People v. Wilson CA2/4 ( 2024 )

Filed 10/11/24 P. v. Wilson CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B326783
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA464321
v.
JOHMAR WILSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Drew E. Edwards, Judge. Reversed in part,
affirmed in all other respects.
Nancy J. King, 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, David E. Madeo and Viet H. Nguyen
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant and appellant Johmar Wilson of
murder, attempted murder, shooting at an occupied motor
vehicle, and being a felon in possession of a firearm. The incident
that gave rise to these convictions involved Wilson’s participation
in a retaliatory shooting of a rival gang member (Jermaine
Williams), who died as a result of his wounds, and the rival gang
member’s girlfriend (Jade Elliston), who survived. On appeal,
Wilson argues (1) the trial court erroneously instructed the jury
on a kill zone theory of attempted murder; (2) several of his
convictions are unsupported by substantial evidence; and (3) the
court erroneously admitted gang-related evidence. Because we
agree the trial court erred by instructing the jury on a kill zone
theory, we reverse Wilson’s attempted murder conviction. We
affirm the judgment in all other respects.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an amended
information charging Wilson with the murder of Jermaine
Williams (Pen. Code,1 § 187; count one); the attempted murder of
Jade Elliston (§§ 664/187, subd. (a); count two); shooting at an
occupied motor vehicle (§ 246; count three); and being a felon in
possession of a firearm (§ 29800, subd. (a)(1); count four). The
amended information further alleged Wilson committed the
murder and attempted murder willfully, deliberately, and with
premeditation. (§ 189, subd. (a); § 664, subd. (a).) The jury
convicted Wilson on all counts and allegations. The trial court
sentenced Wilson to 32 years to life plus 8 months in state prison.
1 All further undesignated statutory references are to the
Penal Code unless otherwise specified.
2
The sentence consisted of a term of 25 years to life on count 1; 7
years to life on count 2; and 8 months on count 4. The trial court
stayed sentencing on count three under section 654.
Wilson timely appealed.
FACTUAL BACKGROUND
The parties are familiar with the facts underlying Wilson’s
convictions, so we need not recount them in great detail. (People
v. Garcia (2002) 97 Cal.App.4th 847, 851 [unpublished opinion
merely reviewing correctness of trial court’s decision “does not
merit extensive factual or legal statement”].) We instead provide
the following summary.
Prosecution evidence
Wilson was a member of a gang known as the Fruit Town
Brims (Brims). Kenneth Durden was Wilson’s “big homie” (i.e.,
mentor) in the gang. On February 23, 2016, Durden was killed at
Harvard Park, a stronghold for the Brims gang. Wilson later told
police he was present when Durden was killed.
A memorial for Durden was held at his grandmother’s
house two days after his death. Wilson attended the gathering
and became emotional. Someone named “Baby Nut” called one of
the men at the memorial service to go to a Buffalo Wild Wings
restaurant located on South Crenshaw Avenue. That evening,
Wilson received a message on social media, warning Wilson:
“[D]on’t get caught up in no emotions about [Durden] and hop in
one of them cars and get caught up. Please don’t. It ain’t what we
do . . . . You got too much of a bright future ahead of you, homie.
Think first.” Wilson replied, “I respect that.” These messages
were apparently in reference to a plan to kill Jermaine Williams,
a member of the Neighborhood 40s Rollin Crips, in retaliation for
3
Durden’s death. Wilson apparently ignored the advice contained
in the messages, and instead went with several men to the
restaurant. Montel Egans was part of the group. Wilson knew
Egans had a gun. Wilson drove his white Infiniti to the Buffalo
Wild Wings. Williams was at the restaurant with his girlfriend,
Jade Elliston.
Wilson entered the restaurant and was inside for less than
15 minutes. Although he later told police he entered the
restaurant to have a drink and talk with some women,
surveillance video footage from the restaurant did not show him
order anything to drink or socialize with any women.2 The video
showed Williams walk past Wilson, but the two men did not
interact.
Video footage showed Williams drove away in his BMW
with Elliston. Wilson’s Infiniti followed, but the occupants are not
visible in the video. Ernest Reyes, who was part of Wilson’s
group, also followed Wilson and Williams in a white truck. There
was no video footage of the actual shooting. Wilson later told
police that Egans, who was seated in the back seat of Wilson’s
car, fired a gun at Williams’s car.
Concepcion Rivera was driving near where the shooting
occurred. She heard a “pop,” then a black BMW hit her Honda
Accord. Frank Ware was also driving close to where the shooting
occurred. He saw seven gunshots fired from the Infiniti, and he
went to the BMW to help the victims as the Infiniti drove away.
Ware found Williams unconscious behind the steering wheel. He
had suffered multiple gunshot wounds and his breathing was
2 The prosecution’s theory at trial was Wilson entered the
restaurant to confirm Williams was inside so the group could
prepare to attack him once he left.
4
labored. Elliston, seated in the passenger seat, was screaming.
Police arrived at the scene less than 10 minutes later. Williams
suffered four gunshot wounds, including one fatal wound to his
back. Elliston suffered two gunshot wounds but survived.
Police recovered ten .40 caliber bullet casings at the scene.
The BMW had multiple bullet impacts on it, including on the
driver’s side door frame, the hood, one of the front headlights,
and the windshield. All of the bullet impacts were on the driver’s
side of the car.
Police were later informed that a person who drove a white
sports utility vehicle that was seen in surveillance footage
captured at the time of Durden’s murder was a member of the
Brims who had a gang moniker containing an “S.” Because
Wilson’s moniker was “Baby Stretch,” he became a person of
interest. Police then discovered Wilson had purchased a white
Infiniti FX35 in November 2015. Cell phone records placed
Wilson’s phone in the vicinity of the Buffalo Wild Wings shortly
before the shooting and in the vicinity of the shooting while it
occurred. Records also showed Egans’s cell phone was at the
murder scene.
Police arrested Wilson and placed him in a jail cell with
Egans. Wilson told Egans, “They got my car.” Egans replied the
police were “faking” it or trying to scare Wilson. Egans wanted
Wilson to be quiet.
The police interviewed Wilson twice. During his first
interview, Wilson admitted he had been at Harvard Park when
Durden was killed, though he claimed the killing was not gang-
related and denied owning or driving a car that day. When shown
a picture of the white Infiniti, Wilson claimed he had never seen
or been inside the car. When confronted with records showing the
5
car had been registered in his name, Wilson insisted he was not
allowed to own a car because of his driving record, and could not
explain documents showing he had purchased the car. When
confronted with evidence that his cell phone was near the Buffalo
Wild Wings around the time of the murder, Wilson again had no
explanation.
After the first interview, Wilson’s girlfriend Angelina Green
told police that Wilson owned the white Infiniti. Police showed
Wilson video footage of Green’s statements and interviewed him
a second time. Wilson then admitted he had owned the white
Infiniti. He said he got rid of the car because it was involved in a
murder on Western Avenue.3 Wilson continued to deny that he
went to Buffalo Wild Wings. Wilson instead claimed that Egans
used Wilson’s car to go to the store while Wilson’s cell phone was
in the car.
Wilson eventually admitted he drove his Infiniti to the
Buffalo Wild Wings. He claimed that he grabbed a drink and
chatted with some women inside the restaurant. He also claimed
that, when the shooting occurred, he was in Reyes’s white truck
because he knew Egans was armed. Wilson said he saw Egans
fire a gun from the back seat of his car. Wilson claimed he did not
know why Egans committed the shooting.
The prosecution called gang experts, one of whom testified
the Buffalo Wild Wings was in territory claimed by Black P-
Stone, a gang that was friendly with the Brims (Wilson’s gang).
The Brims are a rival gang of the Neighborhood 40’s Rollin Crips
(Williams’s gang). The expert also testified that if a gang member
is harmed by a rival gang member, there would be an expectation
that the harmed gang member’s gang would retaliate.
3 Williams was murdered on Western Avenue.
6
Defense evidence
Dr. Robin Campbell evaluated Wilson and opined that he
suffered from post-traumatic stress disorder and mild intellectual
disability.
DISCUSSION
I. Wilson’s attempted murder conviction is reversed
because the trial court prejudicially erred in
instructing the jury on a kill zone theory of liability
Wilson argues his attempted murder conviction must be
reversed because the trial court prejudicially erred in instructing
the jury on a kill zone theory of liability. For the reasons
discussed below, we agree.
A. Background
At the close of evidence, Wilson moved to dismiss the
attempted murder charge, arguing there was no evidence
showing Wilson targeted Ellison or intended to kill everyone in
the car. The trial court disagreed, concluding that, broadly
speaking, the kill zone theory of attempted murder liability
should apply in situations like this, when two victims are shot
while sitting close together in a car.
On the attempted murder count, using an outdated version
of CALCRIM No. 600, the trial court instructed the jury, in
relevant part, as follows:
A person may intend to kill a specific victim or
victims and at the same time intend to kill everyone
in a particular zone of harm or “kill zone.” In order to
convict [Wilson] of the attempted murder of Jade
Elliston on concurrent-intent theory, the People must
prove that [Wilson] not only intended to kill Jermaine
7
Williams but also either intended to kill Jade
Elliston, or intended to kill everyone within the kill
zone. If you have a reasonable doubt whether
[Wilson] intended to kill Jade Elliston or intended to
kill Jermaine Williams by killing everyone in the kill
zone, then you must find [Wilson] not guilty of the
attempted murder of Jade Elliston.
As discussed in greater detail below, after our Supreme
Court in People v. Canizales (2019) 7 Cal.5th 591 (Canizales)
clarified the legal parameters surrounding the kill zone theory of
attempted murder liability, the Judicial Council revised
CALCRIM No. 600 to more closely conform with Canizales.
B. Applicable legal principles
“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.’ [Citation.] When a single act is charged as an attempt
on the lives of two or more persons, the intent to kill element
must be examined independently as to each alleged
attempted murder victim; an intent to kill cannot be ‘transferred’
from one attempted murder victim to another under the
transferred intent doctrine.” (Canizales, supra, 7 Cal.5th at p.
602.) “[T]he defendant must intend to kill the alleged victim, not
someone else . . . . Someone who intends to kill only one person
and attempts unsuccessfully to do so, is guilty of the attempted
murder of the intended victim, but not of others.” (People v.
Bland (2002) 28 Cal.4th 313, 328 (Bland).)
While a defendant’s intent to kill may not be transferred
among victims, it may exist as to several victims simultaneously.
This is called concurrent intent. The kill zone theory relates to
8
concurrent intent. (Canizales, supra, 7 Cal.5th at p. 603.) Under
that theory, the nature and scope of an attack directed at a
primary or targeted victim “may raise an inference that the
defendant ‘“intended to ensure harm to the primary victim by
harming everyone in that victim’s vicinity.”’” (Id. at p. 602.) It has
long been clear that such an inference is appropriate in situations
where a defendant uses an extreme amount of force to accomplish
his or her goal of killing the primary victim. The classic examples
are placing a bomb on a commercial aircraft on which the
primary target is a passenger, or attacking a group containing
the primary target with “‘automatic weapon fire or an explosive
device devastating enough to kill everyone in the group.’” (Bland,
supra, 28 Cal.4th at p. 330.) Because the outer bounds of the
doctrine remained undefined for some years, there was “potential
for the misapplication of the kill zone theory” to cases where the
inference was not proper. (Canizales, supra, 7 Cal.5th at p. 606.)
In Canizales, the Supreme Court clarified—and limited—
the circumstances under which a prosecutor may use the kill zone
theory. It held the kill zone theory “may properly be applied only
when a jury concludes: (1) the circumstances of the defendant’s
attack on a primary target, including the type and extent of force
the defendant used, are such that the only reasonable inference is
that the defendant intended to create a zone of fatal harm—that
is, an area in which the defendant intended to kill everyone
present to ensure the primary target’s death—around the
primary target[;] and (2) the alleged attempted murder victim
who was not the primary target was located within that zone of
harm.” (Canizales, supra, 7 Cal.5th at p. 607.) Under this
standard, the kill zone theory is not applicable where “‘the
defendant merely subjected persons near the primary target to
9
lethal risk’”; conscious disregard of persons proximate to the
intended target is insufficient to support application of the
theory. (Ibid.) In an appropriate kill zone case, “‘the defendant
has a primary target and reasons [that] he cannot miss that
intended target if he kills everyone in the area in which the
target is located. In the absence of such evidence, the kill zone
instruction should not be given.’” (Ibid.) Factors relevant to the
defendant’s intent to create a kill zone and the scope of such a
zone include “the circumstances of the offense, such as the type of
weapon used, the number of shots fired (where a firearm is used),
the distance between the defendant and the alleged victims, and
the proximity of the alleged victims to the primary target.” (Ibid.)
Canizales cautioned that “there will be relatively few cases in
which the theory will be applicable and an instruction
appropriate.” (Id. at p. 608.)
C. Analysis
We agree with Wilson that his conviction for the attempted
murder of Jade Elliston must be reversed in light of Canizales. As
Canizales cautioned, “trial courts must be extremely careful in
determining when to permit the jury to rely upon the kill zone
theory.” (Canizales, supra, 7 Cal.5th at p. 597.) “As past cases
reveal, there is a substantial potential that the kill zone theory
may be improperly applied, for instance, where a defendant acts
with the intent to kill a primary target but with only conscious
disregard of the risk that others may be seriously injured or
killed.” (Ibid.) “Accordingly, . . . trial courts should reserve the
kill zone theory for instances in which there is sufficient evidence
from which the jury could find that the only reasonable inference
is that the defendant intended to kill (not merely to endanger or
10
harm) everyone in the zone of fatal harm.” (Ibid., italics in
original.)
Applying these principles, we conclude the trial court erred
by instructing the jury on the kill zone theory. The evidence at
trial showed Egans fired 10 bullets, and the bullets mainly hit
Williams’s side of the car. Four bullets hit Williams and two hit
Elliston. Williams’s car had multiple bullet impacts on it,
including on the driver’s side door frame, the hood, one of the
front headlights, and the windshield. All the bullet impacts were
on Williams’s side of the car, not Elliston’s. It is not clear, on
these facts, that “there is sufficient evidence from which the jury
could find that the only reasonable inference is that the
defendant intended to kill (not merely to endanger or harm)
everyone in the zone of fatal harm.” (Canizalez, supra, 7 Cal.5th
at p. 597, italics in original.) In other words, although one
reasonable inference is that Wilson (and Egans) intended to kill
everyone in the zone of fatal harm, another reasonable inference
is Wilson (and Egans) acted with the intent to kill Williams but
with only conscious disregard that Ellison may have been
seriously injured or killed. (Ibid.) On this record, therefore, we
conclude the trial court erred by instructing the jury on the kill
zone theory. (Ibid.)
We also conclude the error was prejudicial. According to
Canizales, the applicable inquiry is whether “there is a
‘“reasonable likelihood”’ that the jury understood the kill zone
theory in a legally impermissible manner.” (Canizales, supra, 7
Cal.5th at p. 613.) In making this determination, the reviewing
court considers “the instructions provided to the jury and
counsel’s argument to the jury.” (Ibid.)
11
We agree with Wilson that the kill zone instruction
provided here was incomplete. It omitted language, which has
since been added to CALCRIM No. 600 in light of Canizales,
explaining “the People must prove that (1) the only reasonable
conclusion from the defendant’s use of lethal force, is that the
defendant intended to create a kill zone [around a primary
target]; and (2) [the alleged attempted-murder victim] was
located within the kill zone.” (See CALCRIM No. 600.) It also
omitted a list of circumstances, which has since been added to
CALCRIM No. 600, that jurors should consider “[i]n determining
whether the defendant intended to create a ‘kill zone’ and the
scope of such a zone[.]” (Ibid.) The instructions given here were
deficient in a manner similar to the instructions the Supreme
Court found deficient in Canizales—they did not adequately
define the term kill zone nor properly direct the jury to consider
certain relevant evidence regarding the circumstances of the
attack. (See Canizales, supra, 7 Cal.5th at p. 613.) Although the
prosecution’s closing argument did not compound the error,
because the instructions given did not fully define the legal lens
through which the jury was required to analyze the facts
presented, we conclude “there is a reasonable likelihood that the
jury understood the kill zone instruction in a legally
impermissible manner.” (Id. at p. 614.) The trial court thus
prejudicially erred by instructing the jury on the kill zone using
an incomplete and outdated version of CALCRIM No. 600.4
4 Although Canizales states the applicable prejudice
standard is whether it is reasonably probable the jury understood
the kill zone instruction in a legally impermissible manner, the
parties both assert, albeit for different reasons, that the
applicable prejudice standard is whether the use of the outdated
12
For the reasons discussed above, we reject the Attorney
General’s argument that the trial court correctly instructed the
jury using the incomplete and outdated version of CALCRIM No.
600. Additionally, because the erroneous kill zone instruction
affected Wilson’s substantial rights, we reject the Attorney
General’s argument that Wilson’s instructional error argument
should be forfeited on appeal because trial counsel did not object
to the use of the outdated version of CALCRIM No. 600. (§ 1259;
People v. Tran (2018) 20 Cal.App.5th 561, 565, fn. 2.)
II. Wilson’s murder and firearm possession convictions
are supported by substantial evidence
Wilson argues his murder and firearm possession
convictions are unsupported by substantial evidence. For the
reasons discussed below, we disagree.5
A. Substantial evidence review
In assessing Wilson’s argument, we review the record in
the light most favorable to the judgment to determine if there is
substantial evidence from which any rational trier of fact could
find each element of the crime beyond a reasonable doubt.
version of CALCRIM No. 600 was harmless beyond a reasonable
doubt. We need not decide which prejudice standard applies here,
because we conclude the error was prejudicial under both
standards.
5 Wilson also argues his attempted murder conviction is
unsupported by substantial evidence. Because, as explained
above, we reverse Wilson attempted murder conviction based on
instructional error concerning the kill zone, we need not address
whether his attempted murder conviction is supported by
substantial evidence.
13
(Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v.
Staten (2000) 24 Cal.4th 434, 460.) Substantial evidence is
evidence that is “‘reasonable in nature, credible, and of solid
value.’” (People v. Johnson (1980) 26 Cal.3d 557, 576.)
Substantial evidence includes circumstantial evidence and
reasonable inferences based on that evidence. (In re James D.
(1981) 116 Cal.App.3d 810, 813.) In reviewing a sufficiency claim,
we “presume in support of the judgment the existence of every
fact that the trier of fact could reasonably deduce from the
evidence.” (People v. Medina (2009) 46 Cal.4th 913, 919.) In
conducting this analysis, we do not substitute our own evaluation
of witness credibility for that of the trial court. (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206.) “Because we must draw all
inferences in support of the judgment, [a] defendant ‘bears an
enormous burden’ when challenging the sufficiency of the
evidence.” (People v. Vasco (2005) 131 Cal.App.4th 137, 161.)
B. Substantial evidence supports Wilson’s murder
conviction
Wilson first argues his murder conviction is unsupported
by substantial evidence. Specifically, he argues no reasonable
juror could have found beyond a reasonable doubt he knew Egans
intended to kill Williams, nor could any reasonable juror find he
had the specific intent to aid and abet the murder. We are
unpersuaded.
Aiders and abettors can only be convicted of first degree
murder under a direct aiding and abetting theory. (People v. Chiu
(2014) 59 Cal.4th 155, 166-167 (Chiu), superseded by statute in
part as stated in People v. Gentile (2020) 10 Cal.5th 830.) First
degree murder is the unlawful killing of a human being with
malice aforethought along with the additional elements of
14
willfulness, premeditation, and deliberation. (Chiu, supra, at p.
166.) In order to convict a defendant of first degree murder as a
direct aider and abettor, “the prosecution must show that the
defendant aided or encouraged the commission of the murder
with knowledge of the unlawful purpose of the perpetrator and
with the intent or purpose of committing, encouraging, or
facilitating its commission.” (Id. at p. 167.) In other words, a
direct aider and abettor to first degree murder must aid or
encourage the direct perpetrator in the commission of the murder
and act with his or her own willfulness, premeditation, and
deliberation. (Ibid.)
Applying these principles to this case, the jury could
reasonably convict Wilson of directly aiding and abetting
Williams’s murder. The record reasonably demonstrates Wilson
actively participated with his cohorts in a willful, deliberate, and
premeditated plan to kill Williams, apparently in retaliation for
Durden’s murder.
The record shows Wilson was upset about Durden’s
murder. It also shows that, on the evening when Williams was
killed, Wilson received a message on social media from a fellow
gang member, warning Wilson: “[D]on’t get caught up in no
emotions about [Durden] and hop in one of them cars and get
caught up. Please don’t. It ain’t what we do . . . . You got too
much of a bright future ahead of you, homie. Think first.” A jury
could reasonably conclude the message referred to a plan to kill
Williams.
An employee of Buffalo Wild Wings called Wilson’s cohorts
and told them to come to the restaurant. Three cars arrived
there: Wilson’s Infiniti, a white pickup truck, and a Nissan
Maxima. Egans never went into the restaurant and instead
15
waited outside. As noted above, Wilson told police he went inside
the Buffalo Wild Wings, though he said it was to have a drink
and talk with some women. The video footage from the
restaurant showed Wilson in the restaurant alone; it did not
show him order anything to drink or socialize with any women.6
Video footage also showed Wilson and his cohorts waited
for Williams to leave Buffalo Wild Wings then immediately
followed him. Reyes followed Williams in a white truck. When the
shooting happened, Egans was seated in the back seat of Wilson’s
car. Egans hung out the window and fired a gun into Williams’s
car. Wilson’s initial story to the police was that he did not own
the Infiniti, and he was not present for the shooting. He later
admitted he did own the Infiniti, but claimed Egans had
borrowed it to go to the store while Wilson’s cell phone was in the
car. Wilson acknowledged his car was used in the murder. He
eventually admitted leaving Buffalo Wild Wings with Egans and
witnessing the shooting, but asserted he was a passenger in
Reyes’s truck. Wilson claimed he did not want to be in the same
car as Egans because he knew Egans was armed. Wilson said he
saw Egans fire from the back seat of Wilson’s car. The jury could
reasonably conclude Wilson’s statements were not credible, and
that Wilson was in fact driving his car when the shooting took
place.
In light of the evidence showing this was a coordinated
retaliatory gang murder, that Wilson actively participated in it
6 Although Wilson argues in his reply that it is possible he
ordered a drink and spoke with women in the restaurant but the
surveillance cameras did not capture this, the jury could
reasonably conclude Wilson was untruthful and entered the
restaurant to confirm Williams was there so the group could
carry out its plan to later shoot him.
16
by confirming Williams was in the restaurant, and that Williams
drove Egans to commit the shooting,7 a reasonable jury could find
Wilson guilty of aiding and abetting first degree murder. (See,
e.g., People v. Anderson (1968) 70 Cal.2d 15, 26-27 [facts about
what the defendant did prior to the killing, motive for the killing,
and manner in which the killing was carried out may properly
sustain a finding of premeditation and deliberation]; People v.
Nguyen (2015) 61 Cal.4th 1015, 1055-1056 [jury could reasonably
infer that defendant in gang shooting knew of shooter’s intent,
shared that intent, and aided the shooter by spotting potential
targets]; People v. Mejia (2012) 211 Cal.App.4th 586, 634 [“one
who knows another wants to kill, intends to facilitate that killing,
and by action does so facilitate, necessarily intends to kill as
well”].)
C. Substantial evidence supports Wilson’s possession
of a firearm by a felon conviction
Nor are we persuaded by Wilson’s argument that his
firearm possession conviction is unsupported by substantial
evidence. As discussed above, the jury could reasonably conclude,
based on the evidence presented at trial, that Wilson drove Egans
to commit the shooting with knowledge that Egans had the gun.
The jury could thus reasonably conclude that Wilson, while in his
car with Egans, had joint dominion and control over the gun.
(See, e.g., People v Williams (2009) 170 Cal.App.4th 587, 625
[“Possession may be physical or constructive, and more than one
person may possess the same contraband. [Citation.] ‘Conviction
7 The prosecution, during closing argument, argued Wilson
was guilty of aiding and abetting first degree murder, either in
his role staking out Williams inside the restaurant, in his role
driving Egans to commit the shooting, or in both of those roles.
17
is not precluded . . . if the defendant’s right to exercise dominion
and control over the place where the contraband was located is
shared with another’”]; People v. Newman (1971) 5 Cal.3d 48, 53,
disapproved on another ground in People v. Daniels (1975) 14
Cal.3d 857, 862 [circumstantial evidence may reasonably support
a possession finding when contraband is found in a place
immediately accessible to defendant and subject to his joint
dominion and control with another defendant]; People v. Miranda
(2011) 192 Cal.App.4th 398, 410-411 [circumstantial evidence
reasonably supported the jury’s finding that the defendant had
joint dominion and control over a shotgun before it was thrown
out of a car in which he was a passenger].)
III. The trial court did not abuse its discretion by
admitting gang evidence
Wilson lastly argues the trial court prejudicially abused its
discretion by admitting gang evidence that was irrelevant and
unduly prejudicial. The Attorney General counters the trial
court’s admission of the gang evidence was not arbitrary nor
irrational, as the evidence was highly probative of Wilson’s
motive and intent to aid and abet the shooting. We agree with the
Attorney General.
A. Background
In a motion in limine, defense counsel objected to the
admission of gang-related evidence. The prosecution responded
the gang evidence was relevant to show Wilson’s motive for
participating in the murder of Williams in retaliation for
Durden’s death. Defense counsel countered the evidence was
inadmissible character evidence. In ruling to admit the evidence,
the trial court explained:
18
I have heard from both counsel in this case. I
am sure all counsel is aware gang evidence is highly
charged. There is the danger of prejudice [to Wilson]
if gang evidence is allowed in this case. The court has
to look at a two[-]step process.
First, pursuant to [Evidence Code, section
1101, subdivision (b)], whether or not there is a
motive and whether or not any of the factors involved
would allow gang evidence to come in, [the
prosecutor] says the People’s theory of the case is the
motive is that Mr. Wilson was a member of one gang
and there was a murder from another gang, and . . .
the alleged victim in this case was a member of the
rival gang . . . .
Motive is one of the exceptions that should
come in under [section] 1101(b) . . . .
The second step is under Evidence [Code,
section] 352, weighing whether or not the evidence
that should be brought in would be more prejudicial
to Mr. Wilson than probative. In light of the fact the
People’s theory [of the case is] this is a gang payback,
while there is some prejudice to Mr. Wilson, the
probative value does outweigh the prejudice to Mr.
Wilson.
Over the objection of the defense and based on
the offer of proof of [the prosecutor] as to what type of
gang evidence will be elicited during the case in chief,
the gang evidence will come in in this case.
19
B. Applicable Law
Under Evidence Code section 352, trial courts have the
discretion to exclude relevant evidence “if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” Evidence Code section 352 guards
against the admission of “evidence which uniquely tends to evoke
an emotional bias against defendant as an individual and which
has very little effect on the issues.” (People v. Rucker (2005) 126
Cal.App.4th 1107, 1119.)
We review for abuse of discretion a trial court’s
determination that evidence is admissible under Evidence Code
section 352. (People v. Doolin (2009) 45 Cal.4th 390, 437.) “Under
the abuse of discretion standard, ‘a trial court’s ruling will not be
disturbed, and reversal of the judgment is not required, unless
the trial court exercised its discretion in an arbitrary, capricious,
or patently absurd manner that resulted in a manifest
miscarriage of justice.’” (People v. Hovarter (2008) 44 Cal.4th 983,
1004 (Hovarter).)
“‘[E]vidence of gang membership is often relevant to, and
admissible regarding, the charged offense. Evidence of the
defendant’s gang affiliation—including evidence of the gang’s
territory, membership, signs, symbols, beliefs and practices,
criminal enterprises, rivalries, and the like—can help prove
identity, motive, modus operandi, specific intent, means of
applying force or fear, or other issues pertinent to guilt of the
charged crime.’” (People v. Ramirez (2022) 13 Cal.5th 997, 1095
(Ramirez).) “Such evidence is admissible even when a gang
enhancement is not charged, provided the probative value of the
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evidence is not substantially outweighed by its prejudicial effect.”
(Ibid.) “Gang evidence is relevant and admissible when the very
reason for the underlying crime, that is the motive, is gang
related.” (People v. Samaniego (2009) 172 Cal.App.4th 1148,
1167.)
C. Analysis
We conclude the trial court’s admission of gang evidence
was not an abuse of discretion. As the trial court correctly
explained, the gang evidence was highly probative of Wilson’s
motive for participating in the shooting. The gang evidence was
also highly probative on the question whether Wilson intended to
aid and abet the murder of Williams. (Ramirez, supra, 13 Cal.5th
at p. 1095 [gang evidence may be properly admitted to prove
motive and intent].) It is true that gang evidence is inherently
prejudicial. (See, e.g., People v. Williams (1997) 16 Cal.4th 153,
193 [“We have recognized that admission of evidence of a
criminal defendant’s gang membership creates a risk the jury
will improperly infer the defendant has a criminal disposition
and is therefore guilty of the offense charged”].) But here,
because the gang evidence was highly relevant on the issues of
motive and intent, it was not arbitrary nor irrational for the trial
court to conclude it was admissible under Evidence Code section
352. (See Hovarter, supra, 44 Cal.4th at p. 1004; Ramirez, supra,
13 Cal.5th at p. 1095.)
Because the gang evidence was properly admitted, we
reject Wilson’s assertion that it violated his right to a fair trial
under the Fourteenth Amendment. Additionally, we reject
Wilson’s suggestion that remand is warranted because no gang
allegations were charged in this case. (Ramirez, supra, 13 Cal.5th
at p. 1095 [“[Gang] evidence is admissible even when a gang
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enhancement is not charged, provided the probative value of the
evidence is not substantially outweighed by its prejudicial
effect”].)
DISPOSITION
Wilson’s attempted murder conviction is vacated. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, P. J.
We concur:
MORI, J.
ZUKIN, J.
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