People v. Foster

Filed 3/1/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B296856
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA446457)
v.
TYRONE FOSTER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard S. Kemalyan, Judge. Affirmed.
Kelly Martin, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110,
this opinion is certified for publication with the exception of parts I,
III, IV, V, and VI of the Discussion.
A jury convicted defendant Tyrone Foster of one count of first
degree premeditated murder, and five counts of premeditated
attempted murder. The jury found true allegations that the crimes
were gang related and that Foster personally discharged a firearm.
The trial court sentenced Foster to a total term of 90 years to life in
state prison.
On appeal, Foster raises five issues, contending that: (1) the
trial court erred in admitting statements Foster made to an
undercover agent while in jail; (2) there was insufficient evidence to
support his conviction for five counts of attempted murder; (3) the
standard jury instructions failed to adequately describe the
requisite intent element for attempted murder; (4) there was
insufficient evidence the shooting was gang related; and (5) the
admission of a reference to an uncharged burglary was erroneous
and prejudicial. Foster further contends the trial court errors
accumulated so as to deprive him of his right to a fair trial.
In the published portion of this opinion, we hold that the
evidence was sufficient to support all five counts of attempted
murder. In the unpublished portion of the opinion, we conclude the
evidence was sufficient to support the gang enhancement
allegations. We further conclude the jury instructions were
adequate as given and that the trial court committed no evidentiary
error. Finding no errors to accumulate, we affirm.
FACTS AND PROCEEDINGS BELOW
A. Prosecution Evidence
1. The Shooting
On the afternoon of March 25, 2016, Robert Ellis went to his
usual barbershop located at “the Hut,” which was in a strip mall at
the corner of South Vermont Avenue and 55th Street. The Hut is a
known hangout for the Five Deuce Hoovers and Five One Trouble
gangs, and members in both gangs were customers of the barber
2
shop. There had been numerous shootings over many years at the
location of the shooting. Ellis, however, was not in the gangs, nor
was he wearing anything to suggest he was a gang member.
Ellis’s barber informed him that he had a few customers
ahead of him, so Ellis went outside. There were about 12 people in
the parking lot. The shop was busy because it was a holiday
weekend. At about 2:14 p.m., a shooter opened fire on the group
and Ellis was shot and killed.
The following events were captured by surveillance cameras,
and the videos were played at trial. The videos showed the shooter
walking up an alley toward the strip mall. The shooter, whose face
was partially obscured by a gray hoodie, ran up, crouched behind a
car, and then sprang up and fired seven shots from a semiautomatic
firearm. The shooter then ran away. One bullet struck and killed
Ellis. The rest of the people in the parking lot fled when the
shooting began.
Ellis, who had been shot in the chest, died within moments.
The bullet that struck Ellis lodged in his body. No other victims
were struck by gunfire. Seven expended .45 caliber casings were
found on the ground. As of the time of trial, the gun used in the
shooting had not been located.
2. Initial Investigation
On April 14, 2016, law enforcement held a press conference to
notify the public of a reward being offered for information regarding
the shooting. The information disclosed to the media included a
general description of the suspect, surveillance video of the
shooting, and published still photographs from the video—including
one that zoomed in on the shooter's face. The next day, Detective
Eric Crosson of the Los Angeles Police Department received tips
identifying five or six different people as the suspect. One of the
tips led Detective Crosson to locate a Facebook page for someone
3
with the profile name “Dolla Sign Fatal.” The account included
photographs of Foster. Crosson learned Foster's name by speaking
with gang officer Robert Smith, who knew Foster.
Geqjuan Perteet was identified as a “friend” on Foster's
account. Perteet’s Facebook page included photographs of Foster
displaying hand signs and wearing Nike basketball shoes that
appeared to be the same shoes worn by the shooter.
Detective Crosson obtained search warrants for two
residences associated with Foster, several phone records, and
Facebook accounts. In one of the residences, officers found mail
with Foster's name on it and a shoebox with gang graffiti on it. The
records obtained from Facebook revealed a telephone number for a
cell phone that was used to upload photographs to the account.
After obtaining the cell phone records and cell tower information
associated with the number, officers obtained an arrest warrant for
Foster.
3. Foster’s Arrest and Statements to an Undercover Agent
in Jail
Foster was arrested on May 5, 2016, and was taken to the
77th Street station. Video footage of Foster showed him walking
with the same distinctive gait visible in the video of the shooting
(with his feet turned out at the 10 and 2 o'clock position).
The police placed Foster in a cell with an undercover agent, as
part of a “Perkins operation.”1 The agent was wearing a hidden
1 In Illinois v. Perkins (1990) 496 U.S. 292 [110 S.Ct. 2394,
110 L.Ed.2d 243] (Perkins), the United States Supreme Court held
that a criminal suspect who makes incriminating statements is not
entitled to Miranda warnings “when the suspect is unaware that he
is speaking to a law enforcement officer and gives a voluntary
statement.” (Id. at p. 294; see Miranda v. Arizona (1966) 384 U.S.
436 [86 S.Ct. 1602, 16 L.Ed.2d 694]; see also People v. Williams
4
camera that recorded both video and audio. Video and audio
recordings from the body camera were played at trial.2
When Foster first entered the cell, he asked the agent what
he was in for and the agent said he was in custody for a “hot one,”
meaning a murder. Foster said, “Me too.” Foster asked the agent
about the status of his case and the nature of the evidence against
him. The agent talked about his purported offense and told Foster
the police had camera footage of his whole face and body, but did
not have footage of the shooting itself. Foster stated that, in his
case, the police could not just go off video footage because “if they
just got part of me or anything . . . that could be anybody.” He
added that the police did not have “my weapon, no clothing, no
witness.”
The agent asked Foster what “area” he was from, and Foster
answered “from 40’s.” The agent stated he too was from South
Central Los Angeles, and asked Foster if he was “still banging.”
Foster answered, “Hell yeah.” Foster agreed that if he was
released, he would “have all the respect in the world.”
The agent told Foster that “homies” will cooperate with the
police, and asked Foster if the police might be looking for someone
else in the offense. Before Foster could answer, the agent asked,
“Do you trust him?” Foster responded, “I don’t trust nobody . . . .”
When the agent said, “Hopefully they don’t catch him . . . . Just one
(1988) 44 Cal.3d 1127, 1141-1142 [stating Miranda “has never been
applied to conversations between an inmate and an undercover
agent”].)
2 At trial, the prosecutor played for the jury the entire tape of
the Perkins conversation, and the jury was provided a transcript as
an aid to go along with the tape. Since Foster does not point to any
inaccuracies in the transcript, although it was not admitted into
evidence, we rely on it for our summary of the Perkins conversation.
5
less thing you got to worry about,” Foster replied, “I think that’s the
only thing I’m worried about.”
After additional conversation, Foster said the person they
were discussing had been arrested on a robbery and was in jail. He
also said the person drove a Nissan. The agent told Foster to get in
touch with him. Foster said, “He Hispanic, bro,” and the agent said,
“Well, you could still get at him though.” Foster responded, “I could
tell some of your boys, huh?” The agent agreed, and asked for his
name. Foster said, “He don’t . . . bang though, but his name is
Duke,” or “Carlos Duke.”3
The agent asked if the police had found anything during a
search of Foster’s residence. Foster said they took an old pair of
shoes. The agent asked, “That’s . . . not the ones that you had on,
right?” Foster responded, “It’s close to the color,” but they were not
the same.
The agent asked Foster, “What enemy . . . they blaming you
for?” Foster said, “some Hoovers.” The agent asked if there had
been people near the person who was hit. Foster said there had
been, but that they were too busy running and ducking to get a good
look at him. The agent emphasized the importance of destroying
any possible evidence, saying Foster should get someone to “destroy
that gun,” and Foster said he would call someone. Foster spoke
with a guard, who told him that no telephone was available at that
time. Foster commented that he was not concerned about
fingerprints on the gun because he commonly wore gloves.
3 On April 24, 2016, Foster was in a white Nissan Altima
being driven by Carlos Duque Molina when it was stopped by the
police. The officer who conducted the stop testified that Duque was
Latino.
6
The agent asked Foster what kind of gun he used and Foster
said, “a chunky little .45.” Foster said the police had little to go on
because he had not shouted out his gang’s name when he committed
the shooting.
4. Cell Phone Data
Officers took Foster’s cell phone at the time of his arrest. The
phone was later searched. The location data for Foster’s phone was
consistent with him being in “very close proximity of the crime
scene” at the time of the shooting. Usage data for the phone
indicated it was used heavily both before and after the shooting, but
was turned off for the period between 2:17 p.m. and 2:46 p.m.,
immediately after the shooting at 2:14 p.m. Later that day, Foster
warned someone listed in his contacts as “Duke” to be on alert:
“Make sure u stay tucked don’t cum out for nothing.”
Foster’s search history reflected that he began investigating
news reports of the shooting on March 25 before the lead detectives
had even responded to the scene. His web search results between
March 25 and March 27 included a search for “Vermont and 55th
shooting,” and various other crimes including some committed in
South Los Angeles and some committed out of state. On April 27th,
he searched for “how long can gunpowder last on your clothes.”
5. Gang Evidence
Officer Robert Smith testified as a gang expert. He had
extensive experience with the Rollin’ 40’s gang, and had had
numerous encounters with Foster. He had known Foster to be a
gang member since at least 2013. The Rollin’ 40’s mostly had
African American members, but also had a small number of Latino
members. It was not a rival of any Latino gang, and lived in
“relative harmony” with a neighboring Latino gang.
The primary activities of the Rollin’ 40’s included committing
burglaries and shootings. Evidence of specific murders and a bank
7
robbery was presented as predicate, gang-related crimes. Foster
had been photographed on prior occasions throwing gang signs with
other Rollin’ 40’s members, including a man who was in custody for
attempted murder.
Officer Smith explained that gang members gain status by
committing violent crimes, especially against rivals. When asked a
hypothetical question based on the facts of the instant shooting,
Officer Smith opined that the crime was gang-related. Committing
such a shooting would increase the status of the shooter’s gang, as
well as the shooter’s status within the gang. The shooting would
also serve the gang’s interests by intimidating the public, and
strengthening the gang’s ability to claim the area and make money
in various ways, including demanding “taxes” from businesses
located in the gang’s territory. Gang members would lose respect
for falsely claiming crimes and face “repercussions.”
Detective Crosson also testified that the nature of the
shooting indicated it was gang-motivated. He explained that
committing such a shooting in Five Deuce Hoover territory would be
disrespectful of the Hoovers, even if the person actually shot was
not himself a member.
Criminal street gangs use graffiti to mark their territory and
identify their enemies. At the time of the shooting, there was
graffiti across the street from the strip mall. The graffiti claimed
Five Deuce Hoover and Five One Troubles control of the area, and
asserted a threat against various other gangs, including the Rollin’
40’s. The threat against the Rollin’ 40’s was expressed by crossing
out the number “40” with the letter “K” next to it. The designation
of a “K” next to the crossed-out number meant those enemies would
be killed.
8
B. Defense Case
1. Tyrone Mena
Tyrone Mena testified he had known Foster since the ninth
grade, lived with him during high school, and stayed in touch
thereafter. Mena had never known Foster to be aggressive or
violent. Mena did not know Foster to be a gang member, but knew
that Foster hung out with Rollin’ 40’s gang members. Mena had a
prior conviction for grand theft, which was not gang related.
2. Defendant Foster
Foster testified on his own behalf. He was 22 years old at the
time of the shooting. He grew up in the territory claimed by the
Five One Troubles gang and knew the area of the shooting was
territory claimed by that gang. Foster admitted to the jury he was
a member of the Rollin’ 40’s. However, he described his
participation in the Rollin’ 40’s as a means of socializing and
publicizing his music by lending him “street credit.”
Foster denied being the shooter. He could not remember
where he was the day of the shooting, but he commonly visited the
general area to visit family and go shopping.
Foster claimed he learned about the shooting through media
reports. A Rollin’ 40’s member named Jeremiah “Spodey Face”
Shaw, who Foster had known since 2012, told Foster he had
committed the shooting. Foster did not remember where or when
that conversation occurred.4 Foster did not believe Shaw and
decided to learn more about the shooting by searching the internet.
Indeed, the shooting was such a popular topic among his fellow
4Officer Smith testified that Shaw was murdered by gang
members sometime after Ellis was killed. However, Officer Smith
was not aware of any connection between the two shootings. Officer
Smith had seen Foster and Shaw together.
9
Rollin’ 40’s members that Foster conducted many web searches
about it. These searches included a search regarding how long
gunshot residue lasted on clothing. He searched that topic because
Shaw had expressed concern about it in relation to the shooting at
The Hut. Foster did not tell the police about Shaw’s statements
because he did not want to be a “snitch.”
Foster also texted his friend Duke to “stay tucked,” which
meant to stay inside. Foster sent the message because he feared
gang members would commit a retaliatory shooting. Duke,
however, was not a Rollin’ 40’s member. Foster acknowledged he
previously had been stopped while in a car with Duke and a Rollin’
40’s member named Kayvon Murphy.
As for his recorded jailhouse statements to the undercover
agent, Foster asserted he falsely made statements about the
shooting to make himself seem dangerous to the cellmate. Foster
said the first thing he noticed when he entered the cell was that the
agent was Latino, which was significant to him because Latino and
African American men commonly did not get along in “gang
culture.” Moreover, Foster was scared because he previously had
been stabbed by Latino individuals.5 He falsely admitted
committing the shooting so he would not appear weak to his
cellmate.
When asked what he meant when he told the agent that he
was “still banging,” Foster said he simply meant “socializing” with
5Foster testified that in 2013 or 2014, he was walking to a
store when he was confronted by “two Hispanic” men, who asked
where he was from. By that time, Foster had joined the Rollin’ 40’s.
However, Foster did not mention his gang because he thought doing
so might escalate the situation. After Foster and the men
exchanged unspecified “words” Foster started to walk away. The
men stabbed him in the back.
10
friends. He told the agent the gun used in the shooting was a .45
because that’s what his friend “Spodey Face” carried.
C. Charges and Jury Verdict
An amended information, filed on July 13, 2017, charged
Foster with the murder of Robert Ellis (Pen. Code, § 187, subd. (a);
count 1),6 and five counts of attempted willful, deliberate, and
premediated murder of additional unnamed victims (§§ 187, subd.
(a), 664; counts 2-6). The information further alleged that Foster
intentionally used and discharged a firearm, causing great bodily
injury and death (§ 12022.53, subds. (b), (c), & (d)), and that the
offenses were gang-related (§ 186.22, subd. (b)(1)(C)).
On December 14, 2017, the jury found Foster guilty of all
counts, and found all enhancement allegations to be true. The trial
court sentenced Foster to a total term of 90 years to life in state
prison. This appeal followed.
DISCUSSION
I. Statements Made to Perkins Agent
Foster contends that his statements to the Perkins agent
should have been excluded as involuntary, noting that the agent
was older, Latino, and claimed to have committed a murder. Foster
contends these factors created the type of coercive pressure likely to
induce false admissions of guilt. We disagree, and conclude the
trial court did not err in admitting the evidence.
A. Background Facts
Prior to trial, defense counsel moved to exclude Foster’s
conversation with the Perkins agent. In the written motion, defense
counsel pointed out the agent was Latino, and argued Foster
6 Undesignated statutory citations are to the Penal Code.
11
believed the agent would attack him for being African American.7
Counsel further noted the transcript of the Perkins conversation
indicated Foster previously had been attacked and stabbed by
Latino individuals.8 Counsel argued Foster was naïve due to the
fact that he was 22 years old and had never been to prison. Defense
counsel claimed the undercover agent’s comments about having
committed a murder against a “fool” who “didn't even want to pay
taxes” “could only be interpreted as a threat to . . . Foster that he
could face the same treatment.” As such, any statements made by
Foster were made “under circumstances where . . . Foster needed to
deter an immediate threat before him.”
During oral argument on the motion, defense counsel asserted
that Foster “was unfamiliar with the workings of the county jail
system,” but knew that he was in heightened danger because
jailhouse authorities had placed him in a cell with a Latino man.
Defense counsel, however, acknowledged the agent made no
threatening move, at no time raised his voice, and spent the
conversation laying on a bunk and eating a snack.
7 At
trial, it was established that the agent was Latino,
approximately 35 years old, and five feet, nine inches tall with a
medium build and without visible tattoos.
8 The portion of the Perkins transcript cited by defense
counsel is in conflict with Foster’s trial testimony. Foster told the
agent that “last year” (i.e., 2015) he had encountered men he
thought belonged to a tagging crew. After exchanging words, Foster
turned his back on them and one of them stabbed him. Foster at no
point mentioned the men were Latino, and referred to them as
“some little niggas.” In contrast, as noted above in footnote 5,
Foster testified at trial he previously had been stabbed by
“Hispanic” individuals in 2013 or 2014.
12
The trial court denied the motion.9 The court observed that
the tone of the conversation was relaxed, that no threat was made,
and that no evidence had been presented to support the assertion
that Foster had been naïve or afraid. The court also rejected
counsel’s argument that “whenever a Black and Latino are placed
in the same small, confined setting, there is a credible threat of
violence.” The court found there was no evidence that “in this
particular situation” Foster “was scared of [the informant] and
therefore made statements that he would not otherwise have
given.”10
B. Relevant Legal Principles
Admission of an involuntary confession is barred by the
federal and California Constitutions.11 (Colorado v. Connelly (1986)
9 The trial court stated it had reviewed the transcripts, all
exhibits submitted, including the CDs and videos of the
conversation.
10 For the first time on appeal, Foster contends the following
comment by the trial court demonstrates it failed to apply the
preponderance of evidence standard: “It is equally compelling to
the court to believe [Foster] embraced the individual as a fellow
person in custody alleged to have been involved in a murder and as
a result he felt safe in confiding in him . . . .” This isolated
comment—made after the court ruled that Foster had not been
coerced—does not indicate that the court misunderstood the burden
of proof. Moreover, since we independently review the undisputed
evidence on the issue, the trial court’s comment has no bearing on
the outcome of this appeal. (People v. Maury (2003) 30 Cal.4th 342,
404.)
11 As previously noted above in footnote 1, a Miranda
warning is not required when an inmate makes a voluntary
statement to an undercover agent. (Perkins, supra, 496 U.S. at
p. 294.) The only issue raised here is whether Foster’s statements
13
479 U.S. 157, 163-167 [107 S.Ct. 515, 93 L.Ed.2d 473]; People v.
Benson (1990) 52 Cal.3d 754, 778; see U.S. Const., 14th Amend.;
Cal. Const., art. I, § 7.) “A confession may be involuntary if
extracted by threats or violence, obtained by direct or implied
promises, or secured by the exertion of improper influence.” (People
v. Maury, supra, 30 Cal.4th at p. 404.) However, “[a] psychological
ploy is prohibited only when, in light of all the circumstances, it is
so coercive that it tends to result in a statement that is both
involuntary and unreliable.” (People v. Mays (2009) 174
Cal.App.4th 156, 164, citing Perkins, supra, 496 U.S. at p. 297; see
also People v. Hoyt (2020) 8 Cal.5th 892, 935.)
When a defendant asserts his or her confession was
involuntary, the People bear the burden to demonstrate the
statements were voluntary by a preponderance of the evidence.
(People v. Jones (1998) 17 Cal.4th 279, 296.) “ ‘When, as here, the
interview was tape-recorded, the facts surrounding the giving of the
statement are undisputed, and the appellate court may
independently review the trial court’s determination of
voluntariness.’ [Citation.]” (People v. Maury, supra, 30 Cal.4th at
p. 404.)
C. The Trial Court Properly Admitted Foster’s
Statements to the Perkins Agent
In his opening brief, Foster contends “the crucial element of
police coercion was present because the police placed a young, gang-
were “actually . . . coerced” (Oregon v. Elstad (1985) 470 U.S. 298,
310 [105 S.Ct. 1285, 84 L.Ed.2d 222]), and thus “involuntary”
(Dickerson v. United States (2000) 530 U.S. 428, 444 [120 S.Ct.
2326, 147 L.Ed.2d 405]; see also Arizona v. Fulminante (1991) 499
U.S. 279, 285-286, 287, fn. 3 [111 S.Ct. 1246, 113 L.Ed.2d 302]).
14
affiliated, African American inmate in a locked cell with an older,
seasoned, gang affiliated, Latino inmate.” We disagree.
First, Foster’s behavior during the recorded conversation
reveals no race-based fear of the Perkins agent or Latinos in
general. For example, at one point Foster confided that the friend
who could implicate him in the shooting was “Hispanic.” When the
agent told Foster he could “get at” his friend, Foster responded, “I
could tell some of your boys, huh?” Thereafter he revealed that his
friend’s name was “Carlos Duke.” The entire exchange refutes the
suggestion that Foster viewed the agent as an adversary based on
his race.
In his reply brief, Foster concedes that defense counsel
“presented no testimony about racially-motivated violence in the
jail,” but claims the court credited counsel’s arguments that it must
consider the racial and cultural issues that arise in custodial
settings in Los Angeles County, and “in effect, took judicial notice of
that fact.” This is not an accurate characterization of the court’s
ruling. While the court did comment that it “must take into account
the racial and cultural issues that permeate the custodial situation
in the county,” the court immediately followed this observation by
adding that it was “bound to follow the law,” which “clearly states
that unless the court finds a credible threat . . . from the evidence
presented, the court is required to deny the motion.”
The trial court’s general comments about racial and cultural
issues in custodial settings, cannot, in and of themselves, serve as
the basis for judicial notice of facts sufficient to substantiate
Foster’s fear—or as a basis to find that he faced a threat of harm.
(Cf. People v. Rodriguez (2019) 40 Cal.App.5th 194, 197-199
[rejecting the defendant’s blanket assertion that the police coerced
his confession by placing him in a cell with an older gang member,
and explaining that while “[d]eference to seniority could be a factor
15
in some factual settings,” the court “will not embrace this theory as
a universal principle based only on anecdotal speculation”].)
Nor is the fact that the agent was older than Foster
automatically indicative of coercion. During the jail cell
conversation, the Perkins agent observed he was “a little older than
[Foster].”12 Nothing in the exchange reveals that Foster was
intimidated by the agent’s age. We cannot assume the mere fact
there was an age difference between the two would lead Foster to
falsely admit his guilt. (People v. Rodriguez, supra, 40 Cal.App.5th
at p. 199; see generally People v. Mays, supra, 174 Cal.App.4th at
pp. 164-165 [summarizing cases that concluded various police
deceptive stratagems did not amount to coercion or render a
confession involuntary].)13
Finally, to the extent Foster relies on Arizona v. Fulminante,
supra, 499 U.S. 279, to argue the conversation was “coercive under
the totality of the circumstances,” that reliance is misplaced.
12The transcript of the Perkins conversation also shows the
agent at one point referred to Foster as “a young cat.”
13 Foster also suggests he was at a disadvantage because of
“pain from a previous stabbing that Tylenol had failed to remedy.”
The transcript reflects that at one point Foster told the agent he
couldn’t go to sleep, and that he was going to ask the nurse for a
Tylenol. Foster commented that nurse had previously given him
two Tylenol pills, but it did not “feel like it did anything,” and he
had asked the nurse “to give [him] many because [he’d] been
stabbed so [he] told them [he] can’t sleep.” When the agent asked
about the stabbing, Foster told him the story of the young “tagging
crew” that stabbed him “[l]ike last year.” This passing reference to
an old wound does not support Foster’s assertion that his “physical
condition likely affected his decision-making capacity.”
16
In Fulminante, the defendant was befriended in jail by an
inmate who was an informant for the FBI. Over an unspecified
period of time (days, if not weeks), the informant repeatedly asked
the defendant whether a rumor that he had killed a young girl was
true. The defendant repeatedly denied it. (Arizona v. Fulminante,
supra, 499 U.S. at pp. 282-283.) Eventually, the informant told the
defendant he knew the defendant had been receiving “ ‘tough
treatment’ ” from other inmates due to the rumor, and that he could
protect him—but only if the defendant confessed. (Id. at p. 283.)
The defendant then confessed to kidnapping, sexually assaulting,
and shooting the victim. (Ibid.)
The Supreme Court described the facts as presenting a “close”
question (Arizona v. Fulminante, supra, 499 U.S. at p. 287), but
“[a]ccept[ed] the Arizona court’s finding, permissible on [the] record,
that there was a credible threat of physical violence.” (Id. at
p. 288.) Based on that finding, the court agreed “that [the
defendant]’s will was overborne in such a way as to render his
confession the product of coercion.” (Ibid.)
Here, however, the trial court found no evidence whatsoever
that Foster was facing a credible threat of violence. Our
independent review of the record comports with such a conclusion.
Indeed, unlike Fulminante, nothing indicates that Foster received
“tough treatment” from any inmates, or that the agent demanded a
confession from Foster in exchange for Foster’s safety. (See People
v. Maury, supra, 30 Cal.4th at p. 404 [“A finding of coercive police
activity is a prerequisite to a finding that a confession was
involuntary under the federal and state Constitutions”].) Instead,
the record demonstrates Foster’s willingness to discuss the case
against him, as well as share the steps he took to ensure that the
17
district attorney would refuse to file charges for lack of sufficient
evidence.14
In short, Foster’s misplaced trust in confiding to a man he
believed to be a fellow inmate does not render his statements
involuntary. (People v. Gonzales and Soliz (2011) 52 Cal.4th 254,
283-284; see also People v. Rodriguez, supra, 40 Cal.App.5th at
p. 199 [rejecting the contention that the defendant’s confession to
an undercover informant, posing as “ ‘an older gang member,’ ” was
involuntary where there was no evidence to suggest the defendant
was pressured and the conversation between the two appeared
relaxed and jovial].)
II. Sufficiency of Evidence to Support Five Counts of
Attempted Murder
Foster was convicted in counts 2 through 6 of the premediated
attempted murders of five unidentified victims who were standing
next to Ellis when Foster opened fire. Consistent with the
information, the verdict forms for the attempted murder counts
identified each victim as “a person standing in front of 5507 South
Vermont.”15
14 Foster told the agent early in the conversation that “[t]hey
don’t got no—my weapon, no clothing, no witness.” When he later
reiterated that he disposed of the weapon and other evidence,
Foster explained, “Because really everything’s going to fall—
everything’s going to off of the DA . . . . It’s up to the DA—want to
charge [sic]” and “the DA going to be, like, hmm, it’s not enough,
you feel me?”
15 Foster fired seven shots, and struck Ellis with one of the
bullets. The information alleged only five counts of attempted
murder, consistent with the testimony at the preliminary hearing
18
Foster contends the evidence was insufficient to support the
five attempted murder counts because the prosecutor did not clearly
identify the alleged victims; only Ellis was struck; and Foster did
not move his arm when firing, indicating Ellis was his only target.
As explained below, our review of the record discloses
sufficient evidence to support the jury’s verdicts.
A. Relevant Legal Principles
1. Standard of Review
In reviewing a sufficiency of the evidence claim, we review the
trial record to determine whether a reasonable trier of fact could
have found proof of guilt beyond a reasonable doubt. (People v.
Rodriguez (1999) 20 Cal.4th 1, 11.) When making this
determination, “[w]e view the evidence in the light most favorable
to the prosecution, and presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.” (People v. Griffin (2004) 33 Cal.4th 1015, 1028.)
2. Attempted Murder
“ ‘Attempted murder requires the specific intent to kill and
the commission of a direct but ineffectual act toward accomplishing
the intended killing.’ [Citation.]” (People v. Sanchez (2016) 63
Cal.4th 411, 457.) “Direct evidence of intent to kill is rare, and
ordinarily the intent to kill must be inferred from the statements
and actions of the defendant and the circumstances surrounding the
crime.” (People v. Canizales (2019) 7 Cal.5th 591, 602.) “[T]he act
of purposefully firing a lethal weapon at another human being at
close range, without legal excuse, generally gives rise to an
inference that the shooter acted with express malice.” (People v.
that the video showed the group near Ellis contained “at least five”
people.
19
Smith (2005) 37 Cal.4th 733, 742.) The fact that the bullet misses
its mark or fails to prove lethal, is not dispositive. (Ibid.)
3. Specific vs. Random Targets
A person who acts with intent to kill in firing at a group of
people is “guilty of attempted murder even if he or she intended to
kill a random person rather than a specific one.” (People v. Stone
(2009) 46 Cal.4th 131, 141 (Stone).) “Although a primary target
often exists and can be identified, one is not required.” (Id. at
p. 140.) In describing this theory, the California Supreme Court
explained that “[a]n indiscriminate would-be killer is just as
culpable as one who targets a specific person.” (Ibid.) Multiple
attempted murder convictions can be supported by the same
reasoning. (Ibid.; People v. Medina (2019) 33 Cal.App.5th 146, 156
[“A jury can reasonably conclude a defendant without a primary
target who repeatedly shoots into a crowd with the intent to kill
committed multiple counts of attempted murder”]; see also People v.
Thompkins (2020) 50 Cal.App.5th 365, 396 [“under Stone it could be
found . . . that [the defendant] intended to kill someone in the
crowd—anyone who got in the way of his bullets—and thus
attempted to murder each of those victims”].)16
16 The absence of a specific target distinguishes this case from
the “kill zone” theory. The kill zone theory applies when the
defendant chooses, as a means of killing a specific, targeted
individual, to kill everyone in the area in which the targeted
individual is located (i.e., the “kill zone”) as the means of
accomplishing the killing of the targeted victim. (People v.
Canizales, supra, 7 Cal.5th at pp. 607-608.) In contrast, the Stone
theory applies when there is no specifically targeted individual.
The two theories are mutually exclusive. (See People v. McCloud
(2012) 211 Cal.App.4th 788, 798, 802, fn. 6 (McCloud); see also
People v. Thompkins, supra, 50 Cal.App.5th at p. 396, fn. 10 [“Stone
establishes that the kill zone theory cannot be used when the
20
In Stone, the defendant fired a single shot at a group of
approximately 10 people and was charged with the attempted
murder of one of the group. (Stone, supra, 46 Cal.4th at pp. 135-
136.) The prosecutor conceded that there was no evidence the
defendant intended to kill a specific targeted individual. (Id. at
p. 139.)
The Supreme Court held that the prosecutor’s concession did
not preclude a conviction of attempted murder, but explained that
“it would no doubt have been better had the case been charged
differently” (Stone, supra, 46 Cal.4th at p. 141), such as simply
alleging that the defendant “attempted to murder a member of a
group of persons gathered together in a parking lot in Lemoore,
California.” (Id. at pp. 141-142.)
Consistent with Stone, in Foster’s case the information and
verdict forms identified each victim as “a person standing in front of
5507 South Vermont.” Thus, contrary to Foster’s assertions, the
victims in counts 2 to 6 were adequately identified. The only
question is whether there was sufficient evidence that Foster
intended to kill more than one person in the group.
B. The Evidence Was Sufficient to Support All Five
Counts of Attempted Murder
In reviewing Foster’s sufficiency claim we are guided
primarily by two cases: our high court’s decision in People v. Perez
(2010) 50 Cal.4th 222 (Perez), and our own decision in McCloud,
supra, 211 Cal.App.4th 788. We summarize each below.
defendant fires indiscriminately at a crowd of people, not aiming to
kill anyone in particular, but hoping to kill as many as possible”].)
The prosecutor here did not rely on a “kill zone” theory and
the jury was not instructed on that theory.
21
1. Perez
In Perez, the defendant “fired a single bullet at a distance of
60 feet, from a car going 10 to 15 miles per hour, at a group of seven
peace officers and a civilian who were standing less than 15 feet
apart . . . . The bullet hit one officer in the hand, nearly severing
his finger, but killed no one.” (Perez, supra, 50 Cal.4th at p. 224.)
The defendant was convicted of eight counts of attempted murder.
Our high court reversed seven of the convictions, concluding that
“the evidence is sufficient to sustain only a single count of
premeditated attempted murder of a peace officer.” (Id. at p. 225.)
The court reasoned that “there is no evidence that [the] defendant
knew or specifically targeted any particular individual or
individuals in the group of officers he fired upon. Nor is there
evidence that he specifically intended to kill two or more persons
with the single shot. Finally, there is no evidence [the] defendant
specifically intended to kill two or more persons in the group but
was only thwarted from firing off the required additional shots by
circumstances beyond his control. Without more, this record will
not support conviction of eight counts of premeditated attempted
murder.” (Id. at pp. 230-231, fns. omitted.)
2. McCloud
In McCloud, we deemed Perez controlling in determining
whether there was sufficient evidence to support 46 counts of
attempted murder following a group shooting in which 10 shots
were fired. (McCloud, supra, 211 Cal.App.4th at p. 805.) The shots
were all were fired at a party held at a Masonic Lodge, at which
over 400 guests were present. Three bullets struck three victims,
killing two and injuring the third. The seven remaining bullets hit
no one. Officers determined that all 10 casings were from the same
semi-automatic weapon. (Id. at p. 794.)
22
Investigating officers identified five bullet strike marks on the
exterior wall of the lodge near the broken window and two bullet
holes in a car in the parking lot. Three bullets passed through the
window and struck and lodged in victims Moses, Taylor, and
Gaines. The gun itself was never found. (McCloud, supra, 211
Cal.App.4th at p. 795.)
On appeal, we concluded the evidence was sufficient to
support only eight attempted murder convictions “because 10 shots
were fired but two of them killed victims Moses and Taylor, for
which [the defendant] was separately convicted and punished.”
(McCloud, supra, 211 Cal.App.4th at p. 807.) Citing Perez, we noted
there was no evidence that the defendant intended to kill more than
one person per bullet and no evidence that the defendant had more
than 10 bullets. (McCloud, supra, at p. 807.) As such, we limited
the counts, as in Perez, to the number of bullets fired at the crowd.
(Id. at pp. 806-807.)
3. Analysis
Viewing the evidence in the light most favorable to the
judgment, there was sufficient evidence to support all five
attempted murder convictions.
First, there was no indication Foster had a primary target.
There was no preexisting relationship or prior incident between
Foster and Ellis, nor any other evidence suggesting Foster
specifically targeted Ellis when he opened fire. The surveillance
footage shows that shortly prior to the shooting, there were at least
six men tightly grouped in front of a metal roll-up door near the
barbershop, with several moving about as they interacted.17 The
17 We have reviewed the surveillance footage. The recordings,
filmed from three different locations, show different aspects of the
23
footage further shows that Foster walked up an alley toward the
parking lot, crouched down for cover as he neared a blue sedan, and
then rapidly popped up and opened fire on the group. While still
firing, Foster walked backward and then ran away.
Second, during his jailhouse conversation with the Perkins
agent, the agent asked Foster, “What enemy—enemy they blaming
you for,” to which Foster answered, “some Hoovers.” At another
point the agent asked if “[t]here was a gang of them,” to which
Foster responded, “Uh-huh.” During the conversation, Foster gave
no indication he sought to target a specific individual.
Foster, however, claims the “manner in which the shooting
occurred” supports the conclusion “that only Ellis was the intended
target.” In so arguing, Foster asserts that the surveillance footage
shows “the shooter fire[d] seven times with a straight arm” and “did
not scatter his shots or move his arm to suggest an attempt to hit
multiple targets.” Foster further claims there was no evidence to
show the unnamed victims were in the line of fire when the bullets
were fired. The record does not support such a narrow view.
Foster fired a semi-automatic weapon from a distance of 40 to
50 feet at a group containing at least six males standing so closely
to one another that they fit within the frame of the metal door of
the barbershop. The surveillance footage shows Foster firing
toward the group and walking backward as he continues to fire his
rounds. While Foster continues to aim in one direction, his hand is
not perfectly steady throughout the shooting. Police officers found
three strike marks along the hood of a mini-van parked
approximately two car lengths from the metal door, in the line of
fire. Officers also found a bullet hole that went through the center
events leading up to and after the shooting, as well as the shooting
itself, without sound.
24
of the metal door, as well as strike marks in the frame and the
stucco wall to the left of the door.18 The video footage shows the
men diving and scattering as bullets ricochet off the stucco wall.
Contrary to Foster’s assertions, this evidence was sufficient to
establish that Foster fired indiscriminately at the group, intending
to kill as many as possible with the bullets fired. (McCloud, supra,
211 Cal.App.4th at pp. 794, 806-807; see also People v. Thompkins,
supra, 50 Cal.App.5th at p. 397.) The fact that no one other than
Ellis was struck or injured does not negate an intent to kill.
(McCloud, supra, at pp. 806-807; People v. Chinchilla (1997) 52
Cal.App.4th 683, 690 [noting that the fact the victim escaped death
because of the shooter’s poor marksmanship does not necessarily
establish a less culpable state of mind].)19
18 Foster notes that “[n]o one testified that the strike marks
on the metal door were necessarily from the shooting on March 25,
2016,” or that “any of the bullets came close to hitting any of the
unnamed victims.” However, the surveillance footage—played for
the jury and admitted into evidence—shows bullets bouncing off the
wall near the frame, and spraying dust, and at least five males
standing a few feet from those strikes dispersing and running for
cover. The footage was accompanied by testimony noting the
location of Ellis and the group, as well as the shooter, the bullet
strikes, and the casings. (See People v. Medina, supra, 33
Cal.App.5th at p. 152, fn. 6 [referencing its review of a surveillance
video of a shooting on appeal].)
19 While we reference the phrase “line of fire” during our
discussion, it is important to recognize that cases involving
indiscriminate, multi-bullet shootings do not require that the
victims be perfectly lined up behind each other. That narrow
interpretation of “line of fire” arises in situations where one bullet is
discharged, but the prosecution seeks to charge multiple counts of
attempted murder. (See Perez, supra, 50 Cal.4th at pp. 232-233
[distinguishing cases where the “direct line of fire” allowed the
25
To the extent Foster cites People v. Virgo (2013) 222
Cal.App.4th 788 (Virgo), to support his insufficiency claim, the
analysis in Virgo supports, rather than undermines, the jury’s
verdict in this case.
In Virgo, four teams of police officers surrounded a home.
The defendant fired at least 14 times from inside the house in
various directions. A criminalist determined 10 of the shots exited
the house. (Virgo, supra, 222 Cal.App.4th at pp. 792-796.) The
defendant was convicted of 10 counts of premeditated attempted
murder of 10 specific, named officers. (Id. at pp. 790, 800.)
On appeal, the court determined there was sufficient evidence
for five, but not 10 counts of attempted murder. The court’s
analysis proceeded as follows: One group of four officers testified
that multiple shots were fired in their direction, with one officer
stating that four to seven gunshots were directed at them; thus
sufficient evidence supported the defendant’s conviction for
attempted murder as to all four officers. (Virgo, supra, 222
Cal.App.4th at p. 799) As to another group of three officers, the
evidence indicated the defendant fired one shot in their direction,
and the court therefore concluded that the single shot could support
one count of attempted murder, but not three. (Ibid.) A third group
of officers heard shots, but could not say that any were fired in their
direction. Thus no substantial evidence established that the
prosecutor to charge two attempted murder counts from one shot];
People v. Smith, supra, 37 Cal.4th at pp. 736-737 [the defendant
fired a single bullet through a rear windshield, barely missing both
the driver and her three-month-old son, who was in an infant car
seat directly behind her]; People v. Chinchilla, supra, 52
Cal.App.4th at p. 690 [the defendant fired a single bullet at two
police officers who were crouched, one behind the other, directly in
the line of fire and visible to him].)
26
defendant committed attempted murder as to the third group. (Id.
at p. 800.)
Thus, the Virgo case turned on whether there existed
evidence that shots were fired in the direction of the alleged
victims—as demonstrated by the court’s prefatory statements prior
to conducting its analysis: “We look to see if [the defendant] fired at
each of the 10 victims in a manner that could have killed them had
[the] defendant’s aim been more on target. Obviously, [the]
defendant cannot be guilty of attempting to murder someone who is
taking cover on the ground outside when [the] defendant fires his
gun up into the ceiling.” (Virgo, supra, 222 Cal.App.4th at p. 799.)
Here, the evidence established that Foster fired a semi-
automatic weapon seven times in the direction of at least six
individuals in rival gang territory, killing one. Firing a gun at the
group, under such circumstances, was substantial evidence from
which the jury could find a specific intent to kill, and at least one
direct but ineffective step towards killing the five victims who
survived the shooting. (People v. Smith, supra, 37 Cal.4th at p. 742;
see also People v. Thompkins, supra, 50 Cal.App.5th at p. 397
[stating that under Stone, an intent to kill can be inferred from the
type of weapon, the number of shots fired, the manner in which the
shooter fired, and the circumstances under which he fired, including
proximity to his victims.].)
Accordingly, we uphold Foster’s conviction as to all five counts
of attempted murder.
III. Attempted Murder Instructions
Foster contends the trial court violated his constitutional
rights when it instructed the jury on the attempted murder charges.
After instructing the jury as to murder and premeditation, the court
gave CALCRIM No. 600 regarding attempted murder as follows:
27
“The defendant is charged in [c]ounts 2, 3, 4, 5 and 6 with
attempted murder.
“To prove that the defendant is guilty of attempted murder,
the People must prove that:
“1. The defendant took at least one direct but ineffective step
toward killing another person;
“AND
“2. The defendant intended to kill a person. . . .”
The jury received and returned separate verdicts for each of
the five counts of attempted murder. Foster contends the jury
instructions and verdict forms regarding counts 2 through 6 failed
to make clear to the jury that Foster had to intend to kill a separate
person in each of those counts. This, in turn, had the effect of
omitting an element of the offense, depriving Foster of his
constitutional rights.
We disagree. As explained below, our high court rejected a
similar challenge to CALJIC No. 8.66, the predecessor to CALCRIM
No. 600.20
A. Relevant Legal Principles
“In a criminal trial, the State must prove every element of the
offense, and a jury instruction violates due process if it fails to give
effect to that requirement.” (Middleton v. McNeil (2004) 541 U.S.
433, 437 [124 S.Ct. 1830, 158 L.Ed.2d 701]; People v. Gonzalez
(2018) 5 Cal.5th 186, 198-199.)
20 Though Foster failed to object to the attempted murder
instruction during trial, we exercise our discretion to consider the
argument to determine whether any error affected his substantial
rights. (§ 1259; People v. Ramos (2008) 163 Cal.App.4th 1082,
1087.)
28
In reviewing a claim that the trial court’s instructions were
incorrect or misleading, we inquire whether there is a reasonable
likelihood the jury understood the instructions in the manner
asserted by the defendant. (People v. Cross (2008) 45 Cal.4th 58,
67-68.) We consider the instructions as a whole and “ ‘ “assume
that the jurors are intelligent persons and capable of understanding
and correlating all jury instructions which are given.” [Citation.]’
[Citation].” (People v. Ramos, supra, 163 Cal.App.4th at p. 1088.)
B. The Jury Instructions Regarding the Attempted
Murder Counts Were Neither Incorrect nor
Misleading
In People v. Ervine (2009) 47 Cal.4th 745, the defendant was
convicted of three counts of attempted murder. The jury was
instructed with CALJIC No. 8.66, which instructed that to find the
defendant guilty of attempted murder, the jury had to find each of
the following elements: “ ‘One, a direct but ineffectual act was done
by one person toward killing another human being’ ”; and “ ‘two, the
person committing such act harbored express malice aforethought,
namely, a specific intent to kill unlawfully another human being.’ ”
(Ervine, supra, at p. 787.) The defendant argued “this instruction
allowed the jury to convict him of all three counts of attempted
murder even if it concluded that he had the specific intent to kill
only one of the victims and had committed a direct but ineffectual
act toward killing only one of the victims.” (Ibid.)
Our high court rejected this challenge, finding that it was not
“reasonably likely the jury interpreted the instructions in the
manner [the] defendant imagines.” (People v. Ervine, supra, 47
Cal.4th at p. 787.) The court pointed out that “the words ‘another
human being’ and ‘another person’ in the instructions refer
consistently to each alleged victim and are obviously intended to
distinguish between the victim and [the] defendant.” (Ibid.) The
29
court further pointed out the jury was told the defendant was
charged with three separate counts of attempted murder and was
given a separate verdict form for each victim, thereby “requiring it
to make an individual determination whether [the] defendant had
committed the crime against each victim.” (Ibid.) The court further
noted that the defendant failed to “point to anything in the record
or in the argument of counsel to support his strained
interpretation.” (Ibid.)21
The same holds true here. Both CALCRIM No. 600 and the
verdict forms separated the attempted murder charges as to each
victim into individual counts. In his closing argument, the
prosecutor repeatedly made clear that the burden was on the
prosecution to prove that Foster intended to kill both Ellis, as well
as each unidentified victim as charged. (See People v. Brasure
(2008) 42 Cal.4th 1037, 1038, 1062 [in determining whether
instructions may have the misled jury, the court considers “the
totality of instructions and arguments”].)
The prosecutor began his closing argument by listing the
charges and allegations, and then said, with regard to the
attempted murder charges: “The next allegation that you’ll be
asked is in the attempted murder which are counts 2 through 6 is
whether the other civilians during the attempted murder, whether
those were done willful, premeditated and with deliberation. We’ll
get to that in a little bit more and that will be a finding that you
have to make on each of those individuals as true.” In discussing
the premeditated murder charge, the prosecutor said of Foster,
“You pointed a gun at a crowd of people, you wanted to kill those
people.” Returning to the attempted murder charges, the
21Although respondent cited to People v. Ervine in his brief
Foster makes no mention of the case in any of his briefs.
30
prosecutor repeatedly made the point that Foster could only be
convicted of those charges if he intended to kill those unidentified
people: “You shoot at somebody with the intent to kill them and
miss, that’s an attempted murder. . . . The intent that you have to
have is to kill a human being. Right? So undoubtedly [Foster]
didn’t know the entire crowd of people that was standing there in
front of the barber shop. But when he pointed that gun, he fired
each round in rival territory, he intended to kill. And with each
round, there were seven rounds. There’s only six counts filed.
There were seven rounds, but with each round he intended to
kill . . . .” The prosecutor subsequently said of Foster, “He pops up,
gun in hand and unleashes seven rounds intending to kill his
targets.” The same concept was also expressed in the prosecutor's
rebuttal argument: “And it’s sad to say that Foster killed a man on
March 25th, 2016, and he tried to kill five others. He tried to kill
everybody out in front of that store when he shot.”
In light of the instructions given, and the prosecutor's
comments, it is not reasonably likely the jury misinterpreted the
instructions to convict Foster based on a finding that he harbored
an intent to kill only one unidentified person of the group. Instead,
the instructions and arguments adequately informed the jury that
in order to convict Foster of the murder of Ellis, and the attempted
murder of five additional people, the jury had to find that when he
fired seven rounds at the group outside the barber shop, he
intended to kill someone with each round. (See People v.
Thompkins, supra, 50 Cal.App.5th at p. 397 [holding there was
sufficient evidence to support all five attempted murder counts
charged in the information where the defendant fired
indiscriminately at least 10 times].)
Foster also argues the jury could have been misled into
believing that it could transfer any mental state regarding Ellis to
31
the additional five unnamed victims. However, the jury was
instructed with CALCRIM No. 601, which told the jury that if it
found Foster guilty of attempted murder under counts 2 through 6,
it had to “then decide whether the People have proved the
additional allegation that the attempted murder was done willfully,
and with deliberation and premeditation.” With this instruction,
the jury was advised that the mental state for each attempted
murder had to be considered separately from the mental state for
the murder charge. Based on its return of verdict forms finding the
allegation was true as to each of counts 2 through 6, we conclude
that no error occurred. (See People v. Ervine, supra, 47 Cal.4th at
p. 788 [CALJIC No. 8.67 directed the jury to determine whether the
attempted murder was willful, deliberate, and premeditated, and
the jury found each such allegation to be true, defeating the
defendant’s claim of instructional error].)
To the extent Foster argues that the information and verdicts
should have further distinguished between the counts by
designating the victims as “Jane Doe 1” or “John Doe 2,” no such
distinction was necessary. Each victim was placed into a separately
numbered count and the jury delivered separate verdicts for each
victim by that numerical designation. (See People v. Ervine, supra,47 Cal.4th at p. 787.) To the extent Foster nevertheless believes
that further amplification or clarification would have been helpful
or useful, that claim is forfeited. (See People v. Covarrubias (2016)
1 Cal.5th 838, 876-877 [where the instructions given were otherwise
correct, the failure to request amplification, clarification, or
modification forfeits the claim on appeal].)
Our determination that CALCRIM No. 600 was not likely to
have misled the jury necessarily disposes of Foster’s claim that trial
counsel was ineffective for failing to seek any further amplification.
(See People v. Mai (2013) 57 Cal.4th 986, 1009 [to prevail on a claim
32
of ineffective assistance of counsel, the defendant must show it is
reasonably probable that he would have achieved a more favorable
result but for counsel’s omission or inaction].)
IV. Sufficiency of Evidence To Support Gang
Enhancement
Foster contends the jury's true finding on the gang
enhancement must be reversed because there was insufficient
evidence to prove the shooting was gang-related. In so contending,
Foster points out that the “generalized testimony of a gang expert
does not supply substantial evidence of a gang enhancement.”
We conclude that ample evidence supported the jury’s verdict,
including statements made by Foster himself.
A. Relevant Legal Principles and Standard of
Review
As previously stated above in section II, in reviewing the
sufficiency of the evidence, “[w]e view the evidence in the light most
favorable to the prosecution, and presume in support of the
judgment the existence of every fact the trier could reasonably
deduce from the evidence.” (People v. Griffin, supra, 33 Cal.4th at
p. 1028.) We do not reweigh evidence, reevaluate the credibility of
witnesses, or resolve factual conflicts. (People v. Covarrubias,
supra, 1 Cal.5th at p. 890; People v. Culver (1973) 10 Cal.3d 542,
548.)
To prove a gang enhancement, the prosecution must establish
that the underlying crime was “committed for the benefit of, at the
direction of, or in association with any criminal street gang” (the
gang-related prong), “with the specific intent to promote, further, or
assist in any criminal conduct by gang members” (the specific intent
prong). (§ 186.22, subd. (b)(1); see People v. Albillar (2010) 51
Cal.4th 47, 59-60.)
33
The prosecution may rely on expert testimony regarding
criminal street gangs to establish a gang enhancement under
section 186.22, subdivision (b)(1). (People v. Vang (2011) 52 Cal.4th
1038, 1048 [“ ‘Expert opinion that particular criminal conduct
benefited a gang’ is not only permissible but can be sufficient to
support the . . . gang enhancement”]; see also People v. Albillar,
supra, 51 Cal.4th at p. 63 [“Expert opinion that particular criminal
conduct benefited a gang by enhancing its reputation for
viciousness can be sufficient to raise the inference that the conduct
was ‘committed for the benefit of . . . a[ ] criminal street gang’
within the meaning of [§] 186.22[, subd. ](b)(1)”].) However, the
expert’s testimony “ ‘must be rooted in facts shown by the
evidence.’ ” (Vang, supra, at p. 1045.) “[P]urely conclusory and
factually unsupported opinions” that the charged crimes are for the
benefit of the gang are insufficient to support a gang enhancement.
(People v. Ramirez (2016) 244 Cal.App.4th 800, 819-820.)
B. There Was Sufficient Evidence to Support the
Jury’s True Finding on the Gang Enhancement
Allegations
Viewing the evidence in the light most favorable to the
verdict, substantial evidence supported the gang enhancement.
Foster, a longtime gang member, crept up to the hangout of his
gang rivals and opened fire. There was no indication Foster knew
Ellis or anyone else in the crowd, or had any motive other than
causing fear on behalf of his gang. Foster made various admissions
during the jail cell conversation with the Perkins agent which
indicated the crime had been gang-related. This included the fact
that he had not shouted out his gang’s name, which made it more
34
difficult for the police investigating the crime.22 Foster and the
agent also agreed that once he was released from jail, he would
“have all the respect in the world.”
Officer Smith explained that gang members gain status by
committing violent crimes, especially against rivals. Foster had
been photographed on prior occasions throwing gang signs with
other Rollin’ 40’s members, including a man that was in custody for
attempted murder. Smith opined that if a Rollin’ 40’s member went
into a known stronghold in rival gang territory, “creep[ed]” up an
alley alongside a car, pulled out a gun and fired seven rounds into a
crowd of people, killing one of them, the crime would have been
committed to benefit the shooter’s gang. He explained that such a
shooting benefits the gang by showing how brazen it is, which
enhances its reputation. It also would benefit the individual
shooter’s reputation by elevating his status.
Detective Crosson also testified that the nature of the
shooting indicated it was gang-motivated. He explained that
committing such a shooting in Five Deuce Hoover territory would be
disrespectful of the Hoovers, even if the person killed was not
himself a gang member. Detective Crossen noted that at the time of
22 The relevant conversation was as follows: After Foster said
the police had very little evidence to identify the shooter, and were
“going off” of his height, the agent asked, “How they know it’s a
40’s, first of all?” Foster said, “They don’t.” The agent asked, “You
never said 40’s?” Foster replied, “No. Hell no.” The agent asked
again, “You didn’t yell out, 40’s,” and told Foster, “You know how we
do it.” Foster said, “[L]ook, listen—listen to me bro. That’s why I
don’t [sic] they know it’s me or nothing though. At the end of the
day . . . because if they thought he was—they thought I was from
40’s, they wanted—whatever, it happened, they would have kicked
. . . they would have asked the homies . . . . They would have been
showing homies . . . who is this?”
35
the shooting, there was graffiti across the street from the strip mall,
and explained that criminal street gangs use graffiti to mark their
territory and to identify their enemies. The graffiti claimed Five
Deuce Hoover control of the area, and asserted a death threat
against various other gangs, including the Rollin’ 40’s.
The opinions by Officer Smith and Detective Crosson were
supported by evidence concerning the manner in which the crimes
were carried out and Foster’s active gang membership. (People v.
Galvez (2011) 195 Cal.App.4th 1253, 1261 [rejecting a challenge to
the sufficiency of the evidence supporting a gang enhancement
because “there was ‘an underlying evidentiary foundation’ ” for the
expert’s opinion that the crimes were committed for the benefit of
the gang].) Accordingly, the testimony by Officer Smith and
Detective Crosson, coupled with the evidence supporting their
opinions, was sufficient to permit a reasonable trier of fact to find
the gang enhancement allegations to be true beyond a reasonable
doubt.
Arguing otherwise, Foster cites to People v. Ochoa (2009) 179
Cal.App.4th 650 and People v. Ramon (2009) 175 Cal.App.4th 843.
Those cases are readily distinguishable.
In Ochoa, the defendant committed a carjacking. The
defendant committed the crime alone, and “made no apparent gang
signs or signals during his commission of the crimes.” The
prosecution’s gang expert testified that the defendant was a gang
member, and that carjacking was a common crime for members of
the gang. (People v. Ochoa, supra, 179 Cal.App.4th at pp. 653, 654.)
The Court of Appeal found the evidence insufficient to establish
that the crime was gang-related, observing the defendant “did not
call out a gang name, display gang signs, wear gang clothing, or
engage in gang graffiti while committing the instant offenses,” and
there was no evidence the victim saw the defendant’s tattoos, that
36
the crime was committed in claimed territory (or in the territory of
a rival), or that the defendant shared the proceeds of the crime with
fellow members. (Id. at p. 662.)
The evidence was similarly weak in Ramon. There, the
defendant and another man were found in a recently stolen truck,
with a gun on the floor under the driver’s seat. The defendant and
his companion were both gang members. The expert testified that
possessing the truck and gun could facilitate the commission of
crimes to benefit the gang. (Ramon, supra, 175 Cal.App.4th at
pp. 847-848.) The Court of Appeal found the evidence insufficient to
support a gang enhancement since the expert’s opinion established
nothing more than “a possible motive” to explain why the crimes
were committed. (Id. at p. 853.)
Foster’s case does not suffer from the same deficiency. The
shooting bore the hallmarks of a gang-motivated crime and had no
other apparent motive, such as personal financial gain. Foster
made various statements acknowledging the crime had been gang-
motivated, including the following: (1) When the Perkins agent
asked Foster if he was “still . . . banging,” Foster answered, “Hell
yeah”; (2) when the agent asked Foster, “What enemy . . . they
blaming you for,” Foster said “some Hoovers,” and suggested that
Hoovers housed in the county jail might attack him; (3) Foster
agreed with the agent that if he was released, he would “have all
the respect in the world”; and (4) Foster texted his friend “Duke” to
“stay tucked” on the day of the shooting, and explained at trial that
he did so because he expected a retaliatory shooting by the targeted
gang (though he claimed his friend “Spodey Face” did the shooting).
37
In light of the evidence identified above, Foster’s substantial
evidence challenge to the gang enhancement determination is
without merit.23
V. Admission of Text Messages Referencing an Uncharged
Burglary
Foster contends the trial court erred in admitting several text
messages found on his cell phone that appear to reference an
uncharged burglary. Foster claims the trial court’s ruling violated
Evidence Code section 1101, subdivision (a) (prohibiting the
admission of character evidence when offered solely to prove
criminal disposition), and was so prejudicial that it also violated his
federal constitutional due process rights. Respondent counters the
section 1101 claim is forfeited and without merit in any event; we
agree.
23 In his reply brief, Foster notes that cases cited by
respondent involve defendants who committed their crimes with
other gang members. He states that “[t]he fact that a defendant
committed his offense with other gang members contributes greatly
to proof of the gang enhancement,” citing People v. Morales (2003)
112 Cal.App.4th 1176, 1197. However, the reason for this
evidentiary ease is because one of the ways to establish the offense
is gang-related is to show that the underlying crime was committed
in association with any criminal street gang. (People v. Weddington
(2016) 246 Cal.App.4th 468, 484 [explaining that because the
statute is worded in the disjunctive, the gang enhancement may be
imposed based on either gang association or benefit].) The “in
association” prong “may be established with substantial evidence
that two or more gang members committed the crime together,
unless there is evidence that they were ‘on a frolic and detour
unrelated to the gang.’ ” (Ibid.) Here, as explained above, there
was ample evidence that Foster committed the shooting to benefit
his gang.
38
A. Relevant Facts
People’s Exhibit 32 was a printout of text messages found on
Foster’s phone. As described above, during the prosecution’s case-
in-chief, the prosecutor elicited testimony that shortly after the
shooting, Foster texted someone listed in his contacts as “Duke”:
“Make sure u stay tucked don’t cum out for nothing.”
During the defense case, Foster testified that he knew Duke
“from high school football” and that Duke was not a member of the
Rollin’ 40’s. He texted Duke on the day of the shooting because he
was afraid of a retaliatory shooting by the targeted gang. However,
Foster claimed he only texted Duke after his friend Spodey Face
confided in Foster that he had “shut down the hut.”
Foster described his own participation in the Rollin’ 40’s as a
means of socializing and publicizing his music by lending him
“street credit.” He stated he was granted “walk-on” status to the
gang, because he went to high school with most of the gang
members, and had hung out with them. As a walk-on member,
Foster was allowed to throw their hand gestures, and do everything
they could do, but “just not all the way.”
After Foster testified, the parties discussed the admissibility
of additional text messages included in Exhibit 32. The text
messages included messages sent on March 25, 2016, between
Foster and someone named “Bd4,” that referenced “Hood Day.”24
Bd4 texted Foster, “Duke sed I kno yall got somethin out dat house
fuccin clown,” and Foster replied, “He stupid[.] The lit bit we got
aint shit.”
Defense counsel objected to the text exchange with Bd4 as
irrelevant and prejudicial evidence of a burglary, noting that Officer
24 Officer Smith testified that “Hood Day” is the anniversary
date for a specific gang.
39
Smith had testified that he believed Duke (aka Molina) was in
custody for a recent burglary. Defense counsel also argued that
Foster’s association with Duke was not at issue since he admitted
Duke was his friend.
The trial court ruled the text messages between Foster and
Bd4 were relevant because (1) “they involve an individual named
Duke who has been referenced in this case”; (2) “one of the primary
activities of the Rollin’ 40’s is the commission of burglaries”; and (3)
“[Foster] . . . testified and admitt[ed] his gang admission to the
Rollin’ 40’s.” The text messages were admitted into evidence after
the close of testimony and were not discussed nor summarized
during the presentation of evidence.
B. Relevant Legal Principles
We review the trial court’s rulings on the admission and
exclusion of evidence for abuse of discretion. (People v. Harrison
(2005) 35 Cal.4th 208, 230; see also People v. Fuiava (2012) 53
Cal.4th 622, 667-668 [Evid. Code, § 1101]; People v. Kipp (2001) 26
Cal.4th 1100, 1123 [relevance]; People v. Greenberger (1997) 58
Cal.App.4th 298, 352 [Evid. Code, § 352].)
The trial court has broad discretion in determining the
relevance of evidence. (People v. Crittenden (1994) 9 Cal.4th 83,
132.) The trial court also has discretion to exclude otherwise
admissible evidence “if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.”
(Evid. Code, § 352.)
“ ‘[W]e review the ruling, not the court’s reasoning and, if the
ruling was correct on any ground, we affirm.’ [Citation.]” (People v.
Zamudio (2008) 43 Cal.4th 327, 351, fn. 11; see also People v.
Hopson (2017) 3 Cal.5th 424, 459 [stating the trial court’s ruling
40
will be upheld if it is correct under any theory of law applicable to
the case].)
C. Foster Has Forfeited His Evidentiary Challenge
Under Section 1101; We Discern No Error in the
Trial Court’s Ruling in Any Event
On appeal, Foster argues the trial court erroneously admitted
the text exchange with Bd4 as rebuttal evidence, contending it was
inadmissible under Evidence Code sections 352 and 1101, and
amounted to an error of constitutional magnitude. Because defense
counsel objected only that the evidence was irrelevant and unduly
prejudicial under Evidence Code section 352, Foster has forfeited
any additional claims. (See People v. Doolin (2009) 45 Cal.4th 390,
437-438 [an objection on relevance and Evid. Code, § 352 grounds
was inadequate to preserve an Evid. Code, § 1101 argument for
appeal]; People v. Ervine, supra, 47 Cal.4th at p. 783 [federal
constitutional claims are forfeited where not raised at trial].) The
claims are also without merit.25
The prosecution’s theory of the case was that the shooting
was gang related, and that Foster, as a Rollin’ 40’s gang member,
shot at a group of individuals hanging out in Five Deuce
Hoover/Five One Troubles territory due to the intense rivalry
between those gangs and his own. This rivalry was memorialized in
graffiti across from the scene of the shooting, which included direct
25 Anticipating the forfeiture rule, Foster also argues that
trial counsel was ineffective for failing to object on the additional
grounds asserted on appeal. Our merits determination necessarily
disposes of Foster’s ineffective assistance of counsel claim. (See
Strickland v. Washington (1984) 466 U.S. 668, 692 [104 S.Ct. 2052,
80 L.Ed.2d 674] [a defendant must demonstrate both that counsel’s
performance was deficient and that it resulted in prejudice].)
41
death threats specifically aimed at Foster’s gang. Officer Smith, the
gang expert, testified that the primary activities of the Rollin’ 40’s
included committing burglaries and shootings.
Foster took the stand to counter the prosecution’s theory by
testifying that he became a “social” member of the Rollin’ 40’s
simply to bolster his music career, and he was not involved in the
gang “all the way.” Foster further testified he simply knew Duke
from high school football, and that Duke was not a member of the
Rollin’ 40’s.
By taking the stand, Foster “ ‘put his own credibility in issue
and was subject to impeachment in the same manner as any other
witness.’ ” (People v. Doolin, supra, 45 Cal.4th at p. 438; see also
Evid. Code, § 1101, subd. (c).) Here, the challenged text message
exchange took place on the day of the shooting and occurred
between Foster and “Bd4”—an individual who had referenced the
Rollin’ 40’s “Hood Day.” Bd4’s text message to Foster that “Duke
sed I kno yall got somethin out dat house,” and Foster’s response
that, “The lit bit we got aint shit,” did indeed suggest Foster
participated in criminal activity with Duke. However, the text
exchange was only admitted after Foster took the stand and sought
to minimize his role in the gang and suggest that he was entirely
naïve—and divorced from—the kind of criminal activities
committed by the gang. In so testifying, Foster essentially sought
to imply that he—as an innocent and tangential member of the
Rollin’ 40’s—would have no reason to participate in or carry out any
gang related offenses. To suggest the prosecution had no right to
counter the credibility of this presentation with Foster’s own words
42
would allow him to effectively present a one-sided impression,
without fair rebuttal.26
We also agree with the trial court that the evidence consumed
little time, and was not unduly prejudicial under Evidence Code
section 352. The text exchange was admitted into evidence after
the close of testimony and was not discussed nor summarized
during the presentation of evidence. It also does not appear that
either attorney mentioned the text messages in their closing
arguments.27
Accordingly, we discern no abuse of discretion in the trial
court’s admission of the evidence in question. Because the trial
court did not abuse its discretion under state law in admitting this
evidence, Foster’s claim that its admission violated his
constitutional right to a fair trial is also without merit. (People v.
Riggs (2008) 44 Cal.4th 248, 292 [to the extent the defendant’s
constitutional claim was “merely a gloss on the objection raised at
trial,” it is without merit because the trial court did not abuse its
26 To the extent Foster argues in his reply brief that “the
evidence was not admissible on the grounds for which it was
admitted,” we can, as mentioned earlier, affirm on any basis in the
record. (People v. Hopson, supra, 3 Cal.5th at p. 459 [stating trial
court’s ruling will be upheld if it is correct under any theory of law
applicable to the case]; People v. Zamudio, supra, 43 Cal.4th at
p. 351, fn. 11 [same].) Moreover, the trial court’s ruling was directly
responsive to defense counsel’s objection that the text messages
were inadmissible as irrelevant and prejudicial under Evidence
Code section 352.
27 During deliberations, the jury sent a note asking for
multiple items, including the “text message record.” In response,
the court referred them to Exhibit No. 32. Exhibit 32 contains 21
pages of text messages, with the vast majority of the messages
blacked out in redaction.
43
discretion in admitting the evidence]; see People v. Albarran (2007)
149 Cal.App.4th 214, 229-230 & fn. 13 [the admission of evidence
violates due process only if no permissible inference may be drawn
from it].)
VI. Cumulative Error
Foster contends the cumulative effect of the trial errors
alleged above denied him due process and compels reversal. In
light of the foregoing discussion, there are not multiple trial errors
to accumulate. (People v. Capers (2019) 7 Cal.5th 989, 1017-
1018.)28
DISPOSITION
The judgment of the trial court is affirmed in all respects.
CERTIFIED FOR PARTIAL PUBLICATION
FEDERMAN, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
28 By letter filed on March 2, 2020, Foster withdrew argument
VII in his opening brief, noting that the correction to the minute
order he sought with regard to sentencing has been accomplished.
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
44