning the NF Organization
    The prosecution presented testimony from an expert on the NF. In addition to
    testifying concerning the NF’s organization, its tax system, and various individuals’
    8
    associations with the organization, the expert testified that the NF had engaged in a
    pattern of criminal gang activity based on records of four criminal convictions committed
    by individuals associated with NF. The first record was a 2000 conviction of an NF
    member for murder. The second was a 2006 conviction of Martinez’s brother, then a
    Nuestra Raza member, for conspiring to sell methamphetamine and being a felon in
    possession of ammunition. The third was a 2012 conviction of an NF member for
    conspiracy to sell methamphetamine and other offenses. The fourth was the conviction
    of an “NF associate” for conspiracy to sell methamphetamine and being a felon in
    possession of a firearm and ammunition.
    6. Verdict and Sentencing
    In the middle of the trial, on the prosecution’s motion, the trial court dismissed one
    count of attempted murder and one count of assault with a firearm relating to the
    nightclub shooting. On March 13, 2019, the jury found Martinez, Oakes, and Cruz guilty
    on all remaining counts and found true all conduct allegations and the special
    circumstance.
    On September 20, 2019, the trial court sentenced Martinez to life without parole,
    consecutive to 169 years to life, consecutive to 35 years in prison. The trial court also
    sentenced Cruz to life without the possibility of parole, consecutive to 25 years to life,
    consecutive to three years in prison, and Oakes to life without parole, consecutive to
    25 years to life, consecutive to 2 years.
    D. The Appeals
    Martinez, Cruz, and Oakes all filed timely notices of appeal. The appeals by Cruz
    and Oakes were placed in Case No. H047687, and Martinez’s appeal in Case
    No. H047386. The court granted the Attorney General’s motion to consider Martinez’s
    appeal together with the appeals by Cruz and Oakes for briefing, oral argument, and
    disposition.
    9
    II. DISCUSSION
    Defendants raise an assortment of issues on appeal. Oakes challenges the
    admission of the identification of him by K.V., the delivery man on Oakland Road when
    Martin Chacon was murdered. Martinez and Cruz challenge accomplice testimony
    presented against them. All three defendants challenge their convictions for participating
    in a criminal street gang and the gang-related enhancements and special circumstances
    found by the jury. Cruz also challenges his conviction on several additional grounds, and
    defendants challenge several aspects of their sentences. We address each of these issues
    in turn.
    A. The Pre-Trial Identification of Oakes
    Before trial, Oakes moved to exclude the identification testimony of K.V., a
    delivery man who was on Oakland Road when Martin Chacon was shot, on the ground
    that a pre-trial photo lineup was unduly suggestive. Oakes argues that the trial court
    erred in denying his motion because both the photo of Oakes shown to K.V. and the
    administration of the lineup were unduly suggestive. Conducting an independent review
    (People v. Vivar (2021) 
    11 Cal.5th 510
    , 527; People v. Holmes, McLain and Newborn
    (2022) 
    12 Cal.5th 719
    , 746 (Holmes)), we conclude that the photo lineup was not unduly
    suggestive.
    1. The Photo Lineup
    In March 2013, approximately seven months after the Chacon murder, K.V.
    participated in a photo lineup with two San Jose police officers. Consistent with his
    department’s “double-blind” method, the officer who took the primary role in
    administering the photo lineup knew nothing about the case and in particular did not
    know Oakes was the suspect or which photo was of him. However, in an admitted
    departure from best practices, a second officer, who sat in the back of the vehicle where
    the lineup was administered, was aware that Oakes was a suspect.
    10
    The lineup consisted of a photo of Oakes as well as individual photos of five
    “fillers” selected from a Department of Motor Vehicles database. Oakes was depicted in
    photo 4. The administering officer advised K.V. that the suspect might not be shown and
    that the photos would be shown one at a time. The officer then presented the photos to
    K.V., one at a time, four times.
    The first time through K.V. did not identify anyone. During the second time,
    looking at photo 4, he said “It’s between uh . . . . Can I see the other one again too? I
    think it was the second one before this one.” The administering officer responded,
    “Okay, we’ll have to go through them all again.”
    In addition, pursuant to his ordinary practice, the administering officer asked K.V.
    about his reaction to photo 4. Noting that “[t]here was something about this photo that
    you kind of paused a little bit,” the officer asked, “What was it about this photo that you
    kind of paused?” K.V. replied that photo 4 “resembles what I remember seeing . . . .”
    After confirming that photo 4 resembled the person he saw, K.V. asked “can I check it
    one more time,” and when one officer asked “[w]hat number is that,” the other responded
    “[t]his is number four.” The second officer then told K.V. that “we’ll go through” and be
    “going to it over again.”
    After K.V. was shown photo numbers 5 and 6, the second officer asked K.V. to
    comment as he went through the array again on whether the person in each photo was the
    individual in question. The administering officer then presented each photo a third time.
    K.V. said the person in photo 1 was definitely not the one he saw. He said that the person
    in photo 2 “looks familiar” but asked for the “[n]ext one.” In response to photo 3, he said
    “definitely not this one.” At photo 4, K.V. said, “Yeah. It’s pretty close.”
    When the administering officer observed that “you keep pausing on photo number
    four,” K.V. responded “[i]t’s pretty close . . . between them two.” The second officer
    asked what was close, and K.V. explained that it was “the build” and “[t]he eyebrows.”
    The administering officer then noted that K.V. had said “definitely not” in response to
    11
    photos 1 and 3 and asked if K.V. wanted “to look at photo number four some more?”
    K.V., however, asked if it was “all right if we check out the other one again,” and the
    officer responded, “Yeah, we’ll go through.”
    After showing photos 5 and 6 again, the administering officer showed the photos
    in order one more time. When he saw photo 2, K.V. said: “It’s this one. Yeah, I don’t
    think. It was number four.” When the administering officer asked if “you’re shaking
    your head number two right now,” K.V. replied, “Yeah.” After once again eliminating
    photo 3, K.V. looked at photo 4 and said “Yeah, this is it” and “Number four. What I,
    yeah, what I remember.” When the administering officer asked what he remembered,
    K.V. said “[h]is build,” “his eyebrows,” “[h]is hair,” “[e]verything is the same.” Asked
    about the involvement of the person in photo 4, K.V. said, “I saw this guy as a shooter
    next to the car.”
    After concluding by showing K.V. photos 5 and 6, the administering officer asked
    whether he should go through the photos again, and K.V. replied “I’m good.” When
    asked if the person in photo 4 was the shooter, K.V. responded “Yes, sir.”
    2. Pre-Trial Identifications
    Due process prohibits identification testimony “ ‘if the identification procedures
    used were unnecessarily suggestive’ ” and render the resulting identification unreliable.
    (People v. Avila (2009) 
    46 Cal.4th 680
    , 698 (Avila).) An identification procedure is
    unduly suggestive if it causes the defendant to stand out in a way suggesting that the
    witness should select him (ibid.) and “ ‘give[s] rise to a very substantial likelihood of
    irreparable misidentification.’ ” (People v. Cook (2007) 
    40 Cal.4th 1334
    , 1355.) In
    determining whether an identification procedure was unduly suggestive, courts consider
    “ ‘(1) whether the identification procedure was unduly suggestive and unnecessary, and,
    if so, (2) whether the identification itself was nevertheless reliable under the totality of
    the circumstances . . . .’ ” (Holmes, supra, 12 Cal.5th at p. 768, quoting People v.
    Cunningham (2001) 
    25 Cal.4th 926
    , 989.) Defendants challenging an identification bear
    12
    the burden of demonstrating that the identification procedure was unduly suggestive and
    unreliable. (Avila, 
    supra,
     46 Cal.4th at p. 700; see also People v. DeSantis (1992) 
    2 Cal.4th 1198
    , 1222 [“Defendant bears the burden of showing unfairness as a
    demonstrable reality, not just speculation.”].)
    3. Composition of the Photo Lineup
    Oakes asserts that the photo lineup shown K.V. was unduly suggestive because,
    unlike the other photos, the photo of Oakes was displayed against a bright blue
    background, positioned low in the frame, and showed him wearing a shirt with pattern.
    We conclude that these factors did not make Oakes stand out and render the photo lineup
    unreliable.
    We agree with the Attorney General that the six men included in the photo lineup
    are similar: All six are white or Hispanic, thickly built, and appear to be in their 30s.
    Their eyes are dark, their hair is close-cropped, they have little to no facial hair, and their
    facial expressions were similar. Importantly, the way in which the photos were presented
    does not make Oakes’s photo stand out. Although Oakes correctly points out that only
    his photo has a bright blue background, the photos were shown to K.V. one-by-one, not
    together at once, which would have made differences in the backgrounds stand out more.
    In addition, all the photos had some variation in the color and brightness of their
    respective backgrounds. As a consequence, the different colored backgrounds do not
    make Oakes’s photo stand out significantly. (See People v. Johnson (1992) 
    3 Cal.4th 1183
    , 1217 [holding that difference in background color and image size did not render
    photographs impermissibly suggestive].) Similarly, in Oakes’s photo his head is in
    basically in the same position as the others. And while Oakes’s photo is the only one
    with a patterned shirt, his shirt does not stand out any more than the all-white shirt in
    photo 1.
    The Supreme Court has upheld photo lineups that were far more suggestive. For
    example, in People v. Gonzalez (2006) 
    38 Cal.4th 932
     (Gonzalez), the defendant argued
    13
    that a photographic lineup was unduly suggestive because his photograph was the only
    one with “ ‘gang-type’ clothing,” and his photograph was discolored. (Id. at p. 943.) The
    Supreme Court disagreed, holding that neither the defendant’s clothing nor the
    discoloration in the photograph of him suggested his photograph should be selected.
    (Ibid.) In People v. Carter (2005) 
    36 Cal.4th 1114
     (Carter), the defendant argued that a
    photographic lineup was impermissibly suggestive because the photograph of him was
    the only one “wearing an orange shirt that resembled a ‘jail jumpsuit,’ ” and while his
    photograph was “of ‘booking-photograph quality’ ” and had a large border, the others
    were glossy Polaroid images with smaller borders. (Id. at p. 1162.) The Supreme Court
    held that the array was not unduly suggestive because the individuals in it were roughly
    the same age, they had similar hair color and facial hair, and their expressions were
    roughly comparable. (Id. at p. 1163.) The individuals depicted in the photo lineup here
    share similar characteristics, the photo quality is similar, and Oakes’ patterned shirt is
    less distinctive than the orange shirt in Carter. Consequently, under Carter and
    Gonzalez, the photographic lineup in this case was not unduly suggestive.
    Oakes points to People v. Carlos (2006) 
    138 Cal.App.4th 907
     in asserting that the
    photo lineup was unduly suggestive. However, in that case the Court of Appeal
    concluded that a six-photo array was “plainly suggestive” because the defendant’s name
    and an identification number appeared directly below his image and thus was almost “an
    arrow pointing to [him].” (Id. at p. 912.) Here, by contrast, the photos were shown one-
    by-one, and Oakes’s photo has no name or identification number distinguishing it. The
    federal cases cited by Oakes do not help him either. In one, the court found that use of a
    color photograph of the petitioner from a front view and eleven black-and-white mug
    shots of others with both front and side views made the petitioner “st[and] out like the
    proverbial ‘sore thumb’ ” (Passman v. Blackburn (5th Cir. 1981) 
    652 F.2d 559
    , 570),
    and in the other case a trial court found that “[t]he photo array was not unduly
    14
    suggestive.” (United States v. Mustafa (N.D. Ga. 2012) 
    2012 U.S. Dist. LEXIS 73060
    , at
    *36.)
    We conclude that the photo lineup shown K.V. was not unduly suggestive.
    4. Administration of the Photo Lineup
    Oakes also argues that the photo lineup was administered in an unduly suggestive
    fashion. In particular, he contends that the police officers who conducted the lineup
    “aggressively” steered K.V. towards his photo in three ways: (1) repeatedly skipping over
    his interest in photo 2 and volunteering to show K.V. the photo of Oakes (photo 4),
    (2) remarking about K.V. pausing on Oakes’s photo and asking follow-up questions
    about that photo, but (3) asking no questions about photo 2. We are not persuaded.
    In the first place, the officers administering the lineup did not skip over photo 2
    and steer K.V. towards Oakes’s photo. As Oakes points out, in the second time through
    the photos, after seeing Oakes’s photo, K.V. asked to see photo 2 again. In response, the
    officers agreed to do so but told K.V. that they would “go through them all again.” This
    response did not make Oakes’s photo stand out in a way suggesting that K.V. should
    select him, much less create the substantial likelihood of an irreparable misidentification
    needed to invalidate the lineup. To the contrary, it appears that the officers did the same
    thing when K.V. asked to see Oakes’s photo: After discussing why he paused on Oakes’s
    photo, K.V. asked “can I check it one more time,” but rather than showing K.V. Oakes’s
    photo right away, the accompanying officer told K.V. “we’ll go through . . . again,
    okay?” Thus, the officers appear to have followed a consistent protocol of showing the
    individual photos in order, one at a time, which did not in any way direct K.V. to photo 4.
    Oakes points out that, during the third time through the photos, the police officers
    asked K.V. about Oakes’s photo, but not about photo 2 even though K.V. commented on
    both photos. After commenting that the person depicted in photo 2 looked familiar, K.V.
    asked for the “[n]ext one.” However, after noting that Oakes’s photo was “pretty close,”
    K.V. did not ask for the next photo. Instead, he appears to have paused. As a
    15
    consequence, it was natural and not unduly suggestive for the officers to observe that
    K.V. was pausing on Oakes’s photo and to ask why.
    We acknowledge that the officers did not ask any questions concerning photo 2
    even though they noted that K.V. had said “definitely not” to photo 1 and photo 3. It is
    also troubling that the officer in the backseat during the photo lineup was aware that
    Oakes was a suspect. As the administering officer acknowledged in his testimony, this
    was a departure from best practices. In addition, rather than remaining silent, the officer
    in the backseat asked five questions during the administration of the lineup, one of which
    concerned what K.V. found “close” about photo 4, which was of Oakes. While this
    question may have conveyed an interest in photo 4, it occurred on the third pass through
    the photos after K.V. had twice paused on that photo. Although less than ideal practice,
    we do not view the second officer’s presence and questioning during the identification
    procedure as unduly suggestive, much less creating a substantial likelihood of an
    irreparable misidentification. (Simmons v. United States (1968) 
    390 U.S. 377
    , 385-386,
    fn. omitted [a procedure is not unduly suggestive simply because the procedure “may
    have in some respects fallen short of the ideal”].)
    In asserting that the officers improperly steered K.V. to his photo, Oakes cites
    Foster v. California (1969) 
    394 U.S. 440
     (Foster) and Solomon v. Smith (2d Cir. 1981)
    
    645 F.2d 1179
     (Solomon). These cases are clearly distinguishable. In Foster, the police
    conducted two successive lineups where the defendant was the only repeat participant,
    and there was a one-on-one confrontation with the defendant in between the lineups.
    (Foster, at pp. 441, 443.) In Solomon, the witness was shown the defendant in court as
    well as a photo of the defendant before picking him out of a lineup in which he was far
    smaller than any of the other participants. (Solomon, at p. 1183.) Nothing so blatantly
    suggestive occurred here.
    We conclude that the identification procedure in this case was not unduly
    suggestive and that K.V.’s identification of Oakes was properly admitted at trial.
    16
    B. Accomplice Testimony
    While K.V. identified Oakes as one of Chacon’s shooters, the primary evidence
    implicating Martinez and Cruz in the murder came from J.C., an admitted participant in
    the crime. J.C. and two other gang members, L.B. and A.V., also provided key testimony
    implicating Martinez in the nightclub shooting. Martinez and Cruz argue that J.C., L.B.,
    and A.V. were accomplices in these incidents and that the prosecution presented
    insufficient evidence corroborating their testimony. We conclude that A.V. was not an
    accomplice and that the testimony of J.C. and L.B. was adequately corroborated.
    1. Corroboration of Accomplice Testimony
    Because accomplice testimony “comes from a tainted source and is often given in
    the hope or expectation of leniency or immunity” (People v. Wallin (1948) 
    32 Cal.2d 803
    , 808), the Legislature has determined that “such testimony ‘ “by itself is insufficient
    as a matter of law to support a conviction.” ’ [Citations.]” (People v. Romero and Self
    (2015) 
    62 Cal.4th 1
    , 32 (Romero and Self).) Accordingly, section 1111 provides that “[a]
    conviction cannot be had upon the testimony of an accomplice unless it be corroborated
    by such other evidence as shall tend to connect the defendant with the commission of the
    offense . . . .” (§ 1111.)
    In determining whether an accomplice’s testimony “ ‘tend[s] to connect the
    defendant with the commission of the offense’ ” and thus satisfies the corroboration
    requirement, “ ‘[t]he entire conduct of the parties, their relationship, acts, and conduct
    may be taken into consideration by the trier of fact.’ ” (People v. Rodriguez (2018) 
    4 Cal.5th 1123
    , 1128.) “The corroborating evidence need not by itself establish every
    element of the crime” or “independently establish the identity of the victim’s assailant.
    [Citation.]” (People v. Abilez (2007) 
    41 Cal.4th 472
    , 505-506 (Abilez).) Nor must the
    evidence “ ‘corroborate the accomplice as to every fact to which he testifies.’ ” (People
    v. Davis (2005) 
    36 Cal.4th 510
    , 543.) Instead, the corroborating evidence may be
    “ ‘ “circumstantial or slight and entitled to little consideration when standing alone.
    17
    [Citation.]” ’ ” (Romero and Self, 
    supra,
     62 Cal.4th at p. 32.) However, the
    corroborating evidence must “tend to connect defendant with the commission of the
    crime in such a way as reasonably may satisfy a jury that the accomplice is telling the
    truth.” (People v. Simpson (1954) 
    43 Cal.2d 553
    , 563.) Moreover, the corroborating
    evidence must do so “ ‘without aid from the accomplice’s testimony.’ ” (Abilez, 
    supra,
    41 Cal.4th at p. 505.)
    A jury’s determination that non-accomplice evidence tends to connect the
    defendant to the crime and satisfies the corroboration requirement must be upheld on
    appeal unless the corroborating evidence was inadmissible or insufficient to reasonably
    connect the defendant with the crime. (People v. McDermott (2002) 
    28 Cal.4th 946
    , 985-
    986.)
    2. The Chacon Murder
    J.C., who testified under a grant of immunity pursuant to a plea agreement,
    presented testimony implicating Martinez and Cruz in Chacon’s murder, and both
    Martinez and Cruz argue that the prosecutor failed to corroborate this testimony. We
    conclude that J.C. was an accomplice to the murder, but evidence besides his testimony
    tends to connect both Martinez and Cruz to the murder, thereby satisfying the
    corroboration requirement.
    a. J.C.’s Testimony
    At trial, the prosecutor acknowledged that J.C. was an accomplice to the Chacon
    murder, and the court instructed the jury that J.C. was an accomplice as a matter of law as
    to that count.
    J.C., who testified that he was a friend and frequent companion of Martinez,
    provided evidence that Martinez had a motive to kill Chacon. According to J.C.,
    Martinez viewed himself as the boss of San Jose with “the last say-so” on behalf of the
    NF. As a consequence, Martinez was upset with Chacon claiming to be the one running
    San Jose and collecting taxes on the south side of the city. In addition, Martinez believed
    18
    that Chacon was dating a woman who might have been a federal informant, information
    that Martinez passed along to Larez.
    J.C. also testified that Martinez participated in Chacon’s murder. J.C. testified that
    on August 13, 2012, the day of Chacon’s murder, Martinez picked up J.C. and said
    “Kung Fu” (Chacon) while mimicking shooting a gun, which J.C. understood to mean
    that Chacon was going to be shot. Martinez then stopped outside a restaurant where he
    met with Larez, Cruz, and Oakes, and Larez said that they were going to kill Chacon.
    J.C. also testified that Martinez drove with Larez and the others to Oakland Road where
    Chacon was shot, Martinez told him “[i]t’s gonna happen” just before J.C. heard a
    gunshot, and afterwards Martinez told J.C. there had just been a “mob hit.”
    b. Corroboration Concerning Martinez
    Martinez argues that the jury lacked sufficient evidence independent of J.C.’s
    testimony to connect him to Chacon’s murder and corroborate J.C. We conclude that the
    evidence of Martinez’ motive and justification for murdering Chacon, his frequent
    contact on the day of the murder with a key participant in the crime, and his possible
    presence at the murder scene, provided sufficient corroboration.
    The prosecution presented evidence that Martinez had both a motive and the
    ability to murder Chacon. L.B., who had no involvement in the Chacon murder and thus
    was not an accomplice to it, testified that Martinez had complained to him that Chacon
    was collecting taxes on behalf of a federal regiment, which had no jurisdiction over street
    regiments and therefore no authority to collect taxes from them. This transgression, L.B.
    also testified, would have justified murdering Chacon; indeed, L.B. sent a message to
    Chacon to “knock his shit off” or he would be “smacked,” or killed. An expert on the
    Nuestra Familia gang concurred that a gang member who collected taxes without
    authority could be disciplined by, among other things, being murdered. And as Martinez
    had become the leader of the NF’s Santa Clara County regiment, Martinez would have
    been in a position to arrange Chacon’s murder.
    19
    Other evidence showed that Martinez was in frequent contact with Larez who
    drove with Oakes—whom K.V. identified as one of the men who shot Chacon—from
    Red Bluff to San Jose on the day of the murder. Indeed, in July and August 2012 Larez
    had over 60 telephone calls with Martinez, including one at 10:41 a.m. while Larez and
    Oakes were driving on the morning of the murder. That day Larez also had six telephone
    calls with Chacon, including one at 1:20 p.m., 10 minutes or so before the murder
    occurred.
    In addition, it is reasonable to infer that Larez drove from Red Bluff to San Jose to
    meet with Martinez and kill Chacon before immediately returning to Red Bluff as Larez
    (1) traveled down from Red Bluff early in the morning of August 13 2012, (2) used the
    same cell phone tower as Chacon between 1:20 p.m. and 1:32 p.m. when Chacon was
    shot, and (3) was on his way back to Red Bluff with Oakes by 2:07 p.m.
    Finally, surveillance video showed that Martinez might have been present at the
    scene of Chacon’s murder. Specifically, video showed a Chevrolet pickup with an
    extended cab along with a black sedan in the area shortly before Chacon was murdered.
    When police officers served a search warrant at Martinez’s home about two months after
    the murder, they found Martinez’s wife in a gray Chevrolet pickup similar to the one
    depicted in the surveillance video.
    This evidence, all of which was independent of the testimony of J.C. or any other
    accomplice to the Chacon murder, “tend[s] to connect” Martinez with the murder and
    therefore corroborates J.C.’s testimony. (§ 1111.) The testimony of L.B. and the gang
    expert showed that Chacon’s unauthorized collection of taxes gave Martinez, who had
    only become leader of the Nuestra Familia’s Santa Clara regiment in July 2012 and may
    have been sensitive about threats to his authority, both a motive and justification for
    murdering Chacon. In addition, cellphone evidence showed that Martinez was in close
    communication with the individuals who drove from Red Bluff to shoot Chacon.
    Martinez was in frequent contact with Larez in the days leading up the Chacon’s murder,
    20
    and he spoke with Larez on the day of the murder, while Larez was driving from Red
    Bluff with Oakes, the man whom K.V. identified as one of Chacon’s shooters. And
    surveillance video showed that Martinez’s truck may have been at the scene of the
    murder. As corroborating evidence need only be “ ‘ “circumstantial or slight” ’ ”
    (Romero and Self, supra, 62 Cal.4th at p. 32), we conclude that the evidence in this case
    was sufficient to assure the jury that J.C. was telling the truth and corroborate his
    testimony.
    This conclusion is supported by the Supreme Court’s decision in People v. Szeto
    (1981) 
    29 Cal.3d 20
    . The defendant in that case was convicted of being an accessory to a
    gang shooting that injured or wounded more than a dozen bystanders. (Id. at p. 26.) A
    gang member who drove the others to the shooting testified that, the morning after the
    incident, he and the defendant threw the guns used in the shooting into San Francisco
    Bay. (Id. at p. 28.) When the defendant objected that the gang member’s testimony was
    not adequately corroborated, the Supreme Court disagreed. It reasoned that there was
    independent evidence that defendant was a gang member and therefore had a motive to
    assist his fellow gang members, and that defendant had the opportunity to help dispose of
    the guns because a witness saw him bring wonton soup to the house where the gang
    members were staying (and had their guns) on the morning after the shooting. (Ibid.)
    The independent corroborating evidence here—which showed Martinez’s motive and
    justification for killing Chacon, his contact with the individuals who drove from Red
    Bluff to shoot Chacon, and his possible presence at the scene—was much stronger.
    We conclude that the non-accomplice evidence here adequately corroborated
    J.C.’s testimony concerning Martinez’s involvement in the Chacon murder.
    c. Corroboration Concerning Cruz
    Cruz also argues that J.C.’s testimony concerning his (Cruz’s) participation was
    not sufficiently corroborated. While this is a closer question, we conclude that
    section 1111’s corroboration requirement is satisfied here as well.
    21
    While the prosecutor did not present evidence that Cruz had any specific motive
    for killing Chacon, he did present independent evidence that Cruz was an NF associate
    and that Chacon’s conduct warranted severe discipline by the gang, including death. In
    addition, cellphone records showed that on the day of the murder Oakes called Cruz early
    in the morning before he traveled to San Jose and in the evening after he had returned to
    Red Bluff, which is consistent with Cruz and Oakes driving from Red Bluff to San Jose
    to commit Chacon’s murder.
    Finally, and most importantly, there was evidence that Cruz was present at the
    scene of the crime and participated in it. J.O. saw three men in the black Honda, and he
    testified that the man in the back seat was Hispanic, in his early or mid-20s, about 5 feet
    7 inches tall and 140 or 150 pounds. In addition, K.V. testified that he saw a smaller man
    running towards Chacon’s Impala with a chrome gun and described that person as
    Hispanic, mid- or late 20s, with a dark complexion and dark hair. Based on this
    composite description, the prosecutor argued that Cruz was the individual described. We
    conclude that this evidence was sufficient to tend to connect Cruz with Chacon’s murder
    and satisfy section 1111’s corroboration requirement.
    Accomplice testimony has been found corroborated based on similar identification
    testimony. In People v. Cooks (1983) 
    141 Cal.App.3d 224
     (Cooks), a witness testified
    that she saw a man who was fairly young, of mixed race with a light complexion, and a
    medium build. (Id. at p. 252.) The witness in Cooks also saw a man next to a van that
    was black or white, which was similar to the defendant’s white or beige van (id. at
    pp. 252, 259), and there was evidence that the defendant in question was a friend with
    another defendant (id. at p. 259). Based on this evidence, and the consistency of the
    accomplice’s testimony with the testimony of other witnesses, Cooks found that the
    accomplice’s testimony was adequately corroborated. (Id. at pp. 259-260.)
    Here, the description of the defendant was even more detailed: J.O. and K.V.
    testified that they saw a Hispanic man in his 20s with a dark complexion and dark hair,
    22
    who was 5 feet 7 inches tall and 140 or 150 pounds. There was video evidence that a
    black Honda similar to the one that was owned by Larez and whose keys the police found
    in Oakes’ possession was at the scene, an eyewitness testified that there were three
    passengers in a black Honda on Oakland Street, and cellphone records showed that on the
    day of Chacon’s murder Cruz was in contact with Oakes, whom K.V. identified as the
    first shooter. As a consequence, the evidence here tended to connect Cruz to Chacon’s
    murder as much as the evidence in Cooks.
    Citing People v. Robinson (1964) 
    61 Cal.2d 373
     (Robinson) and People v. Santo
    (1954) 
    43 Cal.2d 319
     (Santo), Cruz argues that the eyewitnesses’ descriptions of him
    were too general to provide adequate corroboration. In Robinson, the Supreme Court
    held that a defendant’s fingerprints on the car used in a robbery and murder could not
    corroborate an accomplice’s testimony because there were plausible, innocent
    explanations for why defendant’s fingerprints were on the car, which was owned by an
    acquaintance. (Robinson, supra, 61 Cal.2d at pp. 397-399.) This ruling has no bearing
    on whether the combined description of the eyewitnesses in this case sufficiently
    identified Cruz to satisfy the corroboration requirement. Santo does not offer Cruz any
    support either, as the Court of Appeal in that case found the accomplice’s testimony was
    adequately corroborated. (Santo, supra, 43 Cal.2d at pp. 327-330.)
    People v. Pedroza (2014) 
    231 Cal.App.4th 635
     is inapposite as well. In Pedroza,
    the Court of Appeal concluded that accomplice testimony was not corroborated by
    evidence that “the defendant was in the same gang as the victim and [the accomplice],”
    the gang “was experiencing frequent in-house murders,” and the defendant was with the
    accomplice and other gang members several hours after the murder took place. (Id. at
    p. 651.) Here, as well, the evidence shows that Cruz was associated with the NF
    organization, that there was an in-house murder, and that he was with gang members
    several hours before a murder took place. Moreover, in this case, there was testimony
    placing a man matching Cruz’s description—including ethnicity, age, height, weight, and
    23
    complexion—at the scene of the murder, which could have satisfied the jury that J.C.
    truthfully testified that Cruz was the third man in the black Honda who shot Chacon after
    Oakes. Thus, the connection in this case was even stronger than in Pedroza.
    We conclude that J.C.’s accomplice testimony concerning the Chacon murder was
    sufficiently corroborated as to Cruz.
    2. The Nightclub Shooting
    In addition to Chacon’s murder, Martinez was convicted of attempted murder and
    assault with a firearm in a nightclub shooting. In connection with this incident, the
    prosecution presented testimony from three witnesses–J.C., L.B., and A.V.—who
    testified under grants of immunity. Martinez argues that all three witnesses were
    accomplices, and their testimony was not sufficiently corroborated. We conclude that
    A.V. was not an accomplice to the nightclub shooting and that his testimony sufficiently
    corroborated the testimony of J.C. and L.B.
    a. The Testimony of J.C., L.B., and A.V.
    J.C. testified that he, L.B., Martinez, and R.P., another gang member, went to a rap
    concert at the Creekside Bar and Grill in January 2012 and that J.C. decided with
    Martinez that J.C. should be the one to carry a gun for their protection because he was the
    only who had not been imprisoned. When a fight involving L.B. broke out inside the
    club, J.C. pulled out the gun and used it to wave people out of their way as he, Martinez,
    L.B., and R.P. exited the club. In the parking lot, someone charged at Martinez and J.C.,
    and Martinez told J.C. to shoot that person. J.C. aimed the gun at the person and shot
    twice. After the shooting, J.C. and Martinez drove to A.V.’s house, which was close by
    and where L.B. and R.P. met them, and the four talked about what happened at the club.
    L.B. testified that he and R.P. went to the concert at the nightclub where they met
    Martinez and J.C., and Martinez told him that he and J.C. were bringing a gun. L.B. also
    testified that, after some pushing and shoving on the dance floor, someone hit him on the
    back of the head with a bottle, and R.P. stabbed that person. L.B. then heard Martinez
    24
    loudly tell J.C. to “get the gun.” As they were leaving the nightclub, L.B. also heard
    Martinez tell J.C. “shoot them fools,” after which J.C. shot at a group of men coming
    towards L.B. and R.P. Later L.B. went to A.V.’s house, where Martinez bragged that
    “we shot them fools.”
    A.V. testified that on the morning after the concert, around 2:00 or 3:00 a.m.,
    Martinez, J.C., L.B., and R.P. came to his house. He said that all four were hyped up as
    if they had been in an altercation. J.C. told A.V. that he had pulled out a gun, Martinez
    had said “shoot, shoot,” and J.C. did so. Martinez agreed that is what happened.
    b. A.V.’s Status
    The prosecutor acknowledged that J.C. and L.B. were accomplices to the
    nightclub shooting, but argued that their testimony was corroborated by A.V., who was
    not an accomplice. Although Martinez did not argue at trial that A.V. was an
    accomplice, Martinez now contends that A.V. was. We are not persuaded.
    For purposes of the corroboration requirement, an accomplice is “one who is liable
    to prosecution for the identical offense charged against the defendant on trial in the cause
    in which the testimony of the accomplice is given.” (§ 1111) An individual is not
    deemed “liable” in this sense if the individual was merely an accessory to the offense
    charged. (People v. Horton (1995) 
    11 Cal.4th 1068
    , 1114; People v. Fauber (1992) 
    2 Cal.4th 792
    , 833-834.) “To be chargeable with an identical offense, a witness must be
    considered a principal” (People v. Lewis (2001) 
    26 Cal.4th 334
    , 368), which means that
    the individual must be either a direct perpetrator of the offense or someone who aided
    and abetted in its commission. (§ 31 [defining “principals”].) An individual aids and
    abets in the commission if “acting with (1) knowledge of the unlawful purpose of the
    perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the
    commission of the offense, [or] (3) by act or advice,” the individual “aids, promotes,
    encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 
    35 Cal.3d 547
    , 561; see also People v. Nguyen (1993) 
    21 Cal.App.4th 518
    , 530 [“knowledge
    25
    of another’s criminal purpose is not sufficient for aiding and abetting; the defendant must
    also share that purpose or intend to commit, encourage, or facilitate the commission of
    the crime”].)
    Martinez points to testimony from A.V. that he gave Martinez the .22 caliber gun
    that J.C. used in the nightclub shooting. A.V., however, did not testify when he did this.
    In addition, far from showing that A.V. intended to encourage or facilitate any crime, the
    evidence shows that A.V. traded a .22 caliber handgun, which was easy to hide, for a
    larger and presumably more lethal .38 caliber handgun. Even more important, there is no
    evidence that A.V. or anyone else anticipated that L.B. and R.P. would get into a fight at
    the nightclub, much less intended that J.C. would use the gun to shoot individuals
    approaching L.B. and R.P. outside the club. As Martinez bears the burden of proving that
    A.V. was an accomplice, and we are required to “resolve all inferences and
    inconsistencies in favor of the jury’s implied finding that [A.V.] was not an accomplice”
    (People v. Tewksbury (1976) 
    15 Cal.3d 953
    , 962), we conclude that the nightclub
    shooting was unplanned and that A.V. did not aid and abet in it.
    Martinez notes that, at one point, the trial court instructed the jury that A.V. as
    well as J.C. and L.B. were accomplices as a matter of law. While that is true, the trial
    court did so only in passing in what appears to have been a mistake. In addition, shortly
    before, the trial court instructed the jury that “[b]efore you may consider the statement or
    testimony of [A.V.] as evidence against Defendant Angel Martinez . . . you must decide
    whether [A.V.] was an accomplice to the charged crime” and that “[t]he burden on the
    defendant is to prove it is more likely than not that [A.V.] was an accomplice.” In
    keeping with this latter instruction, the prosecutor argued to the jury, without objection
    from Martinez, that A.V. was an accomplice on some counts but not on the counts
    relating to the nightclub shooting. We see no likelihood that the jury was confused by the
    passing suggestion that A.V. was an accomplice as a matter of law, and Martinez has
    offered no basis for deeming A.V. an accomplice based on such an instruction absent
    26
    evidence or argument supporting that suggestion. (See People v. Nelson (2016) 
    1 Cal.5th 513
    , 546-547 [if trial record contains an erroneous instruction, reversal is required only if
    the error was likely to have misled the jury]; People v. Young (2005) 
    34 Cal.4th 1149
    ,
    1202 [reviewing court should consider the arguments of counsel in assessing the probable
    impact of an instruction on the jury].)
    c. Corroboration of J.C.’s and L.B.’s Testimony
    A.V.’s testimony corroborates the accomplice testimony of J.C. and L.B. It
    showed that Martinez, J.C., L.B., and R.P. had been in a fight at a concert, that J.C. told
    A.V. that he had shot a gun at Martinez’s request, and that Martinez implicitly admitted
    this account. This admission tends to connect Martinez to the nightclub shooting and
    corroborates the testimony of J.C. and L.B.
    C. Gang-Related Issues
    Martinez, Cruz, and Oakes were convicted of one count of active participation in a
    criminal street gang in violation of section 186.22, subdivision (a), and the jury found
    true several gang-related enhancements and special circumstances. Defendants seek to
    vacate these convictions and findings in light of intervening changes to the criminal street
    gang statute enacted by the Legislature in Assembly Bill No. 333 (2021-2022 Reg. Sess.)
    (Assem. Bill 333). In addition, they argue their convictions on other counts should be
    vacated in light of the bifurcation provision added by Assem. Bill 333. As explained
    below, we agree that the gang-related convictions and findings should be vacated in light
    of Assem. Bill 333, but conclude that Assem. Bill 333’s bifurcation provision is not
    retroactive and therefore does not affect other aspects of the verdicts.
    1. Assem. Bill 333
    Because the changes to the criminal street gang statute in Assem. Bill 333 are
    ameliorative, the Supreme Court has held that those changes apply retroactively to cases
    on appeal such as this one. (People v. Tran (2022) 
    13 Cal.5th 1169
    , 1206-1207 (Tran).)
    Defendants argue that, because the jury was instructed on requirements that Assem.
    27
    Bill 333 changed, those instructions were erroneous, and the jury’s gang-related
    convictions and findings must be vacated. The Attorney General does not dispute that
    the jury instructions were erroneous under Assem. Bill 333, but argues that this error was
    harmless.3 We are not persuaded
    Defendants were convicted of violating section186.22, subdivision (a), which
    makes it a criminal offense to “actively participate[] in a criminal street gang” with
    knowledge that gang members engage in “a pattern of criminal gang activity” and to
    willfully promote, further, or assist in felonious conduct by gang members. (§ 186.22,
    subd. (a).) In addition, the jury found true allegations that defendants intended to
    promote, further, or assist in criminal conduct by gang members under section 186.22,
    subdivision (b), that in the commission of a gang-related offense, a principal discharged a
    firearm, causing death under section 12022.53, subdivisions (d) and (e)(1), and that
    defendants were acting to further gang activities under section 190.2, subdivision (a)(22).
    These convictions and findings were all predicated on the criminal street gang statute’s
    definition of criminal street gang and the related definitions of “pattern of criminal
    activity” and “common benefit.”
    Assem. Bill 333 changes these definitions. It “narrowed the definition of a
    ‘criminal street gang’ to require that any gang be an ‘ongoing, organized association or
    group of three or more persons.’ ” (Tran, supra, 13 Cal.5th at p. 1206, quoting § 186.22,
    subd. (f), italics added.) Assem. Bill 333 also amended the definition of “pattern of
    criminal gang activity” to require that “that any such pattern have been
    ‘collectively engage[d] in’ by members of the gang.” (Ibid., quoting § 186.22, subd. (f),
    3
    The Attorney General also argues that application of Assem. Bill 333’s changes
    to the gang-murder special circumstance in section 190.2, subdivision (a)(22) would
    unlawfully amend Proposition 21, the initiative that added the gang-murder special
    circumstance. After briefing in this case was completed, the Attorney General withdrew
    this argument in light of the Supreme Court’s rejection of the argument in People v.
    Rojas (2023) 
    15 Cal.5th 561
    , 580.
    28
    italics added.) And Assem. Bill 333 required that the offenses needed to establish a
    pattern of criminal gang activity “commonly benefitted” the gang and that any common
    benefit “be ‘more than reputational.’ ” (Ibid., citing § 186.22, subd. (g).)
    Although the jury was not instructed on these new requirements, the Attorney
    General argues that this failure was harmless. Because Assem. Bill 333’s changes
    affected the elements of the defendants’ criminal gang participation conviction, the
    federal harmless error standard applies, and the Attorney General must show that the
    error was harmless beyond a reasonable doubt. (People v. Cooper (2023) 
    14 Cal.5th 735
    ,
    742 (Cooper); Tran, supra, 13 Cal.4th at p. 1207.) In addition, because the jury was not
    instructed on the elements added by Assem. Bill 333, the trial court’s instructions must be
    treated as if they omitted or misdescribed a fact required for the offense (Cooper, at
    pp. 742-473), which means that the error was harmless only if “ ‘ “ ‘[n]o reasonable
    jury’ ” would have found in favor of the defendant on the missing fact . . . .’ ” (People v.
    Schuller (2023) 
    15 Cal.5th 237
    , 261); see also In re Ferrell (2023) 
    14 Cal.5th 593
    , 605
    [considering “whether a reasonable jury, given the findings actually made and the state of
    the evidence, could have found in favor of the defendant”].)
    The Attorney General has not satisfied this standard. He concedes that the
    testimony of the prosecution’s gang expert concerning convictions of NF members fails
    to satisfy Assem. Bill 333 because the convictions did not show that the underlying
    crimes commonly benefit the NF organization in a way that was more than reputational.
    However, the Attorney General argues that any reasonable jury would have found a
    pattern of criminal activity based on (1) J.C.’s testimony that at some point after the
    Creekside incident, he and other Norteños, who had been summoned by Martinez to help
    him, shot at a Sureño in a red truck who had been “mean mugging” him and Martinez;
    and (2) L.B.’s testimony that he committed five bank robberies in December 2011 and
    January 2012, two of which were committed with NF associate B.B. and two with NF
    associate R.P. However, to establish a pattern of gang activity after Assem. Bill 333, a
    29
    prosecutor must prove the commission of two or more offenses that “commonly benefited
    a criminal street gang” and that the “common benefit from the offenses is more than
    reputational.” (§ 186.22, subd. (e)(1).) While the prosecutor presented testimony from
    L.B. that he intended the robberies he committed to benefit the NF gang by reinvesting a
    portion of the proceeds in purchasing drugs, it is unclear from this testimony whether
    L.B. actually did so: When asked where the money he stole was, L.B. stated, “I don’t
    know” and “I never did nothing with it.” Consequently, a reasonable jury could have
    concluded that the NF organization was not commonly benefited by the robberies and
    therefore that the prosecution failed to prove a pattern of criminal street gang activity.
    The Attorney General may well be able to show on remand that L.B.’s robberies
    provided a collective benefit to the NF organization and establish a pattern of criminal
    activity. However, to establish harmless error under the federal standard, “it is not
    enough that . . . substantial or strong evidence existed to support a conviction under the
    correct instructions.” (People v. Sek (2022) 
    74 Cal.App.5th 657
    , 668 (Sek).)
    Accordingly, the proper remedy here “is to remand and give the People an opportunity to
    retry the affected charges.” (People v. E.H. (2022) 
    75 Cal.App.5th 467
    , 480.)
    We therefore will vacate defendants’ convictions for participating in a criminal
    street gang and the findings concerning gang-related enhancements and special
    circumstances. On remand, the prosecutor should elect whether to retry defendants on
    these matters. (See Sek supra, 74 Cal.App.5th at p. 370.)
    2. Bifurcation
    Martinez, Cruz, and Oakes also contend that, in light of the bifurcation provision
    in section 1109, which was added by Assem. Bill 333 (Stats. 2021, ch. 699, § 5), their
    convictions for murder and other offenses besides participation in a criminal street gang
    should be vacated. This argument fails because the Supreme Court recently held that
    section 1109 does not apply retroactively. (People v. Burgos (2024) 
    16 Cal.5th 1
    , 8.)
    30
    D. Cruz’s Additional Arguments
    Cruz challenges his convictions on several additional grounds. We address each
    in turn.
    1. Evidence of Drug Use by Cruz
    In cross-examining J.C., Oakes’s lawyer sought to attack J.C.’s credibility by
    questioning him about misconduct after he began cooperating with law enforcement,
    including dealing drugs in jail. In response, J.C. admitted to possessing
    methamphetamine in jail and said he gave some to Cruz as he “felt bad” because “me
    being truthful brought him in this predicament.” Because Cruz’s attorney did not object
    to the questioning or move to strike J.C.’s response, Cruz now contends that he was
    deprived of effective assistance of counsel. We are not persuaded.
    Under both the Sixth Amendment to the United States Constitution and article I,
    section 15 of the California Constitution, criminal defendants are entitled to effective
    assistance of counsel. (Strickland v. Washington (1984) 
    466 U.S. 668
    , 684-686
    (Strickland); People v. Ledesma (1987) 
    43 Cal.3d 171
    , 215 (Ledesma).) To establish
    ineffective assistance of counsel, a defendant must show that (1) counsel’s performance
    was so deficient that it fell below an objective standard of reasonableness, under
    prevailing professional norms and (2) this deficient performance was prejudicial.
    (Strickland, at pp. 688, 692; Ledesma, at pp. 216-217.) In addition, to avoid the
    distorting effects of hindsight, the Supreme Court has adopted “a strong presumption that
    counsel’s performance [fell] within the wide range of reasonable professional assistance”
    and that the challenged actions reflected a “ ‘sound trial strategy.’ ” (Strickland, supra,
    466 U.S. at p. 689.) In light of this presumption, deficient performance is especially
    difficult to demonstrate on direct appeal: If the record does not show why counsel chose
    to act or to not act, the reviewing court must reject challenges to counsel’s conduct
    “ ‘ “unless counsel was asked for an explanation and failed to provide one, or unless there
    31
    simply could be no satisfactory explanation.” ’ ” (People v. Kelly (1992) 
    1 Cal.4th 495
    ,
    520 (Kelly).)
    Cruz has not shown deficient performance. He contends that his trial counsel
    should have objected to the testimony that J.C. passed drugs to him because the testimony
    was irrelevant and unduly prejudicial under Evidence Code section 352. However, in
    closing argument, Oakes’ attorney used the evidence that J.C. was dealing drugs in jail to
    argue that J.C. was a hardened criminal who did not change his ways after he began
    cooperating and that he was a liar because his story of gifting drugs to Cruz was not
    believable. Cruz’s trial attorney reasonably could have determined that the benefits of
    this argument in undermining J.C.’s credibility outweighed any prejudice from the
    suggestion that Cruz used drugs (and that the jury would be more receptive to the
    argument if it came from codefendants’ counsel). As a consequence, not objecting to the
    testimony in question was a reasonable tactical choice that fell within the wide range of
    reasonable professional assistance. (See People v. Beasley (2003) 
    105 Cal.App.4th 1078
    ,
    1092 [“[T]he decision to object or not to object to the admission of evidence is inherently
    tactical, and a failure to object will seldom establish ineffective assistance.”].)
    2. The Prosecutor’s Closing Argument
    Cruz also contends that the prosecutor committed misconduct during closing
    argument by referencing a fact that was not in evidence, and that his lawyer at trial
    rendered ineffective assistance by failing to object to this misconduct. Here again, Cruz’s
    argument is unavailing.
    During closing argument, the prosecutor told the jury, “The call detail records,
    5601 [Larez’s phone number], shows a call to the victim at 10:40. And a minute later, a
    call to Angel Martinez at 10:41. Again, we know they were all together, Defendant
    Oakes, Defendant Cruz, and Alberto Larez, they were pinging off the same tower in
    Vallejo.” In fact, while, as previously mentioned, the prosecutor had cellphone records
    for Larez and Oakes showing their phones were using the same cell tower on the morning
    32
    of Chacon’s murder, the prosecutor was unable to obtain any records for Cruz on that
    date.
    Cruz’s trial counsel did not object to the misstatement, but raised the absence of
    Cruz’s cellphone records in his closing argument: “[D]o you know who else did not drag
    Ruben Cruz into this? The Government’s . . . own phone expert—cell phone expert—
    doing all those fancy high-tech things about phones.” The government’s expert, Cruz’s
    trial counsel reminded the jury, testified about only three cellphone numbers on the day
    of the shooting, and then trial counsel said, “Who were those numbers? Martin Chacon,
    Oakes, and ‘Bird’ [Larez]. Who’s not included in that? Ruben Cruz.” Far from
    disputing this, the prosecutor acknowledged in his rebuttal argument that the police were
    unable to obtain Cruz’s cellphone records.
    Because Cruz did not object to the prosecutor’s statement concerning his
    cellphone records, he has forfeited any direct claim of prosecutorial misconduct. “To
    preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make
    a timely objection, make known the basis of his objection, and ask the trial court to
    admonish the jury.” (People v. Brown (2003) 
    31 Cal.4th 518
    , 553.) Failure to object and
    request a curative admonition will be excused only if an objection would have been futile
    or an admonition would not have cured the harm. (People v. Daveggio and Michaud
    (2018) 
    4 Cal.5th 790
    , 853.) Cruz does not argue that his failure is excused in these ways.
    We therefore conclude that Cruz has forfeited any direct claim of prosecutorial
    misconduct.
    Cruz argues that by failing to object to the prosecutor’s comments, his trial
    attorney rendered ineffective assistance that was so prejudicial that his convictions must
    be reversed. This argument is unpersuasive. As noted above, there is a strong
    presumption that trial counsel acted within the wide range of reasonable professional
    assistance especially where, as here, there is no evidence in the record concerning the
    reason for counsel’s choice. (Strickland, 
    supra,
     466 U.S. at p. 689; Kelly, 
    supra,
     1
    33
    Cal.4th at p. 520.) Here, there is no evidence why Cruz’s counsel chose not to object to
    the prosecutor’s misstatement, but counsel reasonably may have decided that the most
    effective way to deal with the prosecutor’s misstatement was to correct it in his own
    closing argument, and especially in light of the prosecutor’s acknowledgement that the
    police were unable to obtain Cruz’s cellphone records, we cannot say that this was an
    unreasonable tactic. Accordingly, we conclude that counsel’s failure to object did not
    constitute constitutionally deficient performance.
    3. Cumulative Error
    Cruz contends that the cumulative effect of the trial court’s errors and the
    ineffectiveness of his trial counsel prejudiced him and warrants reversal of the judgment.
    As we have concluded that there was no error or ineffectiveness, there is nothing to
    cumulate and this argument fails.
    E. Sentencing Issues
    Defendants challenge several aspects of their sentences. Cruz and Oakes contend
    that the sentences imposed on them for participating in a criminal street gang must be
    stayed under section 654 because those convictions were based on the murder of Chacon,
    the same conduct underlying their murder convictions. Cruz also contends that his
    abstract of judgment does not accurately reflect the actual custody days awarded by the
    trial court. Finally, Martinez contends (and the Attorney General concedes) that the trial
    court imposed an excessive sentence for his attempted murder conviction arising out of
    the nightclub shooting. Because we are vacating defendants’ convictions on the criminal
    street gang participation charges in light of Assem. Bill 333, defendants are entitled to
    full resentencing on remand. (See People v. Buycks (2018) 
    5 Cal.5th 857
    , 893 [“when
    part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing
    as to all counts is appropriate, so the trial court can exercise its sentencing discretion in
    light of the changed circumstances’ ”].) We therefore leave the sentencing issues raised
    by defendants for the trial court to consider on resentencing.
    34
    III. DISPOSITION
    The judgments in H047687 and H047386 are reversed. The matters are remanded
    to the trial court with directions to vacate the convictions of defendants Martin, Cruz, and
    Oakes on count 1 of the indictment (Pen. Code, § 186.22, subd. (a)) and to vacate all
    gang-related special circumstances and gang-related enhancements. The prosecutor may
    elect to retry defendants on the vacated count, the gang-related special circumstances, and
    the gang-related enhancements. The trial court is also directed to vacate defendants’
    sentences and, after the prosecutor’s election and any retrial, to conduct a full
    resentencing.
    35
    ____________________________
    BROMBERG, J.
    WE CONCUR:
    ____________________________________
    GREENWOOD, P. J.
    ____________________________________
    GROVER, J.
    People v. Cruz et al.
    H047687
    People v. Martinez
    H047386
    

Document Info

Docket Number: H047386

Filed Date: 10/25/2024

Precedential Status: Non-Precedential

Modified Date: 10/25/2024