People v. Fisher CA2/4 ( 2024 )

Filed 10/11/24 P. v. Fisher CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B330240
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. B482961)
v.
FRANK LEE FISHER, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Gustavo N. Sztraicher, Judge. Affirmed.
Kathy R. Moreno, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
Appellant Frank Lee Fisher, Jr. appeals from his conviction
for first degree murder. He contends the trial court erred by (1)
admitting expert testimony about factual misperceptions by gang
members; (2) denying his request for a pinpoint instruction
regarding prosecution witnesses’ identification of people and
objects in surveillance video footage; and (3) failing to adequately
inquire into possible juror bias or declare a mistrial after
excusing two jurors who expressed concern for their safety. We
affirm.
PROCEDURAL HISTORY
An amended information filed January 11, 2023 charged
appellant with the willful, deliberate, and premeditated murder
of Allen Bowen (Pen. Code, § 187, subd. (a))1; the attempted
willful, deliberate, and premeditated murder of T.B.2 (§§ 187,
subd. (a), 664, subd. (a)); and the unlawful possession of a firearm
by a felon (§ 29800, subd. (a)(1)). The amended information
alleged that all three crimes were committed for the benefit of, at
the direction of, and in association with a criminal street gang
with the specific intent to promote, further, and assist in criminal
conduct by gang members. (§ 186.22, subds. (b)(1)(A) [felon in
possession], (b)(1)(C) [murder and attempted murder].) The
amended information further alleged that appellant personally
used a firearm during the commission of the murder and
attempted murder (§ 12022.53, subd. (b)), and a principal
personally and intentionally discharged a firearm and
proximately caused great bodily injury and death to victim
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 We refer to the surviving victim by initials to protect his
privacy. (See Cal. Rules of Court, rule 8.90(b)(4).)
2
Bowen during both crimes. (§ 12022.53, subds. (d), (e)(1).) The
amended information also alleged several aggravating
circumstances enumerated in California Rules of Court, rule
4.421(a).
Appellant proceeded to jury trial on the substantive
charges and firearm allegations; the court bifurcated trial of the
gang enhancement and aggravating circumstance allegations.
During trial, the prosecutor and defense counsel stipulated to
excuse for cause two jurors who separately reported that they
feared for their safety. The trial court denied defense counsel’s
motion for mistrial and request for a hearing to determine
whether any other jurors were affected. It instructed the
remaining jurors to alert the court immediately if anything
affected their ability to be fair and impartial. None raised
concerns.
The jury found appellant guilty of first degree murder. It
was unable to reach a verdict on the remaining charges and
firearm allegations. The trial court declared a mistrial on the
charges and personal use firearm allegation and granted the
prosecution’s subsequent motion to dismiss the gang and
principal use firearm allegations in the interests of justice.
Appellant waived jury trial of the aggravating circumstance
allegations. The court found true allegations that the “crime
involved great violence, great bodily harm, threat of great bodily
harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness”; the “victim was particularly
vulnerable”; and the “manner in which the crime was carried out
indicates planning, sophistication, or professionalism.”
(Cal. Rules of Court, rule 4.421(a)(1), (a)(3), (a)(8).)
3
The trial court sentenced appellant to a term of 25 years to
life. It awarded him custody credit, imposed various fines and
fees, and ordered him to pay $6,408.90 in victim restitution.
Appellant timely appealed.
FACTUAL BACKGROUND
I. Prosecution Evidence
A. Murder of Traveon Winkler
Traveon Winkler was a member of the Rollin’ 30s Harlem
Crips gang (Rollin’ 30s). On August 29, 2019, Winkler was
fatally shot near the corner of 75th and Flower Streets in Los
Angeles, within territory claimed by a different gang, the Seven
Four Hoovers (Hoovers). The person arrested for shooting
Winkler was a member of the Hoovers. However, law
enforcement ultimately determined, several weeks later, that the
murder was not committed at the direction or for the benefit of
the Hoovers. Los Angeles Police Department (LAPD) detective
Patrick Howell testified that it “appeared to be a crime of
opportunity” during which the perpetrator attempted to take a
large sum of money from Winkler.
B. Perception That the Murder was Gang-Related
At the time of Winkler’s murder, LAPD officer Chad Scott
was assigned to the Southwest Division gang enforcement detail;
his duties included monitoring the activities of the Rollin’ 30s.
Appellant was a member of the Rollin’ 30s.
A few hours after Winkler’s murder, Scott went to Martin
Luther King, Jr. Park (MLK Park), a Rollin’ 30s stronghold. He
encountered “a large number of Rollin’ 30s[,] more than a normal
given day.” Scott testified that the Rollin’ 30s in MLK Park were
aware that Winkler had been killed in the LAPD’s 77th Division,
which included Hoover territory. Several young Rollin’ 30s
4
members “kept throwing around the term ‘Snoover,’” which Scott
testified was a derogatory term for members of the Hoovers gang.
Scott concluded from their remarks that “Snoover did this” and
“fuck Snoovers” that “they thought that a Hoover was the one
that was involved in Traveon Winkler’s shooting.”3
Although the Hoovers and Rollin’ 30s did not share
territorial boundaries, Scott testified they were rivals because the
Hoovers did not align with either the Crips or the Bloods and
considered themselves “everybody killers.” LAPD officer Michael
Barragan, who spent five years assigned to the gang enforcement
detail monitoring the Hoovers, also testified that the Hoovers
were “everybody killers.” LAPD detective Patrick Farmer
testified that the Hoovers were rivals of the Rollin’ 40s Harlem
Crips, a gang with whom the Rollin’ 30s shared a territorial
border and generally aligned. Farmer opined that “because of the
alliance between the Rollin’ 30s and the Rollin’ 40s, a Rollin’ 30
and a Hoover would not get along.”
Scott opined that the Rollin’ 30s perceived Winkler was
killed by the Hoovers because he was murdered within Hoover
territory. He opined that “perception” is important in the context
of gangs, to the extent that “[p]erception to them is 100 percent
reality,” both as to the way they want to be perceived and how
they perceive the actions of others. He stated that gang members
“don’t want to be seen as weak” and “need to be perceived and
looked upon if they’re going to follow through”; “they’re going to
stand up and defend themselves and not be seen as weak.” Scott
3 On cross-examination, Scott conceded that he did not
document hearing these statements about Snoovers, and he was
unaware of other evidence such as social media posts or text
messages blaming the Hoovers for Winkler’s death.
5
testified, “[i]f it is perceived that they were disrespected by
others, then they have to act as if they were disrespected.”
Scott further testified that perception of external events
was also important in gang culture. If a gang member is a victim
of a crime, the location of the crime “will go back to the
perception of who is the potential suspect in that crime.” He
opined that if a gang member is the victim of a crime while they
are within a rival territory, other gang members are “going to
perceive that that is due to the fact that they were in rival
territory,” and the “rival gang is responsible for that crime.”
Scott testified that gang members “do their own
investigation to determine who committed the crime,” but they
lack the ability and resources to investigate to the extent law
enforcement does, such as by interviewing witnesses, obtaining
surveillance video, or forensically analyzing evidence. Gangs
thus act in light “of the facts that they have at that time and
what makes most logical sense to them at that time given the
circumstances they had that took place.” They also “may perceive
something incorrectly,” which Scott called “misperception.”
Misperception could be “catastrophic in the gang culture” because
“they take things from zero to a hundred so fast,” and “that
culture is very much eye for an eye, life for a life. If one of their
own is taken, they’re going to seek out retaliation of [sic] taking
one of their own.” Scott testified this could lead to “escalating a
snowball of a situation of two gangs not having the right set of
facts because they’re not law enforcement and their perceived
reality of what occurred and their sign of being disrespected . . .
they’re trying to show respect for the one that’s passed and
killed.”
6
In this instance, Scott opined, the Rollin’ 30s correctly
perceived that Winkler was killed by a Hoover, but “were wrong
in the sense that that crime was not really a gang-related crime
because it was over money.” He opined that appellant specifically
could harbor the misperception “that simply because Winkler was
killed in the Hoover territory, that he must have been killed by
the Hoovers.”
C. Memorials to Winkler
In the days following Winkler’s death, two memorials were
erected to commemorate him. One memorial, which featured
candles and Rollin’ 30s slang, was located in MLK Park. Scott
testified that memorials “always” were set up in gangs’ “safe
zone[s]” so “members can show up to that location and . . . show
respect for their recently deceased person.” He continued, “there
will be a larger presence at that location than typically normal.
They will be dressed down in their gang clothing much more than
they normally do, really showing their support for that gang.”
Scott additionally testified “there’s a lot of drinking, a lot of
alcohol, a lot of heightened emotions, whether it be bits of anger
then quickly followed by bits of extreme sadness. There’s a lot of
remorsing [sic], talking about how they knew the person.”
A second memorial was set up in Hoover territory, near the
location where Winkler was killed. Scott did not know who
erected the memorial. He testified that a memorial to a deceased
gang member located within the territory of a different gang was
a sign of disrespect to the gang that controlled the territory.
Video clips retrieved from appellant’s cell phone depicted the
memorial near the site of Winkler’s murder.
Text messages dated August 31, 2019 retrieved from
appellant’s cell phone referred to the Winkler memorial in MLK
7
Park, which was also depicted in video clips retrieved from the
phone. On September 2, 2019, another Rollin’ 30s member texted
appellant that the “Stains,” a derogatory term for Rollin’ 30s
rivals the Black P Stones, had “kicked over the candles” at the
MLK Park memorial, and “[t]his shit got the hood looking weak.”
Scott testified that “hood” referred to the Rollin’ 30s, and their
concern about looking weak related to respect they received from
other gangs and the community. Subsequent texts from
appellant expressed dissatisfaction with how younger members of
the gang had been responding to such events, including, “[b]ut
even if they go, the[y] not going to do it, right? Gone be
complaining.”
D. Murder of Bowen and Attempted Murder of
T.B.
LAPD detective Scott Farmer testified about surveillance
video footage taken on September 3, 2019 that was introduced
into evidence. Video from MLK Park showed Rollin’ 30s gang
member Kevin Green arriving in a Jeep Compass Trailhawk
around 5:14 p.m. on September 3, 2019. The white Jeep had
several distinctive features, including a black roof, black stripes
on the hood, and black trim around the wheel arches. Appellant
arrived at MLK Park around 5:38 p.m. in a “red-colored” Chrysler
Aspen SUV. He was wearing a white shirt, black sweatpants
with a white mark on the left leg, and black shoes with large
white lettering on the sides. Surveillance video showed appellant
walking toward the area of the Winkler memorial.
Surveillance video showed appellant and Green walking to
the Jeep around 9:29 p.m. Appellant got into the driver’s seat
and Green walked around to the passenger side. Appellant was
still wearing the white shirt. Another person, whom Farmer
8
identified as Rollin’ 30s member Lydell Herd, got into the front
passenger seat, got out and walked away, and then came back a
few minutes later. Footage from earlier in the evening showed
Herd was wearing a “dark-colored t-shirt with an ‘A’ on it,” gray
sweatpants, and black and white shoes. When he got in the Jeep,
however, he was wearing a black hooded sweatshirt over “the
same gray sweatpants and the black-and-white tennis shoes.”
Based on his review of the footage, Farmer did not believe Green
or anyone else was in the Jeep with appellant and Herd. Farmer
testified that surveillance video showed Green leaving MLK Park
around 10:55 p.m. in the Chrysler Aspen in which appellant had
arrived.
The Jeep left MLK Park around 9:35 p.m., making a right
turn onto eastbound 39th Street. Video clips from numerous
surveillance cameras and LAPD “pole cameras” showed what
Farmer testified was the same, distinctive Jeep driving from the
area of Slauson and Hoover to a liquor store at 76th Street and
Figueroa, about one and a half blocks from where Winkler was
killed.
Surveillance video from the liquor store showed victims
Bowen and T.B. walking across 76th Street at Figueroa around
10:29 p.m. The video also showed a white SUV with a dark roof
and black trim around the wheel arches driving southbound on
Figueroa. The SUV turned right, onto westbound 76th Street,
and Bowen and T.B. entered the liquor store. An SUV with
similar features drove east on 76th Street shortly thereafter.
Farmer testified the SUV’s new direction of travel was
“consistent with the path of travel that Mr. Bowen and [T.B.]
walked as they were walking into the liquor store.”
9
At 10:32 p.m., Bowen was standing outside the liquor store,
apparently waiting for T.B., who was still inside. At 10:33 p.m.,
two people wearing hooded sweatshirts approached the liquor
store on foot. One of them was wearing dark-colored pants with a
Nike swoosh on the left leg and shoes with the word “AIR” spelled
out on the side. After T.B. exited the store, Farmer testified, the
person in the AIR shoes “appears to have produced some sort of
firearm” and pointed it at T.B. The other person in a hooded
sweatshirt, who was wearing gray sweatpants and shoes with a
white toe cap, was also holding a gun. At approximately 10:34
p.m., a “muzzle flash” came from the latter person’s gun, and
Bowen “collapsed backwards onto the sidewalk.” T.B. went back
inside the liquor store, and the two individuals in the hooded
sweatshirts fled eastbound on 76th Street. T.B. emerged from
the liquor store at approximately 10:36 p.m. and walked
southbound on Figueroa.
At trial, T.B. initially denied being at the liquor store or
knowing Bowen, but eventually admitted he was depicted on the
liquor store surveillance video and was scared at that time. He
testified that he did not remember if anything happened at the
liquor store on September 3, 2019. Barragan testified that T.B.
was a member of the Hoovers.
Jaela Alvarez, whose boyfriend was a friend of T.B.’s,
testified that she lived a block away from the liquor store. On the
night of September 3, 2019, T.B. banged on her door frantically.
He was crying and threw himself on the floor. Alvarez testified
that T.B. told her “they killed him.” T.B. also told her that he
(T.B.) said “this is Hoover Street” when he came out of the store,
and “then, after that, the people started shooting, and he just ran
to my house.” On cross-examination, Alvarez said that T.B. told
10
her “some ‘n’ words from Harlem shot and killed” Bowen. She
admitted she had not said anything about Harlem at the
preliminary hearing, but said she mentioned it to detectives the
day after the shooting.
E. Investigation
LAPD officers responded to a call about a shooting at the
liquor store. Bowen was lying on the ground, unresponsive and
apparently dead. A small folding box cutter was next to him, as
were expended cartridge casings.
A deputy medical examiner opined that Bowen died of
multiple gunshot wounds. One gunshot entered Bowen’s
shoulder, traveled through his lung, and lodged in his spine.
Another entered through his back and “passe[d] through mostly
soft tissue.” A third struck his forearm. The deputy medical
examiner opined that the manner of death was homicide. On
cross-examination, he testified that a toxicology screening
revealed marijuana metabolites, methamphetamine, and
amphetamine in Bowen’s blood.
The officers who responded to the scene immediately
canvassed the area for surveillance video. They ultimately
collected approximately 50 hours of video from a broader area, as
discussed above. Detective Farmer noticed the SUV in the liquor
store video, used Google to determine the make and model, and
used data from a license plate reader to determine that the SUV
was a rental car. He also noted that a similar SUV appeared in
several of the surveillance videos. Farmer visited the rental car
lot and photographed the SUV, a “predominantly white” Jeep
with “a large black stripe on the hood,” a black roof, and black
trim around the wheel arches.
11
Detective Farmer testified that he spoke to Alvarez
immediately after the shooting and again the following day.
During the latter interview, she told Farmer that T.B. “told her
that Allen Bowen had told him that the people who shot Mr.
Bowen had banged Harlem on them prior to the shooting.”4
On the morning of October 24, 2019, the LAPD executed a
search warrant at appellant’s apartment; appellant was not
present. Police were looking for Nike sweatpants and AIR shoes,
both of which they found in appellant’s bedroom. Farmer
testified that the recovered sweatpants and shoes were
“consistent with the pants and shoes seen on the surveillance
video at King Park that Mr. Fisher is wearing” and with those
worn by one of the individuals who was at the liquor store on
September 3, 2019. The LAPD also executed a search warrant at
Herd’s home on October 24, 2019. They recovered a t-shirt with
an “A” on it from a bag inside Herd’s cousin’s car.
Police arrested appellant on November 26, 2019. They
seized his cellphone and extracted the text messages, photos, and
videos described above. Additional photos showed appellant with
Kevin Green, and one showed him wearing black pants with a
Nike logo on the left leg. Photos extracted from Herd’s phone
showed Herd wearing shoes similar to those worn by the suspect
who shot Bowen at the liquor store.
II. Defense Evidence
Appellant’s half-brother Patrick Bowden testified that
appellant was at the laundromat when the search warrant was
4 At the request of the defense, the court instructed the jury
that it could only consider the suspects’ alleged statements for
the limited purposes of evaluating the suspects’ state of mind,
motive and intent, and identity.
12
executed at the family’s apartment. One of appellant’s family
members owned a red Chrysler Aspen.
A gang expert, Martin Flores, testified that he had
interviewed thousands of gang members and analyzed their
social media and phone calls. He was familiar with both the
Rollin’ 30s and Hoover gangs. Flores testified that “there’s been
no documentation to show that they are actual rivals,” and,
similarly, no social media indicating a rivalry. Flores also
testified that he disagreed that the Rollin’ 30s’ alliance with the
Rollin’ 40s would lead them to view the Hoovers as rivals. Flores
opined that the Winkler memorial within Hoover territory would
not be viewed as a sign of disrespect because it was a memorial
and “there was no tension between the Hoovers and the Rollin’
30s.” He further opined that, in the absence of an ongoing
conflict between two gangs, “the mere fact that a member of gang
1 is killed in the area of gang 2” would not lead gang 1 to believe
gang 2 was responsible for the killing.
Forensic audio/video expert Michael Jones reviewed
surveillance video from MLK Park, “numerous videos of a white
car driving down the street,” and video of the shooting of Bowen.
Some videos of the vehicle were only five frames per second,
which made them “very soft or out of focus.” The video from the
liquor store was in black and white, and the colors of objects and
clothing appeared different in different lighting. Jones knew that
a lottery sign in the video was teal, and used that as a
benchmark to compare gradations of the clothing worn by the
suspects in the video. Jones opined that “[b]ecause of the lighting
and the video is in black-and-white, it’s impossible to tell the
colors of the clothing in the video.”
13
Appellant also introduced documents from Nike showing
how many pairs and colors of pants and shoes similar to those
seized from appellant were sold around the relevant time period.
DISCUSSION
I. Expert Testimony on Misperception
Appellant argues that the trial court erred by admitting
Scott’s expert testimony about perception and misperception in
the gang context. He contends the testimony was inadmissible
because it was common knowledge, was not based on facts in
evidence, rested on Scott’s personal view of the evidence rather
than his expertise, and was unduly prejudicial.
We review the trial court’s decision to admit expert
testimony for abuse of discretion. ( People v. Duong (2020) 10
Cal.5th 36, 60.) Under this deferential standard, we do not
disturb the court’s ruling unless its exercise of discretion was
arbitrary, capricious, or absurd and resulted in a miscarriage of
justice. (People v. Mataele (2022) 13 Cal.5th 372, 414.)
A. Background
From the outset of the case, the prosecutor theorized that
the liquor store shooting was committed in retaliation for the
Winkler murder in the same area a few days earlier. Defense
counsel maintained that the shooting could not be retaliatory,
because the Winkler murder was not gang-related. The trial
court denied an oral defense motion to dismiss the gang
allegation at the preliminary hearing, a section 995 motion to
dismiss the gang allegation due to insufficient evidence of who
killed Winkler and how, and a nonstatutory motion to dismiss the
gang allegation due to the prosecutor’s failure to disclose the
Winkler “murder book” showing that his murder was not gang-
related.
14
The defense subsequently moved in limine to exclude all
gang evidence. The defense argued that the prosecutor had no
evidence that appellant mistakenly believed the Winkler murder
was gang-related and was using gang evidence to fill the void,
thereby “inflaming this case” and prejudicing appellant. Defense
counsel requested a hearing to determine relevant preliminary
facts including whether the Rollin’ 30s and Hoovers were rivals
and what evidence the prosecutor intended to use to show that
appellant acted with a retaliatory motive. The prosecutor
asserted that gang evidence was not unduly prejudicial, was
“highly relevant for motive,” intent, and identity, and would serve
as “context evidence that allows the jury to understand not just
the significance of what happened but where it happened and
why it happened.” He acknowledged that the Rollin’ 30s and
Hoovers were “not traditionally rivals,” but asserted that the
murder of a Rollin’ 30s member in Hoover territory nevertheless
was “enough to provide the motive for the Rollin’ 30s, four days
later, to leave a memorial while the memorial is still going on for
Traveon Winkler to commit a retaliation at the almost exact
same spot where Winkler’s murder happened.”
The trial court ordered the prosecutor to make an offer of
proof “as to each foundational piece of evidence” establishing that
the shooters knew of Winkler’s death before the liquor store
shooting and “why individuals would retaliate and shoot under
this set of circumstances.” After hearing the prosecutor’s lengthy
presentation, and argument from both parties, the trial court
found that the prosecutor was “able to prove each building block .
. . via admissible evidence, be it some of it is by percipient
witnesses; some of it is by videotape; some of it is by photographs;
some of it is by LAPD gang experts.” Regarding the expert
15
testimony, the court ruled that “evidence of gang sociology and
gang psychology is beyond common experience,” and it was “not
speculation” for a gang expert to testify that, under the
circumstances of this case, “gang members whose . . . colleague
was killed in rival territory [would] go and retaliate.” The court
noted that the jury could decide whether such testimony was
credible. It further found the testimony relevant, and concluded
that the probative value outweighed the prejudice to appellant.
The court cautioned the prosecutor that it was “not going to allow
unfettered gang evidence.”
At trial, gang expert Scott testified about perception and
misperception as summarized above. In his brief, appellant
highlights two objections his counsel made to specific questions
on the grounds of speculation and “improper opinion as to the
defendant’s state of mind.” The court sustained both objections
and granted defense counsel’s motion to strike an answer Scott
gave during cross-examination.5
B. Analysis
1. The subject of the testimony was beyond
common experience.
Appellant first argues that “[w]hether appellant or the
Rollin’ 30s gang ‘misperceived’ the facts, or drew conclusions
based on the facts known to them is not a proper matter for
expert opinion by a gang expert” because it is “not beyond
common experience.” He contends that “drawing conclusions
based on the facts one has at the time is characteristic of people
in general,” a point he asserts is underscored by the prosecutor’s
use of examples involving rival colleges “even though Officer
5 The trial court also sustained at least one objection by the
prosecutor during defense counsel’s cross-examination of Scott.
16
Scott was clearly neither a psychologist nor an expert in college
sports.”
Evidence Code section 801, subdivision (a) limits expert
testimony to topics “sufficiently beyond common experience that
the opinion of an expert would assist the trier of fact.” (Evid.
Code, § 801, subd. (a).) “In general, ‘“[t]he subject matter of the
culture and habits of criminal street gangs . . . meets this
criterion.”’” (People v. Flores (2020) 9 Cal.5th 371, 398 (Flores),
quoting People v. Vang (2011) 52 Cal.4th 1038, 1044 (Vang); see
also People v. Martinez (2003) 113 Cal.App.4th 400, 413
(Martinez) [“Evidence of gang sociology and psychology is beyond
common experience and thus a proper subject for expert
testimony.”].) Thus, “a properly qualified gang expert may testify
about a wide range of issues, including a gang’s territory [and]
retaliation. . . .” (People v. Williams (2009) 170 Cal.App.4th 587,
609.) Additionally, “‘[c]ase law holds there where evidence of
gang activity or membership is important to the motive, it can be
introduced even if prejudicial. [Citations.]’” (Martinez, supra, 113
Cal.App.4th at p. 413.)
Scott’s opinion testimony that gang members would
perceive that a rival gang was responsible for a killing that took
place within that rival’s territory and then act upon their
perception, whether accurate or not, was outside the realm of
common experience. While the general concept of drawing a
conclusion based on the facts available at the time is a matter of
common experience, Scott’s testimony applied that concept in the
context of gang culture, which is not a matter of common
experience. Extraterritorial gang rivalries, retaliation, and the
importance of being perceived as strong are all matters beyond
common experience and were relevant to demonstrate a motive
17
for what otherwise appeared to be a random shooting. (See
People v. Huynh (2017) 65 Cal.App.5th 969, 981 (Huynh)
[“Evidence of the ‘significance of disrespect in gang culture’
[citation] and the ‘concept of payback within gang culture’
[citation] have been found relevant to show motive and intent in
murders committed for the benefit of a gang.”].) Appellant’s
assertions that Scott’s testimony on these matters was useless to
the jury and “nothing more than an expression of the expert’s
belief on how the case should be decided” are not persuasive. Nor
is his suggestion that hypotheticals involving college rivalries
were inappropriate.
Appellant cites Huynh for the proposition that “the habits
and culture of young men who socialize widely, including with
gang members, is not a matter ‘beyond common experience [such]
that the opinion of an expert would assist the trier of fact.’”
(Huynh, supra, 65 Cal.App.5th at pp. 984-985.) The case is not
on point. In Huynh, the “culture and habits of criminal street
gang members were not relevant to defendant’s motive and intent
because defendant did not belong to a criminal street gang, did
not have a history of violence, and did not associate with other
gang members within the meaning of committing crimes with
gang members.” (Id. at p. 985.) Instead, the evidence established
the defendant was associated with “Thien Dang,” which “was a
place or group of Vietnamese men who gathered to socialize and
drink.” (Id. at p. 982.) The concepts of a gathering place or a
social group that gathers to drink and socialize are common ones;
the sociology and retaliatory culture of gangs are not, and it was
undisputed that both Winkler and appellant belonged to the
Rollin’ 30s.
18
2. The testimony had an evidentiary basis.
Appellant next contends that Scott’s opinion testimony
regarding gang misperception lacked an evidentiary basis and
was merely his personal opinion. Specifically, he asserts that
“there was no evidence that appellant harbored a misperception
that served as his state of mind and motive to kill,” and Scott had
no personal knowledge of misperception by appellant or the
Rollin’ 30s. We reject these arguments.
Experts may rely upon information within their personal
knowledge (People v. Ramirez (2022) 13 Cal.5th 997, 1097), but
an expert opinion may not rest upon speculation, conjecture, or
assumed facts lacking evidentiary support. (Flores, supra, 9
Cal.5th at p. 398.) Likewise, hypothetical questions posed to an
expert “‘must be rooted in facts shown by the evidence. . . .’”
(Vang, supra, 52 Cal.4th at p. 1045.) However, hypotheticals
need not encompass all evidence within a case, and attorneys are
afforded “considerable latitude” in which facts to include when
posing them. (Id. at p. 1046.)
Here, although there was no direct evidence of appellant’s
mindset, evidence in the record supported Scott’s opinion that he
and the Rollin’ 30s blamed the Hoovers for the Winkler shooting
and acted in retaliation. Scott testified that he personally
witnessed several Rollin’ 30s members talking about “Snoovers”
in the hours following Winkler’s murder. The prosecutor also
introduced photos from appellant’s phone of both Winkler
memorials, demonstrating appellant’s awareness of them, and
text message exchanges involving appellant in which Rollin’ 30s
discussed “the hood looking weak” and expressed dissatisfaction
with young members’ responses to the situation. Notably,
appellant texted, “even if they go, the[y] not going to do it,
19
right?,” from which Scott and the jury could infer that appellant
intended to take action himself. Scott also testified that he was
aware of specific examples in which the Rollin’ 30s retaliated
against other gangs based on misperceptions and the location of
the precipitating event. This evidence provided a proper basis for
Scott’s opinions.
Appellant contends that People v. Memory (2010) 182
Cal.App.4th 835, 859, which held that a court erred by admitting
gang evidence to show that the defendant was disposed to act
violently, “is on point.” We disagree. There, the prosecutor
argued that the defendant acted with the requisite intent because
he belonged to a club whose members were “required to fight
when challenged, to not back down, and to carry knives.” (Ibid.)
The appellate court concluded the argument was improper
because “there was no evidence of such a club practice.” (Ibid.)
Here, as discussed above, the record contained evidence of past
misperceptions by the Rollin’ 30s and evidence regarding gang
culture toward retaliation generally. It also contained evidence
from which Scott and the jury reasonably could infer that
appellant, a Rollin’ 30s member, was aware of the location of
Winkler’s murder, was concerned about being perceived as weak,
and believed he had to take matters into his own hands.
To the extent appellant suggests the prosecutor failed to
ask proper hypothetical questions, there is no indication that his
counsel objected on this basis below. The only objections
appellant cites were (1) asserted on other grounds and (2)
sustained. We accordingly find any such argument forfeited.
(See People v. Boyette (2002) 29 Cal.4th 381, 450 [“[D]efendant
contends this was an improper hypothetical question. He failed
20
to object to this question, however, thereby forfeiting the
claim.”].)
3. The court did not abuse its discretion by
concluding the testimony was not unduly prejudicial.
Appellant’s final argument regarding Scott’s testimony is
that its “marginal value” was “greatly outweighed” by prejudice
to appellant. He asserts that the testimony impermissibly
“boosted the prosecution’s case by filling gaps in the evidence,”
particularly because “the evidence of identity was relatively
weak” and testimony from a police officer “often carries an aura
of special reliability and credibility.” He further suggests that
the testimony gave the jury the impression that the issues of
motive and identity were already decided and need not be
addressed during deliberations.
The trial court has broad discretion to exclude relevant
evidence “if its probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger
of undue prejudice, of confusing the issues, or of misleading the
jury.” (Evid. Code, § 352.) Evidence is not unduly prejudicial
merely because it is damaging to a party. Instead, evidence
should be excluded as unduly prejudicial when it is likely to
inflame the emotions of the jury and cause the jury to use it for
an illegitimate purpose. (People v. Doolin (2009) 45 Cal.4th 390,
439.)
Here, the evidence regarding misperception was highly
relevant to the disputed issues of motive, intent, and identity.
The trial court carefully weighed this relevance against the
“minimal” prejudice to appellant due to his gang association, and
concluded that the “probative value of the evidence substantially
outweighs any prejudicial effect.” Appellant has not
21
demonstrated that this was an abuse of discretion on the record
before us. Appellant introduced opposing expert testimony,
undermining his assertion that the jury was led to believe that
Scott’s testimony obviated the need for deliberation. Moreover,
the trial court instructed the jury with CALCRIM No. 332,
Expert Witness Testimony, which directed the jury to carefully
consider the expert opinions and advised that “you are not
required to accept them as true or correct.”
In short, we find no error in the court’s admission of Scott’s
testimony regarding misperception.
II. Denial of Pinpoint Instruction
Appellant contends the trial court erred by denying a
defense request for a pinpoint instruction on prosecution
witnesses’ identification of people and objects in surveillance
video footage. We conclude that the trial court correctly denied
the instruction as argumentative and duplicative of other
instructions.
A. Background
Surveillance video footage was a key component of the
evidence introduced at trial. Much of the footage came in
through detective Farmer, who identified appellant and others in
the videos and pointed out the white Jeep and other objects.
Defense counsel did not object to Farmer’s testimony or other
witnesses’ testimony about the videos.6
Toward the end of trial, defense counsel requested the
following pinpoint instruction: “In their testimony, some
6 This failure to object, which appellant concedes, precludes
appellant’s argument that Farmer’s testimony was inadmissible
because he lacked personal knowledge of appellant before
viewing the videos.
22
prosecution witnesses have identified various people and things
in the videos played in the trial. Such testimony is just the
opinions of these witnesses. You are not bound by these opinions,
and you may accept or reject them. Remember that you are the
sole judges of the facts and you should make your own
determination of the identification of the people and things.”
Defense counsel asserted that the video evidence was
critical and “there’s no harm done by focusing on the fact that the
jury is to make its own independent decision of what they viewed
in the videos.” The prosecutor responded that the instruction
was “one-sided,” and its subject matter was covered by CALCRIM
Nos. 302, 315, and 332. The trial court found the instruction was
argumentative because it “asks the jury to assess one party’s
witnesses differently than the others”; was “inappropriate”
because it “lessens the value of the evidence” by characterizing it
as opinions; and “is covered by the other instructions.” The trial
court denied the request for the instruction. It instructed the
jury with the CALCRIM instructions identified by the prosecutor,
Nos. 302 (Evaluating Conflicting Evidence), 315 (Eyewitness
Identification), and 332 (Expert Witness Testimony).
B. Analysis
“A defendant is entitled, upon request, to a
nonargumentative instruction that pinpoints his or her theory of
the case.” (People v. Ledesma (2006) 39 Cal.4th 641, 720.) “‘In a
proper instruction, “[w]hat is pinpointed is not specific evidence
as such, but the theory of the defendant’s case.”’ ( Ibid.) The trial
court may refuse a requested instruction if it incorrectly states
the law, is unsupported by substantial evidence, or is
argumentative, duplicative, or potentially confusing. (People v.
23
Moon (2005) 37 Cal.4th 1, 30.) Under any standard of review,7
we conclude the trial court properly denied the instruction as
argumentative and duplicative.
An instruction that “highlight[s] specific evidence, or
invite[s] the jury to draw inferences favorable to one side, [is]
considered argumentative and generally should not be given.”
(People v. Bell (2019) 7 Cal.5th 70, 107 (Bell).) The proposed
instruction here plainly falls within that definition. Rather than
pinpointing appellant’s theory of the case, which was that he was
not the perpetrator, the proposed instruction focused on specific
testimony by prosecution witnesses and invited the jury to
discount that evidence as opinion.
Appellant contends the reference to prosecution witnesses
was not argumentative, because “only prosecution witnesses
made such identifications.” This contention is not persuasive; the
instruction could have referred to witnesses generally without
calling attention to the party who called them. Instead, it
directed the jury to “examine the testimony of certain prosecution
witnesses with greater skepticism,” rendering it argumentative.
(Bell, supra, 7 Cal.5th at p. 107.) Equally unpersuasive is
appellant’s assertion that this instruction is not argumentative
because several pattern instructions given in the case also refer
to particular people or groups, including CALCRIM Nos. 315
(eyewitnesses), 332 (expert witnesses), 333 (lay witnesses), and
7 As recognized in People v. Brugman (2021) 62 Cal.App.5th
608, 622 fn. 3, the de novo standard of review applies to the
question of whether an instruction correctly states the law, but
the abuse of discretion standard of review is applicable in other
situations, including where a trial court denies an instruction as
duplicative.
24
358 (defendant).8 CALCRIM Nos. 316, 332, and 333 use neutral
language and give the jury a commonsense framework for
evaluating the testimony of eyewitnesses, expert witnesses, and
the opinion testimony of lay witnesses. CALCRIM No. 358,
which directs the jury to decide whether the defendant made
written statements before trial and consider how much weight, if
any, to afford them, is a “cautionary instruction” that is in
harmony with the requirement of proof beyond a reasonable
doubt. (People v. Tran (2022) 13 Cal.5th 1169, 1200-1201.) It
does not invite the jury to discount the defendant’s statements or
treat them differently than statements made by other witnesses.
The trial court also rejected the instruction as duplicative.
This ruling was not error. CALCRIM No. 200 instructed the
jurors that it was up to them alone to decide the facts of the case.
CALCRIM No. 226 instructed the jurors to assess witness
credibility; notified them that they could believe all, some, or
none of any witness’s testimony; and provided a list of factors to
consider when assessing the credibility and accuracy of
testimony. CALCRIM No. 315 instructed the jurors how to
assess eyewitness testimony, and CALCRIM No. 332 instructed
the jurors how to assess expert witness testimony. Most notably,
CALCRIM No. 333 instructed the jurors that they were not
required to accept the opinions of lay witnesses as true or correct.
These instructions fully covered the same ground as the proposed
8 Appellant also asserts that CALCRIM No. 303 refers to
“particular witnesses or statements.” However, CALCRIM No.
303 states only, “During the trial, certain evidence was admitted
for a limited purpose. You may consider that evidence only for
that purpose and for no other.” At defense counsel’s request, the
court gave a modified version of the instruction that referred to
certain testimony by witness Jaela Alvarez.
25
pinpoint instruction; the court accordingly did not deny appellant
the right to have the jury consider his theory. (See People v.
Hovarter (2008) 44 Cal.4th 983, 1022.) Furthermore, when the
court sustained defense counsel’s objection to testimony about
what the perpetrators in the video appeared to be doing, it also
reminded the jury that “it’s your job to decide what happened in
this case and decide what the facts are.” The court properly
denied the pinpoint instruction as duplicative.
III. Potential Juror Bias
Appellant argues that the trial court deprived him of due
process and a fair trial by failing to inquire into possible juror
bias and denying his related motion for mistrial. We find no
abuse of the court’s discretion.
A. Background
On the fourth day of the prosecution’s case in chief,
witnesses Jaela Alvarez, Detective Farmer, and victim T.B. took
the stand in the morning. After lunch, a juror we will call Juror
X notified the court that they “may be having some issues with
regard to remaining as a juror.” The court cleared the courtroom
and held a sidebar with Juror X, the prosecutor, and defense
counsel. Juror X told the court they did not feel safe and, because
of that, feared they would not be able to make an unbiased
decision. Juror X said they had “never been around gangs before,
and now these people are seeing my face.” Juror X also said they
felt “very uncomfortable” after hearing T.B. testify, “like I should
be worried and scared, too.” Both sides agreed Juror X should be
excused. The trial court excused Juror X for cause and replaced
Juror X with an alternate juror drawn by lot. The court told the
other jurors only that “one of your colleagues on the jury has been
excused.”
26
The following morning, a juror we will call Juror Y sent a
note requesting to speak to the court and counsel. In chambers,
Juror Y stated that they had safety concerns because of T.B.’s
demeanor on the stand and because some of the events in the
case occurred near their family’s home. When the court asked if
Juror Y had discussed these concerns with other jurors, Juror Y
said that what “brought this to mind for me” was Juror X “crying
about are we safe” in the hallway the previous day. The court
asked if Juror Y had a conversation with Juror X “about that,”
and Juror Y responded, “I guess yes, I gave [Juror X] some
tissues.”
The court gave both counsel the opportunity to question
Juror Y. Defense counsel asked if Juror Y knew whether Juror X
had discussed safety concerns with any other jurors. Juror Y
responded, “Oh, yes. [Juror X] was crying in the hallway. So, yes,
it would have been seen by multiple people.” Juror Y denied
discussing their own concerns with the other jurors. Juror Y also
denied discussing the details of the case with the other jurors.
Juror Y believed fear would impact their ability to be impartial.
Outside the presence of the jury, including Juror Y, counsel
stipulated to excuse Juror Y for cause. The court accepted the
stipulation, excused Juror Y for cause, and selected an alternate
by lot to replace Juror Y. Before the other jurors returned to the
courtroom, defense counsel moved for a mistrial, arguing that the
jury was “contaminated” and “infected with a fear for their
safety” due to seeing Juror X crying in the hallway. The
prosecutor opposed the motion, arguing that it was speculative
whether any jurors saw Juror X. He further asserted that even if
they had seen something, it was speculative to conclude they
could no longer be fair. He accordingly asked the court “to give a
27
generic admonition” about their promise to be fair and impartial,
and “to further admonish the jury that if at any point in the
future anything happens to affect that ability please let [the
court] know.” Defense counsel expressed concern that any jurors
with similar fears could lack the “wherewithal” of Jurors X and Y
to come forward. The prosecutor responded with his own concern
about “encourag[ing] jurors to come up with excuses to try to get
off being on the jury.”
The trial court took a brief recess to consider the matter,
during which it asked the prosecutor to draft a proposed curative
instruction. The prosecutor prepared a “rudimentary” instruction
based in part on CALCRIM Nos. 200 (Duties of Judge and Jury)
and 3550 (Pre-Deliberation Instructions). Defense counsel
objected that the proposed instruction was too “generic” to
address the specific issue of fear and its possible effect on the
jury’s ability to be fair.
The court denied the defense request for mistrial. It
explained that it did not believe there was sufficient evidence to
declare a mistrial: “There’s no evidence that other jurors actually
saw it, there’s no evidence, concrete evidence, that other jurors
heard anything [Juror X] said other than what Juror [Y] said.
There’s no evidence as to how that impacted, if at all, it impacted
anybody in any way.” The court further stated that it had told
the jurors on multiple occasions during voir dire to alert the court
“if they were having trouble being fair and impartial,” and “in
fact at least two jurors have acted on that thought at least.” The
court added that it had “no reason to believe that any other juror
that felt that way at this time wouldn’t come forward and tell the
court that they couldn’t be fair and impartial.”
28
The court then stated that, “having considered everything
that’s gone on and listened to the evidence and heard the jurors, I
don’t find that there’s enough to inquire as to each juror as to
how they feel or what they saw or what they conclude right now.”
It further stated that “whether or not to conduct any such
inquiries lies within sound [sic] discretion of the trial judge.” It
then explained that it was exercising that discretion “based on
the totality of the circumstances as I understand them and all the
arguments of counsel,” and found “there is not enough
information or evidence of anything that would impact the trial
to conduct any further inquiry at this juncture.”
Finally, the court considered the prosecutor’s request for a
curative instruction and defense counsel’s objections and request
that any instruction expressly address fear. The court explained
that it did not want to “encourage jurors to think about things
they’re not thinking about,” and concluded that the most
appropriate solution would be to “read the first line of the second
paragraph of CALCRIM 200,” then add “if there’s anything, both
past and future that affects your ability to be fair and impartial,
will you please let the court know immediately.” When the jury
returned to the courtroom, the court instructed: “As jurors in this
case, you must decide what the facts are. It is up to you and all of
you, and you alone, to decide what happened based only on the
evidence that has been presented to you during this trial in this
courtroom. If there is anything, both past and in the future, that
affects your ability to be fair and impartial, please let the court
know immediately, understood?” No jurors subsequently raised
any concerns.
29
B. Analysis
1. The court did not abuse its discretion by
not inquiring further.
As a general rule, the trial court must conduct a sufficient
inquiry to determine relevant facts whenever it is put on notice
that good cause to discharge a juror may exist. (Bell, supra, 7
Cal.5th at p. 120.) “Not every incident warrants investigation,
however.” (Ibid.) “‘The decision whether to investigate the
possibility of juror bias, incompetence, or misconduct—like the
ultimate decision to retain or discharge a juror—rests within the
sound discretion of the trial court. [Citation.] The court does not
abuse its discretion simply because it fails to investigate any and
all new information obtained about a juror during trial. [¶] . . .
[A] hearing is required only where the court possesses
information which, if proven to be true, would constitute “good
cause” to doubt a juror’s ability to perform his duties and would
justify his removal from the case. [Citations.]’” (People v.
Manibusan (2013) 58 Cal.4th 40, 53, quoting People v. Ray (1996)
13 Cal.4th 313, 343.)
Appellant contends the court abused its discretion by
failing to conduct further inquiry into potential juror bias after
Jurors X and Y reported their fears. He “submits the trial court
had no reasonable basis in this case to refuse to inquire into
possible fear felt by the jurors,” particularly since such inquiries
could be conducted individually “so as not to infect the group.”
We disagree. As the court recognized, further inquiry posed the
risk of calling undue attention to the excusing of Jurors X and Y
and encouraging jurors to “think about things that they’re not
thinking about.” The Supreme Court has acknowledged this is a
30
valid concern. (See People v. Navarette (2003) 30 Cal.4th 458,
500 [“The court addressed the jurors’ concerns about
confidentiality without . . . calling the attention of the entire jury
to the specifics of Juror Todd R.’s fears and thereby possibly
spreading those fears.”].) The record reflects the court’s careful
attention to the issue and balancing of numerous concerns. It
does not indicate an abuse of discretion.
Appellant also argues the court erred by finding there was
insufficient evidence from which to conclude the jury was tainted.
He asserts that Juror Y’s statements that the other jurors had
“heard of the first juror’s fear of safety” and seen that juror crying
established that the jury had been “infected.” Again, we disagree.
Even if Juror Y’s assertion that other jurors had seen Juror X
crying proved to be true, nothing in the record suggested that
event affected their ability to be fair and impartial. A juror’s fear
alone does not establish bias or other grounds for discharge.
(People v. Manibusan, supra, 58 Cal.4th at p. 56.) Even where
“[a]ll 12 jurors expressed concern that defendant’s gang would
retaliate against them as a result of the verdict,” the Supreme
Court found that the trial court did not abuse its discretion by
failing to conduct an investigatory hearing because there was no
indication the fear affected the jury’s deliberations. (People v.
Brown (2003) 31 Cal.4th 518, 581-582.) The same is true here.
The court specifically asked the jurors to report if they could no
longer be fair or impartial, either due to past events or in the
future, and no jurors came forward. This was sufficient. (See
People v. Manibusan, supra, 58 Cal.4th at p. 56.) The cases
appellant cites do not hold otherwise.
31
2. The court did not abuse its discretion by
denying the motion for mistrial.
A court should grant a motion for mistrial only when a
party’s chances of receiving a fair trial have been irreparably
damaged. (Bell, supra, 7 Cal.5th at p. 121.) Because the
determination of whether a particular incident is incurably
prejudicial is inherently speculative, trial courts have broad
discretion when ruling on motions for mistrial. (People v. Beck
and Cruz (2019) 8 Cal.5th 548, 634; see also People v. Perez
(2018) 4 Cal.5th 421, 459 [“courts have ‘considerable discretion’ to
determine whether such an error warrants granting a mistrial or
whether the error can be cured through admonishment or
instruction”].) We review the court’s ruling for abuse of that
discretion.
Appellant contends the court abused its discretion because
fear is akin to “poison injected into the minds of the jurors,” and
the admonition the court gave was inadequate to cure the
prejudice he suffered. We find no error. As the trial court
observed when making its ruling, nothing in the record suggested
the other jurors “wouldn’t come forward and tell the court that
they couldn’t be fair and impartial.”
Appellant’s reliance on People v. Navarette (2010) 181
Cal.App.4th 828 is misplaced. There, a police officer willfully
violated the court’s order suppressing an incriminating statement
made by the defendant, testifying that he did not run DNA tests
“for several reasons, the first of which it’s a court rule that the
defendant’s statement is inadmissible. So I can’t state the first
reason.” (People v. Navarette, supra, 181 Cal.App.4th at p. 831.)
The trial court denied the defense motion for mistrial and
admonished the jury to disregard the officer’s testimony. The
32
appellate court ruled that was an abuse of discretion, “because
the instruction did not break the link the jury was likely to
perceive between a ‘statement’ and a ‘confession’ in the context of
other evidence the jury heard,” and “[a] jury’s belief that a
defendant may have confessed eviscerates the presumption of
innocence.” (Id. at p. 834.) Here, there was no similar taint to
guard against. The court did not tell the jurors why Jurors X and
Y were excused, and it explicitly instructed them to come forward
if “anything,” past or future, affected their ability to be fair and
impartial. None did, even after seeing the court excuse Jurors X
and Y.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, ACTING P. J.
We concur:
MORI, J.
ZUKIN, J.
33