People v. Williams CA2/7

Filed 3/16/23 P. v. Williams CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B315011
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA119839)
v.
SAMUEL WILLIAMS,
Defendant and Appellant.
APPEAL from judgment of the Superior Court of Los
Angeles County, Kathleen Kennedy, Judge. Affirmed in part and
reversed in part; remanded with directions.
Richard B. Lennon and David Andreasen, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________
Samuel Williams appeals from a judgment of conviction
entered after a jury found him guilty of conspiracy to commit
murder and possession of a firearm by a felon with two priors.
The jury found true the special allegations the offenses were
committed for the benefit of a criminal street gang.
On appeal, Williams contends the trial court erred in
instructing the jury on second degree murder as a part of its
instructions on conspiracy to commit murder, and in failing to
instruct the jury on self-defense and unanimity as to the
conspiracy. Williams also argues the court erred in admitting the
out-of-court statements of a codefendant who had pleaded no
contest without establishing his unavailability to testify. In
addition, Williams asserts the court erred in overruling his
objections to the investigating detective’s testimony that
individuals other than Williams and his codefendants were
involved in the conspiracy, and in failing to bifurcate trial on the
gang allegations. Further, the cumulative errors were
prejudicial.
Finally, Williams contends, the People concede, and we
agree, the jury’s true finding on the gang enhancement
allegations must be reversed under the amendments to the
criminal street gang enhancement statute (Pen. Code, § 186.22)1
made by Assembly Bill No. 333 (2021-2022 Reg. Sess.) (2021
Stats., ch. 699, § 3) (Assembly Bill 333), effective January 1,
2022. We remand to give the People an opportunity to retry the
gang enhancements and to meet their burden of proof
under Assembly Bill 333’s new requirements. We also remand
for the trial court, in sentencing Williams, to exercise its
1 Further undesignated statutory references are to the Penal
Code.
2
discretion under recent amendments to section 654 made by
Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 441), effective January 1, 2022, which apply to Williams’s
convictions because the judgment was not final at the time the
amendments took effect.
In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
Williams, along with Milik Slayton, Tony Buckner, and
Deantae Williams,2 were charged in an information with
conspiracy to commit murder. (§ 182, subd. (a)(1); count 1.) The
information alleged the co-conspirators performed six overt acts
in furtherance of the conspiracy: they 1) “acquired weapon(s)”;
2) “entered a car”; 3) “drove to rival gang’s territory”; 4) “rode in a
vehicle to rival gang’s territory”; 5) “possessed weapons when
enter[ing] rival gang’s territory”; and 6) “shot at rival gang
member(s).”
The information further charged Williams with possession
of a firearm by a felon with two priors. (§ 29800, subd. (a)(1);
count 4.) As to the counts against Williams, the information
alleged Williams committed the offenses for the benefit of, at the
direction of, or in association with a criminal street gang.
(§ 186.22, subd. (b)(1)(A)-(C).) With respect to the conspiracy
count, the information alleged that in the commission of the
offense Williams personally used a firearm and personally and
2 We refer to Deantae Williams by his first name to avoid
confusion with appellant. The information charged Deantae
under the name “Dante Williams.”
3
intentionally discharged a firearm (§ 12022.53, subds. (b) & (c))
and a principal personally used and intentionally discharged a
firearm (id., subds. (b), (c) & (e)(1)). It was further alleged
Williams suffered two prior convictions of serious or violent
felonies under the three strikes law. (§§ 667, subds. (b)-(j),
1170.12.)
The information also charged Slayton and Deantae with
possession of a firearm by a felon with two prior felony
convictions (counts 2 & 3, respectively) and charged Slayton with
attempted murder (count 5) and assault with a semiautomatic
firearm (count 6). The information alleged the offenses were
committed for the benefit of, at the direction of, or in association
with a criminal street gang. The information also charged Corey
Wright and Marcus Jones with conspiracy to commit murder and
four counts of attempted willful, deliberate, and premeditated
murder (counts 7-11).3
Williams, Slayton, and Buckner were tried together.
B. The Evidence at Trial
1. The gang rivalry
Pomona Police Officer Francesco Sacca testified as a gang
expert. In August 2018 Williams, Slayton, Buckner, and Deantae
were members of the Ghost Town Crips criminal street gang
(GTC) in the City of Pomona. Williams’s tattoos included “GTC”
on his stomach, a “G” on his left shoulder, a “T” on his right
shoulder for “Ghost Town,” and his gang moniker “Awacc” on his
right forearm. Buckner was known as “Lil Bo,” and Slayton went
3 The information also charged Jones with an additional
count for possession of a fireman under section 29820,
subdivision (b) (count 12).
4
by “No good.” Officer Sacca was familiar with the GTC gang and
its rival criminal street gang, the 456 Island Piru Bloods (456).
The territories of the 456 gang and GTC gang were adjacent to
each other, and the gangs had been rivals for about 50 years.
The intersection of Towne and Harrison Avenues and Willie
White Park were within GTC territory.
The rivalry between GTC and 456 escalated in 2015 when a
456 member killed GTC member Jonathan “Cartoon” Watts. In
response, GTC members Darnell Parker and Terry Smith killed
Gregory Montgomery, a member of 456 who was over 50 years
old. In August 2018 the relationship between GTC and 456 was
“very bad.”
2. The 456 music video and GTC response
On August 14, 2018 Wright, a member of 456 with the
moniker “Lil Buddha,” wrote a message on the social media
website Facebook that he would film a music video that day for a
song titled, “Ghost Town Killa.” On August 20 Wright posted the
“Ghost Town Killa” music video to a video-sharing website. The
video was filmed at locations within GTC territory and features
numerous 456 gang members holding up their middle fingers to
symbols associated with GTC. In the video, Wright wears a shirt
with a “Ghost Busters” symbol to disrespect GTC.4 The lyrics to
4 The video (exhibit 3) was played for the jury. Officer Sacca
provided commentary as the video was played, explaining the
meaning of aspects of the video, including how the video was
intended to be disrespectful to GTC. In Sacca’s testimony he also
explained the meaning of slang and hand signs used in social
media messages and posts by GTC members and the video later
filmed by GTC members in response to the 456 video.
5
the song also disrespect GTC, including by threatening violence
against GTC members and calling “Awacc” a “fool bitch.”
In response to the filming of the Ghost Town Killa music
video, members of GTC began to discuss retaliation against 456.
On the morning of August 16, Williams sent a text message to
someone named “Gabriel” stating, “Cuz the diccs[5] been in the set
thicc and they need to die they was in the set ten deep day before
yesterday I just found out.” Officer Sacca explained that in this
text message Williams was indicating he had learned
10 members of 456 had been in GTC territory on August 14.
Minutes later Williams sent a text message to a contact called
“FamØus” stating, “Cuz the diccs was in the set ten deep taking
pics and some more shit niggaz gotta die period.” Williams
added, “On CRIP ASAP.”
On August 20 at around 1:00 p.m. Deantae sent a private
Facebook message to Williams with a still image taken from
Wright’s music video. Deantae asked whether he should call a
meeting of the younger members of GTS, to which Williams
replied, “ASAP.” Deantae added, “Cuz call them niggas fr[o]m
Vegas niggas need 3[6] set something ups,” referring to how they
would obtain firearms. Williams replied, “I’m on they head now,”
meaning he was contacting the connection in Vegas. Williams
wrote that the 456 gang members who made the video would “get
the boot,” indicating a violent response by GTC was necessary.
5 According to Officer Sacca, GTC refers to 456 as “45 diccs”
or simply “diccs” as an insult.
6 GTC commonly used the number “3” as a symbol to connote
the third letter of the alphabet, “C” for “Crips.” In messages,
GTC members “replaced the [number] ‘2’ which would have been
for the word ‘to’ with ‘3,’ for Crip.”
6
Within a half hour, Deantae sent a private Facebook
message to someone with the username “Sockit ToMy Pocket”
stating, “Niggas need 3 have a y[o]ung nigga meeting asap . . . .”
The recipient responded, “[L]et’s link,” and expressed anger about
the music video. Deantae added, “Cuz we need some things [i]n
da set fast,” referring to GTS’s need for firearms. Deantae
indicated the 456 members had lots of guns. Around the same
time, Deantae also sent private messages to “Pooter Willilams”
stating, “Cuz da y[o]ung homies need a gun [i]n da set.” The
recipient agreed to procure weapons, writing, “I’m on top of it.”
On the same day, Williams exchanged private messages
with Ray Avalos. Williams wrote, “Soon as a burner come across
get it[.] I want everyone I got the money and I’m gone have it so
get on it loc.” Williams was encouraging Avalos to procure guns
for GTS. A few hours later, Williams messaged Avalos that
members of 456 had made a video in GTS territory and posted
the video online. Williams questioned why GTS members had
not prevented this from happening. Williams then wrote, “Cuz
get that big shit from D3 and come on.” Williams clarified, “I’m
talking about that chop D3 got,” using slang to mean an assault
rifle or similar weapon. Williams told Avalos to “go get it” and
“stop playing.”
On the evening of August 20 Williams, Buckner, and
several others exchanged private group messages on Facebook.
After James Mayes shared a link to the music video, Williams
wrote, “I love it on Crip cuz now u niggz gotta sho out. If not stop
bangin this.” (Capitalization omitted.) According to Sacca,
Williams was asking for the others to retaliate for the disrespect
or they would be out of the gang. Williams later added that he
7
did not want to be questioned and expected the others to
“‘p[er]form’” for the gang.
The same evening, someone with the username “Räccs
Løcc” sent Deantae a message with a link to the music video.
Deantae asked whether Räccs Løcc had “some money” to “put on
a gun with da homies.” Räccs Løcc stated “I got guns” and “got
my gun plug” for “anything we need,” referring to a source for
obtaining firearms. Deantae told Räccs Løcc to bring the guns to
GTS territory as soon as possible.
Early on the morning of August 21, Williams wrote a
lengthy private group message on Facebook to Buckner and eight
other recipients, encouraging them to retaliate against 456 for
the music video. Williams wrote, “All the lil homies and big
homies know lil awac still go hard asf,” referring to himself and
his willingness to take action for GTS. Williams continued, “Cuz
them lil boys did do some disre[s]pectful shit that all of them
gone pay for. . . . This shit just started war nigga and u don[’]t
[want to be] th[ere] in the middle.” (Capitalization omitted.)
Someone with the username “Day-Day Foek” responded in
agreement, “On cripk.” Williams related that Wright worked at
the Rite Aid on Holt,7 then requested the recipients “shut this
group chat” down and “start a new one” because there was “to[o]
much business on here.” (Capitalization omitted.)
Also on the morning of August 21, someone with the
username “BG Rich Mac” sent Deantae a private Facebook
message with an image of several handguns in a display case
with the message “[s]hit like this 300 and up.” About an hour
later Deantae sent a message to someone with the username
7 Williams had similarly messaged Deantae on August 20
that Wright worked at the Rite Aid on Holt.
8
“Smerphys Law” asking, “[Yo]u kno[w] w[h]ere we can get a [gun
emoji] so we can do [ou]r thing on da 45diccs[?]” Smerphys Law
replied, “Let me hit up my boy cuz he got a hook up,” but later
added, “No go on the burners,” indicating he or she was not able
to locate any firearms.
On August 24 Williams sent a private Facebook message to
someone with the username “Gstone Locsta,” stating, “They
bringing me that big thang from Vegas cuz it’s on.” Gstone
Locsta responded, “They need 3 bring the poppers to[o],” and
requested additional .380- and .40-caliber firearms.
The next day at around 2:15 p.m. Williams sent a private
Facebook group message to multiple recipients, including
Buckner and eight others. Williams wrote that there was “a job”
that “need[ed] to be done” and questioned why GTC members
would “claim some shit [they] can’t respect.” Williams continued,
“My whole time from the set I been making NIGGAZ respect it
and I’ma continue to do so. Fucc 456 and not for play play.”
At around 3:15 p.m. Williams sent a private message to
Slayton with an image of an assault rifle “with several [gun]
attachments.” Williams wrote, “With 100 on it 223 and 552,”
referring to the 100-round drum magazine attachment and to the
compatible caliber of ammunition. Around the same time
Slayton sent Buckner a private message on Facebook asking,
“Y’all grabbed the thang already[?]” Buckner responded in the
affirmative. Slayton continued, “Okill we got a ride rn so we
Trynna grab errthing,” indicating he wanted to grab all the
available firearms right then. Buckner responded, “Yea come on
let’s go to the set,” meaning GTS territory.
9
3. The August 27 shooting and aftermath
At around noon on August 27 an individual called 911 and
reported hearing around 15 shots fired near Willie White Park in
Pomona (in GTC territory). Pomona Police Officer Devyn McIver
responded to the scene, where he recovered four expended nine-
millimeter casings. The police obtained video surveillance
footage of the incident showing an individual firing a gun and
then ducking down, followed by the shooter and several other
people running toward two cars parked at the end of a cul-de-sac.
That evening Slayton sent a private Facebook message to
someone with the username “Mistah Pomona.” Slayton wrote,
“[T]he diccs tried to slide today an[d] I stopped the whole play
cuh.” Officer Sacca interpreted Slayton’s message to mean 456
members had come to GTS territory to attack GTS members, but
Slayton stopped them. Mistah Pomona responded he would “see
wassup with the big homie” and asked Slayton whether he had a
car for transporting the assault rifle. Slayton also exchanged text
messages with an individual with the username “Bg Flexin On
Em.” Slayton wrote “they tried [t]o get it craccin today” but “I
seen em first an[d] tried to do my shit[.] [¶] It jammed.” Slayton
added, “I got off like 5.” Slayton stated he needed more nine-
millimeter ammunition, to which Bg Flexin On Em replied, “Hey
like $28 I’ll go buy them from big 5 because I need some [too].”
The next day Slayton exchanged messages with Williams.
Slayton wrote, “[T]hey came back 2 cars deep yesterday.”
Williams questioned, “And did what?” Williams continued, “It’s
time for that big boy see if you can find some 223 [s]hells I only
got like 30 on it.” Williams was indicating he only had 30 rounds
10
for the assault rifle.8 The next day Slayton again messaged Bg
Flexin On Em, asking where he could find “223 shells.” Bg Flexin
On Em replied, “Big 5” or “Walmart” and asked, “Did y’all get
craccin[?]” Slayton answered in the negative, explaining he did
not have a car. Bg Flexin On Em replied, “[B]ut y’all got a chop,”
referring to the assault rifle. Slayton replied, “Yupk I’m just
waiting for this nigguh to say we gone do our shit so we can go
get it.”
4. GTC members enter 456 territory on August 29
On August 29 at around 8:00 a.m. Deantae sent Buckner a
private Facebook message asking, “U got the thing on u[?]”
Buckner responded in the affirmative. Deantae indicated he also
had a gun, and Deantae and Buckner agreed to meet in GTS
territory with Slayton, who was already there. At around 8:20
a.m. Deantae received a private Facebook message from Lisa
Ayech asking, “What’s going on[?]” Deantae replied, “Nothing
riding in [P]omona lookin for niggas,” indicating he was looking
for 456 members. Between 9:10 and 11:11 a.m., six phone calls
were placed between Williams and Deantae.
Sometime before 12:30 p.m. a video was shot depicting
Deantae, Slayton, and Buckner standing near the intersection of
Vassar and Lennox Streets in Pomona in the heart of 456
territory.9 In the video Deantae states, “Fuck dics nigga” and
8 According to Pomona Police Detective Dolgovin, the term
“big boy” referred to an assault rifle. Detective Dolgovin provided
additional commentary on the meaning of the messages
exchanged between Williams and others.
9 The video (exhibit 3B) was played for the jury. Officer
Sacca interpreted the meaning of this video for the jury as well.
11
“[w]e in y’all shit, bitch.” Slayton has a firearm visible in his
front right pocket and states, “[W]e out here lookin for niggas
though” and “[w]e not joking. . . . [C]ome on now nigga.”
Buckner does not speak but has a firearm protruding from the
pocket of his shorts and raises his middle finger with one hand
while raising four fingers on the other. Officer Sacca described
the gestures as indicating “‘fuck you’ to 456.” According to Officer
Sacca, the video showed that Deantae, Slayton, and Buckner had
entered 456 territory to provoke a violent encounter with 456
gang members. At about 12:30 p.m. Deantae sent the video by
private Facebook message to Travon Moore and wrote that the
group of men had 100 rounds on them. Deantae sent the video to
others by private Facebook message, including Mistah Pomona,
who in turn posted the video publicly on Facebook at 12:44 p.m.
In an eight-second video shot by Deantae on his phone at
1:07 p.m., a bald man in a blue polo shirt can be seen driving a
car with a Saturn logo on the steering wheel. According to
Pomona Police Detective Daniel Watkins, Slayton, Buckner, and
Deantae can be seen in the video as passengers in the vehicle.10
5. The August 29 shootout
At around 1:30 p.m. Roman Jackson was traveling
southbound in his truck near the intersection of Towne and
Harrison Avenues in Pomona when he saw two cars “racing”
northbound.11 The first car, a blue Saturn SUV, crashed and
10 The video was played for the jury.
11 Jackson testified he observed the events at around
12:30 p.m. on August 29. However, the other evidence, including
the 911 call, is more consistent with the events occurring about
an hour later.
12
came to rest in the median. A Black man exited the SUV holding
a rifle. Jackson heard 30 to 35 gunshots as he ducked down on
the floor of his truck. After the gunfire stopped, Jackson exited
his vehicle, finding blood on the front bumper and grill of his
truck.
A witness who called 911 stated that a blue SUV ran a red
light when it collided with a silver sedan. After the collision, men
in a “lighter colored” four-door car began to fire at the SUV.
There were “at least eight [B]lack men all shooting and running.”
The men who exited the blue SUV ran across the median into a
residential neighborhood, leaving the vehicle behind. The light-
colored car drove away to the north.
Claremont Police Lieutenant Karlan Bennett responded to
the scene and began searching for the shooters. She located three
Black men walking north together in a group about a third of a
mile from the accident scene. Bennett radioed for backup. The
group began to run. Multiple police officers responded to
Bennett’s call. One officer detained Williams and Deantae, who
were “sweating profusely and breathing heavily as though they
had been running.” Another officer located Slayton hiding under
a boat trailer near a residence and arrested him. A third officer
located Buckner in a house on Jayson Court “just north” of the
accident scene. Buckner had several gunshot wounds and was
transported to the hospital.
6. The investigation
Pomona Police Officer Matthew Looney responded to the
accident scene. From the driver’s side floorboard inside the blue
SUV, Officer Looney recovered a semi-automatic firearm
containing 13 rounds of ammunition, including a live round in
13
the chamber. The appearance of the firearm was consistent with
the firearm seen on Buckner in the August 29 video.
Mail addressed to Williams was found on the front
passenger seat. Extraction reports were later generated for each
of the phones, which catalogued the photos, text messages, call
logs, and other information stored on the phones. One of the
phones appeared to belong to Williams because it was connected
to his social media accounts, contained photos of him, and
included messages identifying him as the user of the phone.
In the area surrounding the accident scene, a Pomona
Police Department crime scene investigator recovered spent nine-
millimeter ammunition, .25- and .40-caliber casings, two live
rounds of 7.62-millimeter (.30 caliber) ammunition, and a live
round of nine-millimeter ammunition.
Detective Watkins discovered a Ruger nine-millimeter
firearm on Jayson Court near Stanton Street with a live round in
the chamber. The firearm had a two-tone coloration consistent
with the firearm seen on Slayton in the August 29 video. A DNA
test performed on the firearm showed the presence of Williams’s
and Slayton’s DNA, with Williams contributing 88 percent and
Slayton contributing 9 percent. Ballistics testing showed the
firearm matched five casings found at or near the August 29
accident site and four casings found near the site of the
August 27 shooting.
Detective Dolgovin also recovered a dark blue polo shirt
from a bush on Edwin Street near the site of the accident. The
shirt had the number “3” on both shoulders. The shirt was
consistent in appearance with the one the driver wore in the
August 29 video shot by Deantae inside the vehicle. Testing
14
showed the shirt contained DNA from four individuals;
75 percent of the DNA was from Williams.
Detective Dolgovin discovered a nine-millimeter firearm
near the accident scene on Jayson Court. The firearm was in
“slide lock” condition with an empty ammunition magazine,
indicating it had been fired until it was emptied.
While in custody, Williams and Slayton were swabbed for
gunshot residue. Samples taken from Williams showed one
particle “characteristic” of gunshot residue (correct shape and all
three elements of gunshot residue), while Slayton’s test showed
two particles characteristic of gunshot residue and two particles
“consistent” with gunshot residue (missing one of the elements of
gunshot residue). Williams “could have fired a firearm, been in
close proximity to somebody who fired a firearm, or in some other
way c[o]me in contact with gunshot residue.”
On August 30 Wright was arrested, and a .25-caliber semi-
automatic firearm was recovered from a nearby location at the
time of the arrest. The firearm contained Wright’s DNA and
matched some of the ballistics evidence found at the August 29
accident scene.
On September 1, 2018 Pomona Police Officer Aaron Peeden
discovered a Sig Sauer assault rifle with an attached drum
magazine in a trash can on Stanton Street. The magazine
contained 14 rounds of live 7.62-millimeter ammunition and had
the capacity to hold 100 rounds of either .223 Remington or 5.56 x
45-millimeter ammunition. The rifle contained an additional
round of 7.62 ammunition. The live 7.62-millimeter rounds found
at the accident scene matched the live rounds found in the rifle
and magazine. The 7.62-millimeter rounds could be loaded into
the magazine and rifle, but they are too heavy to be fired by the
15
weapon. A black bag found in the rear of the SUV appeared to fit
the Sig Sauer rifle. A test performed on the rifle magazine
showed the presence of DNA from four individuals, with Williams
a 40 percent contributor.
On November 11, 2018 three members of 456 were arrested
and four firearms were recovered during the arrest, two of which
matched ballistics evidence from the August 29 accident site. On
January 9, 2019 Buckner was arrested.
7. Jail calls
On August 29, 2018 Deantae made a recorded call from jail
to Margarita Carter. Deantae told Carter he was in jail,
explaining, “I was on my way home . . . and this is where some
bullshit happened.” Deantae said he tried to keep going but
“[t]hey got behind us, babe.” Carter said she had heard about a
“shooting on Towne” and she had seen “[t]hat video . . . y’all did
earlier with Little Bo and all.”
On September 15, 2018 Williams made a recorded call from
jail to an unknown individual. During the call, Williams said,
“tell D-3 . . . that shit that he brought out here to a nigga don’t
work” and “did not work at all.” Williams then repeated, “[T]hat
shit that D-3 and them brought out here cuz did not work . . . .”
8. The Perkins operation
On January 7, 2019 Detective Dolgovin conducted a Perkins
operation12 to surreptitiously record a jail conversation between
12 The parties refer to the police operation in which the People
obtained Wright’s statements to an undercover law enforcement
agent as a “Perkins operation.” (See Illinois v. Perkins (1990)
496 U.S. 292.)
16
Wright and an undercover law enforcement agent. During the
conversation, Wright admitted he was a member of the 456 gang.
Wright said he had been in a shootout. He had seen a video
made by GTC members “in the hood on Vassar” Street. Wright
and others began to look for them. Wright continued, “I’m
guessing they left. But then they came back and tried to make
another video.” Wright saw a blue car and the “next thing you
know . . . they see us and try to take off in their car. So . . . we
chase them niggas down.” During the chase, “this nigga pulled a
gun out the car to try and scare us,” but Wright did not believe he
would shoot. When the car they were chasing crashed, Wright
and his confederates began firing on them, shooting at their car.
They “[l]et the whole car have it.” Wright described that “it was
one older nigga” who “was the only nigga busting back. The other
two niggas from the other side was running with their shit.
Trying to get out of there.” Wright believed two of the GTC
members were shot and the person firing back at Wright and his
confederates was “the only nigga that didn’t get shot.” Wright
identified one of the GTC members as “Awacc,” who was 42 years
old and “big.”
9. Additional gang evidence
Officer Sacca testified GTC’s primary activities include
tagging, narcotics sales, theft, grand theft, robbery, assault with
a deadly weapon, illegal possession of firearms, and murder.
Officer Sacca testified as to three predicate offenses committed by
GTC gang members: Parker’s and Smith’s convictions for the
murder of Montgomery; Mohammad Alrazaa’s conviction for
possession of a firearm; and Obina Ezeh’s conviction for making
criminal threats.
17
Presented with a hypothetical based on the evidence
presented in the case, Officer Sacca opined that the conduct
would benefit the gang because it was done in response to a
derogatory music video that “showed very blatant, very
aggressive disrespect” to the gang. By going on the offensive
against its rival, the gang benefitted because the rival gang
would hesitate to disrespect the gang again, and the gang would
be able to protect and maintain its territory. In addition,
community members would be reluctant to talk to the police for
fear of retaliation.13
C. The Jury Verdicts and Sentencing
On February 28, 2020 the jury found Williams guilty on
counts 1 and 4 and found the gang allegations true as to each
count. The jury could not reach a verdict on the special
allegation that in the commission of the conspiracy Williams or a
principal personally used a firearm or personally and
intentionally discharged a firearm.
The jury could not reach a verdict on count 1 for conspiracy
to commit murder as to Buckner and Slayton. Nor could it reach
a verdict on count 6 for assault with a semiautomatic firearm as
to Slayton. The jury acquitted Slayton of attempted murder in
connection with the August 27 shooting (count 5). The jury found
Slayton guilty of possession of a firearm by a felon with two
priors (count 2) and found the gang allegation true as to that
count.
On September 8, 2021 the trial court sentenced Williams to
an indeterminate term of 75 years to life on count 1 for
13 Williams did not call any witnesses in his defense.
18
conspiracy to commit murder (25 years to life tripled under the
three strikes law) with a 15-year minimum parole eligibility date
for the gang enhancement.14 The court stayed under section 654
a three-strikes sentence of 25 years to life on count 4 for felon in
possession of a firearm.
DISCUSSION
A. The Trial Court’s Error in Instructing the Jury on Implied
Malice Murder as a Theory of Conspiracy To Commit
Murder Was Harmless
1. Trial court proceedings
With respect to count 1 for conspiracy to commit murder,
the trial court instructed the jury with CALCRIM No. 415 that
the People had to prove Williams “intended to agree and did
agree with any alleged co-conspirator . . . to commit the crime of
murder,”15 that “[a]t the time of the agreement, the defendant
and one or more of the other alleged members of the conspiracy
intended that one or more of them would commit the crime of
murder,” and at least “[o]ne of the alleged members of the
conspiracy or any combination of the members committed at least
14 Williams admitted he suffered two prior convictions of
serious or violent felonies. (§§ 667, subds. (b)-(j), 1170.12.)
15 The trial court’s oral instructions to the jury appear
inadvertently to have omitted the line from the written
instructions that the jury must find “[t]he defendant intended to
agree and did agree with any alleged co-conspirator.” However,
the court’s oral and written instructions included the instruction,
“The People must prove that the members of the conspiracy had
an agreement and an intent to commit murder.” Williams does
not contend the omission was error.
19
one of the . . . alleged overt acts to accomplish the crime of
murder.” The court instructed further, “To decide whether a
defendant and one or more of the other alleged members of the
conspiracy intended to commit murder, please refer to the
separate instructions . . . on that crime.” The court also
instructed that conspiracy to commit murder required proof of a
defendant’s specific intent.
The court’s instructions on murder stated the jury must
find “the defendant acted [with] a state of mind called malice
aforethought.” The instruction continued, “There are two kinds
of malice aforethought; express malice and implied malice. Proof
of either is sufficient to establish the state of mind required for
murder. [¶] The defendant acted with express malice if he
unlawfully intended to kill. The defendant acted with implied
malice if . . . he intentionally committed an act; . . . the natural
and probable consequences of the act were dangerous to human
life; . . . at the time he acted he knew his act was dangerous to
human life; and . . . he deliberately acted with conscience
disregard for human life.” (Capitalization omitted.) The
instructions stated further, “The defendant is guilty of first
degree murder if the People have proved that he acted willfully,
deliberately and with premeditation,” and defined those terms for
the jury. The instructions did not include any reference to or
definition of second degree murder.
During his closing argument, the prosecutor argued
Williams, Buckner, Slayton, and Deantae agreed to “intentionally
and unlawfully kill.” The prosecutor emphasized, “The question
in this case . . . is whether these individuals intended to commit
murder . . . .” As evidence of Williams’s intent to commit murder,
the prosecutor pointed to messages sent by Williams to others
20
after learning at least 10 members of 456 had been in GTC
territory. In those messages, Williams stated “they need to die”
and “they gotta die, period.” The prosecutor also highlighted
Williams’s messages to a group of recipients urging them to take
action, including his statement, “All of them gonna pay. This shit
just started war.” The prosecutor argued Williams sought and
obtained an assault rifle to use against 456, which “is one of the
most potent weapons” and “far more powerful than a handgun.”
The prosecutor concluded by requesting the jury return “a verdict
that acknowledges that the defendants conspired to violently and
lethally retaliate against 456,” resulting in “two midday gun
battles.”
In closing, Williams’s attorney argued the defendants had
not formed an agreement to commit murder. He noted Williams’s
statements that 456 members needed to die were made to
persons other than Buckner, Slayton, and Deantae. Further, the
People needed to prove Williams “intended to agree and did
agree” to “commit the crime of murder.”
In rebuttal, the prosecutor reiterated the jury had to find
the defendants intended to commit murder in order for the jury to
convict on the conspiracy charge. He argued in response to
defense counsel’s claim the defendants had no intent to kill,
“[Y]ou’re going to be asked in the verdict forms to deal with
something. Was it conspiracy to commit first degree murder or
conspiracy to commit second degree murder?” He explained, “For
second degree murder . . . [t]here’s two ways to get there. There
is express malice and implied malice. Express malice, as the
instruction says, means the intent to kill. If you have the intent
to kill, you are . . . acting with express malice. If you do
something that’s so inherently dangerous, it’s implied malice.”
21
The prosecutor then read the jury instruction on implied malice,
adding “there’s no question that we have the intent to kill. So it
is at least a second. With conspiracy to commit murder, you don’t
have implied malice. It doesn’t even apply to conspiracy to
commit murder. You have to have the express malice, intent to
kill.” The prosecutor explained that first degree murder required
a finding of express malice, and he discussed the elements of first
degree murder as set forth in the jury instructions. He then
argued, “So when you’re dealing with conspiracy, it’s
unequivocally conspiracy to commit a first degree murder. It’s
not a heat-of-passion sort of situation that just popped up on
them. They had days to deal with this, prepare themselves,
make their plan, get their guns, bring that big gun, [and] drive
into a rival hood.”
2. Governing law and standard of review
“Conspiracy ‘“is an inchoate offense, the essence of which is
an agreement to commit an unlawful act.”’” (People v.
Ware (2022) 14 Cal.5th 151, 163; accord, People v. Swain (1996)
12 Cal.4th 593, 599-600 (Swain) [crime of conspiracy “does not
require the commission of the substantive offense that is the
object of the conspiracy” and “‘fixes the point of legal intervention
at [the time of] agreement to commit a crime’”].) A conspiracy
has four elements: “(1) the existence of an agreement between at
least two persons; (2) the specific intent to agree to commit an
offense; (3) the specific intent to commit the offense that is the
object of the agreement; and (4) an overt act in furtherance of the
conspiracy, which may be committed by any conspirator.” (Ware,
at p. 163; accord, People v. Johnson (2013) 57 Cal.4th 250, 257.)
22
“[T]here is no crime of ‘conspiracy to commit second degree
murder . . . .’ Rather, ‘all conspiracy to commit murder is
necessarily conspiracy to commit premeditated and deliberated
first degree murder.’” (People v. Beck and Cruz (2019)
8 Cal.5th 548, 641 (Beck and Cruz); accord, People v.
Cortez (1998) 18 Cal.4th 1223, 1231-1232 [“The mental state
required for conviction of conspiracy to commit murder
necessarily establishes premeditation and deliberation of the
target offense of murder—hence all murder conspiracies are
conspiracies to commit first degree murder . . . .”].)
We review a claim of instructional error de novo. (People v.
Mataele (2022) 13 Cal.5th 372, 419; People v. Mitchell (2019)
7 Cal.5th 561, 579.) “An appellate court reviews the wording of a
jury instruction de novo and assesses whether the instruction
accurately states the law. [Citation.] In reviewing a claim of
instructional error, the court must consider whether there is a
reasonable likelihood that the trial court’s instructions caused
the jury to misapply the law in violation of the Constitution.
[Citations.] The challenged instruction is viewed ‘in the context
of the instructions as a whole and the trial record to determine
whether there is a reasonable likelihood the jury applied the
instruction in an impermissible manner.’” (Mitchell, at p. 579;
accord, People v. Ramirez (2021) 10 Cal.5th 983, 1005 [“the
prosecutor’s closing argument must also be considered alongside
the court’s instructions and the defense’s argument”]; People v.
Young (2005) 34 Cal.4th 1149, 1202 [“The reviewing court also
must consider the arguments of counsel in assessing the probable
impact of the instruction on the jury.”].)
Where a trial court instructs the jury on two legal theories,
one of which is legally erroneous—here, that the jury could find
23
Williams guilty of conspiracy to commit implied malice murder—
“[t]he reviewing court must reverse the conviction unless, after
examining the entire cause, including the evidence, and
considering all relevant circumstances, it determines the error
was harmless beyond a reasonable doubt.” (People
v. Aledamat (2019) 8 Cal.5th 1, 13 [erroneous instruction that
jury could consider a box cutter an inherently deadly weapon
constituted harmless error because no reasonable jury would
have failed to find defendant used the box cutter in a deadly
manner]; accord, People v. Delgado (2022) 74 Cal.App.5th 1067,
1090 [erroneous instruction that the jury could find gang
enhancements true based on a finding gang members
individually, rather than collectively, engaged in a pattern of
criminal gang activity was not harmless beyond a reasonable
doubt]; see Chapman v. California (1967) 386 U.S. 18, 24
[“beyond a reasonable doubt” standard applies to federal
constitutional errors].)
3. The court’s implied malice instruction was harmless
beyond a reasonable doubt
Williams argues and the People concede the trial court
erred in instructing the jury on implied malice murder. Williams
contends the jury likely applied the implied malice instruction in
an impermissible manner to convict him of conspiracy to commit
murder, asserting the prosecutor aggravated the error by stating
during his rebuttal argument the jury would need to choose on
the verdict whether the conspiracy was to commit first or second
degree murder. Although the prosecutor’s statement was
incorrect (the verdict form did not require the jury to make any
such finding, nor should it have), in light of the entire record we
24
conclude the instructional error was harmless beyond a
reasonable doubt.
Beck and Cruz, supra, 8 Cal.5th at pages 641 to 643 is
instructive. There, defendants were tried for conspiracy to
commit murder, as well as four counts of first degree murder.
The trial court, as here, instructed the jury with the general
instruction on conspiracy (CALCRIM No. 415), and not the more
specific instruction on conspiracy to commit murder (CALCRIM
No. 563). (Beck and Cruz, at p. 642.)16 And, as here, the trial
court’s instructions defined malice aforethought to include both
express and implied malice. (Id. at p. 642.) The Supreme Court
found the error was harmless, reasoning, “[T]he court did not
instruct on implied malice murder when it specifically instructed
on premeditated first degree murder . . . . Nor did the prosecutor
invite the jury to convict Beck or Cruz of either murder or
conspiracy to commit murder on a theory of implied malice, but
16 CALCRIM No. 563 specifies that to prove a conspiracy to
commit murder, the jury must find that “[a]t the time of the
agreement, the defendant and [one or more of] the other alleged
member[s] of the conspiracy intended that one or more of them
would intentionally and unlawfully kill.” As the Supreme Court
observed in Beck and Cruz, supra, 8 Cal.5th at page 642, the
bench notes to CALCRIM No. 415 caution, “If the defendant is
charged with conspiracy to commit murder, do not give this
instruction. Give CALCRIM No. 563, Conspiracy to Commit
Murder.” (See Beck and Cruz, supra, 8 Cal.5th at p. 642.) Had
the trial court here instructed with CALCRIM No. 563, it would
have avoided the problem created by its incorporation of the
murder instructions into the instruction for conspiracy.
25
rather urged the jury to find them guilty of first degree
premeditated murder.” (Id. at p. 643.)17
Although the prosecutor inexplicably (and erroneously)
suggested in his closing argument that the jury could find the
defendants guilty of conspiracy to commit second degree murder
under an express or implied malice theory, the prosecutor
explained in his rebuttal that the implied malice instructions
were inapplicable: “With conspiracy to commit murder, you don’t
have implied malice. It doesn’t even apply to conspiracy to
commit murder. You have to have the express malice, intent to
kill.” (Compare Swain, supra, 14 Cal.5th at p. 607 [instruction
on implied malice in case of conspiracy to commit murder was
prejudicial where “prosecutor repeatedly referred to implied
malice in closing arguments” and stated “‘this could very easily
be an implied malice case’”].)
17 Williams correctly notes the Supreme Court in Beck and
Cruz, in finding the instructional error was harmless, also relied
on the jury’s express findings in convicting the defendants of first
degree murder that the defendants had committed five overt acts
for purposes of carrying out the conspiracy, including acts in
preparation for murder and the killing of the four victims. (Beck
and Cruz, supra, 8 Cal.5th at pp. 643-644.) Although no similar
findings were made by the jury here, we do not read Beck and
Cruz to hold these findings were essential to the court’s ultimate
conclusion the error was harmless. The factors present here—the
instructions given, the strength of the evidence, and the
prosecutor’s disclaimer of reliance on an implied malice theory
and repeated emphasis that the evidence showed Williams’s
intent to kill 456 gang members—support our conclusion the
court’s error in instructing the jury on implied malice was
harmless beyond a reasonable doubt.
26
Moreover, as the Beck and Cruz court observed, “‘a
conspiracy to commit an implied malice murder is a logical
impossibility under the law.’” (Beck and Cruz, supra, 8 Cal.5th at
page 644.) The court reasoned, “Conspiracy to commit implied
malice murder ‘would be at odds with the very nature of the
crime of conspiracy . . . precisely because commission of the crime
could never be established, or be deemed complete, unless and
until a killing actually occurred.’” (Ibid.) The absence of a killing
in this case lessens the likelihood the jury relied on the implied
malice instruction in convicting Williams of conspiracy to commit
murder because the instructions were factually inapplicable to
the evidence. As the Beck and Cruz court concluded (even with a
killing), “In light of the court’s instructions and the way the
prosecution argued this case to the jury, we find no reasonable
possibility that the jury embraced the ‘logical impossibility’ of a
conspiracy to commit implied malice murder as opposed to
convicting [Williams] of conspiracy to commit murder upon a
finding of intent to kill.” (Ibid.)
In addition, the evidence of Williams’s intent to kill
members of the 456 gang was very strong. In response to
learning 10 members of 456 had been in GTC territory, Williams
wrote in a message to one recipient that the 456 members “need
to die” and to another they “gotta die period.” To the latter
message, Williams added, “On CRIP ASAP,” emphasizing his
seriousness. After learning of Wright’s disrespectful music video,
Williams began making efforts to procure guns and amass
ammunition for use in retaliation, and he directed Deantae and
other members of GTC to do the same. Williams procured an
assault rifle with a high-capacity magazine for this purpose.
Consistent with his choice of weapon to maximize lethality,
27
Williams characterized the actions of the 456 members as
“start[ing] war.” This evidence shows Williams’s intent was not
to commit some undisclosed act that was merely dangerous to
human life, but rather, an intent to kill.
We recognize Williams argues the “greater problem” in
instructional error was that the jury may have convicted
Williams of conspiracy to commit express malice second degree
murder (without premeditation and deliberation). He posits that
the jury may have convicted based on a “spur-of-the-moment
agreement to kill in justifiable self-defense” during the shootout
following the August 29 car crash. However, the trial court did
not instruct the jury on second degree express malice murder,
and therefore there was no instructional error.18 Moreover,
although the prosecutor incorrectly referenced second degree
murder in his rebuttal argument, he later disclaimed any
reliance on the theory by stating, “[W]hen you’re dealing with
conspiracy, it’s unequivocally conspiracy to commit a first degree
murder. It’s not a heat-of-passion sort of situation that just
popped up on them.” To the extent Williams is arguing
prosecutorial misconduct based on the prosecutor’s discussion of
18 At oral argument Williams’s attorney asserted the trial
court did instruct on second degree murder. Although counsel is
correct that the court instructed with CALCRIM No. 520 on first
and second degree murder with malice aforethought, the
instruction did not contain the optional language that states, “If
you decide that the defendant committed murder, it is murder of
the second degree, unless the People have proved beyond a
reasonable doubt that it is murder of the first degree as defined”
in the CALCRIM instruction on first degree murder.
28
second degree murder in his rebuttal argument,19 there is no
reasonable likelihood the jury convicted Williams on this theory
for which it was not instructed and the prosecutor ultimately
argued did not apply. (See People v. Young (2019) 7 Cal.5th 905,
932-933 [“‘“A defendant’s conviction will not be reversed for
prosecutorial misconduct . . . unless it is reasonably probable that
19 We acknowledge “‘“it is improper for the prosecutor to
misstate the law generally [citation], and particularly to attempt
to absolve the prosecution from its prima facie obligation to
overcome reasonable doubt on all elements.”’” (People v.
Bell (2019) 7 Cal.5th 70, 111; accord, People v. Centeno (2014)
60 Cal.4th 659, 666.) However, Williams argues on appeal there
was instructional error, not prosecutorial misconduct. To the
extent Williams seeks to assert a claim of prosecutorial
misconduct based on the prosecutor’s statements, Williams
forfeited the contention by failing to raise a timely and specific
objection in the trial court. (People v. Seumanu (2015)
61 Cal.4th 1293, 1328 [“It is well settled that making a timely
and specific objection at trial, and requesting the jury be
admonished (if jury is not waived), is a necessary prerequisite to
preserve a claim of prosecutorial misconduct for appeal.”]; People
v. Pearson (2013) 56 Cal.4th 393, 426 [“‘“[A] defendant may not
complain on appeal of prosecutorial misconduct unless in a timely
fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be
admonished to disregard the impropriety.”’”].) Further, “‘[w]hen
attacking the prosecutor’s remarks to the jury, the defendant
must show that, “[i]n the context of the whole argument and the
instructions” [citation], there was “a reasonable likelihood the
jury understood or applied the complained-of comments in an
improper or erroneous manner.”’” (Bell, at p. 111.) In light of the
prosecutor’s statement in rebuttal that the conspiracy was to
commit a first degree murder, there is no reasonable likelihood
the jury improperly applied the comments.
29
a result more favorable to the defendant would have been
reached without the misconduct.”’”].) And significantly, the only
evidence presented was that the conspiracy occurred when
Williams and other GTC members planned their retaliatory
incursion into 456 territory, not after Williams and the other
GTC members entered 456 territory with their high-powered
weapons looking for rival gang members and the car crash
ensued.
B. The Trial Court Did Not Err in Failing To Instruct the Jury
on Unanimity Regarding the Conspiracy
Williams argues the trial court erred by failing sua sponte20
to instruct the jury it must unanimously agree upon the specific
conspiracy Williams committed because the evidence showed
multiple, discrete conspiracies. Williams contends the evidence
showed three possible conspiracies: (1) a possible conspiracy by
Williams and others to retaliate against 456 (the post-video
conspiracy); (2) a conspiracy between Williams, Buckner, Slayton,
and Deantae on the morning of August 29 to arm themselves and
enter 456 territory; and (3) a conspiracy formed during the
20 Williams’s attorney did not request a unanimity
instruction, but “[i]n criminal cases, even in the absence of a
request, a trial court must instruct on general principles of law
relevant to the issues raised by the evidence and necessary for
the jury’s understanding of the case.” (People v. Martinez (2010)
47 Cal.4th 911, 953; accord, People v. Kopp (2019)
38 Cal.App.5th 47, 84 [“‘[A] trial court in a criminal case is
required—with or without a request—to give correct jury
instructions on the general principles of law relevant to issues
raised by the evidence.’”], limited review granted Nov. 13, 2019,
S257844.)
30
August 29 shooting after the GTC members crashed the SUV and
Wright and the other 456 members opened fire on the vehicle.
We are not persuaded.
1. Governing law and standard of review
“In a criminal case, a jury verdict must be unanimous,” and
“the jury must agree unanimously the defendant is guilty of
a specific crime.” (People v. Russo (2001) 25 Cal.4th 1124, 1132
(Russo); accord, People v. McDaniel (2021) 12 Cal.5th 97, 145.)
“But the jury need not unanimously agree on subsidiary factual
issues, such as specific details of the act.” (McDaniel, at p. 145;
accord, Russo, at p. 1132.) “‘[W]here the evidence shows only a
single discrete crime but leaves room for disagreement as to
exactly how that crime was committed or what the defendant’s
precise role was, the jury need not unanimously agree on the
basis or . . . the “theory” whereby the defendant is guilty.’
[Citation.] ‘In deciding whether to give the instruction, the trial
court must ask whether (1) there is a risk the jury may divide on
two discrete crimes and not agree on any particular crime, or
(2) the evidence merely presents the possibility the jury may
divide, or be uncertain, as to the exact way the defendant is
guilty of a single discrete crime. In the first situation, but not the
second, it should give the unanimity instruction.’” (People v.
Covarrubias (2016) 1 Cal.5th 838, 878; accord, People v.
Garcia (2022) 76 Cal.App.5th 887, 896.)
“If only one agreement existed only one conspiracy
occurred, whatever the precise overt act or acts may have been.”
(Russo, supra, 25 Cal.4th at p. 1135; accord, People v. Kopp (2019)
38 Cal.App.5th 47, 84 [“‘[T]he essence of the crime of conspiracy
is the agreement, and thus it is the number of the agreements
31
(not the number of the victims or number of statutes violated)
that determine the number of the conspiracies.’”], limited review
granted Nov. 13, 2019, S257844.) “‘“Performance of separate
crimes or separate acts in furtherance of a conspiracy is not
inconsistent with a ‘single overall agreement.’”’” (Kopp, at p. 84;
see Russo, at p. 1135.)
“[W]hen the evidence suggests more than one discrete
crime, either the prosecution must elect among the crimes or the
court must require the jury to agree on the same criminal act.”
(Russo, supra, 25 Cal.4th at p. 1132.) “‘The prosecution can make
an election by “tying each specific count to specific criminal acts
elicited from the victims’ testimony”—typically in opening
statement and/or closing argument. [Citations.] [¶] Under these
principles, there is an implicit presumption that the jury will rely
on the prosecution’s election and, indeed, is bound by it.’” (People
v. Brugman (2021) 62 Cal.App.5th 608, 627; accord, People v.
Brown (2017) 11 Cal.App.5th 332, 341.)
“Because our consideration of whether the trial court
should have given a particular jury instruction involves a mixed
question of law and fact which is ‘“predominantly legal,”’ we
review de novo whether the specific instruction was required.”
(People v. Sorden (2021) 65 Cal.App.5th 582, 616; accord, People
v. Hernandez (2013) 217 Cal.App.4th 559, 568.)
2. A unanimity instruction was not required
The People charged and tried only one conspiracy: the
conspiracy among GTC members to murder 456 gang members in
retaliation for the disrespectful music video Wright and others
made in GTC territory. The prosecutor’s closing and rebuttal
arguments are consistent with this single theory of the crime,
32
with no suggestion the agreement was anything other than an
agreement among members of GTC to kill in retaliation. The
additional conspiracies Williams fashions are merely acts taken
in furtherance of that agreement, alleged in the complaint and
argued at trial as overt acts. As discussed, there is no evidence of
a spontaneous agreement formed among Williams, Buckner,
Slayton, and Deantae to return fire after their SUV crashed and
the 456 members who had been chasing them began to shoot, nor
did the People argue any such agreement as a basis for
conviction. By contrast, Williams exchanged messages with more
than a dozen individuals following the filming of the 456 video
evidencing an intent to kill, including his August 16 message that
456 members needed to “die,” and Deantae responded by
organizing GTC members and working with Williams to procure
guns and ammunition. Indeed, it was Deantae who first
suggested Williams reach out to his contacts in Vegas to “set
something up[].” Williams’s later message to Gstone Locsta that
someone was “bringing [him] that big thang from Vegas” so “it’s
on” strongly suggests Deantae was directing Williams to try to
get an assault rifle to use in GTC’s retaliation. In light of the
People’s clear election to prosecute a single, discrete criminal
agreement, the trial court did not err in omitting the unanimity
instruction.
C. The Trial Court Did Not Err in Denying Williams’s Request
for a Self-defense Instruction
1. Trial court proceedings
Williams’s attorney requested the trial court instruct the
jury with CALCRIM No. 3470, regarding the right to self-defense
or defense of another, and CALCRIM No. 3471, regarding the
33
right to self-defense in mutual combat. Williams’s attorney
argued the evidence supported the instruction because the jury
could find Williams shot at 456 gang members during the August
29 shootout, the final overt act alleged as to the conspiracy to
commit murder, only in self-defense. The court denied the
request, reasoning that “if there’s an agreement to commit
murder, the overt act has to be in furtherance of that agreement
in order for the crime of conspiracy to have been committed. And
if the shooting of a gang member was done not in furtherance of
an agreement, or if there was no agreement, then they are not
guilty of conspiracy to commit the offense.”
During closing argument, Williams’s attorney asserted that
on August 29 Williams, Buckner, Slayton, and Deantae were
chased by the 456 members, and after the GTC members crashed
their vehicle, the 456 members attacked. Williams’s attorney
asserted the 456 members were the aggressors “[a]nd if GTC, in
running away, shot, it’s a reasonable inference from the evidence
that that could be in self-defense.” In rebuttal, the prosecutor
acknowledged the GTC members were being “chased down” by
the 456 members, but argued “self-defense does not apply to a
conspiracy.” Further, the ballistics evidence showed the GTC
members continued to fire on the 456 members’ car even while
the 456 members’ car drove away, demonstrating the GTC
members’ intent to kill.
2. Substantial evidence did not support instructing the
jury with self-defense as to the conspiracy
Williams contends the trial court prejudicially erred by
denying his request for a self-defense instruction. The People
argue self-defense is inapplicable to conspiracy to commit
murder, and even if it is a defense to the crime, the evidence did
34
not support the instruction. The People have the better
argument as to the latter contention.
Homicide is justified when it is committed in self-defense,
that is, when the defendant actually and reasonably believes the
killing is necessary to avert imminent bodily injury or death.
(Beck and Cruz, supra, 8 Cal.5th at p. 648; accord, People v.
Elmore (2014) 59 Cal.4th 121, 133-134; §§ 197, 198.) “‘[S]uch a
killing is not a crime.’” (Beck and Cruz, at p. 648; Elmore, at
p. 134.) Because a conspiracy to commit murder requires proof
the defendant acted with the specific intent unlawfully to kill,
self-defense could be (in a narrow set of circumstances) a
complete defense to a charge of conspiracy to commit murder,
contrary to the People’s first line of argument.
We can envision a situation, such as that described by
Williams in his brief, wherein cohabitants jointly agree to use
lethal force in response to a violent home invasion where each
actually and reasonably believed in the need to defend against
imminent bodily injury or death. The People’s argument that
self-defense cannot apply to conspiracy to commit murder
because the target offense of the conspiracy need not be
completed ignores the fact that the prosecution must prove the
defendant entered the agreement with the specific intent
unlawfully to kill. Because a killing done in perfect self-defense
is not unlawful, neither could an agreement made to commit such
an act be unlawful.
However, “‘“[a] trial court need give a requested instruction
concerning a defense only if there is substantial evidence to
support the defense.”’” (People v. Nguyen (2015) 61 Cal.4th 1015,
1049; accord, People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.)
An instruction is not required where only “[s]peculative, minimal,
35
or insubstantial evidence” supports the instruction. (People v.
Simon (2016) 1 Cal.5th 98, 132, 134 [evidence did not support
giving instruction on imperfect self-defense].) As discussed, we
review de novo whether the specific instruction was required.
(People v. Sorden, supra, 65 Cal.App.5th at p. 615; People v.
Hernandez, supra, 217 Cal.App.4th at p. 568.)
Williams contends substantial evidence supports a jury
finding the agreement to kill was formed on August 29, only after
Wright and other 456 members opened fire on Williams,
Buckner, Slayton, and Deantae in the crashed SUV. Williams
asserts the GTC members might have then fired back only in self-
defense, noting Deantae’s jailhouse call to Carter, in which he
stated, “I was on my way home” when “[t]hey got behind us.”
According to Williams, “The moments after the crash . . .
provided the strongest evidence that appellant and at least one
other person agreed and intended to kill.”
Williams’s argument fails because there is no evidence the
occupants of the crashed SUV reached a spontaneous agreement
to kill the 456 members firing upon them at that moment, and
certainly no substantial evidence requiring an instruction on self-
defense. Rather, the evidence shows only that some of the GTC
members, possibly including Williams, returned fire. Consistent
with the absence of evidence the group formed a spur-of-the-
moment agreement (as Williams puts it), the prosecution’s theory
of the case, in both evidence and argument, was that Williams
conspired with fellow GTC members to kill 456 members in
response to the disrespectful music video Wright made in GTC
territory. In light of the evidence presented at trial, the jury may
well have not have found the August 29 shootout was an overt act
in furtherance of the conspiracy, but no reasonable juror would
36
convict Williams of conspiracy to commit murder based on the
unsupported theory that Williams and his confederates
spontaneously conspired to kill the 456 members firing upon the
SUV after the crash.
D. The Trial Court Did Not Err in Allowing Detective Dolgovin
To Testify Regarding Messages Exchanged Among
Defendants and Uncharged Persons
1. Trial court proceedings
During cross-examination of Detective Dolgovin, Williams’s
attorney inquired whether Williams’s messages that 456
members needed to “die” were sent to Buckner, Slayton, or
Deantae. Detective Dolgovin answered he “believ[ed] that
specific message was sent to somebody else.”
On redirect examination, the prosecutor asked Detective
Dolgovin about a photograph showing numerous GTC members
“flashing gang signs all together.” The detective confirmed he
had seen the photo and it showed 10 to 15 persons. The
prosecutor then inquired, “[B]ased on the Facebook messenger
message . . . [was there] a larger number of people involved in the
agreement, the conspiracy, whatever you want to call it, to
acquire firearms than are those people that are just in court right
now? There’s other uncharged, co-conspirators involved in this
case; is that correct?” Williams’s attorney objected that the
question was speculative and lacked foundation, but the court
overruled the objection. Detective Dolgovin answered, “Yes,
there are messages to other people talking about obtaining
firearms, about shipping them out overnight, to providing ammo,
things of that sort, yes.” The prosecutor continued, “And people
were messaging . . . to and from individuals who are in this case,
37
in this courtroom right now about having to retaliate and put in
work, and ‘how do you guys live with yourself,’ or ‘this kind of
thing happening in our hood,’ all that kind of stuff?” Williams’s
attorney again objected based on “foundation and speculation.”
The trial court then asked the witness, “Are you aware of other
messages from others concerning the same topics?” Detective
Dolgovin answered, “Yes.”
2. Williams forfeited the argument Detective Dolgovin
presented an improper opinion on Williams’s guilt,
and in any event, the argument lacks merit
Williams contends the trial court erred in allowing
Detective Dolgovin to testify regarding messages shared among
the defendants and other uncharged persons, arguing the
testimony improperly invaded the province of the jury by
addressing the ultimate issue of Williams’s guilt or innocence.
The People respond that Williams forfeited this contention by
failing to object on this specific ground in the trial court, and in
any event, the testimony was properly admitted.
We agree Williams forfeited the argument by failing to
raise this issue in the trial court. Generally, a defendant must
raise in the trial court a timely objection “stated as to make clear
the specific ground of the objection” to preserve for appeal a claim
the evidence was erroneously admitted. (Evid. Code, § 353; see
People v. Cordova (2015) 62 Cal.4th 104, 135.) Although
Williams’s counsel objected based on speculation and lack of
foundation, those objections are not sufficient to preserve the
claim asserted on appeal that Dolgovin gave improper opinion
testimony regarding Williams’s guilt. (See People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 81 [trial counsel’s objection for lack
38
of foundation instead of impermissible opinion on witness
credibility forfeited improper opinion claim]; People v.
Lund (2021) 64 Cal.App.5th 1119, 1150 [defendant’s objections of
hearsay, leading, and speculation did not preserve argument the
prosecutor committed misconduct in questioning of officer
because prosecutor questioning amounted to testifying as a
witness].)
Even if Williams had not forfeited his claim, it lacks merit.
“Testimony in the form of an opinion that is otherwise admissible
is not objectionable because it embraces the ultimate issue to be
decided by the trier of fact.” (Evid. Code, § 805; see People v.
Duong (2020) 10 Cal.5th 36, 60.) However, “‘a witness cannot
express an opinion concerning the guilt or innocence of the
defendant. . . . [O]pinions on guilt or innocence are inadmissible
because they are of no assistance to the trier of fact. To put it
another way, the trier of fact is as competent as the witness to
weigh the evidence and draw a conclusion on the issue of guilt.’”
(Duong, at p. 60; accord, People v. Clotfelter (2021) 65 Cal.App.5th
30, 55.) We review evidentiary rulings for an abuse of discretion.
(People v. Caro (2019) 7 Cal.5th 463, 503; People v. Lightsey
(2012) 54 Cal.4th 668, 729.)
Detective Dolgovin did not opine as to the ultimate
question whether Williams was guilty of conspiracy to commit
murder. Rather, he testified he was aware of messages to and
from uncharged individuals about such things as obtaining
firearms and ammunition and putting in “work” for the gang.
Williams argues the wording of the prosecutor’s question “is
relevant to a reasonable interpretation of the witness’s answer,”
relying on People v. Margarejo (2008) 162 Cal.App.4th 102, 107.
Williams is correct that a prosecutor’s question informs the
39
witness’s answer, but Williams makes too much of the
prosecutor’s choice of words. The prosecutor asked whether the
Facebook messages showed a “conspiracy, [or] whatever you want
to call it, to acquire firearms” and Facebook messages between
“uncharged co-conspirators.” But Detective Dolgovin did not use
this phrasing in his answer, simply responding that there were
messages to “other people” about obtaining firearms and
ammunition and putting in “work.” And the Facebook messages
that were the subject of the prosecutor’s questions were admitted
into evidence, discussed at length in trial testimony, and
available to the jury during its deliberations. No reasonable juror
would have interpreted Detective Dolgovin’s answers as offering
an opinion that Williams was guilty of conspiracy to commit
murder (as opposed to focusing on whether other uncharged
persons were involved). (See People v. Sandoval (2015)
62 Cal.4th 394, 415 [sergeant’s testimony that gangs often bring
assault weapons to a planned retaliation against a rival gang
leader, so they can attack the police if they arrive during the
confrontation, did not offer an impermissible opinion as to
defendant’s guilt on murder charge]; People v. Prince (2007)
40 Cal.4th 1179, 1227 [FBI agent’s testimony he believed the
same person committed all the murders “did not bind the jury”
and would not have been understood to mean the jury should find
the defendant guilty].)21
21 Because we conclude Williams’s contention lacks merit, we
do not reach his argument his attorney provided ineffective
assistance of counsel by failing to object.
40
E. Any Error in Admitting the Recording of Wright’s
Statements During the Perkins Operation Was Harmless
1. Trial court proceedings
Before trial, the prosecutor sought to introduce the audio
recording of Wright’s jailhouse conversation with an undercover
agent made during the Perkins operation. At the time Wright
was a codefendant in the case. The prosecutor argued the
recording was admissible because Wright was unavailable to
testify. Williams’s attorney objected to the admission of Wright’s
identification of “Awacc” as a GTC member who was present
during the shootout, noting Williams would have no ability to
cross-examine Wright on the issue unless Wright voluntarily
testified at trial. The court deferred its ruling.
During jury selection, Wright pleaded no contest to the
attempted murders of Williams, Buckner, Slayton, and Deantae,
admitted the charged firearm and gang enhancements, and
agreed to a 30-year sentence.22 As part of the plea, Wright
waived his right to appeal. At the hearing, the prosecutor noted,
“We are not calling [Wright] as a witness in this matter.” The
court set Wright’s sentencing for February 21, 2020, but later
continued it to February 28. When the trial proceedings
resumed, the court announced to the jury, “Mr. Wright is no
longer part of this trial.”
On February 4, 2020, the day before the People’s case
began, the trial court reviewed the audio recording of the Perkins
operation. Williams’s attorney argued Wright’s identification of
22 On June 9, 2022 we granted Williams’s request for judicial
notice of the trial court’s minute orders dated January 31 (entry
of Wright’s plea), February 21 (continuing Wright’s sentencing),
and February 28, 2020 (sentencing).
41
“Awacc” was not reliable, but he did not seek to exclude the
remainder of the recording. The court ruled it would admit the
entire recording into evidence.
On February 18 Williams’s attorney renewed his objection
to the recording of the Perkins operation before the People played
it for the jury. He noted that Wright was no longer a defendant
in the case, and admission of the evidence would deny Williams
the ability to confront and cross-examine Wright. The prosecutor
argued in response, “The fact that Mr. Wright is not here has no
legal effect upon the admissibility analysis.” The court overruled
Williams’s objection, and the prosecutor played the recording for
the jury.
The trial court sentenced Wright on February 28, the same
day the jury returned its verdict.
2. Governing law
“Although hearsay statements are generally inadmissible
under California law (Evid. Code, § 1200, subd. (b)), the rule has
a number of exceptions.” (People v. Grimes (2016) 1 Cal.5th 698,
710; accord, People v. Landau (2016) 246 Cal.App.4th 850, 866
[“Hearsay evidence is inadmissible ‘[e]xcept as provided by
law.”’].) Evidence Code section 1230 provides a hearsay exception
for statements against interest: “Evidence of a statement by a
declarant having sufficient knowledge of the subject is not made
inadmissible by the hearsay rule if the declarant is unavailable
as a witness and the statement, when made, was so far contrary
to the declarant’s pecuniary or proprietary interest, or so far
subjected him to the risk of civil or criminal liability . . . , that a
reasonable man in his position would not have made the
statement unless he believed it to be true.” (See People v.
42
Chhoun (2021) 11 Cal.5th 1, 47; Grimes, at pp. 710-711.) “To
satisfy the exception, the proponent ‘“must show ‘that the
declarant is unavailable, that the declaration was against the
declarant’s penal [or other] interest, and that the declaration was
sufficiently reliable to warrant admission despite its hearsay
character.’”’” (Chhoun, at p. 47; accord, Grimes, at p. 711.) As
relevant here, Evidence Code section 240, subdivision (a)(1),
defines “‘unavailable as a witness’” to mean the declarant is
“[e]xempted or precluded on the ground of privilege from
testifying concerning the matter to which his or her statement is
relevant.”
“One such privilege, the exercise of which makes a person
unavailable as a witness, is the constitutional privilege against
self-incrimination.” (People v. Cudjo (1993) 6 Cal.4th 585, 616;
accord, People v. Duarte (2000) 24 Cal.4th 603, 609 [“Having
invoked his Fifth Amendment right not to incriminate himself,
[the defendant] was, for hearsay rule purposes, not available as a
witness.”].) The privilege against self-incrimination has two
aspects: it protects a defendant in a criminal case from being
called to the stand as a witness and testifying in the defendant’s
own trial, and it protects any person from being required to give
answers in any proceeding that tend to incriminate the person.
(People v. Ford (1988) 45 Cal.3d 431, 439 & fn. 5; Black v. State
Bar of California (1972) 7 Cal.3d 676, 685; Evid. Code, §§ 930,
940.) As to the latter aspect of the right, “a witness who has not
exercised his privilege against self-incrimination is not an
‘unavailable’ witness.” (Ford, at p. 435; see People v.
Hollinquest (2010) 190 Cal.App.4th 1534, 1547 [“A witness who
successfully asserts the privilege against self-incrimination is
unavailable to testify for these purposes.” (Italics added.)].) “[I]n
43
order to assert the privilege against self-incrimination a witness
must not only be called, but must also be sworn.” (Ford, at
p. 440; accord, People v. Harris (1979) 93 Cal.App.3d 103, 117
[“[B]efore a claim of privilege can be sustained, the witness
should be put under oath and the party calling him be permitted
to begin his interrogation. Then, the witness may invoke his
privilege with regard to the specific question and the court is in a
position to make the decision as to whether the answer might
tend to incriminate the witness.”].)
We review for an abuse of discretion a trial court’s decision
whether a statement is admissible under Evidence Code
section 1230. (People v. Chhoun, supra, 11 Cal.5th at p. 47;
People v. Grimes, supra, 1 Cal.5th at pp. 711-712.)
3. The trial court erred in finding Wright was
unavailable as a witness, but the error was harmless
Williams’s sole contention as to admission of Wright’s
statements during the Perkins operation is that the court erred in
finding Wright was unavailable as a witness after he pleaded no
contest and was no longer a codefendant in Williams’s trial
because the court did not require the People to call Wright as a
witness. The People assert Wright was unavailable because his
absolute privilege against being called to testify at his own trial
persisted despite his guilty plea, until at least his sentencing.23
23 We decline to find Williams forfeited his contention, as
argued by the People. Williams’s attorney’s objections were
sufficient “‘to alert the trial court to the nature of the anticipated
evidence and the basis on which exclusion is sought, and to afford
the People an opportunity to establish its admissibility.’” (People
v. Partida (2005) 37 Cal.4th 428, 435.)
44
The People’s argument conflates the two aspects of the
privilege against self-incrimination. The People are correct the
privilege not to give answers tending to incriminate one’s self
generally survives a guilty plea and persists at least until
sentencing. (People v. Fonseca (1995) 36 Cal.App.4th 631, 635 [“it
is clear in California that one retains the privilege [against self-
incrimination] at least until he has been sentenced and, if he
appeals, pending resolution of the appeal”]; People v.
Kizzee (1979) 94 Cal.App.3d 927, 938 [“an accused does not lose
his privilege against self-incrimination until he has been
sentenced”].) Thus, arguably had Wright been called to testify,
he could have validly invoked his privilege against self-
incrimination.
However, it does not follow that Wright possessed the
narrower privilege against being called to testify at his own trial.
Simply put, Wright was no longer on trial after he pleaded no
contest. Thus, for Wright to assert the privilege against self-
incrimination, he needed to be called and sworn. (People v. Ford,
supra, 45 Cal.3d at p. 440.) Because Wright was never called and
sworn, and therefore never asserted the privilege, the trial court
erred in finding he was unavailable to testify for purposes of
Evidence Code section 1230.
Although we find error, we agree with the People the error
was harmless. We will not reverse a judgment for the improper
admission of hearsay in violation of state statutory law unless it
is reasonably probable that a result more favorable to the
defendant would have been reached in the absence of the error
under People v. Watson (1956) 46 Cal.2d 818. (People v.
Valencia (2021) 11 Cal.5th 818, 840; People v. Landau, supra,
246 Cal.App.4th at p. 866 [“As a general rule, the erroneous
45
admission of hearsay evidence will not result in a reversal unless
it is reasonably probable the defendant would have received a
more favorable result had the evidence not been admitted.”].)24 It
24 We reject Williams’s contention we must assess the error
under the federal constitutional standard of Chapman v.
California, supra, 386 U.S. at page 24, which requires any error
be harmless beyond a reasonable doubt. Williams’s argument the
error violated his right to confrontation fails because he has not
shown Wright’s statements during the Perkins operation were
testimonial under Crawford v. Washington (2004) 541 U.S. 36,
68-69 because “the statement must have been given and
taken primarily for the purpose ascribed to testimony—to
establish or prove some past fact for possible use in a criminal
trial.” (People v. Cage (2007) 40 Cal.4th 965, 984, italics omitted;
accord, People v. Gallardo (2017) 18 Cal.App.5th 51, 67; see Davis
v. Washington (2006) 547 U.S. 813, 825 [“statements made
unwittingly to a Government informant” are nontestimonial].)
As we explained in Gallardo, “[a]lthough the declarant and the
interrogator’s perspectives are both relevant to determining the
‘primary purpose’ of the statement [citation] . . . , it is ‘“in the
final analysis the declarant’s statements, not the interrogator’s
questions, that the Confrontation Clause requires us to evaluate.’
[Citation.]’ [Citation.]. The Sixth Amendment applies when the
statement, rather than the question that elicited it, was made
‘with some degree of formality or solemnity.’” (Gallardo, at
pp. 67-68 [statements to wired jailhouse informants were not
testimonial because declarant had no belief his statements were
being monitored and would be used in prosecution].) As in
Gallardo, it is clear Wright did not make the statements to the
undercover officer expecting his statements would be monitored
and used at trial.
Nor has Williams shown the error deprived him of due
process by rendering his trial fundamentally unfair. (See People
v. Partida, supra, 37 Cal.4th at p. 439 [“[a]bsent fundamental
unfairness, state law error in admitting evidence is subject to the
46
is not reasonably probable Williams would have received a more
favorable result absent the admission of Wright’s statements.
As discussed, the evidence against Williams was strong,
and the most compelling evidence of Williams’s participation in a
conspiracy to kill 456 gang members was the series of messages
sent and received by Williams after he learned Wright made a
music video in GTC territory. Although Wright identified
“Awacc” as a GTC member present during the August 29
shootout, ample other evidence placed Williams at the scene,
including that Williams’s phone and mail were found inside the
SUV; Williams was arrested near the crash site shortly after the
incident; and DNA evidence linked Williams to the assault rifle,
handgun, and polo shirt found near the scene.
Williams argues he was prejudiced by Wright’s statement a
GTC member held a gun out of the window of the SUV but did
not shoot, given Detective Dolgovin’s opinion that it could have
been Williams attempting to fire the misloaded assault rifle,
thereby making Williams as the potential shooter sound more
culpable than the other defendants. But Williams’s jailhouse call
also provided evidence a GTC member attempted to, but could
not, fire the assault rifle at 456 members. Williams asked the
person on the call to “tell D-3 . . . that shit that he brought out
here to a nigga did not work at all.” Williams had previously sent
a Facebook message to Avalos asking him to get an assault rifle
traditional Watson test”]; People v. Dryden (2021) 60 Cal.App.5th
1007, 1025-1026 [“For the erroneous admission of evidence to
amount to a denial of due process, the evidence must have been
‘“sufficiently material to provide the basis for conviction or to
remove a reasonable doubt that would have existed on the record
without it.”’”].)
47
“from D3.” In addition, DNA obtained from the assault rifle
magazine showed Williams was a 40 percent contributor, with
three other contributors. In light of this evidence that placed
Williams at the scene and pointed to one of the GTC members in
the SUV attempting but being unable to fire the assault rifle, it is
not reasonably probable exclusion of Wright’s statements would
have changed the outcome.
F. Assembly Bill 333 Requires Reversal of the Gang
Enhancements
Section 186.22 provides for enhanced punishment when a
defendant is convicted of an enumerated felony committed “for
the benefit of, at the direction of, or in association with a criminal
street gang, with the specific intent to promote, further, or assist
in any criminal conduct by gang members.” (§ 186.22,
subd. (b)(1).) Effective January 1, 2022, Assembly Bill 333 made
significant modifications to the requirements for proving a
criminal street gang enhancement. As relevant here, Assembly
Bill 333 modified the definition of “‘pattern of criminal gang
activity’” in section 186.22, subdivision (e). Formerly, the law
required proof of two or more predicate offenses enumerated in
that subdivision, “provided at least one of these offenses occurred
after the effective date of this chapter and the last of those
offenses occurred within three years after a prior offense, and the
offenses were committed on separate occasions, or by two or more
persons.” As amended, subdivision (e)(1) now requires proof that
“at least one of these offenses occurred after the effective date of
this chapter, and the last of those offenses occurred within three
years of the prior offense and within three years of the date the
current offense is alleged to have been committed, the offenses
48
were committed on separate occasions or by two or more
members, the offenses commonly benefited a criminal street
gang, and the common benefit of the offense is more than
reputational.” (§ 186.22, subd (e)(1), italics added.) Further,
“[t]he currently charged offense shall not be used to establish the
pattern of criminal gang activity.” (§ 186.22, subd. (e)(2).) New
section 186.22, subdivision (g), provides, “As used in this chapter,
to benefit, promote, further, or assist means to provide a common
benefit to members of a gang where the common benefit is more
than reputational. Examples of a common benefit that are more
than reputational may include, but are not limited to, financial
gain or motivation, retaliation, targeting a perceived or actual
gang rival, or intimidation or silencing of a potential current or
previous witness or informant.”
In In re Estrada (1965) 63 Cal.2d 740, the Supreme Court
held that statutory amendments that reduce the punishment for
an offense apply retroactively to a defendant whose judgment is
not yet final absent a contrary legislative intent. (Id. at p. 745;
see People v. Superior Court (Lara) (2018) 4 Cal.5th 299[discussing Estrada and its progeny].) Assembly Bill 333’s
changes to the required elements to prove a section 186.22 gang
enhancement apply retroactively to Williams’s conviction under
Estrada. (People v. Tran (2022) 13 Cal.5th 1169, 1206-1207
[Assembly Bill 333’s amendments to the elements of a
section 186.22 gang enhancement “have the effect of ‘increas[ing]
the threshold for conviction of the section 186.22 offense and the
imposition of the enhancement,’ with obvious benefit to
defendants”]; People v. E.H. (2022) 75 Cal.App.5th 467, 478
[“Assembly Bill 333’s substantive changes apply retroactively to
all cases . . . in which the judgment of conviction is not yet final
49
because the changes ‘redefine, to the benefit of defendants,
conduct subject to criminal sanctions.’”]; People v. Delgado, supra,
74 Cal.App.5th at p. 1087 [“Although the amendments effective
in 2022 do not alter the punishment imposed for a gang
enhancement, Estrada retroactivity applies because the
amendments increase the threshold for imposition of the
enhancement.”].)
Williams contends, the People concede, and we agree
reversal of the gang enhancements is required. There was no
evidence with respect to the predicate offenses committed by
Alrazaa and Ezeh that the conduct provided a common benefit to
GTC that was more than reputational. And with respect to the
third predicate act, the May 8, 2015 murder of Montgomery for
which Parker and Smith were convicted, the offense did not occur
within three years of the underlying August 2018 offenses.
(§ 186.22, subd. (e)(1).) Thus, these convictions do not meet the
new requirements of section 186.22 and must be reversed. We
remand to give the prosecution an opportunity to retry the gang
enhancements under current law. (See People v. E.H.,
supra, 75 Cal.App.5th at p. 480 [“The proper remedy for this type
of failure of proof —where newly required elements were ‘never
tried’ to the jury—is to remand and give the People an
opportunity to retry the affected charges.”]; People v. Lopez (2021)
73 Cal.App.5th 327, 346 [vacating gang enhancements in light of
Assembly Bill 333 and remanding for limited retrial].) Further,
“Assembly Bill 333’s changes to section 186.22 affect not only the
gang enhancement allegations under that statute but other
statutes that expressly incorporate provisions of section 186.22.”
(Lopez, at p. 346.) As a result, the suspended 25-years-to-life
third strike sentence on count 4 must also be vacated because the
50
conviction of violating section 29800, subdivision (a)(1), does not
qualify as a serious felony without the gang enhancement. (See
§ 1192.7, subd. (c)(28) [defining “‘serious felony’” under the three-
strikes law to mean “any felony offense, which would also
constitute a felony violation of Section 186.22”].)25
G. Assembly Bill 333 Does Not Require Reversal of Williams’s
Convictions on Counts 1 and 4
In addition to the definitional changes to section 186.22,
Assembly Bill 333 added section 1109, which requires trial of a
gang enhancement charged under section 186.22, subdivision (b),
be bifurcated from and follow trial of the underlying offenses if
requested by the defendant. (§ 1109, subd. (a); Stats. 2021,
ch. 699, § 5, pp. 11-12.) Williams contends section 1109 also
applies retroactively to his case. (See People v. Montano (2022)
80 Cal.App.5th 82, 108 [holding section 1109 is retroactive to
nonfinal cases]; People v. Ramos (2022) 77 Cal.App.5th 1116,
1130 [same]; People v. Burgos (2022) 77 Cal.App.5th 550, 568,
review granted July 13, 2022, S274743 [same].) The People
argue the bifurcation provision is not retroactive. (See People v.
Boukes (2022) 83 Cal.App.5th 937, 948, review granted Dec. 14,
2022, S277103 [section 1109 is not an ameliorative statute that
reduces punishment; accordingly, it does not apply
25 The amendment to section 186.22, subdivision (b)(3),
constraining the trial court’s discretion to impose the upper (or
lower) term of a gang enhancement became effective January 1,
2023. If the People elect to retry the gang enhancements and the
jury finds they are true, the amendment to subdivision (b)(3)
would apply to Williams’s resentencing.
51
retroactively]; People v. Ramirez (2022) 79 Cal.App.5th 48, 65,
review granted Oct. 12, 2022, S275341 [same].)
In People v. Tran, supra, 13 Cal.5th 1169, the Supreme
Court recognized this split of authority among the Courts of
Appeal but declined to resolve the question whether section 1109
applies retroactively, instead concluding the asserted error in
failing to bifurcate was harmless under the People v. Watson,
supra, 46 Cal.2d 818 standard for state-law error. (Tran, at
pp. 1208-1210.) So too here, even if section 1109 is retroactive,
any error in denying Williams’s request to bifurcate trial of the
gang allegations is not reasonably likely to have affected the
outcome. Williams argues evidence of murders and assaults
committed by members of GTC and 456 would not have been
admitted had the proceedings been bifurcated. But the most
inflammatory evidence presented—the 2015 murder of 456
member Montgomery by GTC members Parker and Smith—was
relevant to show the violent nature of the conflict between the
two gangs in 2018, which would have been admissible (subject to
an Evidence Code section 352 motion) to show the motive for
commission of the charged offenses even had the court bifurcated
trial of the gang enhancements. The other predicate offenses
were for possession of a firearm and criminal threats, and Officer
Sacca’s testimony as to GTC’s primary activities included only
the general statement that GTC’s primary activities included
robbery, assault with a deadly weapon, and murder, among other
crimes. Williams moved for bifurcation of the trial on the gang
allegation based on the prejudicial nature of the evidence, but the
trial court denied the motion on the basis the gang evidence was
necessary to understand the gang war that led to the shooting
and the motive to retaliate. In light of the nature of the
52
testimony regarding the underlying offenses, including the GTC
gang members’ efforts to obtain guns and ammunition to
retaliate against the 456 gang and the text messages stating that
456 members needed to die, it is not reasonably probable
Williams would have obtained a more favorable verdict had
Officer Sacca’s testimony not been admitted in the prosecution’s
case-in-chief.
H. Assembly Bill No. 518 Requires Resentencing
Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021,
ch. 441), effective January 1, 2022, amended section 654 “to
remove the requirement that a court impose the longest sentence
when a defendant is convicted of more than one offense arising
from the same conduct.” (People v. Lopez (2022) 78 Cal.App.5th
459, 468; accord, People v. Mani (2022) 74 Cal.App.5th 343, 351.)
Williams argues, the People concede, and we agree this case
should be remanded for resentencing so the trial court may
exercise its discretion whether to sentence Williams on count 1 or
4, and then, pursuant to amended section 654, to impose and stay
execution of sentence on the other count.
I. Williams Was Not Prejudiced by the Cumulative Effect of
the Errors
Williams contends he suffered cumulative prejudice from
multiple errors. “‘[A] series of trial errors, though independently
harmless, may in some circumstances rise by accretion to the
level of reversible and prejudicial error.’” (People v. Cunningham
(2001) 25 Cal.4th 926, 1009; accord, In re Reno (2012) 55 Cal.4th
428, 483 [“In theory, the aggregate prejudice from several
53
different errors occurring at trial could require reversal even if no
single error was prejudicial by itself.”].) In evaluating cumulative
prejudice, we consider whether the aggregate errors caused the
trial to be fundamentally unfair in violation of the Fourteenth
Amendment’s due process guarantee. (People v. Rogers (2006)
39 Cal.4th 826, 890; Cunningham, at p. 1009 [cumulative error
did not render trial “fundamentally unfair,” observing
“[d]efendant was entitled to a fair trial but not a perfect one”];
People v. Thomas (2021) 64 Cal.App.5th 924, 971 [“‘The “litmus
test” for cumulative error “is whether defendant received due
process and a fair trial.”’”].)
Considered cumulatively, the three errors we found or
assumed did not affect the outcome of Williams’s trial or render it
fundamentally unfair. As discussed, the jury instruction on
implied malice murder was harmless beyond a reasonable doubt,
and there is no reasonable probability the admission of Wright’s
testimony or the denial of Williams’s bifurcation motion affected
the outcome at trial.
54
DISPOSITION
Williams’s convictions on counts 1 and 4 are affirmed. The
true findings on the criminal street gang enhancements are
reversed, and Williams’s sentence is vacated. The matter is
remanded to provide the People an opportunity to retry the
enhancements. If the People elect not to do so, Williams is to be
resentenced in a manner consistent with this opinion and all
applicable ameliorative legislation.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
55